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/1577157/ | 629 F.Supp. 788 (1985)
J.L. CLARK MANUFACTURING CO.
v.
GOLD BOND CORPORATION.
Civ. A. No. 85-2847.
United States District Court, E.D. Pennsylvania.
October 16, 1985.
*789 Denis V. Brenan, Glen R. Stuart, Philadelphia, Pa., for plaintiff.
Kenneth F. Carolus, Philadelphia, Pa., for defendant.
MEMORANDUM AND ORDER
TROUTMAN, Senior District Judge.
Defendant Gold Bond Corporation has moved to dismiss the complaint or to transfer this breach of contract action for improper venue, claiming that it is not a resident of this district and that the claim did not arise here. Since federal jurisdiction is based solely upon diversity of citizenship, venue is governed by 28 U.S.C. § 1391(a), which allows a case to be brought only in the judicial district where all plaintiffs or all defendants reside or in which the claim arose. Because Gold Bond is a corporation, its residence must be determined in accordance with 28 U.S.C. § 1391(c).[1] It is apparent from the allegations of the complaint that defendant is neither incorporated nor licensed to do business in Pennsylvania. For venue to be properly laid in this district the Court must determine either that Gold Bond is doing business here within the meaning of § 1391(c), and so is a Pennsylvania resident, or that the claim arose here. Plaintiff contends that venue is properly laid for both reasons.[2]
In this district, the prevailing analysis with respect to venue questions proceeds from the premise that although venue, like in personam jurisdiction, involves an examination of contacts with the forum state, a greater quantum of contacts is needed to establish venue than to satisfy due process requirements for service of process.[3]See, e.g., Damon Coats v. Munsingwear, Inc., 431 F.Supp. 1303 (E.D.Pa. 1977); Trinity Metals v. Andy Intern, Inc., 424 F.Supp. 966 (E.D.Pa.1977); North Eastern Timber v. Pines Trailer Corp., 501 F.Supp. 321 (E.D.Pa.1980) and Wright v. Columbia University, 520 F.Supp. 789 *790 (E.D.Pa.1981), on the issue of the sufficiency of a corporate defendant's contacts for residence purposes. Also, see Catrambone v. Bloom, 540 F.Supp. 74 (E.D.Pa.1982) and Pennwalt Corp. v. Horton Co., 582 F.Supp. 438 (E.D.Pa.1984) on the need to determine "where the contacts weigh most heavily" in considering where the claim arose.
Both plaintiff and defendant in this case appear to have assumed that the question of sufficient contacts in the venue context is conceptually the same whether the issue is defendant's residence or where the claim arose. We do not believe that the contacts analysis can be merged for the two distinct venue questions presented for decision in this case. The process of weighing contacts should be done somewhat differently for each issue. When the question is whether the defendant is a resident of the judicial district in which the action was brought, the focus should be only upon that party's contacts with the forum. On the other hand, when the question is whether the claim arose here, all circumstances surrounding the transaction in issue, including plaintiff's contacts, would seem to be relevant and should be considered. With this conceptual framework in place, we now proceed to determine whether the defendant resides here for venue purposes and/or whether the claim arose here.
While the quantum of contacts necessary to establish a corporate defendant's residence under the "doing business" provision of § 1391(c) is a question of federal law, a particularly significant factor to be considered in examining the defendant's forum contacts is whether its activities are such that under state law it ought to be licensed. Damon Coats v. Munsingwear, Inc., Trinity Metals v. Andy Intern, Inc., and North Eastern Timber v. Trailer Corp., supra. One of several exceptions to Pennsylvania's requirement that foreign corporations doing business in the Commonwealth acquire a certificate of authority is "transacting business in interstate commerce". 15 Pa.Stat.Ann. § 2001(B)(9). Since Gold Bond's activities in Pennsylvania appear to be limited to accepting delivery of J.L. Clark's product at Clark's Lancaster plant, remitting payment there and such mail, telephone, and other contacts necessarily incident to its purchases of plaintiff's product, it appears that Gold Bond falls within the interstate commerce exception and would not require a license to do business here. The cases cited above, involving similar circumstances, amply support that conclusion.
If the business activities of a defendant corporation are too minimal to require licensing, it must have some additional contacts with the forum if it is to be considered a resident there for venue purposes. Plaintiff urges that such contacts are supplied here by the sale of defendant's products in Pennsylvania stores. Although this may be significant in some contexts, it is not sufficient to establish doing business and hence residence for venue purposes under the circumstances present here. Gold Bond contends that it sells its product through a third-party with no knowledge of where it is later offered for consumer sale. If true, such sales fall short of the sort of purposeful activities needed for "doing business" pursuant to § 1391(c).
Moreover, the case cited by plaintiff for the proposition that venue may be based upon the sale of a defendant corporation's products in the forum, Tefal, S.A. v. Products Intern. Co., 529 F.2d 495 (3d Cir. 1976), is not applicable to the residence question. The venue issue in that case was where the claim arose, not defendant's residence. Thus, if venue is to be sustained on the basis of defendant's residence in the Eastern District a closer inquiry into the nature of its presence here must be undertaken. The present record does not establish that it is a resident of this district.
Turning to the question of where the claim arose, we note first that plaintiff seeks to use the sale of Gold Bond's products in Pennsylvania to buttress its argument on that issue as well. Although, as noted, the issue in Tefal was where the claim arose and venue was sustained because *791 the sale of defendant's products in the forum was held to be a sufficient contact, the reasoning there does not apply in this case. Tefal was an action for trademark infringement. The nature of the claim in such a case is quite different from that in a contract case. In an infringement action the plaintiff's injury arises from and is aggravated by the sale of defendant's products, thereby rendering all such sales relevant contacts. Here, on the other hand, the presence of Gold Bond's products in this district is in no way related to the breach of contract alleged.
In contract actions the simplest and most logical answer to the question of where the claim arose is place of performance. See, Moore's Federal Practice, § 0.1425.2 at 1435 (2d Ed.1985). This is a particularly practical course to follow where the claim is for breach of contract in that breach often occurs at place of performance.
Plaintiff in this case contends that performance on its part and defendant's breach both occurred in this district in that Gold Bond received the goods at Clark's Lancaster plant and was to remit payment there. Defendant claims that performance on its part, payment, was due in plaintiff's New York office. Gold Bond also claims that its receipt of the goods in Lancaster was plaintiff's choice, and so venue should not be based on that contact. Insofar as the latter argument is applied to the issue of Gold Bond's residence in this district, it is persuasive, but it loses its cogency when applied to the issue of where the claim arose. It is logical that the decision as to a corporate defendant's residence in a particular district should not be based solely upon its activities incident to the transaction in issue, particularly where it appears that those activities would not subject it to the forum's licensing requirements. However, those activities are viewed differently and assume more importance when the issue is where the claim arose. In that context, plaintiff's contacts with the forum are also weighed, along with the terms of the contract itself.
Place of delivery is ordinarily a contract term subject to negotiation between the parties. Nothing in the record suggests that there is such disparity of position between the two corporate parties to this action that Gold Bond was prevented from participating in the choice of Lancaster as plaintiff's place of performance. Moreover, if defendant normally paid for plaintiff's goods at the Lancaster plant and was to do so for the contract involved in this case, defendant's performance was due in Lancaster as well. As noted, however, defendant disputes plaintiff's factual allegations on that point.
In summary, it appears from the present record that although Gold Bond is not a resident of this district for venue purposes, the claim did arise here. Still, the question of sufficiency of contacts even on that issue is close enough to warrant discovery. If discovery is to be undertaken, however, it should include further inquiry into the issue of defendant's residence as well. Accordingly, the Court will order discovery limited to providing such information as will clarify the record upon which we are to make our determination as to the propriety of venue in this district.
NOTES
[1] A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.
[2] Plaintiff is also a corporation not incorporated in Pennsylvania and not maintaining its principal place of business here, although it does have a plant in Lancaster, Pennsylvania. Plaintiff has not claimed residence in this district as a basis for venue here.
[3] The principle that a greater quantum of contacts is required for venue than for personal jurisdiction was developed in the context of determining a corporate defendant's residence for venue purposes. No specific reference to that principle was made in those cases in which the venue question turned on where the claim arose, but there does not appear to be any reason why the analysis should not apply in that context as well. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646295/ | 9 So.3d 158 (2009)
STATE ex rel. Eddie DEJEAN
v.
STATE of Louisiana.
No. 2008-KH-2130.
Supreme Court of Louisiana.
May 29, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577213/ | 670 N.W.2d 638 (2003)
12 Neb. App. 239
Joush HATCHER, Jr., Appellant,
v.
Richard McSHANE, Appellee.
No. A-02-097.
Court of Appeals of Nebraska.
November 4, 2003.
*641 Joush Hatcher, Jr., pro se.
James S. Jansen, Douglas County Attorney, and Jeffrey J. Lux for appellee.
IRWIN, C.J., and SIEVERS and MOORE, Judges.
SIEVERS, Judge.
Joush Hatcher, Jr., convicted of and incarcerated for the crime of first degree murder, has sued Richard McShane, alleging slander and libel as a result of McShane's letter concerning Hatcher's crime, which letter was written to and published by the Omaha World-Herald newspaper. The trial court sustained McShane's demurrer on the grounds that there had been a failure to comply with the Political Subdivisions Tort Claims Act and that the substance of the publication "appears to be true." The trial court dismissed the lawsuit, and Hatcher appealed to this court.
FACTUAL BACKGROUND
McShane's letter, attached to Hatcher's pro se petition, recounts that 23 years after Hatcher pled guilty to the first degree murder of Charles Dobbertin, a Douglas County deputy sheriff, Hatcher was again attempting to have his conviction overturned. McShane said in his letter that he wanted to "remind this confessed killer that [Hatcher's] actions and his alone on that cold, Dec[ember] 2, 1977 day are the reason[s] for the life sentence." McShane's letter then claimed that while off duty, Dobbertin observed Hatcher stealing packages from a United Parcel Service truck, whereupon Dobbertin stopped, gave chase, and was knocked unconscious after a brief struggle. According to the letter, Hatcher took Dobbertin's revolver, ran, stopped, and then returned to shoot Dobbertin twice "in cold blood," knowing Dobbertin was a deputy sheriff. McShane's letter then says: "This was an execution. It was not accidental and upon a sudden quarrel, as Hatcher contends in his latest appeal." The balance of McShane's letter recounts how he had guarded the then 20-year-old Hatcher, who carried a Bible with him to court as a sign of remorse and pled guilty to avoid the death penalty. McShane suggests that if Hatcher would have read the Bible before the day of the killing, both Hatcher's and Dobbertin's lives might have been saved.
*642 This letter sparked Hatcher's lawsuit seeking damages of $100,000 and a retraction from McShane, who had described himself in his letter as "Douglas County sheriff chaplain, Nebraska Fraternal Order of Police." In Hatcher's petition against McShane, Hatcher admits that he was convicted of first degree murder and that he purposely and with deliberate and premeditated malice did kill. But he further states that the facts in the court record "reveal a sudden quarrel and [an] ensuing killing during [a] struggle precipitated by [Dobbertin,] who attacked [Hatcher] with a loaded gun." Hatcher then alleges that McShane's version set forth in his letter is a "completely unmitigated fabrication." Hatcher then alleges that the gun accidentally discharged when Dobbertin initiated an encounter with Hatcher and a struggle ensued over Dobbertin's weapon. Hatcher concludes that McShane's account of the incident and labeling of the killing as "an execution" are totally untrue, not supported by court records, and "clearly inflammatory." As a result, Hatcher brings a civil action against McShane "for defamation of character, and slander and libel for the amount of $100,000.00 because his comments were totally wrong, and inaccurate and completely false as well as unfounded."
ASSIGNMENTS OF ERROR
Hatcher claims, summarized and restated, that the demurrer was wrongfully sustained and that the dismissal of his lawsuit was improper. He also claims that the court erred in failing to grant him a default judgment when McShane had been served with summons but did not respond to the petition within the 30-day timeframe.
STANDARD OF REVIEW
An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken. Parker v. Lancaster Cty. Sch. Dist. No. 001, 254 Neb. 754, 579 N.W.2d 526 (1998). In considering a demurrer, a court must assume that the facts pled, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Id. When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that amendment will correct the defect. Vanice v. Oehm, 255 Neb. 166, 582 N.W.2d 615 (1998).
ANALYSIS
Default Judgment and Second Summons.
Hatcher assigns as error the failure of the trial court to grant him default judgment after McShane had been served with summons. Hatcher also asserts error by the trial court in entering an order directing service of process a second time. Initially, we note that while there were apparently several court hearings, none of those hearings were recorded, a matter about which Hatcher also complains. We do not know what was said by the parties or the court at those proceedings, but the rule is that court proceedings at which evidence is adduced must be recorded and that other proceedings are to be recorded when a party so requests. See Robinson v. NABCO, Inc., 10 Neb.App. 968, 641 N.W.2d 401 (2002). Because none of the proceedings were recorded, we must assume that there was no evidence adduced and no request for a court reporter to take down the proceedings. Thus, we move on to the matter of service of process.
*643 On July 3, 2001, Hatcher filed a praecipe asking that McShane be personally served at his residence in Omaha, Nebraska. The return by a civil process server shows that 3 days later, McShane was served personally at the "Hall of Justice, 2nd Floor Security, in Douglas County, Nebraska, at 3:15 p.m." No answer or other pleading was filed by McShane by September 18, when Hatcher filed a motion for default judgment asserting that McShane had been served but had defaulted. A district court journal entry on that same day states that the "clerk [is] directed to issue and serve summons in accordance with [the] praecipe." The court's journal entry also shows that the motion for default judgment was denied and that there was a "letter to [Hatcher]," which letter we do not have. Our transcript then contains a typed praecipe, in contrast to Hatcher's original handwritten praecipe, directing the clerk of the court to issue "[s]ummons upon ... McShane at [his residence in] Omaha, Nebraska ... (per Judge Hartigan's order of 9/18/01)." The address was the same as the one Hatcher had used in his praecipe for summons. The return of the civil process server shows that he received the papers on November 30 and served the same on December 3 upon McShane by delivering it to him "personally at [the] Hall of Justice, 1701 Farnam Street, 2nd Floor Holding, in Douglas County, Nebraska, at 8:55 a.m." Thus, the second service per the judge's order was service in the same manner and at the same location as under Hatcher's praecipe. McShane, through counsel, then filed a demurrer on December 18.
Hatcher's argument is that there was no basis for the issuance of a second summons because McShane had been validly served the first time in July 2001 and had not responded to the lawsuit, and that Hatcher was therefore entitled to default judgment rather than McShane's being entitled to have a second summons served upon him pursuant to the judge's order. Lacking any transcription of hearings or explanation by the court in its orders beyond what we have previously stated, we can only surmise that the court believed that the original praecipe requesting personal service at McShane's home address had to be strictly complied with and that service at his place of employment at the Hall of Justice on July 6 was for some reason invalideven though McShane had not challenged service.
If we have correctly surmised the court's rationale for its denial of the motion for default judgment and for ordering service of process a second time on its own accord, we have found no authority for the proposition that personal service upon a defendant at a location other than the one specified in the praecipe voids the service. In fact, we think the law is otherwise. We proceed by analogy from Neb.Rev.Stat. § 25-505.01 (Reissue 1995) which provides for the service of summons and the methods thereof. The statute indicates that a plaintiff "may elect to have service made by any of the following methods," and then it provides for personal service, residence service, and certified mail service. However, § 25-505.01(2) expressly provides: "Failure to make service by the method elected by the plaintiff does not affect the validity of the service." From this language, we obviously must conclude that personal service at work rather than at home, despite the designation on the praecipe of where service should be effected, is nonetheless valid service. Therefore, we find that the court erred in ordering that McShane be served a second time. However, this conclusion does not mean that there was error in the failure to enter default judgment, even though McShane was in default.
*644 The standard for entry of a default judgment has long been established. Where a defendant is in default, the allegations of the petition are to be taken as true against him or her, except allegations of value and amount of damage; and if the petition states a cause of action, the plaintiff is entitled to judgment without proof except as to the quantum of damages. Weir v. Woodruff, 107 Neb. 585, 186 N.W. 988 (1922); State on Behalf of Yankton v. Cummings, 2 Neb.App. 820, 515 N.W.2d 680 (1994). As discussed below, Hatcher's petition does not state a cause of action because it does not allege how McShane's letter is defamatory and does not allege special damagesboth being essential elements of a claim for defamation per quod, as discussed in the next section of our opinion. Therefore, while the order for the issuance of a second summons was error, it was a superfluous and meaningless order because Hatcher was not entitled to default judgment.
Defamatory Letter?
We note that Hatcher has attached McShane's letter to the petition so we know exactly what is alleged to constitute the defamation. Hatcher also admits in his petition that he is a convicted first degree murderer as a result of the death of Dobbertin and that "[Hatcher] purposely and with deliberate and premeditated malice [did] kill." When Hatcher's defamation claim is reduced to its essence, it is apparent that Hatcher wishes to quibble with McShane about precisely how it was that Hatcher came to kill Dobbertin, irrespective of Hatcher's conviction of first degree murder for Dobbertin's death. That conviction necessarily requires the conclusion, also admitted by Hatcher's pleading, that Dobbertin was killed with premeditation and intent, given the elements of first degree murder. See Neb.Rev.Stat. § 28-303 (Reissue 1995) (murder in first degree is committed by killing another person purposely and with deliberate and premeditated malice).
Defamation is of two types. There are words that are actionable per se, that is, in themselves, or words may be actionable per quod, that is, only on allegation and proof of the defamatory meaning of the words used and of special damages. See K Corporation v. Stewart, 247 Neb. 290, 526 N.W.2d 429 (1995). Spoken or written words are slanderous or libelous per se only if they falsely impute the commission of a crime involving moral turpitude, an infectious disease, or unfitness to perform the duties of an office or employment, or if they prejudice one in his or her profession or trade or tend to disinherit one. Matheson v. Stork, 239 Neb. 547, 477 N.W.2d 156 (1991).
In the case at hand, McShane's letter cannot falsely impute the commission of a crime involving moral turpitude, since Hatcher's petition admits his conviction for first degree murder. The letter makes no mention of an infectious disease, and Hatcher holds no office or employment. Nor does he have a profession or trade, and anything McShane said in his letter does not tend to disinherit Hatcher. As a result, the letter is not libelous per se. Thus, we turn to the second type of defamation.
Is the letter defamation per quod? This type of defamation requires the allegation and proof of the defamatory meaning of the words used and of special damages. See Norris v. Hathaway, 5 Neb.App. 544, 561 N.W.2d 583 (1997). We have previously spoken of special damages as those suffered by a claimant because they are out-of-pocket damages. See Sabrina W. v. Willman, 4 Neb.App. 149, 540 N.W.2d 364 (1995). Special damages are those capable of accurate determination *645 by some means other than the opinion of the judge or jury. See Southwell v. DeBoer, 163 Neb. 646, 80 N.W.2d 877 (1957). In the instant case, there is absolutely no allegation of special damages, and thus, the petition fails to state a cause of action and is demurrable on that ground.
Additionally, we consider the second half of the equation for dismissal upon a demurrer: Is there a reasonable possibility that Hatcher could allege special damages? We must answer in the negative. Hatcher, a convicted first degree murderer serving a life sentence, does not have a reasonable possibility of suffering out-of-pocket damages from anything McShane says about the precise details of how that crime was committed.
Moreover, there is no allegation of how the words used by McShane in characterizing the crime as "an execution" are defamatory to Hatcher, a confessed first degree murderer who admits to killing, in the words of his petition, "with deliberate and premeditated malice." In fact, the common dictionary meaning of "execution" or "execute" is to put to death according to law. See Webster's Encyclopedic Unabridged Dictionary of the English Language 498 (1989). Thus, by calling Dobbertin's killing an "execution," McShane has incorrectly attributed, at least by the dictionary definition, an element of legality to it. However, we recognize that the colloquial meaning of "execution" is on the order of a heartless and intentional killing, which is an accurate layman's description of first degree murder. Thus, McShane accuses Hatcher of what Hatcher admits doing. While we are somewhat hesitant to say that as a matter of law, a convicted first degree murderer could never be defamed by a communication discussing or characterizing his or her crime, we have no hesitancy in saying that McShane's letter, as a matter of law, is not defamatory. Therefore, the petition does not state a cause of action, nor could it be amended to do so. Thus, while our reasoning differs somewhat from the trial court's, we nonetheless conclude that the sustaining of the demurrer and the dismissal of the lawsuit must be affirmed. See Staman v. Yeager & Yeager, 238 Neb. 133, 469 N.W.2d 532 (1991). It also follows that because the petition does not state a cause of action, Hatcher was not entitled to a default judgment.
CONCLUSION
Given that an appellate court need not address issues unnecessary to the decision, we do not address the matter of the Political Subdivisions Tort Claims Act. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994). For the foregoing reasons, we affirm the trial court's order sustaining McShane's demurrer and dismissing Hatcher's lawsuit.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577425/ | 670 N.W.2d 319 (2003)
266 Neb. 882
K N ENERGY, INC., a division of Kinder Morgan, Inc., Appellee,
v.
CITIES OF ALLIANCE and OSHKOSH, municipal corporations of the State of Nebraska, Appellants.
K N Energy, Inc., a division of Kinder Morgan, Inc., Appellee,
v.
Cities of Kimball et al. and Village of Gurley, municipal corporations of the State of Nebraska, Appellants.
K N Energy, Inc., a division of Kinder Morgan, Inc., Appellee,
v.
Village of Hemingford and Cities of Gordon and Chadron, municipal corporations of the State of Nebraska, Appellants.
Nos. S-01-1031, S-01-1032, S-01-1033.
Supreme Court of Nebraska.
October 24, 2003.
*320 David A. Hecker and Norman M. Krivosha, of Kutak Rock, L.L.P., Lincoln, for appellants.
M.J. Bruckner, Lincoln, of Bruckner Fowles Law Firm, P.C., Stephen M. Bruckner, Omaha, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., and B.J. Becker and William M. Lopez, of Kinder Morgan, Inc., for appellee.
WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
McCORMACK, J.
NATURE OF CASE
K N Energy, Inc. (KNE), a division of Kinder Morgan, Inc., initiated these actions against the Cities of Alliance, Oshkosh, Kimball, Chappell, Sidney, Gordon, and Chadron and the Villages of Hemingford *321 and Gurley (collectively the municipalities). The municipalities initiated a review of a "P-0802 surcharge" under Neb.Rev.Stat. § 19-4618(1) (Reissue 1997) and passed ordinances prohibiting KNE from collecting the P-0802 surcharge from ratepayers within the municipalities. KNE initiated these collateral attacks to enjoin the municipalities from enforcing the ordinances. The district court found KNE's actions to be prudent and reasonable and thus enjoined the municipalities from enforcing the ordinances. The municipalities appeal, arguing that the P-0802 surcharge is not a "prudently incurred" expense under Neb.Rev.Stat. § 19-4612(5) (Reissue 1997). We affirm.
BACKGROUND
In 1972, KNE obtained the right to purchase leases for several hundred thousand acres of potential natural gas reserves in Montana, in an area known as the Bowdoin Field. KNE assigned those lease rights to its then wholly owned production affiliate, Midlands Gas Corporation (Midlands). Midlands later purchased the Bowdoin Field leases, and on December 21, 1973, KNE entered into a contract to purchase natural gas from Midlandsthe P-0802 contract. The P-0802 contract required KNE to purchase gas for the life of the Bowdoin Field.
The P-0802 contract was amended in 1975 to add additional acreage, bringing the total to approximately 600,000 acres of gas reserves. The 1975 amendment provided for the pricing of gas under the contract at the maximum lawful price established for the Bowdoin Field, whether that price was higher or lower than the base contract price. The amendment also included a provision under which Midlands, but not KNE, could trigger price redetermination as to any gas sold under the contract that became deregulated. Natural gas first flowed under the P-0802 contract in 1976 and has continued without interruption ever since.
KNE occasionally loaned money to Midlands to fund Midlands' gas exploration and development operations. In 1981, Midlands entered into a production payment financing agreement in which it pledged the revenue from the P-0802 contract to repay a $30 million loan from institutional investors. The proceeds from this loan were used to repay KNE for capital advances made by KNE to assist Midlands in the acquisition and development of leases in the Bowdoin Field. KNE used those funds for corporate purposes, including additional gas purchases.
In 1983, KNE divested Midlands to avoid a hostile takeover. After December of that year, KNE had no corporate relationship with Midlands.
Beginning in 1998, KNE offered a "Choice Gas" program that gave its Nebraska retail customers an annual option to choose their gas supplier. Each of the municipalities has adopted the choice gas program. The municipal ordinances that adopted this program provided that KNE would recover any above-market costs of the P-0802 contract. When the P-0802 contract was below market, retail customers would receive a credit. The mechanism by which above-market costs of the P-0802 contract are recovered has come to be referred to as the "P-0802 Surcharge."
Between February and April 1999, each of the municipalities adopted resolutions to conduct a "targeted prudence and rate-related review" of the P-0802 surcharge. Following hearings in each rate area, each of the municipalities adopted ordinances similarly providing that
the above-market costs associated with the P-0802 Contract currently recovered by KNE through the "P-0802 Surcharge" from all customers on KNE's *322 distribution system in this municipality and throughout the rate areas served by KNE are not prudently incurred costs and therefore such above-market costs are not an authorized expense recoverable through a "rate" under the [Municipal Natural Gas Regulation Act] and consequently KNE should be prohibited from including and seeking to recover such above-market costs, whether as part of the "P-0802 Surcharge," or through any other rate or charge, including without limitation, as part of a purchase gas adjustment schedule ("PGA").
KNE filed these collateral attacks in the district court for Lancaster County, seeking to enjoin the municipalities from enforcing the ordinances. On August 3, 2001, the district court ruled in favor of KNE and enjoined enforcement of the ordinances.
ASSIGNMENTS OF ERROR
The municipalities assign the following errors: (1) the August 3, 2001, order and judgment of the district court finding that (a) the original terms of the P-0802 contract were prudent and reasonable, (b) the terms of the April 1975 amendment to the P-0802 contract were prudent and reasonable, (c) the 1981 production payment financing transaction involving KNE and Midlands was prudent and reasonable, (d) KNE's divestiture of Midlands in 1983 benefited KNE ratepayers and was prudent and reasonable, and (e) KNE's divestiture of Midlands without first amending the P-0802 contract to insert a contract termination or price redetermination clause was prudent and reasonable; (2) the determination of the district court that the ordinances adopted by the municipalities should be enjoined and that each municipality, its officers, elected officials, employees, representatives, and agents are enjoined from enforcing such ordinances; (3) the scope of the district court's order purporting to enjoin the municipalities from ever " `prohibiting KNE from continuing to include in its rate or charges the above-market costs associated with the P-0802 [c]ontract' "; and (4) the failure of the district court to award the municipalities their reasonable attorney fees under § 19-4618(2).
At trial in the district court, the municipalities did not contend that the 1975 amendment to the P-0802 contract was imprudent nor did they contend that the 1981 production payment transaction was imprudent. Thus, their assignments of error (1)(b) and (c) will not be considered by this court.
STANDARD OF REVIEW
In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. K N Energy, Inc. v. Cities of Broken Bow et al., 244 Neb. 113, 505 N.W.2d 102 (1993).
ANALYSIS
It is evident from the parties' briefs that the proper burden of proof and scope of review requires some clarification. We have held that a municipal corporation, in fixing rates to be charged by a public utility, acts in a legislative rather than a judicial capacity. K N Energy, Inc. v. City of Scottsbluff, 233 Neb. 644, 447 N.W.2d 227 (1989). Courts will generally presume that legislative or rulemaking bodies, in enacting ordinances or rules, *323 acted within their authority and that the burden rests on those who challenge their validity. Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623 N.W.2d 672 (2001).
The municipalities contend, without citation, that "[i]f any substantial evidence exists supporting the Municipalities' findings reflected in the Ordinances, the Ordinances are valid." Brief for appellants at 13. The municipalities are mistaken in this contention. In K N Energy, Inc. v. City of Scottsbluff, supra, the City of Scottsbluff made a similar and unsuccessful argument.
Elsewhere, the municipalities argue that this court examines the evidence to determine if "any rational basis exists to support the Municipalities' actions." Reply brief for appellants at 13. Again, the municipalities are simply wrong. It is well established that in a collateral attack on a rate or rates set by an ordinance, the burden is on a utility to show that the municipally established rate is unjust, unreasonable, and confiscatory, in violation of the constitutional right to due process. K N Energy, Inc. v. Cities of Broken Bow et al., supra; K N Energy, Inc. v. City of Scottsbluff, supra; Kansas-Nebraska Nat. Gas Co., Inc. v. City of Sidney, 186 Neb. 168, 181 N.W.2d 682 (1970). The review by this court of factual questions is de novo on the record. See K N Energy, Inc. v. Cities of Broken Bow et al., supra.
Prior to the recent enactment of the State Natural Gas Regulation Act, Neb.Rev.Stat. § 66-1801 et seq. (Supp.2003), rates charged by a utility for natural gas service were regulated by municipalities under the Municipal Gas Regulation Act, Neb.Rev.Stat. § 19-4601 et seq. (Reissue 1997). Municipalities were authorized, once in any 36-month period, to "initiate a proceeding for a review and possible adjustment in rates to conform such rates to the standards of section 19-4612 by the introduction of a resolution for such purpose." § 19-4618(1). The ordinances passed by the municipalities in this case make no mention of § 19-4618(1) and instead purport to initiate a review under § 19-4604(1). However, the resolutions call for a "targeted prudence and rate-related review." As we shall see below, the prudence of a rate charged is one of the standards encompassed in § 19-4612. Thus, for purposes of our analysis, we deem the resolutions to have initiated a § 19-4618(1) review.
As stated, the municipalities' proceedings are initiated for the purpose of "a review and possible adjustment in rates to conform such rates to the standards of section 19-4612." § 19-4618(1). Section 19-4612 provides:
(1) The municipality, in the exercise of its power under the Municipal Natural Gas Regulation Act to determine just and reasonable rates for public utilities, shall give due consideration to the public need for adequate, efficient, and reasonable natural gas service and to the need of the utility for revenue sufficient to enable it to meet the cost of furnishing the service, including adequate provisions for depreciation of its utility property used and useful in rendering service to the public, and to earn a fair and reasonable return upon the investment in such property.
(2) Cost of service shall include operating expenses and a fair and reasonable return on rate base, less appropriate credits....
(3) In determining a fair and reasonable return on the rate base of a utility, a rate of return percentage shall be employed that is representative of the utility's weighted average cost of capital including, but not limited to, long-term debt, preferred stock, and common equity capital.
*324 (4) The rate base of the utility shall consist of the utility's property, used and useful in providing utility service, including the applicable investment in utility plant, less accumulated depreciation and amortization, allowance for working capital, such other items as may be reasonably included, and reasonable allocations of common property, less such investment as may be reasonably attributed to other than investor-supplied capital unless such deduction is otherwise prohibited by law.
(5) Operating expenses shall consist of expenses prudently incurred to provide natural gas service including a reasonable allocation of common expenses which shall include allocations authorized by subsection (3) of section 19-4621.
(Emphasis supplied.)
The municipalities contend that the P-0802 surcharge is not a "prudently incurred" expense under § 19-4612(5) and thus is not recoverable by a utility under the Municipal Gas Regulation Act. This case marks the first opportunity for this court to determine if a utility's expenses were "prudently incurred" under § 19-4612(5). KNE urges this court to adopt the test for determining the prudence of a utility's expenses established by the Federal Energy Regulatory Commission (FERC) in New England Power Co., 31 F.E.R.C. & para; 61,047, 1985 WL 191206 (1985), rehearing denied 32 F.E.R.C. & para; 61,112, 1985 WL 67138, affirmed sub nom. Violet v. F.E.R.C., 800 F.2d 280 (1st Cir.1986). In that decision, FERC's analysis of the relevant case law resulted in the following statement:
"[M]anagers of a utility have broad discretion in conducting their business affairs and in incurring costs necessary to provide services to their customers. In performing our duty to determine the prudence of specific costs, the appropriate test to be used is whether they are costs which a reasonable utility management (or that of another jurisdictional entity) would have made, in good faith, under the same circumstances, and at the relevant point in time. We note that while in hindsight it may be clear that a management decision was wrong, our task is to review the prudence of the utility's actions and the costs resulting therefrom based on the particular circumstances existing either at the time the challenged costs were actually incurred, or the time the utility became committed to incur those expenditures."
(Emphasis omitted.) Violet v. F.E.R.C., 800 F.2d at 282-83, quoting New England Power Co., supra.
The disdain for viewing a utility's incurrence of costs in hindsight can be traced further back to a concurring opinion in Southwestern Tel. Co. v. Pub. Serv. Comm., 262 U.S. 276, 289 n. 1, 43 S.Ct. 544, 67 L.Ed. 981 (1923), where Justice Brandeis stated:
The term "prudent investment" is not used in a critical sense. There should not be excluded from the finding of the base, investments which, under ordinary circumstances, would be deemed reasonable. The term is applied for the purpose of excluding what might be found to be dishonest or obviously wasteful or imprudent expenditures. Every investment may be assumed to have been made in the exercise of reasonable judgment, unless the contrary is shown.
We are persuaded by the logic of the test established in New England Power Co., supra, and hold that whether expenses are "prudently incurred" under § 19-4612(5) shall be judged against that test. We now proceed to apply that test to the facts of this case.
*325 At the rate hearings, the municipalities' expert witness, Dr. William G. Foster, challenged three actions of KNE with respect to the P-0802 contract: (1) the 1975 amendment, (2) the 1981 production payment financing, and (3) the 1983 divestiture of Midlands. At trial, Foster testified that he no longer believed the 1975 amendment to the P-0802 contract was imprudent. Furthermore, he did not testify that the production payment transaction was imprudent. He did, however, maintain that KNE acted imprudently in divesting Midlands without adding a market-out clause to the P-0802 contract. A market-out clause allows a buyer to terminate the contract if the seller declines to accept a price lower than the contractually agreed upon price. Our review in this appeal is limited to prudence of the P-0802 surcharge in light of the 1983 divestiture of Midlands.
KNE's distribution system differed from most interstate pipeline companies. It may best be described as a "spider web" extending into Colorado, Wyoming, Nebraska, and Kansas, unlike most other pipeline companies that utilize a single line of pipeline. KNE's system required sufficient natural gas supplies at the south and west end of its system to ensure reliable and adequate service to its customers as required by FERC policy. Notably, KNE's natural gas service to its customers has been continuous since the P-0802 contract was executed.
Dr. Charles J. Cicchetti testified as an expert witness for KNE. He testified that between 1975 and 1981, several events occurred to prompt a "major energy crisis," including the Iranian revolution, the hostage crisis in Tehran, and the Iran-Iraq war. In addition to those events, the emergence of spot prices and a "value gap" between natural gas prices and competing fuels led to the emergence of "corporate raiders." Most experts of the time predicted a significant price increase after deregulation of some types of natural gas. Cicchetti testified that in 1983, it was widely expected that the types of gas constituting the bulk of gas purchased under the P-0802 contract would be regulated indefinitely.
The district court also received evidence regarding the events and circumstances leading up to the 1983 divestiture of Midlands. According to Cicchetti, the passage of the Natural Gas Policy Act of 1978 (NGPA) was a significant event in the regulation of natural gas pipeline companies, and he explained the various pricing rules established by the NGPA for different types of natural gas. The different categories of gas came to be referred to by the relevant section of the NGPA; for example, section 107 gas was an expensive gas source found in deep or tight sand formations. The gas wells under the P-0802 contract were made up of four NGPA categories. The majority of the P-0802 gas were low-priced sections 104 and 108 gas, and these categories were not subject to deregulation under the NGPA. There was no expensive section 107 gas under the P-0802 contract.
As indicated both by Cicchetti's testimony and a 1990 report prepared by Foster for other litigation, forecasts from 1981 predicted that the natural gas prices would increase significantly in the next decade. It was predicted that natural gas prices would rise more rapidly than other fuels because (1) regulation had kept natural gas prices substantially below their market value and replacement cost; (2) higher priced supplemental gas would become a larger part of the supply; (3) natural gas would be priced at the same level as oil; (4) exploration costs would increase; and (5) natural gas supplies were limited. These predictions were based on the fact *326 that most experts, including Cicchetti, thought the surplus of natural gas that existed in 1983 would be short lived. Furthermore, at this time, pipeline reserve-to-production ratios were still below their historic levels. Cicchetti testified that experts widely thought natural gas prices would be tied to oil prices.
Cicchetti testified that in 1983, industry and market conditions made it advantageous for investors to purchase gas supplies rather than drill for them. Those conditions led to the emergence of "corporate raiders" like T. Boone Pickens. In 1983, Pickens and his company, Mesa Petroleum, initiated a hostile takeover to acquire KNE's gas reserves, including those held by Midlands. Hassel Sanders, a former officer of KNE, testified that in order to protect the valuable gas reserves provided under the P-0802 contract, KNE decided to divest its Midlands affiliate to KNE shareholders. The spinoff of Midlands allowed KNE to obtain a reasonable value for Midlands' production assets while protecting KNE ratepayers from a breakup of the corporation by Pickens or other "corporate raiders."
According to Cicchetti's analysis of a report prepared by Foster in 1985, market-out clauses were becoming evident in contracts after 1982, but they were not the norm in older contracts. Consistent with its 1983 gas acquisition guidelines, KNE sought to have market-out clauses included in its new contracts. Also in 1983, KNE had the lowest weighted average cost of gas (WACOG) of any interstate pipeline. At that time, the P-0802 contract average price was lower than alternate fuels.
Cicchetti testified that market-out clauses had less value in 1983 to low-cost pipeline companies such as KNE, which did not have large amounts of expensive Canadian or NGPA section 107 gases. Such clauses mostly were triggered by pipelines with high WACOG's. The district court found that KNE should not have reasonably anticipated exercising a clause for contracts like the P-0802 contract that covered no section 107 gas. In 1983, KNE was exercising contract termination rights for certain contracts, but only for its relatively small amount of high-priced section 107 gas. There was no section 107 gas in the P-0802 contract.
The district court found that KNE did not need to insert new buyer protection or contract termination language in the P-0802 contract. At trial, Foster criticized KNE for not inserting a market-out clause in the P-0802 contract before the Midlands spinoff. However, Cicchetti testified that the P-0802 contract already had buyer protection language. Both the initial P-0802 contract and the 1975 amendment had a provision that would allow the contract price to be adjusted downward if FERC ever disallowed a portion of the price. The contract also had language to address deregulation. This language was utilized later by KNE in 1985 to force a price renegotiation of the contract.
Cicchetti explained that market-out clauses were not that common in 1983. In 1983, KNE did exercise market-out clauses in other contracts to lower gas costs, but only for contracts containing high-priced section 107 gas. KNE needed the P-0802 contract to maintain its balanced gas portfolio. Cicchetti testified that KNE could keep its overall WACOG low, even if certain gas categories in the contract exceeded market prices, by exercising market-out clauses in other higher-priced contracts.
Moreover, Cicchetti testified that KNE had a strong regulatory reason not to include a market-out clause in the P-0802 contract. FERC required that all similar contracts be treated in the same manner. Therefore, if KNE decided to exercise market-out clauses in other contracts, it *327 then would have had to do the same in the P-0802 contract if, in fact, the P-0802 contract contained a market-out clause. This would have jeopardized the valuable reserves KNE had under the contract. As established by Sanders, those reserves at the western end of the KNE system were absolutely essential in order to maintain the pressure and the gas supply necessary for uninterrupted service to KNE customers. Thus, KNE maintained the option to treat the critical P-0802 contract reserves differently and keep that gas flowing, while terminating, if necessary, more recent vintage contracts to keep its overall gas costs low.
With regard to KNE's rate of return, Dr. R. Charles Moyer testified that the appropriate rate of return on equity for KNE was 12.7 percent. KNE also presented evidence of its actual rate of return in each of the three rate areas as 6.10 percent, 6.44 percent, and 0.35 percent. If the P-0802 surcharge were eliminated pursuant to the municipalities' ordinances, those rates of return for each of the three rate areas dropped to -1.29 percent, -0.63 percent, and -7.79 percent.
In our de novo review, we are mindful that the district court credited certain evidence rather than other evidence, and we conclude that the P-0802 surcharge was a prudently incurred expense under § 19-4612(5). The district court did not err in enjoining the municipalities from enforcing the ordinances. While the municipalities take exception to the scope of the district court's order, we do not read the district court's order as broadly as do the municipalities. The district court enjoined enforcement of the ordinances passed in this case, just as requested by KNE's petition. The judgment of the district court is affirmed. In light of our conclusion, the district court did not err in denying the municipalities attorney fees under § 19-4618(2).
AFFIRMED.
HENDRY, C.J., and CONNOLLY, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577428/ | 670 N.W.2d 292 (2003)
STATE of Minnesota, Respondent,
v.
WOHLSOL, INC., Appellant.
No. A03-521.
Court of Appeals of Minnesota.
October 21, 2003.
*293 Mike Hatch, Attorney General, St. Paul, MN; and Charles C. Glasrud, Morris City Attorney, Morris, MN, for respondent.
Robert V. Dalager, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chtd., Morris, MN, for appellant.
Considered and decided by WILLIS, Presiding Judge, TOUSSAINT, Chief Judge, and STONEBURNER, Judge.
O P I N I O N
STONEBURNER, Judge.
Appellant Wohlsol, Inc., a Minnesota corporation, is charged with two misdemeanor counts of permitting underage persons to drink alcoholic beverages on its licensed premises in violation of Minn.Stat. § 340A.503, subd. 1(a)(1) (1998). Prior to trial, appellant moved to dismiss the charges, claiming that the statute is unconstitutionally vague. Appellant also renewed an objection to the district court's proposed jury instructions, which did not require the state to prove that appellant had knowledge of the violation or specific intent. The district court denied the motion to dismiss but granted appellant's request that the jury be instructed that the state is required to prove that appellant acted with knowledge of the alleged violation of Minn.Stat. § 340A.503, subd. 1(a)(1). The district court certified as important and doubtful the questions of (1) whether Minn.Stat. § 340A.503, subd. 1(a)(1), as it relates to whether the appellant "permitted" an underage person to drink alcohol on the licensed premises, requires proof by the state that appellant acted with knowledge of the alleged statutory violation and (2) whether Minn.Stat. § 340A.503, subd. 1(a)(1), is unconstitutionally vague with respect to the term "permit." We answer the first certified question in the affirmative and the second certified question in the negative.
FACTS
Appellant Wohlsol, Inc., a closely held Minnesota corporation, is an on-sale intoxicating-liquor licensee operating licensed premises known as Old No. 1 Bar & Grill in Morris. In January 2002, a waiter at the bar served alcoholic beverages to two 20-year-old patrons without asking either of them to produce identification. One of the patrons consumed about five beers on the premises and was later involved in a fatal car accident. The parties have stipulated that appellant
asserts, and the State has no evidence to dispute, that it had not authorized or directed [the waiter] to sell, serve, or allow or permit consumption of alcoholic beverages by underage persons in the bar, and in fact, asserts that it had specifically trained and instructed its employees, including [the waiter], not to do so, on many occasions.
*294 Appellant was charged with two misdemeanor counts of permitting an underage person to drink on licensed premises under Minn.Stat. § 340A.503, subd. 1(a)(1) (1998). Appellant moved to dismiss the charges, asserting that application of Minn.Stat. § 340A.503, subd. 1(a)(1), unconstitutionally violates due process by imposing vicarious criminal liability on appellant based solely on the actions of an employee. The district court denied the motion. The district court also denied appellant's request to instruct the jury that the corporation may only be guilty if the employee's actions were authorized, tolerated, or ratified by appellant's corporate management. Immediately prior to jury selection, appellant moved to dismiss the charges on the ground that Minn.Stat. § 340A.503, subd. 1(a)(1), is unconstitutionally vague. Appellant also renewed its objection to the district court's denial of its request that the jury be instructed that the state must prove appellant's knowledge or specific intent to violate the statute. The district court denied appellant's motion to dismiss but granted the requested instruction that the state is required to prove that appellant acted with knowledge of the alleged violation of the statute. The district court then certified the following questions to the court of appeals:
1. Does Minn.Stat. § 340A.503, subd. 1(a)(1), as it relates to whether the defendant "permitted" an underage person to drink alcohol upon the licensed premises, require proof by the Plaintiff that Defendant acted with knowledge of the alleged violation of the statute?
2. Is Minn.Stat. § 340A.503, subd. 1(a)(1) unconstitutionally vague with respect to the term "permit."
ISSUES
1. Is Minn.Stat. § 340A.503, subd. 1(a)(1) (1998), making it a misdemeanor for a retail liquor licensee to permit an underage person to drink alcohol on the licensed premises, a specific intent statute requiring the state to prove that a defendant acted with knowledge of the alleged violation?
2. Is Minn.Stat. § 340A.503, subd. 1(a)(1) unconstitutionally vague because it is unclear whether the term "permit" requires proof of specific intent?
ANALYSIS
"This court accepts certification of questions regarding criminal statutes as important and doubtful when the challenged statute has statewide application and the question has not previously been decided." State v. Mireles, 619 N.W.2d 558, 561 (Minn.App.2000) (citing State v. Nodes, 538 N.W.2d 158, 160 (Minn.App. 1995)). The questions of whether Minn. Stat. § 340A.503, subd. 1(a)(1) (1998), requires proof of knowledge of the alleged violation by the licensee, and whether the statute is unconstitutionally vague have not previously been addressed by Minnesota appellate courts. Answers to these questions would have statewide effect. Therefore, the questions were properly certified.
The material facts are not in dispute, and resolution of these issues involves interpretation of the statute and caselaw. The standard of review is, therefore, de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996) (stating whether a statute has been properly construed is a question of law subject to de novo review); State v. Wright, 588 N.W.2d 166, 168 (Minn.App. 1998), review denied (Minn. Feb. 24, 1999) (stating constitutionality of statute presents question of law reviewed de novo).
1. Is Minn.Stat. § 340A.503, subd. 1(a)(1), a specific intent statute that requires proof that a defendant had knowledge of an alleged violation?
*295 Minn.Stat. § 340A.503, subd. 1(a)(1), provides that it is unlawful for any "[r]etail intoxicating liquor or 3.2 percent malt liquor licensee, municipal liquor store, or bottle club permit holder under section 340A.414, to permit any person under the age of 21 years to drink alcoholic beverages on the licensed premises or within the municipal liquor store[.]" Appellant argues that the term "permit," as used in the statute, must incorporate a requirement of proof of knowledge or specific intent on the part of a defendant, otherwise a licensee will be unconstitutionally held vicariously criminally liable for the acts of its employees. See State v. Guminga, 395 N.W.2d 344, 349 (Minn.1986) (holding vicarious liability imposed on employers whose employees served alcohol to minors violates substantive due process provision of Minnesota Constitution).
The current statute, Minn.Stat. § 340A.503, subd. 1(a)(1), was enacted after Guminga held unconstitutional the vicarious liability provisions of its predecessor, Minn.Stat. § 340.941 (1986). The state argues that the current statute does not impose vicarious liability and, because the legislature did not modify the term "permit" in the current statute with "intentionally," "knowingly," or "willfully," it is logical to assume that no such requirement is implied. See Minn.Stat. § 609.02, subd. 9(1) (1998) (stating that when criminal intent is element of section 609 crime, "such intent is indicated by the term `intentionally,' the phrase `with intent to,' the phrase `with intent that,' or some form of the verbs `know' or `believe'"). The state asserts that when the legislature criminalizes an act without mention of a required intent level, it creates a general-intent crime. See State v. Orsello, 554 N.W.2d 70, 73 (Minn.1996).
The state argues that the legislature intended to create a special category of crime for the licensee, which usually is not directly involved in the furnishing of alcoholic beverages, and that to read an element of intent or knowledge into the statute would render the statute absurd and of no effect. But this argument encourages a reading of the statute that eliminates any intent requirement. Such a reading would render the statute unconstitutional under Guminga. 395 N.W.2d at 349 (holding predecessor statute unconstitutional specifically because of vicarious-liability provision's elimination of intent requirement). This court will avoid, if possible, any interpretation of a statute that renders it unconstitutional. Orsello, 554 N.W.2d at 74; see also Minn.Stat. § 645.17(3) (1998).
The state relies on State v. Loge, arguing that the supreme court there held that the state is not required to prove knowledge to establish the criminal liability of a driver who keeps or allows to be kept in a motor vehicle any open bottle or receptacle containing intoxicating liquor when the vehicle is on a public highway, in violation of Minn.Stat. § 169.122, subd. 3 (1998). 608 N.W.2d 152, 158-59 (Minn.2000). But the state's assertion that the supreme court in Loge held that "allowing" an open bottle in a vehicle does not require proof of knowledge or intent is incorrect. In Loge, the supreme court specifically limited its opinion to an analysis of "to keep" based on the facts of that case, and did not analyze the alternative manner of violation not presented in that case of "allowing to be kept." Id. at 155. Noting that the legislature had used the term "knowingly keeps" in a separate subdivision imposing criminal liability for the presence of marijuana in a vehicle, the supreme court said that the distinction "indicates that the legislature does not perceive the word `keep' alone to imply or contain a knowledge element." Id. at 157. Because the court did not reach the issue of whether knowledge is required to prove a violation for "allowing" *296 an open bottle, the case is not helpful in determining whether the term "permit" used in Minn.Stat. § 340A.503, subd. 1(a)(1) incorporates a knowledge requirement.[1]
Appellant relies on a more analogous, but significantly older, supreme court decision, reversing a finding that a pharmacist was liable for penalties under an 1885 statute providing that:
Any registered pharmacist or other person who shall permit the compounding or dispensing of prescriptions or the vending of drugs, medicines or poisons in his store or place of business, except under the supervision of a registered pharmacist, or by a registered assistant... shall ... be liable to a penalty of fifty dollars.
State v. Robinson, 55 Minn. 169, 170, 56 N.W. 594, 594 (1893) (citing Gen. Laws 1885, c. 147 as amended by Gen. Laws 1891, c. 104). The illegal sales were made by an employee of a drug-store owner during the owner's absence and without the owner's knowledge or authorization. Id. at 171, 56 N.W. at 594. Addressing the claim that the store owner permitted the sales within the meaning of the section because "the owner of a drug store permits on the part of his employes (sic) what he does not prevent," the supreme court stated:
As always used, the word "permit" includes the element of assent. When used in a statute to describe an action made penal it must be held to include that element, unless there be something in the context clearly indicating the contrary.... It would be hard upon the owners of such stores to make them liable penally for the acts of [persons employed who are not registered pharmacists] done without [the owners'] knowledge, and contrary to their instructions. There is nothing in the statute showing an intent to go so far as that.
Id.
Minn.Stat. § 340A.503, subd. 1(a)(1), was enacted after the supreme court held that the predecessor statute, Minn.Stat. § 340.73 (1984), violated the substantive due process provision of the state constitution by imposing vicarious criminal liability on an employer for an employee's sale of intoxicating liquor to minors. Appellant argues that unless there is a knowledge or assent requirement for a licensee to violate § 340A.503, subd. 1(a)(1), the statute unconstitutionally imposes vicarious liability on the licensee for the acts of an employee. The state argues that since appellant is a corporation, and as such not subject to imprisonment, the reasoning in Guminga, which held that in Minnesota "no one can be convicted of a crime punishable by imprisonment for an act he did not commit, did not have knowledge of, or give expressed or implied consent to the commission thereof," is not applicable. Guminga, 395 N.W.2d at 349. But the statute is not limited in application to corporations. And there is nothing in the statute to suggest that the level of intent implied by the statute is different for individual and corporate retail liquor licensees.
*297 There is no question that corporations may be held liable for crimes. See, e.g., City of Duluth v. City Mkt. Co., 187 Minn. 149, 244 N.W. 552 (1932); State v. People's Ice Co., 124 Minn. 307, 144 N.W. 962 (1914). But criminal liability for acts of its servants, in which the corporation in no way participated, is vicarious liability. Pettit Grain & Potato Co. v. N. Pac. Ry. Co., 227 Minn. 225, 239, 35 N.W.2d 127, 135 (1948). A corporation may be guilty of a specific-intent crime if it can be shown that (a) the agent was acting within the course and scope of employment, having the authority to act for the corporation with respect to the particular corporate business that was conducted criminally; (b) the agent was acting, at least in part, in furtherance of the corporation's business interests; and (c) the criminal acts were authorized, tolerated, or ratified by the corporate management. State v. Christy Pontiac-GMC, Inc., 354 N.W.2d 17, 20 (Minn.1984). What must be shown is that from all of the facts and circumstances, those in position of managerial authority or responsibility acted or failed to act in such a manner that the criminal activity reflects corporate policy. Id. We conclude that the meaning of the word "permit" as used in Minn.Stat. § 340A.503, subd. 1(a)(1), is clear and requires an element of knowledge of the violation such that the licensee authorized, tolerated or ratified sale of intoxicating liquor to minors before the licensee may be found criminally liable under the statute. Because the statute is unambiguous, we do not address appellant's argument on the "rule of lenity," which requires that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity towards the defendant. Orsello, 554 N.W.2d at 74 (citations omitted).
2. Is Minn.Stat. § 340A.503, subd. 1(a)(1) unconstitutionally vague?
Because we have found that the word "permit" as used in the statute unambiguously requires an element of knowledge of the violation as described above, we hold that the statute is not unconstitutionally vague.
D E C I S I O N
Minn.Stat. § 340A.503, subd. 1(a)(1) (1998), requires the state to prove that a licensee had knowledge of, authorized, tolerated, or ratified, an alleged violation before the licensee may be convicted of violating the statute. Minn.Stat. § 340A.503, subd. 1(a)(1), is not unconstitutionally vague.
Affirmed; first certified question answered in the affirmative; second certified question answered in the negative.
NOTES
[1] The supreme court in Loge specifically noted that a driver has "the opportunity and [is] in the best position to find out the fact of the open bottle's presence `with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.'" 608 N.W.2d at 158 (citation omitted). There is a clear distinction between the opportunity of such a driver to discover and prevent an open bottle violation and the opportunity of liquor licensee who is not present on the premises when a minor is served to discover and prevent violation of Minn.Stat. § 340A.503, subd. 1(a)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577462/ | 670 N.W.2d 457 (2003)
266 Neb. 948
STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, Relator,
v.
Cheryl LECHNER, Respondent.
No. S-03-487.
Supreme Court of Nebraska.
October 31, 2003.
HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
PER CURIAM.
INTRODUCTION
This is an action brought by the Counsel for Discipline of the Nebraska Supreme Court, relator, seeking the imposition of discipline against respondent, Cheryl Lechner, a member of the Nebraska State Bar Association. Respondent was formally charged with violating certain disciplinary rules and her oath of office as an attorney. Respondent did not file an answer or otherwise respond to the formal charges. Relator moved for judgment on the pleadings pursuant to Neb. Ct. R. of Discipline 10(I) (rev.2001) and requested that this court enter an appropriate sanction. We determine that the requirements of rule 10(I) have been satisfied. Therefore, we grant relator's motion for judgment on the pleadings and order that respondent be disbarred.
STATEMENT OF FACTS
The substance of the allegations contained in the formal charges may be summarized as follows: Respondent was admitted *458 to the practice of law in the State of Nebraska on September 24, 1996. On May 1, 2003, formal charges were filed by relator against respondent. Count I alleges that on January 9, 2002, respondent was retained by William Kruger to initiate dissolution of marriage proceedings and that Kruger paid respondent $1083 in advance for her fees and costs. Respondent did file the dissolution action and did meet with Kruger once. Thereafter, however, despite Kruger's repeated attempts to communicate with respondent at her office, on the telephone, or by e-mail, respondent failed to contact Kruger. On May 2, Kruger hired new counsel to represent him in the dissolution proceedings. Respondent has failed to refund any of the fees or costs advanced by Kruger. The formal charges allege that respondent's actions constitute a violation of respondent's oath as an attorney, Neb.Rev.Stat. § 7-104 (Reissue 1997), and the following provisions of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1) (violate disciplinary rule); Canon 2, DR 2-110(A)(2) (withdraw from employment) and DR 2-110(A)(3) (refund fees); Canon 6, DR 6-101(A)(3) (neglect); Canon 7, DR 7-101(A)(2) (fail to carry out contract of employment); and Canon 9, DR 9-102(A) (deposit client funds in account), DR 9-102(B)(3) (maintain records of funds), and DR 9-102(B)(4) (return funds to client).
Count II alleges that on or about August 8, 2001, Terri Kurtenbach retained respondent to finalize Kurtenbach's divorce, paying her $600 in advanced fees. Thereafter, Kurtenbach did not hear from respondent for approximately 2 months. On October 3, Kurtenbach drove to respondent's office and found a note on the door indicating the respondent had moved her office to a new location. Kurtenbach drove to the new location and found the office locked. Kurtenbach slid a note under the door requesting that respondent contact her. In mid-November, respondent contacted Kurtenbach and promised to send a letter that same day to Kurtenbach's former husband. It appears, however, that respondent did not send the letter until December 6. Eventually, Kurtenbach's former husband sent respondent a check for a portion of the proceeds from the sale of the marital home. When Kurtenbach contacted respondent regarding the check, respondent indicated that she would wait 1 week and then file a motion for the balance of the proceeds. Thereafter, despite repeated telephone calls, Kurtenbach was never able to contact respondent. The formal charges allege that respondent's actions constitute a violation of respondent's oath as an attorney and the following provisions of the Code of Professional Responsibility: DR 1-102(A)(1), DR 2-110(A)(2) and (3), DR 6-101(A)(3), DR 7-101(A)(2), DR 9-102(A), and DR 9-102(B)(3) and (4).
Count III alleges that Jodei Oltman retained respondent to represent her in a child support and custody proceeding. On December 19, 2001, a trial was held at which respondent appeared, and at the conclusion of the trial, the trial judge directed respondent to prepare a judgment in accordance with the trial court's ruling pronounced in court. Respondent failed to prepare the judgment. Oltman repeatedly attempted to contact respondent but was never able to speak with her. The formal charges allege that respondent's actions constitute a violation of respondent's oath as an attorney and the following provisions of the Code of Professional Responsibility: DR 1-102(A)(1), DR 2-110(A)(2), DR 6-101(A)(3), DR 7-101(A)(2), and DR 7-106(A) (disregard court ruling).
Count IV alleges that beginning in 1999, respondent represented Merlin Kidwiler in a dissolution of marriage action, for which Kidwiler paid respondent $3000. As part of the dissolution proceedings, respondent *459 needed to prepare a qualified domestic relations order (QDRO) to effect Kidwiler's interest in his former spouse's pension plan. Kidwiler repeatedly attempted to contact respondent to have her prepare the QDRO. In April 2002, Kidwiler drove from Missouri to respondent's office to speak with respondent concerning the QDRO. After respondent finally answered Kidwiler's knocking on her office door, respondent informed him that she had been ill but would work on the QDRO. Respondent never prepared the QDRO. The formal charges allege that respondent's actions constitute a violation of respondent's oath as an attorney and the following provisions of the Code of Professional Responsibility: DR 1-102(A)(1), DR 2-110(A)(2), DR 6-101(A)(3), and DR 7-101(A)(2).
Under rule 10(H), respondent has 30 days from the date of service of the formal charges to file an answer. The court file reflects that respondent was served by publication of notice after relator, despite repeated attempts, was unable to contact or locate respondent in order to obtain personal service. The court file further reflects that respondent did not file an answer to the formal charges stated above. On September 12, 2003, relator moved for judgment on the pleadings pursuant to rule 10(I).
ANALYSIS
Rule 10(I) provides that if no answer is filed "within the time limited therefor," the matter may be disposed of by the court on its own motion or on a motion for judgment on the pleadings. We determine that the requirements of rule 10(I) have been satisfied, and therefore, we grant the relator's motion for judgment on the pleadings. The failure of a respondent to answer the formal charges subjects the respondent to a judgment on the formal charges filed. See State ex rel. NSBA v. Mahlin, 252 Neb. 985, 568 N.W.2d 214 (1997). We conclude that by virtue of respondent's conduct, respondent has violated the following provisions of the Code of Professional Responsibility: DR 1-102(A)(1), DR 2-110(A)(2) and (3), DR 6-101(A)(3), DR 7-101(A)(2), DR 7-106(A), DR 9-102(A), and DR 9-102(B)(3) and (4). We further conclude that respondent has violated the attorney's oath of office. See § 7-104.
We have stated that "`[t]he basic issues in a disciplinary proceeding against a lawyer are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances.'" State ex rel. NSBA v. Frank, 262 Neb. 299, 304, 631 N.W.2d 485, 490 (2001) (quoting State ex rel. NSBA v. Brown, 251 Neb. 815, 560 N.W.2d 123 (1997)). Neb. Ct. R. of Discipline 4 (rev.2001) provides that the following may be considered by the court as sanctions for attorney misconduct: (1) disbarment; (2) suspension for a fixed period of time; (3) probation in lieu of suspension, on such terms as the court may designate; (4) censure and reprimand; or (5) temporary suspension.
With respect to the imposition of attorney discipline in an individual case, we have stated that "`[e]ach case justifying discipline of an attorney must be evaluated individually in light of the particular facts and circumstances of that case.'" Frank, 262 Neb. at 304, 631 N.W.2d at 490 (quoting State ex rel. NSBA v. Rothery, 260 Neb. 762, 619 N.W.2d 590 (2000)). For purposes of determining the proper discipline of an attorney, this court considers the attorney's acts both underlying the events of the case and throughout the proceeding. Frank, supra; State ex rel. NSBA v. Freese, 259 Neb. 530, 611 N.W.2d 80 (2000); State ex rel. NSBA v. Denton, 258 Neb. 600, 604 N.W.2d 832 (2000).
*460 To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, this court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender's present or future fitness to continue in the practice of law. State ex rel. Counsel for Dis. v. Hart, 265 Neb. 649, 658 N.W.2d 632 (2003); State ex rel. NSBA v. Gallner, 263 Neb. 135, 638 N.W.2d 819 (2002).
We have noted that the determination of an appropriate penalty to be imposed on an attorney requires consideration of any mitigating factors. Id.
Pursuant to the formal charges, to which respondent has failed to respond, respondent has engaged in conduct that has violated several disciplinary rules and her oath of office as an attorney. There is no record in the instant case of any mitigating factors. We have previously disbarred attorneys who, similar to respondent, had violated disciplinary rules regarding trust accounts, mishandled client funds, and failed to cooperate with the Counsel for Discipline during the disciplinary proceedings. See, State ex rel. Special Counsel for Dis. v. Brinker, 264 Neb. 478, 648 N.W.2d 302 (2002); State ex rel. NSBA v. Howze, 260 Neb. 547, 618 N.W.2d 663 (2000).
We have considered the undisputed allegations of the formal charges and the applicable law. Upon due consideration, the court finds that respondent should be disbarred from the practice of law in the State of Nebraska.
CONCLUSION
The motion for the judgment on the pleadings is granted. It is the judgment of this court that respondent should be disbarred from the practice of law in the State of Nebraska, and we therefore order respondent disbarred, effective immediately. Respondent is directed to comply with Neb. Ct. R. of Discipline 16 (rev.2001), and upon failure to do so, respondent shall be subject to punishment for contempt of this court. Respondent is directed to pay costs and expenses in accordance with Neb.Rev.Stat. §§ 7-114 and 7-115 (Reissue 1997) and Neb. Ct. R. of Discipline 23(B) (rev.2001).
JUDGMENT OF DISBARMENT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577501/ | 670 N.W.2d 475 (2003)
12 Neb. App. 228
Jose R. GARCIA, Appellant,
v.
Maria G. RUBIO, Appellee.
No. A-02-1397.
Court of Appeals of Nebraska.
October 28, 2003.
*477 John D. Feller, West Point, and Sam Houston, Tekamah, of Feller & Houston, for appellant.
*478 Adam J. Sipple, Omaha, of Johnson & Mock, for appellee.
HANNON AND INBODY, Judges, and BUCKLEY, District Judge, Retired.
HANNON, Judge.
In the face of an order from a court in the State of Washington which awarded temporary custody of one of Maria G. Rubio's children to the appellant, Jose R. Garcia, the district court for Cuming County, Nebraska, determined that the Washington court no longer had exclusive jurisdiction of the custody dispute and awarded custody of the child to Rubio. Garcia appeals, alleging that the district court erred in that it assumed jurisdiction of the custody proceeding without communicating with the Washington court and did not find that the Washington court did not have jurisdiction. We conclude that under Nebraska case law, it is not error for a Nebraska judge not to communicate with a judge of a court of another state where a custody proceeding might be pending and that a person whose only claim to a child is having had possession of the child in the recent past with a parent's permission is not a person who has been acting as a parent under the Uniform Child Custody Jurisdiction Act (UCCJA). As such, Garcia's filing of a petition in a Washington state court did not entitle that court to exercise jurisdiction over a parent and child in Nebraska. Accordingly, we affirm.
BACKGROUND
Rubio gave birth to a child, Edward Rubio, on March 23, 2000, in West Point, Cuming County, Nebraska. In October 2000, Rubio allowed Garcia to pick Edward up in Nebraska and take him to Washington to live with Garcia and his family. Edward lived there with them until around September 2, 2001, when Rubio went to Washington and took Edward back to West Point. On September 25, Garcia filed a "Petition for Establishment of Parentage" in the Superior Court for Franklin County, Washington. Therein he alleged that Edward was born on March 23, 2000, that Rubio was Edward's mother, and that he was Edward's "presumed father." Garcia further alleged that he resided in the State of Washington, that Edward resided with Rubio at the time (he did not allege where Edward and Rubio were located), that Edward was entitled to financial support and health insurance coverage, and that it was in Edward's best interests to obtain a judicial determination of Edward's parentage and residential placement. The Washington court record shows that a summons was issued on September 25, 2001, and duly served on Rubio in Cuming County on November 19. Rubio filed a "Response to Petition for Establishment of Parentage" in that case on January 14, 2002, wherein she denied that Garcia was the father and alleged that the Washington court was without jurisdiction.
The record shows that on January 23, 2002, Garcia's lawyer filed a motion for default accompanied by a request for the immediate custody of Edward and gave notice in the Washington court of a February 4 hearing on the matter. The record does not show that any advance notice of that hearing was served on Rubio. The temporary order upon which Garcia rests his claim for custody was issued by the Washington court on February 4. The order awarded Garcia "immediate residential placement of his son, Edward," and orders any law enforcement officials in the State of Nebraska to assist him in obtaining custody of Edward.
On April 12, 2002, Garcia filed the proceedings from the State of Washington in the Cuming County District Court, registered the Washington court's judgment, *479 and sought to enforce that judgment by contempt proceedings in Cuming County. On July 18, Rubio filed her "Verified Petition and Application to Vacate or Modify." Therein she alleged several reasons why the State of Washington did not have jurisdiction of Edward and moved to set aside the Washington court's custody order. Both matters came on for trial together on November 1, but Garcia's counsel dismissed the contempt proceedings at the beginning of the trial.
At the trial, Rubio testified that Edward's father is a resident of Washington, that Edward's father is not Garcia, and that she had not yet met Garcia at the time Edward was conceived. Rubio testified that when she and Garcia began dating, Rubio informed Garcia that she was pregnant. Documents showed that genetic testing was conducted in July 2002 by Identity Genetics, Inc., and that the testing confirmed that Garcia was excluded as the biological father of Edward.
Rubio testified that she and Garcia moved to Nebraska in January 2000. Garcia left Nebraska shortly after Edward was born on March 23. Rubio testified that due to problems she was having in caring for her children, Garcia returned to Nebraska in October and took Edward to live with him and his parents in Washington. Rubio solved her problems and went to Washington to take Edward back in September 2001, without objection from Garcia. Rubio testified that Edward has been with her in Nebraska since "the beginning of September 2001." Rubio further testified that Edward has become close to his brothers and sisters and that she did not think it to be in Edward's best interests to be taken away from her and from his siblings. Rubio testified that Edward never asks about Garcia. She testified that she was served with the papers in which Garcia sought the Washington court's temporary order of custody, but not until after the hearing date. We have not summarized much of Rubio's testimony because we regard it as unnecessary to the resolution of this appeal. Garcia did not appear or testify at the Nebraska trial of this matter.
At the close of the direct examination of Rubio, Garcia's counsel moved to dismiss for lack of jurisdiction upon the basis of the previously filed proceedings in Washington. Rubio's counsel resisted upon the basis that the Washington state proceeding was improper. The record reflects no written or oral motion by Garcia's counsel for the judge to contact the court in Washington.
After the trial, the court entered an order in which it found that Nebraska was Edward's home state and that "even if the State of Washington properly exercised jurisdiction previously, that state no longer ha[d] exclusive jurisdiction under the provisions of the [NCCJA]." It also found that Garcia was not the natural father of Edward, that Rubio was not in default in the Washington court, and that since the beginning of September 2001, Edward had been in the custody of his natural mother, Rubio, in West Point. The court modified the Washington state order to award custody of Edward to Rubio. Garcia appeals.
ASSIGNMENTS OF ERROR
Garcia alleges, simplified, that the Cuming County District Court erred (1) in assuming jurisdiction to modify the Washington state court's custody order without communicating with that court and (2) in modifying the Washington state court's custody order without finding that that court did not have jurisdiction.
STANDARD OF REVIEW
When a jurisdictional question does not involve a factual dispute, determination of *480 the issue is a matter of law which requires an appellate court to reach a conclusion independent of that of the trial court. State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994).
ANALYSIS
Garcia's only claim to Edward was that as of approximately a month before he filed the action in the Washington court, Edward had lived with him with Rubio's permission for nearly a year, Rubio's having taken Edward back to Nebraska about a month before that action was filed. Garcia argues that under Neb.Rev.Stat. § 43-1206 (Reissue 1998), the Nebraska trial judge was required to contact a Washington judicial official because the Nebraska judge had notice that proceedings concerning Edward were pending in the Washington court. Section 43-1206(2) provides that before a Nebraska court may entertain a custody proceeding, the court must search the jurisdictional information required to be supplied by the parties under Neb.Rev.Stat. § 43-1209 (Reissue 1998). Section 43-1206(2) then goes on to provide that if the Nebraska court has reason to believe that proceedings regarding a child at issue may be pending in another state, the court shall contact the court of that other state. The words of § 43-1206 specifically provide that a Nebraska trial court "shall" contact a court in a state such as Washington under such circumstances. However, upon the basis of using a construction that would save the constitutionality of that statute, and recognizing the inherent danger of a trial judge's taking part in discovery and consultation concerning a matter to be litigated before him or her, the Nebraska Supreme Court has concluded that the instruction to contact the out-of-state court is not mandatory but merely directory. See State ex rel. Grape v. Zach, supra. We regard Zach as controlling, and we therefore conclude that the trial court did not err by not contacting the Washington court.
Garcia also argues that the trial court erred in making no finding that the Washington court did not have jurisdiction. The trial court did find that Nebraska had jurisdiction, and it found that even if the Washington court had had jurisdiction, it no longer had exclusive jurisdiction. We believe that the issues in this case must be analyzed under the UCCJA, as adopted by Nebraska in the Nebraska Child Custody Jurisdiction Act (NCCJA), Neb.Rev.Stat. §§ 43-1201 to 43-1225 (Reissue 1998), and by Washington in Wash. Rev.Code Ann. §§ 26.27.010 to 26.27.930 (West 1997 & Cum.Supp.2003), as well as under the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (1994). We have found that at least to the extent of the issues of this case, both states have adopted the same provisions of the UCCJA, and that act determines when the courts of the various states should or should not exercise jurisdiction in child custody matters. The PKPA may be summarized as providing that when a court of one state exercises jurisdiction in accordance with the UCCJA, its orders on custody are entitled to full faith and credit in other states.
During the hearing in the Nebraska court, Garcia abandoned his effort to have the Washington court's order enforced via contempt proceedings; therefore, we need not consider whether that order would be entitled to full faith and credit. However, the PKPA still has a bearing on this case. Subsection (g) of the PKPA provides:
A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State *481 where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.
Washington's § 26.27.201 and Nebraska's § 43-1203 define the situation in which the courts of Washington and Nebraska may take jurisdiction of a custody matter. Section 43-1206(1) provides that Nebraska courts shall not exercise jurisdiction under the NCCJA "if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with [the NCCJA]," unless the proceeding is stayed by the court of the other state, which it was not in this case. In short, the Nebraska trial court should not have exercised jurisdiction if the custody proceeding concerning Edward was properly pending in the Washington state court, and that depends upon whether the Washington court had jurisdiction of the proceedings filed by Garcia.
Nebraska's § 43-1203 and Washington's § 26.27.201 (as well as Washington's § 26.27.030, which was repealed in favor of § 26.27.201) state that a proper court of Nebraska or Washington state has jurisdiction to make child custody determinations if
[t]his state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to live in this state.
§ 43-1203(1)(a). Accord §§ 26.27.030(1)(a) and 26.27.201(1)(a). Those statutes also list other bases of jurisdiction, such as the child's best interests, the physical presence of the child in the state, and that it appears that no other state would have jurisdiction; but there is no basis for a claim of jurisdiction for the State of Washington under them in this case, and we will therefore limit our inquiry to the subsection quoted above.
"Home state" is defined in §§ 43-1202 and 26.27.021 (as well as § 26.27.020, repealed in favor of § 26.27.021) as
the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons shall be counted as part of the six-month or other period.
§ 43-1202(5). Accord §§ 26.27.020(5) and 26.27.021(7).
Under these rules, Nebraska would clearly have been Edward's home state when Rubio filed her petition in the Cuming County District Court. However, the controlling question is whether the above provision was a basis for the jurisdiction of the Washington court when the proceeding was filed there on September 25, 2001.
Under the above provision, Washington was clearly not the state where Edward lived when Garcia filed the petition on September 25, 2001. However, it could still be considered the home state under subsection (ii) of § 43-1203(1)(a) if Washington was Edward's home state within 6 months before September 25, if Edward's absence was due to removal or retention by a person claiming his or her right to custody or for other reasons, and if a parent or person acting as parent continued to live in Washington. The question *482 then becomes whether Garcia is deemed to have been "a person acting as parent." Id.
Nebraska's § 43-1202(9) and Washington's § 26.27.020(9) (the latter not repealed in favor of § 26.27.021(13)) both define "Person acting as parent" as "a person, other than a parent, who has physical custody of a child and who [either has] been awarded custody by a court or claims a right to custody." Accord § 26.27.021(13). Since while Edward was in Washington state, no court had awarded his custody to Garcia, the answer to the above question depends on whether Garcia claimed the right to custody.
Garcia did not allege that he had been awarded custody by any court in the documents he filed. He did not allege that Rubio was unfit. He did not directly allege that it was in Edward's best interests that he be awarded custody, but his claims and requests at best might be interpreted as a claim to that effect. His allegations of interest, such as having had intercourse with Rubio, his claim as a "presumed father," et cetera, are simply not recognized as bases for claiming the custody of a child, particularly against the admitted fact the person in possession of the child is the parent. We find no Nebraska cases on the question of the jurisdiction of a court over custody proceedings against a nonresident parent and child upon the petition of a resident whose only interest is having had possession of the child with permission of the parent; but other courts have considered cases where the jurisdiction of a court was dependent upon the fact that a person had custody but held no claim of a legal right to that custody.
In Rogers v. Platt, 199 Cal.App.3d 1204, 245 Cal.Rptr. 532 (1988), a mother living in California gave birth in that state to the child in question in June 1985, and the day after the child's birth, she signed a release allowing the hospital to give temporary custody of the child to the defendants, who lived in Washington, D.C. The next day, the defendants returned to Washington, D.C., with the child. The mother did not execute a relinquishment or a consent to adopt. Within a few days, the mother changed her mind and called the defendants, asking for the return of the child. They refused to return the child, and on November 21, the mother had a California court issue a writ of habeas corpus, but no service was obtained. The defendants instituted an action in the Superior Court of the District of Columbia. Both courts asserted jurisdiction. Litigation in the federal courts in Washington, D.C., resulted in a determination that the jurisdictional issue was not a federal question. See, Rogers v. Platt, 814 F.2d 683 (D.C.Cir.1987); Rogers v. Platt, 641 F.Supp. 381 (D.D.C.1986). The litigation then continued in the California court, and the jurisdictional and custody issues under the UCCJA and PKPA were directly considered and decided by the California court.
The defendants rested their position on the notion that they were "`a person acting as a parent.'" Rogers v. Platt, 199 Cal.App.3d at 1211-12, 245 Cal.Rptr. at 537. The mother argued that they were not, alleging that they sought custody on a bald claim without any legal basis. The California court concluded that the defendants did not qualify as persons "`acting as parents'" because prior to the commencement of the action, they did not even have a colorable claim, which that court defined as "a claim that is advanced in good faith on some plausible legal theory." Id. at 1212, 245 Cal.Rptr. at 537. That court stated:
In order to remain consistent with its underlying purposes, the PKPA must be construed to require that a person have some legally recognized basis for claiming custody in order to qualify as a *483 person acting as a parent because otherwise one of the primary purposes of the Act would be thwarted.
Id.
In Mazur v. Mazur, 207 A.D.2d 61, 621 N.Y.S.2d 817 (1994), the mother had given custody of her child to a cousin from California shortly after birth without the father's knowledge. The cousin took the child to California. The father started litigation in a New York court to obtain custody of the child, and in that action, the cousin maintained that under the UCCJA and PKPA, the California courts had jurisdiction because California was the child's home state. The basis of that claim was that the child had lived in California for more than 6 months with the cousin. To support that claim, the cousin maintained that she was a person acting as a parent under the UCCJA and PKPA. In refusing to adopt the cousin's claim, the Mazur court stated: "The fact that a parent confers temporary custody of the child upon a nonparent does not give rise to a colorable claim of right [of the nonparent] to custody." 207 A.D.2d at 65, 621 N.Y.S.2d at 820. The court concluded that as soon as the father demanded custody, the cousin did not have a colorable right to custody. It also stated:
In our view, neither the PKPA nor the UCCJA contemplates that the natural parents of a child should be obligated to travel to a distant state and to incur great expense and inconvenience in order to litigate their superior right to custody against a nonparent who refuses to return the child to either of the natural parents.
207 A.D.2d at 66, 621 N.Y.S.2d at 820. We do not think that the PKPA or the UCCJA intended a natural parent with possession of a child in one state to be required to go to a distant state to litigate over the custody of the child with someone whose only claim to the child is having had temporary possession of the child before the child was returned to the natural parent.
Under Nebraska law, a nonparent acquires no custodial right to a child as against a parent simply because the parent gave the nonparent temporary custody. See Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992). The rule is as follows:
[A] court may not, in derogation of the superior right of a biological or adoptive parent, grant child custody to one who is not a biological or adoptive parent unless the biological or adoptive parent is unfit to have child custody or has legally lost the parental superior right in a child.
Stuhr v. Stuhr, 240 Neb. 239, 246, 481 N.W.2d 212, 217 (1992).
Garcia made no claim that Rubio was unfit. The Uhing court stated by way of a quote:
As the U.S. Supreme Court stated in Quilloin [v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)]: "We have little doubt that the Due Process Clause would be offended `[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.' Smith v. Organization of Foster Families, 431 U.S. 816, 862-863 [97 S.Ct. 2094, 53 L.Ed.2d 14] (1977) (Stewart, J., concurring in judgment)."
241 Neb. at 373, 488 N.W.2d at 370-71.
It may be argued that the law of Washington and not that of Nebraska should be used to determine Garcia's right to institute custody proceedings. We find the law of that state to be similar to that of Nebraska on that point. It recognizes a natural parent's superior right to custody. In Custody of Nunn, 103 Wash.App. 871, 14 *484 P.3d 175 (2000), the court held that a nonparent has standing to commence a child custody action only if the child is not in the physical custody of one of its parents or if the party filing the action alleges that neither parent is a suitable custodian, and it concluded that a nonparent does not have standing to seek custody of a child against a fit parent that has physical custody of the child. See, also, Custody of Anderson, 77 Wash.App. 261, 890 P.2d 525 (1995).
At best, Garcia made a claim that he was seeking custody which would be in Edward's best interests, but Garcia made no claim that Rubio was unfit. From the above cases, we conclude that a person whose only claim to the custody of a child is that he or she has had possession of the child for a few months in the recent past does not have a colorable right to the custody of the child and is not thereby a person acting as a parent. We also conclude that a petition by a person without a colorable right to custody of a child cannot confer the jurisdiction of a court on the child and its parent when they are living in another state. Garcia did not have or make a colorable claim, and hence, his petition could not give jurisdiction to the court of the state where he lived.
CONCLUSION
We therefore conclude that under the UCCJA, NCCJA, and PKPA, the Washington court did not have jurisdiction of any custody proceeding for Edward. Edward was in Nebraska with Rubio for more than 6 months before she filed her action in the Cuming County District Court, and therefore, that court had jurisdiction and its order should be affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577139/ | 118 Mich. App. 831 (1982)
325 N.W.2d 600
DORLIN
v.
PROVIDENCE HOSPITAL
Docket No. 59161.
Michigan Court of Appeals.
Decided August 25, 1982.
Charfoos, Christensen, Gilbert & Archer, P.C. (by Adrienne G. Southgate and Gary D. Siegel), for plaintiff.
Martin, Bacon & Martin, P.C., for defendant.
*833 Before: V.J. BRENNAN, P.J., and D.C. RILEY and V.R. PAYANT,[*] JJ.
D.C. RILEY, J.
Renee Dorlin had a blood test performed in 1967 at Providence Hospital in order to determine whether or not she was a sickle cell anemia carrier. The results indicated that she was a carrier and she was informed of that fact. Ms. Dorlin allegedly was not informed about the consequences of being a sickle cell anemia carrier. In 1970, Ms. Dorlin married and, shortly thereafter, became pregnant. On March 18, 1971, Ms. Dorlin gave birth to Desiree Dorlin. Later that year, in November, Desiree was diagnosed as suffering from sickle cell anemia.
Renee Dorlin, individually and as next friend of Desiree Dorlin, brought suit in Oakland County Circuit Court on March 1, 1979. The court granted defendant's motion for summary judgment as to the "wrongful life" claim of Desiree and its motion for accelerated judgment as to Renee Dorlin, based on the statute of limitations. We first consider whether the summary judgment as to Desiree was proper.
The standard governing this Court's review of an order of summary judgment, pursuant to GCR 1963, 117.2(1), is well settled. Motions pursuant to this subrule are to be tested solely on the pleadings. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). GCR 1963, 117.2(1) tests the legal basis of the complaint, not whether it can be factually supported. Borman's, Inc v Lake State Development Co, 60 Mich App 175; 130 NW2d 363 (1975). Further, all well pleaded material allegations must be treated as true. Sullivan v Thomas Organization, PC, 88 Mich App 77; 276 NW2d 522 *834 (1979). In addition, unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).
The tort alleged by Desiree is a rather recently developed cause of action for "wrongful life". Desiree alleges that defendant had a duty to inform her mother of the complications associated with being a sickle cell anemia carrier and, if that duty had not been breached, Ms. Dorlin could have taken steps to avoid the creation of Desiree's wrongful life, a life of disease, sickness, and suffering. This tort has been recognized by a few nonauthoritative courts and commentators.[1]
In Eisbrenner v Stanley, 106 Mich App 357; 308 NW2d 209 (1981), a panel of this Court ruled that an order of summary judgment in favor of the defendant doctor on baby Eisbrenner's claim of wrongful life was proper because the assessment of damages would be too speculative and impossible to make.[2] In that case, the defendant doctor failed *835 to warn the parents of the risks involved in continuing a pregnancy since the mother had contacted rubella (German measles) during her confinement. The Eisbrenner Court did find that the parents had a cause of action and they could seek damages for both medical expenses and mental distress.
Plaintiffs argue Eisbrenner is misguided in finding that difficulty of damages precludes recovery. On appeal, plaintiffs put forth a possible method of determining damages. See A Cause of Action For "Wrongful Life": [A Suggested Analysis], 55 Minn L Rev 58 (1970).
We have reviewed the case law and recognize the competing public policy concerns involved in this issue. We conclude that Eisbrenner properly articulates the law of this state. Therefore, since no legal cause of action on the part of the child exists for wrongful life, the court's summary judgment order was proper.[3]
Renee Dorlin appeals the court's accelerated judgment order dismissing her cause of action. The validity of her cause of action is not being contested *836 but only whether it is barred by the statute of limitations. Ms. Dorlin contends that wrongful life (on behalf of a defectively born child) and wrongful birth (on behalf of the parents of such a child) causes of action are new creatures in American jurisprudence and that the Legislature has not yet created a limitation period for either. The above is an overcomplication, if not a misstatement, of Renee Dorlin's claim. The claim sounds in professional negligence and is governed by the medical malpractice statute, MCL 600.5805(4); MSA 27A.5805(4). A malpractice cause of action accrues in accordance with the provisions of MCL 600.5838; MSA 27A.5838, which provides that the two-year limitation period runs from the date of last treatment for a matter out of which the claim arose or six months from the date when the malpractice was or should have been discovered, whichever is later. Defendant asserts that the last day of treatment of Renee Dorlin relative to determining whether she was a carrier of sickle cell anemia was 1967 and that she discovered or should have discovered the alleged malpractice in 1971 when Desiree was diagnosed as suffering from the disease. Therefore, the hospital argues that both the two-year period after last treatment and the six-month period after discovery had run long before the action was brought. We must agree, as did the trial court.
Because of the genetic principles associated with sickle cell anemia, it is more difficult in this case to determine when Ms. Dorlin should have known of the malpractice than in a case where the alleged negligence is a failure to operate or treat properly which results in bodily harm. The complexity and obtuseness of genetic malpractice affects when the claimant should have known of his *837 or her cause of action. However, since she had two pieces of the puzzle before her, Desiree's affliction and knowledge of her own status as a sickle cell carrier, Ms. Dorlin should have discovered the alleged malpractice in or about 1971.
The trial court properly dismissed the Renee Dorlin action on the basis of the statute of limitations.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Curlender v Bio-Science Labs, 106 Cal App 3d 811; 165 Cal Rptr 477 (1980). Compare, Turpin v Sortini, 119 Cal App 3d 690; 174 Cal Rptr 128 (1981). Peters & Peters, Wrongful Life: Recognizing the Defective Child's Right to a Cause of Action, 18 Duq L Rev 857 (1980).
[2] The Court stated:
"[T]he only alternative for the child was nonexistence due to abortion. When only two states are possible, measurement of damages allegedly resulting because one state occurred of necessity requires comparison with the only other alternative in determining whether there was a legal detriment. In the instant case, the child's claim for damages assumes she suffered a detriment by being born defective instead of being aborted. We believe the comparison between nonexistence and deformed life is necessary but impossible to make and juries should not be allowed to speculate on the child's damages. Recognition of the child's cause of action would turn the courts into forums for pure gambling events, since damage awards could range from zero to millions of dollars based on essentially the same evidence. It would make as much sense to award damages based on a throw of the dice. We follow the reasoning in Becker v Schwartz, supra [46 NY2d 401; 413 NYS2d 895; 386 NE2d 807 (1978)] and affirm the trial court's decision not to allow the child's action." Eisbrenner v Stanley, 106 Mich App 357, 366; 308 NW2d 209 (1981).
[3] At oral arguments on appeal, Desiree's counsel argued that, when the parents fail to bring their claim for medical expenses and mental distress, the child should be allowed a "special cause of action" for the medical expenses. It was argued that this cause of action could be created without disturbing or conflicting with Eisbrenner v Stanley, 106 Mich App 357; 308 NW2d 209 (1981). This theory was not advanced in the briefs and no citation to authority was given. Therefore, this argument has not been considered by this Court. Royal Indemnity Co v H S Watson Co, 93 Mich App 491, 494; 287 NW2d 278 (1979).
While noting that this new cause of action has not been recognized in Michigan, this Court acknowledges that it has recently been approved in California. Turpin v Sortini, 31 Cal 3d 220, 238-239; 643 P2d 954; 182 Cal Rptr 337 (1982). Nevertheless, it would be inappropriate for this intermediate appellate court to create a special damage cause of action with such far-reaching implications. Appropriately, this is a task for our Supreme Court or our Legislature. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577153/ | 325 N.W.2d 271 (1982)
SKJONSBY TRUCK LINE, INC., Fargo, North Dakota, Plaintiff and Appellant,
v.
Richard ELKIN, Bruce Hagen, and Leo Reinbold, as members of the North Dakota Public Service Commission; Matador Service, Inc., Jim's Hotshop Service, Dan Dugan Transport Company, K & K Trucking, Inc., Hi-Line Trucking, Inc., Getter Trucking, Inc., Suhr Transport, Lawrence Transportation, M & O Construction and Black Hills Trucking, Inc., Respondents and Appellees.
Civ. No. 10224.
Supreme Court of North Dakota.
October 22, 1982.
*272 Van Osdel, Foss & Miller, Fargo, for plaintiff and appellant; argued by Todd Foss, Fargo.
Daniel Kuntz, Asst. Atty. Gen., Public Service Com'n, Bismarck, for respondent and appellee Public Service Com'n; argued by Daniel Kuntz, Asst. Atty. Gen., Bismarck.
Hovland & Gambucci, Minneapolis, Minn., for respondent and appellee Hi-Line Trucking; argued by Frederick E. Whisenand, Jr., Williston.
McIntee & Whisenand, Williston, for respondents and appellees Getter Trucking, Inc., Suhr Transport, Lawrence Transp., M & O Const.; argued by Frederick E. Whisenand, Jr., Williston.
Fleck, Mather, Strutz & Mayer, Bismarck, for Kjelbertson Const. Co.; no appearance.
ERICKSTAD, Chief Justice.
This is an appeal by Skjonsby Truck Line, Incorporated (Skjonsby) from a judgment of the District Court of Burleigh County, dated April 2, 1982, affirming an order of the Public Service Commission (PSC), dated October 19, 1981. We reverse.
Skjonsby possesses Special Certificate of Public Convenience and Necessity Number 641 which, in relevant part, authorizes Skjonsby to transport "heavy construction equipment and other bulky objects ..." and "contractors equipment ... and related contractors materials and supplies ...." The certificate was originally issued in 1948 to E. Verl Maxwell and Gordon Gifford d/b/a G & M Transfer of Fargo. Skjonsby purchased the certificate in 1964; and in 1965 the PSC amended the certificate to include the provision authorizing transport of "contractors equipment ... and related contractors materials and supplies ...."
On June 2, 1981, Skjonsby filed a tariff with the PSC wherein Item 30 provided rates for the transportation of commodities "directly related to the development, exploration and production of oil and gas wells." On June 15, 1981, the PSC issued an Order of Suspension and Investigation and Notice of Hearing to determine whether or not Skjonsby's certificate authorized Skjonsby to transport those commodities referred to under Item 30 of its tariff. Subsequent to the hearing the PSC issued, on October 19, 1981, Findings of Fact, Conclusions of Law and Order, whereby it reissued Skjonsby's certificate to include express language prohibiting Skjonsby from transporting "oil field drilling rigs." Skjonsby appealed that aspect of the PSC's order to the district court, which subsequently affirmed the order.
On appeal to this Court from the district court's judgment Skjonsby has raised, among others, the following issue, our conclusion to which is dispositive of this appeal:
Whether or not the PSC, after stipulating that the proceedings would not include the issue of public necessity and convenience, based its determination on that issue and thereby violated Skjonsby's right to adequate notice and a fair hearing.
In its notice of hearing the PSC stated that the following three issues would be considered:
"1. Should the transportation of `bulky objects' as set forth in Special Certificate No. 641 include the authority to transport commodities directly related to the development, exploration and production of oil and gas wells?
"2. Should the transportation of contractors equipment, related contractors materials and supplies as used in Special Certificate No. 641 include the authority to transport commodities directly related to the development, exploration and production of oil and gas wells?
*273 "3. Does Public Convenience and Necessity require the transportation of oil field commodities, including commodities directly related to the development, exploration and production of oil and gas wells, by Skjonsby Truck Line, Inc. pursuant to Special Certificate No. 641."
It is undisputed that on June 26, 1981, Skjonsby and the PSC agreed that issue three would be withdrawn from consideration in the proceedings initiated by the PSC. At the hearing on July 7, 1981, Mr. Robert W. Senger, the hearing examiner and director of the Motor Carrier Division of the PSC, stated:
"On the 2nd day of July, 1981, the Commission received a motion to strike Issue No. 3 of the Order of Suspension and Investigation and Notice of Hearing from John R. Davidson, counsel for Getter Trucking, Inc. since the Commission has already agreed not to address Issue No. 3, the Commission will not issue an Order striking Issue No. 3 from its Order, and I'll now state that the Commission will not address Issue No. 3."
Subsequent to that statement Skjonsby's counsel, Mr. Richard P. Anderson, requested a clarification by the examiner:
"MR. ANDERSON: Now then, it's also my understanding that we are here just to address the definitional points set forth in Issues 1 and 2. Is that correct?
"THE EXAMINER: Yes."
Subsequent to the hearing the PSC entered the following pertinent findings of fact upon which it based its determination that Skjonsby's certificate did not authorize it to transport oil drilling rigs:
"The transportation of oil field drilling rigs requires the use of large amounts of expensive specialized equipment.... Thus the transportation of drilling rigs in North Dakota is a very unique and specialized service requiring both necessary equipment and experience unlike that generally used in transporting other heavy equipment or machinery.
"Skjonsby operates approximately 7 trucks and 26 trailers, the majority of which are located in Fargo. Although some of this equipment could be used in transporting certain parts of an oil field drilling rig, Skjonsby does not have the necessary specialized equipment to transport an entire oil field drilling rig or to set-up or dismantle such a rig. Furthermore, Skjonsby does not have enough equipment to both actively participate in the transportation of oil field drilling rigs and also meet its statewide common carrier responsibility.
"Skjonsby also does not have the necessary experience to transport oil field drilling rigs. Although Skjonsby has transported drilling rigs in the past, those rigs were more in the nature of water drilling rigs rather than the much larger and heavier oil field drilling rigs.
"We take official notice of the fact that in recent years this Commission issued a number of certificates to qualified Applicants to transport oil field drilling rigs. Each of those Applicants were supported by testimony from shippers that a need existed for additional carriers of oil field drilling rigs. During that time Skjonsby did not transport nor solicit the transportation of oil field drilling rigs pursuant to Certificate No. 641. It would be highly prejudicial to existing common motor carriers engaged in the transportation of oil field drilling rigs who have made substantial investments to enable themselves to provide that service to the public, if we were now to interpret Certificate No. 641 to authorize the transportation of oil field drilling rigs.
"For the above-mentioned reasons we find Certificate No. 641 does not authorize the transportation of oil field drilling rigs.
* * * * * *
"Although Skjonsby has not solicited the transportation of oil field equipment and supplies, it has transported, to a very limited degree, such materials and supplies. Skjonsby also has the equipment and skill to transport most oil field commodities, excluding drilling rigs. While we might, in some instances, be inclined *274 to amend a certificate of public convenience and necessity which has not been vigorously exercised to the full extent of its authority, we do not find it is in the public interest that Certificate No. 641 be amended at this time to exclude oil field equipment and supplies other than to prohibit the transportation of oil field drilling rigs. Skjonsby provides a publicly needed statewide service. In recent years, Skjonsby has experienced some financial difficulty in providing this service. Limiting its future operations to exclude oil field transportation may have a financial impact on the carrier such that it is no longer able to provide transportation for other commodities."
The foregoing findings of the PSC demonstrate that it based its determination upon such factors as the present ability of Skjonsby to provide the service of hauling oil drilling rigs, the present need for the service of transporting oil drilling rigs, and the effect on other carriers if Skjonsby received authorization to transport oil drilling rigs. Those factors are expressly enumerated by Section 49-18-14, N.D.C.C., as matters properly to be considered by the commission in determining whether the public convenience and necessity warrants the issuing of a certificate:
"49-18-14. Factors to be considered by commission in granting certificate. Before granting a certificate to a common motor carrier, the commission shall take into consideration:
1. The need for service proposed by the applicant;
2. The increased cost of maintaining the highway concerned;
3. The effect on other existing transportation facilities;
4. The fitness and ability of applicant to provide service;
5. Adequacy of proposed service; and
6. Such other information as the commission may deem appropriate.
If the commission finds that the transportation to be authorized by the certificate is not consistent with the public convenience and necessity the commission shall not grant such certificate."
The PSC expressly agreed that it would not consider such factors when it stipulated that issue three regarding public convenience and necessity would be withdrawn and not considered. Because the PSC stipulated the withdrawal of the public necessity and convenience issue but based its determination almost exclusively upon factors relating to that issue, we agree with Skjonsby that it failed to receive adequate notice affording it a fair hearing.
Notice of an administrative proceeding is adequate if it apprises the party of the nature of the proceedings so that there is no unfair surprise. Hentz Truck Line, Inc., Etc. v. Elkin, 294 N.W.2d 774 (N.D.1980). If Skjonsby had not been led to believe, by the stipulation, that the issue of public convenience and necessity was withdrawn, it would have been adequately forewarned of the need to present evidence regarding such factors as its ability to transport oil drilling rigs, the need for such service in this state, and the effect its transport of oil drilling rigs would have on existing carriers. Although those were the factors upon which the PSC based its determination, the stipulation misled Skjonsby to believe that those factors would not be considered.
An agency's interpretation of a certificate of authority issued by it is generally treated with deference by the courts and is not set aside unless it is unreasonable, arbitrary or capricious. Dart Transit Company v. United States, 567 F.2d 818 (8th Cir. 1977); Besl Corporation v. Public Utilities Commission, 45 Ohio St.2d 146, 341 N.E.2d 835 (1976); Link Trucking, Incorporated v. Public Service Commission of Utah, 526 P.2d 1184 (Utah 1974); Stony's Trucking Company v. Public Utilities Commission, 32 Ohio St.2d 139, 290 N.E.2d 565 (1972); Springer Corporation v. State Corporation Commission, 81 N.M. 133, 464 P.2d 552 (1969); Reaveley v. Public Service Commission, 20 Utah 2d 237, 436 P.2d 797 (1968). However, in this proceeding the PSC went beyond interpretation of the certificate and instead made a determination of whether or *275 not public convenience and necessity would justify an authorization for Skjonsby to transport oil drilling rigs. Because the PSC withdrew that issue, but based its decision on it, Skjonsby was not afforded a fair hearing.
In civil actions the pleadings may be amended to include issues which, although not raised by the pleadings, were tried by express or implied consent of the parties. Rule 15, N.D.R.Civ.P. Although the North Dakota Rules of Civil Procedure generally are not applicable to administrative proceedings, Rule 1, N.D.R.Civ.P., see, also, Colgate-Palmolive Company v. Dorgan, 225 N.W.2d 278 (N.D.1974), the general rule that only issues which are raised and preserved in the lower court can be considered on appeal also applies to consideration of issues on appeal from administrative agency proceedings. See, Petition of Village Board of Wheatland, 77 N.D. 194, 42 N.W.2d 321 (1950). Unlike an issue in a civil action which simply has been omitted from the pleadings but tried by consent, the public convenience and necessity issue was expressly withdrawn from consideration in this case by stipulation of the parties; and Skjonsby objected during the hearing to the introduction of evidence relative to that issue.[1] Under the circumstances of this case we conclude that the public convenience and necessity issue was not tried with Skjonsby's express or limited consent, and we further conclude that Skjonsby preserved the question of inadequate notice on that issue for appeal purposes.
In its written conclusions of law the PSC stated, in relevant part:
"The Public Service Commission has the power to interpret, and for good cause and after hearing, amend or revoke a motor carriers certificate of public convenience and necessity."
The PSC is correct that it has authority to revoke or amend any certificate for good cause. However, pursuant to Section 49-18-16, N.D.C.C., the certificate holder must be given notice and opportunity to be heard before the commission can amend or revoke the certificate. Initially, Skjonsby may have been apprised of the public convenience and necessity issue by the PSC's notice, but when the PSC withdrew that issue it was improper for the commission to thereafter base its decision on it.
Our standard of review on appeal from a district court decision involving an appeal from an administrative agency is prescribed by Section 28-32-19, N.D.C.C., of the Administrative Agencies Practice Act, which provides in relevant part:
"... [T]he court shall affirm the decision of the agency unless it shall find that any of the following are present:
* * * * * *
4. The rules or procedure of the agency have not afforded the appellant a fair hearing."
For the reasons previously stated in this opinion we conclude that Skjonsby was not afforded a fair hearing. Consequently, we must reverse the judgment of the district court which affirmed the PSC's order. Nothing in this opinion is intended to preclude the PSC from considering the issue of public convenience and necessity as it relates *276 to Skjonsby's authority to transport items under its certificate, provided that Skjonsby receives adequate notice of the contemplated proceedings and that the PSC otherwise complies with the requirements of the law regarding its regulation of motor carriers.
In accordance with this opinion the judgment of the district court affirming the order of the PSC is hereby reversed.
SAND, PAULSON, PEDERSON and EVERETT N. OLSON, District Judge, concur.
OLSON, District Judge, sitting in place of VANDE WALLE, J., disqualified.
PEDERSON, Justice, concurring specially.
I agree with the opinion authored by the Chief Justice but think that a minor clarification would be helpful. Even though the North Dakota Rules of Civil Procedure generally are not applicable to the proceedings before the administrators, we have said that those rules are applicable on appeals from decisions of administrators. See Schroeder v. Burleigh Cty. Bd. of Com'rs, 252 N.W.2d 893, 895 (N.D.1977).
NOTES
[1] Skjonsby's counsel objected as follows:
"MR. ANDERSON: Mr. Examiner, before Mr. Clark testifies, I was asked what Mr. Jacobs had to testify to. I would like to know what Mr. Clark has to testify to. The issues presented and the record of hearing are quite clear. It's an interpretive matter as to whether or not Skjonsby can haul oilfield commodities under his bulky articles or his contractors' authority. If Mr. Clark proposes to testify as to those two limited items only, I have no objection to his testimony.
"MR. WHISENAND: We would offer to move that Mr. Clark of Getter Trucking, as a certified carrier operating in western North Dakota and throughout the State, does not view nor has ever recognized Skjonsby Truck Line, Inc., under its existing certificate as a competitive force or a viable competitor.
"MR. ANDERSON: And I suggest that that's irrelevant to the two issues that are set forth in the Notice of Hearing for our consideration in this proceeding. This is a legal issue, and the questions are: Can he haul oilfield commodities under these two pieces of authority. Unless Mr. Clark proposes to present some expert testimony as to why Skjonsby can or cannot, I suggest his testimony is not relevant to these two issues." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577156/ | 151 S.W.3d 8 (2004)
85 Ark. App. 297
Gloria Surae KINCANNON
v.
STATE of Arkansas.
No. CA CR 03-237.
Court of Appeals of Arkansas, Division IV.
March 3, 2004.
*10 J. Sky Tapp, Hot Springs, for appellant.
Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.
WENDELL L. GRIFFEN, Judge.
Gloria Kincannon appeals from her conviction for delivery of a controlled substance, methamphetamine. She asserts that the trial court erred in admitting the testimony of a confidential informant as a rebuttal witness and that the trial court erred in admitting into evidence a bag of methamphetamine because the State failed to establish the chain of custody of the evidence. We agree that the trial court erred in admitting the testimony of the confidential informant; therefore, we reverse and remand.
Appellant's trial was conducted on October 7, 2002. The charges were the result of an undercover drug operation conducted on April 5, 2001, involving Officer Scott Bradshaw of the Arkansas State Police, and Billy Jack Wallace, a confidential informant. The operation was an ongoing investigation of Charlotte Nutt, a suspected drug manufacturer and supplier, who is not a party to this appeal. In the instant case, appellant was charged as an accomplice to Nutt.
Bradshaw and Wallace had made arrangements with Nutt to exchange red phosphorus for methamphetamine.[1] In the early morning hours of April 5, 2001, appellant accompanied Nutt to the Cornerstone Family Worship Center near Amity, Arkansas.[2] They arrived at the worship center shortly before 2:00 a.m. When Bradshaw and Wallace walked over to Nutt's vehicle and Bradshaw asked Nutt if she had "it," referring to the methamphetamine, she replied that she had "both," indicating that she would buy the red phosphorus or would trade methamphetamine for the phosphorus. Wallace got into the backseat on the driver's side and Bradshaw got into the backseat on the passenger side. After a discussion, Bradshaw left Nutt's vehicle to retrieve the phosphorus, which was in his vehicle, while Wallace remained in Nutt's vehicle.
During Bradshaw's absence, appellant asked Nutt if she had checked Wallace for a wire. Wallace testified that appellant began checking him for a wire, but stopped when Nutt began doing the same thing. Bradshaw then returned and traded Nutt the red phosphorus in exchange for the methamphetamine. He stated that "they" told him it was 2.7 grams of methamphetamine and offered him a scale to weigh it, but he did not use the scale because it was dark and he could not see.
After the trade occurred, appellant asked for a pocketknife because the phosphorus did not smell strong enough. Wallace gave appellant a pocketknife and she dipped it in the red phosphorus. Appellant then told Bradshaw to light the phosphorus (to test its strength) and he did so. When Bradshaw was asked on direct examination, as part of the State's case-in-chief, whether he was present when appellant asked whether Wallace was wearing a wire, he stated that he was not present at that time and that he was informed about appellant's question later (by Wallace).
Bradshaw also testified concerning the chain-of-custody of the drugs seized in this *11 case. Except for removing the drugs to process the paperwork, Bradshaw kept the drugs in his trunk until May 3, 2001, when he turned them over to Joseph Beavers, of the Narcotics Section of the CID. Beavers transported the drugs to the Arkansas State Crime Laboratory for analysis on the same day.
At trial, the State sought to admit State's Exhibit 1 as the methamphetamine that Bradshaw received in the April 5, 2001 transaction. However, the date marked on the evidence admission form submitted to the crime lab was March 22, 2001, not April 5, 2001. Bradshaw explained that the mistake was a typographical error and that he "just tabbed past the date instead of punching in the correct date." He indicated that March 22, 2001, was the date of another drug buy. However, he stated that he was sure that Exhibit 1 contained the drugs that he received on April 5, 2001, because that was the only buy he made from Nutt in Pike County. He also stated that the April 5 transaction was the only transaction in which he was involved in which appellant was also involved.
Appellant objected to the admission of State's Exhibit 1 based on the discrepancy in the dates. The trial court found that the typographical error went to the credibility of the evidence, not its admissibility. The court then admitted State's Exhibit 2, the crime-lab report, over appellant's objection. This report indicated "amphetamine, methamphetamine, pseudoephedrine (2.477 Gram(s))."
Before the State rested, it attempted to call Wallace as a witness as part if its case-in-chief. Appellant objected on the ground that the State never provided her with Wallace's name. The trial court allowed appellant to interview Wallace, but ultimately sustained appellant's objection. Wallace did not testify as part of the State's case-in-chief.
In appellant's defense, she testified that Nutt asked appellant to accompany Nutt to meet with Wallace to purchase a satellite receiver for Nutt's daughter. In response to the State's cross-examination, appellant denied that she participated in the drug transaction and that she said anything about the red phosphorus or asked anyone for a knife to light the phosphorus. She testified that when she realized that a drug transaction was taking place, she told Nutt that was "too much information" for her and that she "didn't want to be in this." However, she admitted that she asked Nutt, "[H]ave you even checked him [Wallace] for a wire?"
After appellant testified, the State called Wallace as a rebuttal witness. Appellant again objected on the ground that she had not been notified that Wallace would be a witness. The State countered that it was not required to turn over the names of its rebuttal witnesses. The trial overruled appellant's objection.
Wallace testified that both Nutt and appellant asked whether he was wearing a wire and that appellant began to pat him down before Nutt took over and patted him down. He also corroborated Bradshaw's testimony that appellant asked for a knife to test the phosphorus, and asked Bradshaw to light it.
After Wallace testified, appellant renewed her motions, which the trial court denied. Appellant was found guilty and was sentenced to serve twenty-four months in the Arkansas Department of Correction. This appeal followed.
I. Rebuttal Testimony
Appellant first argues that the trial court erred in allowing Wallace to testify as a rebuttal witness because the *12 State never disclosed his identity to her before trial and because Wallace's testimony was not true rebuttal testimony. The State is not required to disclose rebuttal witnesses during discovery. Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). The rationale is that, until the defense's case has been presented, the State cannot know of any witnesses needed for rebuttal. Id. It is within the trial court's discretion whether to admit rebuttal testimony, and the appellate court will not reverse this determination absent an abuse of that discretion. Id. Rebuttal evidence is evidence that is offered in reply to new matters, even if it overlaps with the evidence presented in the State's case-in-chief, as long as the testimony is responsive to evidence presented by the defense. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). The scope of a rebuttal witness's testimony is accorded wide latitude and will not be restricted merely because it could have been presented on direct examination. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). However, the State is not allowed to elicit evidence from a defendant for the purpose of presenting a rebuttal witness. Birchett, supra.
We hold that the trial court erred in admitting Wallace's testimony because the State, not appellant, elicited the testimony that the State sought to rebut and because Wallace's testimony was not in response to any new matters presented by appellant. While Wallace did contradict appellant's testimony that she did not check him for a wire and that she did not ask for a knife to test the phosphorus, those issues were first raised during Bradshaw's testimony as part of the State's case-in-chief and were not raised again until the State's cross-examination of appellant. Bradshaw testified that appellant asked for a knife, that Wallace gave her a knife, and that she stuck the knife in the phosphorus and asked Bradshaw to light the phosphorus. Although Bradshaw did not testify regarding appellant's statement concerning a wire, the State asked Bradshaw, on direct examination as part of its case-in-chief, if he was present when appellant asked about a wire, and he indicated that he was not. On cross-examination, in response to the State's questions, appellant denied her involvement with the transaction. While she admitted that she asked Nutt if she had checked Wallace for a wire, she denied that she checked anyone for a wire and denied any involvement with the phosphorus.
Thus, the State improperly elicited from appellant the information that it already knew it would rebut with Wallace's testimony. While the State is certainly allowed to question its witnesses and cross-examine the defendant's witnesses regarding the scope of a defendant's involvement in a crime, it is not allowed to elicit the testimony which necessitates rebuttal testimony. Isbell, supra; Birchett, supra. Where the State elicits such testimony from a defendant, that evidence is not in response to the evidence presented by the defense, and as such, is not true rebuttal testimony because it is not offered in reply to new matters raised by the defense. Isbell, supra; Birchett, supra. Simply put, the rationale for not requiring the State to disclose rebuttal witnesses does not allow the State to withhold the identity of a witness and to then orchestrate the need for the rebuttal testimony of that witness. Birchett, supra. Finally, we note that the prosecutor conceded when he argued that an audiotape of the transaction should be admitted that Wallace's testimony was part of the res gestae in this case. Therefore, the State is hard-pressed to argue that the same evidence that it fought to present as proof of the res gestae in its case-in-chief would merely be *13 responsive to new matters asserted by the defense. Thus, we hold that, under the circumstances of the instant case, the trial court erred in admitting Wallace's testimony as rebuttal testimony.[3]
II. Chain of Custody
Appellant's second argument is that the trial court erred in admitting into evidence State's Exhibit 1, which the State asserted was the bag of methamphetamine seized from Nutt during the April 5, 2001 transaction. Because this issue is likely to arise during retrial, we next address this argument. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997).
Appellant maintains that due to discrepancies in the date of the offense and the date on the form submitted to the crime lab, the chain of custody was not adequate to prove that the drugs tested were the same drugs obtained from Nutt on April 5, 2001. The purpose of establishing the chain-of-custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Id. Minor uncertainties in the proof of chain-of-custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id. Our courts have required that the chain-of-custody for interchangeable items like drugs or blood needs to be more conclusive than for other evidence. Id. We do not reverse a trial court's ruling on the admissibility of evidence under the chain-of-custody rule absent a showing that the court clearly abused its discretion. Jones v. State, 82 Ark.App. 229, 105 S.W.3d 835 (2003). We hold that the trial court did not abuse its discretion in admitting State's Exhibit 1 because the State, within a reasonable probability, established the chain of custody.
According to Bradshaw's testimony, on April 5, 2001, he received a ziplock bag containing what Nutt told him was 2.7 grams of methamphetamine. Pursuant to his normal routine, he labeled the bag with Nutt's name and placed the drugs in his trunk. The drugs remained in his trunk until he took them out to complete his paperwork. Approximately two weeks later, he completed the paperwork on the drugs, including the report-of-investigation form, the CID case form, and the receipt for evidence/property form. Thereafter, the drugs remained in his trunk until he turned them over to Beavers, who took the drugs to the crime lab.
On the report of investigation form, Bradshaw listed the date of the incident as April 5, 2001, indicated Nutt as the suspect, and indicated that he received 2.7 grams of methamphetamine. On the CID case form, Bradshaw provided a narrative of the incident and named both Nutt and appellant as participants. He also stated on the case form that he kept the drugs secure until they were turned over to the crime lab.
On the receipt for evidence/property form, the date of confiscation is listed as April 5, 2001, although there is no date of receipt on the form. The form indicates that the evidence was received from Nutt *14 at the Cornerstone Family Workshop Center in Amity, Arkansas (Pike County). The evidence was described as: "One clear plastic corner bag containing approximately 2.7 grams of an off-white powder substance believed to be meth." The evidence submission form that Bradshaw (through Beavers) submitted to the crime lab, indicates May 3, 2001, as the date the drugs were received at the lab. This form also lists Nutt as the suspect, and lists the date of offense as March 22, 2001. The description of the evidence is identical to the description of the evidence in the receipt-for-evidence/property form.
Appellant maintains that the discrepancies in the chain-of-custody are not minor discrepancies. First, she notes that the date on State's Exhibit 1 is different from the date of the offense and is the same date as another buy that Bradshaw made. Appellant relies on the fact that Bradshaw made two additional arrests of Nutt subsequent to the April 5 incident but prior to the submission of the drugs to the crime lab. It took Bradshaw approximately two weeks after April 5, 2001, to complete the paperwork, and he admitted that by that time, he had made one or two additional buys from Nutt. Bradshaw could not remember whether the drugs from the subsequent arrests were also stored in his trunk with the drugs from the April 5 arrest. He further testified that at the time he was completing the paperwork, he "was new to this" and did not know whether there was enough evidence to prosecute appellant.
However, the evidence was sufficient to establish within a reasonable probability that the drugs had not been tampered with. Bradshaw also testified that he wrote the April 5 date on the ziplock bag. He further testified that the drugs remained secure in his trunk, except for the time that he took them out to process the paperwork. In addition, he testified that he was sure that Exhibit 1 contained the drugs that he received on April 5, 2001, because that was the only buy he made from Nutt in Pike County. He also stated that the April 5 transaction was the only transaction in which he was involved in which appellant was also involved. It is significant that the incorrect date was not written on Exhibit 1, the ziplock bag that contained the drugs. Rather, the incorrect date was only on the evidence submission form that was given to the crime lab when the bag of drugs was submitted. Bradshaw explained that he simply tabbed over the date of the offense instead of typing in the April 5, 2001 date. As the finder of fact in evidentiary matters, it was within the court's discretion to accept Bradshaw's explanation of the error. Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002).
Finally, although appellant did not challenge below the chain of evidence based on the discrepancy in the description of the weight of the drugs, she does so now. We simply note that the discrepancy of less than one- quarter of an ounce was minor, especially considering that Bradshaw did not weigh the drugs but relied on Nutt's assertion that he was receiving 2.7 grams of methamphetamine. The Arkansas Supreme Court has found a similarly minor discrepancy in the weight of the drugs to be insufficient to raise a reasonable probability that a break in the chain-of-custody occurred. See Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001) (affirming where the difference between the description of the drugs and the actual weight was .1172 grams and .0817 grams, respectively). Further, there was no discrepancy in the description of the drugs seized and the drugs submitted to the Crime Lab, as was the case in Crisco, supra, because the forms used in this case *15 consistently described the substance as an off-white powder believed to be methamphetamine.
Reversed and remanded.
ROBBINS and NEAL, JJ., agree.
NOTES
[1] Red phosphorus is an ingredient used to manufacture methamphetamine.
[2] This transaction was to be the first of three buys that Bradshaw arranged involving Nutt, using Wallace as a confidential informant. As a result of the two subsequent investigations, Nutt was arrested on April 19, 2001, and April 29, 2001.
[3] We note that the Arkansas Supreme Court has stated, in a case involving the State's failure to disclose an informant's identity pursuant to the discovery rules, that if an informant is present or participated in the crime, it would be prejudicial error for the State not to reveal his identity. McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577158/ | 325 N.W.2d 230 (1982)
Trudie Kay SCHMIDT, Plaintiff and Appellee,
v.
Gerald Delbert SCHMIDT, Defendant and Appellant.
Civ. No. 10197.
Supreme Court of North Dakota.
October 20, 1982.
*232 Ella Van Berkom, Minot, for plaintiff and appellee.
Chapman & Chapman, Bismarck, for defendant and appellant; argued by Daniel J. Chapman, Bismarck.
PEDERSON, Justice.
This is an appeal from a final judgment in a divorce case in which a challenge is made to property division, child support, and attorney fees on appeal. The judgment is affirmed.
The trial court prepared and filed a nine-page memorandum decision. It is sufficient, under Rule 52(a), NDRCivP, if the findings of fact and conclusions of law appear in a memorandum decision. In this case we have heard no claim that the findings of fact and conclusions of law do not appear in the memorandum decision, although conclusions, findings and observations are mingled with recitations from the testimony which are nonessential for appellate review purposes.
After about 16 years, the marriage of Gerald and Trudie Schmidt was terminated. Custody of the three children born of this marriage was awarded to Trudie and is not disputed on this appeal. All of the assets of the marriage were considered, and approximately 39% of the "low equity value" was awarded to Trudie and about 61% to Gerald. Gerald was ordered to pay $500 per month for child support until the oldest child reaches the age of 18 and, thereafter, $400 until the youngest child reaches the age of 18. Gerald appealed.
ON MOTION TO STRIKE APPELLEE'S BRIEF
Before we reach the merits of the appeal, we will consider a motion by Gerald, the appellant, that we should strike the brief submitted by Trudie, the appellee, because she failed to comply with Rule 28(a)(3), NDRAppP.
Rule 28(a)(3) provides that, in the appellant's brief, the statement of the facts relevant to the issues presented for review shall have "appropriate references to the record." Rule 28(b) requires the same of the appellee when a statement of the facts is included in the brief.
Rule 13, NDRAppP, provides that "[t]he supreme court may take any appropriate action against any person failing to perform an act required by the rules or required by court order." As we said in Jostad v. Jostad, 285 N.W.2d 583, 585 (N.D. 1979):
"Many times we have reiterated our preference to reach the merits of cases. See State v. Packineau, 270 N.W.2d 336 (N.D.1978), and Willow City Farmers Elevator v. Thompson, 261 N.W.2d 381 (N.D. 1977), and cases cited therein. The factors which enter into our evaluation are expressed in those cases. We add the factor from the Procedure Committee comment to Rule 13 that we apply sanctions sparingly, when it is necessary to protect the appellate process from abuse."
We do not think that Trudie's disregard of Rule 28(b) warrants striking her brief. The facts in her brief were supported by the record. We will restate our position, however, that the "rules must be treated respectfully," and that "we do not intend that our admonitions be treated as `empty noise.'" Jostad, supra, 285 N.W.2d at 585.
ON MERITS OF THE APPEAL
Section 14-05-24, NDCC, provides, in part:
"When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, ...."
*233 The scope of our review of fact issues in a divorce action is limited by Rule 52(a), NDRCivP, to a single determinationwhether or not a special finding is clearly erroneous. See Grant v. Grant, 226 N.W.2d 358, 361 (N.D.1975); Rambel v. Rambel, 248 N.W.2d 856, 858 (N.D.1977). We have attempted to show how to distinguish findings from conclusions in E.E.E., Inc. v. Hanson, 318 N.W.2d 101, 104 (N.D. 1982); Gross v. Gross, 287 N.W.2d 457 (N.D. 1979); Kasper v. Provident Life Ins. Co., 285 N.W.2d 548, 1 A.L.R. 4th 1305 (N.D. 1979). Labels are not ordinarily significant. Jahner v. Jacob, 233 N.W.2d 791, 798 (N.D. 1975).
Specifically, we have often said that the equitableness of a property division in a divorce case is treated as a finding of fact, Williams v. Williams, 302 N.W.2d 754, 756 (N.D.1981), and that a property division need not be equal to be equitable. Grant v. Grant, supra. We have also repeatedly held that a determination relative to child support will be treated as a finding of fact. Haugeberg v. Haugeberg, 258 N.W.2d 657, 659 (N.D.1977).
"A finding by the trial court is not to be disturbed unless it is clearly erroneous, either upon a clear demonstration that it is without substantial evidentiary support or that it was induced by an erroneous view of the law." Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641, 644 (N.D.1976).
Gerald has made no clear demonstration that there is an absence of evidentiary support for the finding of equitable property division and for the finding that child support payments of $500/400 per month are required in this case. Credibility of witnesses and the weight to be given their testimony are exclusively functions of the trial court. Peterson v. Hart, 278 N.W.2d 133, 136 (N.D.1979). Included, of course, is the authority of the trial court to draw inferences from facts. See Woodbury v. Pfliiger, 309 N.W.2d 104, 108 (N.D.1981). In this case, the findings of fact are clearly supported by substantial evidence.
If we understand Gerald's argument correctly, it is that the property division was "induced by an erroneous view of the law." He contends that it was error as a matter of law for the trial court to consider a substantial part of the property, which he has labeled "gift" or "inheritance" from Gerald's parents to Gerald alone, as assets of the marital estate. The law and cases he cites in support of this argument are misinterpreted.
In Hultberg v. Hultberg, 259 N.W.2d 41, 43-44 (N.D.1977), we said:
"In conjunction with a divorce or a separation from bed and board, the trial court clearly has the power to award property, the title to which is held solely by one spouse, to the other spouse, or to divide the property between them. [Cites omitted.] Furthermore, if an equitable distribution requires it, the district court has the power to award to one spouse property acquired solely by the other spouse prior to their marriage."
We conclude that § 14-05-24, NDCC, contemplates that the trial courts, in making an equitable distribution of property in a divorce case, will consider all of the real and personal property of both parties, regardless of the source. See Zent v. Zent, 281 N.W.2d 41, 45 (N.D.1979). The circumstances of inheritance, gift, or premarital acquisition are factors to be considered under the Ruff-Fischer guidelines (Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966)), but are not rules of law which prevent equitable distribution of marital assets.
The findings of fact determining equitable property distribution and child support payments are not clearly erroneous.
After the appeal had been filed, Gerald says, the trial court ordered him to pay Trudie's attorney, on appeal, fees of $1,500.00. The record in this case does not contain such order. Ordinarily, trial courts lose jurisdiction when a notice of appeal is filed. There is an exception for determining attorney fees on appeal in divorce cases. See discussion thereof in Porter v. Porter, *234 274 N.W.2d 235, 243 (N.D.1979); Keig v. Keig, 270 N.W.2d 558, 561 (N.D.1978); and in Orwick v. Orwick, 152 N.W.2d 95 (N.D. 1967). See also § 14-05-23, NDCC. Ordinarily, also, a notice of appeal filed with the clerk of the district court on April 9, 1982, does not give this court jurisdiction over any action taken by the district court after that date. In any event, in this case, there is no record upon which we can determine whether or not there was a showing of need for the allowance of attorney fees, on appeal, of $1,500.00. Absent a showing of clear abuse of discretion, this court does not overturn a trial court determination of reasonable attorney fees. Matter of Estates of Kjorvestad, 287 N.W.2d 465, 470 (N.D.1980).
The judgment is affirmed.
ERICKSTAD, C.J., and PAULSON, SAND and VANDE WALLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577181/ | 790 S.W.2d 404 (1990)
Karen Elizabeth RINEHOLD, Appellant,
v.
Michael Alan RINEHOLD, Appellee.
No. C14-89-00624-CV.
Court of Appeals of Texas, Houston (14th Dist.).
May 24, 1990.
*405 David Frishman, Katy, for appellant.
Bruce R. Steffler, Houston, for appellee.
Before PAUL PRESSLER, CANNON and ELLIS, JJ.
OPINION
CANNON, Justice.
Karen Rinehold appeals from the trial court's order denying her motion to enforce its earlier divorce decree as to child support and refusing to find appellee in contempt. Since the trial court properly found appellee was entitled to credit for actual support provided to his daughter, and that the agreement incident to divorce was not enforceable as contract terms, we affirm the order of the trial court
Appellant's one point of error challenges a number of the trial court's finding. The trial court's findings have the same force and dignity as a jury's verdict on special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. Civ.App.Houston [14th Dist.] 1977, writ ref'd n.r.e). Those findings are reviewed according to the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a special issue. Aerospatiale Helicopter Corp. v. Universal Health Services, Inc., 778 S.W.2d 492, 498 (Tex. App.Dallas 1989, writ denied).
When both legal and factual sufficiency points are raised, we must first examine the legal sufficiency of the evidence. In reviewing the record, we are to consider only the evidence and inferences that tend to support the finding, and disregard evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985). If there is any evidence of probative value to support the finding, we must uphold the finding and overrule the point of error. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
If the finding is supported by legally sufficient evidence, we must then weigh and consider all the evidence, both that in support of and that contrary to the challenged finding. The finding must be upheld unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or erroneous. Pool v. Ford Motor, 715 S.W.2d 629, 635 (Tex.1986). We may not substitute our opinion for that of the trier of fact merely because we might have reached a different conclusion. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 896 (1951); Thompson v. Wooten, 650 S.W.2d 499, 501 (Tex.App. Houston [14th Dist.] 1983, writ ref'd n.r.e.). Further, the trial court as trier of the facts is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Rego v. Brannon, 682 S.W.2d 677, 680 (Tex.App.Houston [14th Dist.] 1984, writ ref'd n.r.e.).
Under the terms of the 1983 divorce decree, appellant was appointed managing conservator of the couple's two minor children, Kristen and Mindy. Appellee was *406 appointed possessory conservator and ordered to pay $1,300 per month to appellant for the children's support, with 5% increases periodically. The trial court found that the divorce decree required appellee to pay a total of $44,200 in child support for the period from June 1, 1986, to the date of the hearing.
Appellant testified that, beginning June 1, 1986, she voluntarily agreed that Kristen could live with appellee. From June of 1986 through March of 1989, when Kristen attained majority, appellee had actual care, control and possession of the child. Until June of 1986, when Kristen began living with him, appellee had paid 100% of the court-ordered support each month; thereafter, he began sending appellant only one-half of the required support payments. Appellant's own pleadings and testimony confirm that Kristen lived with her father during this period and that he did, in fact, pay one-half of the court-ordered child support to appellant each month. The parties stipulated that appellant's pleadings were a correct shorthand rendition of the amounts paid and the alleged amounts due. The record fully supports the trial court's findings that appellant voluntarily relinquished to appellee the actual care, control and possession of Kristen for a period in excess of his court-ordered periods of access and possession; and that he paid appellant in excess of $26,000 in child support for their second daughter, Mindy, during the period in question.
Although the requirements established by the divorce decree remained in effect even after Kristen went to live with her father, under statutory authority appellee was able to plead and prove that the actual support he provided for Kristen was an affirmative defense to the motion for contempt, and that he was entitled to an offset to appellant's claimed arrearage in the amount of that actual support. Tex.Fam. Code Ann. §§ 14.40(c), 14.41(c) (Vernon 1986). Appellee presented evidence of his household expenses for the period in question. Since three people were residing there, the trial court found appellee had provided actual support of approximately one-third of that amount, $40,000. The trial court then found appellee was entitled to an offset of $26,817.71 against appellants claimed arrearage. There is sufficient evidence in the record from which the trial court could reasonably have reached its factual determinations on support paid and offsetting actual support provided to Kristen.
Appellant also challenges the trial court's finding that she did not incur $900 in dental bills for treatment of Kristen during the period from June of 1986 to the hearing date. Appellant offered no documentary evidence to sustain her pleading on this point, only her testimony was offered. The trial court sustained an objection to a portion of her testimony on the grounds of relevancy, since she was discussing dental expenses for her other daughter, which was an issue not raised by her pleadings. The trial court was the sole judge of the credibility of her testimony. It was free to determine the weight it would be accorded. Rego v. Brannon 682 S.W.2d at 680. The record supports the trial court's finding that alleged dental expenses were not incurred for Kristen during the period at issue.
Appellant complains that the trial court erred in finding that the evidence was insufficient to support her claim that the terms of the Agreement Incident To Divorce were enforceable as a contract. To be enforceable as a contract, an agreement concerning child support must satisfy the requisites of Tex.Fam.Code Ann. § 14.06(d) (Vernon 1986), which provides that "[t]erms of the agreement set forth in the decree may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless the agreement so provides." [Emphasis added.] The Texas Supreme Court has interpreted section 14.06(d) as requiring that the parties to the agreement must expressly provide in the order incorporating the agreement that its terms are enforceable as contract terms for that remedy to be available. Elfeldt v. Elfeldt, 730 S.W.2d 657, 658 (Tex.1987). Neither the divorce decree, nor the separate Agreement Incident To Divorce, *407 expressly states that the terms of the agreement are enforceable as contract terms.
Additionally, the trial court could have concluded that the Agreement Incident To Divorce was not incorporated in its entirety into the divorce decree. A review of the decree reveals that the agreement is not referred to at all in the portion dealing with custody and support. The decree states that the custody decisions were based on "the best interest of the children", and that the support ordered was determined after "having considered the circumstances of the parents." It is not until the sixth page of the decree, in the portion dealing with the division of community property that the agreement is even mentioned. The decree then states "that the parties own community property which should be divided in an equitable manner and the Court recognizes the agreement of the parties as to disposition of their community property ... IT IS [DECREED] that the community property agreement entered into by Petitioner and Respondent and filed herein be and is hereby approved and incorporated into this Decree by reference ..." [emphasis added]. The trial court could reasonable have concluded that only the community property section of the Agreement Incident To Divorce was approved by the court and incorporated into the final decree of divorce. Klaeveman v. Klaeveman, 300 S.W.2d 205, 208-09 (Tex.Civ.App.Austin 1957, writ dism'd). Its finding that appellant was not entitled to contractual enforcement of the support terms of the agreement was not in error.
Whether to award appellant attorney's fees and costs was within the discretion of the trial court. Tex.Fam.Code Ann. § 14.33(b) (Vernon 1986). Appellant has made no showing that the trial court abused its discretion in declining to award them to her.
Finding no merit to appellant's point of error, the order of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577170/ | 109 Wis. 2d 1 (1982)
325 N.W.2d 64
IN the MATTER OF E.B., a child under the age of 18 years:
E. B., Appellant,
v.
STATE of Wisconsin, Respondent.[]
No. 81-2020.
Court of Appeals of Wisconsin.
Submitted on briefs August 2, 1982.
Decided September 3, 1982.
*2 For the appellant the cause was submitted on the briefs of Louis B. Butler, Jr., assistant state public defender.
For the respondent the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Daniel J. O'Brien, assistant attorney general.
Before Decker, C.J., Moser, P.J., and Wedemeyer, J.
DECKER, C.J.
We vacate the judgment of the circuit court adjudicating E.B. delinquent after a trial by jury, and the order transferring his custody to the State Department of Health and Social Services because the trial court refused to send written instructions to the jury regarding burden of proof and reasonable doubt, as commanded by secs. 805.13(4) and 972.10(5), Stats. Other issues raised by E.B. are not addressed because the jury instruction issue is dispositive of this appeal.[1]
Section 805.13(4), of the Rules of Civil Procedure, provides in part: "The court shall provide the jury with one complete set of written instructions providing the substantive law to be applied to the case to be decided."[2] The identical provision is contained in sec. 972.10(5)[3] of the criminal procedure code. Section 972.01 of the criminal procedure code also makes applicable the rules of civil procedure provisions with respect to "charging the jury and giving instructions . . . ." We believe that sec. *3 48.31(2), Stats., generally requires a juvenile's jury trial to be conducted pursuant to the provisions of ch. 805 of the Rules of Civil Procedure.
In adopting these statutes, the legislature has clearly prescribed that a trial judge provide a jury with a written set of the judge's instructions to it regarding the applicable substantive law. Although the directive was followed in the instance of some of the instructions, the trial court rejected a specific request by E.B. to provide the jury with a written copy of the instructions regarding "burden of proof" and "reasonable doubt."[4] The requested *4 instructions on burden of proof and reasonable doubt were generally modeled after Wis J I-Criminal 140.
The clear and unambiguous requirement of delivery to the jury of a written set of the instructions regarding the substantive law requires us to enter the substantive/procedural thicket a thicket of the law that has resulted in decades of judicial interpretation of the substantive/procedural distinction without any apparent progress or simplification. "Matters of `substance' and matters of `procedure' are much talked about in the books as though they defined a great divide cutting across the whole domain of law. But, of course, `substance' and `procedure' are the same key-words to very different problems." Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945).[5]
The common and approved meaning of the words of a statute can be established by reference to a recognized dictionary. B.M. v. State, 101 Wis. 2d 12, 18, 303 N.W.2d *5 601, 605 (1981); see sec. 990.01(1), Stats. Webster's Third New International Dictionary (1976) defines substantive law as "a branch of law that prescribes the rights, duties, and obligations of persons to one another as to their conduct or property and that determines when a cause of action for damages or other relief has arisen . . . ." Black's Law Dictionary 1281 (rev. 5th ed. 1979) is slightly more specific, but not necessarily more instructive:
That part of law which creates, defines, and regulates rights, as opposed to "adjective or remedial law," which prescribes method of enforcing the rights or obtaining redress for their invasion. That which creates duties, rights and obligations, while "procedural or remedial law" prescribes methods of enforcement of rights or obtaining redress. Kilbreath v. Rudy, 16 Ohio St. 2d 70, 242 N.E.2d 658, 660, 45 O.O.2d 370. The basic law of rights and duties (contract law, criminal law, tort law, law of wills, etc.) as opposed to procedural law (law of pleading, law of evidence, law of jurisdiction, etc.).
The definitions of adjective law are equally inconclusive. Webster's Third New International Dictionary (1976) defines adjective law as "the portion of the law that deals with the rules of procedure governing evidence, pleading, and practice," while Black's Law Dictionary 38-39 (rev. 5th ed. 1979) defines it as:
The aggregate of rules of procedure or practice. As opposed to that body of law which the courts are established to administer (called "substantive law"), it means the rules according to which the substantive law is administered; e.g. Rules of Civil Procedure. That part of the law which provides a method for enforcing or maintaining rights, or obtaining redress for their invasion. Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268, 272. Pertains to and prescribes practice, method, procedure or legal machinery by which substantive law is enforced or made effective. Ambrose v. State Dept. of Public Health and Welfare, Mo. App., 319 S.W.2d 271, 274.
*6 Succinctly, then, adjective or procedural law "exists for the sake of something else for the sake of `substantive' law."[6] Procedure exists primarily to implement substantive rights.
[1]
Bearing this in mind, we are persuaded that proof beyond a reasonable doubt in an adjudication of juvenile delinquency is an element of substantive law for purposes of sec. 805.13(4), Stats., in light of In re Winship, 397 U.S. 358 (1970). There, the United States Supreme Court stated that the reasonable doubt standard "is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence that bedrock `axiomatic and elementary' principle whose `enforcement lies at the foundation of the administration of our criminal law.'" [Citation omitted.] In re Winship, 397 U.S. at 363. Cf. State v. Nye, 100 Wis. 2d 398, 400-01, 302 N.W.2d 83, 85 (Ct. App. 1981), aff'd, 105 Wis. 2d 63, 312 N.W.2d 826 (1981). For this court to relegate so fundamental a principle to other than substantive status would defy both sense and the apparent spirit of the statute.
[2, 3]
We further conclude that the statutory sections that we address here were mandatory and not directory. Whether a statute is mandatory or directory is a question of construction. Cross v. Soderbeck, 94 Wis. 2d 331, 340, 288 N.W.2d 779, 783 (1980). Generally, when the word "shall" is used in a statute, it is presumed mandatory, Karow v. Milwaukee County Civil Service Commission, 82 Wis. 2d 565, 570-71, 263 N.W.2d 214, 217 (1978), unless it is necessary to construe the statute as *7 directory to carry out the legislature's intent. City of Wauwatosa v. Milwaukee County, 22 Wis. 2d 184, 191, 125 N.W.2d 386, 389 (1963).
In determining whether a statutory provision is mandatory or directory in character, we have previously said that a number of factors must be examined. These include the objectives sought to be accomplished by the statute, its history, the consequences which would follow from the alternative interpretations, and whether a penalty is imposed for its violation. Marathon County v. Eau Claire County (1958), 3 Wis. (2d) 662, 666, 89 N.W.(2d) 271; Worachek v. Stephenson Town School Dist. (1955), 270 Wis. 116, 70 N.W.(2d) 657. We have also stated that directory statutes are those having requirements "which are not of the substance of things provided for." Manninen v. Liss (1953), 265 Wis. 355, 357, 61 N.W.(2d) 336. State v. Rosen, 72 Wis. 2d 200, 207, 240 N.W.2d 168, 171 (1976).
Our search of the Legislative Reference Bureau has not uncovered a legislative history which sheds light upon the statutory purpose. Nonetheless, need of a jury for a written copy of the trial judge's instructions to it has long been a subject of concern and contention. Almost a century ago the subject was addressed by Justice Orton:
It is especially unfortunate and dangerous in criminal cases that the statute allows instructions to be given to a jury orally by the judge, and to be regretted that judges avail themselves of the personal benefit of the statute. It is hardly possible for any judge to extemporize and orally declaim those principles of law applicable to the case, which in the books are found clearly and tersely expressed in "words fitly spoken." Perspicuity and certainty are essential in legal expressions, and there should be no doubt, ambiguity, or chance of questionable construction in any language, word, or sentence in a judge's charge of the law to the jury. The law is worthy of studied and correct expression anywhere and in all cases, and especially so when it is sought to be stated to the jury not versed in it or over ready to apprehend its meaning. I speak for myself when I say that the practice *8 of oral instructions to the jury not committed to memory beforehand is not only pernicious as it affects the rights of parties to the suit but in the uncertainty afterwards as to what the instructions really were in word and meaning. The omission of one single word, as in this instance, may change the meaning of a whole sentence and principle of law. The judge, in the mental effort to grasp the principles and compose his sentences to express them under such disadvantage, may easily omit a word or use a wrong one, unconsciously to himself, and he cannot in any case retain in memory every word he used or omitted in a charge of the usual length, under such a practice. [Emphasis in original.] Hill v. State, 57 Wis. 377, 380-81, 15 N.W. 445, 446-47 (1883).
We believe it unmistakable that the legislative intent and objective was to ensure that the jury have in its possession a written copy of the trial judge's instructions regarding the substantive law to be applied by the jury to achieve understanding and correct application of the law.
Construction of the statutory command as directory would frustrate the legislative intent, objective, and remedy. Although no penalty is provided by statute, it is obvious that the judiciary was expected to apply statutes properly adopted by the legislature for the administration of the judicial process. A jury, an impermanent body that is disbanded upon arriving at a verdict, cannot be supplied with a written copy of instructions regarding the substantive law subsequent to verdict. Thus, the statute's mandate must be timely fulfilled or forever violated.
Ordinarily an instruction error must result in prejudice to the complaining party to effectuate overturning the verdict. In the instance of the statutes involved, the legislature has provided a procedural mandate to assure the integrity and accuracy of the jury system. Random applications of this procedural safeguard would result from construing the statutes as directory.
*9 We note that the effect of these statutes which are limited in their applicability to the substantive law do not address the problem of many adjective law instructions that seem equally important to the integrity and accuracy of the jury system. We are troubled by this uneven and unsatisfactory distinction.
The state argues that, since the jury instruction on the substantive crime of burglary was given to the jury both orally and in writing, and since that instruction mentions the reasonable doubt standard three times, there was, therefore, no necessity to give the reasonable doubt standard jury instruction to the jury in writing. We disagree.
If anything, the state's argument points up the problem of sec. 805.13(4), Stats., which does not require that all jury instructions go to the jury in writing. The state apparently concedes that, under the terms of the statute, the instruction on the substantive crime of burglary was required to have been provided to the jury in writing. We are convinced, however, that because that instruction repeatedly referred to the reasonable doubt standard, a term of art with which a jury cannot be expected to be familiar, it only stands to reason that any instruction which explains or elaborates upon such a term of art ought also to go to the jury in writing. Insofar as jury instructions assist juries in performing their tasks accurately, carefully, and thoughtfully, they ought to be provided to juries in their most helpful form.
By the Court. Judgment and order vacated and cause remanded.
NOTES
[] Petition to review granted.
[1] Upon motion by E.B., a decision by a three-judge panel was ordered pursuant to sec. 752.31(3), Stats.
[2] This quoted addition to the subsection was added by sec. 5, ch. 128, Laws of 1979.
[3] Sec. 6, ch. 128, Laws of 1979.
[4] The instructions given were orally delivered as follows:
Now, in determining the guilt or innocence of the juvenile or of anyone else, you should scrutinize the evidence with the utmost care and caution and you should act with all the judgment, reason, prudence and discrimination that you as a person possess. If after all this scrutiny, you have a reasonable doubt in your own mind of the juvenile's guilt, you must find him not guilty.
The law presumes every person charged with the commission of an offense to be innocent. The law presumes that this juvenile is innocent. This presumption attends the juvenile throughout the trial and prevails at its close unless overcome by evidence which satisfies the jury of his guilt beyond a reasonable doubt. The juvenile is not required to prove his innocence. The burden of proving the juvenile guilty of every element of the crime charged is upon the State, and before you can find guilt, the State must prove to your satisfaction that that juvenile is in fact guilty beyond a reasonable doubt. If you can reconcile the evidence upon any reasonable hypothesis consistent with the juvenile's innocence, you should do so and find him not guilty.
Now, the term "reasonable doubt" means a doubt based on reason and common sense. It is a doubt for which a reason can be given arising from a fair and rational consideration of the evidence or the lack of evidence. It means such a doubt as would cause a man of ordinary prudence to hesitate when called upon to act in a very important affair of life.
A reasonable doubt, however, is not a doubt which is merely fanciful or speculative, such as a skeptical mind might invent or suggest. It is not a doubt, which ignores a reasonable interpretation of the evidence or which arises merely from sympathy or from fear to return a verdict of guilt. A doubt, which arises from sympathy or fear to return a verdict of guilt, is not a reasonable doubt. A reasonable doubt is not merely a doubt, such as may be conjured up in the mind of one desiring to escape the responsibility of a decision.
While it is your duty to give the juvenile the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth, and to give the juvenile a benefit of a reasonable doubt if it arises in your minds after you have carefully considered all the evidence that was adduced in this case.
[5] Some have gone so far as to assert that no distinction can be drawn between the two terms:
The distinction between substantive and procedural law is artificial and illusory. In essence, there is none. The remedy and the predetermined machinery, so far as the litigant has a recognized claim to use it, are, legally speaking, part of the right itself. A right without a remedy for its violation is a command without a sanction, a brutum fulmen; i.e., no law at all. I Chamberlayne, Evidence (1911) § 171.
Quoted in W. Cook, The Logical and Legal Bases of the Conflict of Laws 158, n 10 (1949).
[6] F. James, Jr., Civil Procedure § 1.1, n 1 (1965), quoting C. Hepburn, The Historical Development of Code Pleading 19, 20 (1897). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577189/ | 151 S.W.3d 369 (2004)
Darius NICHOLSON, Appellant,
v.
STATE of Missouri, Respondent.
No. SC 86143.
Supreme Court of Missouri, En Banc.
December 21, 2004.
*370 S. Kristina Starke, Assistant Public Defender, St. Louis, Lew A. Kollias, Appellate/PCR Division Director, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Shaun J. Mackelprang, Andrea M. Follett, Assistant Attorneys General, Jefferson City, for respondent.
RICHARD B. TEITELMAN, Judge.
Darius Nicholson filed a pro se motion for post-conviction relief under Rule 29.15. The circuit court dismissed Nicholson's motion as untimely. The judgment is reversed.
FACTS
Nicholson was convicted in the circuit court of Cape Girardeau County of murder in the second degree, armed criminal action and robbery in the first degree. He was sentenced to concurrent terms of life imprisonment for murder, 30 years of imprisonment for armed criminal action and 30 years imprisonment for robbery. Nicholson's convictions and sentences were affirmed on appeal. State v. Nicholson, 84 S.W.3d 491 (Mo.App.2002). The mandate issued on October 9, 2002.
Under Rule 29.15(b), Nicholson had to file his motion within 90 days of the issuance of the mandate affirming his convictions and sentences. The 90-day time period for filing a timely Rule 29.15 motion expired on January 7, 2003.
On January 6, 2003, Nicholson filed his pro se Rule 29.15 motion for post-conviction relief in the circuit court of the City of St. Louis. However, under Rule 29.15(a), the proper venue for the motion was in Cape Girardeau County. The circuit court of the City of St. Louis forwarded the motion to the circuit court of Cape Girardeau County, but the motion was not received until January 9, 2003, two days after the January 7, 2003 filing deadline. The motion court dismissed Nicholson's Rule 29.15 motion with prejudice, finding that it was untimely filed, thus depriving the court of jurisdiction.
ANALYSIS
Appellate review is limited to determining whether the findings and conclusions of the trial court are clearly erroneous. Rule 29.15(k). Findings of fact and conclusions of law are clearly erroneous only if after a review of the whole record, the Court is "left with a definite and firm impression that a mistake has been made." State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).
Section 476.410 provides that a "court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to the division or circuit in which it could have been brought." The statute gives the circuit court in which a pleading was erroneously filed "limited jurisdiction... to transfer any case filed in an improper venue to any circuit court otherwise designated by the legislature to hear the particular matter." State ex rel. Director of Revenue v. Gaertner, 32 S.W.3d 564, 567-68 (Mo. banc 2000). Rule *371 51.10 requires the court to which an action is transferred to treat the action "as if it had originated in the receiving court." Accordingly, section 476.410 and Rule 51.10 required the circuit court of Cape Girardeau County to treat Nicholson's motion as if it were timely filed on January 6, 2003.
The state attempts to avoid this conclusion by arguing that Rule 51.10 is inapplicable because it is contrary to the mandatory filing periods of Rule 29.15. Rules of civil procedure apply to Rule 29.15 motions "insofar as applicable." Rule 29.15(a). To determine whether a rule of civil procedure is applicable to a Rule 29.15 motion, the court must inquire as to whether the rule of procedure "enhances, conflicts with, or is of neutral consequence to the purposes of" Rule 29.15. Thomas v. State, 808 S.W.2d 364, 366 (Mo. banc 1991).
Rule 29.15 is designed to avoid "delay in the processing of prisoners' claims and prevent the litigation of stale claims." Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). Applying Rule 51.10 does not conflict with the Rule 29.15 filing periods because it simply allows review of a motion filed within the Rule 29.15 filing periods but filed in an incorrect court. A Rule 29.15 motion, whether filed in a proper or an improper court, is still considered untimely if filed after the filing period expired. Rule 51.10 applies to Nicholson's motion.
The judgment is reversed, and the case is remanded.[1]
WHITE, C.J., WOLFF, STITH, PRICE and LIMBAUGH, JJ., and HARDWICK, Sp.J., concur.
RUSSELL, J., not participating.
NOTES
[1] In addition to the mechanical application of statutes and procedural rules, this conclusion is further supported by the practical implications of holding otherwise. An incarcerated person seeking post-conviction relief must prepare and file his or her motion only "with such help as he can obtain within the prison walls or the prison system." Johnson v. Avery, 393 U.S. 483, 488, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969). It would be patently unfair to prohibit incarcerated, pro se litigants from availing themselves of section 476.410 and Rule 51.10 while permitting other civil litigants to have their cases transferred to an appropriate venue. Given the facts of this case, there is no legal or just basis for holding Mr. Nicholson to a higher standard of legal competence than that of experienced attorneys representing clients in other civil matters. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544540/ | 24 N.J. 408 (1957)
132 A.2d 298
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN ANTHONY SINNOTT, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued April 29, 1957.
Decided June 3, 1957.
*411 Mr. Ira D. Dorian argued the cause for appellant (Mr. Matthew Grayson, attorney).
*412 Mr. Hyman Isaac argued the cause for the State (Mr. H. Russell Morss, Jr., Union County Prosecutor, attorney).
The opinion of the court was delivered by WACHENFELD, J.
The appellant was indicted by the Union County grand jury for the crime of sodomy involving a male child under the age of 16 years. N.J.S. 2A:143-2.
His conviction was sustained by the Appellate Division. On petition, we granted certification. 23 N.J. 303.
The sordid details involved need not be further narrated except as required for the disposal of the various issues presented. We note with approval the meticulous consideration given the matter by the Appellate Division because the revolting nature of the crime ordinarily has a tendency to prejudice a defendant in his quest for justice. The circumstances likewise direct us to be scrupulously fair in determining whether any fundamental rights have been violated.
The appellant contends the trial court committed prejudicial error in admitting testimony as to an extraneous crime; in admitting prophylactics, toy whistles and a wine bottle into evidence; in refusing to permit defendant's counsel to read to the jury pertinent parts of exhibits in evidence; and in refusing to permit the defendant to testify as to his marital and familial status. It is also insisted that the remarks of the prosecutor in his summation impaired the defendant's substantial rights, and that the verdict was the result of mistake, as shown by markings on exhibits returned by the jury after their verdict, and was against the weight of the evidence.
These various points, we are satisfied, are submitted primarily to bolster the appellant's principal contention, which is that the trial court committed prejudicial error in refusing to permit the appellant's psychiatric witness to give an expert opinion, predicated in part on an examination of the appellant while under the influence of sodium pentothal, the so-called "truth serum," to the effect that the defendant was not a sexual deviate and had no inherent traits of perversion.
*413 I.
The indictment under consideration charged the appellant with an act of sodomy committed upon Robert.
At the trial Robert testified that immediately prior to the commission of the offense one Edward was present in the attic of the school where it allegedly took place and that Edward received like treatment from the appellant. Edward then testified to the acts committed upon him, although he was not named in the indictment on trial but in a separate instrument.
The appellant alleges error, contending that on the trial of a person for one crime, evidence that he was guilty of other crimes, even of a like nature, is irrelevant and inadmissible. E.g., State v. DePaola, 5 N.J. 1 (1950); State v. Julius, 3 N.J. Misc. 202 (Sup. Ct. 1925); State v. Fisher, 96 N.J.L. 5 (Sup. Ct. 1921); State v. Bloom, 89 N.J.L. 418 (Sup. Ct. 1916); State v. Raymond, 53 N.J.L. 260 (Sup. Ct. 1891). Cf. State v. Bartell, 15 N.J. Super. 450 (App. Div. 1951), affirmed 10 N.J. 9 (1952).
The reasoning based on the cases cited, however, overlooks the fact that a defendant's declarations and acts are admissible when they are part of the res gestae. Cf. State v. Stephan, 118 N.J.L. 592 (E. & A. 1937); Hunter v. State, 40 N.J.L. 495 (E. & A. 1878).
When the evidence of another crime tends to prove logically against the defendant some element of the crime for which he was tried, cf. State v. DePaola, supra, or where the evidence of another crime tends to show malice, ill will or intent on the part of the actor, State v. Donahue, 2 N.J. 381 (1949), or where a common scheme or plan embodies the commission of two or more crimes so related that proof of one tends to establish the other, State v. Noel, 102 N.J.L. 659 (E. & A. 1926); State v. DePaola, supra; State v. Donahue, supra, it becomes admissible.
It is equally well settled that where the commission of a former crime evinces a state of mind that is carried *414 forward and is shown to exist at the time of the commission of the crime charged, and the former crime is so related to the crime charged as to time, place and circumstances that the state of mind may be said to be continuous, evidence of the former crime is admissible. State v. Roscus, 16 N.J. 415 (1954); State v. McNamara, 116 N.J.L. 497 (E. & A. 1935), certiorari denied 299 U.S. 568, 57 S.Ct. 32, 81 L.Ed. 419 (1936); State v. Ehlers, 98 N.J.L. 236 (E. & A. 1922); State v. DeLiso, 75 N.J.L. 808 (E. & A. 1908).
We think the appellant cannot now as a matter of right contend that the admission of such evidence was error, inasmuch as counsel at no time objected to any of the questions asked the witness Edward with reference to his relations with the defendant, nor did he request that any instructions in reference thereto be given to the jury. State v. Rhams, 14 N.J. 282 (1954). We have nevertheless given defendant a full right to review and have considered the points raised on their merits.
II.
Two months after the acts alleged in the indictment, the police, through a forced entry into the appellant's workshop at the school where he was a custodian, found prophylactics and numerous toy whistles in separate drawers of appellant's work bench. These items were offered and admitted into evidence. The appellant denied ownership of the prophylactics in question and stated they were present in the shop when he started working there. The whistles, he said, were to give to children who from time to time assisted him in moving chairs.
It is insisted these articles were completely irrelevant and inadmissible, and in no wise connected with the indictment laid against the appellant. This is proved, the appellant insists, because the court struck them out during its charge and instructed the jury to pay no attention to them and did not permit them to be taken to the jury room.
Assuming error under the circumstances, we are satisfied the defect was cured when the items were stricken *415 from evidence and the jury instructed to disregard them. The record shows no objection to their admission into evidence and there was no request to charge with reference to them by the defense, the appellant in this regard apparently being satisfied with the disposition made by the trial court.
Physical evidence found in the possession and control of a defendant in a criminal case may be received into evidence, subject to the usual rules of relevancy, materiality and competency, the same as testimonial or other evidence. State v. Grillo, 11 N.J. 173 (1952); State v. Unger, 103 N.J.L. 18 (Sup. Ct. 1926), affirmed 104 N.J.L. 448 (E. & A. 1928); State v. Hill, 65 N.J.L. 626 (E. & A. 1900).
Robert testified each of the boys had been given wine taken from a bottle bearing the label "Gold Medal," and an empty wine bottle having a like label, which was found upon the school premises in a trash container in the boiler room, was admitted into evidence. Again there was no objection to its admission and there was a full, vigorous cross-examination in reference to it which almost destroyed its evidential value. Counsel made no application to the court to exclude the bottle in question from the jury's consideration, apparently being satisfied with the results obtained by the cross-examination, and we have difficulty in discerning reversible error for the reasons assigned. Under these circumstances, the appellant customarily would not now be heard to complain that his substantial rights were affected. State v. Picciotti, 12 N.J. 205 (1953); Roberts Electric, Inc., v. Foundation & Excavation Co., 5 N.J. 426 (1950); State v. Schmieder, 5 N.J. 40 (1950). Considering the question upon its merits, we reach a like result and find no error.
III.
The weather played a part in the prosecution, as both boys testified it was rain which caused them to discontinue playing basketball outdoors and to go inside where they met the appellant.
*416 To refute this testimony the defense entered United States Weather Bureau reports for the period in question. After these were admitted, defense counsel sought to read from them and was restrained from doing so by the trial court.
The trial judge had previously stated he would allow defense counsel to procure an expert to interpret the reports, which are rather complicated. This offer was not availed of, and the opposing attorneys agreed to submit the reports under a stipulation as to what they revealed and for any value the jury could derive from them. It is not clear from the record whether or not any stipulation as to the specific contents of the reports was communicated to the jury.
As the Appellate Division pointed out, this ruling was discretionary, and counsel for the appellant fully and freely discussed the reports in his summation to the jury and was not limited in any of his remarks or comments.
The original difficulty seems to have been encountered not in the defendant's reading the exhibit but in what was characterized as an endeavor to interpret the reports. In view of the unlimited right to comment in his summation to the jury, we see nothing so substantially prejudicial as to require a new trial.
IV.
When the appellant took the stand, he was asked if he were married and how many children he had. The State's objection to both questions was sustained by the trial court.
Basically this was error. The appellant had a right to show his marital status and his family relationship. It was a natural development in the case which should have been permitted without restriction. If State v. Randle, 128 N.J.L. 496 (Sup. Ct. 1942), is contrary to this view, it is overruled in that regard.
The record, however, shows the appellant answered that he was married before the objection was sustained, and the answer was not stricken from the record. It also appears that his son subsequently testified, without objection, in his *417 father's defense. We have difficulty, therefore, in determining that the error was so prejudicial under these circumstances as to warrant us in granting a new trial. We must conclude from the entire record that the jury was fully cognizant of appellant's marital and familial status.
V.
It is said the prosecutor in his summation prejudicially referred to exhibits not properly in evidence, but this was before they had been removed by the court's own motion and while they were part of the record. It is also insisted the prosecutor made statements of fact and alluded to irrelevant matters which were primarily calculated to arouse the passions and interfere with the reasoned judgment of the jury.
The record does not support this contention. For the proper administration of justice, it is necessary that counsel for the State be given considerable latitude as long as he stays within the evidence submitted and confines himself to what has been competently proven upon the record. We have not hesitated to reverse where the prosecutor's conduct went beyond the boundaries established by our adjudications, and we have repeatedly declared that he must consistently refrain from any conduct which is lacking in the essentials of fair play. State v. Landeros, 20 N.J. 69 (1955); State v. D'Ippolito, 19 N.J. 540 (1955).
Here, however, his summation, even though it included Biblical references and fictional characters for the purpose of emphasis, was within the boundaries of fairness as already defined. State v. Rios, 17 N.J. 572 (1955); State v. Bogen, 13 N.J. 137 (1953); State v. Vaszorich, 13 N.J. 99 (1953).
VI.
The Weather Bureau reports of the United States Department of Commerce were marked into evidence and parts of them were later checked in pencil by one of the jurors. *418 From these markings, counsel argues the jury must have acted under a mistaken interpretation of the reports, which would not have occurred had the trial court permitted defense counsel to read the reports after they went into evidence.
This point is intimately related to a matter already considered, the reasoning on which seems applicable and dispositive of the issue here raised.
Nevertheless, we have reviewed the markings and do not think they necessarily indicate any confusion among the jurors as to the significance of the reports. Each report uses the letter "T" to mean two different things: "Thunderstorm" or precipitation in an "amount too small to measure." The meaning depends on the column in which such symbol is used. One or more of the jurors drew an arrow unmistakably pointing directly to the definition of "T" as "an amount too small to measure." Obviously, the jurors were cognizant of this meaning of "T," and the report clearly states in what columns it is to apply. Thus, they could have accurately determined whether or not it had rained on a certain day covered by the reports.
VII.
It is urged the verdict be set aside as against the weight of the evidence.
The responsibility for determining the guilt or innocence of a defendant lies primarily with the jury and our review is restricted to a correction of any injustice resulting from the obvious failure of the jury to perform its basic function. The issue of credibility is customarily for the jury and not for us. Unless the record shows the result was one of mistake, partiality, prejudice or passion on the part of the jury, its verdict should not be disturbed by us. State v. Haines, 18 N.J. 550 (1955).
The two boys were subjected to a long, vigorous and extensive cross-examination which did not noticeably lessen the worth of their statements. The investigation and prosecution *419 were originally instigated by the police authorities and not by any apparently hostile witness. The oral testimony was supplemented by corroborative circumstances and events, and we can find nothing in the record which would warrant substituting our conclusions for the verdict reached by the trial jury. A thorough perusal of the entire record and a calm and dispassionate reassessment of the evidence bring us into accord with the jury's verdict.
VIII.
We now come to the pith of this appeal, which is the appellant's contention that the expert psychiatric evidence offered in his behalf was erroneously rejected by the trial court.
The psychiatrist employed by the defense was a licensed physician who at the time of trial had been practicing in the State of New Jersey for 14 years and had devoted the last ten years to the specialties of neurology and psychiatry. He testified that on many occasions he had examined and treated sexual perverts. His competency as an expert in the field of psychiatry was not disputed. In order to eliminate any possibility of misapprehension as to the ground for his ruling, the trial judge expressly stated: "I base my ruling on the fact that he in my opinion is a qualified psychiatrist."
As a foundation for the doctor's expert testimony relating to the disposition or traits of Sinnott, it was revealed that appellant had voluntarily submitted to two psychiatric interviews.
The first examination was described as neuropsychiatric in character while the second involved the intravenous injection of a barbiturate, sodium Pentothal. This drug is commonly misnomered the "truth serum."
In his brief, appellant states the expert opinion was offered to show: "(a) that the defendant was not a sexual deviate, (b) that defendant did not have the capacity to commit sodomy and (c) that defendant was credible." The record does not sustain the accuracy of this description of the purpose of the offer.
*420 In the course of his endeavors to win admission for the proffered testimony, defense counsel stated:
"That isn't the gravamen of the charge in this case, your Honor. Under the Statute, the charge being sodomy, the question involved is not a matter of defense but a question of whether or not there is an inherent trait of perversion or whether or not, from the doctor's examination, he determined that the defendant is a sexual pervert. That is the type of charge and the gravamen of the indictment.
* * * * * * * *
Q. Doctor, are you qualified to pass upon the question, if you know, of whether a person has sexual deviations or sexual deviation traits?
* * * * * * * *
Q. And as a result of your examination, first and second, did you come to a conclusion with regard to John Sinnott, and particularly whether or not he has any sexual depravity or any abnormal findings with regard to this man sexually?"
It is our clear impression that there was no intent to support the credibility of Sinnott by this offer, nor was there any indication that the doctor would testify appellant was incapable of committing the crime charged. Certainly, no evidence of physical or organic incapacity was adduced and, as will appear later on, the absence of any discernible deviational traits does not import absolute want of capability to commit a particular sex offense.
We think it is clear that the doctor's testimony was intended to be more or less equivalent to evidence of good character which, under the orthodox rule, generally may be demonstrated only by proof of a good reputation for morality in the community where the defendant is known and not by evidence of particular acts or conduct or by testimony from the personal knowledge of intimates. 7 Wigmore, Evidence (3d ed. 1940), §§ 1980, 1983. The doctor's testimony was designed to bear on the probabilities of appellant's having committed the crime in light of a medical finding that his mind was normal and disposition benign, at least in so far as sex offenses are concerned. This is the function of conventional evidence of good character in form of proof of high repute. The desired inferences, however weak, are that a man "of this stripe" would not be predisposed to *421 commit the particular offense and that, therefore, he in fact did not.
Offers of psychiatric testimony have played a prominent role in trials for sex offenses. There are at least three situations to be distinguished, only one of which necessarily involves questions as to the use and dependability of the so-called "truth sera."
The issue as to the potency of "truth serum" in relaxing the normal powers of mental censorship so that the truth will flow from the subject unimpeded by protective psychic entrenchments becomes important when the defendant has voluntarily submitted to such examination and his answers while under the influence of the drug are offered upon trial to demonstrate his innocence. Here, the answers are compatible with innocence and are offered for the truth of the matters asserted. This constitutes a direct attempt to clear the defendant of wrongdoing upon the strength of out-of-court statements offered for the veracity of their content, and the hearsay rule applies, at least in the absence of some showing of unusual trustworthiness. Research indicates that offers for this purpose have been uniformly rejected and with good cause. People v. McNichol, 100 Cal. App.2d 554, 224 P.2d 21 (Cal. D. Ct. App. 1950); State v. Hudson, 289 S.W. 920 (Mo. Sup. Ct. 1926); State v. Lindemuth, 56 N.M. 257, 243 P.2d 325 (N.M. Sup. Ct. 1952); Henderson v. State, 94 Okl. Cr. 45, 230 P.2d 495, 23 A.L.R.2d 1292 (Okla. Cr. Ct. 1951); Orange v. Commonwealth, 61 S.E.2d 267 (Va. Sup. Ct. App. 1950). See People v. Cullen, 37 Cal.2d 614, 234 P.2d 1 (Cal. Sup. Ct. 1951). Cf. Lindsey v. U.S., 237 F.2d 893 (9 Cir. 1956).
The general consensus appears to be that while the "truth sera" are valuable as a diagnostic aid because they tend to diminish the inhibitions of the subject being interviewed, they do not in any wise provoke a certainty of truth-telling on his part. Two professors of law and two professors of psychiatry at Yale have collaborated on an interesting article which is highly informative in this respect. Dession, Freedman, *422 Donnelly & Redlich, "Drug-Induced Revelation and Criminal Investigation," 62 Yale L.J. 315 (1953). Some fairly lengthy quotations seem justified.
"In summary, experimental and clinical findings indicate that only individuals who have conscious and unconscious reasons for doing so are inclined to confess and yield to interrogation under drug influence. On the other hand, some are able to withhold information and some, especially character neurotics, are able to lie. Others are so suggestible they will describe, in response to suggestive questioning, behavior which never in fact occurred. Notwithstanding these limitations, a drug-induced interview may be a valuable adjunct to an otherwise thorough psychiatric examination. In some instances it may enable a psychiatrist to ascertain more quickly the depth and type of mental illness. But drugs are not `truth sera.' They lessen inhibitions to verbalization and stimulate unrepressed expression not only of fact but of fancy and suggestion as well. Thus the material produced is not `truth' in the sense that it conforms to empirical fact. Finally, it is most important to realize that the conduct of the interrogation and the analysis of its verbal and behavorial content are exceedingly complex. The results can be evaluated properly only by trained and experienced experts who are aware of the manifold individual variations in response which occur." (pp. 319-20)
* * * * * * * *
"Considering the present state of scientific knowledge, as developed in the medical section of this article, a transcript of the interview should definitely not be admissible in evidence." (p. 325)
* * * * * * * *
"Thus the bare results of an interview under the influence of drugs should not, standing alone, be considered a valuable and reliable indicator of the facts. As a sole procedure, narcoanalysis is not sufficiently reliable. And where the drug-induced interview is a primary procedure and an otherwise full examination of the subject's personality structure is lacking, the results should not be considered; narcoanalysis should be used only as an adjunctive or auxiliary technique." (p. 342)
An article by the Assistant Medical Director of the Colorado Psychopathic Hospital, who was formerly a psychiatric consultant to the District Courts of Colorado, supports the conclusions reached by the Yale authors. McDonald, "Truth Serum," 46 J. of Crim. Law, Criminology and Police Science 259 (1955):
"The intravenous injection of a drug by a physician in a hospital may appear more scientific than the drinking of large amounts of *423 bourbon in a tavern, but the end results displayed in the subject's speech may be no more reliable. * * * The test is by no means reliable, and when used indiscriminately, it may cloud rather than clarify criminal investigation." (p. 259)
* * * * * * * *
"The suspect who is able to withstand competent and prolonged interrogation is usually able to withstand interrogation under narcosis. The confident criminal relishes the prospect of examination under drugs. He welcomes the opportunity of making self-serving statements in the pseudo-scientific atmosphere of the truth serum test. The only person likely to gain in these circumstances is the criminal who may strengthen the effectiveness of his denials in the eyes of a credulous jury." (p. 261)
It may be that in time the development of greater experience, more efficient drugs, and better techniques for their administration will accomplish a more complete control of the subject, resulting in the admissibility of his statements for the truth of their contents. If such halcyon days arrive, and we anticipate they might, little difficulty will be encountered in molding the rules of evidence to accommodate such scientific achievements when they have been generally accepted in the field as uniform and reliable. See Frye v. U.S., 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923).
Professor McCormick says:
"The further validation by experiment and practice, of the scientific theory of the trustworthiness of drug-induced statements, and the further development of the skill of technicians in administering the method, will presumably be followed by the development of appropriate legal doctrines permitting the uses of such statements in evidence." Evidence, 374 (1954).
Psychiatric testimony has received acceptance by the courts, however, where it is offered to impugn the credibility of witnesses in a cause, and this is especially, but not exclusively, see U.S. v. Hiss, 88 F. Supp. 559 (D.C.S.D.N.Y. 1950), so where sex offenses are involved. It is said in a "Comment" in 59 Yale L.J. 1324 (1950) that:
"Judicial appreciation of psychiatry has been most pronounced in sex offense cases. Recognizing that false sex charges may stem from the psychic complexes of a female who appears normal to the layman, courts have permitted psychiatrists to expose mental defects, hysteria, and pathological lying in sex prosecutrices." *424 Citing Jeffers v. State, 145 Ga. 74, 88 S.E. 571 (Ga. Sup. Ct. 1916). Accord, State v. Teager, 222 Iowa 391, 269 N.W. 348 (Iowa Sup. Ct. 1936). Mell v. State, 133 Ark. 197, 202 S.W. 33, L.R.A. 1918D, 480 (Ark. Sup. Ct. 1918); State v. Pryor, 74 Wash. 121, 132 P. 874, 46 L.R.A., N.S., 1028 (Wash. Sup. Ct. 1913); Rice v. State, 195 Wis. 181, 217 N.W. 697 (Wis. Sup. Ct. 1928). People v. Cowles, 246 Mich. 429, 224 N.W. 387 (Mich. Sup. Ct. 1929); State v. Wesler, 1 N.J. 58 (1948); Miller v. State, 49 Okl. Cr. 133, 295 P. 403 (Okl. Cr. Ct. 1930). Compare Lindsey v. U.S., supra.
This article recognizes that clinical examinations are the best test of a witness' credibility, but advocates that a psychiatrist be permitted to testify on the basis of a courtroom diagnosis, the theory being that he is better qualified to assess possible personality disorders on the "spur of the moment" than the lay jury. See U.S. v. Hiss, supra. A recent case note in 26 Ind. L.J. 98 (1950) advances the interesting proposal that complaining witnesses, at least in sex cases, be subjected to clinical examination by a court-appointed psychiatrist upon a showing that they are likely to be suffering from a mental abnormality which may affect credibility. We note the ingenuity without sanctioning the practicality of this idea.
Finally, we reach the situation presented by the facts sub judice. Here, the psychiatric testimony was not offered to impeach or to sustain the credibility of the appellant, nor were his utterances while undergoing narcoanalysis offered for their truth. Rather, the attempt was to show by expert opinion that appellant is not a sexual deviate and has no inherent traits of perversion which would lead him to commit sodomy. Similar to evidence of good moral reputation in the community, this testimony was designed to influence the jury to believe that the probabilities were against a man of this disposition having committed the particular act under trial.
"The basic premise is the one by which we order our daily lives, that people generally act in keeping with their character. * * * So it is generally agreed that the accused in all criminal cases may produce evidence of his good character as substantive evidence of his innocence." McCormick, supra, at 333.
*425 Some commentators have railed against the illogicality of restricting the method of proof of good character by the defendant to evidence of reputation. E.g., Wigmore, supra, at § 1986.
"This excludes evidence of specific acts or blameless life and rules out opinion-evidence as to the character of the accused for the trait in question based on the witness' knowledge and observation. Reputation-evidence, though muted and colorless, is thought to have the advantage of avoiding distracting side-issues as to particular acts and incidents in the past life of the accused." McCormick, supra, at 334-35.
The late Justice Jackson expressed in pungent terms a countervailing philosophy which is wary of change in this area:
"We concur in the general opinion of courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter-privilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice." Michelson v. U.S., 335 U.S. 469, 486, 69 S.Ct. 213, 93 L.Ed. 168 (1948).
Appellant refers us to People v. Jones, 42 Cal.2d 219, 266 P.2d 38 (Cal. Sup. Ct. 1954), which decided the very question here presented. There, the defendant was prosecuted for committing lewd acts upon a child under 14 years of age. Jones offered the testimony of a psychiatrist who had examined him on two occasions, once with the aid of an injection of sodium pentothal. The trial court refused to permit the psychiatrist to testify that Jones was, paraphrasing the words of counsel, not a sexual deviate and incapable of forming the necessary lustive intent. The Supreme Court of California reversed, overruling an earlier case in an inferior court, People v. Sellers, 103 Cal. App.2d 830, 230 P.2d 398 (Cal. D. Ct. App. 1951), and distinguishing *426 those California cases where the statements of the defendant made while under the influence of a drug were held inadmissible to prove the truth of the matters asserted.
It rested its decision primarily upon a California statute providing for the psychiatric examination of persons convicted of a sex offense involving a child below the age of 14. These proceedings, subsequent to conviction, were authorized in order to determine whether the offender was a "sexual psychopath." The court said:
"From evidence which tends to prove that a person is not a sexual psychopath, an inference reasonably may be drawn that he did not commit the act denounced by section 288. * * * The competency of expert opinion in this field of evidence is established by the statutory procedure for the determination of sexual psychopathy. * * * Accordingly, the evidence here excluded was relevant to the general issue before the jury and should have been admitted." (266 P.2d 42)
We have a similar statute in New Jersey. It provides:
"2A:164-3. * * *
Whenever a person is convicted of the offense of rape, carnal abuse, sodomy, open lewdness, indecent exposure or impairing the morals of a minor, or of an attempt to commit any of the aforementioned offenses, the judge shall order the commitment of such person to the diagnostic center for a period not to exceed 60 days. While confined in the said diagnostic center, such person shall be given a complete physical and mental examination.
2A:164-4. * * *
Upon completion of the physical and mental examination of such person, but in no event later than 60 days after the date of the order of commitment, a written report of the results thereof shall be sent to the court.
2A:164-5. * * *
If it shall appear from said report that it has been determined through clinical findings that the offender's conduct was characterized by
a. A pattern of repetitive, compulsive behavior; and
b. Either violence; or
c. An age disparity from which it shall appear that the victim was under the age of 15 years and the offender is an adult aggressor; *427 it shall be the duty of the court, upon recommendation of the diagnostic center, to submit the offender to a program of specialized treatment for his mental and physical aberrations."
The Jones case has been criticized by Falknor and Steffen, "Evidence of Character: From the `Crucible of the Community' to the `Couch of the Psychiatrist,'" 102 U. of Pa. L.R. 980 (1954), and praised by Curran, "Expert Psychiatric Evidence of Personality Traits," 103 U. of Pa. L.R. 999 (1955). Both articles contain reservations concerning the dependability of the offer in the Jones case, especially on the ground that there were only two consultations with the defendant, but Curran maintains that this objection should go to weight rather than to admissibility. Interestingly enough, Curran quotes a letter from Dr. Solomon, the psychiatrist used by Jones, to the effect that he had great difficulty in dealing with questions as to "incapability." Dr. Solomon writes: "* * * it is my opinion that anyone is capable of anything * * *"
As laymen in the field of psychiatry, we are dubious as to the validity of the offer in this case and question the sufficiency of the foundation laid below. We have already stressed the authorities reporting that the administration of "truth serum" does not necessarily produce the truth. Dession, Freedman, et al., emphasize over and over again that use of drugs is only valuable as an "auxiliary procedure in a thorough diagnostic examination." Apparently, however, they and others regard it as unimportant for present purposes that the drugs do not always conduce representations consonant with empirical fact. For diagnosis of personality traits and tendencies it is immaterial, in their opinion, whether the subject is falsifying, either of his own will or in accordance with suggestion. The drug is utilized not primarily to elicit truth but to enable the psychiatrist to more quickly probe the subject's subconscious mind.
The question remains, however, whether with or without the drug the diagnostic examination in this particular case could be considered "thorough" and dependable. No testimony was elicited on this point, and we are hardly in a *428 position to take judicial notice of the fact that it is common knowledge and agreed upon among experts that two psychiatric consultations are normally sufficient to determine the non-existence of deviational tendencies. Cf. State v. Dantonio, 18 N.J. 570 (1955); Cortese v. Cortese, 10 N.J. Super. 152 (App. Div. 1950). Our statute, of course, is not too helpful on this point because the Legislature has not defined what it considers to be a reliable examination, nor is there a discernible effort to change the usual rule of admissibility by providing for a post-conviction examination.
If anything, again referring to the issue of dependability, our statute contemplates a much more exhaustive examination than was here employed, because the convicted sex offender in New Jersey can be submitted to diagnosis in a center for up to 60 days.
Furthermore, we believe it is illogical to infer that the enactment of a statute of this sort means the Legislature deemed evidence of lack of deviational traits to be essentially relevant upon the trial of a sex offense. The Legislature evinced a belief that there was a good possibility that a convicted sex offender might be a habitual pervert, but this is a far cry indeed from saying the statute contemplates that lack of deviational traits probably means an accused did not commit a specific and impulsive act of perversion. Obviously, it was recognized that an act against nature might occur without being part of "a pattern of repetitive, compulsive behavior * * *." N.J.S. 2A:164-5(a).
Assuming proof of a proper foundation, however, we directly encounter an inquiry into the advisability of changing the customary rule to the extent of permitting the admission of the psychiatric testimony here offered. State v. Danser, 116 N.J.L. 487 (E. & A. 1936); State v. Williams, 16 N.J. Super. 372 (App. Div. 1951); State v. Barts, 132 N.J.L. 74 (Sup. Ct. 1944), affirmed 132 N.J.L. 420 (E. & A. 1945).
We are not so unreasonably fettered by tradition as to disregard an innovation when we are more than marginally assured it is a worthwhile contribution to our dedicated *429 effort in the betterment of the administration of justice. It is only after analytical and thoughtful consideration of all the reasons urged, plus a realization of the advancement of modern science, that we determine to exclude the expert psychiatric opinion testimony as to the lack of inherent tendencies toward perversion.
The full significance of the testimony offered, its arborescence and the reflected conflicts and inferences have been carefully weighed. From its most favorable aspect, such testimony has merely a tenuous probative value because there is still a substantial gap to be bridged between the evidence offered and the unlikelihood of the commission of a particular offense.
It appears to be conceded that the value of the diagnosis depends upon a complex of factors, including the effectiveness of the drug (where such is employed) on the subject and the skill and integrity of the attending psychiatrist. Dession, Cohen, et al., supra. Every one experienced in the law is familiar with the controversy which ensues between medical experts when the issue concerns only physical disabilities, which are more susceptible of intersubjective verification than elusive mental states.
It is fair to assume that if the existence or non-existence of deviational traits is permitted to become an issue at the trial, the State will not stand idly by without producing psychiatrists favorable to its cause. Resultantly, there will be a conflict between the psychiatric experts, making what in reality should be an insignificant inquiry into a prime and perhaps controlling issue.
In general, we adhere to the thoughts expressed by the Supreme Court of New Mexico in a case involving the problem of whether the introduction of drug-induced statements should be permitted. The court said:
"Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field where medical experts, apparently equally qualified, express such diametrically *430 opposite views on the same facts and conditions, to the despair of the court reporter and the bewilderment of the fact finder." State v. Lindemuth, supra, 243 P.2d, at page 336.
Moreover, if we admit testimony as to traits or susceptibilities in sex cases, there would seem to be no logical reason for excluding it from other criminal prosecutions. For instance, in People v. Villegas, 29 Cal. App.2d 658, 85 P.2d 480 (Cal. D. Ct. App. 1938), the defendant in a prosecution for robbery attempted to show he had committed the crime under the coercive influence of a co-defendant. To this end, he offered the testimony of a psychiatrist to the effect that he, the first defendant, was deficient in will power and in bad physical condition, leaving him without sufficient force to "resist the impulse of this other boy to take him out on these robberies." This offer was rejected.
Then too, there must be considered the propriety of the State's launching the first attack, contrary to the ordinary rules governing the admission of character evidence. State v. D`Ippolito, 19 N.J. 540 (1955). There is also the question as to how far the State may go in rebuttal with testimony which might prove devastating and detrimental to the defendant's rights.
Curran admits that a negative diagnosis has very limited significance in both medicine and law, and concedes the State's rebuttal will have greater probative value because of its positive quality, i.e., defendant does have deviational traits. Falknor cautions that the jury may readily get the erroneous impression from the State's expert that the defendant has in fact deviated and therefore tend to decide the case on this basis.
A problem is also raised concerning the extent of the cross-examination by the prosecutor of the defendant's expert as to the specific statements made during the course of the examination, and the many ramifications to which this inquiry would naturally lead, all of which might be extremely damaging to the defendant and most difficult for the trial court to control.
*431 Our conscientious consideration of all of the equations involved makes us conclude that it is better to abstain from pulling "one misshapen stone out of the grotesque structure," than to demolish the whole edifice and produce chaos.
The judgment is affirmed.
JACOBS and WEINTRAUB, JJ., concurring in result.
For affirmance Chief Justice VANDERBILT, and Justices OLIPHANT, WACHENFELD, BURLING, JACOBS and WEINTRAUB 6.
For reversal Justice HEHER 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544549/ | 184 Pa. Super. 75 (1957)
Commonwealth, Appellant,
v.
Fisher.
Superior Court of Pennsylvania.
Argued March 19, 1957.
June 11, 1957.
*76 Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, and ERVIN, JJ. (WATKINS, J., absent).
*77 Marvin Garfinkel, Deputy Attorney General, with him Thomas D. McBride, Attorney General, for appellant.
No argument was made nor brief submitted for appellee.
OPINION BY RHODES, P.J., June 11, 1957:
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Schuylkill County sustaining an appeal by appellee, Kenneth Fisher, from an order of the Secretary of Revenue whereby the motor vehicle operator's license of appellee was suspended for three months for reckless driving. The action of the Secretary of Revenue was reversed because, as the court held, appellee did not operate his automobile at the time and place charged in a reckless manner.
The facts are admitted.
Appellee was involved in an accident about 1:30 on the morning of June 5, 1955, while driving his automobile on Route 122 in North Manheim Township, Schuylkill County. It left the highway and, after knocking down several guard posts and guard rails, went over a bank traveling approximately one hundred feet to the ground below. From the time the automobile left the highway until it came to a stop it traveled four hundred forty-five feet. Before the accident appellee had consumed ten or twelve glasses of beer at a club. Appellee fell asleep while driving the automobile and *78 did not awake until the automobile came to rest at the foot of the embankment.
The recited facts fail to afford a justifiable factual basis for the order of the court below. See Bureau of Highway Safety v. Wright, 355 Pa. 307, 311, 49 A.2d 783. The order will be reversed.
The present appeal comes before this Court under the 1956 amendment (Act of May 29, 1956, P.L. (1955) 1850, § 1) to section 616 of "The Vehicle Code" of May 1, 1929, P.L. 905, 75 PS § 193. This section as amended provides:
"Any person, whose operator's license or learner's permit has been suspended, or who has been deprived of the privilege of applying for an operator's license or learner's permit under the provisions of this act, shall have the right to file a petition, within thirty (30) days thereafter, for a hearing in the matter in the court of common pleas of the county in which the operator or permittee resides, other than Allegheny County, and in Allegheny County, in the county court of Allegheny County. Such courts are hereby vested with jurisdiction, and it shall be their duty, to set the matter down for hearing upon thirty (30) days' written notice to the secretary, and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is subject to suspension of operator's license or learner's permit, or whether he may be deprived of the privilege of applying for an operator's license or learner's permit by the secretary under the provisions of this act. The jurisdiction of the county court of Allegheny County conferred hereby shall be exclusive within the territorial limits of its jurisdiction.
"Any party aggrieved by a decision of a court of common pleas or of the county court of Allegheny County shall have a right of appeal to the Superior *79 Court: Provided, however, That nothing contained herein shall affect the disposition of any matter pending before the Supreme Court at the time of the enactment of this amendment." We have italicized the 1956 amendment.
The power and the duty of a court of common pleas or of the County Court of Allegheny County on appeal from a suspension of an operator's license by the Secretary of Revenue under this section of the Code have been stated by our Supreme Court in numerous decisions. The lower court hears the case de novo, but, while it may act independently in the exercise of its discretion, it must nevertheless act in accordance with the evidence and the circumstances presented. Com. v. Moogerman, 385 Pa. 256, 262, 122 A.2d 804.
In Com. v. Strobel, 375 Pa. 292, 294, 100 A.2d 43, 44, our Supreme Court, in an opinion by Mr. Justice JONES, now Chief Justice, said: "After the appeal has been heard de novo, it is the duty of the hearing judge to make findings of fact from the testimony whereon he may reasonably base his ultimate conclusion as to whether the suspension of the operator's license was warranted."
The power conferred by The Vehicle Code upon the Secretary of Revenue to suspend operating privileges is an administrative function comparable to that exercised by the Pennsylvania Public Utility Commission, the Workmen's Compensation Board, and other administrative agencies. Com. v. Emerick, 373 Pa. 388, 392, 96 A.2d 370.
It is to be noted that, prior to the 1956 amendment to section 616 of the Code, the statute contained no express right of appeal from the decision of the lower court. The Supreme Court, as to the scope of appellate review, said in Com. v. Emerick, supra, 373 Pa. 388, 398, 96 A.2d 370, 375: "`. . . while an appeal to *80 the common pleas court is expressly authorized by Section 616 of The Vehicle Code, the statute is silent with respect to the right of the licensee to appeal from the order there made. However, it is well settled that where the right of appeal is not provided by statute, but is not prohibited, it is our duty to examine the testimony to determine whether the findings of the court below are supported by competent evidence, and to correct any conclusions of law erroneously made.'" Such proceedings did not come before the Supreme Court by appeal but on certiorari in its broadest sense. Com. v. Strobel, supra, 375 Pa. 292, 294, 100 A.2d 44; Kaufman Construction Company v. Holcomb, 357 Pa. 514, 517, 55 A.2d 534.
These are statutory proceedings and the Act now provides for "a right of appeal to the Superior Court." Although all appellate proceedings are now called an appeal by the Act of May 9, 1889, P.L. 158, § 1, 12 PS § 1131, this did not change the existing right of review, its extent in cases already provided for, or modify in any manner its exercise; dissimilar proceedings were merely called by the same name. Rand v. King, 134 Pa. 641, 646, 19 A. 806; Revocation of Mark's License, 115 Pa. Super. 256, 263, 176 A. 254. "At the present time, in our law, the word `appeal' has no conclusive meaning, for, since the Act of May 9, 1889, P.L. 158, a writ of error and a certiorari, as well as an appeal proper, are all designated `appeals' . . .; therefore, it is necessary in each instance to look at the particular act of assembly giving the right of appeal to determine just what powers are to be exercised by the appellate court." In The Matter of The Franklin Film Manufacturing Corporation, 253 Pa. 422, 426, 98 A. 623, 624. See McCauley v. Imperial Woolen Company, 261 Pa. 312, 320, 104 A. 617. The Legislature, by the Amendatory Act of 1956, did not indicate a change in the scope *81 of appellate review as previously exercised by the Supreme Court; the Legislature is presumed to have known the nature and extent of such review. The Act merely designated the Superior Court as the appellate tribunal for such purpose. It follows that the scope of our review is the same as heretofore in the Supreme Court. See Com. v. Emerick, supra, 373 Pa. 388, 398, 96 A.2d 370; Katharine Water Company, 32 Pa. Super. 94, 96; Reed v. Reed, 30 Pa. Super. 229, 232.
The offense of reckless driving for which appellee's operating privileges were suspended by the Secretary of Revenue is defined in section 1001 (a) of The Vehicle Code, as amended by the Act of August 24, 1951, P.L. 1368, § 28, 75 PS § 481, as follows: "Reckless driving is unlawful, and, for the purpose of this act, is construed to include the following: (a) Any person who drives any vehicle or street car or trackless trolley omnibus upon a highway carelessly disregarding the rights or safety of others, or in a manner so as to endanger any person or property."
Referring to this section as amended in 1951, we said in Com. v. Forrey, 172 Pa. Super. 65, 68, 92 A.2d 233, 234: "Conduct charging a driver with reckless driving amounting to culpable negligence under the 1951 amendment, therefore, need not be wilful or wanton; to sustain the charge however, there must be evidence of negligent acts, amounting to a careless disregard of the rights or safety of others, the consequences of which could reasonably have been foreseen by the driver of the vehicle."
The appellee testified in the court below that he fell asleep and did not know what had happened until his automobile came to rest over the embankment after going through the guard rails. He also testified that he had had ten or twelve glasses of beer previous thereto. By his own admissions he was guilty of gross negligence *82 and a careless disregard of the rights and safety of others. It is impossible to conceive how anyone operating a motor vehicle on a public highway while asleep, and thus incapacitated to drive, could be anything less than a menace to other users of the highway and guilty of reckless driving as defined by the Code.[1] In Blood v. Adams, 269 Mass. 480, 169 N.E. 412, 413, appears the following confirmatory statement: "In the exercise of ordinary care an operator of an automobile must be able to anticipate what is coming, to see what is present and to remember what is past. Voluntarily to drive an automobile on a public street at any time of day or night with eyes closed, or to yield to sleep while operating such kind of dangerous machine as is an automobile on a public highway, is to be guilty of a degree of negligence exceeding lack of ordinary care, and is a manifestation of recklessness . . ."
On the uncontradicted facts of this case there is no permissible conclusion other than that appellee drove his automobile on the highway in a reckless manner, carelessly disregarding the rights and safety of others. The action of the Secretary of Revenue was improperly reversed by the court below on a mistaken assumption. See Bureau of Highway Safety v. Wright, supra, 355 Pa. 307, 311, 49 A.2d 783.
The order of the Court of Common Pleas of Schuylkill County is reversed, and the order of the Secretary of Revenue is reinstated. A reinstated suspension shall be issued within thirty days.
NOTES
[1] See Scott License, 6 Pa. D. & C. 2d 235 (opinion by President Judge KNIGHT of the Court of Common Pleas of Montgomery County). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544568/ | 133 F.2d 1015 (1943)
SEELE
v.
UNITED STATES.
No. 12476.
Circuit Court of Appeals, Eighth Circuit.
February 23, 1943.
*1016 *1017 Bryan Purteet, of St. Louis, Mo. (Joseph C. Hopewell, of St. Louis, Mo., on the brief), for appellant.
Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.
Before GARDNER, RIDDICK, and VAN VALKENBURGH, Circuit Judges.
VAN VALKENBURGH, Circuit Judge.
The appellant, Eugene William Seele, Jr., appeals from a judgment of conviction after trial before a jury in the District Court of the United States for the Eastern District of Missouri. The indictment, returned at the March Term, 1942, of said court, in one count charged appellant, a person liable for military training and service in the Land and Naval Forces of the United States, and a registrant with Local Board No. 5, University City, St. Louis County, Missouri, with a violation of the provisions of Section 311 of Title 50 U.S.C.A.Appendix, in that he failed and refused to report for inductment into the Military Service of the United States when ordered so to do in accordance with the provisions of the Selective Training and Service Act of 1940, and the amendments thereto, 50 U.S.C.A.Appendix, § 301 et seq.
Upon registering with Local Board No. 5 of said St. Louis County, appellant filed his Selective Service Questionnaire June 23, 1941. In this questionnaire he made the following general statements:
He said he was clearing-house clerk in a large bank, to-wit, The Mississippi Valley Trust Company of St. Louis, Missouri. In this position he operated adding and proof machines and sorted checks to bank requirements; that he had worked three and one-half years in that job, and expected to continue indefinitely in it; that his salary was seventy-five dollars per month; and that the other business, or work in which he was then engaged, was photography, which he preferred. He listed himself, by reason of religious training and belief, as conscientiously opposed to participation in war in any form, and therefore claimed *1018 exemption from combatant training and service; he said he was a minister of religion and customarily served as such. That he had been a minister of Jehovah's Witnesses for two years, but had not been formally ordained, and was not a student preparing for the ministry in a theological or divinity school. He injured his neck in a polo game about two years before that and thought a resulting "subluxated vertebrae might have some effect on my classification".
There are in his questionnaire various statements as the bases for his religious attitude, among them, that "I want no part in war in any form", and "I believe in the use of force only in defense of myself, my family, and my personal property if endangered and threatened".
His physical examination, July 16, 1941, reported no injury to his back to which he referred. September 8, 1941, the Local Board placed him in Class 1-A-0, by a vote of 3 to 0. September 26, 1941, he signed and filed a written appeal to the Board of Appeal. The record minute of action by the Board of Appeal shows that that Board classified the registrant in class 1, Subdivision A, by a vote of Yes 5, No 0, dated February 19, 1942. October 30, 1941, the following entry by the Local Board appears in the record: "This Board is not in favor of changing classification due to being a C. O. Please note his name does not appear in the list of members of Jehovah's Witnesses. We feel he is using his C. O. as a subterfuge and think his induction will materially change his views about fighting to protect his country".
As shown above, the Board of Appeal reviewed the file before the Local Board and determined that the registrant should not be classified in Class 4.
Mr. Frank A. Thompson, a lawyer of St. Louis County, Missouri, was a Special Assistant Attorney General of the United States with the title of "Hearing Officer". To him was referred the claim of appellant as a conscientious objector. The hearing was held December 10, 1941. Seele appeared and stated that he did not wish to press his claim as a conscientious objector, but did want to stand on his claim as a Minister of Jehovah's Witnesses. Thereafter appellant executed the following instrument of withdrawal:
"To Whom It May Concern:
"The undersigned states with reference to his classification under the Selective Service Law that he does not claim exemption as a Conscientious Objector, and wishes to withdraw his claim for such exemption.
"(Signed) Eugene Seele, Jr.,
"January 19, 1942".
The Attorney General's office, therefore, on or about February 7, 1942, returned the case to the Board of Appeal "without recommendation of the Department of Justice".
During the pending of his matter he submitted various letters and documents to both Local and Appeal Boards, which, as appears from the record, were duly received and considered by those Boards. They appear in the record before us as Exhibits A, B, C, D, E, F, H, and I. Exhibit "A" is a document "To Whom it May Concern", issued June 16, 1941, by Watch Tower Bible and Tract Society, Incorporated, for charitable, religious and scientific purposes, under the hand of "Emerson L. Knost, Company Servant". This document proclaims that appellant then was "an ordained minister of the Gospel sent forth in conjunction with the above named organization to preach the gospel as commanded by the Lord Jesus at Mathew 24, 14, * * * by calling upon the people at their homes".
Exhibit "B", dated September 20, 1941, addressed to Local Board No. 5, announced that he did not accept his classification in 1-A-0; that he could not obtain the proper forms to make his appeal, and this letter was to serve as his appeal. He announces that he "will never waver from my consecration to Jehovah".
Exhibit "C" is his letter to the Board of Appeal, received December 27, 1941, in which he says it may help the Board, in considering his reclassification from 1-A-0 to 4-D, to be advised that "I have been a full time witness for Jehovah since the 14th of this month, December, 1941. I then gave up my secular work to become a minister to preach the gospel of God's Kingdom".
In Exhibit "D", received by the Local Board February 5, 1942, he states that he had theretofore notified the Board that he had discontinued secular work and was "putting in full time preaching the Gospel of God's Kingdom"; that his ministry papers were in process of being filed, and asked that his case be reopened for the purpose of reconsidering his classification at the time when his name should be added to the list of ordained ministers.
*1019 Exhibit "E" is defendant's letter of March 10, 1942, enclosing to Local Board No. 5, Exhibit "F" which is the formal certificate of ordination issued March 7, 1942, by the Watch Tower Bible & Tract Society, Inc., through its "Superintendent of Evangelists". The letter also states that Seele has submitted affidavits to be accompanied by an application of the Society to have his name added to the list of pioneers, certified to state headquarters.
Exhibit "H" is a letter from the Selective Service State Director to Local Board No. 5, dated June 30, 1941, stating for the information of the Board that there was a small group of Jehovah's Witnesses, known as "pioneers" who occupied a position similar to an ordained minister. Their names should be found upon the list at state head-quarters. The letter also states that "the question of whether or not they stand in the same relationship as regular or duly ordained ministers in other religions, must be determined by the Local Board, in each individual case".
Exhibit "I" is a letter from the Deputy Director of National Headquarters of the Selective Service System, dated June 12, 1941. After stating that it is impossible to make a general determination, this letter advises, in an effort to assist the Local Boards, that whether or not Jehovah's Witnesses "stand in the same relationship as regular or ordained ministers in other religions must be determined in each individual case by the Local Board, * * * whether or not (among other things) they perform functions which are normally performed by regular or duly ordained ministers of other religions".
These Exhibits were offered in evidence by appellant; the government objected to their admission as constituting no legal defense; the objections were sustained, and exceptions preserved. The case was submitted to the jury. A verdict of guilty was returned, and judgment followed.
In this appeal the following points are relied upon by appellant in brief and argument:
"1. The indictment is defective because it does not negative the exceptions and exemptions contained in the Selective Service Act.
"2. Section 11 (U.S.C.A. 50 appendix 311) is unconstitutional and void because it delegates authority to individuals and boards to make any kind of an order or direction and undertakes to punish persons who violate any order or direction given by such individuals and boards, without regard to the reasonableness of such order or direction and without regard to whether such order or direction has any basis in law.
"3. The government's evidence was insufficient and the court should have sustained appellant's demurrer to the evidence.
"4. The court erred in refusing to permit defendant to prove that Local Board No. 5, University City, Missouri, the Appeal Board and Draft Officials acted arbitrarily and capriciously without foundation of law and refused to give defendant a hearing in arriving at his classification, so-called.
"5. The court's charge to the jury was erroneous.
"6. The judgment and sentence of the court is void."
1. It is now the settled rule, as declared by the Supreme Court of the United States, "that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it." McKelvey et al. v. United States, 260 U.S. 353, 357, 43 S. Ct. 132, 134, 67 L. Ed. 301. See, also Nicoli v. Briggs, 10 Cir., 83 F.2d 375, 379, and Rase v. United States, 6 Cir., 129 F.2d 204, 207.
This point is, therefore ruled against appellant.
2. Substantially this same charge of unconstitutionality was leveled against the Selective Draft Law of 1917, 50 U.S. C.A. § 226 note. In the Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S. Ct. 159, 62 L. Ed. 349, L.R.A. 1918C, 361, Ann.Cas.1918B, 856, the constitutionality of that Act was sweepingly upheld. There, as here, the main contention was that the Act vests both legislative and judicial power in administrative officers, without reserving to the courts unlimited power to review such administrative decisions by according to the accused person the right of trial by jury.
"The statutes and regulations under which the change in a citizen's status from *1020 civil to military takes place must be interpreted with a full and fair regard for the rights of the individual, but they will not be given an overtechnical construction which is not necessary for such protection and which merely results in hampering the government". United States ex rel. v. Drum, 2 Cir., 107 F.2d 897, 898, 129 A.L.R. 1165, certiorari denied 310 U.S. 648, 60 S. Ct. 1098, 84 L. Ed. 1414. See, also, United States v. Lambert, 3 Cir., 123 F.2d 395 and United States v. Herling, 2 Cir., 120 F.2d 236, and cases cited.
3. Under this heading, and claim that the government's evidence was insufficient, counsel for appellant presents a contention not urged in the trial court, to-wit, that the Local Board did not comply with paragraphs 389, 390, and 391, Section 31, Vol. 3 of Selective Service Regulations, which prescribe formal steps for determining delinquency and reporting the same to the United States Attorney for his action.
In the instant case, however, all the facts essential to confer jurisdiction of this offense are so plain that a more formal recital, and a mere technical observance of procedure was not required. The appellant was duly classified by the Local Board, and that classification was unanimously confirmed on appeal. By order March 21, 1942, he was ordered to report for induction April 1, 1942, at 6:20 A. M. Notice was duly sent to him. March 31, 1942, he addressed to the Local Board a formal response to this order in which he declared himself "strictly neutral in wars of these nations"; that he would not change or alter his decision for the reasons therein stated, and that he would be "unable to report at 6:20 A. M. April 1, 1942". In view of this specific announcement of his defiance of the Board's order, his delinquency was duly reported to the United States Attorney and this prosecution resulted.
4. This specification presents what is regarded by counsel for the government as the only serious question in the case, to-wit, whether the trial court erred in rejecting the testimony offered by appellant in an effort to show (1) that he was an ordained minister, and, therefore, entitled to a deferred classification in Class 4-D, and (2) that the Board acted in an arbitrary and capricious manner in that "the clerk of the Board threatened and intimidated" appellant refusing "to give him advice or to furnish him the blanks and forms necessary to take the proper action" for appeal from the classification of the Local Board. Seele, in his testimony, was asked this question by his counsel:
"With what gentleman did you usually talk when you went to the Board? A. I believe his name is Mr. Poston.
"Q. Tell the jury the manner in which Mr. Poston received you and treated you?
The government objected that "it constitutes no defense in this case". The objection was sustained, and appellant made the following offer of proof: "I will prove by the witness that this man, Poston, threatened and intimidated this witness when he presented himself to the Board; that he made as if to grab him with his arm; that Poston told him that they didn't have any time for conscientious objectors there at the Board; that Poston refused to give him the advice as to how to proceed before the Board, and told him that he would have to find out for himself".
This was objected to as calling for a conclusion and constituting no defense to this action. Counsel further offered to prove that Seele repeatedly requested permission to go before the Local Board, but that Poston refused to allow him to go before the Board, told him he had no right to do so, and "generally conducted himself in a manner designed to intimidate this defendant."
To these offers of proof the district attorney objected "for the reason that the evidence shows the man Poston was merely a clerk of the Board, who had no judgment or discretion exercised no judgment. Under the laws and regulations they are not entitled to a hearing before the Board as if it were a jury trial, but the Board has to consider all the documents which the registrant files, and we object for the reason that if this registrant has been deprived of his rights, which the government denies, his remedy is other than a defense to this criminal prosecution". This objection was sustained, as were others, upon the ground that "this court has no authority to review the rulings of the Selective Service Board". Testimony theretofore introduced showed that the man Poston, prior to his induction into the army, was a clerk in the service of the Local Board, and was not a member of that Board. The offers of proof fell far short of establishing the charge of threats, intimidation, and physical misconduct on *1021 the part of the clerk, much less, by imputation, on the part of the Board itself.
Furthermore, appellant did take his appeal in due course; and, in addition to the showing made by his questionnaire, the Boards received, and presumably considered, all the letters and other documents embraced in the Exhibits filed by appellant. The contention of appellant is that this showing conclusively established that he is a minister, both regular and ordained, within the purview of the Selective Service Act, and that in reversing this case the judgment of the courts should be substituted for that of the Boards created by that Act as the final fact-finders under its provision. If error be committed by the Local Board the remedy of appeal is provided; and while, in the last analysis, courts can prevent arbitrary action, if it exist, from being finally effective, "a registrant cannot come to a court for such relief until he has exhausted all available and sufficient administrative remedies". Johnson v. United States, 8 Cir., 126 F.2d 242, 247. It is true that appellant has exhausted such administrative remedies, but it is the generally accepted rule that, under the Selective Training and Service Act, no review of findings of Local Draft Boards upon any classification or the denial of an exemption is committed to the courts, and relief may be granted the registrant only when the Local Draft Board has acted arbitrarily and capriciously and without substantial evidence. Johnson v. United States, 8 Cir., 126 F.2d 242; Rase v. United States, 6 Cir., 129 F.2d 204; United States v. Grieme, 3 Cir., 128 F.2d 811, and many others.
This is in accord with the pronouncement of the Supreme Court that where the decision of a Director is final and conclusive on any specific matter under an Act, it is not subject to judicial review, "at least unless the decision be wholly unsupported by evidence, wholly dependent upon a question of law, or clearly arbitrary or capricious". Silberschein v. United States, 266 U.S. 221, 45 S. Ct. 69, 69 L. Ed. 256.
The Selective Training and Service Act of September 16, 1940, 50 U.S.C.A. Appendix, § 305(d) provides: "Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act."
The regulations prescribed by the President define regular and ordained ministers as follows:
"B. A `regular minister of religion' is a man who customarily preaches and teaches the principles of religion of a recognized church, religious sect, or religious organization of which he is a member, without having been formally ordained as a minister of religion; and who is recognized by such church, sect, or organization as a minister.
"C. A `duly ordained minister of religion' is a man who has been ordained in accordance with the ceremonial ritual or discipline of a recognized church, religious sect, or religious organization, to teach and preach its doctrines and to administer its rites and ceremonies in public worship; and who customarily performs those duties".
In the course of his very excellent opinion for the Court of Appeals for the Sixth Circuit, Rase v. United States, 129 F.2d 204, 209, Circuit Judge Simons says: "The phrase `minister of religion' as used in the Act is to be interpreted according to the intention of the Congress, and not by the meaning attached to it by the members of any particular group. Congress undoubtedly intended to exempt such persons as stand in the same relationship to the religious organizations of which they are members, as do regularly ordained ministers of older and better known religious denominations. This is borne out by the provision for the exempting of theological or divinity students. If we understand the appellant's argument, every member of his sect is a minister of religion and so entitled to exemption. No differentiation is to be recognized between shepherd and flock or between pastor and congregants. Followed to its logical conclusion, this would mean that all of the members of any religious group which imposes upon its adherents an obligation to teach and preach its beliefs or to make converts, are exempted under the Selective Service Act without regard to whether such activity constitutes their sole or principal vocation. It is inconceivable that it was the intention of the Congress to incorporate in the Act an exemption so broad and all-embracing".
*1022 The obligation of a Local Draft Board to grant a registrant a fair hearing on the matter of classification does not mean a trial by a court, or a trial in any strict or formal sense. Id., 129 F.2d loc. cit. 205. Nor is the Draft Board required to weigh the evidence. Checinski v. United States, 6 Cir., 129 F.2d 461. It should be remembered that immunity from military service arises not as a matter of constitutional grant, but by virtue of Congressional deference to conscientious religious views. Rase v. United States, supra. The burden, therefore, is not upon the government, but upon one claiming exemption to bring himself clearly within the excepted class.
"The object of Congress in the enactment of the statute is not to be thwarted because a religious society chooses to designate its ordinary members as ordained ministers". Buttecali v. United States, 5 Cir., 130 F.2d 172, 174.
In all the Exhibits filed by appellant, containing letters of advice from officers and directors of the Selective Service, it was expressly enjoined that the question of whether or not the claimants stand in the same relationship as regular or ordained ministers in other religions, and whether or not they perform functions which are normally performed by regular or duly ordained ministers of other religions, must be determined in each individual case by the Local Board. There was before the Draft Boards in the instant case abundant evidence from which they could properly conclude that this affiant was not a minister within the intention of Congress and the terms of the Selective Service Act. Such has been the conclusion of courts in other circuits in cases in which members of this same group have appeared as claimants for exemption.
Furthermore, the acts of appellant throughout the proceedings were not such as to inspire confidence in his sincerity, other than his aim to escape military service. He relied at first upon his alleged physical ailment, and his claim as a conscientious objector to military service. In June, 1941 (Exhibit "A"), the Watch Tower Bible & Tract Society, through a person, claiming to be a "Company Servant", certified that he was then an ordained minister a certificate in conflict with his own questionnaire statement and the later official action of the same Society March 7, 1942 (Exhibit "F").
In his letter of March 10, 1942, enclosing this notarized ordination he advised the Local Board that he had submitted affidavits accompanying an application to have his name added to the list of pioneers certified to state headquarters. No such certification appears in the record. According to his own admissions, February 3, 1942 (Exhibit "D"), he did not discontinue secular work and devote full time to preaching the gospel until in December, 1941. We conclude that the entire record before the Selective Boards discredits his claim that he is a "minister" within the meaning of the Act and the Regulations prescribed.
The charge of the trial court sets forth correctly the grounds upon which the defendant could be found guilty: "The court charges the jury that, if you find and believe from the evidence that the defendant, Eugene William Seele, Jr., on or about the 16th day of October, 1940, was duly registered by the Selective Service Board No. 5 of St. Louis County, Missouri, and that he thereafter duly filed his questionnaire; and that he was thereafter classified in Class 1-A by said Board; and that he was thereafter allowed an appeal to the Board of Appeals; and further find that the Board of Appeals affirmed his classification in Class 1-A; and if you further find that he was then notified of his classification by the Local Board; and that thereafter he was duly notified by said Local Board No. 5 to report for induction into service on or about the first day of April, 1942; and further find that the defendant thereafter knowingly, wilfully, unlawfully and feloniously failed and refused to report for service in obedience to said order of said Local Board, then you are instructed that you must find the defendant guilty of the charge set out in the indictment; and, if you do not so find, then you should acquit the defendant."
Counsel for appellant excepted to the following paragraph of the charge: "The court further charges the jury that you should not take into consideration any reasons offered by the defendant for his failure and refusal to report for induction into military service; that it is the function of the Selective Service Boards, duly appointed and organized according to law, to classify registrants and to fix the time of their induction into service; and that the defendant had no right to determine for himself whether he should, or should not, be given any particular classification".
*1023 While this language standing alone is not the most fortunate that could have been selected, it must be considered in connection with the entire charge, and more particularly in view of the single objective aimed at by defendant's counsel, which was to review the finding of the Draft Boards as to the classification made. Another exception preserved was the following: "The court erred in not instructing the jury that ministers are exempt from military service."
Such was the substantial burden of the requests for instructions offered, which invited the jury to substitute its judgment for that of the exclusive fact-finding agencies, established by the Act. They were properly over-ruled. In the face of this record could the jury possibly be confused as to the issue? The trial court made it clear to the jury that it is the exclusive function of the Selective Service Boards to classify registrants and to fix the time of their induction into the service; and that the defendant had no right to determine for himself whether he should be given any particular classification.
In view of the earnest insistence of this appellant and his counsel, we have perhaps given unnecessary space to this consideration. Our conclusion accords fully with that of other circuits which have had before them similar claims to exemption and deferment by members of this same Corporate Society.
The Constitution gives to Congress the power to declare war and to raise and support armies, and these provisions embrace authority "To make all Laws which shall be necessary and proper for carrying [these powers] into Execution". Constitution, Article 1, § 8. In time of war, concern for the public safety demands promptness and precision in the exercise of these powers. In arriving at our conclusion in this case we have been governed by the clear conviction that the Draft Boards, Local and Appeal, upon whom was conferred final power to classify this registrant, acted with full jurisdiction of the subject matter, and not in an arbitrary and capricious manner, nor without ample evidence to support their conclusions.
Finding no reversible error in the record we conclude that the judgment should be affirmed and it is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544581/ | 133 F.2d 690 (1943)
CARROLL
v.
UNITED STATES et al.
No. 121.
Circuit Court of Appeals, Second Circuit.
February 9, 1943.
*691 Russell C. Gay, Mathias F. Correa, U. S. Atty., and Silliman, Gay & Silliman, all of New York City (Sherwood E. Silliman, of New York City, of counsel), for appellants.
Silas B. Axtell, of New York City (Dominick Blasi, of New York City, of counsel), for appellee.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal by the United States and the Waterman S. S. Agency, Ltd., from a decree in the admiralty awarding damages against both respondents for personal injuries suffered by the libellant while he was a steward on board the S. S. "Gallant Fox," a vessel owned by the United States, and operated by the Agency under the Panamanian flag. The libel was filed under the Suits in Admiralty Act, 46 U.S. C.A. § 741 et seq., and alleged that the vessel at the time of the filing of the libel "is in or soon will be within the jurisdiction of the United States and of this Court": i. e. the Southern District of New York; and that the libellant had been scalded by hot coffee while on duty as a steward on the 4th day of December, 1941, his injuries being caused by negligently putting a coffeepot upon the floor of the galley during a storm. The libel contained a second count for failure to give medical care to the libellant while on board and after the ship docked, and a third count for maintenance and cure. The libel was filed on March 10th, 1942 and was amended at the trial on June 23, 1942, by striking out an allegation that the libellant elected to proceed in rem, and adding that the suit was brought, not only under the Suits in *692 Admiralty Act, but under the Jones Act, § 688, Title 46 U.S.C.A., and under "General Maritime Law." The case was tried to a judge and the following facts appeared:
The libellant, a citizen of Eire where he had a wife and family, signed articles as captain's steward for a voyage on the "Gallant Fox" on the 19th of November, 1941. The ship left port on the 28th and experienced very heavy weather on the 4th of December, with winds of hurricane force which made her roll 45 degrees or more. On the morning of that day the cook had for safety set a pot of coffee on the floor of the galley, taking it from the range where he thought that it would be more likely to upset. The libellant went into the galley to get the captain's breakfast and, while so engaged, a roll or lurch of the ship sent the coffee-pot sliding along until it struck his right foot and upset the coffee into his boot, seriously scalding him. He suffered great pain from the burn and from such dressings as the master and officers were able to give him, until the ship reached New York on the 23rd. He was not taken ashore till the evening of the next day, when he was removed to the Broad Street Hospital, and two days later to the Marine Hospital, where he was treated until February 17, 1942, when he was discharged with the prognosis that he would be able to walk after about three weeks. While in the hospital he was treated in various ways, among others by injecting alcohol into the nerve ganglia which control the blood vessels of the ankle; the effort being in this way to improve the circulation. In April and May he got jobs as a waiter in the City of New York; but in each case after at the most three days he suffered so much from pain and the swelling of his ankle that he was unable to keep on.
Several doctors testified to the extent of his injuries: one, called by him, swore that, having suffered a third degree burn, his disability would be permanent and that he would never be able to stand for seven or eight hours upon his foot. (That he had suffered a third degree burn appeared from the records of his case in the Marine Hospital.) The respondents, on their side, called three doctors; the first of whom said that the libellant had suffered no worse than second degree burns, but who did not undertake any prognosis. The other two also said that he had only second degree burns, but these said that he had suffered no permanent loss of function. His pay upon the "Gallant Fox" was $45.00 a month, plus $45.00 war bonus. He had intended to return to Eire with the ship, and, after his discharge from the hospital, his further stay in New York was not accounted for.
The ship was not in the United States when the libel was filed; but upon the trial the parties stipulated that she was then "in the Harbor of New York at Jersey City." The judge found that the libellant had been "since December, 1941, a resident of the United States and of the Southern District of New York." He also found that the suit was properly brought under the Jones Act in personam and under the Suits in Admiralty Act, and that the cook had been negligent in putting the coffee-pot upon the floor of the galley while the ship was rolling so heavily. He awarded the libellant for his pain, past and future, $5,000; he found that he had suffered a permanent disability of one-third of his earning power, which was about $1,400 a year, and that his disability amounted to $480 a year, which, capitalized at 4%, came to about $8,000; and he therefore made a total award of $13,000.
As against the United States the decree must be reversed and the libel dismissed. Blamberg Bros. v. United States, 260 U.S. 452, 43 S. Ct. 179, 67 L. Ed. 346, decided that it was a condition upon substantive jurisdiction under the Suits in Admiralty Act that the vessel should be within the United States when the libel was filed. The "Gallant Fox" was not shown to have been within the United States at that time and the district court was without jurisdiction. This would be equally true, even though we were to construe the condition as applicable only when the right asserted against the United States is in rem. We do not mean to suggest that the condition is so limited, but we need not decide the question, because, so far as appears, the acts of the Waterman Steamship Agency would not have charged the United States in personam if it had been a private owner. The contract is not before us and upon this record the only possible liability would have been in rem. It is true that the ship was within the United States at the time of the trial, so that a libel then filed would have been within the substantive jurisdiction of the district court; and conceivably since the filing of a second libel would be mere matter of *693 form we might dispense with it, in spite of the strictness with which any conditions upon the consent of the United States to be sued must be observed. But that issue also we need not pass upon, for, even assuming that the later presence of the ship conferred substantive jurisdiction upon the court, the venue of the suit was wrong in any event. The libellant was not a "resident" of the Southern District of New York; his stay there until February 17, 1942, had been in hospitals and involuntary; and thereafter if any inference at all is permissible his continued sojourn is to be ascribed to his interest in the outcome of this suit. Although "residence" generally implies a less permanent attachment to the place than "domicil," it always demands a connection more permanent than anything which the libellant proved here. Nor did it serve to fulfill the alternative condition of venue under § 2 of Suits in Admiralty Act that the ship was "at Jersey City" at the time of the trial again assuming that venue was to be judged as of that date. We should have no ground for saying that the stipulation meant any more than that she was at that time moored to a wharf in that city; and if so, she was not within the jurisdiction of the Southern District of New York, whether the western boundary of that district be the Jersey shore (The Norma, D.C., 32 F. 411), or the thread of the Hudson River. The Rosemary, 3 Cir., 26 F.2d 354. Hence the judge should have dismissed the libel as to the United States, either because it lacked substantive jurisdiction, or because the suit was brought in the wrong district.
Before the decision of the Supreme Court in Brady v. Roosevelt Steamship Company, 317 U.S. ___, 63 S. Ct. 425, 87 L.Ed. ___, the same reasoning would have led also to the dismissal of the libel as against the Waterman Steamship Agency, for United States Shipping Board Merchant Fleet Corporation v. Lustgarten, 280 U.S. 320, 50 S. Ct. 118, 74 L. Ed. 451, had held that the Suits in Admiralty Act applied, not only to corporations all of whose shares were owned by the United States, but to those which were managing or operating vessels owned by the United States in its behalf at least in cases where the loss fell upon the United States. However, in Brady v. Roosevelt Steamship Co., supra [317 U.S. ___, 63 S. Ct. 427, 87 L.Ed. ___], the court, although recognizing that the judgment in the Lustgarten case did "support the view adopted by the court below," held that "that position is untenable and that the Lustgarten case * * * must be considered as no longer controlling." Hence the libellant was free to sue the Agency in the Southern District of New York under the Jones Act if it had its principal office in that district. § 688, Title 46, U.S.C.A. It is true that the record shows only that it had "an office" within the district, but the chance is so small that the principal office of a New York corporation engaged in the steamship business should be in another district of the state, that we may assume the contrary until an objection be raised. Moreover, since the ship was American owned even though under foreign registry the libellant, an alien, may avail himself of the Jones Act. Gerradin v. United Fruit Co., 2 Cir., 60 F.2d 927. Thus we come to the merits.
It appears to us that the judge was right in holding that it was negligent for the cook to set the coffee-pot upon the floor of the galley in such heavy weather. It is irrelevant whether that was less dangerous than setting it on the range; it was practically certain to slide along the floor and to upset if it struck anyone in its peregrinations. It was necessary for the stewards to enter and leave the galley to discharge their duties, which they could not do while keeping an eye upon a roving coffee-pot. Assuming that the crew must have coffee in all weathers, prudence plainly required the pot to be put somewhere where it could not pour out its contents upon those who had to use the galley; or, if there was no such place, not to brew more at a time than was to be drunk at once. It was not permissible to subject the stewards or any other members of the crew to the unpredictable onsets of so dangerous an object.
There remains therefore only the propriety of the award. As to the award for pain $5,000 we do not see how we can interfere. The libellant, although not disposed to minimize his sufferings, had endured a great deal, not only from the burn itself, but from its treatment both on the voyage and in the hospitals. Whether he would continue to suffer in the future was indeed doubtful; it turned upon how far his general condition would improve, a matter we reserve for the moment. Even if it does not improve, the award is larger than we should have been disposed to make, had the original decision been *694 ours; but we cannot say that, upon an issue so difficult of quantitative determination, it was so plainly out of measure as to be "clearly erroneous." Petterson Lighterage & T. Corp. v. New York Central Railroad Co., 2 Cir., 126 F.2d 992. The award for loss of earning power altogether depended upon the permanency of the injury. The libellant said that after he left the hospital, he was unable to stand upon his feet for the six or seven hours daily which were required of him as a waiter, his only calling. There was a square conflict between the physicians upon his chances of improvement, and so far as we can see, no antecedent reason to prefer one prognosis to the other. That being so, the judge's choice must stand, whatever our personal doubts. But even though we assume that the incapacity was permanent, the award was wrong, for it presupposed that the war bonus would continue for the whole period of the libellant's future working life certainly an unwarranted assumption. Subtracting one-third of the war bonus $180 we arrive at $300 a year, instead of $480, as the measure of his loss in earning capacity. That is five-eighths of $480, and five-eighths of the award is $5,000. To this we should add the present value of one-third of the war bonus for, say, four years, $700; making $5700 in all. To that sum we reduce the award for loss of earning power.
Decree reversed and libel dismissed as to the United States.
Award reduced to $10,700 as against Waterman Steamship Agency, Ltd. and decree, so modified, affirmed.
No costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544591/ | 133 F.2d 25 (1942)
GERACY, Inc.,
v.
HOOVER.
No. 8041.
United States Court of Appeals for the District of Columbia.
Decided December 14, 1942.
*26 Mr. Samuel B. Brown, with whom Mr. Nathan M. Brown was on the brief, both of Washington, D. C., for appellant.
Mr. James M. Earnest, with whom Mr. W. Gwynn Gardiner was on the brief, both of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and RUTLEDGE, Associate Justices.
MILLER, Associate Justice.
On March 13, 1940, appellee instituted a landlord and tenant proceeding in the Municipal Court, for the restitution of premises at 2801 Fourteenth Street, N. W., in the District of Columbia, and for arrears of rent. On a date not revealed by the record appellant answered, admitting that it was in possession of the premises and denying any default in the payment of rent.
On April 10, 1940, appellant filed its complaint, in the present case, in the District Court, seeking damages in the amount of $2859.05 for negligent injury of chattels located in the same premises at 2801 Fourteenth Street, N. W.; which damages were alleged to have been caused by leakage of rain; which, in turn, was alleged to have resulted from negligent repairs made to the roof by appellee, the owner of the premises. This complaint was entitled "Complaint in Nature of Plea of Set Off or Plea for Recoupment." [Italics supplied] In it appellant recited the facts of its tenancy of the premises at 2801 Fourteenth Street, N. W., in the District of Columbia; the ownership of the premises by appellee; that appellee had instituted landlord and tenant proceedings in the Municipal Court; that she was not entitled to recover either possession or the amount claimed for rent; it alleged that appellee was indebted to appellant in the sum of $2859.05 on account of damages; it stated "that it is willing that its claim be set off against the action of the defendant pending in the Municipal Court of the District of Columbia and that it is willing to recoup its said claim in the sum of $2,859.05 against the said action of the defendant. Wherefore, the plaintiff demands: (1) That it be allowed to set off or recoup the sum of $2,859.05 due and owing from the defendant to it, against the claim of the said defendant, and (2) that judgment be entered against the defendant in the sum of $2,859.05, and (3) that the cause in the Municipal Court of the District of Columbia pending therein and identified as Landlord and Tenant No. 855281 be caused to be certified to this Court and that said Municipal Court of the District of Columbia be directed to so certify said cause of action."
Thereafter, but on a date not revealed by the record, appellant filed an affidavit of defense in the landlord and tenant proceeding. In this affidavit appellant denied default; alleged that appellee was indebted to it in the sum of $2859.05 by reason of damage to its chattels located in the same premises, caused by the alleged negligence of appellee. The affidavit then continued as follows: "Your affiant accordingly denies that the defendant is indebted to the plaintiff in the sum of $525.00 or that the plaintiff is entitled to possession to the said premises, but states on the contrary that the said plaintiff is indebted to the defendant in the sum of $2,859.05, and your affiant further states that there has been filed by the defendant in the District Court of the United States for the District of Columbia, a Complaint in the nature of a plea of set off or plea for recoupment against this cause of action, in which Complaint this defendant requests that this cause of action be certified to the said District Court of the United States for the District of Columbia in order that the claim of this defendant may be set off against this action or that the said defendant may be allowed to recoup its claim presented in said Court in the sum of $2,859.05 against this cause of action."
When the landlord and tenant case came on for hearing the Municipal Court denied appellant's request that the proceedings be certified to the District Court. The case was tried on May 28, 1940. At that time the undisputed testimony showed that appellant had not paid the rent claimed. Appellant *27 then offered the testimony of several witnesses tending to prove that appellee had repaired the roof of the premises; that these repairs were negligently made; that as a result the roof leaked and occasioned damage; and that an action to recover the damages had been instituted in the District Court. Appellee then offered testimony that no repairs had been made to the roof at the time alleged by appellant; and that repairs which had been made were not made negligently. In this trial appellant did not ask for a money judgment against appellee and that question was not submitted to the jury. However, under the instructions given, the jury could have returned a general verdict for appellant upon the evidence. Instead, it returned a verdict in favor of appellee for the rent and for possession. Judgment was entered accordingly.
Thereafter, but on a date not revealed by the record, appellee filed an amendment to her answer in the present case which reads as follows: "The defendant further alleges that since the filing of her original answer herein the landlord and tenant proceeding, namely, Case No. 855281, filed by this defendant against the plaintiff for possession of premises 2801 14th Street, Northwest, and for judgment for rent for the period from September 1, 1939, to March 1, 1940, has been tried before a jury in the Municipal Court of the District of Columbia; that defendant's sole defense in said cause was based entirely upon the allegation that the plaintiff therein was indebted to the defendant in the sum of $2859.05, being the same amount and arising out of the same alleged facts as here involved; that at the trial of said cause the jury returned a verdict in favor of plaintiff, and the alleged claim of plaintiff as here involved has already been decided adversely to the plaintiff herein and is therefore res judicata." On June 2, 1941, counsel representing both parties stipulated that the district judge, sitting without a jury, might hear and determine the legal sufficiency of appellee's defense of res judicata. The judge held that the purpose of the rule of res judicata is to give only one trial for each issue; that the Municipal Court had tried the issue of damages and that appellee was entitled to judgment.
We see no reason for disturbing the judgment. While we sympathize with appellant in the dilemma which seemed to confront it, nevertheless, it was within its power to elect in what manner it should vindicate its claim.[1] Furthermore, it was its duty to elect. Appellant's pleadings indicate that it tried to avail itself of the jurisdiction of both courts, at the same time, for the trial of the same issue. In fact, the complaint, which initiated the case in the District Court, is entitled a "Plea of Set Off or Plea for Recoupment." [Italics supplied] The only sense in which it could be a plea was that it was by way of answer to the pleading of appellee theretofore filed in the Municipal Court. The law entitled appellant to but one trial of the issue.[2] If it chose to reduce its claim to the dimensions of municipal court jurisdiction, and submit to the adjudication of that court, it was privileged to do so;[3] but, if it did so, it forfeited the privilege of having the same issue adjudicated in the District Court.[4]
Appellant now contends that the Municipal Court lacked jurisdiction to give judgment in the full amount of its claim; hence, that the adjudication cannot be said to have been one upon the same issues, between the same parties, in a court of competent jurisdiction. That the Municipal Court lacked jurisdiction to give judgment in the amount of $2859.05 is not disputed. But that it had jurisdiction to try a defense, voluntarily submitted, to appellee's claim for possession and for rent is beyond dispute. As appellant elected to plead its claim as a defense, the issue was within the jurisdiction of that court.[5] What the situation *28 might have been and what appellant's rights might have been, if the issue had been determined in its favor by the Municipal Court, we need not decide. There is little authority to support a further recovery, even under such circumstances.[6] But in the present case the Municipal Court decided that appellant had no cause of action, for any amount; thus adjudicating, adversely to appellant, the entire, fundamental and underlying issue of liability,[7] the elements of which are the same regardless of the amount involved. As that precise issue was thus fully tried, and determined adversely to appellant, the determination became res judicata thereof;[8] even though, if appellant had elected to do so, it might have preserved its claim[9] and, possibly, have made a recovery upon it in the District Court.
Perhaps a modern system of administration of justice should operate in the medium of a court which has jurisdiction over all cases;[10] with provision for automatic transfer,[11] or for consolidation and transfer upon motion from one division to another; without the penalties which may now result from the existence of courts of concurrent jurisdiction, and from the selection of the wrong remedy or the wrong jurisdiction. But Congress has elected to preserve an older and more conventional system, with a variety of functions and powers distributed to the several courts. Whatever we might wish to do, if we had the judicial powers of an oriental caliph, we are confined to the structure of judicial determination which Congress has provided and we are bound by the rule of res judicata.[12]
Affirmed.
*29 RUTLEDGE, Associate Justice (dissenting).
I dissent. The record, consisting of an agreed statement, is in a very unsatisfactory condition. Apart from the District Court's findings, it is not at all clear the issue of the landlord's negligence was not withdrawn from the jury, either by the Municipal Court's instructions or by the appellant. Statements in its brief, though somewhat equivocal, seem to assert this. If the issue was withdrawn, the judgment there went for the landlord by default. In that event res judicata would not apply, even under the majority's view. So much of concession they make to the tenant's dilemma, arising from the Municipal Court's limited jurisdiction and their application of res judicata.
But the District Court expressly found that the Municipal Court did try the negligence issue as a matter of defense only, not as a basis for affirmative relief. And the statements in appellant's brief may be taken, consistently with this, to mean that the claim was withdrawn merely as a cause of action, not as a defense. Accordingly, on this record, we cannot say that the District Court's findings were not supported by the evidence.
Taking the case in that light, I think nevertheless it was error to hold, as a matter of law, that the Municipal Court's judgment barred Geracy from later asserting the claim. In my opinion Congress did not intend this to follow from creation of that court, nor does res judicata require it. That view creates consequences for the parties, especially the tenant, and for the two courts wholly inconsistent with the reasons and purposes of establishing the Municipal Court and with the usually accepted principles for applying res judicata. It forces the tenant to surrender possession without hearing or, in the alternative, to give up his claim for damages without opportunity for relief in excess of the limited amount the inferior court may award. It compels him to forego using his claim as a defense or as a cause of action. It gives the landlord power to set up a one-sided race for trial between the two courts, and by virtue of the Municipal Court's speedier procedure enables it to oust the District Court of its exclusive jurisdiction and in effect to usurp it. One or two illustrations will show these effects more clearly.
First, Landlord L leases his department store building for twenty years to Tenant T at a rental of $1,000 monthly. In the first year of the term L negligently repairs the roof, supplies support for foundations or walls, or handles fire or explosives on the premises, damaging T's stock for $25,000. T refuses to pay rent further until L settles for the injury. He declines to do this. T then sues in the District Court to recover for his loss. L answers or delays the trial in any of the readily available methods. Then, to forestall a judgment in T's favor, he sues for possession in the Municipal Court, alleging default in rent and asking also for $1000 of the arrears, as he may. T then must plead or default. If he defaults, he preserves his claim.[1] But he loses possession without hearing on the merits, and by doing so either destroys his business or incurs the loss of finding and moving to a new location. If he defends, however, he not only risks a possible adverse judgment on his right to possession and liability for rent, which is all the court has *30 power to determine. He also faces the certainty that the judgment will determine finally his right to damages, a matter the court has no power to adjudicate and the District Court alone can determine. In substance the inferior court adjudicates both rights finally and conclusively, though it purports only to deal with possession and rent; and that is true apparently whether the tenant wins or loses there.[2]
A less striking illustration may be taken of a patient injured by a physician's negligence or malpractice to an extent compensable at $10,000. The doctor's agreed fee is $500. The patient sues in the District Court for $10,000. The physician-defendant moves or pleads to delay trial. He then sues in the Municipal Court for his fee. If the patient defaults, the physician recovers $500 to which he is not entitled, or may not be, again without hearing on the merits; and he retains this though the patient later wins his suit for damages. If the patient defends, the cause of action is "split," res judicata applies, and the District Court suit is at an end, without his ever having a chance to recover on his claim according to his substantive rights or to have a hearing upon it in a court competent to adjudicate it. That again is true even if he is successful in the Municipal Court.[3]
Such a system creates little less than a landlord's paradise. It works wholly to the advantage of the plaintiffs in the Municipal Court. Their power to sue there[4] enables them to limit their liability for negligence or malfeasance to $1,000 (now $3,000[5]) in all cases, except those in which the tenant or the patient can afford to default. In many he cannot do this. Obviously he could hardly take such a chance in the department store case or any other involving rights or claims of substantially equivalent value. Default in such a case would mean not only the loss of leasehold rights without hearing, but also either destruction of the business or, if it could be moved to another location, disruption and expense hardly justified merely to preserve what is at best an uncertain chance of recovering damages, however meritorious the claim might be.
In other situations, as in the physician-patient example,[6] it would be obviously to the patient's interest to default. And it would be proportionately more so as the physician's fee might be smaller or his own claim larger. But if the default were clearly worth while, comparatively, to compel it in order to preserve the more important right or have hearing upon it is contrary to the law's general abhorrence of forfeitures and to the purposes for which the Municipal Court was formed. These were to furnish a speedier, less expensive and more adequate forum for disposition of small claims, not to force a choice between rights, their determination without hearing on the merits, or abdication of the District Court in favor of the inferior one brought about by the landlord's manipulation of their processes.
A third possibility may be open to the tenant, which the majority do not absolutely foreclose, though the implications of the opinion seem clearly to reject it. That would be that he could defend in the Municipal Court and, if successful, then prosecute his claim for damages to judgment. A few decisions support this view.[7] It is obviously a concession made out of consideration for the hardship to *31 the successful defendant, who otherwise would be foreclosed of his claim as a source of affirmative relief by the very judgment which establishes its merit. The concession, so far as it goes, seems proper. But it hardly relieves the tenant's dilemma so long as it remains coupled with the original requirement that he must default or run the risk of an adverse judgment in the Municipal Court, putting an end to further assertion of the claim as a cause of action. That risk forces him as a practical matter to choose between using it as a defense and asserting it later as a cause of action. His situation with the concession is therefore not much, if any, better than it would be without it and the concession, moreover, as is noted later,[8] involves an obvious departure from the established law of res judicata.
Whether or not the concession is made, therefore, the decision gives the landlord or other claimant in the inferior court an unfair advantage over his adversary, enabling him to utilize its processes to forestall and in effect to bring about a usurpation of the District Court's rightful and exclusive authority. I do not think Congress intended these consequences or that the Municipal Court should adjudicate a claim in excess of its jurisdictional limit in any event. Yet that is exactly what happens under the majority's view, when it decides the case on the merits. It forecloses finally any chance to recover on the claim and does this without ever affording one.
That is true, whether or not the concession is made, for even if the successful defendant could go on with his suit that does not nullify the conclusive effect of the adjudication when the defendant loses. Nor is that effect destroyed because the tenant might have defaulted and sued. It is the fact of decision, with conclusive effect upon a claim in excess of the limit, which is prohibited. That effect, whenever it occurs, is not wiped out merely because some alternative might have been followed to avoid it or because the chance existed before the decision was made that the effect might not attach to it. The matter is one of defect in the court, not merely of choice of forum by the litigants. Congress intended the Municipal Court to keep within the bounds of power prescribed. It does not do that when it conclusively adjudicates a claim above them, whether the decision purports to sustain it or merely bars recovery. The latter is the effect here.
Congress intended none of these results, whether that the court should determine the claim finally at all events; or when the decision is for the landlord, but only inconclusively when it is for the tenant; or to force the latter to default in respect to possession in order to avoid foreclosure of the claim; or to enable the Municipal Court to oust the District Court of jurisdiction, either generally or, as here, in a particular case to which its power had rightfully and fully attached, much less to usurp it; or to make these consequences turn on which court could rush the cause before it to trial first.
It is not an escape from these consequences to label them the results of an "election." Such an argument might have been plausible if appellant had reduced its claim to $1,000 and asked for relief in that amount from the Municipal Court. Then it would have been seeking affirmative, as well as defensive relief. In that event there would have been more room for saying an election had been made to accept the limited relief the inferior court could grant in lieu of the larger amount recoverable in the District Court, and also for the view that appellant had split its cause of action. But appellant avoided this pitfall. It pleaded the claim, not as a matter of choice in preference to something else, but by compulsion and only so far as the necessity for defense required. It did this to avoid surrender of its right to possession without contest. When the only choice is to surrender one right in order to preserve the chance to assert another, and especially when they are of nearly equal value or both are of great value though not equal, the "election" resembles one to be shot or to be hung.
If res judicata could be thought rightly to require such results, this judge-made rule should give way before being allowed to dictate consequences so unjust and so contrary to the intent and explicit prohibition *32 of Congress.[9] But it does not require them. Nor does the learning about "splitting causes of action," if there is any difference between the two doctrines in this situation.[10] Both have their main core of policy in bringing an end to litigation. Both dictate that causes tried should not be tried again on the same or different issues.[11] Res judicata dictates also that issues tried should not be retried between the same parties, whether in the same cause or a different one.[12] These are the general consequences, though there are many qualifications,[13] when the two courts are of complete and coordinate jurisdiction. But they have limiting conditions. One is that both parties shall have full opportunity to present causes or defenses and to secure full and adequate relief in accordance with substantive right. This means, what is most important here, adjudication by a court competent not merely to hear issues, but to determine causes and afford relief to the parties.[14] Competence of the court is as essential as competence of the parties, and means competence to afford a remedy as well as to decide an issue. The limitation means also that one does not "elect" to assert his claim when he is forced by the facts and the plaintiff's suit against him to use it as a defense, nor does he "split" his cause of action when he does this.[15]
Res judicata also operates to bar equally the parties to the litigation and their privies, not to bar one but leave the other free or deny hearing if one loses but allow it if he wins. If the majority mean to reserve the question whether a successful defendant later can sue, they concede in effect that a partial or halfway and one-sided departure from the usual operation of the principle may be required in this situation, one essentially governed by the chance of the outcome of litigation. The cases sustaining this view[16] necessarily, though implicitly, make this concession. For, under normal application, it is the fact of decision, not how or in whose favor it is made, which makes res judicata operative, so that the defendant would be foreclosed regardless of his success or lack of it. The view that he can sue later, after winning on his defense, is therefore not an application, but a repudiation of the doctrine to that extent. If modification is to be made, the proper deviation would seem to be one which works equally to the advantage or disadvantage of both parties, not to the exclusive benefit of one.
If the majority intend however to reject the concession to the successful defendant and to apply the rule regardless of the outcome, they ignore the underlying requirement that decision, to operate as a bar, must be made by a court competent *33 to determine the claim.[17] They say the Municipal Court was competent to determine the issue of negligence. That is true, but it is only half true. It was competent to determine the issue as a defense to the landlord's claim for possession and rent, or as a claim up to $1,000. But it had no power to determine that issue as a claim for more than that amount. Yet, as has been said, the effect of its decision has been to adjudicate adversely and conclusively a claim for $2,859.05.
The fallacy is in regarding competence to hear and decide an issue as being adjudication, without reference to competence to afford relief; in other words, that relief, which is the end of litigation, is no part of the adjudicative process. In that view, police courts, magistrates courts and others of limited jurisdiction have it in their power to swallow up the authority of courts of general jurisdiction. Jurisdictional limitations become meaningless. The power to determine includes both the power to decide issues and the power to afford relief. Whatever exceptions may exist in such matters as claims against the Government and declaratory judgments, they certainly are not authority for the view that when limited authority is conferred it is carte blanche to determine matters in excess of the limit or to do this whenever a common issue arises affecting matters on both sides of the line.
The Municipal Court had power to determine the negligence issue as a matter of defense and only so. It had none to determine that issue as the foundation for a claim of $2,859.05. The line dividing the power of the two courts is sharply and clearly drawn. To permit the inferior one to cross it, in the guise of applying res judicata to determinations which are within its power, not only violates the mandate of Congress. It perverts that principle by giving it a function and an effect beyond its purpose, namely, to foreclose rights without hearing or without opportunity for relief rather than to preserve against repeated attack rights which have been established by adjudication in a court competent not only to hear but to protect both parties.
In the unusual circumstances this case presents there are three possible courses to follow: (1) The one apparently chosen by the majority which forces the tenant to choose between defending his possession and having his day in court for damages; (2) applying some modified form of res judicata, such as the one-sided, chance-governed rule that the successful defendant only may later assert his claim; (3) frank recognition that the doctrine cannot be applied justly to both parties in this situation or without squarely clashing with the mandate of Congress that the Municipal Court shall not determine causes in excess of $1,000.
The real objection to the last course is that inconsistent judgments might result. The finding might be for the landlord in the Municipal Court and against him in the District Court, so that he would recover possession and also pay damages, a result impossible if a single fully competent court could determine both claims. This objection, however, is equally applicable under the majority's view. If the tenant defaults in the possession suit in order to preserve his right to trial in the District Court, the landlord gets back the property as for the tenant's breach of the lease; but the latter may win in the damage suit as for the landlord's breach. If the tenant defends and wins on the negligence issue in the suit for possession, he may lose on the same issue in the suit for damages, if the concession in his favor is made. Inconsistency in judgments therefore is not avoided by the majority's application of the principle. Since there may be inconsistency in any event, it would seem more fair and just to preserve the balance of inconsistency evenly, rather than unevenly, as between the parties and the courts. The results in most cases presumably would be consistent, since the party able to prove his claim in one court generally should be able also to succeed in the other. But that in some they might turn out contrary, owing to the vagaries of juries or for other reasons, would be better than to force forfeiture of right without hearing or adjudication by a court incompetent to hear one party's cause. In this situation it is better to have relitigation of an issue than to have denial of hearing for one party's cause.
In my opinion therefore the bar of res judicata should not be applied further than to prevent relitigation of the right to possession and the claim for rent. To that extent the Municipal Court had jurisdiction and its judgment is conclusive. But *34 its power went no further. It had none to determine the claim for damages. That was the business of the District Court and the tenant should be free to continue with the prosecution of its cause there, without regard to the Municipal Court's decision on the negligence issue. In no other way can it be assured of a hearing, as is its right, upon that cause in a court competent to determine it; the District Court's jurisdiction be preserved fully against encroachment by the Municipal Court; and the latter be confined to adjudication within the prescribed limits of its power.
I agree with the majority that the appellant's dilemma is harsh. I do not think it is necessary. Perhaps legislation such as they suggest would be desirable. It is required only to overcome their extension of res judicata made in this case. Congress did not enact the doctrine, or require its application here. I think it directed the contrary result. The judgment should be reversed.
NOTES
[1] Brown v. First Nat. Bank of Newton, 8 Cir., 132 F. 450, 452, certiorari denied 196 U.S. 641, 25 S. Ct. 796, 49 L. Ed. 631; Silberstein v. Begun, 232 N.Y. 319, 323, 133 N.E. 904, 905.
[2] Brown v. First Nat. Bank of Newton, 8 Cir., 132 F. 450, 455, certiorari denied 196 U.S. 641, 25 S. Ct. 796, 49 L. Ed. 631.
[3] Porter v. Rapine, Fed.Cas.No.11,288, 2 Cranch 47; Witt v. Hereth, D.C. Ind., 30 Fed.Cas. page 404, No. 17,921; Grammar v. Sweeney, Mo.App., 297 S.W. 706, 708. Note, 28 L.R.A. 221.
[4] Brown v. First Nat. Bank of Newton, 8 Cir., 132 F. 450, 453, 455, certiorari denied 196 U.S. 641, 25 S. Ct. 796, 49 L. Ed. 631.
[5] D.C.Code (1940) § 16-1903. See Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 28: "On the other hand, if the patient interposes a defense which is litigated and determined by the judgment, the judgment is conclusive as to the matter litigated. If the patient resists the claim on the ground of the negligence of the physician, and it is found that he was not negligent and judgment is given for the physician, the patient cannot recover for the harm since the absence of negligence is conclusively established. If on such an issue judgment is given for the patient, he is not precluded from bringing an action for malpractice; and in such action the negligence of the physician will be treated as conclusively established, although the physician may interpose any other defenses he may have. The patient is not splitting his cause of action by using the fact of the physician's negligence as a defense in the first action and as a claim in the second action." [Italics supplied]
[6] Canton-Hughes Pump Co. v. Llera, 6 Cir., 205 F. 209, 211, 212, 213. But see Silberstein v. Begun, 232 N.Y. 319, 323, 133 N.E. 904, 905; 2 Freeman, Judgments (5th ed. 1925) § 797.
[7] Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 23, 24: "Thus, if the issue in the first action was whether the defendant was negligent and judgment was given for the defendant, the plaintiff cannot recover in the second action for the alleged negligence of the defendant; if judgment was given for the plaintiff, the defendant is precluded from denying his negligence."
[8] Allamong v. Falkenhof, 39 Ohio App. 515, 177 N.E. 789, 791, 792.
[9] Brown v. First Nat. Bank of Newton, 8 Cir., 132 F. 450, 452, certiorari denied 196 U.S. 641, 25 S. Ct. 796, 49 L. Ed. 631; 2 Freeman, Judgments (5th ed. 1925) § 797. See Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 2: "If an issue is actually litigated and determined, that issue cannot again be litigated between the parties even though it arises in an action based upon a different claim."
[10] See Pound, Organization of Courts (1940) 273, 287, 289; Dodd, The Judiciary in a Model State Constitution, III Report of New York State Constitutional Convention Committee (1938) 1839.
[11] Calif.Code Civ.Proc. (Deering, 1941) § 396: "If an action or proceeding is commenced in or transferred to a court which has jurisdiction of the subject matter thereof as determined by the complaint or petition, and it thereafter appears from the verified pleadings, or at the trial, or hearing, that the determination of the action or proceeding, or of a counterclaim, or of a cross-complaint, will necessarily involve the determination of questions not within the jurisdiction of the court, in which the action or proceeding is pending, the court, whenever such lack of jurisdiction appears, must suspend all further proceedings therein and transfer the action or proceeding * * * to a court having jurisdiction thereof. * * *
"Right to remit excess. In any case where the lack of jurisdiction is due solely to an excess in the amount of the demand, the excess may be remitted and the action may continue in the court where it is pending."
Cf. D.C.Code (1940) § 11 809: "Setoff or counterclaim Pleading Retention of jurisdiction. * * * If the set-off or counterclaim be for more than the jurisdictional limit of said [small claims and conciliation] branch but within the jurisdictional limit of this [Municipal] court, the action shall nevertheless remain in said branch and be tried therein in its entirety."
[12] Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 3: "But matters actually litigated and determined in the prior action cannot be relitigated in the later action. As to such matters, we have said there is a collateral estoppel. The estoppel does not rise from representations made by one of the parties upon which the other party has relied, as in the case of the ordinary estoppel in pais. But a party who has once fought out a question in litigation with the other party is precluded from fighting it out again. The term `collateral' estoppel is intended to emphasize the fact that the causes of action involved in the two proceedings are different, even though the issues or some of them are the same."
[1] Notwithstanding one ordinarily is foreclosed not only concerning issues raised and litigated, but also concerning issues which might have been but were not raised. Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 60 S. Ct. 317, 84 L. Ed. 329; Andrews v. Reidy, 1936, 7 Cal. 2d 366, 60 P.2d 832, 834; Lee v. Hansberry, 1939, 372 Ill. 369, 24 N.E.2d 37. But where the second suit is brought upon a different cause of action and the issue was not, though it might have been, litigated in the first one, the judgment does not bar its determination on the merits. Cromwell v. Sac County, 1877, 94 U.S. 351, 24 L. Ed. 195; cf. Scott, Collateral Estoppel by Judgment (1942) 56 Harv. L.Rev. 1, 4, 5.
[2] See note 7 infra and text.
[3] Ibid.
[4] It is always possible for a plaintiff to reduce his claim to proportions consistent with the limitation upon the court's jurisdiction, so that persons having claims actually in excess of this, by making such a reduction, as well as persons whose claims are actually within the amount, can take advantage of the opportunity to utilize the inferior court's processes so to limit their liability.
[5] By virtue of the Municipal Court Act, April 1, 1942, 56 Stat. 190, 1942 U.S. Code Cong. Serv. p. 285, effective July 1, 1942, consolidating the former Municipal and Police Courts into the present Municipal court and increasing the jurisdiction in civil matters to include claims of $3000 or less.
[6] Cf. Scott, Collateral Estoppel by Judgment (1942) 56 Harv.L.Rev. 1, 27, 28.
[7] Canton-Hughes Pump Co. v. Llera, 6 Cir., 1913, 205 F. 209, second appeal, 6 Cir., 1914, 215 F. 79; East Forty-Sixth Street Realty Corp. v. Max Gutschneider, Inc., 1918, 103 Misc. 491, 170 N.Y.S. 374; cf. Rundlett & Reynolds, Inc., v. Whitall, 1912, 76 Misc. 456, 135 N.Y.S. 697. But cf. Silberstein v. Begun, 1922, 232 N.Y. 319, 133 N.E. 904, for a different result after the New York statute was repealed. The Court of Appeals of New York appears to follow one rule in relation to small claims and a contrary one in respect to domestic relations matters. Cf. note 14 infra. See also, for citation of authorities that if the limited court determines the claim asserted defensively adversely to the defendant on the merits, he cannot later assert it, 1920, 8 A.L.R. 694, 741.
[8] Cf. text infra at and following note 17.
[9] Cf. Adams v. Metropolitan Life Ins. Co., Mo.App., 139 S.W.2d 1098, 1101.
[10] Cf. note 15 infra.
[11] Cf. Scott, Collateral Estoppel by Judgment (1942) 56 Harv.L.Rev. 1, 2, citing Restatement of Judgments §§ 47-54.
[12] Id. at 2, 3.
[13] Ibid.
[14] Id. at 18-22 and authorities cited, including Misir Raghobardial v. Rajah Sheo Baksh Singh, L.R. [1882] 9 Indian Appeals 197; Loomis v. Loomis, 1942, 288 N.Y. 222, 42 N.E.2d 495, reversing 1941, 262 A.D. 906, 28 N.Y.S.2d 809, with which compare Silberstein v. Begun, 1922, 232 N.Y. 319, 133 N.E. 904, and other New York authorities cited in note 7, supra; Baker v. Hart, Ch. 1747, 3 Atk. 542, 26 Eng.Reprint 1113; Clark v. Dew, Ch. 1829; 1 Russ & M. 103, 39 Eng. Reprint 40; Bogardus v. Clarke, 1832, 1 Edw. Ch., N.Y., 266, affirmed, 1834, 4 Paige, N.Y., 623. Contra: Keahi v. Bishop, 1874, 3 Haw. 546. Cf. also Note, 1942, 138 A.L.R. 346, 359; Blair v. Commissioner, 1937, 300 U.S. 5, 57 S. Ct. 330, 81 L. Ed. 465.
"The question in all these cases is one of public policy. Should a court which has not been entrusted with jurisdiction to determine a matter directly be permitted to determine it incidentally, not merely for the purpose of deciding the controversy which it can properly decide, but also with the effect of precluding the parties from litigating the question in those courts which alone are entrusted with jurisdiction to determine it directly?" 56 Harv.L.Rev. 22. The answer, given in the author's words, is: "Although the authorities are somewhat meager, it seems clear that the judgment should not preclude the parties as to the matter in a subsequent action between them brought expressly to determine the matter in a court which has jurisdiction to determine it." Id. at 19.
[15] Scott, op. cit. supra note 11, p. 28, citing Notes, 1927, 49 A.L.R. 551, 1933, 83 A.L.R. 642, for the conflicting decisions.
[16] Cf. note 7 supra.
[17] Cf. note 14 supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544596/ | 133 F.2d 476 (1943)
UNITED STATES ex rel. JACKSON et al.
v.
BRADY, Warden.
No. 5034.
Circuit Court of Appeals, Fourth Circuit.
February 9, 1943.
Writ of Certiorari Denied May 3, 1943.
C. Arthur Eby, of Baltimore, Md. (William Curran, of Baltimore, Md., on the brief), for appellants.
D. Heyward Hamilton, Jr., Asst. Atty. Gen., and William C. Walsh, Atty. Gen., of Maryland (J. Bernard Wells, State's Atty., and Douglas N. Sharretts and Joseph G. Finnerty, Asst. State's Attys., all of Baltimore, Md., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
Writ of Certiorari Denied May 3, 1943. See 63 S. Ct. 1029, 87 L.Ed. ___.
*477 SOPER, Circuit Judge.
The appellants, who are Negroes, complain of the dismissal by the District Court of their petition for habeas corpus wherein they sought release from a sentence of death imposed by the Criminal Court of Baltimore after a conviction by a jury of murder in the first degree committed in the course of an attempted robbery. The judgment was affirmed on appeal by the Court of Appeals of Maryland. Jackson v. State, 26 A.2d 815. The point now raised is that the defendants in the Criminal Court were deprived of their constitutional rights at the trial in that there was racial discrimination in the selection of the Grand Jury which indicted, and the Petit Jury which tried and convicted them.
The defendants were without means to employ counsel, and the Criminal Court therefore appointed three able and experienced lawyers, one for each of the defendants, whose earnest efforts on their clients' behalf were indicated by their voluntary payment, at their own expense, of the cost of a large record in the Court of Appeals. The defendants did not ask for a severance, but were tried jointly before a jury. At the beginning of the trial the jurymen on the regular panel in the Criminal Court were sworn on their voir dire and examined by counsel, and as the result of peremptory challenges and challenges for cause the whole panel was exhausted. Additional jurymen were then successively brought from three other courts in Baltimore, and similarly examined and challenged, and at the end of the examination eight jurors only had been chosen. More jurymen were then brought in, and thereupon counsel for the defendants, pointing out that of fifty-two jurymen submitted to them only two were colored, challenged the array on the ground that the jury had not been selected in accordance with the Constitution of the United States or the Constitution and laws of Maryland. No evidence or argument was offered to sustain the charge and it was overruled by the court. This action formed the basis of one of the objections considered on appeal, but it was overruled by the Court of Appeals on the ground that prejudice could not be assumed from the presence of only two Negroes on a list of fifty-two jurymen, but must be proved by substantial evidence tending to show that Negroes were intentionally excluded in the formation of the jury panel. No objection was made at any time in the trial or in the appellate court as to the mode of selection of the Grand Jury.
The opinion of the Court of Appeals was filed on June 17, 1942, and later the Governor of Maryland appointed October 2, 1942, as the date of execution of sentence. The petition for habeas corpus was filed in the District Court on October 1, 1942 after application for a writ to a State judge had been refused on the same day. From the denial of the writ of habeas corpus by a State judge no appeal lies to the Court of Appeals under the law of Maryland. Betts v. Brady, 316 U.S. 455, 460, 62 S. Ct. 1252, 86 L. Ed. 1595.
There is no charge that Negroes are discriminated against for jury service by the Constitution or laws of the State; the complaint relates to the method by which the laws have been executed. The record on appeal contains a full description of the mode of selection of jurors in Baltimore, accompanied by the testimony of the Chief Judge and an Associate Judge of the Supreme Bench of Baltimore City, the court of superior jurisdiction in the city, and by the testimony of the clerical official under whose supervision the work is done. Detailed findings of fact and conclusions of law, accompanied by an exhaustive opinion, were filed by the District Judge. 47 F. Supp. 362. Summarizing the findings of fact it appears that in accordance with the statute law of the State a list of seven hundred and fifty persons qualified for jury service is selected by the judges of the Supreme Bench in the following manner: A jury clerk obtains the names of prospective jurymen from city and telephone directories and other reliable sources and summons them to appear for examination as to their qualifications before a member of the Supreme Bench called the Jury Judge. He either accepts or rejects them after they have filled in the answers to a written questionnaire and he has personally examined them. A service file is made up of the names of the persons accepted, from which the clerk takes from time to time as needed seven hundred and fifty names and submits them to the Bench, and from them the names of four or five hundred persons, as needed, are drawn by chance from a wheel for service as petit jurors in the courts of the city. In addition, the members of the Bench at each term of court personally select twenty-three persons believed to be of good character and of more than average intelligence to serve on the Grand Jury.
*478 In 1942 the service file was made up of the names of 18,901 white and 653 colored persons, so that the latter comprised approximately 3.34 per cent of the whole. Over a period of years the number of colored jurors has varied from one to four per cent of the whole. At the time of the trial of the case in the Criminal Court there were seven jury panels of twenty-five each in the courts of the city, containing eight Negroes out of a total of one hundred and seventy-five men. The Grand Jury has always contained one colored juror.
It is not suggested that any one engaged in the selection of jurors in Baltimore is actuated by a conscious personal bias against Negroes; but it is pointed out that the colored population, according to the 1940 census, was approximately nineteen per cent of the whole population, and it is contended that racial discrimination must be presumed from the contrast between this figure and the small percentage of Negroes actually in jury service. Other facts found by the District Judge must be considered in weighing this argument. The names of jurors in the service file are kept on cards which are classified by months selected by the jurors themselves as most convenient for service. For convenience white cards are used for white jurors, brown cards for colored jurors, pink cards to indicate military service, and blue cards to indicate disability. When the jury clerk draws seven hundred and fifty names from the service file for submission to the Supreme Bench, the list always contains the name of twenty-five colored persons, in other words, approximately the same percentage of Negroes as is found in the whole service list. Consequently there is no numerical discrimination against Negroes at this point, and discrimination, if it exists, must be found in the method by which the names are selected and placed on the service list. It appears from the record in the pending case that in selecting names from directories and from other sources, the jury clerk takes pains to select names of persons who live in that large section of Baltimore City occupied exclusively by colored persons and also makes use of lists of members of colored clubs and associations. The evidence, however, fails to show how many of the persons notified to appear for examination by the Jury Judge are Negroes or what percentage of persons rejected by the Judge are of the colored race. There is evidence, however, from which it may be inferred that the percentage of rejections for normal causes is greater amongst Negroes than amongst whites. The District Judge found that of the persons in Baltimore City twenty-five years of age who have completed seven or eight years of grade school, sixty per cent are whites and twenty per cent colored, and of those who have completed high school or some part thereof twenty-two per cent are white and eight per cent are colored. It has been the policy of the Supreme Bench to exclude from service persons on relief, and in recent years a very large proportion of Negroes in comparison to the white population has been on relief. The percentage of convictions for crime of Negroes is higher than that of whites. Moreover, the Jury Judges have found it difficult to secure the service of qualified Negroes, many of whom present excuses based on professional or industrial occupations. Two judges of the Supreme Bench testified that, unless it is necessary, it is not the custom in Baltimore to compel jury service from professional men or from small business men or industrial workers, white or colored, whose service would entail financial sacrifice. The judges and the jury clerk also testified without contradiction that there has been no systematic or arbitrary exclusion of Negroes because of their race but, on the contrary, a positive effort, especially by the jury judges, to obtain the service of qualified Negro jurors.
The District Judge found from the evidence the ultimate fact "that there has been no intentional and systematic exclusion of Negroes from juries in Baltimore City; and no discrimination against them in practice on account of race and color in the selection of jurors by the Supreme Bench of Baltimore City"; and he reached the conclusion of law that the petition for the writ of habeas corpus should be dismissed (1) on the substantial ground that racial discrimination against Negroes for jury service had not been shown, and (2) on the procedural ground that the petitioners, when represented by competent counsel in the trial of their case in the State court, did not interpose any objection to the constitution of the Grand Jury; and did not submit any evidence in support of their charge of racial discrimination against Negroes in the composition of the Petit Juries and therefore must be held to have waived that objection.
The law to be applied in this case is not in dispute. It has long been established that under the prohibition contained *479 in the Fourteenth Amendment of the Federal Constitution a State may not deprive a colored citizen of the right to which he is entitled "that, in the selection of jurors to pass upon his life, liberty or property, there shall be no exclusion of his race, and no discrimination against them because of their color". State of Virginia v. Rives, 100 U.S. 313, 322, 25 L. Ed. 667; Neal v. Delaware, 103 U.S. 370, 394, 26 L. Ed. 567. This rule has been frequently applied and was recently given effect in Hill v. Texas, 316 U.S. 400, 406, 62 S. Ct. 1159, 1162, 86 L. Ed. 1559, where the duty of the federal courts in such a situation was outlined in the following terms: "A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for Texas may indict and try him again by the procedure which conforms to constitutional requirements. But no state is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty. Tumey v. [State of] Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 445, 71 L. Ed. 749, 50 A.L.R. 1243. It is the state's function, not ours, to assess the evidence against a defendant. But it is our duty as well as the state's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the state must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all the least deserving as well as the most virtuous."
A salutary warning on this subject was given to the courts on September 8, 1942, in the report to the Conference of the Chief Justice with the Senior Circuit Judges of the United States by a Committee on Selection of Jurors, composed of District Judges of the United States. The report states (pp. 18, 20):
"In each district where there is a large Negro or other minority racial group the problem of selecting a suitable number of qualified representatives of that race is one which should receive the careful consideration of the clerk and jury commissioner. The Constitution, together with statutes and decisions, make it evident that anything that amounts to a conscious and deliberate exclusion from jury lists of representatives of any class of persons solely on account of race, color, economic, or social status is improper and may be unlawful. The selection of qualified persons to give adequate representation to certain groups may in some districts present difficulties. Nevertheless, no jury panel can be regarded as secure from challenge unless there has been an earnest effort on the part of the court, the clerk, and the jury commissioner to assure that there is no discrimination against these groups.
* * * * * *
"Since the `Scottsboro' cases, it has been the practice in several courts to include in the jury boxes the names of a few Negroes to avoid the violations of the Fourteenth Amendment. The validity of this method may be questioned in the light of the Supreme Court's language in the case of Smith v. State of Texas, 1940, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84".
In the last mentioned case, which considered the composition of the Grand Jury challenged by one convicted of crime, the number of Negroes called for service and actually permitted to serve for a long time had been so scanty as to compel the conclusion that Negroes had been arbitrarily and systematically excluded because of their race. In the pending case, considering the number of Negro jurymen in service in Baltimore during a long period of years in comparison with the substantial size of the Negro population, and taking this fact separate and apart from the surrounding circumstances, one might be disposed to infer that an intentional and systematic effort had been made to cut down the number of Negro jurymen in such a fashion as to create the superficial appearance of obeying the constitutional mandates while actually ignoring them.
But a careful examination of all the facts in the record before us demonstrates that such a deduction is not warranted and supports the findings of fact and conclusions of law of the District *480 Judge. Except as to the Grand Jury, whose organization was not challenged in this case, no discrimination can be found, even when attention is confined to comparative percentages alone, in the number of Negroes drawn for the juries in Baltimore from the established service list. Discrimination, if any exists, must occur in the selection of persons notified by the Jury Clerk to appear in court for examination by the Jury Judge. But such discrimination was not charged by any one at the hearing on the petition for the writ, and no one inquired into the relative numbers of white and colored persons subjected to the preliminary inquiry. On the other hand, we have the uncontradicted testimony of the Jury Clerk of special efforts on his part to bring in persons from the residential centers of the Negro population, and the uncontradicted evidence of the judges of the difficulties encountered in securing the attendance of colored persons for jury service; and all of this testimony is supported by statistics which bring out the disqualifying handicaps under which a disproportionate part of the colored race is still laboring. The ultimate fact found by the District Judge was indicated by the evidence before him; and the petitioners did not meet the burden which rests upon a prisoner who seeks release on habeas corpus of proving by a preponderance of evidence the facts which he claims entitle him to a discharge. See, Martin v. State of Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497; Walker v. Johnston, 312 U.S. 275, 286, 61 S. Ct. 574, 85 L. Ed. 830.
The second ground upon which the decision below was based was also well taken, that is, the defendants in the Criminal Court made no effort to sustain, and, therefore, waived the charge of racial discrimination after they had presented it. As we have seen, the defendants made no objection whatever in the Criminal Court to the constitution of the Grand Jury, and confined their objection to the Petit Jury to an oral challenge of the array on the ground that the jurors had not been selected in accordance with the Constitution, because only two of the fifty-two jurors submitted for membership on the trial panel were colored. No further offer of proof and no argument to support the challenge were made. The bare recital of these facts demonstrates that nothing was shown at the trial in the Criminal Court to justify a ruling that the jury was disqualified on constitutional grounds. The only fact shown was insufficient to indicate racial discrimination in defiance of the Constitution; for it is well established that a colored citizen charged with crime cannot claim as a constitutional right that his race be represented on the trial jury, and the mere absence of Negroes from the jury does not prove that they were excluded because of their race. See, State of Virginia v. Rives, 100 U.S. 313, 322, 25 L. Ed. 667; Neal v. Delaware, 103 U.S. 370, 394, 26 L. Ed. 567; Martin v. State of Texas, 200 U.S. 316, 320, 26 S. Ct. 338, 50 L. Ed. 497.
The Criminal Court was, therefore, given nothing more than the bare charge of denial of constitutional right without proof or offer of proof to sustain it. In this state of affairs, as the Court of Appeals of Maryland held, the trial court was clearly right in overruling the objection. In Martin v. State of Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497, the court overruled a motion to quash the indictment based on the ground that Negroes had been excluded from the Grand Jury because of their race in a county in which one-fourth of the persons qualified to serve were Negroes. The accused offered no evidence whatever to prove racial discrimination. The Supreme Court said (200 U.S. at page 320, 26 S.Ct. at page 339, 50 L. Ed. 497): "A different conclusion in this case would mean that, in a criminal prosecution of a Negro for crime, an allegation of discrimination against the African race because of their race could be established by simply proving that no one of that race was on the grand jury that returned the indictment, or on the petit jury that tried the accused; whereas, a mixed jury, some of which shall be of the same race with the accused, cannot be demanded, as of right, in any case; nor is a jury of that character guaranteed by the 14th Amendment. What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the impaneling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color. [State of] Virginia v. Rives, 100 U.S. 313, 323, 25 L. Ed. 667, 671; In re Wood, 140 U.S. 278, 285, 11 S. Ct. 738, 35 L. Ed. 505, 508. Whether such discrimination was practised in this case could have been manifested only by proof overcoming the denial on the part of the state of the facts set out in the written motions to quash. The absence of any such proof from the record in this case is fatal *481 to the charge of the accused that his rights under the 14th Amendment were violated."
See also Glasser v. United States, 315 U.S. 60, 87, 62 S. Ct. 457, 86 L. Ed. 680.
The facts presented to the District Court on hearing on habeas corpus were not hidden or unknown at the time of the trial in the Criminal Court. They were as easily accessible when the charge of racial discrimination was formally made during the selection of the jury as they were later; and the failure of experienced counsel, for reasons of their own, to offer the necessary proof to support the charge was as deliberate and effective a waiver as if the point had not been made at all. That a defendant, especially when represented by counsel, may make a competent and intelligent waiver of a constitutional right binding upon him is well established by repeated decisions. So it has been held, not only with respect to the right of a jury selected without racial discrimination but also as to the right to be represented by counsel, the right to a jury trial and the right not to testify as a witness upon the trial of a criminal charge. Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L.R. 263; Adams v. United States, 63 S. Ct. 236, 87 L.Ed. ___; Johnson v. Zerbst, 304 U.S. 458, 468, 58 S. Ct. 1019, 82 L. Ed. 1461; Cundiff v. Nicholson, 4 Cir., 107 F.2d 162; Howard v. United States, 58 App. D.C. 179, 26 F.2d 551; Bracey v. Zerbst, 10 Cir., 93 F.2d 8; Carruthers v. Read, 8 Cir., 102 F.2d 933, certiorari denied 307 U.S. 643, 59 S. Ct. 1047, 83 L. Ed. 1523.
There is especial justification for applying the doctrine of waiver when a defendant raises a constitutional point effectively for the first time on petition for a writ of habeas corpus in the federal court after he has been convicted of crime in the State court and the conviction has been upheld by the highest court of the State. It has been decided many times that it is only in exceptional cases, differing in character from the pending case, that the Federal courts will interfere by habeas corpus with the final administration of criminal justice by the courts of the State; and since it is the duty of every State, and one not likely to be ignored, to provide corrective judicial process for persons convicted of crime without due process of law, the federal courts may not be asked to issue the writ of habeas corpus on behalf of a person held under a State commitment until the remedies afforded by the State courts have been exhausted. This procedure is designed to eliminate conflicts between the State and Federal courts, and especially to avoid the unseemly situation which occurs when a lower Federal court is asked to set aside the deliberate judgment or order of the highest court of a State. Surely, such a request should not be granted on the petition of a defendant in the State court who has had full opportunity to raise his objection during his trial in that tribunal but has failed to do so. So it was held in Ex parte Spencer, 228 U.S. 652, 33 S. Ct. 709, 57 L. Ed. 1010, with regard to a charge raised for the first time in the Federal court, that the State court had imposed an illegal sentence upon the petitioner. The court said (228 U.S. at pages 660, 661, 33 S.Ct. at page 711, 57 L. Ed. 1010): "It is true the rule has been announced in cases where habeas corpus was applied for in advance of final decision in the state courts; but the principle of the rule applies as well after decision. The rule would be useless except to enforce a temporary delay, if it did not compel a review of the question in the state court, and, in the event of an adverse decision, the prosecution of error from this court. In other words, if it gave freedom to omit such defenses in the state court and subsequent review by this court, and yet the accused have an absolute right to habeas corpus. And this case shows the necessity of the application of the rule. We have pointed out the opportunity petitioners had to object to their sentences when they were imposed, and successively to attack their validity in the appellate tribunals of the state and in this court. And this satisfies justice. More than this, that for which petitioners contend, will make unstable and uncertain the administration of the criminal laws of the states. If defenses may be omitted at trials, rights of review omitted, and yet availed of through habeas corpus, the whole course of criminal justice will be deranged, and, it may be, defeated."
In a number of cases it has been held that if the point upon which the petition for the writ of habeas corpus is based has been raised and decided adversely in the State courts, the decision, except in extraordinary cases, is res adjudicata and may not be reviewed on habeas corpus in the Federal court. Andrews v. Swartz, 156 U.S. 272, 15 S. Ct. 389, 39 L. Ed. 422; Morton v. Henderson, 5 Cir., 123 F.2d 48; Hawk v. Olsen, 8 Cir., 130 F.2d 910.
*482 But we need not go so far in the pending case. It is sufficient to say that the objection of racial discrimination was raised so inadequately in the Criminal Court of Baltimore by the petitioners here, that in effect it was not raised at all and was therefore waived; and it may be added that in any case when the denial of a constitutional right by the courts of a State is charged, the desirable procedure, whenever it is possible, is to apply to the Supreme Court of the United States rather than to seek relief in a District Court of the United States.
There is no reason to doubt that the point now raised by the petitioners for the writ would have received sympathetic consideration, if it had been supported by proof, by the Court of Appeals of Maryland in view of its decisions in Lee v. State, 163 Md. 56, 161 A. 284, and 164 Md. 550, 165 A. 614, in which the constitutional right of a Negro, accused of crime, to a jury selected without discrimination against his race was protected and enforced. Since the petitioners failed to present any proof to support their charge during their trial in the State court, they must be held to have waived the privilege.
It follows that whether the complaint made in the petition for habeas corpus be considered on its merits or from a procedural standpoint, the decision of the District Court must be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544518/ | 213 Md. 452 (1957)
132 A.2d 119
HUGHES
v.
HUGHES
[No. 229, October Term, 1956.]
Court of Appeals of Maryland.
Decided June 3, 1957.
*453 The cause was argued before COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ., and McLAUGHLIN, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.
Eugene Hettleman, with whom was Joseph Hettleman on the brief, for appellant.
William D. Schaefer, with whom were Norman V. Waltjen, Jr., and Mary Arabian on the brief, for appellee.
HENDERSON, J., delivered the opinion of the Court.
This appeal is from a decree of the Circuit Court No. 2 of Baltimore City, dismissing a bill for divorce filed by a husband on the ground of voluntary separation, and awarding permanent alimony of $15.00 per week to the wife, on her amended cross-bill, which alleged adultery and desertion, but did not pray a divorce.
The case is somewhat unusual, in that the husband seeks a reversal on the ground that he is entitled to a divorce on the evidence presented, but does not contest the allowance or amount of alimony. At the conclusion of the testimony on January 14, 1957, the Chancellor, in an oral opinion, held that a voluntary separation had not been proven, and that in any event the husband was not entitled to a divorce because of his admitted adultery, applying the doctrine of recrimination. However, when our decision in Matysek v. Matysek, 212 Md. 44, holding that recrimination is not a defense in a suit for divorce on the ground of voluntary separation, was handed down a few days later, the Chancellor granted a petition for rehearing. After hearing, he declined to modify the decree, on the ground that there was insufficient corroboration to establish a voluntary separation.
The testimony is scanty, but virtually uncontradicted. The parties were married in 1915, and one child was born in 1916, *454 a daughter, now Mrs. Richard Weekly. The parties separated in September, 1926, when living on Roland Avenue in Baltimore City. The husband testified that they could not get along together, so they came to an agreement, whereby she was to stay in the house and keep the child, and he would pay $11.00 a week for the child's support. He paid this until the child was eighteen. "She told me she didn't care what I done, for me to go my way and she would go her's." She told him "She didn't want anything for herself." In the last thirty years, she had never asked him for anything. One cause of their disagreement was that she was "running around" with other men and once "I caught her out in a car with another man." On cross-examination, he admitted he had been living in Catonsville since 1941 with a Mrs. Noreen Kroner, in a house, title to which is in the names of Samuel Hughes and Noreen K. Hughes, as tenants by the entireties. He admitted that he and Mrs. Kroner had had a number of children, some of whom are married. The oldest of these children was born in 1927, but the date of birth was not established. He had never been married to anyone except the appellee. The appellee had objected to his seeing Noreen Kroner before their separation in 1926. When they separated he took his clothes. "She helped me pack my clothes." He took her the $11.00 a week himself, sometimes he sent it by a friend, Mr. Marr. He earns $60.00 a week, "take home" pay.
Mr. Edwin Marr testified he was a frequent visitor to the Hughes home when the parties were living together. He worked with Mr. Hughes as an automobile mechanic's helper. "We worked shifts. One would stay on one night, and one would the next night. * * * whichever was on, the other one would go to his house and his wife would pack a lunch for us. * * * I was there one night and she said she was tired of fooling around and wished one would go one way and the other, the other. I think they finally made an agreement. I went with him when he got his clothes. * * * They said they were going to separate, one going one way and one the other." This was in the fall of 1926. Afterwards, he frequently took money to her to pay for the daughter, generally $11.00. She often told him "All she wanted was support for the child. She *455 didn't want nothing from him. * * * She said she was getting along good like she was, going her way", and "she didn't want nothing to do with him." On cross-examination, he admitted she had made some remark about Noreen Kroner, but that was after the parties had separated.
The appellee did not testify or appear in court. A doctor's certificate was presented to the effect that she had suffered from "malignant hypertension with arteriosclerosis", since 1946. When he last saw her on December 31, 1956, her blood pressure was 196/100. "In view of the above, it would be unwise and detrimental to her health to appear in court as a witness."
Mrs. Weekly testified her mother was sixty years old, and had been under a doctor's care for some time, but continued to work in a brush factory, where she earned $46.00 a week. Her mother lived alone in an apartment. The doctor had advised her to stop working, but she worked every day. The witness was not asked anything about the separation thirty years ago, at which time she would have been ten years old.
Although the testimony is scanty, we think it was sufficient to establish a voluntary separation. If believed, the testimony of the appellant supports a mutual agreement, and it is corroborated by the testimony of the witness Marr, and by the fact that for thirty years the wife never expressed any desire for a reconciliation, or made any claim for her own support. Nor did she appear in court, although if she was able to work every day, there seems to be no good reason why she could not come to court. Her testimony could have been taken by deposition, if deemed necessary. The general denial in her answer cannot take the place of testimony.
If we may suspect that Mrs. Kroner played a larger part in the separation than the witnesses admit, there was no proof or inference of adultery prior to the separation. The cases seem to recognize that the existence of animosity, or even a legal ground for separation, is not necessarily decisive of the issue, in a case based on voluntary separation. Cf. Matysek v. Matysek, supra, where the authorities are carefully reviewed. Miller v. Miller, 178 Md. 12, was distinguished on the ground that there the wife merely acquiesced *456 in what she could not prevent, i.e. the husband's departure. The facts in the instant case fall into the pattern of Benson v. Benson, 204 Md. 601, and Hahn v. Hahn, 192 Md. 561. Misner v. Misner, 211 Md. 398, is distinguishable on the ground that there was a complete lack of corroboration, the husband had taken an inconsistent position in another proceeding, and the wife flatly contradicted his testimony. In Lloyd v. Lloyd, 204 Md. 352, the physical disability of the wife was a significant factor, negativing the reality of consent, which she denied in her deposition.
We have said that a divorce cannot be granted simply because it would be beneficial to the parties, Lloyd v. Lloyd, supra; Smith v. Smith, 198 Md. 630. Nevertheless, the benefits that may accrue from a severance of the marital tie in the instant case may extend beyond the parties and clear the way for the legitimization of issue, and the wife's action in amending her cross-bill to strike out the prayer for a divorce, without any claim of religious scruples, is not to be particularly commended. Perhaps she feared that if he were granted a divorce she would lose any right to alimony, but under the ground of voluntary separation, alimony may be granted even where the relief is sought by the husband. Foote v. Foote, 190 Md. 171, 180. Here, there was proof that, although the wife has supported herself for thirty years, her health is impaired to the point where she should not continue to work, and she has a prospect of heavy medical expenses. Under the circumstances, we are disposed to reverse the Chancellor's finding that voluntary separation was not made out, and grant the relief prayed in the bill, but to affirm the Chancellor's award of alimony to the appellee.
Decree reversed in part and affirmed in part, costs to be paid by the appellant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544552/ | 213 Md. 527 (1957)
132 A.2d 853
JOHNSON
v.
STATE
[No. 171, October Term, 1956.]
Court of Appeals of Maryland.
Decided June 6, 1957.
The cause was argued before BRUNE, C.J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.
*529 Mark A. Singerman, with whom were Douglas N. Sharretts, Paul Berman, Sigmund Levin and Theodore B. Berman on the brief, for appellant.
James H. Norris, Jr., Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, J. Harold Grady, State's Attorney for Baltimore City, and Norman Polski, Assistant State's Attorney, on the brief, for appellee.
BRUNE, C.J., delivered the opinion of the Court.
This is an appeal by William Henry Johnson, appellant-defendant, from his conviction and sentence in the Criminal Court of Baltimore on the charge of manslaughter by automobile of one Junior Betson.
The case arose out of an accident that occurred on Sunday, March 4, 1956, at about 1:50 A.M. on William Street, which is a one-way four-lane northbound highway leading from Key Highway into an extension of Calvert Street, in the City of Baltimore. Going from Key Highway towards Calvert Street there is first a sharp, right angle curve north onto William Street. Just around the curve on William Street there is a down grade to a hollow where railroad switching tracks cross the street at a right angle, and just north of them William Street is intersected by York Street, a one-way eastbound street running parallel with the railroad tracks. About 150 feet beyond the north side of the York Street intersection William Street makes a sharp turn (almost a right angle turn) to the west. A curb runs along the northeasterly side of William Street as it curves northwesterly towards its junction with the Calvert Street extension. The automobile, operated by the defendant, first struck this curb at a point not far from the point where a line drawn straight north along the middle of William Street from the York Street intersection would meet the curb. It then sideswiped a nearby light pole northwest of this point, damaging the right-hand door of the car, and wound up in a grass plot probably somewhat more than 600 feet southwest from the light pole. In some manner the deceased, who was a passenger riding on the right *530 hand side of the front seat, was thrown from the automobile and was found lying in the roadway 66 feet west of the light pole. He sustained severe injuries in the accident and died a week later as a result thereof.
Miss Wanda Mentzel, a witness for the State, testified that she was driving her automobile north on William Street in the extreme left lane, at about 15 miles an hour, when, as she started to cross York Street north of the curve from Key Highway, she heard wheels squealing. She looked into her rear view mirror and saw a car, which was in the extreme right lane, approaching. It passed her and she stopped her automobile. She estimated that the car was traveling at a speed of about 60 miles per hour at the time it struck the light pole. At an earlier preliminary hearing of this case at the Central District Magistrate's Court, Miss Mentzel also stated that the speed of the defendant's automobile was 60 miles per hour, but on cross-examination in response to a question as to how she arrived at this estimate of speed she replied, "I don't know how fast he was going, I just said that."
The defendant testified that prior to the accident he and Betson had been at an establishment in Brooklyn, Maryland, listening to modern music; that while there he had consumed two bottles of beer from five o'clock Saturday afternoon until he left; that he was driving Betson home when the accident took place; that he had no difficulty in negotiating the right angle curve from Key Highway onto William Street; that he estimated his speed at 35 miles per hour; that he lost control of his car when he ran over the bump caused by the railroad tracks which cross William Street; that his next recollection was when the automobile came to rest on the grass plot.
The testimony of the investigating police officer who appeared as a witness was that he and his colleague arrived at the scene soon after the accident had occurred; the defendant stayed at the scene and identified himself; that he had an odor of alcohol on his breath but his condition was normal, with just the usual nervousness which follows this type of accident; that there was no charge of driving under the influence of alcohol; that the defendant made a statement that he had been struck by another vehicle from the rear. At the *531 trial, the defendant admitted that this statement was not correct. His explanation was that he believed at the time that he had been struck by another car because his automobile made loud scraping and banging noises when it passed over the bump at the railroad tracks which cross William Street.
The trial judge, sitting without a jury, found the defendant guilty of manslaughter because his automobile was going at an excessive rate of speed and the defendant was therefore unable to control it. The controlling question presented is, whether or not on the evidence submitted, the trial court was clearly in error in finding the defendant guilty of the offense charged. Rule 741 c of the Maryland Rules; Basoff v. State, 208 Md. 643, 119 A.2d 917. On the facts of this case, the answer to that question depends upon whether or not, in the circumstances existing at the time and place of the accident, the defendant was operating the automobile at such an excessive rate of speed as to constitute gross negligence within the meaning of Code (1951), Article 27, Section 455. That Section provides in part:
"Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, * * * in a grossly negligent manner, shall be guilty of a misdemeanor to be known as `manslaughter by automobile * * *'."
Since the enactment of the above section in 1941 (Laws of 1941, Ch. 414) this Court has passed upon it in the following cases: Hughes v. State, 198 Md. 424, 84 A.2d 419; Duren v. State, 203 Md. 584, 102 A.2d 277; Thomas v. State, 206 Md. 49, 109 A.2d 909; Clay v. State, 211 Md. 577, 128 A.2d 634; Lilly v. State, 212 Md. 436, 129 A.2d 839. These cases have uniformly recognized that in order to constitute gross negligence, the conduct of the defendant must be such as to amount to a wanton or reckless disregard for human life or for the rights of others.
In the instant case, the evidence of speed as to the defendant is not very clear. Miss Mentzel's estimate of 60 miles per hour was badly weakened by her testimony on cross-examination at the preliminary hearing before a magistrate, *532 which was read to her during the trial in the Criminal Court. The defendant estimated his own speed at 35 miles per hour. If the question were solely one of credibility of witnesses, we should be very hesitant to arrive at a conclusion contrary to that of the trial judge. In addition to the weakness in Miss Mentzel's testimony abovementioned, there also seem to be weaknesses on the defendant's side, both in his claim that he knows nothing of what happened after he hit the bump at the railroad tracks and in his explanation of why he first told the police that another car had struck his. However, any such weaknesses or doubts about the defendant's account of what happened cannot supply a lack of affirmative proof in the State's case, nor do they have any effect upon the significant and undisputed facts that the defendant successfully negotiated the sharp turn to his right from Key Highway into William Street, and that he stayed in the right hand lane of William Street. These physical facts seem to us to indicate that his speed could not have approached 60 miles an hour when he passed the Mentzel car. It is difficult to believe that he would not have been wrecked at the first turn or that he could have gotten into the right hand lane on William Street if he had been traveling at any such speed. There is no testimony that he speeded up after turning into William Street, and he had little distance in which to do so before the accident happened. His speed may well have been such as to establish ordinary negligence for which he would be liable in a civil suit, but that is not the test under our manslaughter statute, which imposes a penalty only for gross negligence.
In the Lilly case this Court quoted from the Duren case at page 443 of 212 Md.: "It is plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time. Speed in the open country on a four lane highway may be very high and not constitute negligence. A much lower rate of speed in a city street may constitute gross negligence. This, too, was the law long before automobiles existed. * * * Obviously, what must be looked for in each case is whether, by reason of the speed in the environment, there was a lessening of the *533 control of the vehicle to the point where such lack of effective control is likely at any moment to bring harm to another. Cf. Darienzo Trucking Corp. v. Sullivan, 202 Md. 32, 39-40, 95 A.2d 293, 296. If there is found such lack of control, whether by reason of speed or otherwise, in a place and at a time when there is constant potentiality of injury as a result, there can be found a wanton and reckless disregard of the rights and lives of others and so, criminal indifference to consequences." To this we added that "Judge Henderson in the dissenting opinion in that [the Duren] case agreed that speed must be weighed in the light of the surrounding circumstances."
An examination of the environment in the present case shows that the defendant was traveling on a one-way, four-lane, through highway; that the time was in the early morning hours of a Sunday; that the traffic was very light; that the general area is devoted to commercial and industrial use, with no houses in the vicinity. The place where the accident occurred is not the congested, populous residential or business area that was involved in the Duren case or the Clay case, nor was there any disregard of both a stop sign and other traffic, as in the Lilly case.
In the Duren case this Court cited with approval the decision of the Court of Appeals of New York in People v. Angelo, 159 N.E. 394, which thoroughly discussed a manslaughter by automobile statute similar to that of Maryland and its effect on the interpretation of the common law understanding of negligence which amounts to crime. A like result was reached in the more recent case in New York of People v. Gardner, 255 A.D. 683, 8 N.Y.S.2d 917. In that case an automobile traveling 60 to 65 miles per hour ran into a culvert and a passenger was killed. A conviction of manslaughter based solely on excessive speed was reversed. The court said in part, "The test is not satisfied by proof of excessive speed amounting to negligence but by proof of speed of that character if such was the case and other circumstances which, as we have seen, together must show a reckless disregard by the accused of the consequences of his conduct and his indifference to the rights of others."
*534 The speed that was indulged in, at the time and in the place, in the case at bar is not such that amounts to criminal indifference to consequences. In the environment of the instant case, the evidence is not, in our estimation, sufficient to warrant a finding of guilt, beyond a reasonable doubt, of conduct on the part of the defendant amounting to a wanton or reckless disregard of the rights and lives of others. We are accordingly of the view that the conviction must be reversed.
Judgment reversed, costs to be paid by the Mayor and City Council of Baltimore. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1542546/ | 410 B.R. 650 (2009)
In re Richard D. KNECHT, Debtor.
No. 08-61666-13.
United States Bankruptcy Court, D. Montana.
March 12, 2009.
*652 James A. Patten, Billings, MT, for Debtor.
MEMORANDUM of DECISION
RALPH B. KIRSCHER, Bankruptcy Judge.
In this Chapter 13 bankruptcy, after due notice, a hearing was held February 17, 2009, in Billings on confirmation of the Debtor's First Amended Chapter 13 Plan (hereinafter the "Plan") filed February 12, 2009, together with the Trustee's objection thereto. The Debtor Richard D. Knecht ("Richard") appeared at the hearing and testified, represented by attorney James A. Patten of Billings, Montana ("Patten"). The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana, appeared at the hearing in opposition to confirmation based upon 11 U.S.C. § 1322(b)(1) alleging the Richard's Plan unreasonably discriminates among unsecured creditors because Richard proposes to pay approximately $36,744.00 on his student loan debt over the life of the Plan, but pay nothing to other general unsecured creditors. No exhibits were offered into evidence, but the Court takes judicial notice of the record in this case. The parties have both filed post-hearing briefs and the matter is now ready for decision. After reviewing the record and applicable law, and for the reasons set forth below, the Trustee's objection to confirmation is sustained and confirmation of Richard's Plan is denied.
Richard's Plan provides for payments of $1,810.00 per month for 60 months, for total plan payments of $108,600.00 over the life of Richards's Plan. The Trustee filed an Objection to confirmation of Richard's Plan on February 13, 2009, arguing that "Debtor is attempting to separately classify the Department of Health and Human Services separate and apart from the class of general unsecured creditors. The Debtor's classification may not be reasonable and may be prohibited by 11 U.S.C. § 1322(b)(1)."
This is a core proceeding under 28 U.S.C. § 157(b)(2)(L) involving confirmation of a plan. At issue is whether Richard's Plan discriminates unfairly against the class of unsecured claims in violation of § 1322(b)(1). This Memorandum of Decision sets forth the Court's findings of fact and conclusions of law.
FACTS
Richard and the Trustee filed the following stipulated facts on February 24, 2009, at docket entry no. 27:
1. The total unsecured claims scheduled on the Debtor's Schedules D, E, and F total $214,793.02.
2. The Internal Revenue Service filed a Proof of Claim asserting, among others, a general unsecured claim of $84,536.38 which is $8,473.18 less than the general unsecured claim scheduled by the Debtor in Schedule E.
3. The U.S. Department of Health and Human Services filed a Proof of Claim asserting a general unsecured claim in the amount of $77,137.25 which is $13,625.94 *653 more than scheduled by the Debtor on Schedule F.
4. American Express has filed a Proof of Claim asserting a general unsecured claim in the amount of $14,266.05 which is $30.00 more than that scheduled by the Debtor in Schedule F.
5. Midland Credit has filed a Proof of Claim asserting a general unsecured claim of $8,580.43 which is $368.34 more than scheduled by the Debtor in Schedule F.
6. The bar date for non-governmental creditors to file claims is April 30, 2009.
7. Based upon the Proofs of Claims filed to date, and the Debtor's Schedules D, E, and F, there are general unsecured claims in the amount of $220,344.12.
8. The general unsecured claim of the U.S. Department of Health and Human Services represents 35% of the total general unsecured claims.
9. The Debtor's Plan will pay a total of $80,400.00 to be distributed to the priority and general unsecured claims. The Internal Revenue Service has filed a priority claim in the amount of $43,656.00, leaving $36,744.00 to be distributed on account of the general unsecured claims.
Additional facts are taken from the testimony at trial and the case docket. Richard is a 53-year-old, self-employed medical doctor who has worked for the past ten years at the Indian Health Service at the Crow Indian Reservation in Big Horn County, Montana. Richard owns a home in Hardin, Montana valued at $74,500.00, which home is encumbered by a first mortgage in the amount of $60,661.54. Pursuant to Schedules B and C, Richard has personal assets valued at $94,376.08, of which $54,963.00 is subject to various exemptions.
Richard lists no dependents on his Schedule I. Richard's average monthly income is $18,500.00. Richard's average monthly expenses are $16,837.10, which amount includes monthly estimated taxes of $7,400.00, ongoing medical training, seminars and travel of $2,700.00 per month, $945.00 per month for health insurance and $2,000.00 per month for medical and dental expenses.
Richard testified that he practices emergency room medicine. Although Richard is not certified to practice emergency room medicine, he was previously certified as a family practice physician, which qualifies him to work in an emergency room. That certification has lapsed and Richard is working on regaining his certification as a family physician, which requires that Richard attend courses, complete 300 credit hours and take an exam. Richard testified that he has accepted a position as the director of the emergency room at a hospital in Moab, Utah and is leaving his contract service position with the Indian Health Service.
Richard entered into a Loan Repayment Program Contract with the U.S. Department of Health and Human Services ("HHS") in 1997. Richard's agreement with HHS requires that Richard practice in areas that are "under-served." The attachments to HHS' proof of claim suggest that in October of 1999, Richard entered into a Repayment Agreement with HHS, agreeing to pay at least $850.00 per month on his student loan debt, which at that time totaled $55,018.32, consisting of principal, interest and other charges. It appears that Richard's last voluntary payment of $850.00 was made to HHS on March 22, 2004. A subsequent payment of $645.00 was made on September 20, 2006, but contains the notation "DOJ," which the Court presumes means the Department of Justice. HHS' attachments to its proof of claim further suggest that Richard has not made a payment to HHS since September *654 20, 2006, and as of Richard's petition date, Richard owed $31,211.59 in interest and $45,925.66 in principal, for a total obligation of $77,137.25.
Richard did not testify as to whether he seeks to cure a default or arrearage on his student loan debt. In addition, Richard's Plan is silent on this fact.
Richard testified that he has given ten years of service to an under-served population. During that time, Richard claims he has tried to repay his debt to HHS, to no avail. Richard seeks to discriminate among his unsecured creditors now, by repaying HHS to the exclusion of other creditors, because: (1) he may not survive long enough or work long enough to repay the amount he owes HHS; and (2) his ten years of service to an under-served population has not been recognized by anyone and "should count for something." Richard explained that his practice in emergency room medicine has been extremely hard on his health. Richard has diabetes, hypertension, high blood pressure, sleep apnea, and is obese. Richard did not suffer from these ailments ten years ago.
Notwithstanding the extreme pressure associated with emergency medicine, Richard intends to continue working in emergency medicine during the term of his Plan because he makes more money in that particular medical field. However, Richard intends to give up emergency medicine at the conclusion of his Plan term and may work only part-time in family medicine.
Without the proposed discrimination, Richard speculates that he would owe HHS $70,000.00 or $80,000.00 at the end of his Plan term. Richard claims he would not be able to repay that debt with his post-bankruptcy income.
The particular provision of Richard's Plan that is at issue reads as follows:
(e) Unsecured Claims. After the payments specified above, the Trustee shall pay dividends to allowed unsecured, nonpriority claims as follows:
Class (e)1: The claim of the United States of America on behalf of the Department of Health and Human Services shall be paid first after payment of the impaired and priority claims.
Class (e)(2): The remaining general unsecured claims shall receive a pro rata share of any amounts paid after satisfaction of the Class (e)-1 claim.
Richard testified that he could carry out his Plan without the proposed discrimination, but would then owe a huge amount of money to HHS at the end of his Plan term. The Trustee called no witnesses and offered no evidence to the contrary, and thus Richard's testimony is uncontroverted.
DISCUSSION
The Trustee objects to confirmation of Richard's Plan, arguing that the Plan unfairly discriminates among the unsecured class of creditors in violation of 11 U.S.C. § 1322(b)(1), because Richard proposes to pay $36,744.00 on his student loans over the life of his Plan,[1] while the other 65% of Richard's unsecured creditors will receive nothing. Discrimination among classes of unsecured claims is governed by 11 U.S.C. § 1322(b)(1) which provides that a plan may "designate a class or classes of unsecured claims ... but may not discriminate unfairly against any class so designated; however, such plan may treat claims for a consumer debt of the debtor if an individual is liable on such *655 consumer debt with the debtor differently than other unsecured claims." The Ninth Circuit Bankruptcy Appellate Panel ("BAP") noted: "By its own terms, § 1322(b)(1) allows for discriminatory treatment among classes of creditors, as long as that treatment is not unfair." Labib-Kiyarash v. McDonald (In re Labib-Kiyarash), 271 B.R. 189, 192 (9th Cir. BAP 2001) (citing In re Sperna, 173 B.R. 654, 658 (9th Cir. BAP 1994)). In Labib-Kiyarash, the BAP held that a debtor may use 11 U.S.C. § 1322(b)(5) to maintain longterm student loan payments at the contract rate while curing any arrearage through the plan, provided that the plan satisfies the test for unfair discrimination under § 1322(b)(1) set forth in Amfac Distribution Corp. v. Wolff (In re Wolff), 22 B.R. 510 (9th Cir. BAP 1982). Labib-Kiyarash, 271 B.R. at 195.
Richard does not indicate whether he is attempting to cure a default or arrearage in student loans, but it is obvious from the record that Richard is not current on his student loan payments. However, the $36,744.00 that Richard proposes to pay to HHS over the term of his 60-month Plan is not sufficient to make Richard's $850.00 student loan payment. In Wolff the BAP recognized that "there will be occasions where unsecured claims might be classified and treated differently, even though the legal character of the claims is identical and the treatment is discriminatory, but not unfairly so," and adopted four factors to consider when determining whether discrimination is "unfair":
(1) whether the discrimination has a reasonable basis;
(2) whether the debtor can carry out a plan without the discrimination;
(3) whether the discrimination is proposed in good faith; and
(4) whether the degree of discrimination is directly related to the basis or rationale for the discrimination.
Wolff, 22 B.R. at 512; In re Labib-Kiyarash, 271 B.R. at 192. This Court followed the Wolff factors in In re Carlson, 276 B.R. 653, 655-56 (Bankr.D.Mont.2002). However, in Carlson, the Court cautioned that "due to the factual nature of the analysis required under the Wolff test and the fact that such test does not provide a great degree of predictability or guidance, the Court is still of the belief that the determination of whether discrimination among creditors is unfair must be made on a case-by-case basis." Carlson, 276 B.R. at 658. The debtor has the burden of proving that the separate classification does not unfairly discriminate against the other unsecured creditors. In re Labib-Kiyarash, 271 B.R. at 195; Carlson, 276 B.R. at 658.
The first Wolff factor is whether the discrimination has a reasonable basis. In the instant case, Richard argues that he has satisfied the first prong of the Wolff test because "the absence of the discrimination will impair the Debtor's fresh start as the Debtor will be faced with a nondischargeable obligation which he will not be able to repay given his age, his health, his ability to earn income, and the remaining amount due to the Department." By itself, nondischargeability of a claim such as a student loan does not provide a reasonable basis for discrimination. Carlson, 276 B.R. at 658; Labib-Kiyarash, 271 B.R. at 196. In order for discrimination to have a reasonable basis it must advance the purposes behind Chapter 13. Carlson, 276 B.R. at 657; Sperna, 173 B.R. at 658. In Sperna, the BAP noted the purposes behind Chapter 13 included affording debtors a fresh start, protecting assets and discharging obligations not excluded from discharge, while at the same time maintaining a balance with other Congressional *656 policy considerations. 173 B.R. at 659. One of those public policy considerations established by Congress is that student loans be repaid. Id.; see also In re Sullivan, 195 B.R. 649, 655 (Bankr.W.D.Tex. 1996).
The BAP noted that factors such as special provisions for the collection of student loans "might be relevant" to justify disparate treatment, but the debtors in Sperna did not present any evidence demonstrating that such factors could affect their plan. Sperna, 173 B.R. at 659. Likewise in Carlson, the debtors offered absolutely no basis for their desire to discriminate in favor of student loans during the last 2 years of a 5-year plan. 276 B.R. 653. By comparison, in In re Jorgensen, Case No. 04-62076-13 (Bankr.D.Mont. Oct. 28, 2004), this Court found that a debtor's proposed discrimination had a reasonable basis where the debtor testified that she was current on her student loan payments, and that if she did not continue to make her regular student loan payments, the student loan creditor would increase her interest rate, impose penalties and fees, and might call her entire loan due, garnish her wages, execute against her checking account and tax refund, and contact credit reporting agencies. Similarly, in In re Demarais, 20 Mont. B.R. 272, 276-77 (Bankr.D.Mont.2002), the Court found a reasonable basis for the debtor's proposed discrimination where the debtor wanted to remain current on his student loan debt and emerge from Chapter 13 with a clean credit history so he could qualify for a home loan.
Richard's sole basis for his proposed discrimination is that he does not know if he will live or work long enough to repay his student loan debt. Richard is a 53-year old individual who earned gross income of $217,034.00 in the twelve months prior to his bankruptcy filing. This Court is not in a position to speculate on how long Richard will live or work and cannot speculate on Richard's future earning potential. Thus, Richard's argument is that because of his diabetes, hypertension, high blood pressure, sleep apnea, and weight issues, he does not want to have a large non-discharged student loan debt at the end of his Plan term.
The problem with Richard's argument is that he failed to link his health issues to his life span or his ability to earn a respectable wage after the completion of his Plan. Richard testified that he will not continue to work in emergency medicine because of the high stress, but that certainly does not preclude Richard from working in other areas of the medical field, such as family medicine. What this case boils down to is a desire by Richard to pay his non-dischargeable debt, under the protection of bankruptcy, and discharge his other unsecured, dischargeable debt. Consequently, this Court concludes that Richard's proposed discrimination does not advance the purposes of Chapter 13, Carlson, 276 B.R. at 657; Sperna, 173 B.R. at 658, and thus, Richard has not satisfied the first prong of the Wolff test, showing the discrimination has a reasonable basis.
Factor two of the Wolff test considers whether the debtor can carry out a plan without the discrimination. In Carlson the Court noted that the debtors could carry out the plan without the discrimination, unlike the debtor in In re Benner, 146 B.R. 265 (Bankr.D.Mont.1992). 276 B.R. at 659-660. During examination, the Trustee elicited an admission from Richard that he could make plan payments without the separate classification of student loan debts. Moreover, Richard further acknowledges in his post-hearing brief that his "Plan can be carried out without the discrimination and that the discrimination may not be directly related to the rationale *657 of the discrimination[.]" That admission is determinative in this case with respect to factor two of the Wolff test.
As to factor three, the BAP instructs that "an appropriate view of good faith under the Wolff test is whether the discrimination involved furthers the goals of the debtor, satisfies the purposes behind Chapter 13 and does not require any creditor or group to bear an unreasonable burden. For example, if the plan were being used to effectively accelerate payments on the loans at the expense of the unsecured creditors, such discrimination would be in bad faith." Sperna, 173 B.R. at 660; Carlson, 276 B.R. at 657.
Richard's Plan does not propose to maintain his regular long-term monthly student loan payments, which payments were in default long before Richard sought protection under the Bankruptcy Code. Richard does, however, propose to increase his payments to HHS almost tenfold (approximately $612.40 per month under his Plan) over what he was paying HHS, on average, for the 60 months prior to his petition date (roughly $67.42 per month). Richard's proposed discrimination effectively accelerates payments on the student loan debt at the expense of the other unsecured nonpriority creditors. Moreover, the unsecured creditors in this case, who Richard proposes to pay nothing, would be much better off if this case was proceeding under Chapter 7 because based upon Richard's Schedules B and C, said creditors would receive approximately $25,618.51, less the applicable trustee fees. Based upon the foregoing, the Court finds that Richard has failed to satisfy the third Wolff factor by showing that the discrimination is proposed in good faith.
The final Wolff factor is whether the degree of discrimination is directly related to the basis or rationale for the discrimination. In Sperna, the BAP clarified its distinction between factor 2 and factor 4 as follows: "The second factor asks whether any discrimination at all is necessary. If the answer is affirmative, the court must then determine if the amount, or degree, of discrimination proposed is directly related to the reason for the discrimination." Sperna, 173 B.R. at 660; Carlson, 276 B.R. at 657. As with factor two, Richard concedes that he is not able to show that his proposed discrimination is directly related to the basis or rationale for the discrimination. Richard has the burden of proving that the separate classification does not unfairly discriminate against the other unsecured creditors. In re Labib-Kiyarash, 271 B.R. at 195; Carlson, 276 B.R. at 658. Richard has failed to sustain his burden of proof with respect to factor four of the Wolff test.
This Court believes that the determination of whether discrimination among creditors is unfair under § 1322(b)(1) must be made on a case-by case basis. Carlson, 276 B.R. at 658. The Court has wide discretion in making this determination. In re Labib-Kiyarash, 271 B.R. at 196; Carlson, 276 B.R. at 658. In Carlson the debtors offered no evidence in support of their proposed discrimination. Carlson, 276 B.R. at 660. In Pearson, the debtor offered mostly his attorney's argument, without personal knowledge of the effect default would have without the discrimination. This case is not unlike Carlson or Pearson.
Exercising its wide discretion, this Court concludes that Richard has failed to satisfy his burden of proving that the separate classification of Richard's student loan debt does not discriminate unfairly against the other unsecured nonpriority claims. In re Labib-Kiyarash, 271 B.R. at 195; Wolff, 22 B.R. at 512. Accordingly, the *658 Court will enter a separate order providing as follows:
IT IS ORDERED the Trustee's objections to confirmation filed February 13, 2009, is SUSTAINED; confirmation of Richard's First Amended Chapter 13 Plan filed February 12, 2009, is DENIED; Richard shall file a further amended Chapter 13 plan on or before March 24, 2009; and a hearing on confirmation of Richard's further amended Chapter 13 plan shall be held Tuesday, April 21, 2009, at 09:00 a.m., or as soon thereafter as the parties can be heard, in the 5TH FLOOR COURTROOM, FEDERAL BUILDING, 316 NORTH 26TH, BILLINGS, MONTANA.
NOTES
[1] The attachments to HHS' Proof of Claim indicate that Richard made student loan payments totaling $4,045.00 during the five-year period preceding his bankruptcy petition date. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/773252/ | 250 F.3d 67 (2nd Cir. 2001)
PROJECT HOPE, PLAINTIFF-APPELLEE/CROSS-APPELLANT,v.M/V IBN SINA, HER ENGINES, BOILERS, ETC., AND NEPTUNE ORIENT LINES, LTD., DEFENDANTS,UNITED ARAB AGENCIES, INC., AND UNITED ARAB SHIPPING COMPANY, DEFENDANTS-APPELLEES,BLUE OCEAN LINES, DEFENDANT/THIRD-PARTY PLAINTIFF,v.MILL TRANSPORTATION COMPANY, THIRD-PARTY-DEFENDANT-APPELLANT/CROSS-APPELLEE.
Docket Nos. 00-7498(L), 00-7532(XAP)August Term 2000
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
Argued: December 5, 2000May 4, 2001
Third-party-defendant-appellant/cross-appellee Mill Transportation Company appeals following a bench trial in the United States District Court for the Southern District of New York (William H. Pauley III, Judge) in which it and defendant-appellee/third-party plaintiff Blue Ocean Lines were held jointly and severally liable to plaintiff- appellee/cross-appellant Project Hope for spoiled cargo. Project Hope cross-appeals contending that the district court erred both in its calculation of damages and in its dismissal of the claims against defendants-appellees United Arab Agencies, Inc. and United Arab Shipping Company.
Affirmed in part, vacated in part and remanded for recalculation of damages.[Copyrighted Material Omitted]
Patrick J. Corbett, Esq., Bigham, Englar, Jones &Houston, New York, NY, for Third-Party-Defendant-Appellant/Cross-Appellee Mill Transportation Company.
David Y. Loh, Esq., Nicoletti Hornig Campise & Sweeney, New York, NY, for Plaintiff-Appellee/Cross-Appellant Project Hope.
Robert A. Milana, Esq., London Fischer LLP, New York, NY, for Defendants-Appellees United Arab Agencies, Inc. and United Arab Shipping Company.
Before: Walker, Chief Judge, Cabranes and Straub, Circuit Judges.
John M. Walker, Jr., Chief Judge
1
Third-party-defendant-appellant/cross-appellee Mill Transportation Company ("Mill") appeals from a verdict, following a bench trial, of the United States District Court for the Southern District of New York (William H. Pauley III, Judge) finding Mill and defendant- appellee/third-party plaintiff Blue Ocean Lines ("Blue Ocean") jointly and severally liable to plaintiff-appellee/cross-appellant Project Hope for 95,474 vials of spoiled humulin, a type of insulin. See Project Hope v. M/V IBN SINA, 96 F. Supp. 2d 285, 298 (S.D.N.Y. 2000).
2
Project Hope initially contracted with Blue Ocean for transport of the humulin from Winchester, Virginia to Cairo, Egypt via the port of Norfolk, Virginia. Blue Ocean, in turn, subcontracted with Mill for the overland portion of the transport in Virginia and with United Arab for the oceangoing leg of the transport. When Mill transported the humulin at the wrong temperature, it spoiled.
3
On appeal, Mill challenges on two grounds that part of the district court's judgment making the damage award joint and several. First, Mill argues that in imposing joint and several liability the district court improperly resorted to federal admiralty law, which permits joint and several awards in the normal course in cases involving multiple tortfeasors. Second, Mill argues that, in any event, Project Hope failed to assert direct claims against Mill and cannot look to it for recovery.
4
Project Hope cross-appeals, contending that the district court erred (1) in relying on the replacement cost for the spoiled humulin to measure damages, (2) in calculating the actual damage award, and (3) in dismissing its claims against defendant-appellee United Arab Shipping Co. and its United States agent, defendant-appellee United Arab Shipping Agencies, Inc. (collectively, "United Arab").
5
We hold that the district court did not err in allowing joint and several recovery against Mill or in holding Mill liable to Project Hope despite Project Hope's failure to assert claims against Mill directly. With respect to Project Hope's cross-appeal, we hold both that the district court did not err in relying on the humulin's replacement cost to measure Project Hope's damages and that the district court properly dismissed Project Hope's claims against United Arab. However, because we find that the district court improperly calculated Project Hope's actual loss, we vacate the damage award and remand the case to the district court for recalculation.
6
The judgment of the district court is thus affirmed in part, vacated in part and remanded for recalculation of damages.
BACKGROUND
7
Familiarity with the detailed factual account in the district court's opinion is assumed. See Project Hope, 96 F. Supp. 2d at 287-91. We recite only those facts relevant to the disposition of this appeal. No challenge has been made to the district court's factual findings, which we take to be true.
8
On October 11, 1996, Eli Lilly and Company ("Eli Lilly") donated to Project Hope 95,474 vials of humulin--a chemically synthesized form of insulin manufactured exclusively by Eli Lilly and taken "by more than 4 million people with diabetes around the world every day," see http://www.lillydiabetes.com/products/humulin.cfm (last visited April 6, 2001). Humulin must be stored within five degrees of 42 F at all times; otherwise, it will spoil.
9
Project Hope is a private, non-profit organization that makes charitable donations of medicine and pharmacy supplies both in the United States and abroad. In early October 1996, Project Hope contracted with Blue Ocean--a non-vessel owning common carrier--for it to arrange the transport of the donated humulin from Project Hope's warehouse in Winchester, Virginia to Cairo, Egypt. Blue Ocean, in turn, contracted separately with United Arab for the ocean carriage and Mill for the overland motor carriage. The arrangements called for United Arab to provide a refrigerated container ("reefer") to be used throughout the transport from Winchester to Cairo; United Arab was also to transport the humulin on board its vessel from the Virginia International Terminal in Norfolk, Virginia ("the Norfolk Terminal") to Cairo. Mill's responsibilities included picking up the empty reefer from United Arab at Norfolk Terminal, transporting the reefer to Project Hope's Winchester warehouse, waiting there while Project Hope's staff loaded the humulin into the reefer, and transporting the humulin-filled reefer back to the Norfolk Terminal for loading aboard United Arab's vessel.
10
On October 13, 1996, Blue Ocean prepared and faxed to Mill a dock receipt that stated in relevant part: "Temperature must be 42 F plus or minus 5 F **** Do not freeze **** Vents must be closed." According to the facts stipulated by the parties and accepted by the district court, neither Blue Ocean nor Mill provided a copy of the dock receipt to United Arab. On October 15, 1996, a Blue Ocean employee negligently misinformed a member of United Arab's staff that the reefer's temperature should be set at 24 F--eight degrees below freezing--rather than the proper 42 F temperature. As a result, United Arab set the reefer's temperature at 24 F.
11
Later that same day a truck driver for Mill picked up United Arab's reefer at the Norfolk Terminal and, the next morning, transported it to Project Hope's Winchester warehouse. Project Hope's personnel loaded the humulin into the reefer, but neither Mill's driver nor anyone on Project Hope's staff verified that the reefer's temperature was set properly. After the humulin was loaded, Mill issued a straight bill of lading to Project Hope for the inland transportation between Winchester and Norfolk.
12
Mill's driver returned to the Norfolk Terminal with the humulin on October 17, 1996, whereupon terminal personnel inspected the reefer and then issued Mill's driver a receipt that documented the container's temperature at -2 C (between 26 F and 28 F). At some point during the weekend of October 20, 1996, as United Arab was preparing to load the reefer onto its vessel, an United Arab employee discovered the error. As a consequence, the reefer was not loaded onto United Arab's vessel, and United Arab informed Blue Ocean, which in turn informed Project Hope, of the situation. No one disputes that "placing the [humulin] in a sub-freezing environment" rendered it "unfit for use and thus a total loss." Project Hope, 96 F. Supp. 2d at 291.
13
On December 20, 1996, Project Hope's insurance underwriter, Kemper Insurance Co. ("Kemper"), paid Project Hope for the spoiled humulin and for other incidental damages. On or about January 17, 1997, Project Hope used the insurance proceeds to purchase a replacement shipment from Eli Lilly. However, due to a January 1, 1997 increase in the price of humulin from $3.60 to $4.00 per vial, Project Hope was only able to secure with the insurance proceeds a replacement shipment of 85,927 vials of humulin, as compared to the 95,474 donated vials that had spoiled.1
14
On May 27, 1997, Project Hope sued, inter alia, defendants Neptune Orient Lines, Ltd.,2 United Arab, and Blue Ocean, alleging that they had breached their duties and obligations as common carriers. Thereafter, defendant Blue Ocean filed a third-party complaint against Mill. Mill answered both Blue Ocean's complaint and Project Hope's original complaint.
15
On March 21, 2000, following a bench trial, the district court found Mill and Blue Ocean jointly and severally liable in the amount of $358,928.26, of which $343,708 was Project Hope's recovery for the humulin. See id. at 297-98. The district court also found that United Arab was not responsible for the incorrect temperature setting and therefore dismissed the claims against United Arab. See id. at 294.
16
Mill's appeal and Project Hope's cross-appeal followed.
DISCUSSION
I. Mill's Appeal
17
The thrust of Mill's appeal is directed toward avoiding liability, joint and several or otherwise, for the loss Project Hope suffered. It asserts two arguments in this effort. Despite its less-than-pellucid briefing on the issue, we understand Mill's first argument to be that the district court erroneously resorted to federal admiralty law principles in deciding to impose joint and several liability on Mill. See Project Hope, 96 F. Supp. 2d at 292 n.6. Mill's second argument is that after it was impleaded by Blue Ocean under Federal Rule of Civil Procedure 14(a), Project Hope failed to amend its original complaint to assert direct claims against Mill, and, thus cannot look to Mill for recovery.
A. Admiralty
18
As noted, Mill's argument seems to be that the district court, in imposing joint and several liability, erroneously resorted to the federal common law of admiralty, under which such awards are a standard remedy in cases involving multiple tortfeasors. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 220-21 (1994) (noting that in admiralty "[j]oint and several liability applies when there has been a judgment against multiple defendants"); The Atlas, 93 U.S. 302, 317-19 (1876) (adopting joint and several liability rule in admiralty); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1124-30 (5th Cir. 1995) (en banc) (stating that "joint and several liability is the maritime rule" and noting that "[b]y 1876, the common-law rule of joint and several liability" was being adopted in admiralty); Pennsylvania R.R. v. The Beatrice, 275 F.2d 209, 212-13 (2d Cir. 1960); see also 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-5, at 167 (2d ed. 1994); Celeste Coco-Ewing, Coats v. Penrod Drilling Corporation: The Fifth Circuit Adheres to the Doctrine of Joint and Several Liability in the General Maritime Law, 70 Tul. L. Rev. 785, 788 (1995); Marie R. Yeates et al., Contribution and Indemnity in Maritime Litigation, 30 S. Tex. L. Rev. 215, 217 (1989); cf. Drake Towing Co. v. Meisner Marine Constr. Co., 765 F.2d 1060, 1068 (11th Cir. 1985).
19
Mill's premise is infirm, however. Our review of the district court's judgment against Mill--both the finding of liability and the imposition of joint and several recovery--reveals that it was not grounded in admiralty.3 See Project Hope, 96 F. Supp. 2d at 291-98. Rather, Mill's liability and the joint and several award were determined exclusively under two federal statutory schemes: the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. §§ 1300 et seq., and the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706.4 We therefore turn to consider whether the joint and several award against Mill was proper under these statutes. The prima facie cases for both COGSA and the Carmack Amendment are identical for all relevant purposes here.
B. COGSA and the Carmack Amendment
20
COGSA is not a proper basis for Mill's joint and several liablity. By its express terms, COGSA only "covers the period from the time when the goods are loaded on to [the ship] to the time when they are discharged from the ship." 46 U.S.C. § 1301(e) (defining "carriage of goods"); see also id. § 1300 (COGSA covers "contract[s] for the carriage of goods by sea to or from ports of the United States, in foreign trade . . . ."). Mill's negligence in failing to ensure that the reefer was set at the proper temperature occurred exclusively on land, while the humulin was being transported from Project Hope's Winchester warehouse to the Norfolk Terminal. Therefore, Mill's negligence was plainly outside COGSA's reach.5
21
The Carmack Amendment, however, does govern Mill's negligence.6 In pertinent part, the Carmack Amendment provides: [A] carrier and any other carrier that deliver[] the property and [are] providing transportation or service subject to jurisdiction under [49 U.S.C. § 13501 are] liable to the person entitled to recover under the . . . bill of lading. The liability imposed . . . is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States . . . . 49 U.S.C. § 14706(a)(1).
22
The Carmack Amendment's reach is determined by reference to 49 U.S.C. § 13501, the provision of the Interstate Commerce Act that now establishes the regulatory jurisdiction of the U.S. Surface Transportation Board (formerly the Interstate Commerce Commission) with respect to the "transportation by motor carrier" of passengers and property. In relevant part, § 13501 extends the reach of the Carmack Amendment to motor carrier transportation of property:
23
(1) between a place in
24
(A) a State and a place in another State; [or]
25
(E) the United States and a place in a foreign country to the extent the transportation is in the United States; . . . .
26
Where multiple carriers are responsible for different legs of a generally continuous shipment, whether either § 13501(1)(A) or (E) is satisfied to trigger application of the Carmack Amendment is determined by reference to the intended final destination of the shipment as that intent existed when the shipment commenced. See Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 699 (11th Cir. 1986) ("The nature of a shipment is not determined by a mechanical inspection of the bill of lading nor by when and to whom title passes but rather by the essential character of the commerce, reflected by the intention formed prior to shipment, pursuant to which property is carried to a selected destination by a continuous or unified movement." (internal citations and quotation marks omitted)); cf. Southern Pac. Transp. Co. v. ICC, 565 F.2d 615, 617 (9th Cir. 1977) (discussing the reach of Interstate Commerce Commission's jurisdiction). This intent fixes the character of the shipment for all the legs of the transport within the United States. See New York, New Haven & Hartford R.R. v. Nothnagle, 346 U.S. 128, 131 (1953) (citing Sprout v. South Bend, 277 U.S. 163, 168 (1928)); Greenwald v. Pan Am. World Airways, Inc., 547 F. Supp. 159, 161-62 (S.D.N.Y. 1982).
27
Thus, if the final intended destination at the time the shipment begins is another state, the Carmack Amendment applies throughout the shipment, even as to a carrier that is only responsible for an intrastate leg of the shipment. See, e.g., Merchants Fast Motor Lines, Inc. v. ICC, 528 F.2d 1042, 1044 (5th Cir. 1976) (discussing challenge to ICC ruling and stating "[i]t is elemental that a carrier is engaged in interstate commerce when transporting goods either originating in transit from beyond Texas or ultimately bound for destinations beyond Texas, even though the route of the particular carrier is wholly within one state"); Martinez v. Phillips Petroleum Co., 283 F. Supp. 514, 530-31 (D. Idaho 1968); cf. Texas v. United States, 866 F.2d 1546, 1559-60 (5th Cir. 1989) ("Determining the existence of the requisite `fixed and persisting' intent to move goods in interstate commerce turns in significant part on the factual context of each case."); Burlington N. Inc. v. Weyerhaeuser Co., 719 F.2d 304, 310 (9th Cir. 1983) (noting "intent manifested . . . at the time of shipment" fixes interstate or intrastate character of shipment and finding intent was for intrastate shipment). Similarly, if the final intended destination at the time the shipment begins is a foreign nation, the Carmack Amendment applies throughout the entire portion of the shipment taking place within the United States, including intrastate legs of the shipment. See Swift Textiles, 799 F.2d at 698-700; cf. United States v. Erie R.R., 280 U.S. 98, 102 (1929) ("[The character of a shipment] is not affected by the fact that the transaction is initiated or completed under a local bill of lading which is wholly intrastate . . . ."); Texas & New Orleans R.R. v. Sabine Tram Co., 227 U.S. 111, 126 (1913); Long Beach Banana Dist., Inc. v. Atchison, Topeka & Santa Fe Ry., 407 F.2d 1173, 1180-81 (9th Cir. 1969).
28
Here, Project Hope's intention that the humulin travel in foreign commerce was fixed before Mill transported the humulin from Project Hope's Winchester warehouse to the Norfolk Terminal. As a result § 13501(1)(E) is satisfied, and the Carmack Amendment governs Mill's liability even though Mill's role in the humulin's shipment was restricted exclusively to Virginia.
29
Having concluded that the Carmack Amendment controls Mill's liability, we must consider whether the district court's imposition of the joint and several award was permissible under the Carmack Amendment. To answer this question, we look to the federal common law of damages, which informs the propriety of damage remedies under the Carmack Amendment.7 See, e.g., Hector Martinez & Co. v. Southern Pac. Transp. Co., 606 F.2d 106, 108 (5th Cir. 1979) ("[The Carmack Amendment] incorporates common law principles for damages."); J & H Flyer Inc. v. Pennsylvania R.R., 316 F.2d 203, 205 (2d Cir. 1963); see also Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 277 (1st Cir. 2000); F.J. McCarty Co. v. Southern Pac. Co., 428 F.2d 690, 693 (9th Cir. 1970).
30
Doing so, we find that the district court's imposition of joint and several liability in this case was consistent with the federal common law of damages and, therefore, permissible under the Carmack Amendment. The district court imposed joint and several liability only after concluding that--as between Blue Ocean and Mill--"the record d[id] not permit a fair allocation of comparative fault." Project Hope, 96 F. Supp. 2d at 298. Where a fair allocation of liability cannot be made among multiple tortfeasors, the federal common law permits imposition of joint and several liability. See, e.g., Restatement (Second) of Torts § 879 (1979) ("If the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive."); W. Page Keeton, Prosser and Keeton on Torts § 52, at 347-48 (5th ed. 1984) ("Single Indivisible Result: Certain results, by their very nature, are obviously incapable of any reasonable or practical division and . . . [n]o ingenuity can suggest anything more than a purely arbitrary apportionment of such harm. Where two or more causes combine to produce [a single loss], each may be a substantial factor in bringing about the loss, and if so, each is charged with all of it."); cf. Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619, 625-26 (2d Cir. 1980) (holding that, under the Carmack Amendment, comparative fault is the appropriate method for assigning liability among joint tortfeasors where fault is assignable).
31
Because the district court found that liability could not be fairly apportioned--a factual conclusion that is not challenged by Mill in this appeal--and because the common law of damages allows resort to joint and several liability in such instances, we hold that the district court's joint and several award against Mill was proper under the Carmack Amendment.
C. Rule 14(a)
32
Mill's second line of attack on the joint and several award centers on the fact that after Blue Ocean served its third-party complaint against Mill pursuant to Federal Rule of Civil Procedure 14(a), Project Hope did not amend its original complaint to directly assert a claim against Mill. Mill argues that, as a result, it cannot be held liable to Project Hope. We disagree.
33
Mill has waived this challenge because it failed--either out of error or strategy--to raise it properly before the district court. If Mill had voiced an objection to the district court before the bench trial, Project Hope easily could have amended its complaint to assert claims directly against Mill. See Fed. R. Civ. P. 15(a). Even if Mill had raised the objection in a post-trial motion--when it was absolutely clear that Mill was to be held directly accountable to Project Hope--the district court could have taken steps to ameliorate any injury to Mill by, among other options, permitting Mill to amend its complaint to conform to the evidence at trial. See Fed. R. Civ. P. 15(b).
34
In any event, we hold that a formal amendment of a plaintiff's complaint asserting causes of action against a party impleaded under Rule 14(a) is unnecessary if the third-party is effectively on notice that it will be held liable on the plaintiff's claims and the two proceed against one another in an adverse manner. See, e.g., Wasik v. Borg, 423 F.2d 44, 46 (2d Cir. 1970); Falls Indus., Inc. v. Consolidated Chem. Indus., Inc., 258 F.2d 277, 287 (5th Cir. 1958); cf. generally Fed. R. Civ. P. 1 ("[The rules] shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."). The record is clear that throughout the district court proceedings Mill and Project Hope conducted themselves as though Project Hope was proceeding directly against Mill. For example, on its own initiative, Mill answered Project Hope's complaint and, in doing so, expressly denied that it breached any duty of care or contractual obligation owed to Project Hope. Likewise, Mill filed a pre-trial motion seeking dismissal of Project Hope's claims, which Project Hope contested.
35
For all of the foregoing reasons, the award of joint and several liability against Mill stands.
II. Project Hope's Cross-Appeal
36
In its cross-appeal, Project Hope makes three arguments. First, it challenges the district court's use of the replacement cost, rather than the fair market value, to measure the value of the destroyed humulin. Second, Project Hope argues that even if the replacement value is the correct measure of damages, the district court erred in calculating the humulin's actual replacement cost. Third, Project Hope argues that the district court erred in dismissing the claims against United Arab because, it contends, United Arab had a "non-delegable duty to provide a vehicle suitable for the intended transportation."
37
We consider each of these contentions in turn.
A. Method of Measuring Damages
38
We review the district court's choice of a measure of damages for an abuse of discretion. Cf. Thyssen, Inc. v. S/S EUROUNITY, 21 F.3d 533, 540 (2d Cir. 1994) (analyzing damages under COGSA). Having done so, we conclude that the district court did not exceed its discretion in relying on the replacement cost to calculate Project Hope's damages for the spoiled humulin.
39
Contrary to Project Hope's argument on appeal, the fair market value is not the exclusive measure of damages under the Carmack Amendment. See id.; Oak Hill Cap & Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir. 1990). While it is true that damages under the Carmack Amendment should generally be based on the fair market value, see Contempo Metal Furniture Co. v. East Tex. Motor Freight Lines Inc., 661 F.2d 761, 764 (9th Cir. 1981), we have held that it need not be applied if "circumstances suggest a more appropriate alternative." Thyssen, 21 F.3d at 540 (internal citation omitted).
40
Here, no open market existed to provide a fair market value of humulin, thus warranting reliance on the replacement cost. While Project Hope attempted to "construct" various market values from, among other considerations, the value Eli Lilly established in its "`gift in kind' inventory report" when it donated the original shipment of humulin, see Project Hope, 96 F. Supp. 2d at 291, the district court acted within its discretion in rejecting these constructed values because it reasonably believed they provided less reliable measures of Project Hope's loss. See id. at 297 (reasoning that a "greater award of damages [above the actual replacement cost] based on an artificial estimation of market value would only result in a windfall to Project Hope").
B. Calculation of Damages
41
Project Hope next argues that even if the replacement cost for the humulin is appropriate for measuring damages, the district court's actual calculation was too low. Project Hope bases this argument on the fact that the portion of the district court's damage award going to the replacement of the humulin--$343,7088 --covers the replacement of only 85,297 vials of humulin, which is 9,547 vials fewer than was actually lost due to the negligence of Mill and Blue Ocean. Compare Project Hope, 96 F. Supp. 2d at 297 ("Thus, Project Hope is entitled to recover $343,708 against Blue Ocean and Mill for the cost of securing the replacement shipment of humulin."), with id. at 291 ("With the insurance proceeds from Kemper, Project Hope secured a replacement shipment of 85,927 vials of humulin--somewhat less than the 95,474 vials contained in the original shipment--at a price of $343,708.").
42
A plaintiff suing under the Carmack Amendment is entitled to the "actual loss or injury to the property caused by . . . the carrier." 49 U.S.C. § 14706; see, e.g., Cleveland v. Beltman N. Am. Co., 30 F.3d 373, 377 (2d Cir. 1994); Oak Hall Cap & Gown Co., 899 F.2d at 296; see also Fredette v. Allied Van Lines, Inc., 66 F.3d 369, 372 (1st Cir. 1995). The $343,708 that was intended to cover the replacement cost of the humulin plainly did not compensate Project Hope fully for its "actual loss" since Project Hope was unable to replace all of the spoiled vials.
43
Mill nonetheless argues that the deficiency Project Hope suffered was one of its own making and that, as a result, Mill should not be made to cover the deficiency. Specifically, Mill argues that if Project Hope had purchased replacement humulin on December 20, 1996, the day it received the insurance proceeds from its insurer, Kemper, the $343,708 would have fully replaced the humulin that spoiled. Mill contends that, instead, Project Hope delayed ordering the replacement humulin until January 17, 1997, by which time Eli Lilly had increased the price per vial from $3.60 to $4.00, which precluded the $343,708 from fully replacing the original shipment of humulin.
44
Under the Carmack Amendment, Mill has the burden to prove that the plaintiff did not exercise reasonable diligence in mitigating its damages. See Frosty Land Foods Int'l v. Refrigerated Transport, 613 F.2d 1344, 1349 (5th Cir. 1980). We believe that Mill has failed to carry that burden. Eli Lilly's price increase occurred on January 1, 1997. Therefore, to accept Mill's argument, we would have to conclude that Project Hope acted unreasonably in delaying its replacement of the humulin for eleven days--that is, from its receipt of the insurance proceeds on December 20, 1996 until Eli Lilly's January 1, 1997 price increase. This we cannot do; under the circumstances, Project Hope did not act unreasonably.
C. Claims Against United Arab
45
Finally, Project Hope contends that the district court erred in dismissing the claims against United Arab because, according to Project Hope, United Arab owed it a "non-delegable duty to provide a [reefer] suitable for the intended transportation." We are unpersuaded by this argument.
46
Even if United Arab owed a non-delegable duty to Project Hope to provide a suitable reefer, the dismissal of the claims against United Arab would remain appropriate. The fact remains that neither United Arab nor anyone to whom it delegated its duty of care to ensure the reefer's suitability acted negligently to proximately cause the humulin's spoilation.9 See Project Hope, 96 F. Supp. 2d at 293 ("[T]he Court finds that . . . the loss of the humulin was caused by something other than [United Arab's] own negligence."); id. at 294 ("In sum, United Arab was not negligent. Among the defendants, fault for the incorrect temperature setting lies with Mill and Blue Ocean.").
CONCLUSION
47
For the foregoing reasons, we affirm the district court's imposition of joint and several liability against Mill, but in response to the cross- appeal we vacate the damage award and remand the case for recalculation of damages based on the January 17, 1997 replacement cost for the 95,474 vials of humulin that were lost.
48
We also affirm the district court's dismissal of the claims against United Arab.
49
Mill shall bear the costs of this appeal.
NOTES:
1
If Project Hope had purchased the replacement shipment of humulin before the January 1, 1997 price increase from $3.60 per vial, the total replacement cost for the 95,474 vials of spoiled humulin would have been $343,706.40, and thus the district court's $343,708 award would have completely covered the cost of replacement. However, after the price increase to $4.00 per vial on January 1, 1997, the total replacement cost for the 95,474 vials of spoiled humulin increased to $381,896. See Project Hope, 96 F. Supp. 2d at 291, 297.
2
The claims against Neptune Orient Ocean Lines were not pursued in the district court and are not at issue on this appeal. See Project Hope, 96 F. Supp. 2d at 287 n.3.
3
We note that to the extent the district court's opinion can be read to imply that Mill's liability to Blue Ocean arises from admiralty common law, see Project Hope, 96 F. Supp. 2d at 292 n.6, it is mistaken. Admiralty jurisdiction reaches contracts that are exclusively maritime, as well as certain "mixed" contracts, which are contracts that involve both maritime and non-maritime obligations. See Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 555 (2d Cir. 2000). Because Blue Ocean's contract with Mill for motor carriage of the humulin from Westminster, VA to Norfolk, VA was exclusively nonmaritime, admiralty jurisdiction would not reach disputes arising under it.
4
Effective January 1, 1996, the Carmack Amendment was recodified at 49 U.S.C. § 14706 from 49 U.S.C. § 11707 (1995), by the ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995), which reorganized the Interstate Commerce Act by eliminating some provisions and relocating the remaining provisions to other places in Title 49. This recodification worked no substantive change on the Carmack Amendment.
5
The parties could have "extend[ed] COGSA so that it applie[d] prior to loading . . . , see 46 U.S.C. § 1307, but the extent of any application beyond the scope of the statute is a matter of contract," Hartford Fire Ins. Co., 230 F.3d at 557 (footnote omitted). There is no indication that such a contractual extension was undertaken with respect to Mill's liability to Project Hope. Cf. Project Hope, 96 F. Supp. 2d at 292 n.4 (noting that defendants Blue Ocean and United Arab contend that COGSA had been contractually extended to govern their liability to Project Hope before loading).
6
Surprisingly, none of the parties referenced the Carmack Amendment in their briefs, and its applicability was only first addressed in response to an inquiry by the court during oral argument--despite the fact that the district court plainly relied on either COGSA or the Carmack Amendment to assess liability, see Project Hope, 96 F. Supp. 2d at 291-94. Thus, we think a brief excursion into the background of the Amendment is in order.
The Carmack Amendment was enacted in 1906 as an amendment to the Interstate Commerce Act of 1887. See Ward v. Allied Van Lines, Inc., 231 F.3d 135, 138 (4th Cir. 2000) (citing Act of June 29, 1906, ch. 3591, 34 Stat. 584). In enacting it, Congress intended to provide interstate carriers with reasonable certainty and uniformity in assessing their risks and predicting their potential liability. See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 381 (5th Cir. 1998); Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 704 (4th Cir. 1993). The Carmack Amendment did this both by establishing a single uniform regime for recovery by shippers "directly from [the] interstate common carrier in whose care their [items] are damaged," Windows, Inc. v. Jordan Panel Sys. Corp., 177 F.3d 114, 117-18 (2d Cir. 1999), and by "preempt[ing] [the] shipper's state and common law claims against a carrier for loss or damage to goods during shipment," Ward, 231 F.3d at 138; see, e.g., Adams Express Co. v. Croninger, 226 U.S. 491, 505 (1913). See generally Jeanne Kaiser, Moving Violations: An Examination of the Broad Preemptive Effect of the Carmack Amendment, 20 W. New Eng. L. Rev. 289, 294-301 (1998).
"To make a prima facie case under the Carmack Amendment, a plaintiff must show 1) delivery to the carrier in good condition; 2) arrival in damaged condition; and 3) the amount of damages caused by the loss." See, e.g., Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 274 (1st Cir. 2000) (citing Missouri Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137-38 (1964)). Once the prima facie case is established, "[l]iability attaches unless the carrier can establish one of several affirmative defenses; for example, by showing that the damage was the fault of the shipper or caused by an Act of God." Windows, 177 F.3d at 118; see, e.g., Allied Tube & Conduit Corp. v. Southern Pac. Transp. Co., 211 F.3d 367, 369 n.2 (7th Cir. 2000) ("The excepted causes are: acts of God, the public enemy, the act of the shipper himself, public authority, or the inherent vice or nature of the goods." (citing Missouri Pac. R.R., 377 U.S. at 137)).
7
While the Carmack Amendment governs the liability of carriers to the original shipper of the goods (here, the liability of Blue Ocean and Mill to Project Hope), the situation is different regarding the liability of the two carriers inter sese (here, the liability of Mill and Blue Ocean to one another). "[O]rdinary rules of [the applicable state's] negligence [law] govern . . . action[s] to determine which of two carriers is liable [to the other]." American Foreign Ins. Ass'n v. Seatrain Lines of P.R., Inc., 689 F.2d 295, 299 (1st Cir. 1982).
8
Project Hope's total damage award was $358,928.26. The difference between this figure and the district court's $343,708 estimated replacement cost for the humulin represented Project Hope's recovery for various "incidental damages." Project Hope, 96 F. Supp. 2d at 297 ("Project Hope's award of incidental damages totals $15,220.26.").
9
The record indicates that Gibson Engineering, Inc., the "reefer mechanics used by United Arab at the Norfolk [T]erminal," actually set the reefer's temperature at the incorrect 24 F. Project Hope, 96 F. Supp. 2d at 288. However, no contention is made that Gibson acted negligently. As noted above, United Arab (or, more precisely, Gibson) acted upon the instructions negligently conveyed to United Arab by Blue Ocean. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/4515697/ | Case: 19-10625 Date Filed: 03/12/2020 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10625
Non-Argument Calendar
________________________
D.C. Docket No. 6:18-cr-00124-RBD-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT BLAKE MADURIE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 12, 2020)
Before MARTIN, ROSENBAUM and LAGOA, Circuit Judges.
PER CURIAM:
Case: 19-10625 Date Filed: 03/12/2020 Page: 2 of 2
Leland Kynes, appointed counsel for Robert Madurie in this direct criminal
appeal, has moved to withdraw from further representation of the appellant and
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Our
independent review of the entire record reveals that counsel’s assessment of the
relative merit of the appeal is correct. Because independent examination of the
entire record reveals no arguable issues of merit, counsel’s motion to withdraw is
GRANTED, and Madurie’s convictions and sentences are AFFIRMED.
2 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1577256/ | 629 F. Supp. 738 (1985)
Maxine GILBERT
v.
WEST GEORGIA MEDICAL CENTER AUTHORITY, et al.
Civ. A. No. C83-44N.
United States District Court, N.D. Georgia, Newnan Division.
March 30, 1985.
On Motion for New Trial June 24, 1985.
*739 *740 Janet Hill, Nelson & Sweat, Athens, Ga., for plaintiff.
Bennet Alsher, Clark, Paul, Hoover & Mallard, Atlanta, Ga., for defendants.
ORDER
G. ERNEST TIDWELL, District Judge.
The above-styled matter came for trial before the court without a jury on December 10-11, 1984. This order constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure.
FINDINGS OF FACT
1.
Plaintiff Maxine Gilbert is a black female, citizen of the United States and a resident of the State of Georgia. Defendant West Georgia Medical Center, Inc. ("West Georgia" or "Hospital" is a public, non-profit hospital located in LaGrange, Georgia. Defendant Prescha Meelaphsom was, at all times relevant to this action, the department manager in the Hospital's Department of Pulmonary Medicine. Defendant G.J. Giesler, Jr., was, at all times relevant to this action, the Medical Director of the Hospital's Department of Pulmonary Medicine. Meelaphsom is sued individually and in his official capacity; Dr. Giesler is sued only in his official capacity.
2.
Approximately 80% of the Hospital's employees are female and 20%-30% are black.
3.
Defendant Hospital's Articles of Incorporation indicate that a significant relationship exists between the governmental bodies of LaGrange and Troup County and the West Georgia Medical Center. Until 1975, the name of West Georgia Medical Center, Inc. was "City-County Hospital." All amendments to the Articles of Incorporation require the assent of the Mayor and Council of the City of LaGrange and of the Board of Commissioners of Troup County. The original petition for incorporation states that the corporation "shall be a charitable corporation to be operated as an agency of the City of LaGrange and County of Troup, to perform a governmental function ... and to promote the sanitary activities of the county government and of the City of LaGrange." Two members of the Board of Trustees are appointed by the Mayor and Council of the City of LaGrange, and two board members are appointed by the Board of Commissioners of Troup County.
The Hospital budget is submitted yearly by the Board of Trustees to the Mayor and Council of the City of LaGrange and to the Commissioners of Troup County who must approve the budget. The evidence indicates that from 1977 through the present, the Board of Commissioners of Troup County authorized approximately $50,000.00 per year to the Hospital. In addition, the Articles of Incorporation provides that the Mayor and City Council of LaGrange and the Commissioners of Troup County must consent to a decision by the Board of Trustees for the corporation "to wind up its affairs, liquidate and discontinue its business and the business of said Hospital, at which time, the net assets of the corporation shall be distributed to the City of LaGrange and the County of Troup."
The evidence indicates that Hospital construction is financed by a three million dollar obligation bond approved and paid for by the taxpayers of Troup County. The Hospital also submits reports to the Equal Employment Opportunity Commission on the EEO-4 form entitled "State and Local Government Information." On that form, the Hospital describes itself as a "city-county" type of government.
4.
Plaintiff was employed by the Hospital from July 14, 1980 until September 15, 1982. She was initially hired by the Hospital as a certified eligible therapist. She worked in the Department of Pulmonary *741 Medicine as a respiratory therapy technician. She was discharged from her employment, because on or about September 13, 1982, without authorization from her supervisor, she changed the department work schedule. Plaintiff alleges that defendants discriminated against her for failing to promote her to the position of clinical supervisor in the Department of Pulmonary Medicine; by discharging her; and by retaliating against her by giving her bad job references to prospective employers. Plaintiff filed charges of discrimination with the E.E.O.C. on September 24, 1982; amended charges were filed on November 15, 1982 and on March 2, 1983. She received a right to sue letter on April 15, 1983. The E.E.O.C. did not issue a determination on the merits on any of plaintiff's charges of discrimination. Plaintiff alleges causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. §§ 1981, 1983 and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
5.
During the trial the court ruled from the bench that there was no evidence of retaliation and granted the defendants' motion to dismiss that claim. The only issues remaining before the court are plaintiff's promotion and discharge claims.
6.
There are three basic levels of respiratory therapist. The most advanced level requiring the greatest amount of education and training, is that of a registered respiratory therapist (RRT). An individual who has obtained this level has passed the National Board of Respiratory Therapy (NBRT) written examination and has received a certain amount of education. The second level is a certified respiratory therapy technician (CRTT). This level requires a certain amount of experience and education, along with a one year program in respiratory therapy. The lowest level is that of a non-credentialed technician. A person in this level has met certain minimum educational requirements such as earning a high school diploma and may have some background or experience in medically-related fields.
7.
The plaintiff has never been certified as a CRTT or RRT. The plaintiff has twice taken the exam for registry, and failed the exam both times. The plaintiff also took an exam for CRTT and failed that exam.
Promotion Claim
8.
In May, 1982, a vacancy arose for the position of clinical supervisor on the second shift in the Department of Pulmonary Medicine. Three individuals were considered for this vacancy: the plaintiff; Tina Holmes, a white female; and Mike McArthur, a white male. Holmes told Meelaphsom that she did not want to be considered for the position; therefore, the choice was narrowed down to McArthur and the plaintiff. The promotion eventually went to McArthur. The alleged qualifications for the position were:
Education
A. Credentialed by the NBRT as RRT or CRTT;
B. acquired an ACLS provider certificate;
C. certified to be a critical care respiratory therapist by the Department of Pulmonary Medicine.
Experience
A. Field experience in respiratory therapy at a minimum of 3 years;
B. preferred management and supervisory skill;
C. exhibited some leadership in clinical and management areas.
Although plaintiff was not credentialed by the NBRT, she was considered eligible. Tina Holmes was RRT eligible and Mike McArthur was CRTT. Both McArthur and the plaintiff were given supervisory training in the spring of 1982.
9.
Wanda Dillard, a black female hired at the same time as plaintiff, was promoted in *742 October 1980 to clinical supervisor. Angela Rudd, a white female, was promoted to clinical supervisor in December, 1980. Godfrey Griffin, a black male, was offered a promotion to clinical supervisor in 1983 but declined it. All of these individuals were CRTT.
10.
Even though plaintiff was qualified for the position of clinical supervisor, the court finds that defendants promoted Mr. McArthur because he was equally or better qualified for the position than plaintiff and not for the reasons of race or sex. The evidence showed:
(a) McArthur had prior management and supervisory experience both at a hospital in Vidalia and at West Georgia Medical Center;
(b) he was considered superior to the plaintiff in his clinical skills in that he was better able to deal with patients, and he exhibited better skills, knowledge, and judgment in critical care situations;
(c) he was able to interact better with both his peers and his supervisors in the department;
(d) he was credentialed by the National Board of Respiratory Therapy as a CRTT.
On the other hand, plaintiff was not credentialed by the NBRT as a CRTT. The evidence showed that during the course of plaintiff's employment at the Hospital, she had a series of altercations with her supervisor and had trouble getting along with her peers. She also had trouble working with other people.
It appears that McArthur had, at the time he was promoted to supervisor, almost 12 years of field clinical experience whereas the plaintiff had only approximately six years of such experience. McArthur had completed extensive studies in respiratory care; plaintiff had only a six week course. McArthur had prior experience as a shift supervisor; plaintiff had none. McArthur showed an ability to get along with his co-workers; plaintiff did not. Although there is some evidence to indicate that McArthur's record was flawed, the court is of the opinion that defendants in good faith believed him to be the better qualified candidate and for that reason promoted him instead of plaintiff.
Discharge claim
11.
West Georgia has a system of progressive discipline which requires that employees be warned about conduct which is not serious enough to require immediate discharge. Depending upon the offense, corrective action which may be taken with respect to an employee includes oral warning, written warning, suspension, and finally discharge. Different offenses may require a different level of discipline. Both black and white employees have been discharged by the Hospital without using the Hospital's warning form. The Hospital's discipline policy states that employees may be discharged for other deeds of misconduct, not specifically listed in the policy. Falsification of an official Hospital record is grounds for immediate discharge.
12.
Plaintiff was suspended for a period of three days on April 18, 1982, for insubordination. Plaintiff did not receive any other written warnings pursuant to the progressive discipline system.
13.
On or about September 13, 1982, plaintiff changed the department work schedule without authorization from her supervisor. Testimony indicated that on September 13, plaintiff had changed the block in the schedule to indicate a labor day holiday, meaning she wanted to take her labor day holiday on September 13. A memorandum from supervisor Bob Rich came to Meelaphsom indicating that she had changed the schedule without permission from either Rich or McArthur. McArthur testified that the initials "MMC" in the boxes on the schedule dated September 4 and September 10 were not made by him. Thus, information reached Meelaphsom that plaintiff had not only changed the schedule without authorization but had also falsified McArthur's signature or initials. *743 While there is some evidence to indicate that employees could make schedule changes themselves if their supervisor later approved of such a change, testimony from plaintiff's colleagues and supervisors also revealed that they did not give her permission to change the work schedule. Bob Rich and Michael McArthur, clinical supervisors on duty September 10, 1982, both testified that they did not authorize plaintiff to change the schedule or take a labor day holiday on September 13, 1982. Plaintiff's testimony that her supervisors authorized her to change the work schedule and take her labor day holiday on September 13 is not credible.
14.
After Meelaphsom was notified by Rich that the schedule had been changed, he checked the schedule himself to verify the information. Meelaphsom testified that Rich told him that there was not going to be any critical care coverage that evening. The department was counting on plaintiff to show up for work that evening. Meelaphsom tried to call the plaintiff but could not reach her. Someone had to come in to take plaintiff's place on that day.
15.
On September 13, after hearing that plaintiff changed the work schedule without authorization, Meelaphsom reviewed plaintiff's file. He consulted with assistant administrator, George Kish, associate administrator Bill Richardson, and medical director Dr. Giesler. Meelaphsom recommended termination. Plaintiff was terminated on or about September 15, 1982 for violation of Hospital policy. The Hospital has discharged white males for violation of Hospital policy. There are no instances in the record of a circumstance identical to plaintiff's. There are, however, instances where white male and female employees were discharged for falsifying records.
16.
Whether or not plaintiff's actions constituted a falsification of official hospital records, the court concludes that the discharging employers in good faith thought it was, and believing it discharged plaintiff. Although there are no instances of similar situations leading to dismissal, there is no credible evidence that plaintiff was dismissed because of either her race or her sex.
17.
Meelaphsom does not use the Hospital warning form in administering discipline. His practice is to communicate verbally, and then to document an incident by memorandum when necessary. This practice applies to all personnel in his department, both black and white, male and female. All employees are aware that Meelaphsom keeps records and notes of discussions, as well as copies of memos and letters that he prepares. Plaintiff was aware of this practice. Evidence was introduced that other employees besides plaintiff were discharged without official hospital warning forms in their files. Many of these employees were white and/or male. There is no indication that Meelaphsom's failure to follow procedures was motivated or applied in a racially or sexually discriminatory manner.
CONCLUSIONS OF LAW
The Court has jurisdiction over this action under 28 U.S.C. § 1343, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution. Plaintiff has met the necessary conditions precedent to suit under Title VII by filing a timely charge with the Equal Employment Opportunity Commission and by filing this action within 90 days of her receipt of Notice of Right to Sue from the Commission.
Plaintiff must show two elements in order to state a claim under 42 U.S.C. § 1983. She must show that she was deprived of rights secured to her by the laws or Constitution of the United States, and that defendants acted under color of law. The court concludes based upon the Findings *744 of Fact that a sufficiently close connection exists between the Hospital and the City of LaGrange and the County of Troup to find that defendants acted under color of law.
Defendants have shown that the decision to promote Michael McArthur had nothing to do with plaintiff's race or sex, but was instead based on McArthur's superior job performance and knowledge.
The court finds that assuming, arguendo, plaintiff has established a prima facie case of discrimination for the Hospital's refusal or failure to promote her, the defendant has articulated a legitimate, non-discriminatory reason for promoting McArthur instead of the plaintiff. Since the Court finds that defendants have met the burden of articulating a legitimate, non-discriminatory reason for not selecting plaintiff for promotion, the burden shifts to plaintiff to prove by a preponderance of the evidence that the articulated reason was merely a pretext for discrimination.
The evidence showed that Michael McArthur was better qualified for the position of clinical supervisor than was the plaintiff because of McArthur's superior clinical skills and experience. This experience was a legitimate, non-discriminatory reason for promoting McArthur, and not the plaintiff. Accordingly, the burden was on the plaintiff to show that the Hospital's proffered reason was pretextual. Plaintiff has failed to show that she was not promoted on account of her race or her sex. Therefore, the court finds that plaintiff has failed to prove by a preponderance of the evidence that defendants unlawfully denied her a promotion in violation of Title VII, 42 U.S.C. § 1981 or 42 U.S.C. § 1983.
Plaintiff's claim of discrimination in her discharge fails as well. Assuming again that plaintiff has established a prima facie case, the defendants have articulated a legitimate, non-discriminatory reason for discharging plaintiff. Therefore, in order to prevail, the plaintiff must demonstrate that the proffered reason was not the true reason for the employment decision. The plaintiff may satisfy this burden if she can persuade the court that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence.
The court finds that plaintiff has not carried her burden. The evidence presented in this case falls far short of clear and convincing evidence that defendants were in any way motivated by racial or sexual reasons in discharging plaintiff. After hearing all the testimony, this court is convinced that the defendants believed plaintiff had falsified an official hospital record and in good faith discharged her for that reason.
Plaintiff also claims that her discharge violated her rights to equal protection of the law. The Equal Protection Clause in the context of a discharge case does not require that all persons be treated identically. If distinctions between similarly situated individuals are to withstand an equal protection analysis, such distinctions must be reasonable, not arbitrary, and must rest on grounds having a fair and substantial relation to the object of the rule. If the defendants offer a rational justification for the plaintiff's discharge because of her violation of Hospital policy, then plaintiff's equal protection claim must fall. The court finds as a matter of law that defendants have offered a legitimate, rational justification for plaintiff's discharge, and accordingly find that defendants have not violated plaintiff's right to equal protection of the law. Plaintiff has come forward with no evidence that the Hospital treated similarly situated individuals differently from her. In the cases which plaintiff suggests show she was treated differently defendants have offered a rational explanation for those differences in treatment. There is no evidence before this court that persons who did the same thing plaintiff did were treated differently from plaintiff nor has there been any showing that members outside the protected class benefited from a more lenient policy.
Finally, plaintiff contends that defendants violated her rights under the due *745 process and equal protection clauses of the Fourteenth Amendment of the United States Constitution in that the defendants did not follow established Hospital discipline procedures when discharging plaintiff. Equal protection and due process demand at a minimum that a state actor apply its laws in a rational and non-arbitrary way. However, the uneven or erroneous application of an otherwise valid law or regulation constitutes denial of equal protection only if it represents intentional or purposeful discrimination.
The plaintiff has not demonstrated that defendants' failure to follow any of the official procedures was in any manner discriminatorily applied or prejudiced plaintiff because of her race or sex. Every error or mistake in the application of policies does not rise to the level of a constitutional violation and it did not do so here.
Accordingly, the court finds for the defendant and the Clerk is directed to enter a judgment for the defendant.
ON MOTION FOR NEW TRIAL
The above-styled matter is presently before the court on plaintiff's motion for a new trial, or in the alternative, to amend the judgment and on motion to stay the award of costs. In support of her motion for a new trial the plaintiff contends that this court's order filed April 2, 1985 contains errors of fact and law. Pursuant to the plaintiff's motion, the court has re-examined the evidence including a transcript of the proceedings prepared by the court reporter subsequent to the prior order.
Plaintiff argues that Finding of Fact No. 9 indicating that Wanda Dillard held a CRTT credential is in error. This Finding was premised on Mr. Meelaphsom's testimony which indicated that Ms. Dillard was CRTT. Further, defendants' exhibit No. 47 indicates that Wanda Dillard on October 28, 1980 was CRTT Registry Eligible. The court does not find any evidence that she did not have a CRTT or that plaintiff offered any evidence that she did not have a CRTT. Finding of Fact No. 9 relates primarily to the fact that females and blacks were promoted to the position plaintiff sought. Even assuming Ms. Dillard never became CRTT, this would not affect the result or the decision in this action.
Plaintiff also contends that there are errors in Finding of Fact No. 13 warranting a new trial or amended judgment. The court is of the opinion that no material error exists as to Finding of Fact No. 13. However, in order to clarify Finding of Fact No. 13, Finding No. 13 is amended as follows: The first sentence of Finding of Fact No. 13 is hereby deleted and the following is substituted in lieu thereof:
After hearing all the evidence, including the testimony of the plaintiff, the court is convinced and therefore finds as a matter of fact that, on or shortly prior to September 13, 1982, the plaintiff changed the department work schedule. The court concludes and finds that this change was without authorization from her supervisor.
The remainder of plaintiff's claims for a new trial or to amend judgment based upon alleged errors of fact are meritless.
Plaintiff contends that the court made two errors of law as well. First, plaintiff argues that the court is incorrect in concluding that defendants did not violate plaintiff's equal protection or due process in failing to follow official procedures. The uneven or erroneous application of an otherwise valid law or regulation constitutes denial of equal protection only if it represents intentional or purposeful discrimination. Harrington v. United States, 673 F.2d 7, 10-11 (1st Cir.1982); See also Powell v. Power, 436 F.2d 84 (2d Cir.1970); Whitney Stores, Inc. v. Summerford, 280 F. Supp. 406 (D.C.S.C.1968), aff'd 393 U.S. 9, 89 S. Ct. 44, 21 L. Ed. 2d 9 (1968). This requirement has been applied to internal rules and regulations such that a plaintiff claiming a denial of equal protection or due process resulting from the improper applications of regulations must establish that she reasonably relied on the regulations to her substantial detriment or that she suffered intentional and purposeful discrimination. *746 See e.g., Dowdy v. Johnson, 510 F. Supp. 836, 838 (E.D.Va.1981); Kelly v. Cooper, 502 F. Supp. 1371, 1374-76 (E.D. Va.1980). Plaintiff was aware of the informal disciplinary procedures at the Hospital; there has been no showing of any substantial detrimental reliance. As stated before there has been no showing of intentional discrimination. "The acceptance of [plaintiff's] constitutional theory would render suspect each difference in treatment among [the employees], however lacking in racial motivation and however otherwise rational the treatment might be." Jefferson v. Hackney, 406 U.S. 535, 548, 92 S. Ct. 1724, 1732, 32 L. Ed. 2d 285 (1972).
Plaintiff requests that the court find a violation of equal protection and due process because the actions by defendants were arbitrary and capricious. A review of all the evidence shows there were instances where whites and males were discharged by the same procedures used in this case. Some were for falsification of hospital records. The court is not persuaded that the actions in this case or the informal disciplinary policies applied to all employees were either arbitrary or capricious. See also Bishop v. Wood, 426 U.S. 341, 349-50, 96 S. Ct. 2074, 2079-80, 48 L. Ed. 2d 684 (1976). The application of the procedures under the facts of this case does not rise to the level of a constitutional violation. The court notes that Meelaphsom's failure to follow the exact procedures of the progressive discipline policy ultimately did not impact on her discharge as she was terminated for falsification of the hospital form.
Second, plaintiff argues that the court did not adequately consider whether plaintiff had proven pretext. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) if the defendants articulate a legitimate nondiscriminatory reason for plaintiff's termination, the plaintiff has the burden to prove by a preponderance of the evidence that the legitimate reasons offered by the defendants were not the true reasons, but were a pretext for discrimination. The plaintiff may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Id. at 804-05, 93 S.Ct. at 1825-26. See also McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976). The plaintiff has not carried her burden in this respect. After considering all the testimony in this case and assessing each witness's credibility, the evidence strongly indicates that there were legitimate and nondiscriminatory reasons for the firing of plaintiff. If the discharge was for a lawful reason, even though defendants may have acted impulsively or on bad advice, then the defendants have not violated Title VII or § 1983. Doe v. AFLCIO, 17 FEP cases 486, 488 (N.D.Ga.1975). Even if the court accepted plaintiff's arguments that in other circumstances whites may have been treated differently, the court is firmly convinced under the facts of this case that plaintiff's race or sex was not a cause of her termination. See Santa Fe, supra at 282 n. 10, 96 S.Ct. at 2580 n. 10.
Finally, the evidence in this case as a whole, including the court's evaluation of the plaintiff and her credibility, indicates that she was a poor employee who had difficulty in working with fellow staff members and patients. The plaintiff's employment history before and after her termination at West Georgia indicates that her overall job performance was poor notwithstanding some of her evaluations. Plaintiff was terminated because the defendants in good faith believed she had falsified a hospital form. The evidence indicated that defendants' motivation in this case was plaintiff's poor employment and not her race or sex. Regardless of any irregularities, if any, in plaintiff's discharge, the evidence indicated that plaintiff's termination would have been the ultimate outcome of her employment.
Plaintiff's motions for a new trial or to amend judgment and for stay of award of costs are denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577295/ | 35 So. 3d 973 (2010)
Helio ROCHA, Appellant,
v.
Maria Ines Alves MENDONCA, Appellee.
No. 3D09-24.
District Court of Appeal of Florida, Third District.
May 12, 2010.
Rehearing Denied June 16, 2010.
John G. Crabtree and George R. Baise, Jr.; Marks & West and Evan Marks, for appellant.
Maria Ines Alves Mendonca, in proper person.
Before RAMIREZ, C.J., and CORTIÑAS and LAGOA, JJ.
*974 RAMIREZ, C.J.
This is an appeal from an order granting the former wife's pending motions. Because the trial court rewrote the parties' settlement agreement and impermissibly amended prior orders of the court, we reverse.
In the November 15, 2007 Final Judgment, the trial court ended Helio Rocha and Maria Ines Mendonca's marriage. The dissolution was uncontested and the parties settled all matters with an October 24, 2007 marital settlement agreement that was ratified and approved by, but not merged with, the Final Judgment. In the agreement, Rocha was named Primary Residential Parent of the parties' minor child, and no provision was made for payment of child support. Both parties waived any right to alimony and agreed to equitably divide Rocha's retirement and 401(k) accounts from his employer, AXA. These accounts and the parties' home were their chief marital assets, which were divided in the marital settlement agreement.
Paragraph 7 of the marital settlement agreement, titled "Equitable Distribution", included two subheadings titled "For the Wife" and "For the Husband." For the wife, the parties agreed that:
a. The Wife shall receive $270,000.00, by way of a Qualified Domestic Relations Order (QDRO) from the Husband's AXA Retirement Plan;
b. The Wife shall receive $140,000.00, by way of a Qualified Domestic Relations Order (QDRO) from the Husband's 401(k); ...
Under the same subheading, the agreement called for Rocha's forensic accountant expert, Philip Shechter, to prepare the two QDROs after the parties signed the marital settlement agreement. Also included under the sub-headings "For the Wife" and "For the Husband" were two congruent provisions concerning which party would be responsible for paying the utilities for the marital home pending its sale. The "For the Wife" provision stated:
e. Upon transfer to the Wife of the first funds in either paragraph a or b above [the QDRO provisions], the Wife shall be solely responsible for the payment of all utilities (electric, water, sewer, gas, phone) for the home in which she is living, located at 7568 S.W. 189th Street, Miami, Florida, 33157, until same is sold. The Wife may remain in the home located at 7568 S.W. 189th Street, Miami, Florida, 33157 until ten (10) days prior to the closing for the sale of this home, at which time she must immediately vacate same.
and the like provision under "For the Husband" stated:
a. Until the transfer to the Wife of the first funds in either paragraph a or b of the preceding section ("For the Wife"), the Husband shall be responsible for the payment of all the utilities (electric, water, sewer, gas, phone) for the home in which the Wife is living that is to be sold.
Finally, on page four of the marital settlement agreement, paragraph "a" under the heading "For the Husband" provided: "The husband shall retain all of his pension and retirement plans and other benefits from his employment (pension/retirement plan, 401(k), stock purchase plan, stock options, shareplans, etc.) other than set forth above."
Mr. Shechter, the forensic accountant, prepared both the 401(k) and the Retirement Plan QDROs, which were then reviewed and approved by Ms. Mendonca's attorney and submitted to the trial court. The trial court entered the 401(k) QDRO November 15, 2007, and the Retirement Plan QDRO on January 8, 2008. Neither *975 party appealed the Final Judgment, including the child custody or support provisions, or the QDROs.
On March 26, 2008, Mendonca moved for an order to enforce the marital settlement agreement and to hold Rocha in contempt of its provisions. She had apparently learned that the Retirement Plan QDRO required a "triggering event" for her to gain access to the $270,000.00 from the plan. Such triggering event included Rocha's retirement, disability, and his separation from service.
Mendonca conceded that she had received the $140,000.00 as promised from Rocha's 401(k) QDRO, but contended that it was never the parties' intent that she should have to wait to receive the $270,000.00 from Rocha's Retirement Plan. She asked the trial court to use its reserved jurisdiction to enforce the marital settlement agreement by making Rocha pay $270,000.00 from his post-dissolution assets or, in the alternative, by setting the marital agreement agreement aside, along with Mendonca's alimony waiver.
The trial court heard Mendonca's contempt motion and concluded, after reading the marital settlement agreement, that the parties intended for Mendonca to receive immediate, unrestricted access to the $270,000.00 from the Retirement Plan. The judge explained that he reached his conclusion by relying upon the wording of the Utilities Provisions, particularly "Upon transfer to the Wife of the first funds in either a or b above, the Wife shall be solely responsible for ..." and "Until transfer to the Wife of the first funds in either paragraph a or b in the preceding section ..."
Accountant Philip Shechter testified that the Retirement Plan QDRO had been prepared consistent with the plan because it used the Plan Administrator's prototype format. He explained that the $270,000.00 payment by the Retirement Plan QDRO was a "payment in the future" taken from a future balance in the account and predicated upon a future event, while the 401(k) fund was a present fund in actual, present existence, meaning 401(k) assets could be immediately transferred. Thus, the AXA Retirement Plan was not amenable to a 401(k) transfer-type payout, so as to give Mendonca a $270,000.00 immediate payment, as that amount represented a payment of future money.
At a subsequent hearing, it became clear that Mendonca would not be allowed to immediately access the $270,000.00 through the Retirement Plan's rules. Shechter again testified that although the Plan had a value in excess of $270,000.00, there had not been a distributable cash balance in the plan of $270,000.00 when the marital settlement agreement was entered into. The qualified component totaled $178,000.00 and could be transferred to Mendonca by QDRO when Rocha retired or when he turned 55 years old on December 27, 2011. However, the $92,000.00 remaining in the account was a non-ERISA, unqualified portion of the plan that could not be transferred through a QDRO. This amount functioned as income for the calendar year in which it was dispensed and would be given directly to Rocha and only upon his retirement.
After hearing the arguments, the trial judge made his ruling contained in twenty-three pages of transcript. The Final Order states that "the Ruling of this Court is contained in the attached transcript." We are thus left to scour through the transcript to ascertain the courts's ruling. It appears that he ordered the balance of Rocha's 401(k) to be transferred to Mendonca with a new QDRO. He also ordered an amended Retirement Plan QDRO to be issued, one that specified that Mendonca would receive one hundred per *976 cent of the qualified portion of the account, up to a maximum of $270,000.00, minus the amount he ordered transferred from the 401(k) account. He further ordered the parties to place the Retirement Plan administrator on notice that Mendonca had a claim on any of the unqualified portions of the Retirement Plan account needed to satisfy that portion of the $270,000.00 not paid by the qualified portions of the account, minus the amounts transferred from the 401(k) account. He further ordered Rocha not to dispose of, dissipate, or liquidate any of these unqualified and extra-QDRO portions until Mendonca's total distribution was satisfied. When Rocha's counsel pointed out that Mendonca would be responsible for taxes on any amount she received from the unqualified portion of the Retirement funds, the judge stated that his ruling did not cover future tax issues. As to any interest, the judge ruled that failing to provide Mendonca with interest on the $270,000.00 provided Rocha with a windfall. He reasoned that the Retirement Plan QDRO had been consistent with the marital settlement agreement, and the Retirement Plan's regulations with the marital settlement agreement, the $270,000.00 would have been segregated to Mendonca, in which case Rocha would not be receiving interest on the amount. Hence, he reasoned the amended Retirement Plan QDRO should be made to apply to the $270,000.00, less amounts received from Mr. Rocha's post-judgment 401(k) amounts, plus or minus any earnings, appreciation, or depreciation on the account. He reserved jurisdiction to decide which party would incur the tax liability on any unqualified portion of the Retirement Plan account that might be paid to Mendonca to reach the $270,000.00 total.
We review questions of law, including those pertaining to contract interpretation, de novo. See Witt v. La Gorce Country Club, Inc., 2009 34 Fla. L. Weekly D1161 (Fla. 3d DCA June 10, 2009). We agree with Rocha that the Motion for Enforcement/Contempt should have been denied as there was nothing in this case to enforce. The marital settlement agreement called for Mendonca to receive $270,000.00 by way of a QDRO and that is what the Retirement Plan QDRO will accomplish. The trial court instead gave Mendonca relief not contemplated under the marital settlement agreement, such as $20,800.00 of Rocha's post-dissolution 401(k) contributions and the accrued earnings on her unpaid portion of the Retirement Plan. "[W]hen a court incorporates a settlement agreement into a final judgment or approves a settlement agreement by order and retains jurisdiction to enforce its terms, the court has the jurisdiction to enforce the terms of the settlement agreement... [h]owever, the extent of the court's continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of that agreement." Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 803 (Fla.2003). Although a trial court may be motivated to do what it considers to be fair and equitable, it retains no jurisdiction to rewrite the terms of a marital settlement agreement. Under the guise of enforcing the agreement, the trial court here impermissibly modified it.
The agreement does not establish that the parties intended for Mendonca to have immediate and unrestricted access to the $270,000.00 from Rocha's Retirement Plan. The provisions dealing with utilities did not set forth the parties' property distribution scheme; they merely established when Mendonca would be responsible for paying for the marital home's utility bills.
In reaching its conclusion, the trial court relied solely on the following language: "Upon transfer to the Wife of the first funds in either paragraph a or b above." *977 In particular, the court believed that the parties' use of the word "funds" in relation to "paragraph a or b" established their intent for Mendonca to immediately receive the $270,000.00 from the retirement plan.
It is undisputed that both the 401(k) and Retirement Plan QDROs would transfer their specified amounts from Rocha's accounts to Mendonca, but there is nothing in that definition that can be read as containing a time limitation. Both parties approved the QDRO dealing with Rocha's retirement plan after reviewing the retirement plan rules. The QDRO clearly indicated that payment was conditioned upon Rocha reaching his "earliest retirement age".
We thus conclude that the trial court's interpretation of the marital settlement agreement and the two QDROs is not supported by the language of the agreement or the orders. See Maher v. Schumacher, 605 So. 2d 481 (Fla. 3d DCA 1992). Accordingly, we reverse the trial court's December 12, 2008 Final Order on Former Wife's Pending Motions. We further remand with instructions to the trial court that judgment be entered in favor of Rocha regarding the issues addressed in this appeal and consistent with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577312/ | 35 So. 3d 32 (2010)
NAILS
v.
STATE.
No. SC10-420.
Supreme Court of Florida.
March 25, 2010.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579934/ | 84 S.W.3d 281 (2002)
In the Interest of D.R.L.M.
No. 2-01-323-CV.
Court of Appeals of Texas, Fort Worth.
July 3, 2002.
Rehearing Overruled August 15, 2002.
*285 Georganna L. Simpson, Dallas, Sondrea J. King, Fort Worth, for Appellants.
Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A. and Chief of the Appellate Division, and Anne E. Swenson, David M. Curl, Clifford Bronson, and James C. Teel, Asst. Crim. D.A.s, Fort Worth, Kelly Swanda, and Dean Swanda, Arlington, for Appellees.
*286 PANEL A: DAUPHINOT, GARDNER, and WALKER, JJ.
OPINION
SUE WALKER, Justice.
I. INTRODUCTION.
In this case, we decide two primary issues. We address the appropriate standard to be applied by the trial court in deciding whether to place half-sisters who have never lived together in the same adoptive home and whether the trial court's refusal to place a child with the persons named in a mother's voluntary affidavit of relinquishment affects the voluntariness of the affidavit. See Tex. Fam. Code Ann. § 162.302(e) (Vernon Supp. 2002).[1]
The trial court terminated the parental rights of D.R.L.M.'s biological parents. Two families[2], the Smiths, who had previously adopted D.R.L.M.'s half-sister, and the Martins, who served as D.R.L.M.'s foster family, both intervened in the termination suit, seeking to adopt D.R.L.M. Both D.R.L.M.'s biological parents signed affidavits of voluntary relinquishment relinquishing her to the Smiths. Ultimately, however, the trial court ordered the Martins appointed managing conservators and adoptive parents of D.R.L.M.
We hold that under 162.302(e), placement of a child in the same adoptive home with her half-sister is one factor in an adoption proceeding supporting the child's adoption by the same persons who adopted the child's sibling.[3] We decline to hold, however, that section 162.302(e) requires the trial court to apply any heightened standard of proof. Instead, the positive opportunity to place a child in the same adoptive home with a half-sibling is simply one factor to be considered by the trial court in determining whether adoption is in the child's best interest. We also hold that the trial court's refusal to appoint as a child's managing conservators the persons designated by a parent in their affidavit of voluntary relinquishment does not automatically, or in this case, render the affidavit involuntary. We will modify the trial court's judgment and affirm it as modified.
II. BACKGROUND FACTS.
In March 2000, a babysitter took D.R.L.M. to the hospital because the eight-month old had a very high fever. D.R.L.M. was diagnosed with bacterial spinal meningitis and was transported to Cooks Children's Medical Center for treatment. Hospital personnel contacted Texas Department of Protective and Regulatory Services ("TDPRS") when no one was available to consent to medical treatment on D.R.L.M.'s behalf. D.R.L.M.'s biological mother (hereinafter referred to by the fictitious name "Kristi") was in jail and D.R.L.M.'s biological father was "not around." TDPRS petitioned for emergency removal of D.R.L.M. so it could consent to treatment for the child. When D.R.L.M. was later released from the hospital on April 3, 2000, she was placed in foster care with the Martins.
*287 TDPRS intended to reunify Kristi and D.R.L.M., but Kristi repeatedly failed to comply with the agency's service plan. In the meantime, TDPRS was examining options for D.R.L.M. and was attempting to contact known relatives of D.R.L.M. for her placement in the event Kristi proved unsuitable.
In September 2000, TDPRS discovered that the Smiths, who lived in Michigan, had adopted D.R.L.M.'s half-sister, A.C. D.R.L.M.'s half-sister's father is the Smiths' nephew. The Smiths agreed to consider placement of D.R.L.M. in their home. TDPRS sought and obtained an order for an expedited home study of the Smiths. Approximately one month after being contacted by TDPRS, the Smiths and A.C. traveled to Fort Worth to visit D.R.L.M. In December 2000, the Smiths filed their home study, which recommended a provisional foster home license. TDPRS filed a motion to appoint the Smiths as temporary possessory conservators of D.R.L.M.
Two days after TDPRS filed its motion to appoint the Smiths D.R.L.M.'s temporary possessory conservators, the Martins filed a petition in intervention seeking to be named managing conservators of D.R.L.M. Kristi and D.R.L.M.'s biological father both filed irrevocable affidavits of voluntary relinquishment relinquishing their parental rights to D.R.L.M. and designating the Smiths to serve as D.R.L.M.'s managing conservators.
D.R.L.M. stayed in the Martins' home from April 3, 2000, when she was approximately nine months old, through the time of trial, when she was approximately twenty-five months old. D.R.L.M. went on several extended trips to visit with the Smiths, including one trip for approximately eight weeks.
The issues of termination of the parental rights of Kristi and D.R.L.M.'s biological father and which family should be permitted to adopt D.R.L.M. proceeded to trial before the court. Following a two-day trial, the trial court terminated Kristi's and D.R.L.M.'s father's parental rights, and ordered the Martins appointed managing conservators of D.R.L.M. The trial court later timely made findings of fact and conclusions of law.
Specifically, the trial court found the parental rights of D.R.L.M.'s biological parents should be terminated because both parents had:
a. knowingly engaged in criminal conduct that has resulted in a conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date the petition was filed; and,
b. executed an unrevoked or irrevocable affidavit or relinquishment of parental rights as provided by chapter 161 of the Texas Family Code.
The trial court also found that: D.R.L.M.'s biological parents designated the Smiths as their intended managing conservators for the child; the appointment of the Smiths as the managing conservators of D.R.L.M. was not in D.R.L.M.'s best interest; the appointment of the Martins as the managing conservators of D.R.L.M. was in D.R.L.M.'s best interest; and the adoption of D.R.L.M. by the Martins was in D.R.L.M.'s best interest.
Kristi and the Smiths appeal the trial court's order.[4] TDPRS asserts that termination of Kristi's rights was proper, but argues that the trial court erred by failing to "apply any kind of heightened standard to separating D.R.L.M. from her half-sister" and urges us to reverse the trial *288 court's judgment awarding managing conservatorship to the Martins and to render judgment awarding the Smiths managing conservatorship of D.R.L.M. The Martins assert that the trial court correctly terminated Kristi's rights, properly appointed them managing conservators of D.R.L.M., and properly ordered their adoption of D.R.L.M.
III. KRISTI'S APPEAL.
The trial court terminated Kristi's parental rights on two grounds. First, the trial court found, pursuant to section 161.001(Q) of the family code, that Kristi knowingly engaged in criminal conduct that resulted in her conviction of an offense and confinement or imprisonment and inability to care for D.R.L.M. for not less than two years from the date the petition for termination was filed. Second, the trial court found Kristi had executed an "unrevoked or irrevocable affidavit of relinquishment of parental rights." Kristi raises six issues on appeal challenging these grounds for terminating her parental rights. TDPRS, however, argues Kristi's failure to timely file a "statement of points" as required by family code section 263.405(b) jurisdictionally bars appellate review of all six of her issues. See Tex. Fam.Code Ann. § 263.405(b) (Vernon Supp. 2002). We will first address TDPRS's jurisdictional complaint.
A. Is Compliance With Section 263.405(b) Jurisdictional?
Family code section 263.405 was amended by House Bill 2249, effective September 1, 2001, and applies to all appeals filed after September 1, 2001. Tex. Fam.Code Ann. § 263.405(b). Section 263.405(b) now provides:
Not later than the 15th day after the date a final order is signed by the trial judge, a party intending to appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal. The statement may be combined with a motion for a new trial.
Id.
TDPRS analogizes this section to rule of appellate procedure 34.6(c), requiring a statement of points when the appellant designates a partial record, and urges this court to require strict compliance with section 263.405(b) like we do with rule 34.6(c). See Tex.R.App. P. 34.6(c); e.g., CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.-Fort Worth 1999, no pet.) (requiring strict compliance with rule 34.6(c)). TDPRS also points out that courts require strict compliance with family code section 263.401(a), the provision generally requiring a trial court to render a final termination order within a year of the filing of a petition by TDPRS seeking termination of the parent-child relationship or seeking to be named conservator of the child. See Tex. Fam.Code Ann. § 263.401(a) (Vernon Supp.2002).
In involuntary termination cases, however, we are required to strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex.1985); In re D.T., 34 S.W.3d 625, 629 (Tex.App.-Fort Worth 2000, pet. denied). Automatically equating rule 34.6(c) with section 263.401(a) would ignore the constitutional magnitude of the parental rights at stake here; these rights underlie the requirement that we strictly construe the involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20. Likewise, we strictly construe section 263.401(a)'s one-year time period in favor of the parent to require disposition, dismissal or an extension within the one-year statutory period. See Tex. Fam.Code Ann. § 263.401(a). Here, TDPRS asks us to *289 construe section 263.405(b) against the parent and hold the parent's failure to timely file a statement of points jurisdictionally bars the parent's appeal. TDPRS's arguments do not compel the conclusion that a parent's failure to timely file section 263.405(b)'s statement of points deprives this court of jurisdiction.
The trial court signed the order of termination and the decree of adoption on September 20, 2001. On October 5, 2001, the court appointed attorney Sondrea King to handle Kristi's appeal. On October 6, 2001, King filed a "statement of points" on behalf of Kristi. The statement of points included three issues, two challenging the voluntariness of Kristi's affidavit of relinquishment relinquishing D.R.L.M. to the Smiths, and one challenging the legal and factual sufficiency of the evidence to support termination of Kristi's rights under section 161.001(1)(Q).[5] Moreover, the statement of points specifically stated, "In filing this Statement, Respondent does not waive the right to raise additional points on appeal that may become known after the record is filed." The six issues raised by Kristi on appeal deal with either the factual and legal sufficiency of the evidence to support involuntary termination of her parental rights under section 161.001(1)(Q) or with challenges to the voluntariness of her affidavit of relinquishment relinquishing D.R.L.M. to the Smiths.[6]
No case has construed section 263.405(b). In construing a statute, our ultimate purpose is to discover and give effect to the legislature's intent in enacting it. In re Canales, 52 S.W.3d 698, 702 (Tex.2001); Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex.2001). We may consider the object sought to be attained by the statute; the circumstances under which the statute was enacted; legislative history; common law or former statutory provisions; consequences of a *290 particular construction; administrative construction of the statute; and the title (caption), preamble, and emergency provisions. Tex. Gov't Code Ann. § 311.023 (Vernon 1998); Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). We presume the legislature intended a just and reasonable result in enacting a statute. Tex. Gov't Code Ann. § 311.021(3) (Vernon 1998). We will not construe a statute in a manner that will lead to a foolish or absurd result when another alternative is available. Del Indus., Inc. v. Tex. Workers' Comp. Ins. Fund, 973 S.W.2d 743, 747-48 (Tex.App.-Austin 1998), aff'd, 35 S.W.3d 591 (Tex.2000).
In determining legislative intent, we do not view the words, phrases, and individual clauses in isolation, but rather we must examine them within the context of the entire act. Meritor, 44 S.W.3d at 90. If possible, each sentence, phrase, clause, and word must be given effect, so that the statute makes sense as a cohesive whole. Id. We will not, however, assign a meaning to a term or provision that would be inconsistent with other provisions of the statute. Id.; Steak & Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898, 905 (Tex.App.-Fort Worth 2001, no pet.).
We therefore examine the entire act, to view subsection (b)'s statement-of-points requirement in context. Although section 263.405(b) indicates that the statement of points "must" be filed, "not later than the 15th day after the date a final order is signed," it nonetheless provides that the statement may be combined with a motion for new trial. Tex. Fam.Code Ann. § 263.405(b) (Vernon Supp.2002). A motion for new trial is not due until the thirtieth day after the date a final order is signed. See Tex.R. Civ. P. 329b(a). Section 263.405(d) provides:
(d) The trial court shall hold a hearing not later than the 30th day after the date the final order is signed to determine whether:
(1) a new trial should be granted;
(2) a party's claim of indigence, if any, should be sustained; and
(3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.
Tex. Fam.Code Ann. § 263.405(d). Subsections (f) and (h) provide, respectively, that the record is due within sixty days after the date the final order is signed and that the appellate court may not extend the time to file the record or to file briefs "except on a showing of good cause." Id. § 263.405(f), (h). We have also reviewed the legislative history behind this Act. The purpose of the Act was to address post-judgment appellate delays, correct provisional inconsistencies, and provide a mechanism through which a party or TDPRS can compel the trial court to timely set the case for final trial. HOUSE COMM. ON JUVENILE JUSTICE AND FAMILY ISSUES, BILL ANALYSIS, Tex. H.B. 2249, 77th Leg., R.S. (2001).
Reviewing the act as a whole, it is clear that the legislature intended the act to reduce post-judgment appellate delays, not to deprive an appellate court of jurisdiction. An appeal is perfected, and our jurisdiction is vested, by the filing of a notice of appeal. See Tex.R.App. P. 25.1(b) ("The filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order appealed from.") (emphasis added). Section 263.405 does not purport to alter either rule 25's notice of appeal requirement or its use of the notice of appeal as the vehicle that triggers appellate court jurisdiction. Here, King timely filed a notice of appeal on behalf of Kristi.
The supreme court has repeatedly recognized that a party's good faith effort to invoke an appellate court's jurisdiction by *291 filing a notice of appeal, even late, but within the fifteen-day time period allowed for extensions of time to file late notices of appeal, is effective to invoke the appellate court's jurisdiction. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998); Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997). The supreme court explained:
This Court has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal. We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction.
Verburgt, 959 S.W.2d at 616.
Thus, considering the object sought to be attained by the statute, the statute's legislative history, the consequences of the construction urged by TDPRS on appellate court jurisdiction, and viewing the act as a whole while strictly construing the statute in favor of parents, we hold that a litigant's failure to file a section 263.405(b) statement of points within fifteen days of the date a final order is signed by the trial court does not deprive this court of jurisdiction over an appeal from that order when an appellant timely files a notice of appeal. We hold that we possess jurisdiction over the issues raised by Kristi.
TDPRS also complains that Kristi has forfeited her issues on appeal because the points set forth in her statement of points are not the same as those she raises on appeal. As previously mentioned, the issues raised by Kristi on appeal deal with the same two complaints she raised in her statement of points: factual and legal sufficiency of the evidence and the voluntariness of her affidavit of relinquishment. Consequently, we hold that Kristi's issues on appeal were properly raised in her statement of points.
B. Legal and Factual Sufficiency of the Evidence to Support Section 161.001(1)(Q) Termination.
In her first issue, Kristi challenges the legal and factual sufficiency of the evidence to support the trial court's termination of her parental rights under family code section 161.001(1)(Q). See Tex. Fam. Code Ann. § 161.001(1)(Q) (Vernon Supp. 2002). Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by "clear and convincing evidence." Id. § 161.206(a) (Vernon 1996); In re A.R.R., 61 S.W.3d 691, 697 (Tex.App.-Fort Worth 2001, pet. denied). This standard is defined as the "measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam.Code Ann. § 101.007; In re A.R.R., 61 S.W.3d at 697 (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994)). This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re A.R.R., 61 S.W.3d at 697.
When an appellant challenges the legal sufficiency of the evidence on an issue on which he did not have the burden of proof, the appellant must demonstrate there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing a no evidence challenge, we consider only the evidence and inferences tending to support the adverse finding and disregard all contrary evidence and inferences. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re B.B., *292 971 S.W.2d 160, 164 (Tex.App.-Beaumont 1998, pet. denied). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450. That is, if more than a scintilla of evidence supports the trial court's findings, the appealing parent cannot prevail on a legal sufficiency point. In re R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied).
Review of factual sufficiency of the evidence under a clear and convincing standard requires us to determine whether the evidence is sufficient to make the existence of the facts highly probable, not whether the evidence supporting the finding is sufficient to make the existence of the facts more probable than not, as in ordinary civil cases. In re A.R.R., 61 S.W.3d at 697; In re D.T., 34 S.W.3d 625, 632 (Tex.App.-Fort Worth 2000, pet. denied) (op. on reh'g). That is, we must consider whether the evidence is sufficient to produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegation sought to be established. In re D.T., 34 S.W.3d at 632; Faram v. Gervitz-Faram, 895 S.W.2d 839, 843 (Tex. App.-Fort Worth 1995, no writ). We are required to consider all of the evidence in the case in making this determination. In re A.R.R., 61 S.W.3d at 697 (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998)).
The trial court determined termination of Kristi's parental rights was proper based on family code section 161.001(1)(Q). That section provides:
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
....
(Q) knowingly engaged in criminal conduct that has resulted in the parent's:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing of the petition;
TEX. FAM.CODE ANN. § 161.001(1)(Q)(Vernon Supp.2002).
Kristi argues subsection Q requires TDPRS to prove that she has been confined for two years since the date on which TDPRS filed the termination petition. TDPRS concedes "the trial court's termination order probably cannot be upheld on the Section 161.001(1)(Q) theory" and acknowledges Kristi was not incarcerated for two years either before or after the termination petition was filed. The Martins, on the other hand, contend subsection Q requires only proof that (1) the parent has been convicted of an offense, (2) the parent was confined or imprisoned, and (3) the parent is not able to care for the child for not less than two years from the date of filing of the petition, but the inability to care for the child does not necessarily have to be because the parent is confined or imprisoned.
In support of their construction of subsection Q, the Martins rely on family code section 263.401, which generally requires a court to render a final termination order within one year after appointing TDPRS temporary managing conservator of a child or otherwise to dismiss the suit. See Tex. Fam.Code Ann. § 263.401(a). The Martins reason that section 161.001(1)(Q) cannot be construed as requiring a parent's imprisonment for two years after the filing of the termination petition because termination suits filed by TDPRS in which it is appointed temporary managing conservator will be dismissed under section 263.401(a)'s *293 one-year time period before a parent has been imprisoned for two years.
We will first review pertinent case law. The few cases discussing termination under section 161.001(1)(Q) have interpreted that subsection's requirements slightly differently. See In re A.R.R., 61 S.W.3d at 700; In re I.V., 61 S.W.3d 789, 798 (Tex. App.-Corpus Christi, 2001, no pet.); In re Caballero, 53 S.W.3d 391, 395-96 (Tex. App.-Amarillo 2001, pet. denied); In re D.T., 34 S.W.3d at 638.
In In re A.R.R., appellant was imprisoned in 1996, and although he was eligible for parole, he asked "to remain in prison for the full term, which will end in 2005." 61 S.W.3d at 694. TDPRS filed suit to terminate appellant's parental rights in October 1999, and TDPRS was appointed sole temporary managing conservator of A.R.R. Id. Following the final hearing, the trial court terminated appellant's parental rights based on several of the statutory involuntary termination grounds, including section 161.001(1)(Q). We explained:
Appellant maintained that when he became eligible for parole, he wrote the parole board and requested that he be allowed to remain in prison until his release date in 2005, even though there is "no chance" that he will see A.R.R. until she is twenty years old if he stays in prison that long. It is clear that Appellant's voluntary actions imprisoned him and cause him to remain imprisoned still, and that the same actions rendered him unable to provide any sort of financial, emotional, or physical care for his daughter.
Id. at 701 (emphasis added). Accordingly, we held that the evidence was factually and legally sufficient to support termination of appellant's rights under section 161.001(1)(Q).[7]
In In re I.V., the Corpus Christi Court of Appeals interpreted subsection Q to mean that "a person's parental rights may be terminated if the person knowingly engages in criminal conduct that results in his imprisonment and he is unable to care for the child for at least two years from the date the termination petition is filed." 61 S.W.3d at 798. The termination petition was filed on April 8, 1999, and TDPRS proved appellant would still be incarcerated in federal prison pursuant to a forty-year sentence on April 8, 2001. Id. Because the record also contained evidence appellant was unable to care for I.V., the court affirmed termination on the basis of subsection Q.
In In re Caballero, the appellant's probation was revoked as a result of a May 1998 DWI conviction, and he was sentenced to eight years' confinement. 53 S.W.3d at 394. TDPRS filed its termination petition in September 1998. Id. In addressing the sufficiency of the evidence to support the termination of appellant's rights under section 161.001(1)(Q), the Amarillo Court of Appeals interpreted subsection Q as requiring proof of appellant's conviction, proof of appellant's incarceration, and proof of appellant's inability to care for the child for at least two years *294 from the date of the filing of the petition for termination. Id. at 395. "Care," the court explained, is not limited to parental care. Id. at 395-96. Instead, "[b]ecause incarceration is inherently inconsistent with providing personal care for a child, the legislature's inclusion of the phrase `and inability to care for the child' would be meaningless unless care encompassed arranging for care to be provided by another." Id. at 396. Consequently, the Amarillo Court held that once TDPRS proves "a parent's knowing criminal conduct resulting in their incarceration for more than two years, the parent must produce some evidence as to how they would provide or arrange to provide care for the child during that period." Id. (emphasis added).
In In re D.T., this court indicated that subsection Q provided for termination based on knowing commission of a criminal offense resulting in confinement for two years or more from the date the termination petition was filed. 34 S.W.3d at 638.
Hence, in summary, three of the four cases discussing subsection Q construed it as requiring two years' confinement. In re I.V., 61 S.W.3d at 798; In re Caballero, 53 S.W.3d at 396; In re D.T., 34 S.W.3d at 638. One case, In re A.R.R., seems to indicate two years' confinement is not required, but nonetheless, the facts in that case clearly demonstrated the appellant was confined and would remain confined for two years from the date of the filing of the petition. In re A.R.R., 61 S.W.3d at 700-01.
Looking to the statutory language itself, we note that the legislature drafted a two-pronged test. A parent's rights may be terminated when the court finds by clear and convincing evidence that a parent knowingly engaged in criminal conduct that has resulted in the parent's: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing of the petition. Tex. Fam.Code Ann. § 161.001(1)(Q). If the Legislature did not intend to make two years' imprisonment a requirement of subsection Q, the construction urged by the Martins, it could easily have just made the last part of the test's second prong a third prong, i.e.: (ii) confinement or imprisonment; and (iii) inability to care for the child for not less than two years from the date of filing of the petition. We therefore conclude that the legislature intended for the not-less-than-two-years language to modify both the parent's confinement or imprisonment and the parent's inability to care for the child.
This construction of subsection Q is also supported by the fact that, traditionally, incarceration standing alone will not support termination of parental rights. See In re Caballero, 53 S.W.3d at 395-96; see also, e.g., Tex. Dep't. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987) (holding incarceration alone does not constitute engaging in conduct which endangers the emotional or physical well-being of a child); In re D.T., 34 S.W.3d at 633 (recognizing, "[I]t has long been settled that imprisonment, standing alone, does not constitute abandonment of a child" for purposes of termination of parental rights). Otherwise, the termination of parental rights could become an additional punishment automatically imposed along with imprisonment for almost any crime. In re D.T., 34 S.W.3d at 636.
Thus, in light of the foregoing case law, as well as the requirement that we strictly construe termination statutes in favor of the parents, we will not construe subsection Q, as urged by the Martins, as requiring only a conviction resulting in confinement or imprisonment, even for only one *295 day, coupled with a two-year inability to care for the child. See Holick, 685 S.W.2d at 20-21 (we are required to strictly construe the involuntary termination statutes in favor of the parent); Del Indus., Inc., 973 S.W.2d at 747-48 (recognizing that we will not construe a statute in a manner leading to a foolish or absurd result when another alternative is available). We hold termination under subsection Q is authorized only upon proof that the parent has knowingly engaged in criminal conduct that has resulted in the parent's conviction and confinement for at least two years from the date of the filing of the petition and in the parent's inability to care for the child for not less than two years. The record before us conclusively establishes Kristi was not confined for two years from the date of the filing of the petition. Thus, the evidence is legally insufficient to support the trial court's termination of Kristi's parental rights based on subsection Q. We sustain Kristi's first issue.
C. Voluntariness of Affidavit of Relinquishment; Sufficiency of the Evidence to Support Termination Under Section 161.001(1)(K).
In her second through sixth issues, Kristi complains that: (1) her affidavit of relinquishment was not voluntarily executed because she voluntarily relinquished her parental rights only to the Smiths, not to the Martins; (2) because her affidavit was involuntary, the evidence is legally and factually insufficient to support termination of her parental rights under section 161.001(1)(K); (3) the trial court has no discretion to accept an affidavit of voluntary relinquishment and then not abide by the choice of managing conservatorship designated in the affidavit; (4) her affidavit of relinquishment was not executed in compliance with section 161.103; and (5) the trial court abused its discretion in refusing to designate the Smiths D.R.L.M.'s managing conservators under section 153.374(b).
We will first address Kristi's fifth issue, in which she asserts that her affidavit of voluntary relinquishment was not executed in compliance with family code section 161.103. See Tex. Fam.Code Ann. § 161.103 (Vernon Supp.2002) (setting forth the statutory requirements for voluntary affidavits of relinquishment). Specifically, Kristi contends her affidavit was signed only by one witness, not two as required by the statute. See id. § 161.103(a)(2). TDPRS points out, however, Kristi asked the court to "accept her Affidavit of Relinquishment and place [D.R.L.M.] in the custody of the Smiths." TDPRS contends the invited error doctrine precludes Kristi from urging the trial court to accept her affidavit and then challenging the formalities of that same affidavit on appeal. Because we hold that Kristi's affidavit met the requisites of section 161.103(a)(2), we do not address TDPRS's invited error argument.
Section 161.103(a)(2) provides, "An affidavit for voluntary relinquishment of parental rights must be ... witnessed by two credible persons." Id. Page four of Kristi's affidavit of voluntary relinquishment contains the caption "WITNESSES AT REQUEST OF AFFIANT [TWO REQUIRED BY LAW]." Below this caption are blanks for the two witnesses to fill in their name, address, city, state, and zip code, along with another blank for each witnesses' signature. On Kristi's affidavit, two witnesses filled in the blanks with their address, city, state, and zip code. One witness printed her name in the blank titled "name" and signed her name on the signature line. The other witness, however, simply signed her name in the blank titled "name" and left the signature line blank. It is this blank signature line for *296 the second witness that Kristi contends renders her affidavit statutorily defective. We cannot agree. Kristi's affidavit was witnessed by two witnesses. One witness simply placed her signature on the name line rather than on the signature line. We hold that Kristi's affidavit did comply with section 161.103(a)(2)'s requirement that an affidavit of voluntary relinquishment be "witnessed by two credible persons." We overrule Kristi's fifth issue.
In her second issue, Kristi argues that her affidavit of relinquishment was not voluntary because she relinquished D.R.L.M. only to the Smiths, and the trial court did not appoint the Smiths D.R.L.M.'s managing conservators. TDPRS asserts that Kristi forfeited her second and third issues, challenging the voluntariness of her affidavit of relinquishment, because she did not plead or prove involuntariness in the trial court. TDPRS also argues that pursuant to family code section 161.211(c) an affidavit of relinquishment is not challengeable on the ground the trial court did not appoint the managing conservator designated in the affidavit. See Tex. Fam.Code Ann. § 161.211(c). Therefore, TDPRS contends we lack jurisdiction over Kristi's second issue.
Under the Texas Family Code, the trial court may terminate parental rights upon a finding, by clear and convincing evidence, that the parent has "executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter," and that termination is in the best interest of the child. Id. § 161.001(1)(K), (2) (Vernon Supp.2002); In re V.R.W., 41 S.W.3d 183, 190 (Tex. App.-Houston [14th Dist.] 2001, no pet.). Implicit in the family code is the requirement that the affidavit of voluntary relinquishment be voluntarily executed. In re V.R.W., 41 S.W.3d at 192; Neal v. Tex. Dep't. of Human Servs., 814 S.W.2d 216, 218-19 (Tex.App.-San Antonio 1991, writ denied). An involuntarily executed affidavit is a complete defense to a termination suit or decree based solely upon a finding under section 161.001(1)(K). Vela v. Marywood, 17 S.W.3d 750, 759 (Tex.App.-Austin 2000, pet. denied).
The proponent of the voluntary affidavit of relinquishment has the burden to establish by clear and convincing evidence that the affidavit was executed according to the terms of section 161.103 of the family code. In re V.R.W., 41 S.W.3d at 190; Vela, 17 S.W.3d at 758. Evidence that an affidavit of voluntary relinquishment was signed, notarized, witnessed, and executed in compliance with family code section 161.103 is prima facie evidence of its validity. In re V.R.W., 41 S.W.3d at 190; In re B.B.F., 595 S.W.2d 873, 875 (Tex.Civ.App.-San Antonio 1980, no writ). Once the proponent of the affidavit has met this burden, the affidavit may be set aside only upon proof, by a preponderance of the evidence, that the affidavit was executed as a result of fraud, duress, or coercion. See Tex. Fam.Code Ann. § 161.211(c) (Vernon Supp.2002) ("[a] direct ... attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights... is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit"); see also Queen v. Goeddertz, 48 S.W.3d 928, 929-32 (Tex.App.-Beaumont 2001, no pet.); Vela, 17 S.W.3d at 758.
In determining whether fraud existed in the execution of the affidavit, courts look to the circumstances surrounding its execution. Vela, 17 S.W.3d at 762. For example, in Queen v. Goeddertz, the court of appeals held an affidavit of relinquishment involuntary when it contained a paragraph stating the father relinquished *297 his rights "subject to the understanding that I will have reasonable visitation rights with my child." 48 S.W.3d at 929. In Vela v. Marywood, the court of appeals held an affidavit involuntary when the evidence conclusively established that the mother wanted to proceed with the adoption only if she could have post-adoption visits with her child. 17 S.W.3d at 762. The Vela court noted that although the mother testified she was not threatened, coerced, or defrauded into physically signing the affidavit of relinquishment, nonetheless, she did not know the post-adoption plan she initiated with the adoption agency and the adoptive family was legally unenforceable. Id. at 753-54.
Therefore, we disagree with TDPRS's contention that Kristi is jurisdictionally barred from challenging the voluntariness of her relinquishment affidavit on the ground she believed that the trial court was required to relinquish D.R.L.M. to the family she and D.R.L.M.'s biological father designated. We recognize that family code section 161.211(c) limits an attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights to issues relating to fraud, duress, or coercion in the execution of the affidavit. See Tex. Fam.Code Ann. § 161.211(c). We perceive Kristi's challenge, however, as falling squarely within the statutorily authorized challenges, relating to fraud, duress, or coercion, just as Vela's and Queen's challenges did. See Vela, 17 S.W.3d at 760 (discussing "fraud" as any cunning or artifice used to cheat or deceive another). That is, whether, given all of the circumstances surrounding the execution of Kristi's affidavit of relinquishment, the affidavit was procured by fraud or some issue relating to fraud, because of Kristi's alleged belief that the trial court was required to place D.R.L.M. with the family she designated in her affidavit of relinquishment.
We next address TDPRS's contention that Kristi waived her second issue on appeal by failing to plead it in the trial court. Kristi could not have pleaded in the trial court the involuntariness of her affidavit on the ground that she believed the trial court was required to abide by her choice of managing conservators because she allegedly possessed this belief up until the trial court actually declined to appoint the Smiths as D.R.L.M.'s managing conservators and instead appointed the Martins. Consequently, we hold that under the present facts, Kristi's failure to plead involuntariness does not waive her right to challenge on appeal the voluntariness of her affidavit.
We have overruled Kristi's only challenge to her affidavit's alleged noncompliance with section 161.103. Therefore, Kristi's affidavit, signed, notarized, witnessed, and executed in compliance with family code section 161.103, is prima facie evidence of its validity. See In re V.R.W., 41 S.W.3d at 190. Kristi bore the burden of establishing by a preponderance of the evidence that her affidavit of relinquishment was not voluntarily executed because of some issue relating to fraud, duress, or coercion in the execution of the affidavit. See Tex. Fam.Code Ann. § 161.211(c); In re V.R.W., 41 S.W.3d at 193. After hearing the evidence, however, the trial court found Kristi "executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by chapter 161 of the Texas Family Code." In making this finding, the trial court necessarily determined Kristi's affidavit was voluntarily executed. See, e.g., In re V.R.W., 41 S.W.3d at 192 (recognizing that "implicit in the family code is the requirement that the affidavit of voluntary relinquishment be voluntarily executed"). We interpret Kristi's appellate attack on the voluntariness *298 of her affidavit as a challenge to the legal sufficiency of the evidence to support the trial court's presumed voluntariness finding. See Tex.R. Civ. P. 299 (omitted elements are presumed in support of judgment). Because Kristi bore the burden of proof to establish involuntariness, we review the record before us, applying the traditional legal sufficiency standard of review to determine whether the evidence conclusively established the existence of issues relating to fraud, duress, or coercion in the execution of Kristi's affidavit.
In reviewing the legal sufficiency of the evidence supporting the voluntariness of Kristi's affidavit, we first examine the record for evidence that supports the implied voluntariness finding while ignoring all evidence to the contrary. See Vela, 17 S.W.3d at 759. Next, if there is no evidence to support the finding, then we examine the entire record to see if the involuntariness of Kristi's affidavit was established as a matter of law. See id.
Kristi's affidavit provides, "I fully understand that the termination suit may or may not be combined with a suit to adopt my child. I understand either way, once the Court terminates my parental rights, I have no further say concerning my child, whether or not my child is adopted then or at some later time." [Emphasis added.] The record also reflects the following questions to and answers by Kristi at trial:
Q. Okay. Now, did you understand when you signed that Affidavit of Relinquishment that you were by that document giving up your rights as a parent to this child? Did you understand that?
A. Yes, I did.
Q. Is that your position here today in this trial that you want to persist with that position?
A. Yes, it is.
Q. Do you understand that by the judge accepting that, that that will become a final decision by this court, one that you cannot undo? Did you understand that?
A. Yes, I do.
....
Q. Okay. Do you understand that if the Court grants your request and terminates your rights and names the [Smiths] as the managing conservator, you understand that they intend to adopt your child? Do you understand that?
A. Yes, I do.
Q. And do you understand that if that were to happen, whether or not they adopt or not, when your rights are terminated, that's it for you, legally speaking?
A. I understand that.
After discussing her decision that D.R.L.M. should go live with the Smiths, Kristi testified:
Q. But again, let me just make sure I understood your answer. So if this move was harmful to D.R.L.M., it wouldn't matter; you would still want her to move?
A. It would matter, but I've made my decision and I'm not going to go back on it.
Q. Why should your decision rule? Let me ask you that.
A. My decision don't rule. It's the judge's decision that rules.
Kristi was represented by counsel when she executed her affidavit of voluntary relinquishment, and the affidavit indicates she "obtained the advise [sic] of my attorney" in connection with executing the affidavit. This evidence, pointed out by TDPRS and the Martins in support of the trial court's implied voluntariness finding, constitutes some evidence Kristi voluntarily *299 executed her affidavit; that is, in this context, some evidence she understood at the time she executed the affidavit that both the Martins and the Smiths were attempting to adopt D.R.L.M. Although Kristi designated the Smiths as D.R.L.M.'s managing conservators and wanted D.R.L.M. to be adopted by them, this evidence shows she understood that the judge's decision as to whether D.R.L.M. would be adopted by the Smiths or the Martins "ruled."
We conclude the evidence is legally sufficient to support the trial court's implied finding that Kristi's affidavit of relinquishment was voluntarily executed. Nonetheless, we look to the evidence pointed to by Kristi as conclusively establishing the involuntariness of her affidavit. Kristi focuses on the following paragraphs of her affidavit:
It is in the best interest of [D.R.L.M.] that [D.R.L.M.] be placed for adoption in the home of Patrick and Sueanne [Smith]. I therefore designate Patrick and Sueanne [Smith] as managing conservator of the child. I have been informed of my parental rights, privileges, powers, and duties. I freely, voluntarily, and permanently give and relinquish to the above named persons all of my parental rights, privileges, powers, and duties.
....
I know that I have the right to appear personally before the Court ... to testify about my desires with respect to my child. Instead, I want Patrick and Sueanne [Smith] to present this Affidavit of Relinquishment of Parental Rights to the Court and tell the Judge this affidavit speaks for me.
....
I have carefully considered alternative plans for my child's future and have obtained the advise [sic] of my attorney and whatever family members, friends, or other persons and professionals I feel were necessary to help me make this decision. This decision is very difficult for me to make, and under other circumstances I might have made a different decision. Nevertheless, under the circumstances I find myself in, I have decided that I cannot provide properly for my child's physical and emotional needs, and I want Patrick and Sueanne [Smith] to be the permanent home for my child and for my child to be adopted by Patrick and Sueanne [Smith]. As I sign this Affidavit of Relinquishment of Parental Rights, I know that Patrick and Sueanne [Smith], in accepting my child for adoptive placement and assuming responsibility for my child, [are] relying on my promise that I will not attempt to reclaim my child. With this in mind, I declare that I fully understand the meaning of this affidavit of relinquishment and the finality of my action in signing it, and, understanding all this, I am signing this freely, voluntarily, and with the firm conviction that this decision is the best available alternative for my child. [Emphasis added.]
Kristi claims that the language italicized above conclusively proves that she only intended to voluntarily relinquish D.R.L.M. to the Smiths and that her affidavit was involuntary to the extent it permitted someone other than the Smiths to be appointed managing conservator of D.R.L.M. Neither Kristi's affidavit nor the record of the termination hearing, however, establishes that Kristi conditioned termination of her parental rights on the unenforceable condition that the Smiths be permitted to adopt D.R.L.M. Cf. Queen, 48 S.W.3d at 930-32 (holding evidence conclusively established affidavit of relinquishment involuntary where it stated relinquishment was "subject to the understanding *300 that I will have reasonable visitation with my child"); Vela, 17 S.W.3d at 762-63 (holding evidence conclusively established affidavit of relinquishment involuntary where it was based on adoption agency's "empty promise" of mother's post-adoption visits with child). To the contrary, Kristi's affidavit and her testimony show she wanted the Smiths to be appointed D.R.L.M.'s managing conservators, but understood her parental rights would be terminated regardless of which family was appointed as D.R.L.M.'s managing conservators. We overrule Kristi's second issue.
Kristi's third issue is intertwined with and conditioned upon her second issue. In her third issue, Kristi argues that because her affidavit of relinquishment was involuntary, the evidence is legally and factually insufficient to support the trial court's termination of her parental rights under family code section 161.001(1)(K) based on the affidavit. Because we have resolved Kristi's voluntariness challenge to her affidavit against her, and she states no other challenge to the termination of her rights based on the relinquishment affidavit, we overrule her third issue.
In her fourth issue, Kristi contends that the trial court "may not accept an affidavit of relinquishment to terminate parental rights and not follow the affidavit's designation of managing conservatorship." TDPRS argues that Kristi has waived this issue through inadequate briefing by failing to cite authority. Kristi acknowledges in her brief, however, that "[a]fter a thorough search of Texas law, counsel has found no cases that are directly on point for the issues at hand." Moreover, we are required to liberally construe the briefing rules. See Tex.R.App. P. 38.9. We hold Kristi's fourth issue is not waived due to inadequate briefing.
Turning to the merits of Kristi's fourth issue, we cannot agree with her position. Family code section 161.001(1)(K) authorizes a trial court to terminate a parent-child relationship if the court finds by clear and convincing evidence that the parent has executed an unrevoked affidavit of relinquishment of parental rights and that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001(1)(K), (2). The statute nowhere requires the trial court to abide by the parent's choice of a managing conservator expressed in the relinquishment affidavit.[8] The primary problem with the construction of subsection K urged by Kristi is that it makes the parent's desires concerning the child's managing conservatorship more important than the trial court's determination of the best interest of the child. The trial court is required to appoint the person designated in an affidavit of relinquishment as the child's managing conservator unless the court finds the appointment would not be in the best interest of the child. Id. § 153.374 (Vernon 1996). Because Kristi's construction of subsection K would force the trial court to abide by a parent's designation of a managing conservator regardless of whether appointment of the named managing conservator was not in the best interest of the child, it is untenable. We overrule Kristi's fourth issue.
Kristi's sixth issue contends the trial court abused its discretion in failing to designate the Smiths as D.R.L.M.'s managing conservators, as mandated by *301 section 153.374(b),[9] and "adopts and joins the Smiths' Brief on Appeal on this issue." Kristi provides no further argument or authorities in support of her sixth issue. The Smiths do not, however, challenge the trial court's refusal to appoint them D.R.L.M.'s managing conservators under section 153.374(b). Rather, the Smiths argue the trial court erred by failing to adhere to family code section 162.302(e), which requires TDPRS, in providing adoption services, to "keep siblings together and whenever possible place siblings in the same adoptive home." See Tex. Fam.Code Ann. § 162.302(e) (Vernon Supp.2002). Because Kristi's sixth issue is not the same issue raised by the Smiths, we overrule it.
IV. THE SMITHS' APPEAL.
In two issues on appeal, the Smiths complain the trial court erred by failing to follow family code section 162.302(e)'s mandate to "whenever possible place siblings in the same adoptive home," and by refusing to appoint them D.R.L.M.'s managing conservators. See id. The Smiths point out that D.R.L.M.'s biological parents' affidavits of voluntary relinquishment name them as D.R.L.M.'s managing conservators and that TDPRS recommended placement of D.R.L.M. with them. Because the Smiths' two issues are related, we discuss them jointly.
As previously mentioned, TDPRS claims that Kristi's rights were properly terminated, but agrees with the Smiths that the trial court erred in refusing to appoint them managing conservators of D.R.L.M. TDPRS asks us to reverse the portion of the trial court's judgment ordering the Martins D.R.L.M.'s managing conservators and to render judgment awarding managing conservatorship of D.R.L.M. to the Smiths.
We must first determine the appropriate standard of review to be applied to the Smiths' first issue. The Smiths frame their issue as a challenge to the sufficiency of the evidence, contending the evidence is legally and factually insufficient to support the trial court's "decision to split the siblings between two homes." TDPRS, however, argues the "standard of review of the adoption order is whether the trial court abused its discretion." In support of its contention, TDPRS cites In re Doe 2, 19 S.W.3d 278, 281 (Tex.2000).
In order to grant an adoption, the trial court must determine that adoption is in the best interest of the child. See Tex. Fam.Code Ann. § 162.016(a), (b) (Vernon 1996) (both requiring an adoption-is-in-the-child's-best-interest determination). The Texas Supreme Court in In re Doe 2 recognized that we review a trial court's best interest finding in an adoption case for an abuse of discretion. 19 S.W.3d at 281. When we review trial court action under the abuse of discretion standard, however, the legal and factual sufficiency of the evidence supporting the trial court's action are relevant factors in determining whether an abuse of discretion occurred. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Tex. Dep't of Health v. Buckner, 950 S.W.2d 216, 218 (Tex.App.-Fort Worth 1997, no pet.). Thus, we review the trial court's determination that D.R.L.M.'s adoption by the Martins was in her best interest under an abuse of discretion standard, while considering the legal and factual sufficiency of the evidence supporting the trial court's best interest determination in our abuse of discretion analysis.
*302 The Smiths and TDPRS argue, however, that family code section 162.302(e) required the trial court to impose some heightened burden of proof upon the Martins to justify not placing A.C. and D.R.L.M. in the same adoptive home. According to the Smiths and TDPRS, the Martins failed to establish clear and compelling reasons justifying placement of D.R.L.M. in a different adoptive home than A.C.
Section 162.032 is entitled "Adoption Assistance Program," and was added effective June 13, 2001. See Act of June 13, 2001, 77th Leg. R.S., ch 744, § 1, 2001 Tex. Gen. Laws 1467, 1468. It provides:
(e) It is the intent of the legislature that the department in providing adoption services, when it is in the children's best interest, keep siblings together and whenever possible place siblings in the same adoptive home.
TEX. FAM.CODE ANN. § 162.302(e) (Vernon Supp.2002) (emphasis added). As previously noted, the family code defines "biological siblings" as persons who share a common birth parent, so D.R.L.M. and A.C. meet the statutory definition of siblings. See Tex. Fam.Code Ann. § 162.402(9).
TDPRS cites several out-of-state cases for the proposition that section 162.302(e) required the trial court to place some type of heightened standard of proof upon the Martins to justify separation of D.R.L.M. from A.C. See John B. v. Niagara Co. Dep't. Social Servs., 289 A.D.2d 1090, 735 N.Y.S.2d 333, 335-36 (N.Y.App.Div.2001); In re C.J.R., 782 A.2d 568, 573 (Pa.Super.2001); In re Stroh, 240 Ga.App. 835, 523 S.E.2d 887, 894 (1999); Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798, 809 (S.D. 1999); In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). We have reviewed these cases, and they hold that, in permitting an adoption, the trial court must act in the best interest of the child and place the child with a sibling if it is in the child's best interest. These cases do not seem to support imposition of a heightened standard to justify placing siblings who have never lived together in separate adoptive homes.
For example, In re C.J.R. involved facts similar to the present facts. See 782 A.2d at 573. C.J.R., a little girl approximately three years old at the time of trial, was placed with foster parents when she was six months old. Id. at 569. C.J.R.'s half-sister, approximately four years older than C.J.R., lived with her maternal grandparents in Indiana. Id. The mother sought placement of C.J.R. with her parents and C.J.R.'s half-sister. Id. at 570. A psychologist opined:
[T]here is no clear cut answer to the decision of whether to leave [C.J.R.] in the Custody of [Foster Parents] or place her in Indiana with her grandparents. Instead, there are relative strengths and disadvantages to both possible outcomes.
Id. at 573. The mother, in support of her position that custody should be transferred to her parents, relied upon the public policy in Pennsylvania of placing siblings, including half-siblings, together whenever possible and absent compelling reasons to the contrary. Id. The trial court concluded the benefits and bonds from a sibling relationship did not justify removing C.J.R. from her foster parents and placing her with her grandparents. Id. The appellate court, applying an abuse of discretion standard of review, affirmed the trial court's judgment, noting, "this factor, [placement with a sibling] cannot be automatically elevated above all others, but must be weighed in conjunction with the others." Id.
Likewise, in John B., a New York appellate court reversed the trial court's judgment placing a child, Georgina, with a *303 woman who was planning to adopt the child's half-brother, Ralph, instead of with the child's foster parents with whom the child had lived since she was approximately four months old. 735 N.Y.S.2d at 334-36. The appellate court held the finding that it was more important for Georgina and Ralph to remain together than it was for Georgina to remain in the only home she had ever known was not supported by the record. Id. at 336.
The Smiths argue that section 162.302(e) "codifies" prior Texas case law holding that siblings may not be separated absent a showing of clear and compelling reasons. They cite In re De La Pena, 999 S.W.2d 521, 535 (Tex.App.-El Paso 1999, no pet.); Pizzitola v. Pizzitola, 748 S.W.2d 568, 569 (Tex.App.-Houston [1st Dist.] 1988, no writ); Dalton v. Doherty, 670 S.W.2d 422, 424 (Tex.App.-Fort Worth 1984, no writ); Zuniga v. Zuniga, 664 S.W.2d 810, 812 (Tex.App.-Corpus Christi 1984, no writ); O. v. P., 560 S.W.2d 122, 127 (Tex.Civ. App.-Fort Worth 1977, no writ); and Griffith v. Griffith, 462 S.W.2d 328, 330 (Tex. Civ.App.-Tyler 1970, no writ).
We have carefully reviewed each of the cases cited by the Smiths. We cannot agree that these cases require us to read a clear-and-compelling-reasons burden of proof into section 162.302(e). First, none of these cases are adoption cases. They are custody cases. See In re De La Pena, 999 S.W.2d at 524 ("[i]n this child custody case, Elsa Doss appeals from an order appointing her brother, Caesar De la Pena, as a joint managing conservator of his daughter"); Pizzitola, 748 S.W.2d at 569 ("[t]his is an appeal from an award of child custody in a divorce action"); Dalton, 670 S.W.2d at 423 ("[t]his is an appeal from a trial court order modifying the terms and conditions of the parties' possession of and access to their two minor children"); Zuniga, 664 S.W.2d at 811 ("[t]his is an appeal by Ofelia Zuniga from portions [involving custody] of a judgment rendered in a divorce proceeding"); O. v. P., 560 S.W.2d at 124 ("[t]his is a case involving a suit for change of child custody"); Griffith, 462 S.W.2d at 329 ("[t]his appeal involves the proper submission to the jury of special issues regarding the custody of minor children"). Second, the policy of "keeping" siblings together enunciated in these cases necessarily applies only to siblings already living together. See In re De La Pena, 999 S.W.2d at 524 (noting children lived together with various relatives from 1991 to 1994); Dalton, 670 S.W.2d at 423 (children resided with father after divorce); O. v. P., 560 S.W.2d at 124 (noting mother had custody of both children after divorce); Griffith, 462 S.W.2d at 329 (noting both mother and father sought custody of the four children of the marriage). Third, courts have traditionally applied the policy of keeping siblings together in custody decisions only to children of the same marriage, i.e., not to half-siblings. See In re De La Pena, 999 S.W.2d at 535 ("[t]he record reflects that Christine and Albert are full-blooded siblings"); Pizzitola, 748 S.W.2d at 569 (recognizing clear and compelling reasons for split custody did not apply in cases where the children involved were of prior marriages); Dalton, 670 S.W.2d at 423 (noting parties were challenging order modifying their possession and access to their two minor children); O. v. P., 560 S.W.2d at 124 (noting parties had two children from their marriage); Griffith, 462 S.W.2d at 329 (noting both mother and father sought custody of the four children of the marriage). But see Zuniga, 664 S.W.2d at 812-14 (holding trial court did not abuse its discretion in granting custody of youngest child with mother and custody of three older children with father).
The present case is not a custody dispute. The Smiths' position that Texas *304 public policy requires the placement of siblings together absent clear and compelling reasons is limited to custody decisions by the trial court. See In re De La Pena, 999 S.W.2d at 524; Pizzitola, 748 S.W.2d at 569; Dalton, 670 S.W.2d at 423; Zuniga, 664 S.W.2d at 811; O. v. P., 560 S.W.2d at 124; Griffith, 462 S.W.2d at 329. As the Griffith court explained:
One of these guides [for the trial court in a custody case] is that custody of the children of the marriage should not be divided, i.e., awarding custody of one or more of the children to one parent and one or more of the children to the other parent, except for clear and compelling reasons.
462 S.W.2d at 330. The Smiths have not cited and we have not found any authority for the imposition of this clear-and-compelling-reasons burden on an adoption statute, section 162.302(e), promulgated by the Legislature.
Moreover, here, D.R.L.M. and A.C. never resided together and are not "children of a marriage," they do not share the same biological father. The policy reasons for placing custody of minor children who have lived their whole lives together with the same parent differ greatly from the considerations involved in determining whether the adoption of a particular child by a particular family is in the child's best interest. We decline to superimpose the clear-and-compelling-reasons burden necessary to justify split custody of children of a marriage upon an adoption statute.
Additionally, the plain language of family code section 162.302(e) does not require siblings to be placed in the same adoptive home unless some heightened quantum of proof would justify placing them separately. For example, the statute does not state that it is in the children's best interest to place siblings together whenever possible. Rather, the statute only states that siblings should be placed in the same adoptive home when it is in their best interest and when it is possible, i.e., prospective adoptive parents are willing to adopt both siblings. Tex. Fam.Code Ann. § 162.302(e). For these reasons, we hold that section 162.302(e) did not require the trial court to impose upon the Martins a heightened, clear-and-compelling-reasons burden of proof to justify placing D.R.L.M. in an adoptive home different than A.C.'s adoptive home.
The Smiths also argue that section 162.302(e)'s language requiring placement of siblings together when it is in the children's best interest means that "it is the best interest of the child, as determined by TDPRS, that controls." The Smiths argue that when TDPRS provides adoption services it must determine whether placement with a sibling is in the child's best interest and, if so, whenever possible place the siblings in the same adoptive home. Consequently, the Smiths argue the trial court should have implemented TDPRS's adoption plan to place D.R.L.M. in the same home with her half-sibling, A.C., because TDPRS had determined this would be in D.R.L.M.'s best interest.
We have found no authority for the proposition that TDPRS's recommendation as to adoptive placement of a sibling constitutes a "best interest" determination that is binding on the trial court. To the contrary, family code section 162.016(b) authorizes a trial court to grant an adoption only if it finds adoption is in the best interest of the child. See id. § 162.016(b) (Vernon 1996). We will not construe family code section 162.302(e) as authorizing TDPRS to make a binding best interest determination when section 162.016 places responsibility for that finding on the trial court.
*305 Having determined that section 162.302(e) did not impose a heightened quantum of proof upon the Martins, we simply review the trial court's adoption best interest determination under an abuse of discretion standard, and we consider the factual and legal sufficiency of the evidence to support the trial court's action as one relevant factor in our analysis. See In re Doe 2, 19 S.W.3d at 281; In re J.R.P., 55 S.W.3d 147, 151 (Tex.App.-Corpus Christi 2001, pet. denied). The trial court has wide latitude in determining the best interest of a minor child. In re J.R.P., 55 S.W.3d at 151 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982)). We will reverse the judgment of the trial court only when it appears from the record as a whole that the court has abused its discretion. Id. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); see also Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).
The trial court issued findings of fact and conclusions of law and specifically found: "the appointment of Patrick and Sueanne [Smith] as the Managing Conservators of the Child is not in the Child's best interest"; "the appointment of Joe and Jean [Martin] as the Managing Conservators of [D.R.L.M.] is in the best interest of [D.R.L.M.]"; and the adoption of D.R.L.M. by the Martins is in the best interest of D.R.L.M. The trial court made no express finding that placement of D.R.L.M. in the same adoptive home with her half-sister, A.C., was not in D.R.L.M.'s best interest. This finding, however, is implied in favor of the trial court's judgment, especially in light of the trial court's express finding that the appointment of the Smiths, A.C.'s adoptive parents, as D.R.L.M.'s managing conservators was not in D.R.L.M.'s best interest and that the adoption of D.R.L.M. by the Martins was in D.R.L.M.'s best interest. See Tex.R. Civ. P. 299; see also In re De La Pena, 999 S.W.2d at 536 (implying finding that separation of child from brother was not in child's best interest in light of judgment appointing father with possession of brother as managing conservator of child).
We review the entire record to determine whether the trial court abused its discretion by impliedly finding that placement of D.R.L.M. in the same adoptive home with A.C., i.e., the Smiths' home, was not in D.R.L.M.'s best interest. We necessarily also review under an abuse of discretion standard the trial court's express findings that the appointment of the Smiths as D.R.L.M.'s managing conservators was not in D.R.L.M.'s best interest, that the appointment of the Martins as D.R.L.M.'s managing conservators was in D.R.L.M.'s best interest, and that the adoption of D.R.L.M. by the Martins was in D.R.L.M.'s best interest because each of these findings would preclude placement of D.R.L.M. in the same adoptive home with A.C.
There is no question both the Smiths and the Martins were willing to provide and capable of providing an excellent home *306 for D.R.L.M. The evidence concerning the character and loving personalities of the Smiths and the Martins is equally stellar. Our focus, however, based on the issue presented by the Smiths, is whether the trial court abused its discretion in determining that placement of D.R.L.M. with the Smiths was not in D.R.L.M.'s best interest. We consequently closely review the evidence presented by the parties' experts concerning D.R.L.M.'s best interest.
Fred Thomas, a psychotherapist, testified on behalf of the Smiths. At the time he testified, he had not met the parties in this case. He testified that a child's ability to bond with a family would be enhanced by the presence of a biological sibling. Moving a child under three years of age, he admitted, would be stressful, but not traumatic. On cross-examination he conceded, however, that it could be very harmful to change the primary caregiver of a child under the age of three. The "possible" consequences of removing a child from their longest caregiver include: failure to thrive, inability to interact in their environment, poor school performance, impulsiveness, inability to bond with others, problems in relationships, poor self-identity, and self-esteem problems that could develop into eating disorders.
Harry Baker, a psychologist, testified on behalf of the Martins. He said that he met with the Martins twice, for about ninety minutes each time and that D.R.L.M. was attached to the Martins. Baker further testified:
Q. If you had to choose between a caregiver who a child is bonded to or attached to and a potential relationship with a sibling, which would you choose and why?
A. Well, I would choose the relationship where the child is, you know, alreadythat is the child's world, the family that he or she is attached to, and the reason why is because that is critically important in a child's development. You can't break that. The stronger the attachment, if it's disrupted, the more damage that's done to the child. The longer the attachment has been there, the more damage it is to the child, and you know, I perceive it as probably 90 percent of importance in assessing what should be done with the child is the quality of attachment.
....
Q. Well, let's assume that the [Smiths] were the absolute best parents in the world. Would that make any difference to you?
A. It really wouldn't. If [D.R.L.M.] had been placed with the [Smiths] and we were here, I would be arguing just and I just observed even adequate, not to mention good, caretaking on their part, I would be arguing just as strongly in favor of the [Smiths].
Q. From what you were told, how many caretakers has [D.R.L.M.] had?
A. Well, there is at least, before the [Martins], as least two, her biological mother and biological father, and there was also reported that at least perhaps as many as four occasions she was left with others for more than a short period of time, and those people are kind of shadowy as to who they are, but they were friends or acquaintances of the biological parents.
Q. What could one more move do to [D.R.L.M.]?
....
A. Well, as Bolby (phonetic) says, what happens is that when you get traumatic events that happen to a child, then you get an almost geometric effect as you add on traumatic events, that they sort ofwhat's the word?energize *307 each other, and you get a worse, you get a more and more damaging outcome, so what could happen is that this just exacerbates the previous whatever it was, abandonment, feelings of rejection, on the part of [D.R.L.M.]
....
Q. Is a move a risk worth taking?
A. Oh, I don't think so.
Q. Why?
A. For the reasons I've given. She has been in the [Martins'] home now for 18 months. This had been ashe's still is in a very formative period. This is her world. I mean, there is no difference between the way she sees the [Martins] and the way you or my child at two sees the parents psychologically. There is not a bit of difference.
In light of this evidence and testimony, we cannot hold the trial court abused its discretion in determining placement of D.R.L.M. in the same adoptive home with her half-sister was not in D.R.L.M.'s best interest. Likewise, in light of this evidence and testimony, we cannot hold that the trial court abused its discretion in determining appointment of the Smiths as D.R.L.M.'s managing conservators was not in D.R.L.M.'s best interest. Abuse of discretion does not exist as long as there is some evidence of a substantive and probative character to support the decision. Holley, 864 S.W.2d at 706. The substantive and probative expert testimony outlined above also supports the trial court's determinations that the appointment of the Martins as D.R.L.M.'s managing conservators was in D.R.L.M.'s best interest and that the adoption of D.R.L.M. by the Martins was in her best interest.
Additionally, because this evidence constitutes more than a scintilla of evidence, the trial court's best interest findings are supported by legally sufficient evidence. See Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). We further hold that evidence in support of the trial court's best interest findings is not so weak, or the evidence to the contrary so overwhelming, that the findings should be set aside; the evidence supporting these findings therefore is factually sufficient. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Thus, factoring the sufficiency of the evidence to support the trial court's best interest findings into our abuse of discretion analysis only confirms that the trial court did not abuse its discretion in its best interest findings. We overrule the Smiths' first and second issues.
V. TDPRS's CROSS POINTS.
The trial court's termination and adoption order provided, "All papers and records in this case, including the minutes of the Court, are ordered sealed." In two cross-points, TDPRS complains that the trial court lacked authority to order the reporter's record in this case sealed. Alternatively, TDPRS asserts that "the seal was forfeited" when the reporter's record was released to appellants without restriction and when appellants disclosed the contents of the record by filing their briefs. TDPRS requests this court to sustain its cross-points, declare the record unsealed, shred the affidavits required of TDPRS when it checked out the sealed records, and advise the trial court to never attempt to seal the record in this manner again.
Section 161.210 of the family code provides:
The court, on the motion of a party or on the court's own motion, may order the sealing of the file, the minutes of the court, or both, in a suit for termination.
TEX. FAM.CODE ANN. § 161.210 (Vernon 1996). Section 162.021 of the family code is titled, "Sealing File," and it provides:
*308 (a) The court, on the motion of a party or on the court's own motion, may order the sealing of the file and the minutes of the court, or both, in a suit requesting an adoption.
Id. § 162.021(a). TDPRS acknowledges these statutes, but contends that they do not authorize the trial court to seal the reporter's record. According to TDPRS, the reporter's record is not part of the "file" and is not sealable at all by the trial court. We cannot agree.
TDPRS's construction of sections 161.210 and 162.021 would render them meaningless. If the court reporter's stenographic notes, transcription of those notes, and the exhibits offered into evidence at trial are not subject to a sealing order such as the one at issue, then in effect, the entire trial record is not sealed and is available to the public. We will not construe sections 161.210 and 162.021 in a manner that renders them meaningless and ineffectual. See, e.g., Attorney General v. Redding, 60 S.W.3d 891, 895 n. 2 (Tex.App.-Dallas 2001, no pet.) (recognizing appellate courts will not construe a statute so as to render certain provisions meaningless); In re Marriage of Richards, 991 S.W.2d 32, 37 (Tex.App.-Amarillo 1999, pet. dism'd) (recognizing the courts have no right or prerogative to add to or take from such a legislative enactment, or to construe it in such a way as to make it meaningless). We overrule TDPRS's first cross-point.
In its second cross-point, TDPRS complains the sealing order was waived in this court and complains of procedures utilized by this court to ensure compliance with the trial court's sealing order. The trial court ordered the records sealed, presumably for the benefit of D.R.L.M. Consequently, we hold the parties may not waive the sealing order. If the parties desire the record unsealed, they should seek an order from the trial court. We decline to hold that the parties may waive the applicability of a trial court order.
TDPRS's complaints concerning the procedures utilized by this court to ensure the trial court records, which become this court's records when filed here, remain sealed are not proper grounds to be raised in a cross-point. See Tex.R.App. P. 38.2(b) (discussing matters that may be raised by cross point); Id. 43.2 (setting forth the types of judgments courts of appeals may render). Thus, we will not review this court's alleged procedural impropriety in this appeal. Accordingly, we overrule TDPRS's second cross-point.
VI. CONCLUSION.
Having sustained Kristi's first issue, we modify the trial court's September 20, 2001 Order of Termination and Decree of Adoption by deleting subsection 7(b), located on pages two and three of the order and decree to eliminate the trial court's finding that D.R.L.M.'s mother "knowingly engaged in criminal conduct that has resulted in her conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date the petition was filed." Having overruled all of Kristi's other issues, the Smith's issues, and TDPRS's cross-points, we affirm the trial court's judgment as modified.
NOTES
[1] All statutory references are to the Texas Family Code unless indicated otherwise.
[2] To protect the privacy of the parties, we identify them by fictitious names. See Tex. Fam.Code Ann. § 109.002(d) (Vernon 1996).
[3] The family code defines "biological siblings" as persons who share a common birth parent, so D.R.L.M. and her half-sister meet the statutory definition of siblings. See Tex. Fam.Code Ann. § 162.402(a) (Vernon Supp. 2002). This case, however, does not involve adoptive placement to "keep siblings together" under section 162.302(e) because D.R.L.M. and her half-sister have never resided in the same home.
[4] D.R.L.M.'s biological father is not a party to this appeal.
[5] Kristi's statement of points provides:
Point One: Respondent's Affidavit of Relinquishment of Parental Rights was executed involuntarily because it was specifically executed on the belief and condition that Respondent's biological child, [D.R.L.M.], would be placed for adoption with Intervenors Patrick and Sueanne [Smith].
Point Two: Because Respondent's Affidavit of Relinquishment of Parental Rights was involuntary, termination of Respondent's parental rights on that ground is not supported by the evidence.
Point Three: The evidence is legally and factually insufficient to support the trial court's finding that Respondent's parental rights should be terminated under Texas Family Code § 161.001[(1)](Q)(ii).
[6] The six issues raised by Kristi on appeal are:
A. Issue One: The evidence is legally and factually insufficient to support the trial court's finding that Respondent's parental rights should be terminated under Texas Family Code § 161.001[(1)](Q).
B. Issue Two: Respondent's affidavit of relinquishment of parental rights was not voluntary because it was specifically executed on the belief and condition that Respondent's biological child, D.R.L.M., would be placed for adoption with interveners Patrick and Sueanne [Smith].
C. Issue Three: Because Respondent's affidavit of relinquishment was not voluntary, the evidence is legally and factually insufficient to support termination of her parental rights under section 161.001(1)(K).
D. Issue Four: The trial court may not accept an affidavit of relinquishment to terminate parental rights and not follow the affidavit's designation of managing conservatorship.
E. Issue Five: Because Respondent's affidavit of relinquishment was not executed according to the terms of section 161.103, the evidence is legally and factually insufficient to support the trial court's finding that termination was proper under section 161.001(1)(K).
F. Issue Six: The trial court abused its discretion in failing to designate the [Smiths] as D.R.L.M.'s managing conservators, as mandated by section 153.374(b).
[7] TDPRS points out that language used by this court in In re A.R.R. purportedly requires subsection Q's "inability to care" requirement to run "for at least two years prior to the date on which the petition was filed" rather than from the date the petition was filed as required by the statute. A.R.R., 61 S.W.3d at 700 (emphasis added). Our opinion makes it clear, however, that we considered the appellant's imprisonment from 1999, when the termination petition was filed, through 2005, the date appellant was scheduled for release from prison, because he petitioned to be denied parole. Id. Consequently, the opinion reflects that we did consider evidence of appellant's inability to care for his daughter for two years after the filing of the petition. Id.
[8] An affidavit of voluntary relinquishment must contain "the designation of a prospective adoptive parent ... to serve as managing conservator of the child." Tex. Fam.Code Ann. § 161.103(b)(12).
[9] As mentioned above, section 153.374(b) requires the trial court to appoint the person a parent designates as managing conservator in an affidavit of relinquishment unless the court finds that the appointment would not be in the best interest of the child. Tex. Fam.Code Ann. § 153.374(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577344/ | 35 So. 3d 19 (2008)
RONALD B. PARVIN D/B/A RON PARVIN CONSTR.
v.
SHERRY L. STANLEY.
No. 2070642.
Court of Civil Appeals of Alabama.
October 24, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544590/ | 68 B.R. 735 (1986)
In re HUDSON OIL COMPANY, INC., et al., Debtors.
Bob STALLINGS, Plaintiff,
v.
Walter C. KELLOGG, Defendant.
Bankruptcy No. 84-20002, Adv. No. 85-0012, Civ. A. No. 85-2474.
United States District Court, D. Kansas.
December 30, 1986.
*736 James D. Howell, Jr., Overland Park, Kan., for plaintiff.
F. Stannard Lentz, Mission, Kan., for defendant.
MEMORANDUM AND ORDER
EARL E. O'CONNOR, Chief Judge.
This is an appeal of an order entered by the United States Bankruptcy Court for the District of Kansas, denying plaintiff's Motion to Remand. Because section 1452(b) of Title 28, United States Code, provides that a decision to deny remand is not appealable, the sole issue on appeal is whether this court, and by reference the bankruptcy court, has jurisdiction over plaintiffs cause of action. We conclude that jurisdiction is proper in this court, though on a different basis than that on which the bankruptcy court relied.
I. Facts.
Plaintiff Bob Stallings was formerly the Vice-President of the Marketing Division of the Hudson Oil Company ["Hudson Oil"], which is being reorganized under Chapter 11 of the Bankruptcy Code. Defendant Walter C. Kellogg is the trustee in bankruptcy for Hudson Oil and the other debtors in the instant bankruptcy case. On February 15, 1985, plaintiff filed a petition in the District Court of Johnson County, *737 Kansas, seeking damages against defendant personally for an alleged wrongful termination or retaliatory discharge of plaintiff. In his petition, plaintiff alleges that defendant wilfully and deliberately acted outside the scope of his authority as trustee by firing plaintiff after plaintiff refused to reimburse the debtors' estate for a cash and inventory shortage. The shortage occurred at a Hudson Oil Company Station managed by plaintiff's son. Plaintiff insists that his lawsuit is directed solely against defendant in his personal capacity, and not as trustee, and that the debtors' estate will thus not be affected.
On March 8, 1985, pursuant to 28 U.S.C. § 1452 and Local Rule B-103, defendant removed the action to the United States Bankruptcy Court for the District of Kansas. On March 25, 1985, plaintiff filed a motion to remand the adversary proceeding to state court. Judge Franklin, on September 11, 1985, denied plaintiff's motion, holding that plaintiff's claim is a core proceeding under 28 U.S.C. § 157(a)(2) (presumably § 157(b)(2)) and that denying remand was in the best interest of the debtors' estate. Implicitly, Judge Franklin also held that the court has jurisdiction over plaintiff's claim under 28 U.S.C. § 1334. Plaintiff timely filed a notice of appeal of Judge Franklin's order and we subsequently ruled that plaintiff could appeal the judge's determination that this court has jurisdiction.
II. Alleged Defects in Removal Procedure.
Plaintiff essentially complains of two procedural defects in defendant's application for removal of this matter from state court: (1) defendant, in violation of Bankruptcy Rule 9027(a)(1), did not verify the removal petition; and (2) defendant did not post a removal bond as required by 28 U.S.C. § 1446(d). Neither of these complaints has merit.
First, although it is true that defendant did not initially verify his removal petition, he did eventually verify it. The law is well-settled that irregularities or defects in the removal procedure, if cured, "do not defeat the jurisdiction of the federal court." C. Wright, The Law of Federal Courts § 40, at 232; 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3739 (1985).
Second, as the bankruptcy court properly held, a trustee is not required to file a bond with the application for removal. Bankruptcy Rule 9027(b). Although plaintiff is suing defendant only in defendant's personal capacity, defendant is defending the action by asserting, among other things, that he acted properly and within the scope of his authority as a trustee. Therefore, Rule 9027(b) is fully applicable and no bond was required.
III. Jurisdictional Issue.
In 28 U.S.C. § 1334, Congress has granted United States District Courts jurisdiction over bankruptcy cases and proceedings. Section 1334(a) provides that the district courts "shall have original and exclusive jurisdiction of all cases under title 11." A "case under title 11" is the case begun by the filing of the bankruptcy and "the case upon which all of the proceedings which follow the filing of a petition are predicated." 1 Collier on Bankruptcy ¶ 3.01, at 3-20 (15th ed. 1986). Because plaintiff's action obviously does not fall within this definition, jurisdiction may not be grounded in section 1334(a).
Jurisdiction exists, therefore, if at all, under section 1334(b). That subsection provides that "the district courts shall have original but not exclusive jurisdiction of civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334(b). Although this subsection lists three types of proceedings, two of those types proceedings "arising under title 11" and proceedings "arising in cases under title 11" fall under a single umbrella category labeled "core proceedings." See 28 U.S.C. § 157(b)(1). Thus, we have jurisdiction under section 1334(b) if plaintiff's claim is either a core proceeding or a "related" proceeding.
*738 As noted above, the bankruptcy court held that this action is a core proceeding and, therefore, that jurisdiction exists under section 1334(b). Defendant argues that Judge Franklin's decision was correct, but that even if it was not, this is at least a "related" proceeding and that jurisdiction is still proper under that section. Plaintiff maintains, however, that his claim is neither type of proceeding and that, consequently, the court has no jurisdiction over his claim. He thus requests that the court overrule Judge Franklin and order that the case be remanded to state court as having been improperly removed. To determine whether plaintiff or defendant is correct, the court must first examine the constitutional parameters, and statutory provisions, that form the basis of, and that establish the importance of, the distinction between core proceedings and related matters.
In 1978, Congress enacted the Bankruptcy Reform Act of 1978 ["the 1978 Act"]. Under that Act, the bankruptcy courts were authorized to exercise "all of the jurisdiction conferred ... on the district courts." 28 U.S.C. § 1471(c) (now repealed). Hence, the bankruptcy judges, who were not Article III judges, were allowed to issue final orders on a wide variety of claims, even those claims that were essentially state law claims but that were in some sense "related to" the bankruptcy proceedings. Their factual findings could be reversed only if "clearly erroneous." Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 54-55 n. 5, 85, 102 S. Ct. 2858, 2862-63 n. 5, 2878, 73 L. Ed. 2d 598 (1982).
In Marathon, the Supreme Court considered the constitutionality of the 1978 Act's jurisdictional scheme. In striking down that scheme, the Court was particularly concerned with what it perceived to be "an unwarranted encroachment" by Congress upon the domain of other branches and bodies of government:
Many of the rights subject to adjudication by the [1978] Act's bankruptcy courts ... are not of Congress' creation. Indeed, the cases before us, which center upon appellant Northern's claim for damages for breach of contract and misrepresentation, involve a right created by state law, a right independent of and antecedent to the reorganization petition that conferred jurisdiction upon the Bankruptcy Court. Accordingly, Congress' authority to control the manner in which that right is adjudicated, through assignment of historically judicial functions to a non-Art. III "adjunct," plainly must be deemed to be at a minimum.
Id. at 84, 102 S. Ct. at 2878 (emphasis in original). The Court thus concluded that a "`traditional' state common-law action, not made subject to a federal rule of decision, and related only peripherally to an adjudication of bankruptcy under federal law, must ... be heard by an `Art. III court' if it is to be heard by any court or agency of the United States." Id. at 92, 102 S. Ct. at 2882 (Burger, C.J., dissenting).
Two years after the Marathon decision, Congress passed the Bankruptcy Amendments and Federal Judgeship Act of 1984 ["the 1984 Act"]. Under the 1984 Act, the jurisdiction of the district courts is not automatically transferred to the bankruptcy courts. Rather, "[e]ach district court may provide that [bankruptcy cases, cases arising in a bankruptcy matter, and related proceedings] shall be referred to the bankruptcy judges for the district." 28 U.S.C. § 157(a) (emphasis added). Moreover, to address the constitutional problem that arises if the non-Art. III bankruptcy court hears and decides state law claims, section 157 divides the types of cases that may be referred to the bankruptcy court into two categories and grants that court a different level of authority for each category. Those two categories are "core proceedings" and non-core "related" matters. See 28 U.S.C. § 157(b)(1) and (c)(1).
Core proceedings are those matters that "aris[e] under title 11" or that "aris[e] in a case under title 11." 28 U.S.C. § 157(b)(1) (borrowing language from 28 U.S.C. § 1334(b)). That is, they are the proceedings that fall within the core area of bankruptcy *739 power. In Re Branding Iron, 798 F.2d at 399 n. 3. Examples include: orders to turn over property, 28 U.S.C. § 157(b)(2)(E); proceedings to determine, avoid, or recover preferences, id. at (b)(2)(F); motion to terminate, annul, or modify the automatic stay, id. at (b)(2)(G); and confirmations of plans, id. at (b)(2)(L). Although the phrase is not precisely defined in the statute, a leading treatise on bankruptcy refers to such proceedings as matters that are essentially bankruptcy concerns and that "could not have been brought absent bankruptcy...." 1 Collier on Bankruptcy ¶ 3.01, at 3-35 (15th ed. 1986).
Hence, by definition and by design core proceedings exclude claims that are essentially state common law actions. Consequently, in core proceedings, the bankruptcy judge "may hear and determine" all issues or disputes and may enter "appropriate orders and judgments," id. at § 157(b)(1), without running afoul of the Marathon holding. The losing party may appeal such orders to the district court, but the district court must act as an appellate court and may thus overturn the bankruptcy court's findings only if they are clearly erroneous. 28 U.S.C. §§ 157(b)(1); 158; Bankruptcy Rule 8013. See also In Re Branding Iron Motel, Inc., 798 F.2d 396, 399 (10th Cir.1986).
Non-core "related" proceedings, on the other hand, are those matters that are traditional state law actions, not made subject to a federal rule of decision, but that are related, though only peripherally, to a pending bankruptcy case. See In Re Colorado Energy Supply, Inc., 728 F.2d 1283, 1285 (10th Cir.1984). That is, they are the types of proceedings with which the Marathon court was concerned. Accordingly, the bankruptcy court cannot constitutionally exercise the same degree of authority over related proceedings as it does over core proceedings. Section 157(a) thus provides that a bankruptcy court may hear related matters, but that, if it does, it may only "submit proposed findings of fact and conclusions of law to the district court...." Id. at § 157(c)(1) (emphasis added). Moreover, unlike in core proceedings, the district court reviews de novo the bankruptcy court's findings of fact. Id. See also In Re Branding Iron, 798 F.2d at 399 n. 3; In Re Reid, 757 F.2d 230, 233-34 n. 5 (10th Cir.1985).
A. Is This a Core Proceeding?
As noted above, to support his argument that this court has jurisdiction under section 1334(b), defendant Kellogg first argues that Judge Franklin properly held that this is a core proceeding under section 157(b)(2). With all due respect to Judge Franklin, however, we conclude that this is not a core proceeding.
Plaintiff's claim does not pose the type of issues or concerns typically present in a "core" bankruptcy matter. It does not, for example, require the bankruptcy court to decide whether to confirm a plan, to accept an objection to a discharge, to terminate a stay, or to rule on other matters that Congress may validly, within its power over bankruptcy cases, grant to bankruptcy courts the authority to decide. See 28 U.S.C. § 157(b)(2).
Defendant argues, however, that plaintiff's claim is a core proceeding within the meaning of sections 157(b)(2)(A), (B), or (O). Those sections provide:
(b)(2) Core Proceedings include, but are not limited to
(A) matters concerning the administration of the estate;
(B) allowance or disallowance of claims against the estate ...;
(O) other proceedings affecting the liquidation of the assets of the estate....
Defendant's position is that, although plaintiff maintains that he is suing defendant only in defendant's personal, and not official, capacity, the estate may be liable if the ultimate fact finder determines that defendant acted wrongfully, but within the scope of his duties as trustee. Thus, defendant insists, plaintiff's claim is in reality a claim against the estate and, therefore, within the terms of section 157(b)(2)(B). *740 Moreover, he maintains, because the claim involves an examination of whether defendant acted within his authority as trustee, it is a claim that is integrally intertwined with the administration of the estate. See 28 U.S.C. § 157(b)(2)(A).
We need not argue, though we could, with defendant's assertion that plaintiff's claim falls within a broad, literal interpretation of subsections 157(b)(2)(A), (B), or (O).[1] It shall suffice to demonstrate that such a broad reading would, in this case, lead to an unconstitutional result.
Plaintiff's suit is for retaliatory discharge, a state common-law cause of action. The rights that plaintiff alleges were violated and that he seeks to have vindicated thus spring from state law; they were not created by Congress. Accordingly, as the Court held in Marathon, the bankruptcy court cannot constitutionally be given the authority to finally decide plaintiff's claim (which of course it would have the authority to do if this were classified as a core proceeding). Because Congress drew the distinction between core and related proceedings to avoid this constitutional problem, it could not have intended to classify plaintiff's claim as a core matter, thereby destroying the efficacy of the distinction. See In Re Castlerock Properties, 781 F.2d 159, 162 (9th Cir.1986) (provisions of section 157(b)(2) should be construed narrowly to avoid constitutional problems); Mohawk Industries, Inc. v. Robinson Industries, Inc., 46 B.R. 464, 466 (D.Mass. 1985).
Nonetheless, defendant cites section 157(b)(3) in an apparent attempt to limit the scope of the Marathon decision. That section provides: "A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by state law." Thus, defendant argues that state law claims may be core proceedings. To support that proposition, he cites cases in which courts have categorized breach of contract or other state claims brought by debtors as core proceedings under section 157(b)(2)(E) (proceedings to turn over property of the estate). See, e.g., In Re Harry C. Partridge, Jr. & Sons, Inc., 48 B.R. 1006 (Bankr.E.D. N.Y.1985); In Re Baldwin-United Corp., 48 B.R. 49 (Bankr.Ohio 1985).
Defendant's reliance on section 157(b)(3) and the cases cited above, however, is misplaced. Congress clearly does not have the power to limit the Marathon decision. Nor is there any evidence or reason to believe that that was its intent. Rather, as stated in Collier on Bankruptcy, the purpose of section 157(b)(3) was to make it clear that Marathon does not prevent bankruptcy courts from deciding core bankruptcy issues, even if those issues turn on resolution of state law.[2] That is, Marathon simply established that Congress cannot allow bankruptcy judges to decide state law claims, as opposed to state law questions. 1 Collier ¶ 3.01, at 3-44. Thus, section 157(b)(3) merely reminds courts that "the source of the cause of action, not the governing substantive *741 law, is to be determinative." Id. (emphasis added).
Further, the very cases cited by defendant were criticized by Collier for having ignored the constitutional problems discussed by the Supreme Court. As the treatise notes:
The problem with these cases is that, under their rationale, every action brought by a trustee or debtor in possession to recover money or property could conceivably be characterized as a turnover proceeding, effectively contradicting Marathon.
Id. at 3-38.
In short, plaintiff's claim presents the type of matter that gave the Supreme Court concern in Marathon. Defendant's citation of section 157(b)(3) and his arguments that the claim falls within the broad provisions of section 157(b)(2) does not alter that fact. Hence, because constitutional concerns preclude the bankruptcy court from finally deciding plaintiff's state law claim, we conclude that it is not a core proceeding.
B. Is This a Related Proceeding?
Defendant's second argument is that jurisdiction exists because this is at least a related matter and, therefore, within the terms of section 1334(b). Plaintiff argues, however, that the ties between his claim and the bankruptcy case are too tenuous for it to fall within any of the jurisdictional language of that section. On this question, we agree with defendant.
Related matters are those non-core proceedings "that, in the absence of bankruptcy, could have been brought in a district court or state court." In Re Colorado Energy Supply, 728 F.2d at 1286. Moreover, the proceeding must be such that "the outcome of that proceeding could conceivably have [an] effect on the estate being administered in bankruptcy." Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984) (citing In Re Hall, 30 B.R. 799, 802 (M.D.Tenn.1983)). We perceive two such possible effects.
First, although the estate will not be liable for an award of damages (and the claim is thus not a claim against the estate under section 157(b)(2)(B)), the estate may be liable for defendant's attorney's fees as an administrative expense. See 11 U.S.C. § 503. Second, and of even more importance, defendant is the trustee of the estate. His defense is that his actions were proper and that at all times he was acting within the scope of his authority as trustee. Thus, his handling of the estate will be a central issue in the resolution of this matter. Moreover, because his future conduct may be affected by the suit's outcome, the action may interfere with the administration of the estate. Cf. In Re United Dep't Stores, Inc., 39 B.R. 54, 55-56 (Bankr.S.D. N.Y.1984) (citing First State Bank v. Sand Springs State Bank, 528 F.2d 350 (10th Cir.1976)). Hence, we conclude that the matter has a sufficient nexus to the bankruptcy proceedings to be a related matter. See Weaver v. Gillen, 49 B.R. 70 (W.D.N.Y.1985). As such, this court retains ultimate jurisdiction and, if the bankruptcy court is called upon to propose findings of fact, we shall review them de novo.
In sum, this court has jurisdiction over this related proceeding under section 1334(b). Accordingly, we shall affirm the ruling of the bankruptcy court, though on different grounds.
IT IS THEREFORE ORDERED that the ruling of the United States Bankruptcy Court for the District of Kansas, finding that jurisdiction over plaintiff's cause of action exists pursuant to 28 U.S.C. § 1334(b), is affirmed. Plaintiff's cause of action shall remain before the bankruptcy court, which shall hear it in accordance with this memorandum and order and 28 U.S.C. § 157(c)(1).
NOTES
[1] For example, plaintiff's claim is not, despite defendant's assertion to the contrary, a claim against the estate. Plaintiff has chosen to sue defendant only in defendant's personal capacity. Because the estate is liable only if defendant acted negligently and within the scope of his authority as trustee in other words, in his official capacity Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977), the estate faces no potential liability. It is true that defendant is raising as a defense that he acted at all times within the scope of his authority as trustee. But if the fact finder agrees that he acted as trustee, even though he may have acted negligently, the plaintiff will not be allowed to recover because he did not sue defendant in his official capacity. Moreover, the principles of res judicata will bar plaintiff from reasserting his claim against defendant as trustee and thus against the estate.
[2] Congress can, within its power over bankruptcy matters, grant to bankruptcy judges the authority to interpret state law in their resolution of bankruptcy questions. Thus, for example, the bankruptcy court may decide to avoid a preference under 11 U.S.C. § 547 or a fraudulent transfer under 11 U.S.C. § 548, even though the defenses contained in these sections are concerned with, inter alia, "when a transfer was perfected, which invariably involves a resort to state law...." 1 Collier ¶ 3.01, at 3-44. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440372/ | 967 N.E.2d 495 (2008)
382 Ill. App. 3d 1206
359 Ill. Dec. 765
PEOPLE
v.
JONES, ANDRE.
No. 1-07-1013.
Appellate Court of Illinois, First District.
July 8, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918355/ | 101 B.R. 465 (1989)
In re Gary BOBOFCHAK, Dolores Bobofchak, Debtors.
Lois V. HAYNES, Plaintiff,
v.
Gary BOBOFCHAK, Defendant.
Bankruptcy No. 88-1901-NB, Adv. No. 88-01052-NB.
United States Bankruptcy Court, E.D. Virginia, Norfolk Division.
May 30, 1989.
*466 Robert V. Roussos, Norfolk, Va., for debtors.
Carl E. Eason, Pretlow, Eason & Pretlow, P.C., Suffolk, Va., for plaintiff.
AMENDED OPINION AND ORDER
HAL J. BONNEY, Jr., Bankruptcy Judge.
THE OPINION AND ORDER IN THIS CASE ISSUED BY THIS COURT ON APRIL 27, 1989, IS HEREBY VOID.
The plaintiff and debtor opened a photography studio business in January 1985. Although no written agreement was executed, the parties agreed to form a general partnership under the name of Haynes-Gary and allow the debtor to begin operating the studio in Virginia Beach, while the plaintiff, Lois Haynes, remained in Smithfield, Virginia. Mrs. Haynes was able to obtain financing for the new studio through the Bank of Isle of Wight and started a partnership checking account, Sixteen Thousand Dollars ($16,000.00), to last at least six months towards the expenditures in the operation of the studio. The parties did not discuss whether the debtor was entitled to draw money from the account for compensation.
In late March 1985, the plaintiff became concerned when the balance of the partnership account was diminishing and no income had been generated by the studio. A few weeks later the plaintiff demanded that the debtor return the checkbook for her inspection. Whereupon she discovered that the debtor had drawn a substantial amount of money from the account for his personal use and had depleted the remainder of the account. In fact, at trial the debtor admitted that he withdrew at least Two Thousand, Nine Hundred and Fifty Dollars ($2,950) from the partnership account for his own use. Additionally, substantial monies had been expended on various camera and film supplies although there was virtually no business conducted. The business was officially closed in May 1985, and the plaintiff thereafter initiated a civil action against the debtor in the Circuit Court of Virginia Beach seeking immediate dissolution of the partnership as well as recovery of monies wrongfully and fraudulently embezzled from the partnership by the debtor.
However, in September the parties negotiated a settlement agreement whereby the debtor would 1) make payments on one-half of the principal and interest on the note with the Smithfield bank and 2) sign a promissory note agreeing to pay Mrs. Haynes Three Thousand Six Hundred Dollars ($3,600.00) at a rate of One Hundred Dollars ($100.00) per month for thirty-six months. The debtor signed the promissory note on October 17, 1985.
The debtor commenced to make payments on both obligations according to the settlement agreement. However, on June 15, 1988, the debtor and his wife filed a Chapter 7 bankruptcy petition. The debtors listed both the debt to Mrs. Haynes and the debt to the Bank of Isle of Wight on Schedule A-3 of their petition as creditors having unsecured claims without priority. The schedule stated that the remaining claim on the promissory note to the bank was $4,869 while the remaining debt to the plaintiff was $2,200. On September 13, 1988, the plaintiff filed a complaint for the determination of non-dischargeability of the debtor's obligations to her and to the bank arising from the settlement agreement.
ISSUES
A. ISSUE NUMBER ONE
What portion, if any, of the debtor's underlying obligation to the plaintiff was incurred through fraud, defalcation or any other means that would except this debt from discharge pursuant to 11 U.S.C. Section 523(a)?
B. ISSUE NUMBER TWO
If a portion of the debtor's original obligation to the plaintiff was of the nature and kind that would be excepted from discharge *467 under Section 523(a)(4), does a settlement agreement between the parties effectively extinguish the non-dischargeable debt arising from a tort and create a new contractual obligation which is subject to discharge?
CONTENTIONS
The plaintiff contends that the debtors' entire obligation to the plaintiff was incurred as a consequence of the debtors' fraud and defalcation. At the very least, the plaintiff argues that the Two Thousand Nine Hundred and Fifty Dollars ($2,950.00) that the debtor wrongfully withdrew from the partnership for his own personal benefit is non-dischargeable under 11 U.S.C. Section 523(a)(4) as a defalcation against the plaintiff and the partnership.
Second, the plaintiff requests the Court to consider the nature and character of the underlying debts arising from the settlement agreement. The plaintiff claims that the settlement agreement is actually an indicia of the debtor's fraudulent acts of embezzlement and defalcation while acting in a fiduciary capacity as a general partner with the plaintiff. The plaintiff argues that the debtor's obligations to the bank and the plaintiff are not of the type intended to be discharged under the Bankruptcy Code, 11 U.S.C. Section 523(a)(4). The settlement, the plaintiff argues, did nothing to change the underlying character of the debtor's obligations.
The debtor argues that the underlying debts were not incurred through fraud or defalcation but rather were simply the unfortunate consequence of an unsuccessful business venture. The debtor contends that the plaintiff has failed to provide the Court with any evidence showing that the debtor committed fraud or defalcation.
The debtor contends that the promissory note and agreement of settlement were given in full satisfaction of any claim that the plaintiff would otherwise have asserted. The debtor states that no judicial determination was ever made and that in lieu of obtaining a judicial determination, the plaintiff instead opted for the promissory note and settlement letter. The debtor claims that these actions consisted of the plaintiff actually surrendering her rights to seek a judicial determination of breach of a fiduciary duty. Therefore, the debtor contends that a novation took place and that the plaintiff's only underlying claim is on the note which is dischargeable.
LEGAL CONSIDERATIONS
A. BANKRUPTCY CODE
11 U.S.C. Section 523(a)(4) states:
A discharge under section 727, 1141 . . . or 1328(b) of this title does not discharge an individual debtor from any debt . . .
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; . . .
B. DEFALCATION
As to the term "defalcation," Judge, Learned Hand stated in Central Hanover Bank and Trust Co. v. Herbst, 93 F.2d 510 (2nd Cir.1937), that although colloquially the word ordinarily implies some moral dereliction, it may in a bankruptcy context include innocent default, including all fiduciaries which are for any reason short in their account. See also In re Byrd, 15 B.R. 154, 156 (Bankr.E.D.Va.1981).
In 1934 the Supreme Court observed that the meaning of the phrase "acting in a fiduciary capacity" had been fixed by judicial construction for nearly a century. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S. Ct. 151, 153-54, 79 L. Ed. 393 (1934). The general meaning of fiduciary a relationship involving confidence, trust and good faith is far too broad for the purposes of section 523(a)(4). See In re Cairone, 12 B.R. 60, 62 (Bankr.D.R.I.1981). The Supreme Court in Davis provides for a narrow construction of the term "fiduciary capacity" and defines the term as meaning arising from an express or technical trust. Davis, 293 U.S. at 333, 55 S. Ct. at 153-154; see also In re Barwick, 24 B.R. 703, 705 (Bankr.E.D.Va.1982).
C. SETTLEMENT AGREEMENTS
Should an obligation arising from a settlement agreement rather than a judgment *468 be construed in a different light? One bankruptcy court in In re Anderson, 64 B.R. 331 (Bankr.N.D.Ill.1986) held that the settlement agreement between the parties amounted to a novation and was dischargeable in bankruptcy. See also In re Kelley, 259 F. Supp. 297 (N.D.Cal.1965). Other courts, however, do not believe that such a finding would be consistent with the intent of Congress as derived from the language of the statute itself. See Greenberg v. Schools, 711 F.2d 152 (11th Cir.1983); In re Kovacs, 42 B.R. 1 (Bankr.Mass.1982); In re Peters, 90 B.R. 588 (Bankr.N.D.N.Y.1988); In re Pavelka, 79 B.R. 228 (Bankr.E.D.Pa. 1987); Firemen's Fund Insurance Company v. Covino, 12 B.R. 876 (Bankr.M.D. Fla.1981) and Landgraf v. Griffith, 41 Ind. App. 372, 83 N.E. 1021 (1908).
In Greenberg the Eleventh Circuit ruled that a settlement agreement did not extinguish the original claim for fraud or defalcation for purposes of 11 U.S.C. Section 523(a)(4). The Court stated:
The underlying debt was unquestionably the result of the debtor's fraud, not his breach of the settlement agreement. The fact that . . . claim never natured into a final judgment but was terminated by a settlement agreement should not be controlling. The Bankruptcy Court should inquire into the factual circumstances . . .
POLICY CONSIDERATIONS
This Court joins those who find that a settlement agreement should not extinguish the bankruptcy court's responsibility to look beyond the agreement to the underlying nature and character of the debtor's original liability to the plaintiff. The intent of Congress to except from discharge debts incurred by means of fraud or defalcation could effectively be short-circuited by a simple execution of settlement. To disregard the settlement agreement and look at the underlying nature of the claim would not hinder the overall scheme and intent of the Bankruptcy Code of giving an honest debtor a fresh start. 11 U.S.C. Section 523(a)(4) demonstrates that debts incurred by means of fraud or defalcation are not of the kind that the Bankruptcy Code purposes to relieve.
COURT FINDINGS
A. COURT FINDINGS AS TO ISSUE NUMBER ONE
The Court finds that the debtor committed a defalcation against the plaintiff and the partnership to the extent that he withdrew partnership funds directly for his personal use. As to the remaining portion of the debt, it appears that the plaintiff went into business with someone who was careless or extravagant, certainly not frugal, and who had stars in his eyes about what they would do. This, of course, is not fraud. Therefore, the Court finds that the sum of Two Thousand Nine Hundred Fifty Dollars ($2,950.00) of the debtor's underlying obligation was incurred through defalcation of the type that would except that debt from discharge pursuant to 11 U.S.C. Section 523(a)(4).
B. COURT FINDING AS TO ISSUE NUMBER TWO
Second, the Court finds that the settlement agreement does not bind the plaintiff from pursuing a trial on the merits as to issue of dischargeability. The language of 11 U.S.C. 523(a)(4) specifically excepts from discharge debts incurred through fraud, embezzlement and defalcation while acting in a fiduciary capacity and the Court should examine the underlying nature of the debtor's original obligation notwithstanding the settlement agreement. The Court has done this.
The Court finds from the evidence that the debtor wrongfully committed defalcation. By his own admission, the debtor acknowledges that he personally "lived off" monies from the partnership account even though there was no agreement that he was permitted to use any of the partnership funds for his personal use. His obligations to the plaintiff and the Bank of Isle of Wight were incurred as a direct result of his defalcation of his fiduciary duties. During the five months of operation of the photography studio, virtually no business activity occurred. The debtor was given no *469 authority to withdraw monies for his own personal use. When the debtor was commanded to turnover the partnership checkbook to the plaintiff he could not give a satisfactory account of the partnership funds. Having failed to give a proper account to the plaintiff for the Two Thousand Nine Hundred Fifty Dollars ($2,950.00), the debtor has committed defalcation against the plaintiff and that portion of his debt is of the nature and character of the provisions of Section 523(a)(4) of the Bankruptcy Code.
CONCLUSION
The debtor's obligation to the plaintiff from defalcation of Two Thousand Nine Hundred Fifty Dollars ($2,950.00) is non-dischargeable. The remaining obligation to Bank of Isle of Wight is not a result of the debtors' defalcation against the partnership and is subject to discharge in accordance with the relief provided in the Bankruptcy Code.
JUDGMENT
The Court grants judgment for the plaintiff and holds that the debt to the plaintiff in the amount of Two Thousand Nine Hundred Fifty Dollars ($2,950.00) is non-dischargeable. This portion of the debtors' obligation should be paid in accordance with the promissory note owed to plaintiff. The remaining portion of the promissory note and the outstanding debt to the Bank of Isle of Wight may remain on the debtors' schedules as dischargeable, unsecured debts.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4184963/ | NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 10 2017
JOHN KARCZEWSKI, No. 15-55893 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff-Appellant, D.C. No.
3:14-cv-02615-JAH-JLB
v.
CONANT AUTO RETAIL, SAN DIEGO, MEMORANDUM*
INC., a California Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted February 6, 2017**
Pasadena, California
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
We vacate the district court’s dismissal of this action, and we remand for
reconsideration in light of Karczewski v. DCH Mission Valley, LLC, No.
15-55633.
VACATED and REMANDED. Costs on appeal awarded to Plaintiff.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
FILED
Karczewski v. Conant Auto Retail, No. 15-55893
JUL 10 2017
BYBEE, Circuit Judge, acquiescing dubitante: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I acquiesce dubitante for the reasons articulated in my separate opinion in
Karczewski v. DCH Mission Valley, LLC, No. 15-55633. | 01-03-2023 | 07-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1577430/ | 35 So. 3d 148 (2010)
David Dwayne BROWN, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D04-2348.
District Court of Appeal of Florida, Third District.
May 26, 2010.
*149 Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Ansley P. Peacock, Assistant Attorney General, for appellee.
Before COPE, ROTHENBERG, and LAGOA, JJ.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
ROTHENBERG, J.
We reconsider on remand our opinion in Brown v. State, 967 So. 2d 236 (Fla. 3d DCA 2007) ("Brown I"), which was quashed by the Supreme Court of Florida following its decision in State v. Brown, 3 So. 3d 1190 (Fla.2009) ("Brown II"). As ordered by the Supreme Court of Florida, we have reconsidered our earlier decision in light of Garzon v. State, 980 So. 2d 1038 (Fla.2008) ("Garzon II"), and conclude that based on an examination of the "totality of the record," the jury instructions given in this case do not constitute fundamental error. Accordingly, we affirm the defendant's convictions.
THE ISSUE
The defendant, David Dwayne Brown, and the codefendant, Collies Jasper Robinson, were charged with the first degree murders of Eric Williams (Count I) and Edward Leon Bernard (Count II), and the attempted first degree murder of Lawrence Wade (Count III). The defendant was also charged with possession of a firearm by a violent career criminal (Count IV) and display of a firearm while committing a felony (Count V). The defendant and codefendant were tried separately, with the defendant's trial proceeding on Counts I-III and V.
The jury found the defendant guilty of Counts I-III and V, and he was subsequently sentenced. Although the defendant did not object to the instructions given, other than to object to the name of the codefendant not being included in the instructions, he argued on appeal that the instructions improperly implied that he could be convicted of first degree murder and attempted first degree murder based solely on the acts of another. This Court agreed. Because the evidence as to Counts II and III did not directly implicate the defendant, this Court concluded that the instructions as to those two counts constituted fundamental error. However, because there was direct evidence as to the defendant's guilt regarding Count I, this Court found no fundamental error and affirmed the defendant's conviction as to that count. Brown I, 967 So.2d at 238.
GARZON v. STATE (GARZON II)
The Florida Supreme Court granted review of this Court's decision in Brown I, and stayed the proceedings pending its review of Garzon v. State, 939 So. 2d 278 (Fla. 4th DCA 2006) ("Garzon I"). Garzon and codefendants Coles and Balthazar were tried together for seven offenses stemming from a home invasion. As to Garzon, the State's theory was that he was involved in the criminal scheme although he was not physically present. Without objection, the instructions as to each count included an "and/or" conjunction between the names of the defendants. For example, as to the charge of armed burglary, the jury was instructed as follows:
*150 [T]o prove the crime of armed burglary of a dwelling, as charged in Count Two of the information, the State must prove the following three elements beyond a reasonable doubt. Number one, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar entered or remained in a structure owned by or in the possession of Sandra Smith.
Number two, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar did not have the permission or consent of Sandra Smith or anyone authorized to act for her to enter or remain in the structure at the time.
Number three, at the time of entering or remaining in the structure, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar had a fully formed, conscious intent to commit the offense of grand theft and/or robbery in that structure.
Garzon I, 939 So.2d at 281 (emphasis added). In addition to the charges on the substantive offenses, the trial court gave the jury the standard charge on principals. Garzon I, 939 So.2d at 282 (citing Fla. Std. Jury Instr. (Crim.) 3.5(a)). Further, as Garzon, Coles, and Balthazar were tried together, the trial court gave a multiple defendants instruction[1] and used a verdict form that was individualized as to each defendant without the use of the "and/or" language. Garzon II, 980 So.2d at 1040. Balthazar was convicted on all counts, whereas Garzon and Coles were acquitted on one of the seven charges.
On appeal to the Fourth District Court of Appeal, Garzon and Balthazar argued that "the inclusion of the `and/or' conjunction in the jury instructions was fundamental error because the jury `could' have convicted one defendant based solely upon the conclusion that another codefendant's conduct `may have satisfied the elements' of an offense." Garzon I, 939 So.2d at 283. In essence, Garzon and Balthazar argued that because of the "and/or" conjunction, the jury could have convicted them based on the acts of their codefendants without finding that they were acting as principals.
In addressing the issue, the Fourth District, however, noted that not all erroneous jury instructions constitute fundamental error:
To be fundamental, an erroneous jury instruction "must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." [State v.] Delva, 575 So.2d [643, 644-45 (Fla.1991)] (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)); see Floyd v. State, 850 So. 2d 383, 403 (Fla.2002). This means that an erroneous jury instruction is fundamental error "when the omission is pertinent or material to what the jury must consider in order to convict." Id. at 645 (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982)); accord Reed v. State, 837 So. 2d 366, 369-70 (Fla.2002). Thus, "[f]ailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal." Delva, 575 So.2d at 645.
Garzon I, 939 So.2d at 282-83. The Fourth District explained that the "determination *151 of whether fundamental error occurred requires that the `and/or' instructions be examined in the context of the other jury instructions, the attorneys' arguments, and the evidence in the case." Garzon I, 939 So.2d at 283. After considering the "totality of the record," the Fourth District concluded that the erroneous jury instructions did not constitute fundamental error, reasoning as follows:
This is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute. All elements of all crimes were correctly charged. What the "and/or" conjunctions placed in issue was whether one defendant could be held criminally liable for the conduct of a codefendant. If the law of principals applies to a defendant's conduct, that defendant can properly be convicted for a codefendant's criminal acts. Garzon could have been found guilty if either Coles or Balthazar committed a substantive crime and Garzon helped either man commit the crime within the meaning of the principals instruction.
In this case, the standard principals instruction placed all the other instructions in the proper context. The instruction explained that a defendant is responsible for the criminal act of another person if "the defendant had a conscious intent that the criminal act be done said some word which was intended to and which did incite, cause, encourage, assist or advise the other person. . . to actually commit the crime." Fla. Std. Jury Instr. (Crim.) 3.5(a). If the jury found the principals instruction applied to him, Garzon could lawfully have been found guilty of crimes that either Balthazar or Coles, or both, committed in the house.
With respect to Garzon, everyone in the courtroom knew that the issue boiled down to whether the state had proven that he was the person to whom Balthazar spoke over the cell phone during the home invasion.
The prosecution used the principals instruction as the centerpiece of its argument that Garzon was guilty of the crimes committed by his codefendants. The state did not use the "and/or" conjunctions to argue for a legally incorrect or improper theory of guilt.
Garzon I, 939 So.2d at 284.
The Florida Supreme granted review of the Fourth District's decision in Garzon I, and issued its decision in Garzon II, addressing whether the unobjected-to "use of the `and/or' instructions together with the standard principals instructions was fundamental error." Garzon II, 980 So.2d at 1042.
The Florida Supreme Court agreed with the Fourth District that the use of the "and/or" conjunction did not constitute fundamental error, reasoning:
[T]his is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute, as in Delva/Reed. Since this case does not present a Delva/Reed error, the Fourth District was correct in examining the totality of the record to determine if the "and/or" instruction met the exacting requirements of fundamental instruction error.
Garzon II, 980 So.2d at 1043.
Following its independent review of the "totality of the record," including the standard jury instruction on principals, the jury instruction on multiple defendants, the individualized verdict form, the attorneys' arguments, and the jury's verdict, the Florida Supreme Court concluded that the erroneous instructions did not constitute fundamental error. Garzon II, 980 So.2d at 1044.
*152 Following Garzon II, the Florida Supreme Court issued its decision in Brown II, quashing this Court's opinion in Brown I and remanding for reconsideration in light of Garzon II. Thus, on remand, this Court must determine, based on the "totality of the record," whether the jury instructions given in the instant case constitute fundamental error.
BASED ON A REVIEW OF THE TOTALITY OF THE RECORD WE FIND NO FUNDAMENTAL ERROR
No fundamental error occurred in this case. This conclusion is based on the indictment, the opening statements, the evidence introduced at trial, the closing arguments, the jury instructions, the verdict form, and the fact that the defendants were tried separately.
The State's theory of this case was that the defendant and codefendant, acting in concert with one another from a common scheme or plan, killed Eric Williams and Edward Leon Bernard, and attempted to kill Lawrence Wade. That is how this case was charged and tried. The arguments of counsel made it clear that the jury was going to have to determine whether the State proved beyond a reasonable doubt that they were acting together in each instance. The trial court's instructions to the jury also made it clear that this was the State's theory of the case and an issue to be resolved by the jury. Because the jury was instructed throughout the proceedings that before the defendant could be held responsible for the actions of another, the State was required to prove that the defendant and that other person were working together, they both had a conscious intent that the criminal acts be committed, and they were helping each other carry out a common criminal purpose, we conclude that the instructions given did not mislead the jury or constitute fundamental error.
A. The Indictment
In all three Counts: I, II, and III, the murder of Eric Williams, the murder of Edward Leon Bernard, and the attempted murder of Lawrence Wade, respectively, the indictment charged that David Dwayne Brown (the defendant) and Collies Jasper Robinson (the codefendant) "each in concert with each other from a common scheme or plan, did unlawfully and feloniously" kill or attempt to kill the victim.[2]*153 (Emphasis added). At the beginning of the trial, the trial court read the indictment to the jury. Thus, from the very beginning of the proceedings, the jury was told that the State was charging the defendant and codefendant as acting together to commit these offenses.
B. Opening Statements
In its opening statement, the State described the location of the shooting, Mr. Bernard's home, as a "neighborhood hangout" from which Mr. Bernard and Mr. Williams would sell drugs and where individuals, including Mr. Williams, would gather to play cards in the carport. The State explained that the evidence would demonstrate the following. Mr. Williams routinely kept an AK-47 rifle within reach to protect himself. On the night of the shooting, Mr. Bernard was having a party at his house. Between 7:00 p.m. and 8:00 p.m., the defendant arrived at the party, headed straight to the carport, and asked Mr. Bernard, "Where's my money?" After Mr. Bernard failed to respond, the defendant stated, "Do you think I am playing with you?" The defendant left the party, but returned several hours later with a "partner and a plan""to get the money or to get these two men." Upon returning, the defendant walked into the carport and grabbed the AK-47, pointing it at Mr. Williams. Mr. Williams and Mr. Bernard rushed the defendant, and the three men began to struggle for the AK-47. During the struggle, codefendant Robinson exited a vehicle carrying a shotgun. Upon seeing codefendant Robinson with the shotgun, Mr. Wade ran and was shot in the back by codefendant Robinson. After Mr. Bernard dropped to the floor, codefendant Robinson came "in close for the kill," shooting Mr. Bernard in the chest at close range. After Mr. Bernard was shot by codefendant Robinson, Mr. Williams stopped struggling for the AK-47 and began to run. While running, the defendant shot at Mr. Williams several times with the AK-47, hitting him in his back, face, thigh, and head. The defendant and his "partner"codefendant Robinsonleft, taking the two weapons with them.
Defense counsel told the jurors that the witnesses they would be hearing from lacked credibility because they are convicted felons who were using drugs and alcohol on the night of the shooting. Defense counsel also suggested that the actual shooter of the shotgun was not the codefendant, Robinson, but one of the eyewitnesses, Ramlah Aquamina, because gunshot residue was found on his hand.
C. The Evidence
The following evidence was introduced at trial. The defendant, Mr. Bernard and Mr. Williams (the two deceased victims), and a fourth individual were partners in a drug dealing business. On the day of the *154 shooting, Mr. Bernard was having a party at his house to celebrate a friend's birthday, and the defendant came to Mr. Bernard's house twice that evening. During the first encounter, the defendant confronted both Mr. Bernard and Mr. Williams, claiming that they owed him money. Mr. Bernard and Mr. Williams ignored the defendant and the defendant left the party. Nathan Mathis, who was at the party and witnessed this exchange, told Mr. Williams he should pay the defendant the money owed, but Mr. Williams told Mr. Mathis to mind his own business. Mr. Williams then brought out an AK-47 (allegedly for protection because they were selling drugs at the party), and propped it against a wall. Mr. Mathis also testified that there were no other guns at the party that night.
Several hours later, around midnight, the defendant returned to the party, entered the carport, grabbed the AK-47 that Mr. Williams had propped against the carport wall, pointed the gun at Mr. Williams and Mr. Bernard, who were seated at a table playing cards, and tried to fire the gun, which did not fire because the safety was on. Mr. Williams and Mr. Bernard rushed the defendant, and the three men began to struggle over the AK-47. While everyone else ran for cover, Mr. Wade was shot in the back with a shotgun. Mr. Bernard was fatally shot in the chest with the same shotgun at a very close range. The defendant was seen shooting Mr. Williams with the AK-47. Mr. Aquamina, one of the witnesses who heard shots being fired as he fled, called the police, directed them to the house, returned to the scene, and spoke with the police. Pursuant to its investigation, law enforcement issued a BOLO for the vehicle seen leaving the house. Days later, a vehicle matching the BOLO was stopped, and the driver of the vehicle was identified as the defendant and the passenger was identified as the codefendant, Robinson.
It was later determined that Mr. Williams was shot multiple times with a high-powered rifle such as an AK-47, including shots to his back and one to his chest. The projectiles went through his lung and spinal column paralyzing him. Conversely, Mr. Bernard and Mr. Wade were shot with the same shotgun. The defendant was positively identified by several individuals, and a Nike cap found at the crime scene contained the defendant's DNA.
D. Closing Arguments
In defense counsel's initial closing argument, he read the complete standard jury instruction on the law of principals and argued that the evidence did not establish that the defendant and another person acted together as principals to commit the charged offenses. Specifically, defense counsel argued:
The Judge is going to instruct you about principals and the state is obligated to prove each and every essential element as they do in any crime about principals. And the Judge is going to tell you and he will in a little while if the defendant helped another person or persons commit or attempt to commit a crime that defendant is a principal and must be treated as if he had done all of the things that the other person or persons did if the defendant has a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did insight [sic], cause, encourage, assist or advice [sic] the other person or persons to actually commit the attempt to commit the crime. To be a principal the defendant does not have to be present when a crime is committed or attempted to be committed. Where does it indicate *155 that the other person and/or David Brown advised each other, told each other, did something together to cause a crime? Where? Where is there any issue, any evidence that they were principals? This other fellow, where? There is no evidence. . . . The state is obligated to prove to you that somehow they got together to commit this crime or these crimes. There is no such evidence. It doesn't exist.
(Emphasis added).
Thereafter, the State presented its closing argument, stating that the evidence showed that the defendant shot and killed Mr. Williams with an AK-47; a second individual, who the State contended was the codefendant, Collies Jasper Robinson, shot and killed Mr. Bernard, and shot Mr. Wade with a shotgun; and these two men were acting together as principals to commit these crimes. Therefore, the defendant was guilty of murdering Mr. Bernard and attempting to murder Mr. Wade because the defendant was working in concert with the second shooter. The State argued that although it contended that the second shooter (with the shotgun) was Collies Jasper Robinson, the State was not required to prove the identity of the second shooter. Specifically, the State argued that the defendant believed Mr. Bernard and Mr. Williams owed him money, and "the defendant decided to take justice into his own hands. He and someone else, because the person's identity is unknown to you. . . . But he and somebody else came there with the intent of doing harm. They came loaded with a shotgun and were ready to use it." (Emphasis added). Thereafter, the State also read the standard jury instruction on the law of principals, thus providing this instruction to the jury for a second time. After re-reading the principals instruction to the jury, the State explained that the instruction worked both waysif the defendant was helping someone else commit the crimes or the other person helped the defendant commit the crimes, they were equally responsible:
In other words, when two people help each other they are both responsible. And one thing that you will decide at the end of this case is if there are, in fact two people involved. . . . [W]e have two gunmen and two people who are willing to use those guns. And the fact that one shot one and another shot the other does not change the fact that they were both deeply involved in what was going on. And how do we know that two people were involved?
The State outlined the physical evidence and argued that the physical evidence suggested that two people, working in concert, were involved in the shooting:
It is very clear. All you have to do is put the physical evidence together in the proper way. . . . We do not have to prove the identity of the second person to you in this trial. . . . What we do have to prove is that another person was involved and that that other person was acting as a principal with the defendant as I have already discussed with you how we have done that. . . . [O]nce again bringing in the principal theory, even though it is clear that David Brown did not fire the shot that killed Edward Leon Bernard he is just as guilty as the person who filed [sic] this shot because he was working together with that individual and they were working in concert. And for all intents and purposes, each time that the trigger was pulled there are were [sic] two fingers on the trigger. Both on the shotgun and on the A.K. 47. And those were the fingers of David Brown and the other person, whoever that was. You don't have to decide who the identity of this person is to hold the defendant responsible. *156 All you have to do, all you have to decide is for all intents and purposes his finger was on the trigger because these guys were working together.
(Emphasis added).
Defense counsel reiterated on rebuttal that the State had to prove that the defendant and the second shooter were working in concert, and argued that the evidence did not support such a finding:
How did they act in concert? How did they agree to kill anybody? . . . [T]ell me where any evidence exists that two people tried to help one another in this scenario in this context. . . . [The State] has to show the connection between those two people and that they somehow in concert decided to kill somebody. That is what they have to show.
(Emphasis added).
E. Jury Instructions
Following closing arguments, the trial court explained to the jury that the defendant had been charged with several crimes, and although all counts were tried together, "each crime and the evidence applicable to it must be considered separately and a separate verdict returned as it [sic] each." Thereafter, the trial court instructed the jury on the circumstances that must be proven before the defendant could be found guilty of first degree murder, attempted first degree murder, or any lesser included offense.
The trial court instructed the jury that: (1) as to first degree premeditated murder, the State had to prove that the death of each victim was caused by the criminal act of the defendant or another person acting as principal; (2) as to first degree felony murder, the State had to prove that the death of each victim occurred as a consequence of and while the defendant was in the commission of or the attempt to commit murder and he was the person who actually killed each victim or each victim was killed by another person, but both the defendant and the person who killed each victim were principals in the commission of the murder; and (3) as to the attempted murder of Lawrence Wade, the State had to prove that the defendant or another person acting as a principal did some act intended to cause the death of Lawrence Wade that went beyond just thinking or talking about it and the defendant or another person acting as a principal acted with a premeditated design to kill Lawrence Wade.[3]
*157 Following these instructions, the trial court read the standard jury instruction regarding principalsthus providing the jury with this instruction for a third time:
If the defendant helped another person or persons commit or attempt to commit a crime the defendant is a principal and must be treated as if he had done all of the things that the other person or persons did if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did insight [sic], cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime.
To be a principal the defendant does not have to be present when the crime is committed or attempted.
CONCLUSION
Based on the totality of the record, we conclude that the instructions provided to the jury did not confuse the jury as to its responsibility nor constitute fundamental error.
As to Count I, the murder of Mr. Williams, several eyewitnesses saw the defendant grab the AK-47 and at least one of these witnesses saw the defendant actually shoot Mr. Williams with the AK-47. Neither the State nor the defense argued during trial or closing arguments that another person participated in the murder of Mr. Williams. Thus, based on the evidence and the arguments of counsel, it is clear that the defendant's conviction for the first degree murder of Mr. Williams was based on his own criminal acts, not the acts of another person acting as a principal. The trial court's instructions as to this count, therefore, did not constitute fundamental error.
As to the first degree murder of Mr. Bernard (Count II) and the attempted first degree murder of Mr. Wade (Count III), the evidence, including eyewitness accounts and the location where the spent shotgun casings were located, demonstrate that the defendant was not the person who fired the shotgun at Mr. Wade and Mr. Bernard. Therefore, the defendant's convictions as to Counts II and III were based on the acts of another person. Nonetheless, in reviewing the "totality of *158 the record," we find that the jury instructions did not constitute fundamental error because the trial court read the indictment to the jury at the beginning of the trial which charged the defendant as acting in concert with the codefendant from a common scheme or plan to commit the murders and the attempted murder; the trial court read the standard jury instruction to the jury on the law of principals; and the attorneys repeatedly communicated to the jurors that they could not convict the defendant for the acts of another person unless they found that the law of principals was met. For example, during its opening statement, the State argued that "[t]he defendant left the party, but returned several hours later with a "partner and a plan""to get the money or to get these two men." Additionally, during closing argument, defense counsel argued: "The state is obligated to prove to you that somehow they got together to commit this crime or these crimes." Similarly, the State argued in closing, "once again bringing in the principal theory, even though it is clear that David Brown did not fire the shot that killed Edward Leon Bernard he is just as guilty as the person who filed [sic] this shot because he was working together with that individual and they were working in concert." Finally, on rebuttal, defense counsel once again explained to the jury that in order to convict the defendant for the acts of another, the jury had to find that the defendant and the other person were working in concert: "[The State] has to show the connection between those two people and that they somehow in concert decided to kill somebody. That is what they have to show." Additionally, during voir dire, the trial court explained the law of principals to the jury, as did the State. Thus, after performing a complete review of the record, we conclude that based on the "totality of the record," we find there was no fundamental error as to Counts II and III. Accordingly, we affirm the defendant's convictions.
Affirmed.
NOTES
[1] The multiple defendants instruction read as follows:
A separate crime is charged against each defendant in each count of the information. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to him must be considered separately. A finding of guilty or not guilty as to one or some of the defendants must not affect your verdict as to any other defendants or other crimes charged.
Garzon II, 980 So.2d at 1040.
[2] Count I provides in relevant part:
DAVID DWAYNE BROWN . . . and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously kill a human being, to wit: ERIC WILLIAMS . . . from a premeditated design to effect the death of the person killed or any human being, or while engaged in the perpetration of, or in an attempt to perpetrate any murder of another human being, to wit: LAWRENCE WADE and/or EDWARD LEON BERNARD ..., by shooting the said ERIC WILLIAMS ... and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon ERIC WILLIAMS ..., a human being, in violation of s. 782.04(1), s. 777.011 and s. 775.087, Florida Statutes.
(Emphasis added).
Count II provides in relevant part:
DAVID DWAYNE BROWN . . . and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously kill a human being, to wit: EDWARD LEON BERNARD . . . from a premeditated design to effect the death of the person killed or any human being, or while engaged in the perpetration of, or in an attempt to perpetrate any murder of another human being, to wit: LAWRENCE WADE and/or ERIC WILLIAMS . . ., by shooting the said EDWARD LEON BERNARD ... and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon EDWARD LEON BERNARD..., a human being, in violation of s. 782.04(1), s. 777.011 and s. 775.087, Florida Statutes.
(Emphasis added).
Count III provides in relevant part:
DAVID DWAYNE BROWN . . . and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously attempt to kill a human being, to wit: LAWRENCE WADE, from a premeditated design to effect the death of a human being, by shooting him with a shotgun, and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon LAWRENCE WADE, a human being, with a weapon, to wit: A firearm, in violation of s. 782.04(1), s. 777.04(1), s. 777.011 and s. 775.087, Florida Statutes.
(Emphasis added).
[3] The relevant portions of the trial court's instructions are as follows:
I now instruct you on the circumstances that must be proven before the defendant may be found guilty of murder in the first degree or any lessor [sic] included crime and/or attempted first degree murder or any lessor [sic] included crime.
There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.
Before you can find the defendant guilty of first degree premeditated murder the state must prove the following three elements beyond a reasonable doubt. As to Count one, first Eric Williams is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third, there is a premeditated killing of Eric Williams.
As to Count Two, Edward Leon Bernard is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third, there was a premeditated killing of Edward Leon Bernard.
. . . .
Before you can find the defendant guilty of first degree felony murder the state must prove the following three elements beyond a reasonable doubt. As to Count One, first, Eric Williams is dead. Second, the death occurred as a consequence of and while the defendant was engaged in the of [sic] murder. Or the death occurs as a consequence of and while the defendant was attempting to commit murder. Third, the defendant was the person who actually killed Eric Williams or Eric Williams was killed by a person other than the defendant, but both the defendant and the person who killed Eric Williams were principals in the commission of murder.
As to Count two, Edward Leon Bernard is dead. Second, the death occurred as a consequence of and while the defendant was engaged in the commission of murder. Or the death occurred as a consequence of and while the defendant was attempting to commit murder. Third, the defendant was the person who actually killed Edward Leon Bernard. Or Edward Leon Bernard was killed by a person other than the defendant but both the defendant and the person who killed Edward Leon Bernard were principals in the commission of murder.
In order to convict of first degree felony murder it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.
. . . .
Before you can find the defendant guilty of attempted first degree murder premeditated murder the state must prove the following three elements beyond a reasonable doubt.
First, the defendant or another person acting as a principal did some act intended to cause the death of Lawrence Wade that went beyond just thinking or talking about it.
Second, defendant or another person acting as a principal acted with a premeditated design to kill Lawrence Wade.
Third, the act would have resulted in the death of Lawrence Wade except that someone prevented the defendant from killing Lawrence Wade or he failed to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038075/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2811
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Humberto Antonio Barbosa-Ramirez, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 29, 2005
Filed: July 11, 2005
___________
Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
After Humberto Barbosa-Ramirez (Ramirez) pleaded guilty to conspiring to
distribute 500 grams or more of a mixture containing a detectable amount of
methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1),
and 846, the district court1 sentenced him to 10 years imprisonment and 5 years
supervised release. On appeal, counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967). Upon careful review of counsel’s brief
and the entire record, see Penson v. Ohio, 488 U.S. 75 (1988),we conclude that
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
Ramirez’s sentence, a 10-year statutory mandatory minimum, was proper based on
his admitted drug quantity. We also conclude that there are no nonfrivolous issues
for appeal. Accordingly, we affirm, and we grant counsel’s motion to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1577388/ | 629 F. Supp. 543 (1986)
Joan BLAIS, Plaintiff,
v.
Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
Civ. A. No. 85-3184-Y.
United States District Court, D. Massachusetts.
February 28, 1986.
*544 Keith B. Hughes, Lawrence, Mass., for plaintiff.
Marianne Bowler, Asst. U.S. Atty., Boston, Mass., for defendant.
MEMORANDUM AND ORDER
YOUNG, District Judge.
The plaintiff Joan Blais brought this action to obtain judicial review of a final decision of the Secretary of Health and Human Services (the "Secretary") denying Blais' application for Supplemental Security Income benefits. The Secretary found that Blais suffered from bronchial asthma, allergies, and fibrocystic breast disease but that these impairments were not disabling. Blais argues that this determination is not supported by substantial evidence and is based on certain erroneous conclusions of law.
I.
Blais is a 34 year old woman who is a high school graduate and who has completed one year of college. In June, 1976, she began working as a social service case manager. In 1981 Blais was granted a two week leave of absence because of her bronchial asthma and allergies, and returned to work on a part-time basis until she resigned because of her asthma and allergies in August, 1983. Blais suffers from perennial bronchial asthma, allergies, and fibrocystic disease. She was hospitalized several times between 1976 and 1981 for treatment of asthma and allergies and again in 1983 for a partial mastectomy. Blais has not worked since August, 1983.
Blais applied for disability benefits on October 13, 1983. Her application was denied initially and again upon reconsideration. Blais requested a hearing before an Administrative Law Judge and one was held on April 19, 1984. On May 10, 1984, the Administrative Law Judge found that Blais was disabled and that she was entitled to disability insurance benefits under the Social Security Act beginning on August 21, 1983. On July 6, 1984, the Appeals Council notified Blais that it intended to review the decision of the Administrative Law Judge and on June 14, 1985, it reversed, finding that Blais had no severe impairment and was not under a disability.
II.
A district court reviewing a decision of the Secretary must determine whether the decision is supported by substantial evidence and conforms to statutory requirements. Geoffroy v. Secretary of HHS, 663 F.2d 315, 319 (1st Cir.1981). The Secretary has promulgated regulations that employ a five step test to determine whether a claimant is disabled. See Goodermote v. Secretary of HHS, 690 F.2d 5, 6 (1st Cir.1982). The second step of this test asks whether the claimant has a severe impairment. A "severe impairment" means an impairment which "significantly limits his or her physical or mental capacity to perform work-related functions." 20 C.F.R. § 404.1521 (1985). If the claimant does not have a severe impairment, the claimant is automatically considered not disabled without further consideration under steps three through five.
III.
This court takes judicial notice of McDonald v. Heckler, 624 F. Supp. 375 (D.Mass.1985) which held that the step two severity regulations, 20 C.F.R. §§ 404.1520(c) and 416.920(c) are inconsistent with the Social Security Act and are thus invalid as written. The court reasoned that Congress did not intend that a determination of non-disability should be based on medical *545 factors alone.[1] Accordingly, the McDonald court enjoined the Secretary from further enforcing the step two severity regulations and ordered the Secretary redetermine the eligibility for benefits of the class members who were claimants in that case.
Ordinarily, one would have imagined that the McDonald ruling would bring this case to a swift and economical halt. After all, the Secretary having fully litigated in McDonald the precise legal issue here presented having had his "bite at the apple" as it were and having lost, general principles of issue preclusion, with their concern for judicial economy and for protecting litigants from the burden of relitigating identical legal issues with the same party or his privy, would seem to mandate a like judgment here without the necessity for further analysis. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S. Ct. 645, 651, 58 L. Ed. 2d 552 (1979) (permitting new plaintiff to invoke a previous finding of the Securities Exchange Commission against the same nongovernmental defendant in a later suit). Accord Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). This is the general Restatement rule. Restatement (Second) of Judgments, § 27 at 250 (1982). Surprisingly, however, this rule apparently ceases to apply in most cases where it is the government which is the losing litigant. United States v. Mendoza, 464 U.S. 154, 159-162, 104 S. Ct. 568, 572-573, 78 L. Ed. 2d 379 (1984). While the governmental exception has been criticized, and a narrow case-by-case exception to the general rule called for, Note, Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality, 99 Harv.L.Rev. 847, 859-861 (1986), this Court is satisfied that the Mendoza governmental exception to the general rule of offensive issue preclusion applies in the circumstances of this case. See Levin & Leeson, Issue Preclusion Against the United States Government, 70 Iowa L.Rev. 113, 134 (1984). Accordingly, this case requires further inquiry.
In McDonald, the claimants brought a class action challenging the regulatory policies and procedures of the Social Security Administration which are used to deny disability benefits to claimants on the grounds that they do not have severe impairments. McDonald v. Heckler, 624 F. Supp. 375, 376 (D.Mass.1985). The court granted the motion for class certification and defined the class as:
All persons residing in Massachusetts who have filed or will file applications for disability benefits under Title II or Title XVI of the Social Security Act, and whose benefits have or will be denied on the grounds that they do not have a severe impairment, pursuant to the policies set forth in 20 C.F.R. §§ 404.1520(c), 404.1521, 404.1522, 416.920(c), 416.921 and 416.922 and Social Security Rulings cum. ed. 82-55 and 82-56 (1982).
Id. at 376.
In the present case, therefore, the Secretary cannot avoid the impact of McDonald by claiming exemption from general standards of offensive issue preclusion since Blais is herself a member of the broadly defined class whose rights have already been adjudicated therein. In short, though Blais seems not to have been aware of it until quite recently, she had her "bite of the apple" as part of the McDonald class and she's won. As there is a complete identity of the parties, this case must be dismissed upon the ground of res judicata, a principle fully applicable to the Secretary.
While the appropriate judgment would simply dismiss this action upon the ground of res judicata and allow Blais to pursue further proceedings as part of the McDonald class, as this Court is fully persuaded by the reasoning in McDonald and agrees that the Secretary's regulations fail to square with the statutory mandate, this Court independently rules that, upon the *546 entry of judgment dismissing this action upon the ground of res judicata, the Secretary is directed to redetermine Blais' claim of disability in conformance with the decision in McDonald v. Heckler, 624 F. Supp. 375 (D.Mass.1985).
NOTES
[1] Several courts of appeal have also held the step two regulation either invalid on its face or as applied by the Secretary. See e.g. Johnson v. Heckler, 769 F.2d 1202 (7th Cir.1985), Yuckert v. Heckler, 774 F.2d 1365 (9th Cir.1985), Baeder v. Heckler, 768 F.2d 547 (3rd Cir.1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605913/ | 7 So.3d 1113 (2009)
ZIMMERMAN
v.
STATE.
No. 3D09-673.
District Court of Appeal of Florida, Third District.
April 8, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1008294/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4173
SAMUEL MACK BATEY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-01-214-5)
Submitted: July 25, 2002
Decided: August 8, 2002
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney, John
L. File, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BATEY
OPINION
PER CURIAM:
Samuel Mack Batey, Jr., entered a guilty plea to being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1) (2000), and was sen-
tenced to a term of eighty-seven months imprisonment. Batey appeals
his sentence, contesting the enhancement he received for possession
of a firearm in connection with another felony offense pursuant to
U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2000). We affirm.
Batey sold marijuana to a confidential informant at his home on
May 1, 2000. Police executed a search warrant at his home on the
same day. A search of the premises uncovered two loaded firearms
within eight feet of approximately fifty-two pounds of marijuana.
Batey admitted that he possessed the firearms and had pled guilty to
state charges of possession with intent to distribute the marijuana
seized. In sentencing Batey, the district court increased his offense
level by four levels under § 2K2.1(b)(5), finding that the firearms
facilitated or potentially facilitated the drug offense.
On appeal, Batey argues that the government failed to show any
temporal or physical connection between the firearms and the drug
offenses. He maintains that he was merely storing the firearms for a
friend.
Although the term "in connection with" is not defined in the guide-
lines, we have held that it is analogous to the phrase "in relation to"
in 18 U.S.C. § 924(c) (2000). United States v. Nale, 101 F.3d 1000,
1003-04 (4th Cir. 1996). There was no dispute in this case that Batey
possessed the firearms in his house while he was selling marijuana
there. To show that the firearms were possessed "in connection with"
the drug sales, the government had the burden of showing that the
firearms facilitated or had the potential to facilitate the drug sales. Id.
The government had the burden of proving the facts supporting the
enhancement by a preponderance of the evidence. Id. The district
court’s findings of fact are reviewed for clear error. Id. We conclude
the district court could reasonably infer that Batey possessed the fire-
arms to protect his drugs and money, given that drug sales took place
in the house and the loaded firearms were in such close proximity to
UNITED STATES v. BATEY 3
the marijuana. United States v. Lett, 264 F.3d 787, 791 (8th Cir.
2001); United States v. Jackson, 276 F.3d 1231, 1234 (11th Cir.
2001); United States v. Wyatt, 102 F.3d 241, 248 (7th Cir. 1996).
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1007991/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4100
HERMAN LEWIS BILLUPS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4713
HERMAN LEWIS BILLUPS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4738
CHRISTOPHER LEE DAVIS,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin and Robert C. Chambers, District Judges.
(CR-00-59, CR-01-45)
Submitted: June 6, 2002
Decided: July 1, 2002
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.
2 UNITED STATES v. BILLUPS
Affirmed by unpublished per curiam opinion.
COUNSEL
Marc L. Resnick, Washington, D.C., Mark F. Underwood, UNDER-
WOOD LAW OFFICE, INC., Huntington, West Virginia, for Appel-
lant. Kasey Warner, United States Attorney, Lisa A. Green, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Herman Lewis Billups pleaded guilty to conspiring to distribute
cocaine base and being a felon in possession of a firearm, for which
he received a life sentence. See 21 U.S.C.A. §§ 841, 846 (West 1999
& Supp. 2001); 18 U.S.C.A. § 922(g)(1) (West 2000). A jury subse-
quently convicted Billups of retaliating against a witness, in violation
of 18 U.S.C.A. § 1513(b)(2) (West 2000). The jury also convicted
Christopher Davis of aiding and abetting that retaliation, in violation
of 18 U.S.C.A. §§ 1513(b)(2) and 2 (West 2000). Billups appeals his
sentence for his conspiracy conviction, arguing the district court erred
in applying a sentencing enhancement for obstruction of justice pur-
suant to U.S. Sentencing Guidelines Manual § 3C1.1 (2000). Billups
and Davis also challenge the sufficiency of the evidence to support
their convictions under § 1513(b). For the following reasons, we
affirm.
We find no error in the district court’s application of an enhance-
ment for obstruction of justice in computing Billups’s sentence for
conspiring to distribute cocaine base. This court reviews sentencing
determinations de novo and the underlying factual determinations for
UNITED STATES v. BILLUPS 3
clear error. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989). At Billups’s sentencing hearing, two witnesses testified that
Billups repeatedly threatened a former co-conspirator while they were
housed together at the South Central Regional Jail (SCRJ). The sec-
ond witness, Clarence Woolfolk, also testified that Billups and Davis
assaulted him at the SCRJ after he was identified as a future witness
against Billups. Because an obstruction of justice enhancement may
be applied based on threats or intimidation of a co-defendant or wit-
ness, whether direct or indirect, see § 3C1.1, comment. (n.4(a)), we
find no error in the application of this enhancement to Billups’s sen-
tence in appeal No. 01-4100.
Furthermore, our review of the trial transcript from Billups’s and
Davis’s trial for their assault on Woolfolk indicates that there is suffi-
cient evidence to support their convictions. Several witnesses testified
that both Billups and Davis struck Woolfolk. An SCRJ inmate also
testified that he saw Billups and Davis engage in a brief conversation
before attacking Woolfolk, just moments after Billups said: "There’s
the snitch and he’s going to get his." We find that this testimony pro-
vides proof beyond a reasonable doubt that Davis aided Billups in
knowingly causing physical injury to Woolfolk in retaliation for
Woolfolk’s testimony against Billups. See United States v. Cofield, 11
F.3d 413, 419 (4th Cir. 1993) (providing elements of a charge under
§ 1513(b)).
Accordingly, we affirm Billups’s sentence in No. 01-4100, as well
as Billups’s and Davis’s convictions in No. 01-4713 and No. 01-4738,
respectively. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1144526/ | 357 P.2d 980 (1960)
Edna Ruth ROBERTS, Plaintiff in Error,
v.
Vernon Stanford ROBERTS, Defendant in Error.
No. 39032.
Supreme Court of Oklahoma.
December 20, 1960.
Elmore A. Page, Tulsa, for plaintiff in error.
Ungerman, Grabel, Ungerman, Leiter & Unruh, Rucker, Tabor, Best, Sharp & Shepherd, Tulsa, for defendant in error.
*981 WILLIAMS, Vice Chief Justice.
Edna Ruth Roberts, in July, 1959, filed an action against Vernon Stanford Roberts for divorce and custody of their three minor children, and as grounds therefor alleged incompatibility on the part of defendant. Defendant filed a cross-petition for divorce and custody of the children. Continued reference to the parties will be as they appeared below.
The testimony supported the allegations of incompatibility on the part of each of the parties. They had been married twenty years; there was a difference of ten years in their respective ages. They had not lived as husband and wife for some six years. Except for the home and their children, they had few interests in common.
Defendant's testimony indicated the following as to his financial position. His present salary was $1,386 per month; his "take-home pay" $973. He had over $30,000 in the Provident Fund with his employer. He adds to this fund 10% of his salary each month and his employer does likewise. He may not withdraw this unless he leaves his present employer or retires. In addition, his employer maintains a separate retirement program for all employees, including defendant. After this suit was filed, defendant sold certain shares of stock he had for $2,053. The proceeds of this sale he used to pay bills incurred by the family. He pays approximately $70 per month for insurance. Defendant did not directly place a value on the household furniture when asked its value, but did say he had kept it insured for $6,000.
The parties paid $26,500 for their present house. There is a $12,000 mortgage against it. Defendant had 500 shares of radium stock he valued at $330, but later, in referring to it, he said "* * * it has gone up to three dollars, I believe. I believe I bought it a little cheaper." His testimony was not controverted except that defendant's counsel in question to defendant inferred the furniture was worth about $1,200, and that the parties have been unable to sell the house at the above figure.
The trial court granted each party a divorce on the grounds of incompatibility.
Plaintiff was awarded custody of the children except from June 15th to August 15th of each year. No appeal has been taken from the action of the trial court as to the granting of a divorce to the parties.
Plaintiff was awarded child support money in the amount of $100 per month per child until each child should respectively reach age of majority. She was awarded, by way of property settlement, a 1956 automobile and the household furniture. The judgment further provided that the present home of the parties should be sold. The net proceeds were to be used to buy a house free and clear of all encumbrances and kept free of debt, title thereto to be held in the name of plaintiff and the children. Defendant was ordered to maintain his present insurance policies for the use and benefit of the children and to pay plaintiff's attorney a fee of $650.
*982 Defendant was awarded a 1952 automobile, the bank account ($600) and all monies in the Provident Fund (more than $30,000).
Plaintiff contends: "The judgment of the Honorable Trial Court in the division of the jointly acquired property, between the parties hereto, is clearly against the weight of the evidence, and is inequitable, unjust and unwarranted."
Defendant's first contention is: "The clear weight of the evidence fully supports the judgment of the trial court in the division of jointly acquired property among the parties hereto; therefore, the judgment of the trial court must be sustained."
The value of the automobile awarded plaintiff was approximately offset by the automobile and bank account awarded defendant.
The other assets that plaintiff and defendant have accumulated during their marriage and their approximate value, according to the record, are: house, net value $14,500; furniture, from $1200 to $6000; radium stock from $330 to $1,500; and Provident Fund, more than $30,000. These total from some $46,300 to $52,000 and more.
Of this $46,300 to $52,000, plaintiff was awarded the household furniture ($1200 to $6000) and a ¼th interest in a house to be purchased at a cost of approximately $14,500, assuming the present home will sell for that amount, above the mortgage. The interest awarded to her in these would total only from $5033 to $9833. And such furniture and home (and automobile, for that matter) will be used by the children as well as by the plaintiff.
The defendant's "take-home pay", less payments of child support and insurance is approximately $700 per month. In addition, he is accumulating about $277 per month in the Provident Fund.
The plaintiff has never worked outside the home. It would be difficult for her to work out and look after the minor daughters. They need her at home in order that they may receive proper care.
By statute 12 O.S. 1951 § 1278, it is provided that
"When a divorce shall be granted by reason of the fault or aggression of the husband, the wife * * * shall be allowed such alimony out of the husband's real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. As to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. In case of a finding by the court, that such divorce should be granted on account of the fault or aggression of the wife, the court may set apart to the husband and for the support of the children, issue of the marriage, such portion of the wife's separate estate as may be proper."
In making division of property in a divorce action due consideration should be given to the situation of the husband as well as that of the wife. Funk v. Funk, Okl., 319 P.2d 599.
From the record in this case, it would appear that after plaintiff had been married to defendant twenty years and borne and reared three daughters, the older practically to majority, and that she yet must care for the younger some ten additional years, an award to her of only from ten to *983 twenty per cent of an accumulation of property of some $45,000 to $50,000 in value appears hardly to warrant being called "just, reasonable" or "proper" as is required by the foregoing statute.
We determine the award made to plaintiff to be against the weight of the evidence and inequitable.
In Helvey v. Helvey, Okl., 262 P.2d 445, we said:
"Where the judgment of the trial court dividing jointly acquired property between husband and wife after divorce is clearly against the weight of the evidence and inequitable same will be set aside on appeal and proper judgment entered."
Of course, defendant could not withdraw and pay over to plaintiff in a lump sum any of the $30,000 and more accumulated in the Provident Fund with his employer. However, plaintiff could have been awarded an allowance payable monthly as alimony in lieu of a division of this fund. We believe plaintiff is entitled to such an allowance in the total sum of $12,100. We therefore order that the judgment of the trial court be and it is hereby modified to adjudge and order that defendant pay plaintiff $12,100 alimony, same to be paid by defendant as follows: one payment of $100 within ten days from the date of finality of the judgment herein ordered to be entered, and 120 equal monthly payments of $100 each payable at intervals of one month thereafter.
We further determine that plaintiff is entitled to have the title to the home which may be purchased by her with proceeds of sale of equity in present home of the parties taken and placed in her own name. We therefore further order that the judgment of the trial court be modified accordingly. See Section 1278, supra.
In order to insure that the minor children of the parties have a home during minority, and for their proper maintenance and support by plaintiff (with assistance of defendant as set forth herein) we further order that the judgment of the trial court as modified by this opinion, be and the same is further modified to provide that plaintiff may not sell or place any encumbrance against the title to such home to be purchased by her with proceeds of sale of equity in the present home, during the minority of said children or either of them, or until the further order of the trial court.
We agree with the defendant's second contention that the fact plaintiff did not specify in her petition in error that the trial court awarded her attorney an insufficient fee precludes such matter from review herein. State ex rel. Commissioners of Land Office v. Wood, 202 Okl. 664, 217 P.2d 171. As a matter of equity, plaintiff's attorney is entitled to an additional fee for services performed in connection with this appeal. An additional fee of $500 appears to be justified, considering all the circumstances. Thompson v. Thompson, Okl., 347 P.2d 799.
It is ordered that the trial court modify its judgment as above indicated and enforce said judgment as modified as if originally entered in the trial court.
Modified, and, as modified, affirmed.
DAVISON, C.J., and HALLEY, BLACKBIRD, IRWIN and BERRY, JJ., concur.
JACKSON, Justice (dissenting).
While I agree that the division of property ordered by the trial court is unfair and inadequate for the plaintiff, and have no serious complaint in regard to the order made by this court, I think it would be much more satisfying to all concerned if we would indicate the percentage of the estate that should be distributed to the plaintiff and reverse and remand with instructions for the trial court, with the assistance of the parties and their attorneys, to determine how and in what manner the payments should be made. For these reasons I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918420/ | 764 A.2d 53 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Rayfort ODOM, Appellant.
Superior Court of Pennsylvania.
Argued June 8, 2000.
Filed November 1, 2000.
Reargument Denied January 8, 2001.
Karl Baker, Public Defender, Philadelphia, for appellant.
Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before JOHNSON, STEVENS and BECK, JJ.
BECK, J.:
¶ 1 Rayfort Odom appeals from the judgment of sentence imposed after he was held in contempt of court on July 29, 1999. We reverse.
¶ 2 Odom was arrested on September 19, 1998 and charged with burglary and related offenses. He was scheduled to be tried on January 11, 1999. However, two *54 continuances, one requested by each party, resulted in a June 15, 1999 trial date. On that date, after a colloquy, the trial court accepted Odom's waiver of his right to a jury trial and he signed a written waiver. The Commonwealth then established that the eyewitness, who earlier had failed to appear, was dead, and moved to admit his preliminary hearing testimony. Odom's counsel, an attorney from the Defender Association of Philadelphia ("Defenders"), objected and asked for a continuance to provide relevant case law to the court. The court granted the request.
¶ 3 The case was rescheduled for July 29, 1999; late that afternoon, Odom was brought into court. Counsel, a different attorney from the Defenders, immediately informed the court that Odom was requesting a jury trial. The trial judge granted the request but expressed dismay at the delay.
¶ 4 The Commonwealth asked to proceed with the unresolved pre-trial motion. In the ensuing dialogue, it became clear that Odom's counsel did not know that his client had previously waived a jury trial or that a continuance had been granted at prior counsel's request.
¶ 5 Appellant, with permission, addressed the court. He expressed frustration with his representation by the Defenders and raised two legal questions. He also acknowledged that he had not discussed the jury trial issue with counsel when they met a week earlier. The court asked about Odom's prior contact with the criminal justice system. After learning that he had previously been convicted for contempt, had pled guilty to a number of theft and burglary charges and, on all those occasions, been represented by the Defenders Association, the court concluded that the jury demand was a delay tactic. Odom was found guilty of criminal contempt and sentenced to five months and twenty-nine days imprisonment. He now appeals.
¶ 6 On appeal, Odom argues that the evidence was insufficient to find him guilty of direct criminal contempt. He specifically claims that he did not perform any contemptuous act, did not possess the requisite intent to obstruct justice, and did not obstruct justice. He contends he was held in contempt simply for inconveniencing the system.
¶ 7 To sustain a conviction for direct criminal contempt, there must be proof beyond a reasonable doubt of 1) misconduct; 2) in the presence of the court; 3) committed with the intent to obstruct the proceedings; 4) that obstructs the administration of justice. Williams v. Williams, 554 Pa. 465, 721 A.2d 1072 (1998). When reviewing a contempt conviction to determine the sufficiency of the evidence, we place great reliance on the discretion of the trial judge; thus, we are confined to a determination of whether the facts support the trial court's decision. In Re: A.J. Adams, 435 Pa.Super. 202, 645 A.2d 269 (1994).
¶ 8 The first element of contempt is misconduct. "Misconduct is behavior that is `inappropriate to the role of the actor.'" Adams, supra at 272 (quoting Commonwealth v. Garrison, 478 Pa. 356, 371, 386 A.2d 971, 979 (1978)). However, "[n]either injudicious remarks nor affronts to the dignities or sensibilities of the court will, without more, support a conviction for direct criminal contempt." Commonwealth v. Mutzabaugh, 699 A.2d 1289, 1293 (Pa.Super.1997). Here the trial court found that Odom "engaged in misconduct when he intentionally hindered the proceedings by waiting until 3:50 p.m. to request to proceed by way of a jury trial instead of a bench trial." Trial Court Opinion, 6/9/00, at 8.
¶ 9 Instantly, after Odom requested a jury trial, it became apparent that Odom's counsel was unaware of his client's earlier jury waiver or of the obligation to present case law on the Commonwealth's motion. The court commented: "the Court is certainly feeling like this has been nothing but dilatory tactics, Mr. Edelin [appellant's *55 attorney], on behalf of either the defendant or the Defender Association." N.T., 7/29/99, at 6.
¶ 10 With the court's permission, Odom then explained that he felt he was not well represented. He had had 4 defenders in ten months; they had not investigated as he had asked and, at the last hearing, he had felt rushed and unclear in his thinking. He suggested that under Rule 1100 he still had time to rethink his position. The court, however, pointed out that his time was reduced by the two continuances he had already requested. The court granted the Commonwealth's motion. Odom again asked to speak asking how, if the witness were dead, he could exercise his right to face his accuser. The court explained the legal ruling to him. Odom then asked:
THE DEFENDANT: ... I wonder if you're going to grant me a jury?
THE COURT: Yes, of course. You have an absolute right to a jury trial.
THE DEFENDANT: Thank you ma'am.
N.T., 7/29/99, at 11. The court then queried Odom on the timing of the decision to request a jury trial and what effort he made to communicate this wish to counsel.
¶ 11 Odom answered respectfully, explaining that his new public defender visited him in prison and they discussed the facts of the case but not his right to a jury. Odom said he had tried to contact the Defenders by telephone and through his mother about his change of mind, but was unsuccessful in reaching counsel. The court reviewed Odom's previous contacts with the criminal justice system, which included a conviction for contempt and two guilty pleas for robbery and burglary. She then ruled:
THE COURT: Having found at 3:50 p.m. defendant making a jury demand that this is, in fact, a delay tactic on behalf of the defendant. The Court is holding Mr. Odom in contempt.
MR. EDELIN: Your Honor, he wishes to address The Court again.
THE COURT: And imposes a sentence of five months, 29 days on contempt. Yes, Mr. Odom?
THE DEFENDANT. Yes, ma'am. Can I stand up?
THE COURT: Sure.
THE DEFENDANT: When I pled on those cases, I was scared into pleading them. I didn't know no better.
THE COURT: Who scared you?
THE DEFENDANT: The PD's that came up and seen me, that was my first contact. All the PD pleas that I pled guilty on, I was scared into pleading guilty on. I didn't know no better, so now I'm more wiser and older.
THE COURT: That's fine. You absolutely have a right to have a jury decide this case. ....
But the fact is you can't continue the matters over and over again and allow witnesses to be brought in.
It is now almost 4 o'clock. And to ask for a jury trial at this late hour, you absolutely have a right to a jury trial, but because you caused delay in the proceedings, Mr. Odom, I'm punishing you for that.
THE DEFENDANT: Ma'am, I was down there all morning.
THE COURT: I know, because you're in custody.
THE DEFENDANT: I didn't bring myself up here 4 o'clock. They just brung [sic] me up here.
THE COURT: Okay. It's certainly something that you and/or your attorney should have communicated to the Court prior to 4 o'clock almost.....
....
THE DEFENDANT: Ma'am, I didn't see my lawyer until I came up here. That's why he didn't know nothing.
....
THE COURT: Okay. So I believe you'll be brought back tomorrow and have the case sent out for a jury trial at *56 that time, and I wish you luck, Mr. Odom.
THE DEFENDANT: Thank you, ma'am.
N.T., 7/29/99, at 16-19.
¶ 12 This reiteration of events accurately reflects the environment in the courtroom throughout Odom's hearing. Odom was unfailingly respectful and at no point raised his voice, used obscene words or gestures or demeaned the authority of the court. This is particularly evident when, after the court imposed a prison term for contempt, Odom asks to stand before addressing the court. When raising legal arguments in his own behalf, Odom may have stepped out of his appropriate role or been somewhat argumentative, but these comments without more clearly do not rise to the level of contempt. Mutzabaugh, supra. Moreover, Odom was singularly handicapped by ineffective counsel who failed to communicate about or prepare for his case.[1] Counsel caused the June 15, 1999 continuance but came to the July 29th hearing unprepared to argue the issue. Furthermore, when meeting with Odom prior to the new court date, counsel did not discuss his jury waiver with him because counsel was not even aware that his client had already waived a jury trial.[2]
¶ 13 Here, there is simply no evidence of the kind of conduct that results in a finding of direct contemptuous behavior. See, e.g., Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981) (defendant removed civilian clothing down to socks and underwear, and persisted in arguing with judge); Commonwealth v. Shaw, 280 Pa.Super. 575, 421 A.2d 1081 (1980) (defendant failed to return to court for afternoon session); Commonwealth v. Williams, 753 A.2d 856, 2000 Pa. Super Lexis 726 (Pa.Super.2000) (defendant made obscene gesture and stated "f-k you" to court after sentencing). Thus, on this record, we do not find misconduct on the part of Odom during these proceedings. Moreover, even if we were to find misconduct, there is no evidence that Odom's behavior was intended to obstruct the administration of justice, or, in fact, did obstruct the administration of justice.[3]
¶ 14 The third element of contempt, wrongful intent on the part of the contemnor, requires evidence that the contemnor knows or should reasonably be aware that his conduct is wrongful. Garrison, supra. As the court properly stated, Odom had an absolute legal right to a jury trial which he requested before trial had begun. N.T., 7/29/99, at 11. Pa.R.Crim.P. 1102(B). Nevertheless, the court found that Odom:
acted with wrongful intent because the defendant had already caused the case to be continued from June 15 to July 29, claiming to want to submit case law....... no case law was submitted and defense counsel never even advised the Court, or the Commonwealth, concerning its failure to do so. Coupled with the extreme lateness of his announcement that he wished to be tried by a jury, this Court had sufficient evidence regarding defendant's intent to delay the proceedings.
Trial Court Opinion, 6/9/2000, at 8-9.
¶ 15 On this record, it is undisputed that on June 15th Odom's counsel, caught by surprise when the Commonwealth moved to admit preliminary hearing testimony of *57 an unavailable witness, asked for a continuance and then failed to prepare to argue the motion. The court's annoyance that counsel had caused an unnecessary delay is understandable, but neither the behavior causing the delay nor knowledge that it was wrongful can be imputed to Odom. Odom himself was clearly unable to communicate with his attorney until he was brought into the courtroom at 3:50 p.m. Furthermore, given Odom's experience with counsel which he testified made him feel that he was poorly represented, he reasonably may have concluded that he should change his strategy in court. Thus, the facts on this record do not support beyond a reasonable doubt that Odom had the requisite intent to obstruct the administration of justice when he asked for a jury trial.
¶ 16 With regard to the fourth element of contempt, it is well-established that for conduct to constitute an obstruction of the administration of justice, it must significantly disrupt the proceedings. Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980). Contempt requires "actual, imminent prejudice to a fair proceeding or prejudice to the preservation of the court's orderly procedure and authority." Commonwealth v. Falana, 548 Pa. 156, 161, 696 A.2d 126, 128 (1997). The trial court stated that:
[A] significant disruption in the proceedings occurred, since the matter was continued until August 2, 1999.
....
[i]t was not until after this Court had reviewed the defendant's file and the defendant was given an opportunity to address this Court, that this Court concluded that the defendant was abusing the system to prolong the adjudication of his case.... Thus, this Court did not sanction the defendant for exercising a constitutional right to a jury trial, but instead, found in its reasonable discretion that it was appropriate to sanction the defendant for intentionally delaying the proceedings.
Trial Court Opinion, 6/9/00, at 9,10.
¶ 17 As the trial court's statement implicitly reveals, there is no evidence on this record that a significant disruption occurred in the brief proceedings in her courtroom on July 29, 1999. Nor after our thorough review of the record, do we find facts to support a conclusion that Odom's conduct prejudiced either the fairness or the orderliness of the proceeding or directly challenged the court's authority.
¶ 18 Having found that Odom's request for a jury trial did not rise to the level of contemptuous misconduct and that the evidence was insufficient to prove beyond a reasonable doubt that he intended to obstruct the administration of justice, we reverse the trial court's order of July 29, 1999 finding Odom in direct contempt of court. Accordingly, the judgment of sentence is reversed.[4]
¶ 19 STEVENS, J., files a Dissenting Opinion.
STEVENS, J., dissenting:
¶ 1 I respectfully dissent from the Majority's decision to reverse the trial court's order of July 29, 1999, which found Appellant in direct contempt of court.
¶ 2 A court's power to maintain courtroom authority is well-settled. Behr v. Behr, 548 Pa. 144, 695 A.2d 776 (1997). In Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976), the Supreme Court stated that "[t]he court must be able to control those appearing before it, and must be able to use its power summarily to avoid interference with the principal matter before the court." Id. 466 Pa. at 623, 353 *58 A.2d at 865. If the courts continually carve away at this power, the balance, dignity, and integrity of the courtroom may be in jeopardy. Commonwealth v. Martorano, 387 Pa.Super. 79, 563 A.2d 1193, 1200 (1989). Thus, "[w]hen reviewing the propriety of a contempt conviction, we place great reliance upon the discretion of the trial judge, ... and are confined to a determination of whether the facts support the trial court's decision." In Re: A.J. Adams, 435 Pa.Super. 202, 645 A.2d 269, 271-272 (1994).
¶ 3 In the present case, a review of the record indicates that on June 15, 1999, the date scheduled for trial, the trial court conducted a waiver colloquy, and determined that Appellant knowingly, intelligently, and voluntarily waived his right to a jury trial. See N.T. 6/15/99 at 11-17 and Opinion filed 6/9/00, Att. "A". Thereafter, Appellant, through his attorney, objected to the admission of certain preliminary hearing testimony and requested a continuance in order to seek case law on the matter. N.T. 6/15/99 at 30-36. The court then inquired of Reverend Georgia Smith, the complaining witness who was present in the courtroom, if she could return on a later date. Id. at 36. Reverend Smith replied that she could return, but not in the month of August. Id. The case was rescheduled for the week of July 26, 1999.
¶ 4 When Appellant's case was called to the courtroom at 3:50 p .m. on July 29, 1999, he indicated to the court that he had done "some homework on himself." N.T. 7/29/99 at 7. Appellant proceeded to comment on Pa.R.Crim.P. 1100, and its effect on his case if he was not brought to trial within the given number of days. Id. at 8. He then stated, "I still have two months that I can still play with that, my due rights been violated." Id. at 8-9. Following a discussion with the court, Appellant requested a jury trial. Id. at 11-12. Thereafter, regarding Appellant's late request for a jury trial, the court asked him when he previously had met with his attorney. Id. at 12. After Appellant responded that he had met with him on July 20th, the court inquired if, at that time, he told his attorney that he wanted a jury trial. Id. Appellant stated that he "was going to bring it to his [attorney's] attention, but it slipped [his] mind at the time." Id. at 13. Appellant's trial was subsequently delayed until August 2, 1999.
¶ 5 Based on the foregoing facts adduced from the record, I find that Appellant's dilatory tactics were inappropriate, Commonwealth v. Falana, 548 Pa. 156, 696 A.2d 126 (1997). Furthermore, the Supreme Court has stated that "[a] contemner acts with wrongful intent if he knows or should reasonably be aware that his conduct is wrongful." Id. 548 Pa. at 162, 696 A.2d at 129, citing United States v. Seale, 461 F.2d 345, 368 (7th Cir.1972) (citation omitted). This Court may infer Appellant's intent from his conduct and the surrounding circumstances. See Falana, supra. Because Appellant should have reasonably been aware that his dilatory tactics were wrongful, I believe that Appellant acted with the requisite intent. Finally, contrary to the Majority's conclusion, Appellant's conduct disrupted the proceedings in that the trial was continued to a later date.[5]Martorano, 563 A.2d at 1197 (stating that "[c]onduct which interrupts and delays the proceedings may constitute conduct which obstructs the administration of justice") (citation omitted).
¶ 6 The Majority fails to place reliance on the discretion of the trial judge. I find that the facts support the trial court's decision, and, therefore, would affirm the trial court's order of July 29, 1999 finding Appellant in direct contempt of court.
NOTES
[1] Odom is again represented on appeal by the Defenders who acknowledge both the failure of Odom's counsel to provide caselaw and the failure of his third and fourth counsel to coordinate their duties. Counsel argues that these failings should not be held against Odom. Appellant's Brief at 16.
[2] Counsel acknowledged that he had not reviewed the quarter session file and was in the process of filling out a jury waiver form that day. N.T., 7/29/99, at 3. Counsel had obviously also failed to discuss any relevant legal rules with Odom since the trial judge with considerable patience explained two legal questions legitimately raised by Odom during the proceedings.
[3] The second element of contempt requiring that the behavior take place in the presence of the court is obviously met in this case.
[4] Odom was found guilty by a jury of burglary and related offenses and, on September 21, 1999, was sentenced by the Honorable Anthony DeFino to one and one-half to three years incarceration followed by two years probation. In light of our disposition of this appeal, any time Odom has spent in custody for contempt should be credited to the sentence imposed by Judge DeFino.
[5] In its brief, the Commonwealth notes that when Appellant's trial commenced on August 2, 1999, he attempted to withdraw his request for a jury trial. Commonwealth's Brief at 7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515706/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3103
___________
UNITED STATES OF AMERICA
v.
IBRAHIM McCANTS,
Appellant
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-15-cr-00551-001)
District Judge: Honorable Esther Salas
___________
Argued September 6, 2018
Before: HARDIMAN, KRAUSE, and BIBAS,
Circuit Judges.
(Filed: March 12, 2020)
Leticia Olivera [Argued]
Louise Arkel
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Attorneys for Appellant
Mark E. Coyne
Richard J. Ramsay [Argued]
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Attorneys for Appellee
Brett G. Sweitzer
Federal Community Defender Office
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Attorney for Amicus Appellant
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Ibrahim McCants appeals his judgment of conviction
and sentence. McCants argues he was wrongly convicted based
on evidence that was found during an unconstitutional search.
He also claims his sentence cannot stand because he was
wrongly designated a career offender under the United States
2
Sentencing Guidelines. For the reasons that follow, we will
affirm.
I
On the afternoon of June 28, 2015, a New Jersey woman
dialed 911 to report an ongoing domestic dispute. Here’s how
the call went:
CALLER: Can I have the number to East Orange
Police Department.
DISPATCHER: You need where?
CALLER: East Orange Police Department. It’s
[sic] emergency.
DISPATCHER: What’s the problem?
CALLER: This guy is out here beating up his
girlfriend. He’s about to kill her.
DISPATCHER: Where’s this at?
CALLER: It’s on Grove Street in East Orange.
DISPATCHER: Grove and—where on Grove?
CALLER: Grove and, and, and like Williams
Street.
DISPATCHER: What is he wearing?
CALLER: He’s wearing a red hat, with braids
and he’s beating her up really bad right now I
wanna break—I wanna break it up but, I don’t
wanna do nothing.
3
DISPATCHER: No—you don’t want to do that.
Stay—hold on a second, ma’am.
United States v. McCants, No. 15-551, 2016 WL 4705452, at
*1 (D.N.J. Sept. 7, 2016). As the operator was preparing to
dispatch police to the scene of the altercation, the caller
repeated “he is beating her up really badly” and stated, “I think
he has a gun.” Id. The caller then hung up and the operator
dispatched the call in this way:
Grove and William, Grove and William, right
now from a caller, it’s a male beating a female
really badly, male has braids with a red hat . . . .
Again, it’s going to be Grove and William. Male,
female. Male beating a female. Male has braids
red hat—at this time, I am advising the caller not
to intervene . . . . Now she is saying she believes
he has a gun . . . . Red hat and braids. Alright, the
caller disconnected.
Id.
East Orange police were in the area at the time the call
was dispatched and they found a man matching the description
near 146 Grove Street within one minute. Officer Moses
Sangster was the first to arrive on the scene. He “noticed a male
with dreads and a red hat” walking north on Grove Street with
a woman. App. 76. The couple was later identified as Appellant
Ibrahim McCants and Chelsea Fulton. Two other officers—
Stephen Rochester and Cory Patterson—also arrived on the
scene within minutes after hearing the call. Before they
approached the couple, Officer Rochester confirmed with the
dispatcher that “the male actor involved had dreadlocks.” App.
78. Officers Rochester and Patterson then “immediately
4
engaged” McCants and frisked him due to the “nature of the
call for service.” Id. During the pat down, Officer Rochester
found a loaded handgun inside a fanny pack McCants was
wearing. The officers placed McCants under arrest and
recovered distributable quantities of heroin.
Several written police reports described the interactions
between McCants and Fulton when the officers arrived at the
scene. Officer Rochester reported that he observed McCants
“speaking with a black female.” Id.1 Both McCants and Fulton
confirmed in separate interviews they had been arguing,
though Fulton said, “at no point did the argument get physical.”
App. 82. Officer Crystal Singleton and Detective Jaleesa Wreh
reported that Fulton showed no signs of injury.
II
A grand jury charged McCants with unlawful
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) and possession with intent to distribute
heroin in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C).
McCants filed a pretrial motion to suppress the firearm and
drugs and requested an evidentiary hearing on the motion,
arguing the officers did not have reasonable suspicion that he
was engaged in criminal activity before they frisked him. The
1
Although the parties largely agreed on the facts, they
disputed whether McCants and Fulton were arguing when the
officers arrived. The Government claimed they were “yelling
at each other.” McCants, 2016 WL 4705452, at *2. But
McCants argued in his motion to suppress they were not and
Fulton corroborated McCants’s account in an affidavit. The
District Court did not make any factual findings regarding this
dispute.
5
Government opposed the motion, and the District Court denied
it without oral argument. The Court found that the stop was
based on reasonable suspicion because the caller’s
“anonymous tip bore sufficient indicia of reliability.”
McCants, 2016 WL 4705452, at *7.
The District Court then conducted a stipulated bench
trial, and McCants was found guilty as charged on both counts.
The United States Probation Office prepared a Presentence
Investigation Report (PSR) in which it designated McCants a
career offender. McCants objected to the PSR, arguing that his
two previous second-degree robbery convictions in New Jersey
did not qualify as crimes of violence under § 4B1.2 of the
Sentencing Guidelines. Had the convictions not qualified as
crimes of violence, his advisory range would have been
lowered from 168–210 months to 63–78 months under
Guidelines § 2K2.1. The District Court overruled McCants’s
objection, concluding that his two prior robbery convictions
qualified as crimes of violence. At sentencing, the Court varied
downward, imposing a sentence of 120 months’ imprisonment
followed by three years of supervised release. McCants timely
appealed.
III
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and we have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). McCants argues that the District Court
erred in denying his motion to suppress and in finding that his
prior robbery convictions qualified as crimes of violence under
Guidelines § 4B1.2. We review the District Court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015). We
review de novo the Court’s determination that a conviction
6
constitutes a “crime of violence” under the Guidelines. United
States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).
IV
We begin by addressing McCants’s argument that he
was wrongly convicted because the District Court admitted
into evidence the fruits (drugs and a gun) of an unconstitutional
search. The dispositive question underlying this argument is
whether the anonymous 911 tip provided sufficient indicia of
reliability for reasonable suspicion of ongoing criminal
activity.
The Fourth Amendment prohibits “unreasonable
searches and seizures.” U.S. CONST. amend. IV. Although
searches generally require warrants supported by probable
cause, officers may conduct brief investigatory stops under
Terry v. Ohio, 392 U.S. 1 (1968), if they have “reasonable,
articulable suspicion that criminal activity is afoot.” Illinois v.
Wardlow, 528 U.S. 119, 123 (2000). Such reasonable suspicion
requires “at least a minimal level of objective justification for
making the stop” and more than an “inchoate and
unparticularized suspicion or ‘hunch’” of criminal activity. Id.
at 123–24 (internal quotation marks omitted) (quoting Terry,
392 U.S. at 27). We evaluate the totality of the circumstances
in considering “whether a reasonable, trained officer standing
in [the officer’s] shoes could articulate specific reasons
justifying [the] detention.” United States v. Brown, 448 F.3d
239, 246–47 (3d Cir. 2006) (internal quotation marks omitted)
(quoting Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.
2003)).
A body of caselaw has developed over the years
involving anonymous reports to police of criminal activity.
7
These tips can provide reliable information helpful to
investigations and can create reasonable suspicion of ongoing
criminal activity. Navarette v. California, 572 U.S. 393, 397
(2014). Whether an anonymous tip provides enough
information for reasonable suspicion depends “upon both the
content of information possessed by police and its degree of
reliability.” Alabama v. White, 496 U.S. 325, 330 (1990).
Our Court has identified five factors that indicate
reliability for anonymous tips:
(1) The tip information was relayed from the
informant to the officer in a face-to-face
interaction such that the officer had an
opportunity to appraise the witness’s credibility
through observation.
(2) The person providing the tip can be held
responsible if her allegations turn out to be
fabricated.
(3) The content of the tip is not information that
would be available to any observer. . . .
(4) The person providing the information has
recently witnessed the alleged criminal activity.
(5) The tip predicts what will follow, as this
provides police the means to test the informant’s
knowledge or credibility[.]
United States v. Torres, 534 F.3d 207, 211 (3d Cir. 2008)
(ellipsis in original). In assessing the reliability of a tip, courts
within the Third Circuit must consider these factors with
8
reference to the totality of the circumstances presented in each
case. Id.
Here, the District Court found that “the [c]aller’s
anonymous tip bore sufficient indicia of reliability,” which
provided the officers with reasonable suspicion to stop and
frisk McCants consistent with Terry. McCants, 2016 WL
4705452, at *7. In the District Court’s view, the tip sufficed
because the caller used the 911 system to report firsthand
knowledge of ongoing domestic violence, and she gave an
accurate description that was quickly confirmed by the police.
McCants argues that the 911 call could not have
provided the officers with reasonable suspicion to justify the
stop for two main reasons: (1) the tip was vague and did not
demonstrate sufficient indicia of reliability; and (2) the officers
did not find corroborating evidence of domestic violence at the
scene. These arguments are unpersuasive in light of controlling
precedent.
First, McCants contends that the 911 call was unreliable
because it was akin to the bare-bones tip deemed inadequate
by the Supreme Court in Florida v. J.L., 529 U.S. 266 (2000).
In J.L., the police received an anonymous call “that a young
black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun.” Id. at 268. The Supreme Court held
that this “bare report of an unknown, unaccountable informant”
who did not explain the basis for his tip lacked sufficient
indicia of reliability. Id. at 271. But the facts of McCants’s
appeal differ from J.L. in important respects. Here, the 911
caller gave a firsthand account of ongoing criminal activity, as
well as a highly specific and accurate description of the
suspect’s location, clothing, and hair. In J.L., the informant
reported significantly fewer details and described potentially
9
innocuous behavior without explaining why the informant
thought the subject was committing (or was about to commit)
a crime. Because of these differences, we disagree with
McCants that the 911 call mirrors the limited and vague report
in J.L.
As the Government argues, the indicia of reliability in
McCants’s case are like those in Navarette v. California. The
Supreme Court there concluded that a tip created reasonable
suspicion of drunk driving because it was highly specific,
based on substantially contemporaneous eyewitness
knowledge, and reported over the 911 system. Navarette, 572
U.S. at 399–401. The Court explained that the eyewitness’s
firsthand knowledge of ongoing criminality “lends significant
support to the tip’s reliability.” Id. at 399. So too here, where
police were able to confirm the detailed description of the
suspect within minutes of the call. In fact, McCants was
engaged by police much more quickly than was Navarette, who
wasn’t stopped until eighteen minutes after the dispatcher’s
call. Id. In Navarette, the Supreme Court also reasoned that the
911 call bolstered the tip’s credibility because the system’s
ability to identify callers is a safeguard against false reports. Id.
at 400. Although 911 calls are not per se reliable and the police
in this case did not identify the caller, the informant’s use of
the 911 system here adds to the tip’s reliability in the same way
it did in Navarette.
Relatedly, McCants argues that the District Court did
not give adequate consideration to three of the reliability
factors we identified in Torres: the lack of face-to-face
interaction between the informant and police; the absence of
predictive information in the call; and the fact that the content
of the caller’s tip was available to any observer. Although it is
true that the 911 call here does not present all of the reliability
10
factors, this deficiency does not preclude a finding of
reasonable suspicion because, as we have explained, “a tip
need not bear all of the indicia—or even any particular
indicium—to supply reasonable suspicion.” Torres, 534 F.3d
at 213. Accordingly, the District Court did not err when it
concluded that the tip was sufficiently reliable because it met
two of the factors: the informant “recently witnessed the
alleged criminal activity,” McCants, 2016 WL 4705452, at *5
(quoting Brown, 448 F.3d at 249–50), and can be “held
responsible if her allegations turn out to be fabricated,” id. at
*6 (quoting Brown, 448 F.3d at 249).
McCants next argues that “[n]o reasonable officer
would have stopped and frisked” him based on an allegation of
ongoing domestic violence when Fulton, the putative victim,
showed no signs of injury. McCants Br. 30. This argument too
is contrary to the Supreme Court’s decision in Navarette,
where the officers followed Navarette’s car for five minutes
without noticing any sign of drunk driving. The absence of
corroborative evidence, the Court held, did not negate the
reasonable suspicion created by the 911 call. Navarette, 572
U.S. at 403–04. In the Court’s opinion, “[o]nce reasonable
suspicion of drunk driving arises, ‘[t]he reasonableness of the
officer’s decision to stop a suspect does not turn on the
availability of less intrusive investigatory techniques.’” Id. at
404 (quoting United States v. Sokolow, 490 U.S. 1, 11 (1989)).
In considering the officers’ reasonable inferences about
Fulton’s demeanor, we note that we have given “considerable
deference to police officers’ determinations of reasonable
suspicion given their own experience and specialized training
to make inferences from and deductions about the cumulative
information available to them that might well elude an
untrained person.” United States v. Graves, 877 F.3d 494, 499
11
(3d Cir. 2017) (internal quotation marks omitted) (quoting
United States v. Brown, 765 F.3d 278, 290 (3d Cir. 2014)), cert.
denied, 139 S. Ct. 159 (2018). And as the District Court noted,
the Seventh Circuit addressed the circumstances common to
domestic violence calls while upholding a Terry stop under
facts similar to those presented in this appeal. See United States
v. Wooden, 551 F.3d 647 (7th Cir. 2008).
In Wooden, the police responded to an anonymous
report that a tall, black male wearing a black jacket and blue
jeans was arguing with his girlfriend and had drawn a gun at a
specific location. Id. at 648. The police conducted a pat-down
even though the couple was chatting amicably when the
officers arrived. Id. at 648, 650. In upholding the stop, the
Seventh Circuit recognized that the report implied the need for
a hasty response. Id. at 650. The court observed, along with
other factors supporting reasonable suspicion, that “domestic
violence comes and goes” and there is a “risk that an armed
man may threaten the woman with him” with future violence
if she does not remain calm when police arrive. Id.
McCants’s argument regarding Fulton’s demeanor does
not give proper weight to law enforcement officers’
experiences and training regarding domestic violence. He
contends that while it was “plausible that the suspect car in
Navarette was observed driving normally after running
someone off the road,” no officer could have reasonable
suspicion of ongoing domestic violence after approaching
Fulton, who was composed and unscathed. McCants Br. 32.
This comparison to Navarette is unpersuasive: considering
officers’ experiences, it might be less plausible that a drunk-
driving suspect could drive normally for five minutes than that
Fulton might appear calm and uninjured during her interaction
with the police. See Wooden, 551 F.3d at 650. For these
12
reasons, the District Court did not err in deferring to the
officers’ reasonable inferences regarding Fulton’s demeanor in
light of the 911 call.
In sum, viewing all the circumstances, the anonymous
tip bore sufficient indicia of reliability and provided the
officers with reasonable suspicion that justified the Terry stop.
The caller used the 911 system to report an eyewitness account
of domestic violence and provided the officers with a detailed
description of the suspect and location, both of which were
quickly confirmed by the police. Accordingly, we hold that the
District Court did not err in denying McCants’s motion to
suppress the evidence collected during the Terry stop.
V
We turn next to the sentence imposed upon McCants.
The District Court agreed with the Probation Office that
McCants is a career offender because two of his prior
convictions for second-degree robbery in New Jersey qualify
as crimes of violence under the Sentencing Guidelines. The
Guidelines define a “crime of violence” as any felony offense
under state or federal law that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another [the “elements” clause], or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use or
unlawful possession of a firearm described in 26
U.S.C. § 5845(a) or explosive material as
13
defined in 18 U.S.C. § 841(c) [the “enumerated
offense” clause].
Guidelines § 4B1.2(a).
A
We use the categorical approach to determine whether
a prior conviction is a predicate offense for a crime-of-violence
sentencing enhancement. United States v. Ramos, 892 F.3d
599, 606 (3d Cir. 2018). In doing so, we “compare the elements
of the statute under which the defendant was convicted to the
[G]uidelines’ definition of crime of violence.” Id. (quoting
United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018)).
McCants’s designation as a career offender was based
on two convictions under N.J. STAT. ANN. § 2C:15-1, which
provides:
a. Robbery defined. A person is guilty of robbery
if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon
another; or
(2) Threatens another with or purposely puts him
in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit
any crime of the first or second degree.
....
b. Grading. Robbery is a crime of the second
degree, except that it is a crime of the first degree
14
if in the course of committing the theft the actor
attempts to kill anyone, or purposely inflicts or
attempts to inflict serious bodily injury, or is
armed with, or uses or threatens the immediate
use of a deadly weapon.
N.J. STAT. ANN. § 2C:15-1.
We can look beyond the elements of the statute for this
comparison only if it is “divisible” and lists “elements in the
alternative, and thereby define[s] multiple crimes.” Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). The statute is
phrased disjunctively, using “or” to offset subsections (a)(1)
through (a)(3). Such a statute is divisible if it lists “elements”
of the offense and not “means” of committing that offense. Id.
at 2248. “‘Elements’ are the ‘constituent parts’ of a crime’s
legal definition—the things the ‘prosecution must prove to
sustain a conviction.’” Id. (quoting Elements of Crime,
BLACK’S LAW DICTIONARY (10th ed. 2014)). “At a trial, they
are what the jury must find beyond a reasonable doubt to
convict the defendant, and at a plea hearing, they are what the
defendant necessarily admits when he pleads guilty.” Id.
(citation omitted). “Means,” on the other hand, are “various
factual ways of committing” a single element. Id. at 2249.
McCants insists the New Jersey robbery statute is
indivisible because the alternatives in subsections (a)(1)–(3)
are means, rather than elements. He contends that under
Mathis, alternatively-phrased statutes contain elements only
when each subsection carries different punishments, which is
not true of the New Jersey robbery statute. We disagree. In
Mathis, the Supreme Court explained that “the statute on its
face may resolve the issue” of characterizing alternatives. Id.
at 2256. In doing so, the Court used differences in punishment
15
as an example of a clear statutory clue, not as the only
permissible textual analysis. See id.
We agree with the Government that the New Jersey
robbery statute sets out alternative elements for sustaining a
conviction rather than the means of committing the offense.
Crimes comprise elements; means illustrate ways of satisfying
individual elements. If the subsections of § 2C:15-1 were
means, they would list “diverse means of satisfying a single
element” of robbery. Id. at 2249 (emphasis added). But the
statute does not identify an individual element of which
subsections (a)(1)-(3) are mere examples—it states no
overarching genus of which they are species. Instead, it lists in
the disjunctive three separately enumerated, alternative
elements of robbery.
By contrast, in Mathis, the burglary statute defined
burglary to require “enter[ing] an occupied structure,” IOWA
CODE § 713.1, and gave as examples of an occupied structure
“any building, structure, [or] land, water, or air vehicle,” id.
§ 702.12. Thus, the element (the genus) for burglary was an
occupied structure and the means (the species) were any
building, structure, or land, water, or air vehicle. Here, the
alternative elements for robbery are (a)(1)-(3) and the means
are the various types of force, threats, and crimes that could
satisfy those subsections. Structurally, § 2C:15-1 puts
subsections (a)(1)-(3) on the level of elements, not means.
Subsections (a)(1)–(3) are elements because each
requires different proof beyond a reasonable doubt to sustain a
second-degree robbery conviction. Under (a)(1), the
prosecutor must prove that the defendant inflicts injury or uses
force upon another person. However, the defendant need only
threaten or place another person in fear of immediate bodily
16
injury under (a)(2), or threaten to commit another first- or
second-degree crime under (a)(3).
Our conclusion would be different if McCants could
show “that a jury” in New Jersey “need not make any specific
findings (or a defendant admissions) on” which of these
subsections a defendant violated. Mathis, 136 S. Ct. at 2249. If
“[a] jury could convict even if some jurors conclude[d] that the
defendant [violated (a)(1)] while others conclude[d] that he
[violated (a)(2)],” then the subsections would be means, not
elements. Id. (internal quotation marks omitted). Because
McCants makes no such showing, we rely on the phrasing and
structure of § 2C:15-1 to hold that subsections (a)(1)-(3) list
elements, not means.
This analysis parallels our decision in United States v.
Blair, 734 F.3d 218 (3d Cir. 2013), where we held that
Pennsylvania’s similar robbery statute was divisible because of
its “clearly laid out alternative elements.” Id. at 225. McCants
argues that our reasoning in Blair has been abrogated by
Mathis. But this argument is a nonstarter because earlier this
year we reaffirmed that the Pennsylvania robbery statute is
divisible. United States v. Peppers, 899 F.3d 211, 232 (3d Cir.
2018) (citing Mathis, 136 S. Ct. at 2256; Blair, 734 F.3d at
225).2 Because N.J. STAT. ANN. § 2C:15-1 lays out alternative
2
We held that this Pennsylvania robbery statute, which
was alternatively-phrased, is divisible:
(1) A person is guilty of robbery if, in the course
of committing a theft, he:
(i) inflicts serious bodily injury upon another;
17
(ii) threatens another with or intentionally puts
him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit
any felony of the first or second degree;
(iv) inflicts bodily injury upon another or
threatens another with or intentionally puts him
in fear of immediate bodily injury; or
(v) physically takes or removes property from
the person of another by force however slight.
Peppers, 899 F.3d at 231 (quoting 18 PA. CONS. STAT.
§ 3701(a) (June 24, 1976 to May 16, 2010)). Unlike the New
Jersey statute, a few subsections of the Pennsylvania statute
carried different penalties. Robbery under subsection (a)(1)(iv)
was a second-degree felony, while subsection (a)(1)(v) was a
third-degree felony. Otherwise, robberies under the other
subsections were first-degree felonies. Id.
In Ramos, we explained that a similarly-structured
Pennsylvania assault statute is divisible two ways. 892 F.3d at
606. First, the statute “proscribes two alternative degrees of
aggravated assault, which are subject to different maximum
sentences.” Id. at 609. Second, we found “the statute is further
divisible into four, alternative second-degree aggravated
assault offenses” because the statute uses disjunctive language
to list alternative elements—rather than alternative factual
means for committing the offense—in each subsection. Id.
Accordingly, disjunctive language setting out elements that
must be proved beyond a reasonable doubt can independently
show the statute is divisible on its face.
18
elements upon which prosecutors can sustain a second-degree
robbery conviction, we hold that the statute is divisible.
B
Having determined that the relevant statute is divisible,
we must ascertain whether McCants’s New Jersey robbery
convictions were predicate offenses that render him a career
offender. For divisible statutes, we use the modified
categorical approach to decide whether the defendant was
convicted of a qualifying offense under the Guidelines.
Shepard v. United States, 544 U.S. 13, 19–20, 26 (2005). This
gives us recourse to the “Shepard documents”—which include
the charging document, guilty plea allocution, jury
instructions, and judgment of conviction—to determine the
subsection upon which the conviction was based. United States
v. Brown, 765 F.3d 185, 189–90 (3d Cir. 2014).
Although the charging documents do not state explicitly
which subsection of the statute McCants was convicted under,
they do indicate that McCants was charged with violent
crimes.3 And a review of McCants’s plea colloquy leads
necessarily to the conclusion that he pleaded guilty to violating
subsection (a)(2) of the New Jersey robbery statute. Therein,
McCants acknowledged using force in committing both
robberies. Regarding the first robbery offense on December 13,
2003, the court asked McCants: “On that day did you attempt
or succeed by the use of threat of force, in taking some items
from an individual in the City of Newark?” App. 266. He
3
The first robbery indictment charges that McCants
used or threatened the use of what the victim perceived as a
deadly weapon. The second indictment charges that he
threatened the use of a deadly weapon.
19
responded, “Yeah.” App. 267. Regarding the second robbery
offense on April 28, 2004, the court asked McCants: “And on
that occasion did you take or attempt to take from an individual
by the threat of force some items?” Id. He again responded,
“Yes.” Id. We agree with the Government that McCants’s
admissions that he threatened or attempted to threaten another
with force is evidence of guilt under subsection (a)(2), which
requires that a defendant “[t]hreaten[] another with or
purposely put[] him in fear of immediate bodily injury.”
Although McCants concedes that the colloquy shows he
did not plead guilty under subsection (a)(1), which requires the
use of force, he makes two semantic arguments that his
admissions do not fall under subsection (a)(2). First, he
contends the colloquy does not address injury or fear, which he
believes are required by the statute. Second, he argues his
admissions regarding force do not equate to threats of
immediate bodily injury. Taken together, he claims the
colloquy allows for the possibility that he was convicted under
subsection (a)(3), which does not require violent force.
We disagree that McCants’s colloquy shows he could
have been convicted under subsection (a)(3). First, his
semantic arguments are inconsistent with the plea colloquy.
His admissions of attempting or successfully using threat of
force to take items from individuals most closely match
subsection (a)(2). Second, McCants points to nothing in the
colloquy permitting even the inference that he pleaded guilty
under subsection (a)(3). Had McCants pleaded guilty to
subsection (a)(3), he would have needed to admit that he
committed or threatened to commit another crime. Yet his plea
colloquy makes reference to neither. Because he could not
have pleaded guilty to subsection (a)(3) and McCants concedes
he was not convicted under subsection (a)(1), the only logical
20
choice is subsection (a)(2). Thus, we have no reason to
overturn the District Court’s finding that the natural reading of
the plea colloquy is that McCants’s two prior robbery
convictions fall under N.J. STAT. ANN. § 2C:15-1(a)(2).
C
Finally, we must decide whether McCants’s convictions
under subsection (a)(2) are predicate offenses under either the
“elements” clause or the “enumerated offense” clause of
§ 4B1.2(a) of the Guidelines. In our view, they satisfy both.
Under the elements clause (§ 4B1.2(a)(1)), a conviction
qualifies if it “has as an element the use, attempted use, or
threatened use of physical force against the person of another.”
We have explained that the “use of physical force . . . involves
the intentional employment of something capable of causing
physical pain or injury to another person, regardless of whether
the perpetrator struck the victim’s body.” Chapman, 866 F.3d
at 133 (internal quotation marks omitted). Subsection (a)(2) of
the robbery statute requires that the defendant “[t]hreaten[]
another with or purposely put[] him in fear of immediate bodily
injury.” N.J. STAT. ANN. § 2C:15-1(a)(2). In New Jersey,
“bodily injury” is defined as “physical pain, illness or any
impairment of physical condition.” Id. § 2C:11-1(a). Under
both the Guidelines and New Jersey definitions, the defendant
must place another in fear of physical pain or injury. Because
§ 4B1.2(a)(1) does not mandate physical contact, New Jersey’s
definition of “bodily injury” falls within the Guidelines’
definition of “crime of violence.” Accordingly, we hold that
McCants’s conviction under subsection (a)(2) qualifies as a
crime of violence under the elements clause of § 4B1.2(a)(1)
of the Guidelines.
21
We reach the same result with regard to the enumerated
offense clause (§ 4B1.2(a)(2)), which lists “robbery” as a crime
of violence. When the Guidelines specifically list an offense,
we “compare the elements of the crime of conviction to the
generic form of the offense as defined by the States, learned
treatises, and the Model Penal Code.” United States v.
Marrero, 677 F.3d 155, 165 (3d Cir. 2012) (quoting United
States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011)),
vacated on other grounds, 570 U.S. 929 (2013). The
defendant’s prior conviction qualifies as a crime of violence if
“the statutory definition of the prior conviction ‘substantially
corresponds’ to the generic definition of the offense.” Id.
(quoting Taylor v. United States, 495 U.S. 575, 602 (1990)).
McCants and the Government agree that “the generic
definition of robbery is . . . the taking of property from another
person or from the immediate presence of another person by
force or by intimidation.” App. 199. We held in Graves that
“generic robbery requires no more than de minimis force” to
meet this definition. 877 F.3d at 503. In evaluating whether
McCants’s robbery convictions qualify as crimes of violence
under the enumerated offense clause, we must determine
whether the New Jersey statute is broader than the generic
offense.
Subsection (a)(2) requires that the defendant
“[t]hreaten[] another with or purposely put[] him in fear of
immediate bodily injury.” N.J. STAT. ANN. § 2C:15-1(a)(2).
We agree with the Government that subsection (a)(2) falls
within the definition of generic robbery because the statute
requires the threat of bodily injury, which involves more
force—and is therefore categorically narrower—than de
minimis force, Graves, 877 F.3d at 504. Accordingly, we hold
that McCants’s convictions under subsection (a)(2) qualify as
22
crimes of violence under the enumerated offense clause of
§ 4B1.2(a)(2). Therefore, the District Court rightly designated
McCants a career offender because his two prior convictions
for second-degree robbery in New Jersey qualified as crimes
of violence under the Guidelines.
* * *
The District Court did not err in denying McCants’s
motion to suppress or in imposing his sentence. We will affirm
the judgment of conviction and sentence.
23 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1919963/ | 91 B.R. 725 (1988)
In re Robert E. JONES, Debtor.
Robert E. JONES, Plaintiff,
v.
PROGRESSIVE-HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant.
Bankruptcy No. 87-2005, Adv. No. 87-0411.
United States Bankruptcy Court, W.D. Pennsylvania.
October 21, 1988.
*726 Walter A. Koegler, Pittsburgh, Pa., for defendant.
Catherine T. Martin, Neighborhood Legal Services Ass'n, Pittsburgh, Pa., for plaintiff.
Martin Sheinman, Pittsburgh, Pa., trustee.
Stephen I. Goldring, Asst. U.S. Trustee, Pittsburgh, Pa.
MEMORANDUM OPINION
BERNARD MARKOVITZ, Bankruptcy Judge.
Before the Court are Plaintiff's Motion for Partial Summary Judgment and Defendant's Motion for Summary Judgment on Plaintiff's Complaint, which alleges violations of Pennsylvania's Mortgage Foreclosure statute, 41 P.S. (Purdon's) § 404, Pennsylvania's Unfair Trade Practices statute 73 P.S. (Purdon's) § 201-1 et seq., and the Truth In Lending Act, 15 U.S.C.A. § 1601 et seq.
A hearing on the Summary Judgment motions was held, and the parties have submitted briefs. Based upon same and this Court's further analysis, we find the grant of Summary Judgment to be appropriate and will enter same in Defendant's favor.
FACTS
Debtor and his wife applied for a mortgage loan from Defendant in November of 1968. Nine (9) months later, on August 8, 1969, Debtor and Defendant executed the mortgage loan documents. Debtor did not receive a written financial disclosure statement, advising him of the repayment arrangements and interest rates.
In 1982 Debtor began a pattern of default and partial payments, in response to Defendant's pursuit of foreclosure. Defendant obtained an in rem judgment in mortgage foreclosure in June of 1985. Pursuant to the Pennsylvania Rules of Civil Procedure, Defendant quantified the sum due and owing to be $4,788.57, including late charges and attorney fees. Debtor's most recent payment occurred in December of 1986, at which time he tendered $600.00 to Defendant. In return for said payment Defendant stayed execution proceedings. However, Debtor's default recurred in January of 1987, and no payments of any kind have been made since that date. Upon this final default Defendant filed a Praecipe to Re-Issue the Writ of Execution on its earlier judgment and proceeded to set the property for Sheriff's Sale on August 3, 1987. Said sale was automatically stayed by Debtor's bankruptcy filing on July 31, 1987.
Defendant filed a Motion for Relief from the Automatic Stay on October 13, 1987. At the hearing on said Motion, on November *727 10, 1987, the Court denied same, based upon Debtor's offer to begin monthly adequate protection payments of $96.00, until said debt was paid in full. Despite Debtor's assurance, he made none of the monthly payments. On April 11, 1988, Defendant filed a second Motion for Relief from the Automatic Stay. On May 10, 1988 this Court granted said Motion. Debtor succeeded in forestalling another scheduled Sheriff's Sale, by convincing the state court to halt its actions pending resolution of this Adversary action.
ANALYSIS
Debtor has filed the instant adversary action based upon alleged violations of three (3) different statutory provisions, to-wit:
(1) Debtor alleges that Defendant's Praecipe to Re-Issue the Writ of Execution was accomplished in violation of the Pennsylvania mortgage foreclosure laws;
(2) Debtor contends that said violation caused the total sum due and owing to Defendant to increase substantially, as a result of additional court costs and attorney fees, in violation of the Pennsylvania Unfair Trade Practices Act; and
(3) Debtor asserts that Defendant's failure to provide Debtor with a written financial disclosure statement, prior to consummation of the loan, constitutes a violation of the Truth In Lending Act.
We will address each issue seriatim.
Pursuant to Pennsylvania statutory law, debtor may cure his default on a residential mortgage at any time up to one (1) hour before sheriff sale. 41 P.S. (Purdon's) § 404(a). Section 404(b) delineates the following items which must be satisfied in order to cure the default:
(1) Debtor must pay all delinquent principal and interest, to bring the loan to a current status;
(2) Debtor must perform all other standard obligations, such as providing for insurance on the premises;
(3) Debtor must pay the foreclosure costs and attorney's fees associated with the proceeding as documented by the mortgage lender in writing; and
(4) Debtor must pay any late charges provided for in the original loan documents.
Such a cure restores the mortgage to a current status and puts the Debtor in the same position as if the default had not occurred. § 404(c). The effect of such a reinstatement requires the creditor to initiate a new foreclosure action if default occurs again.
Debtor contends that pursuant to Defendant's admission in its answer, a cure was accomplished in December 1986 when payment of $600.00 was tendered to Defendant and Defendant stayed the execution sale. Debtor claims that pursuant to § 404(c), the current status was reinstated, and that Defendant's later attempt to proceed against a new default, based upon a reissued writ of execution, was procedurally flawed.
Defendant challenges Debtor's argument, asserting that the admission filed by prior counsel was inappropriate and incorrect, and that "cure" cannot be admitted or denied as it is a legal conclusion. Based upon same, Defendant orally moved to amend the answer to so state the admitted fact that $600.00 was tendered and accepted, and that said sum was not sufficient to cure the default.
Generally, allowance of a motion to amend is within the sound discretion of the Court and should be liberally granted. Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3rd Cir.1984); Cornell & Co., Inc. v. OSHA Commission, 573 F.2d 820 (3rd Cir.1978). Various actions or inactions by the Movant can operate to reduce the liberal grant, such as delay and undue prejudice to the opposing party. Delay, in and of itself, is an insufficient ground to deny an amendment. Howze, supra; Cornell, supra; Deakyne v. Commissioners of Lewes, 416 F.2d 290 (3rd Cir.1969). Delay is not an appropriate ground in the instant case. Given that Debtor himself *728 was given an opportunity to amend to add a completely new cause of action, on a date previously set for trial, we would be hard pressed to now accept an argument based upon Defendant's delay. Clearly if Debtor can amend on the date set for trial and add the new cause of action, then Defendant can amend at the summary judgment stage to correct an incorrect statement of law, and correct a statement of fact.
Prejudice to the non-moving party is the touchstone for denial of an amendment. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971) reh. den. 401 U.S. 1015, 91 S. Ct. 1247, 28 L. Ed. 2d 552; Howze, supra; Cornell, supra. Debtor has suffered no prejudice in this case. The actual sum paid by Debtor in December of 1986 has been known by both parties for many months. Both parties have been able to measure said payment against the standard for "cure" as it relates to Pennsylvania's mortgage foreclosure law. Recognition that the payment does not constitute a cure may result in Debtor's loss or abandonment of this cause of action, but such loss does not constitute prejudice.
The Supreme Court has interpreted the Federal Rules of Civil Procedure as having rejected the "chess game" approach to pleading, wherein ". . . one misstep by counsel may be decisive to the outcome." Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957), quoted in Kiser v. General Electric Corp., 831 F.2d 423, 427 (3rd Cir.1987). Rather, the purpose of pleading is ". . . to facilitate a proper decision on the merits." Id. As the Third Circuit stated in Kiser, supra:
. . . it is not only within the power, but is a duty, of a federal court to consider on the merits a proposed amendment of a defective allegation once the court's attention is called to the defect.
In the case at bar, Debtor tendered a payment of $600.00. We can discern from the admitted facts that as of June 1985 Debtor was in default in the sum of $4,788.57. Said sum does not include any continuing default from June 1985 through December 1986, nor does it include any costs related to execution and sale. It is patently clear that no "cure" took place in December of 1986, as $600.00 was not sufficient to bring the mortgage current, let alone pay any court costs and/or fees incurred. If Debtor did not cure the default, then the mortgage was not returned to current status. As the loan remained in default, it was not necessary for Defendant to initiate new foreclosure proceedings. Debtor offered no proof of accord and satisfaction; this was merely a sum paid to forestall mortgage foreclosure. While this Court does not see Defendant's actions as the best method to pursue its remedy, we do not determine Defendant's procedure in re-issuing the Writ of Execution to be inappropriate or illegal.
Debtor also raised a cause of action pursuant to Pennsylvania Unfair Trade Practices law, 73 P.S. (Purdon's) § 201-1 et seq., specifically § 201-3, which states in pertinent part:
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce as defined by [section 201-2] of this act . . . [is] hereby declared unlawful.
Debtor asserts that Defendant's continued pursuit of execution on its 1985 foreclosure judgment and subsequent charges for additional costs and attorney fees were deceptive acts or practices. Since we have already determined that Defendant's actions were warranted, this action is fatally flawed.
Debtor's final action concerns the Truth In Lending Act, 15 U.S.C.A. § 1601 et seq. and Part 226 of Title 12 of the Code of Federal Regulations commonly known as "Regulation Z". In particular, Debtor asserts that Defendant was obligated to provide him with a written financial disclosure statement prior to the time the loan was consummated. Debtor asserts consummation occurred on August 8, 1969 at the closing of the loan.
Defendant has raised two (2) objections: first, Defendant claims that the loan was "consummated" in November of 1968, when Debtor submitted his loan application. Because Regulation Z did not exist *729 until July 1, 1969, Defendant contends that such disclosure was not required in this case. Defendant also contends that Debtor's cause of action is time-barred by the one-year statute of limitations provided in the Truth In Lending Act. Debtor countered that this action is in the nature of recoupment, and as such, is not affected by the statute of limitations.
The disclosure requirements of Regulation Z have been in effect since July 1, 1969. See Hoffman v. Charnita, Inc., 58 F.R.D. 86 (M.D.Pa.1973); Katz v. Carte Blanche Corp., 52 F.R.D. 510 (W.D.Pa. 1971); 12 C.F.R. § 226.8 (repealed October 1, 1982). Said disclosure was and is to be in writing. 12 C.F.R. § 226.8 and § 226.6(a) (repealed October 1, 1982). See also, 12 C.F.R. § 226.17 (effective October 1, 1982).
While the parties agree that disclosure must occur prior to consummation, they disagree as to when consummation of the present loan occurred. Defendant asserts that the parties consummated the loan on the date of initial application in November of 1968, prior to the effective date of the regulation. Defendant contends therefore, that it was not required to make any disclosure whatsoever. Debtor contends that consummation occurred on August 8, 1969, when the loan closing was held. Under Debtor's interpretation, disclosure would have been required.
There is very little case law directly discussing consummation. Our District has previously held that disclosure just prior to closing a loan is adequate under the Act. Stavrides v. Mellon National Bank & Trust Co., 353 F. Supp. 1072 (W.D.Pa. 1973), aff'd 487 F.2d 953 (3rd Cir.1973). By implication therefore, closing of a loan is a form of consummation. Having so stated, it appears that disclosure could occur at any time prior to the closing, and that a written financial disclosure statement was in order in this case.
However, procedural difficulties will bar any recovery by the Debtor on this cause of action. By its very terms, the Truth In Lending Act contains a one-year statute of limitations upon all affirmative actions which rely on its provisions for relief. This limitation does not apply to defensive measures such as recoupment. 15 U.S.C.A. § 1640(e). See also, Household Consumer Discount Company v. Vespaziani, 490 Pa.Super. 209, 415 A.2d 689 (1980). Defendant has asserted this statute of limitations defense and argues that Debtor's failure to raise this issue as a defense in the mortgage foreclosure litigation should estop Debtor from further pursuit of this action. The law in Pennsylvania does not permit a recoupment defense to an in rem foreclosure action:
. . . a person can assert a claim under the [Truth In Lending] Act only in an action for a money judgment either as a counterclaim to an action to collect money owed by the consumer, or in an original claim brought by the consumer. Therefore, a counterclaim for a setoff under the Act can only be asserted in an action which contemplates a personal judgment.
An action in mortgage foreclosure is strictly an in rem proceeding, . . . not a judgment for money damages . . . Therefore, a setoff for an alleged violation of the Truth In Lending Act cannot be asserted as a counterclaim in a mortgage foreclosure action.
New York Guardian Mortgage Corporation v. Dietzel, 362 Pa.Super. 426, 524 A.2d 951 (1987). (Emphasis added).
Debtor could not pursue this action defensively in the mortgage foreclosure proceeding; he similarly cannot pursue this action affirmatively by Complaint, as the limitations period ran eighteen (18) years ago. Although Debtor attempts to classify his request for relief as recoupment, that is not possible.
Defendant's claim against this bankruptcy estate arises out of the same transaction or occurrence as the state court mortgage foreclosure judgment. The filing of the bankruptcy does not convert the Defendant's interest from in rem to in personam. Recoupment in this in rem proceeding is not possible. This Court cannot reduce Defendant's interest in this property by *730 allowing Debtor to withhold a bedroom or the kitchen. As this remains an in rem proceeding, recoupment cannot be asserted; and, as the statute of limitations has run on affirmative actions, Debtor has no avenue remaining through which to pursue the Truth In Lending violation.
An appropriate Order will be issued. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918361/ | 764 A.2d 254 (2000)
In re Donald G. RICHARDS, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
No. 99-BG-1073.
District of Columbia Court of Appeals.
Submitted November 14, 2000.
Decided December 28, 2000.
Before WAGNER, Chief Judge, SCHWELB, Associate Judge, and NEWMAN, Senior Judge.
*255 PER CURIAM:
Respondent Donald G. Richards is a member of the bar of this court and was formerly a member of the Virginia State Bar. During a 1998 investigation of allegations against him by Virginia disciplinary authorities, respondent admitted that he misappropriated money in his attorney trust account over a nine-year period. Respondent's misconduct included the use of client funds to pay office and personal expenses.
In the face of pending disciplinary action in Virginia, respondent petitioned the Virginia State Bar Disciplinary Board ("the Virginia Board") for leave to surrender his license to practice law in that jurisdiction. On December 3, 1998, the Virginia Board accepted respondent's resignation and revoked his license to practice law. Subsequently, a receiver who had been appointed to oversee the closing of respondent's practice found, in a preliminary report, that respondent's trust account was deficient in the amount of approximately $297,228.00. The receiver further found that respondent had misappropriated funds from at least twelve clients and that respondent's records "revealed a pattern of mishandling of client funds."
Bar Counsel filed with this court a certified copy of the order revoking respondent's license to practice law in Virginia. This court temporarily suspended respondent pursuant to D.C.Bar R. XI, § 11(d) and referred the matter to the Board on Professional Responsibility ("the Board").
The Board concluded that substantially different discipline is warranted in this jurisdiction and recommended that respondent be disbarred. Bar Counsel has informed the court that she takes no exception to the Board's recommendation. Respondent did not participate in the proceedings before the Board, and he has not filed any opposition to the Board's recommendation.
Respondent's failure to file any exceptions to the Board's recommendation constitutes an effective acknowledgment that reciprocal discipline is warranted and that the Board's proposed sanction is appropriate. In re Goldsborough, 654 A.2d 1285, 1287-88 (D.C.1995); see also D.C.Bar R. XI, § 11(f). The record supports the Board's conclusion that respondent intentionally misappropriated client funds.[1] We held in In re Addams, 579 A.2d 190, 198-99 (D.C.1990) (en banc), that disbarment is the appropriate sanction in nearly all cases of intentional misappropriation. We are aware of no reason to make an exception in respondent's case. Accordingly,
Donald G. Richards is disbarred from the practice of law in the District of Columbia. We note that respondent has not filed the affidavit required by D.C.Bar R. XI, § 14(g). Respondent's attention is directed to the requirements of that rule and their effect on his eligibility for reinstatement. See D.C.Bar R. XI, § 16(c).
So ordered.
NOTES
[1] The rule pursuant to which the Virginia Board accepted respondent's resignation provides that a resignation tendered while disciplinary charges are pending is deemed an admission that the allegations of misconduct are true. VA.SUP.CT.R.PT. 6, § IV, ¶ 13(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918376/ | 764 A.2d 669 (2000)
William M. BELITSKUS, Appellant,
v.
HAMLIN TOWNSHIP, a Pennsylvania Township, and William Kilmer, Richard Keesler, Thomas Kreiner, Eric Ross, Esq., Woods and Baker, in their official capacity.
Commonwealth Court of Pennsylvania.
Submitted on Briefs May 12, 2000.
Decided December 18, 2000.
*670 William M. Belitskus, appellant, pro se.
G. Jay Habas, Erie, for appellee.
Before PELLEGRINI and FLAHERTY, Judges, and McCLOSKEY, Senior Judge.
FLAHERTY, Judge.
William M. Belitskus, pro se, appeals from an order of the Court of Common Pleas of McKean County (trial court), which sustained the preliminary objections filed by the Hamlin Township Supervisors (Supervisors) in response to a complaint filed by Belitskus, wherein he alleged that the Township took official action in violation of the Sunshine Act, 65 Pa.C.S. §§ 701-716. We affirm.
In his complaint, Belitskus maintains that the Supervisors violated the Sunshine Act by taking official action outside of an open meeting by sending a letter on June 4, 1999, to the McKean County Commissioners recommending that they reappoint Brain Sees to the McKean County Solid Waste Authority. Belitskus also maintains that the Supervisors violated the Sunshine Act by taking official action outside of an open meeting when it planned a meeting with Hazel Hurst Water Association and the McKean County Redevelopment Authority which occurred on July 19, 1999. In response to the complaint, Supervisors filed preliminary objections which the trial court granted finding that the events complained of did not amount to official action. For the reasons that follow, we agree with the trial court that the actions taken by the Supervisors did not amount to official action as defined by the Sunshine Act.[1]
Initially, Belitskus argues that the Supervisors took official action on agency business by recommending that Sees be reappointed to the McKean County Solid Waste Authority. Before addressing the merits of this argument we must first determine whether Belitskus failed to initiate this action in a timely manner as alleged in Supervisor's preliminary objections because failure to initiate this action within the statutory limitations of 65 Pa.C.S. § 713 would bar jurisdiction by the trial court. Lawrence County v. Brenner, 135 Pa.Cmwlth. 619, 582 A.2d 79 (1990), petition for allowance of appeal denied, 527 Pa. 652, 593 A.2d 423 (1991). In accordance with 65 Pa.C.S. § 713:
A legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which the chapter was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting.
Because Belitskus alleged "improper official activity at a meeting which was not open to the public, he was obligated to bring the action within thirty days of his discovery of the alleged improprieties." *671 Id. at 82.[2] Here, in his complaint, Belitskus references a June 29, 1999 article in the Kane Republican, which stated that the Supervisors sent a letter to the McKean County Solid Waste Authority requesting that Sees be reappointed to the McKean County Solid Waste Authority. (Belitskus complaint at ¶ 14).[3] Because Belitskus discovered the impropriety on June 29, 1999, he had 30 days from that date to file his complaint. Belitskus however did not file his complaint until August 10, 1999, which is beyond the thirty day statutory limitation from the date when he discovered the alleged impropriety. As such, Belitskus' action with respect to the Sees letter of recommendation was not timely and the trial court did not have jurisdiction over this matter.[4]
With respect to the July 19, 1999 meeting between the Supervisors, the Hazel Hurst Water Association and the McKean County Redevelopment Authority, Belitskus maintains that the Supervisors took "official action" in violation of the open meeting requirements of the Sunshine Act and requested a meeting with the Hazel Hurst Water Association, McKean County Redevelopment Authority, Department of Environmental Protection and Pennvest. (Belitskus complaint at ¶ 21, R.R. at 9a.)
In accordance with 65 Pa.C.S. § 704 "[o]fficial action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General Assembly meetings covered)." The relevant terms in this case are defined in 65 Pa. C.S. § 703 of the Act as follows:
"Agency business." The framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action.
"Deliberation." The discussion of agency business held for the purpose of making a decision.
"Official action."
(1) Recommendations made by an agency pursuant to statute, ordinance, or executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an agency.
(4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.
We agree with the trial court that setting up the meeting or attending the meeting did not constitute official action. Although Belitskus emphasizes that the Supervisors in a joint action with the Hazel *672 Hurst Water Association and DEP set up the meeting as is evidenced by a letter dated July 14, 1999 from the McKean County Redevelopment Authority, (Belitskus complaint, ¶ 21, R.R. 9a and Exhibit 7a, R.R. 28a), the letter also confirms that the purpose of the meeting concerned not the Supervisors but the Hazel Hurst Water Association. The letter states that "[t]he meeting on July 19, 1999 was called to bring the re-organized [Hazel Hurst] Water Association up-to-date on the Pennvest financing and the recent audit of the project. The Association, as a whole, wanted a status report of where they stand with the loan closing. The meeting is a private meeting so that the Association officers can discuss the financing with Pennvest and DEP representatives." (R.R. at 28a). Thus, the meeting concerned business of the Hazel Hurst Water Association and not that of the Supervisors. In setting up the meeting and attending the meeting, the Supervisors did not enact any law, policy or regulation, did not create any liability under contract and did not adjudicate any rights, duties or responsibilities.
Furthermore, we do not agree with Belitskus' argument that the trial court judge, in violation of the legislature's intent, erred in too narrowly defining what types of actions constitute "official action." Although official actions must be conducted in open meetings, "the Sunshine Act does not require agency members to inquire, question and learn about agency issues only at an open meeting." Sovich v. Shaughnessy, 705 A.2d 942, 945-946 (Pa.Cmwlth.1998). In Conners v. West Greene School District, 131 Pa.Cmwlth. 95, 569 A.2d 978 (1989), petition for allowance of appeal denied, 525 Pa. 649, 581 A.2d 574 (1990), this court addressed the situation wherein a taxpayer alleged a violation of the Sunshine Act because school board members allegedly privately discussed the adoption of the school district's budget. This court observed that such a meeting did not constitute an executive session as it did not fit within the requirements and also did not constitute an official action. This court reasoned that even though the board members may have discussed the budget, the Sunshine Act "does not prohibit a member from inquiring, questioning and learning about the budget and other school issues only at a public meeting." Id. at 983.
In this case, the Supervisors did not take official action outside of an open meeting and in accordance with the above, the order of the trial court is affirmed.
ORDER
NOW, December 18, 2000, the order of the Court of Common Pleas of McKean County at No. 884 C.D.1999, dated November 10, 1999, is affirmed.
NOTES
[1] When this court reviews a trial court's order sustaining a preliminary objection in the nature of a demurrer, we must determine whether the trial court abused its discretion or committed an error of law. Bologna v. St. Marys Area School Board, 699 A.2d 831 (Pa.Cmwlth.1997). In a challenge to sustaining preliminary objections in the nature of a demurer we are to determine whether on the facts alleged the law states with certainty that no recovery is possible. Thomas v. Township of Cherry, 722 A.2d 1150 (Pa.Cmwlth.1999).
[2] Although Brenner was decided before the new consolidated version of the Sunshine Act took effect on December 14, 1998, the language with respect to when a legal challenge must be commenced remained the same. Specifically, prior to the 1998 version former Section 13 of the Sunshine Act, Act of July 3, 1986, P.L. 388, 65 P.S. § 283 provided:
A legal challenge under this act shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which the act was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year form the date of said meeting.
[3] Belitskus also makes reference to a June 28, 1999 regularly scheduled meeting of the McKean County Commissioners. At that meeting, "supervisor Kilmer, officially representing Hamlin Township, `presented three letters to the commissioners, one each from Hamlin Township, Sergeant Township, and Mt. Jewett Borough, requesting that Brain Sees, a Hamlin Township resident be reappointed to the McKean County Solid Waste Authority.'" (Belitskus complaint at ¶ 14.)
[4] This court may affirm on other grounds where grounds for affirmance exist. Karl Smith Development Co. v. Borough of Aspinwall, 125 Pa.Cmwlth. 687, 558 A.2d 181 (1989), petition for allowance of appeal denied, 525 Pa. 614, 577 A.2d 545 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2722632/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 LINDA QUINTANA and ELIZABETH
3 QUINTANA, as co-trustees of the
4 LOUIS L. QUINTANA and
5 ELIZABETH GRACE QUINTANA
6 REVOCABLE TRUST,
7 Petitioners-Appellees,
8 v. NO. 33,028
9 CHARLENE MONTANO GABALDON,
10 Respondent-Appellant.
11 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
12 Edmund H. Kase III, District Judge
13 Keleher & McLeod, P.A.
14 Thomas C. Bird
15 Albuquerque, NM
16 Briones Business Law Consulting P.C.
17 Thomas R. Briones
18 Albuquerque, NM
19 for Appellees
1 Solomon Brown
2 Albuquerque, NM
3 for Appellant
4 MEMORANDUM OPINION
5 WECHSLER, Judge.
6 {1} Respondent Charlene Montano Gabaldon appeals the district court’s grants of
7 summary judgment quieting title in favor of Petitioners Linda Quintana and Elizabeth
8 Quintana as co-trustees of the Louis L. Quintana and Elizabeth Grace Quintana
9 Revocable Trust. Respondent asserts numerous claims of error on the part of the
10 district court. We affirm.
11 BACKGROUND
12 {2} Louis and Elizabeth Quintana filed a petition to quiet title to multiple parcels
13 of land in Torrance County within the Town of Manzano Land Grant naming assorted
14 defendants. Respondent was the only party to oppose the petition. Respondent
15 claimed better title because she had been awarded “certain tracts” of land in a divorce
16 settlement. Petitioners and Respondent did not agree as to what property was claimed
17 by both parties. Thus, resolution of the quiet title petition as to Respondent required
18 two overlapping determinations. First, on what properties claimed by Petitioners, if
19 any, did Respondent maintain a competing claim. Then, as to any properties with
20 disputed ownership, what was the relative strength of title.
2
1 {3} During the course of discovery, Respondent sought to depose Louis Quintana.
2 Petitioners filed a motion to quash the notice of deposition and for a protective order
3 on grounds that Mr. Quintana suffered from dementia caused by Alzheimer’s disease.
4 Mr. Quintana’s diagnosis was substantiated by letters from his primary care physician
5 and a neurologist. Over Respondent’s opposition, the district court granted
6 Petitioners’ motion.
7 {4} At the deposition of Elizabeth Quintana, it came to light that the properties to
8 which Louis and Elizabeth Quintana petitioned to quiet title had, in fact, been
9 transferred to a trust—the Louis L. Quintana and Elizabeth Grace Quintana Revocable
10 Trust. The attorney for Louis and Elizabeth Quintana subsequently filed a motion to
11 substitute the name of the real party in interest. Over Respondent’s opposition, the
12 district court granted the motion, thus allowing Petitioners to replace Louis and
13 Elizabeth Quintana as the parties in interest.
14 {5} Petitioners and Respondent each hired a land expert to analyze the surveys and
15 chains of title at issue. Both experts agreed that there were two parcels to which there
16 were competing claims. Petitioners eventually determined that they no longer had an
17 ownership interest in one of the parcels. As to the sole remaining parcel for which
18 there were competing claims, both experts agreed that the chain of title of Petitioners
19 was superior.
3
1 {6} Petitioners filed three summary judgment motions. The first requested
2 summary judgment to quiet title on properties unrelated to any claims made by
3 Respondent. The second requested summary judgment on properties that shared a
4 boundary with property claimed by Respondent. The third requested summary
5 judgment on the parcel claimed by both Petitioners and Respondent. The district court
6 granted all three motions.
7 {7} Respondent timely filed an appeal. On appeal, Respondent contends that the
8 district court committed the following errors, among others: (1) finding that
9 Petitioners’ quiet title action against her was not barred by res judicata; (2) denying
10 her motion to disqualify Petitioners’ expert; (3) denying her laches defense; (4)
11 allowing Petitioners to be substituted for the original claimants; (5) granting the
12 protective order preventing her from deposing Louis Quintana; and (6) relying on
13 illegible, inadmissible documents and allowing Petitioners’ expert to do the same. We
14 note that Respondent’s arguments are generally undeveloped, unclear, or both.
15 Although at a disadvantage, we attempt below to fully evaluate her claims of error.
16 RESPONDENT’S RES JUDICATA DEFENSE
17 {8} Respondent claims that her divorce decree awarded her the property in question
18 and argues that res judicata bars this quiet title action. Respondent also argues that
19 three other, mostly unexplained, lawsuits involving Petitioners invoke res judicata.
4
1 {9} “Res judicata precludes a claim when there has been a full and fair opportunity
2 to litigate issues arising out of that claim.” Kirby v. Guardian Life Ins. Co. of Am.,
3 2010-NMSC-014, ¶ 61, 148 N.M. 106, 231 P.3d 87 (italics, internal quotation marks,
4 and citation omitted). “Res judicata bars not only claims that were raised in the prior
5 proceeding, but also claims that could have been raised.” Id. (italics, internal
6 quotation marks, and citation omitted). To successfully assert res judicata, a party
7 must satisfy four requirements: “(1) [t]he parties must be the same, (2) the cause of
8 action must be the same, (3) there must have been a final decision in the first suit, and
9 (4) the first decision must have been on the merits.” Id. (alteration in original)
10 (internal quotation marks and citation omitted). The applicability of res judicata is a
11 legal question that we review de novo. Id.
12 {10} Neither the divorce decree nor the other lawsuits bar the quiet title action
13 because Respondent has not demonstrated that the parties in the prior proceeding were
14 the same. This is the first requirement of a res judicata defense. Although
15 Respondent may be correct that the divorce decree adjudicated rights to land at issue
16 as between her and her former husband, Petitioners were not parties to the divorce
17 proceeding and the rights of Petitioners were not adjudicated. Respondent does not
18 assert that she was a party to the other lawsuits that she argues preclude this quiet title
19 action. Respondent has not demonstrated that res judicata applies in this case.
5
1 DENIAL OF MOTION TO DISQUALIFY EXPERT WITNESS
2 {11} “We review the trial court’s admission of expert testimony for an abuse of
3 discretion.” State v. Torrez, 2009-NMSC-029, ¶ 9, 146 N.M. 331, 210 P.3d 228. But
4 the abuse of discretion standard does “not prevent an appellate court from conducting
5 a meaningful analysis of the admission [of] scientific testimony to ensure that the trial
6 judge’s decision was in accordance with the Rules of Evidence and the evidence in the
7 case.” Id. (alteration in original) (internal quotation marks and citation omitted). In
8 other words, we do not “rubber stamp” the trial court’s decision. Id.
9 {12} “Under Rule 11-702 NMRA, a witness must qualify as an expert in the field for
10 which his or her testimony is offered before such testimony is admissible.” Id. ¶ 15
11 (internal quotation marks and citation omitted). A witness may qualify “based on his
12 or her knowledge, skill, experience, training, or education, but no set criteria can be
13 laid down to test such qualifications.” Id. (internal quotation marks and citation
14 omitted). The use of the disjunctive term “or” in the test for qualifying witnesses
15 affords wide discretion to the trial court. Id.
16 {13} Respondent argues that Petitioners’ expert land survey witness, Timothy Oden,
17 should have been excluded. In her motion to disqualify, Respondent asserted that
18 Oden was not qualified as an expert to testify about the land issues in this case
6
1 because Oden did not have a New Mexico surveyor’s license, adverse actions were
2 taken against him during the time he had such a license, his “area of expertise [was]
3 focused on water rights,” and he proposed to interpret land surveys performed by
4 other surveyors.
5 {14} Oden was not barred from testifying as an expert about the land dispute because
6 he did not have an active New Mexico surveyor’s license. A current license, issued
7 by New Mexico or otherwise, is not dispositive. See Baerwald v. Flores, 1997-
8 NMCA-002, ¶ 9, 122 N.M. 679, 930 P.2d 816. (“An expert witness . . . may be
9 qualified on foundations other than licensure under NMRA 11-702.”).
10 {15} Respondent offered evidence of action taken by the New Mexico Board of
11 Licensure for Professional Engineers and Surveyors against Oden but it is unclear how
12 many actions were taken or what was at issue. Importantly, Respondent offers no
13 authority indicating that the district court was required to exclude Oden from
14 testifying as an expert if there were license violations. Although Oden’s business
15 currently focuses on “[r]unning [his] company, . . . land development
16 matters[,] . . . water rights, acquisitions, transfers, and management[,]” we see little
17 strength in Respondent’s contention that Oden is not qualified to testify as a land
18 expert because his area of expertise is limited to water rights.
7
1 {16} Respondent’s argument that Oden should not be allowed to analyze surveys
2 performed by others is also unpersuasive. Respondent’s argument on this point is
3 somewhat undeveloped, but we construe Respondent to be arguing that because Oden
4 relied on hearsay evidence that would be inadmissible at trial to form his opinion, his
5 opinion should be excluded. Respondent’s cited authority is inapposite. An expert
6 may base an opinion on hearsay. See Coulter v. Stewart, 1982-NMSC-035, ¶ 10,
7 97 N.M. 616, 642 P.2d 602; see also Smith v. Ingersoll-Rand Co., 214 F.3d 1235,
8 1244 (10th Cir. 2000) (“[F]irsthand knowledge is not requisite to the admissibility of
9 an expert opinion.”). We are not persuaded that Oden was not allowed to analyze and
10 offer an opinion based on land surveys made by others.
11 {17} Petitioners offered evidence that Oden possessed a mixture of knowledge, skill,
12 experience, training, and education in land-related matters. Oden was a licensed
13 surveyor in New Mexico for more than twenty years before allowing his New Mexico
14 license to lapse. He performed and recorded more than 3100 land survey plats in
15 Bernalillo, Torrance, and Santa Fe counties. He performed more than 100 survey
16 plats within land grants in Torrance County, including sixty within the Town of
17 Manzano Land Grant. Additionally, Oden has been recognized as an expert witness
18 in the Second and Seventh Judicial Districts. Based on the evidence and arguments,
8
1 the district court did not abuse its discretion in allowing Petitioners’ land expert,
2 Oden, to offer an opinion in this case.
3 RESPONDENT’S LACHES DEFENSE
4 {18} Laches is an equitable defense applicable when a claimant delays in asserting
5 a right and, further, when the claimant’s delay results in prejudice to the opposing
6 party. Garcia v. Garcia, 1991-NMSC-023, ¶ 30, 111 N.M. 581, 808 P.2d 31.
7 “[L]aches is not favored and is applied only in cases where a party is guilty of
8 inexcusable neglect in enforcing his [or her] rights.” Cain v. Cain, 1978-NMSC-014,
9 ¶ 11, 91 N.M. 423, 575 P.2d 607. Because quiet title actions can be used to clear
10 clouds on title that are years old, laches is to be used sparingly in such actions.
11 Burnham v. City of Farmington, 1998-NMCA-056, ¶ 32, 125 N.M. 129, 957 P.2d
12 1163. We review the district court’s denial of Respondent’s laches defense for an
13 abuse of discretion. Id.
14 {19} “For laches to apply, one party must engage in conduct which so alerts the other
15 party that its rights have been negatively affected.” Id. ¶ 33. “With such knowledge
16 or notice, the injured party must then delay in asserting its rights while the other party
17 lacked knowledge or notice that the injured party would assert its rights, to the injury
18 or prejudice of the other party.” Id.
9
1 {20} Respondent contends that other lawsuits put Petitioners on notice that
2 Respondent made “certain Land Grant Claims.” Respondent also contends that
3 Petitioners were put on notice because an individual “leased property from both
4 Petitioner[s] . . . and [Respondent] for a period of 15 years.” But Respondent does not
5 explain how Petitioners were put on notice by the other lawsuits nor does Respondent
6 explain what properties were leased or what activities were conducted on the
7 properties. We cannot evaluate whether Petitioners engaged in delay that amounts to
8 inexcusable neglect in enforcing their rights from Respondent’s undeveloped
9 argument. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M.
10 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a
11 party’s] arguments might be.”). The district court did not abuse its discretion by
12 denying Respondent’s laches defense.
13 SUBSTITUTION OF THE TRUSTEES AS PETITIONERS
14 {21} Respondent argues that the district court committed error by allowing the
15 trustees to substitute for the original petitioners as the real party in interest.
16 Respondent’s argument is unclear. We quote:
17 In order to substitute the Trust as Petitioner the Court had to
18 declare Mr. Louis Quintana civilly dead although he was still physically
19 alive. . . . [Respondent] argues the case should have been dismissed and
20 Guardian appointed by the Court to protect the interest of the disabled
21 Louis Quintana because the Trust automatically became a Testamentary
22 Trust. In addition he and his wife now stood as adversaries before the
10
1 law. Respondent argues further that in spite of the language in the Trust
2 concerning the Law of Perpetuities there was a violation of the Law of
3 Perpetuities, The Common Law Rule against Accumulations and the
4 Law Against Alienation.
5 This argument defies our evaluation. However, we note that Rule 1-017(A) NMRA
6 governs when, as here, an action is by reason of honest mistake not originally
7 prosecuted in the name of the real party in interest. See GCM, Inc. v. Kentucky Cent.
8 Life Ins. Co., 1997-NMSC-052, ¶ 28, 124 N.M. 186, 947 P.2d 143 (stating that under
9 Rule 1-017(A), a district court has “discretion to allow a reasonable time for
10 ratification, joinder, or substitution of parties if an honest mistake resulted in the
11 prosecution of an action by a party other than the real party in interest”). Rule 1-
12 017(A) reflects the principle that cases should be decided on their merits. GCM, Inc.,
13 1997-NMSC-052, ¶ 32. This principle supports an interpretation of Rule 1-017(A)
14 favoring the movant. GCM, Inc., 1997-NMSC-052, ¶ 32. A court’s decision whether
15 to grant a substitution of parties under Rule 1-017(A) is reviewed under an abuse of
16 discretion standard. GCM, Inc., 1997-NMSC-052, ¶ 28.
17 {22} After a review of the arguments and the record before us, we conclude that the
18 district court did not abuse its discretion by allowing Petitioners to substitute for the
19 original parties.
20 THE ORDER OF PROTECTION PREVENTING THE DEPOSITION OF
21 LOUIS QUINTANA
11
1 {23} Respondent contends that the district court committed error when it granted
2 Petitioners’ motion to quash the deposition of Louis Quintana. Respondent argues
3 that Louis Quintana was an indispensable party to this action and, if he was unable to
4 give testimony, the lawsuit should have been dismissed. We review a district court’s
5 decision whether to grant a protective order limiting discovery for an abuse of
6 discretion. See Kerman v. Swafford, 1984-NMCA-030, ¶ 22, 101 N.M. 241, 680 P.2d
7 622.
8 {24} Petitioners’ motion to quash Louis Quintana’s deposition was based on Mr.
9 Quintana’s diagnosis of dementia caused by Alzheimer’s disease, as established by
10 the opinions of Mr. Quintana’s primary care physician and a neurologist. Although
11 Respondent contends that Mr. Quintana was an indispensable party to this action,
12 Respondent does not develop an argument under Rule 1-019(B) NMRA, which
13 governs dismissal of an action due to the absence of an indispensable party to a suit.
14 See Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 39, 132 N.M. 207, 46 P.3d
15 668 (stating that Rule 1-019 governs whether a party is indispensable to a lawsuit and
16 setting out the three-part test to determine whether a party is necessary). Although
17 Respondent contends that “Louis Quintana was the person most knowledgeable about
18 the facts and circumstances of their lawsuit. He was at times the only [p]arty involved
19 in some of the deed transactions[,]” she offers no citation to the record nor any
12
1 explication of why the action should therefore be dismissed. Petitioners offered
2 evidence that Mr. Quintana was not competent to testify. Respondent did not offer an
3 alternative medical evaluation of Mr. Quintana. The district court did not abuse its
4 discretion by granting the motion to quash the deposition of Louis Quintana due to his
5 incompetency.
6 ILLEGIBLE DOCUMENTS
7 {25} Respondent contends that certain of the documents offered by Petitioners as
8 exhibits attached to Petitioners’ summary judgment motions and the documents relied
9 upon by Petitioners’ expert Oden to prepare his report were illegible and inadmissible.
10 It seems that Respondent is making two distinct contentions: that the district court
11 impermissibly relied on documents that were inadmissible to order summary judgment
12 in favor of Petitioners and that Oden impermissibly relied on inadmissible documents
13 in the preparation of his reports. Although Respondent regularly refers in her briefs
14 to problems with “the documents” she points to only two specific documents with
15 problems. Respondent claims that the documents suffer from smudged clerk’s stamps
16 and unexplained long-hand writings, and that a large number are unreadable.
17 {26} As a qualified expert, Oden may rely on inadmissible documents. See Rule 11-
18 703 NMRA (stating that “[i]f experts in the particular field would reasonably rely on
19 those kinds of facts or data in forming an opinion on the subject, they need not be
13
1 admissible for the opinion to be admitted”). Respondent’s argument that the
2 documents relied on by Oden were inadmissible is therefore without force.
3 {27} The district court relied not just on documents that Respondent contends are
4 unclear and inadmissible but also, among other evidence, on the abstract of title and
5 the report or deposition of two experts. One of the two experts was that of
6 Respondent. The experts concur that the Petitioners possess superior title to
7 Respondent to the only lot for which there are competing claims. Finally, we note that
8 many of the documents attached to Petitioners’ motions for summary judgment were
9 part of an abstract of title, which is admissible by statute. NMSA 1978 § 38-7-3
10 (1943). Having reviewed de novo Respondent’s argument that summary judgment
11 was inappropriate because the district court committed error by relying on illegible,
12 inadmissible documents, we decline to reverse the judgment of the court. See City of
13 Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
14 717, 213 P.3d 1146 (stating that we review the appeal of a grant of summary judgment
15 on a question of law de novo).
16 OTHER ARGUMENTS
14
1 {28} Sprinkled within Respondent’s briefs are a number of other contentions and
2 claims of error that are not sufficiently developed or comprehensible for our review.1
3 See Headley, 2005-NMCA-045, ¶ 15 (“We will not review unclear arguments, or
4 guess at what [a party’s] arguments might be.”).
5 CONCLUSION
6 {29} We affirm the district court’s three summary judgment orders.
7 {30} IT IS SO ORDERED.
8 ________________________________
9 JAMES J. WECHSLER, Judge
10 WE CONCUR:
11 ________________________________
12 MICHAEL D. BUSTAMANTE, Judge
13 ________________________________
14 M. MONICA ZAMORA, Judge
1
17 Respondent claims that the district court committed error relating to the
18 affidavit of George Kaiser, co-tenancy as a defense, the adoption of all of Petitioners’
19 requested findings and conclusions, the conduct of the Quintana family, and the
20 “weighing the evidence of an enormous number of Instruments.”
15 | 01-03-2023 | 09-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1577595/ | 35 So. 3d 43 (2010)
Kevin Brian BASS, Appellant,
v.
STATE of Florida, Appellee.
No. 1D09-528.
District Court of Appeal of Florida, First District.
March 31, 2010.
Rehearing Denied May 13, 2010.
*44 Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
ROWE, J.
The appellant, Kevin Brian Bass, appeals his conviction of sexual battery on a child less than 12 years old. The appellant raises two issues on appeal: (I) whether the trial court abused its discretion by not questioning a juror who appeared upset and who made comments indicating that she was upset, and (II) whether the trial court erred by allowing the state to introduce several witnesses who testified regarding out-of-court statements made by the child victim. We affirm as to both issues.
We reject the appellant's assertion that the trial court abused its discretion by not questioning a juror who was temporarily upset after hearing the testimony of the five year-old victim. The record reveals that upon returning from a brief recess following the victim's testimony, the juror "seemed a little teary" and made a comment to the court security officer during the recess indicating that she was upset. When brought to the trial judge's attention, he addressed the jury by stating that he was aware of the difficult subject matter, but as the finders of fact they should not be influenced by feeling angry at or sorry for anyone; additionally, they should not allow prejudice, bias, or sympathy to influence their decision; instead, they should keep an open mind and hear all the evidence. After the jury instructions were read, the juror "cleared up."
During the next break, outside of the presence of the jury, the trial court entertained arguments from both sides regarding the juror. The defense counsel expressed concern that the juror might be sympathetic towards the victim and that she had predetermined her decision prior to the presentation of all the evidence. The trial court declared that it was going to allow the juror to remain on the jury, but it would observe her and would revisit the situation if necessary. The record does not demonstrate that the juror was observed to exhibit any other emotional expressions. The record reflects that the juror subsequently approached the court security officer on her own and told the officer that she was "doing better."
Dealing with the conduct of jurors is left to the sound discretion of the trial court. See Gore v. State, 475 So. 2d 1205, 1209 (Fla.1985); Bauta v. State, 698 So. 2d 860, 861-62 (Fla. 3d DCA 1997). The appellant argues that in this case it was error for the trial court to require the juror to "tough it out," citing Thomas v. State, 748 So. 2d 970 (Fla.1999), for the proposition that "[hostilities ultimately evidenced by crying jurors are hardly indicative of reliable deliberations." Id. at 979. However, the appellant's reliance upon Thomas is misplaced. In Thomas, the supreme court found that under the "extreme prevailing circumstances" of that case, the cumulative nature of the trial judge's actions and comments created a "substantial risk of coercion, or at the very least, constituted undue pressure" upon a lone holdout juror. Id. at 977. The facts in the instant case do not give rise to the "undue pressure" found to be reversible error in Thomas.
*45 As the trial court properly noted, jurors are human beings and, therefore, subject to a range of emotions, especially in difficult cases.[1] Here, the trial court had a first-hand opportunity to view the demeanor of the juror in question. The court made a finding on the record that the juror remained attentive, and although she initially "seemed a little teary eyed" after the victim's testimony, she "cleared up" after the court read the relevant portions of the jury instructions. The record demonstrates that the juror did not continue to display emotions, she did not make any subsequent comments, and she voluntarily informed the court security officer that she was doing better. Given these circumstances we do not find that the trial court abused its discretion by not questioning a juror who appeared upset where the court instructed the jury on sympathy and monitored the juror throughout the trial. See Murray v. State, 356 So. 2d 71, 72 (Fla. 1st DCA 1978) (finding that where juror cried during the polling of jury, it was not an abuse of discretion for trial court to prohibit defense counsel from interviewing juror after trial); Aragon v. State, 853 So. 2d 584, 589 (Fla. 5th DCA 2003) (noting that "juror's statement that she felt unqualified to make a difficult decision in a serious case and that she cried during the polling procedure" did not "form the basis of a reasonable belief that the verdict may be subject to legal challenge"); Williams v. State, 689 So. 2d 393, 398 (Fla. 3d DCA 1997) (citing with approval a New Jersey Supreme Court opinion which held that trial court's failure to examine juror who cried during the victim's testimony did not constitute reversible error).
Under issue II, the appellant argues that while the testimony of several witnesses regarding hearsay statements made by the victim were admissible under section 90.803(23), Florida Statutes, the statements were nevertheless inadmissible under section 90.403, Florida Statutes.[2] After a thorough review of the record, we find that the appellant's argument under issue II was not properly preserved for appellate review. See Tillman v. State, 471 So. 2d 32, 35 (Fla.1985).
Initially, we note that section 90.803(23), Florida Statutes, allows for the introduction of testimony concerning hearsay statements made by a child-victim under the age of 11 regarding the abuse, if the trial court determines the statements are sufficiently reliable. § 90.803(23), Fla. Stat. The supreme court has noted that the language of section 90.803(23) provides that "a child victim's hearsay statement is not excludable per se as hearsay, or as a prior consistent statement, even though the child testifies fully at trial." Pardo v. State, 596 So. 2d 665, 667 (Fla.1992). However, the court noted that the evidence could still be deemed inadmissible if the *46 trial court determined that the probative value was substantially outweighed by the danger of unfair prejudice under section 90.403, Florida Statutes. Id. at 667-68.
In Reynolds v. State, 660 So. 2d 778, 780 (Fla. 4th DCA 1995), the appellant argued that "the trial court erred in overruling Appellant's objections at trial, that the four hearsay witnesses' testimony was `cumulative'" in violation of section 90.403, Florida Statutes. The court in Reynolds concluded that the issue had not been preserved for appeal. Id. (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982)). In Reynolds the court noted that an objection "to testimony on the grounds that it is `cumulative,' without more," did not properly alert the trial court "that the objection is based upon a contention that the probative value of the otherwise admissible evidence is outweighed by the danger of unfair prejudice." Id.
Here, prior to and during trial the defense counsel's objections centered on the grounds that the witness' testimony regarding the victim's statements would be prior consistent statements and would, therefore, improperly bolster the victim's trial testimony. The trial court properly ruled that the specific hearsay exception contained in section 90.803(23), Florida Statutes, trumped the bolstering and prior consistent statement arguments advanced by the defense counsel. See Pardo, 596 So.2d at 667. At no time did the defense counsel alert the trial court that his objection was based upon the contention that the testimony's probative value was substantially outweighed by the needless presentation of cumulative evidence.
During a pretrial hearing, the defense counsel stated that he predicted the state would "parade in four or five witnesses" to testify about the child's hearsay statements; however, this was never ruled upon or raised again. The defense counsel's statement regarding the state "parading in witnesses" is similar to the "cumulative" objection made in Reynolds, which the court found did not preserve a section 90.403 objection. Id. at 780. Accordingly, we find that the appellant's argument that the trial court erred by allowing the hearsay testimony of multiple witnesses has not been properly preserved for appellate review. See id.; Anderson v. State, 598 So. 2d 276, 276-77 (Fla. 1st DCA 1992) (holding that although under Pardo trial court must conduct section 90.403 analysis, appellant did not preserve that issue for appellate review).
Had the appellant's argument been properly preserved, we would conclude that his argument does not merit reversal because the probative value of the witnesses' testimony was not substantially outweighed by the presentation of similar evidence of the out-of-court statement by multiple witnesses, especially since the defense counsel was allowed to attack the credibility of several of the witnesses at trial. See Moore v. State, 943 So. 2d 296, 297 (Fla. 1st DCA 2006) (holding that a trial judge did not abuse its discretion by allowing three witnesses to testify concerning the child's hearsay statements).
Accordingly, we AFFIRM the appellant's judgment and sentence.
VAN NORTWICK and LEWIS, JJ., concur.
NOTES
[1] As aptly characterized by the Fifth District,
The jurors hear the evidence and the legal instructions and then struggle to sort through it all as they search for the truth. Often times they must make extraordinarily difficult decisions in cases that have very serious consequences for all of the participants. To allow inquiry into the jurors' emotions and feelings of inadequacy as they go through this often difficult process is to expect something closer to perfection than they and our judicial system can legitimately be expected to give.
Aragon v. State, 853 So. 2d 584, 589 (Fla. 5th DCA 2003).
[2] Section 90.403, Florida Statutes, provides as follows:
Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544652/ | 248 Md. 114 (1967)
235 A.2d 549
SHIRK
v.
SUBURBAN TRUST COMPANY
[No. 685, September Term, 1966.]
Court of Appeals of Maryland.
Decided December 4, 1967.
The cause was argued before HAMMOND, C.J., and HORNEY, McWILLIAMS, FINAN and SINGLEY, JJ.
Robert S. Hoyert, with whom were Bill L. Yoho, Roy W. Hooten and Joseph F. McBride on the brief, for appellant.
John C. Joyce, with whom were Duckett, Orem, Christie & Beckett, Robert C. Christie and James P. Salmon on the brief, for appellee.
HORNEY, J., delivered the opinion of the Court.
Although unique in that it is an action at law rather than in equity, this case is another in a long line of cases concerning the rights of the surviving owner in and to joint bank accounts.
Two accounts are involved in this controversy. One, a checking account, was opened in 1943. The other, a savings account, was begun in 1951. Both accounts, in the College Park branch of the Suburban Trust Company, remained in the name of Mary M. Power until 1965. Prior to going to a hospital in September of that year for an emergency operation, the owner, who had always been apprehensive about her financial affairs and consistently paid her bills promptly, notified the bank that she wanted to add the name of a niece to the accounts and, while she was in the hospital, this was accomplished by a notation changing the single ownership of both accounts to a joint ownership reading
"Mrs. Mary Mowall Power in trust for self and Marjorie R. Shirk, joint owners, subject to the order of either, the balance at death of either to belong to the survivor."
*116 During the time her aunt was hospitalized, the niece transferred $1000 from the savings to the checking account and paid several household bills as well as hospital, medical and nursing bills. When the aunt was released from the hospital, she led an active life until her death at the hospital in April of 1966. After her death, the niece properly reimbursed herself for the last hospital admittance charge she had prepaid out of her own funds and paid the last nursing charge out of the joint checking account. Accounting as of the date of death of the aunt there was $36,704 in the savings account and the checking account contained $2290.25. Two days after the funeral, the niece attempted to withdraw $2250 from the joint checking account by depositing a check for that amount in a building and loan association, but the bank refused to honor it. Later, the niece also attempted to withdraw $30,000 from the joint savings account.
Shortly thereafter the surviving owner filed separate declarations against the trust company alleging the existence of the joint accounts in the names of the original owner and herself, the decease of the co-owner and the claim of the plaintiff to the funds on deposit in each account. At the same time, the plaintiff filed motions for summary judgment and affidavits in support thereof. In turn, the defendant bank, as the depository and custodian of the funds and as the named executor of the estate of the co-owner, filed the customary general issue pleas of "never indebted" and "never promised" and special pleas[1] stating the reasons why it was not indebted to the plaintiff along with its answers in opposition to the motions (for summary judgment) and affidavits in support of its answers. In essence, the special pleas alleged that the joint accounts rightfully belonged to the estate of the deceased owner; that the accounts were changed from a single to a joint ownership solely for the purpose of having the plaintiff pay the household bills and medical expenses of the decedent during periods of her illnesses and hospitalizations; that the decedent did not intend to make a gift of the funds to the plaintiff; that the defendant was obliged to *117 protect the funds and preserve the assets of the estate; and that the trust company was not a mere stakeholder. When the lower court, as a consequence of the summary judgment pleadings having raised a disputed question of fact as to whether the defendant bank was indebted to the plaintiff, denied the motions for summary judgment and permitted the trust company, as executor of the estate of the decedent, to intervene in the lawsuits filed against it, the plaintiff prayed a jury trial.
The evidence with respect to the intention of the decedent is clear. A sister-in-law testified without objection that Mary Power had set up the joint accounts because she was going blind and wanted Marjorie Shirk "to pay her bills for her." Then, a teller at the bank (Helen Gillions) testified that the plaintiff told her, when she came for the necessary signature cards to bring about a change of ownership, that the aunt wanted her name on the accounts so that she could pay the bills when her aunt was sick. The manager of the bank (William Reading) also testified that the plaintiff told him that her aunt had put her name on the accounts so that she could pay the bills in an emergency. A trust officer and the manager of the trust department (Thomas Lawson) testified that the plaintiff had said to him, in reply to his questions, that the joint accounts had been set up as a convenience for the payment of bills in the event her aunt was unable to take care of her own financial affairs and that it was her intention to turn over the balance in the accounts to the executor to be distributed in accordance with the will of her aunt.
There was no evidence that the decedent intended the change of ownership as a gift. The niece never deposited any of her own money in the joint accounts and wrote checks on them only for the benefit of her aunt. The plaintiff did not testify on direct examination the brief states she was prohibited from doing so under the provisions of § 3 of Article 35 of the Code as to the transaction she had with the decedent. But, on being recalled as a rebuttal witness, she categorically denied on cross-examination that the trust officer had asked her whether the bank accounts had been established as a matter of convenience. Instead she said that she did not realize she had a right to withdraw the money until the trust officer told her so; that she *118 did not tell him she would turn the funds over to the executor; and that the nearest she came to saying so was when she told him that she had no intention of stealing the money and would, if she "felt it was necessary," turn it over to the estate when the time came for settlement. On direct cross-examination she had previously testified that, on advice of counsel, she had attempted to withdraw such portions from each account as she thought was reasonable.
When the taking of evidence was concluded, the motions of both parties for directed verdicts were denied, the jury returned a verdict for the defendant, the motion of the plaintiff for judgment n.o.v. was denied and this appeal followed.
On appeal it is contended that the lower court should have granted summary judgment against the depository; that the executor should not have been permitted to intervene; that the information the plaintiff imparted to the bank officials with respect to the intent of the decedent was inadmissible as evidence; and, consequently, that the evidence was insufficient for the jury to make a determination as to the intent of the original owner.
While a question as to whether the surviving owner is entitled to the funds in a joint bank account is ordinarily raised by an action in equity, and in some instances by a bill of interpleader, we see no reason why the question of fact as to the intention cannot be determined in an action at law. The same rules of law would be as applicable to a case at law as to one in equity.
The general rule is that the creation of a joint bank account in the form used here is a sufficient declaration of trust provided the presumption arising therefrom is neither rebutted nor explained. Blair v. Haas, 215 Md. 105, 137 A.2d 145 (1957); Tribull v. Tribull, 208 Md. 490, 119 A.2d 399 (1956); Whittington v. Whittington, 205 Md. 1, 106 A.2d 72 (1954); Milholland v. Whalen, 89 Md. 212, 43 A. 43 (1899). See also Jones v. Hamilton, 211 Md. 371, 127 A.2d 519 (1956); Bierau v. Bohemian Building, Loan and Savings Asso., 205 Md. 456, 109 A.2d 120 (1954); Hancock v. Savings Bank of Baltimore, 199 Md. 163, 85 A.2d 770 (1952). But, as stated in Shook v. Shook, 213 Md. 603, 607, 132 A.2d 460, 462 (1957)
*119 "[t]he entry may be explained and the intention indicated may be rebutted. It is always open to the executor or administrator [of the estate] of the decedent or the parties in interest to show that the purpose of the declaration of trust was not what it, in form, appeared to be. The rebuttable presumption is that created by the execution of the transfer, and the burden of proof is on those seeking to rebut such presumption."
To the same effect, see Coburn v. Shilling, 138 Md. 177, 113 A. 761 (1921); Ragan v. Kelly, 180 Md. 324, 24 A.2d 289 (1942); Kuhl v. Reese, 220 Md. 459, 154 A.2d 712 (1959). And see Owings v. Owings, 233 Md. 357, 196 A.2d 908 (1964). In the Ragan case, where the facts were quite similar to those in the case at bar, we had occasion to say (at p. 334) that "[f]rom all the facts and circumstances, as they appear from the evidence * * *, the conclusion is unescapable that the legal effect of the entry on the bank book * * * was intended to, and did, create a special trust for a definite and specific purpose, and the trust came to an end upon the death of the * * * [original owner]."
Under the instructions of the lower court, to which there were no exceptions, the jury verdict for the defendant had the effect of a finding that the joint accounts were created as a makeshift to enable the niece to pay the bills and expenses of the aunt in the event she became unable to attend to her own affairs. There was, as the record shows, ample evidence much of which comprised the statements made by the appellant to the bank officials to support the finding of the jury. Hancock v. Savings Bank of Baltimore, supra (199 Md. 163), is readily distinguishable from the case at bar in that there was in that case no testimony that the transfer was made for the sole purpose of paying bills as was the situation here.
In this case where the acts of the plaintiff, in filing a motion for summary judgment and affidavits in support thereof, opened the way for the defendant to answer the motion and file affidavits in opposition to it which raised a genuine dispute as to a material fact, the claim that summary judgment should *120 have been granted against the depository and that the executor should not have been permitted to intervene, overlooks the fact that, even if the trust company as executor had not been permitted to intervene, the bank as a depository (since it had information to the effect that the surviving owner had been only the bill-paying agent of the deceased original owner) had a right to protect itself from liability for, as well as an obligation to prevent, an unlawful withdrawal of the funds of a depositor. The further claim that the information imparted by the plaintiff to the bank officials was inadmissible by virtue of the "dead-man's" statute and the consequent deduction that the evidence was therefore insufficient to support the verdict of the jury was likewise without merit not only because the witnesses were competent to testify but because the bank was not a party to the transaction between the plaintiff and the decedent.
Judgment affirmed; appellant to pay the costs.
NOTES
[1] The special pleas, although not begun with the formal words "for plea on equitable grounds" or words to that effect, as is required by Maryland Rule 342 d 1 (b), appear to be equitable defenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1008090/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4769
WILLIAM JACKIE PEARSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-98-15)
Submitted: June 27, 2002
Decided: July 26, 2002
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Robert J. Conrad, Jr., United States Attorney, D. Scott
Broyles, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
2 UNITED STATES v. PEARSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William Jackie Pearson was convicted after pleading guilty to pos-
session with intent to distribute cocaine base, in violation of 21
U.S.C.A. § 841(a)(1) (West 1999). He now argues that his sentence
of 264 months in prison violates Apprendi v. New Jersey, 530 U.S.
466 (2000). We affirm Pearson’s conviction and sentence.
Because Pearson did not raise his Apprendi claim in the district
court, our review is for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). In order to demonstrate
plain error, a defendant must show that an error occurred, that it was
plain, and that the error affected his substantial rights. Id. at 732. If
he can satisfy these requirements, we should not exercise our discre-
tion to correct the error "unless the error seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings." Id.
(internal quotation marks omitted).
Pearson’s indictment did not charge a specific amount of drugs.
Under Apprendi, he therefore was subject to a sentence of only 240
months in prison, and his 264-month sentence constituted plain error.
See United States v. Cotton, 122 S. Ct. 1781, 1785 (2002).
We need not decide, however, whether the 264-month sentence
affected Pearson’s substantial rights. Pearson stipulated in his plea
agreement and at his Fed. R. Crim. P. 11 hearing that he was respon-
sible for at least 500 grams and not more than 1.5 kilograms of crack
cocaine. Further, Pearson did not object to the factual basis of the
plea, which stated that he was responsible for the stipulated amount
of crack. The evidence that Pearson was accountable for at least 500
grams but less than 1.5 kilograms of crack was thus overwhelming
and uncontroverted and, in accordance with Cotton, we decline to
exercise our discretion to correct the Apprendi error. See Cotton, 122
S. Ct. at 1785-86.
UNITED STATES v. PEARSON 3
We affirm Pearson’s conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process. The motion to dismiss the appeal is denied
as moot.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591799/ | 6 N.Y.2d 276 (1959)
In the Matter of Basin Street, Incorporated, Respondent. Isador Lubin, as Industrial Commissioner, Appellant.
Court of Appeals of the State of New York.
Argued April 14, 1959.
Decided July 8, 1959.
Louis J. Lefkowitz, Attorney-General (Paxton Blair, Samuel Stern and Harold F. Lee of counsel), for appellant.
No appearance for respondent.
Emanuel L. Gordon for American Federation of Musicians of the United States and Canada, amicus curiæ.
Chief Judge CONWAY and Judges DESMOND, DYE, FULD and BURKE concur with Judge FROESSEL; Judge VAN VOORHIS dissents and votes to affirm.
*278FROESSEL, J.
The issue before us is whether there is substantial evidence in the record to support the determination of the Unemployment Insurance Appeal Board (hereinafter called the Board) that union musicians who performed in a night club operated by Basin Street, Inc. (hereinafter called the operator) were not employees of the establishment which hired them. The Industrial Commissioner determined they were employees of the operator, and assessed it accordingly for unemployment insurance contributions, based upon the earnings of said musicians, but the Board, relying upon Matter of Savoy Ballroom Corp (Lubin) (286 App. Div. 684), eliminated the assessment. Although it participated in the hearing before a referee by its counsel and an accountant, the operator did not appear before the Board, nor did it argue before or file a brief with the Appellate Division or this court.
It is settled law that the identity of the employer must be ascertained on the facts of the individual case, and that no written agreement may preclude an examination into the actual relationship of the parties (Matter of Morton, 284 N.Y. 167, 175; Matter of Electrolux Corp., 288 N.Y. 440, 444). In the instant case, however, neither the Commissioner nor the operator introduced any evidence of the extent to which either the band leader or the operator exercised supervision, direction and control over the musicians. The only evidence in the record is the "Form B" contract of the American Federation of Musicians, with "Rider B" attached.
The contract, in the clearest terms, constituted the operator the employer of all the musicians, including the leader, and gave it "complete control of the services which the employees will render under the specifications of this contract" (see Matter of Hotels Statler Co. [Corsi], 279 App. Div. 814, motion for leave to appeal denied 304 N.Y. 987; Matter of Cassetta, 282 App. Div. 793, motion for leave to appeal denied 306 N.Y. 982). In addition, it constituted the band leader the agent of the operator for purposes of distributing the payroll and replacing *279 musicians. "Rider B" read, in pertinent part, as follows: "Notwithstanding any other provisions contained in this contract, it is agreed that the leader shall make the withholdings and pay the taxes and contributions payable by an employer with reference to the employment of the musicians other than himself. In the event that at any time liability for any such payments or withholdings shall be imposed on the purchaser of the music, the leader agrees to transfer any and all tax accounts to the name and credit of the purchaser of the music. It is further agreed that the price stated upon the face of the contract includes an amount equal to 7% over and above the required Union scale, which sum shall be paid to the leader to cover employer's costs."
In our opinion, the rider in no way affected the relationship between the parties, as outlined in the main contract. By agreeing that the band leader would make the withholdings and pay the taxes due on the salaries of the musicians, the parties simply continued the agency established in the main contract for the convenience of the principal. The phrase "Notwithstanding any other provisions contained in this contract" did not "override" anything in the main contract. On the contrary, we read it as an attempt to shift to the band leader the responsibility for paying the taxes "notwithstanding" the fact that the operator, as the true employer, was to have "complete control of the services" of the musicians. Nor can the designation of the operator as "purchaser of the music", rather than as "employer", be said to qualify the contractual relationship between the parties.
In short, if the contract as a whole, by virtue of the operative provisions creating rights and imposing duties and obligations, stamps "A" (here the operator) as "employer", a simple recital that "B" (here the band leader) is to be responsible for unemployment insurance contributions cannot change the operative facts or alter the legal conclusions that flow therefrom (Matter of Cassetta, supra).
In Matter of Savoy Ballroom Corp. (Lubin) (supra) the proof showed that the provision of the main contract reserving complete control to the operator "was only a fiction to begin with, designed to make the purchaser of the music the employer for tax purposes but never really intended to vest *280 the right of control in him. The evidence in this record is overwhelmingly clear that the operator did not in fact have any right to control the manner of performance of the services under the contract." (286 App. Div. 691; emphasis supplied; see, also, Bartels v. Birmingham, 332 U. S. 126, 128.) As noted, there is no evidence in the record before us as to the actual practices of the parties and who, in fact, exercised supervision over the musicians. In the absence of evidence so indicating, we cannot assume that the contractual provision vesting complete control in the operator, as employer, was a fiction.
Since the only evidence in the record unequivocally stamps the operator as the employer of all the musicians, there is no evidence to support the Board's finding to the contrary. "Rider B", as noted, merely constituted the leader the agent of the employer for tax payment purposes. The fact that the operator, pursuant to the 7%-above-contract-price provision, may have turned over the money to its agent cannot immunize it from liability to the State. It simply paid the wrong party and assumed the risk of its agent's negligence or malfeasance. Parties are not free to agree as to who should be liable for the taxes where there is an employer-employee relationship and the law imposes the obligation on the employer.
The order appealed from should be reversed and the determination of the Industrial Commissioner imposing liability for unemployment contributions on respondent reinstated and confirmed, without costs.
Order reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings in accordance with the opinion herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2762249/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED DECEMBER 18, 2014
NO. 03-13-00157-CV
Norris J. DeVoll, Appellant
v.
Tzon-Sing Chen, a/k/a John Chen, a/k/a Tron Sing Chen,
and Chester Jianbon Shiu, Appellees
APPEAL FROM 201ST DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE JONES, JUSTICES PEMBERTON AND FIELD
AFFIRMED -- OPINION BY JUSTICE FIELD
This is an appeal from the judgment signed by the trial court on October 18, 2012. Having
reviewed the record and the parties’ arguments, the Court holds that there was no reversible error
in the trial court’s judgment. Therefore, the Court affirms the trial court’s judgment. The
appellant shall pay all costs relating to this appeal, both in this Court and the court below. | 01-03-2023 | 12-18-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1577504/ | 790 S.W.2d 532 (1990)
STATE of Tennessee, Appellant,
v.
Joey Tapley HUTCHERSON, Appellee.
Supreme Court of Tennessee, Western Section.
May 14, 1990.
James H. Bostick, Asst. Public Defender, April Ferguson, Memphis, for appellee.
W.J. Michael Cody, Atty. Gen. & Reporter, Norma Crippen Ballard, Asst. Atty. Gen., Nashville, for appellant.
OPINION
FONES, Justice.
Defendant was convicted of one count of sexual battery and sentenced to serve three years in the Shelby County Correctional Center. The Court of Criminal Appeals found that the State had failed to prove that the offense was committed in Shelby County; that venue and jurisdiction were not established and the conviction was reversed and dismissed.
We granted the State's Rule 11 application for permission to appeal to determine whether the prosecution's failure to prove venue requires dismissal, where venue is not established in another jurisdiction, or whether the case may be remanded for retrial.
The victim was five-year-old Crystal Robertson. Her mother and father were divorced, and defendant was her father's step-father. An irrelevant series of events resulted in Crystal and her six-year-old brother being left with defendant as their baby-sitter one afternoon. Defendant drove the three of them to a place with a sandy bank where the victim's brother fished from the bank while defendant drank beer and played with the victim. When the children were picked up that evening, they told their mother about defendant's actions and she promptly summoned the police. A Shelby County deputy testified that, "from the information I received, we pieced together where the incident happened at." He said it was an area off North Highland just north of Chelsea, "behind ... Sears Complex where the warehouse is." He testified that when the Wolf River floods small lakes are formed in that area, one of which was behind the *533 Sears Complex and "people go down and go fishing." The officer's testimony was objected to as based upon hearsay. No factual basis was provided in support of the officer's "pieced together" location of the offense. We are therefore compelled to agree with the intermediate court that the State failed to prove venue.
We have carefully considered the cases cited by the State wherein venue has been established by circumstantial evidence, characterized by the State as "slight." See, e.g. State v. Bennett, 549 S.W.2d 949 (Tenn. 1977); Hopson v. State, 201 Tenn. 337, 299 S.W.2d 11 (1957); and, Gilliland v. State, 187 Tenn. 592, 216 S.W.2d 323 (1948). It is true that venue may be established by a preponderance of the evidence, rather than beyond a reasonable doubt. State v. Bennett, 549 S.W.2d at 949, 951. In this case the only admissible fact having any probative value that suggests the possibility that the offense occurred in Shelby County is that the mother of the victim called the Shelby County Sheriff's Office to report the crime and that office conducted an investigation.
The State contends that the fact that the Shelby County Sheriff's Department investigated the case is a circumstance from which it may be inferred that the offense occurred within the boundaries of that county. Reliance is placed on Hopson v. State, supra, for that assertion. In Hopson, defendant was indicted for driving while intoxicated, "on a street in Memphis, Shelby County, Tennessee." The proof established that the vehicle defendant was driving on Winchester Street left tracks from that street and came to rest just outside the back door of a residence, and that Winchester Street and the residence were in Shelby County. Defendant's lawyer insisted that because the indictment included Memphis as the location of the offense, as well as Shelby County, proof of venue was deficient, because there was no proof that the crime occurred in Memphis. In responding to that utterly frivolous issue, the court pointed out that the indictment charged that the offense occurred in Shelby County, the proof established that the offense occurred in Shelby County, and the case was tried in the trial court having jurisdiction of any criminal offense occurring in Shelby County. The court also added dicta to the effect that the court could take judicial notice that Memphis is in Shelby County and that the allegation in the indictment that it occurred in Memphis was mere surplusage. Two officers of the Memphis Police Department investigated the accident in response to a call from someone residing in Lauderdale Courts, which had been proven to be in Shelby County. It was totally irrelevant to prove venue in Memphis, having proved the accident occurred in Shelby County. Thus, we are unwilling to accept the court's comment that the fact that Memphis police officers investigated the accident was a circumstance from which it might be reasonably inferred that the accident occurred in Memphis, as precedent to be applied in the instant case where that circumstance stands alone, on the issue of venue.
The Court of Criminal Appeals also rejected that contention and concluded that the State had failed to establish that the offense occurred in Shelby County. That court dismissed the case and on petition to rehear rejected the State's contention that the case should be remanded for a new trial, relying upon Wright v. State, 2 Tenn. Cr.App. 95, 451 S.W.2d 707 (1969) and Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).
In Wright, defendant burglarized a furniture company located in Marshall County and stole a television set and a record player, and those two items were found in his possession in Davidson County. He was indicted and tried in Marshall County on three counts: burglary, stealing a record player and television, and receiving and concealing stolen property. The jury verdict addressed only the count charging receiving and concealing stolen property, finding him guilty, which action amounted to an acquittal on the other counts. The intermediate court held that the undisputed proof showed that the receiving and concealing offense occurred in Davidson County, thus establishing venue and jurisdiction in that county and rendering void a conviction *534 for that offense in Marshall County. Without any discussion whatever of the issue of remand for a new trial or dismissal, the court dismissed the case.
In Burks v. United States, supra, defendant robbed a federally insured bank. Defendant's principal defense was insanity. He presented three expert witnesses who testified unequivocally that he suffered from a mental illness that rendered him incapable of conforming his conduct to the requirements of the law at the time of the offense. The government offered one expert witness who said defendant had a character disorder but was not mentally ill, and a second expert was ambiguous on the question of whether defendant could conform his conduct to the requirements of the law. The jury found defendant guilty and the trial judge denied his motion for a new trial, wherein he relied on insufficiency of the government's evidence on the insanity issue. The Sixth Circuit reversed on that issue noting that the government had the burden of proving sanity beyond a reasonable doubt, once a prima facie defense of insanity had been raised. That court remanded the case to the trial court for a determination of whether a directed verdict of acquittal should be entered or a new trial granted.
The United States Supreme Court granted certiorari to consider the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.
The Court reviewed its prior cases involving reversals for insufficiency of evidence to convict and reversals for trial error and concluded that the Double Jeopardy Clause had not been consistently applied or properly construed. The Court reversed prior decisions that had ordered a new trial upon a finding of insufficiency of evidence where a defendant had sought a new trial in addition to a judgment of acquittal. It reaffirmed the rule that where the reversal is for trial error, the case may be remanded for a new trial without violating the Double Jeopardy Clause, but where an appellate court finds the prosecution's proof on the issue of guilt or innocence of defendant was insufficient to convict, Double Jeopardy commands a dismissal.
Thus, the issue we confront in the instant case is whether failure to establish venue is trial error or insufficiency of evidence.
Some clues may be found in the Burks court's examination of the rationales behind the two types of reversals, which follows:
Various rationales have been advanced to support the policy of allowing retrial to correct trial error, but in our view the most reasonable justification is that advanced by [U.S. v.] Tateo, supra, 377 U.S., [463] at 466, 84 S.Ct., [1587] at 1589 [12 L. Ed. 2d 448 (1964)]:
It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.
See [U.S. v.] Wilson, supra, 420 U.S., [332] at 343-344, n. 11, 95 S.Ct., [1013] at 1021-1022 [n. 11, 43 L. Ed. 2d 232 (1975)]; Wade v. Hunter, 336 U.S. 684, 688-689, 69 S. Ct. 834, 836-837, 93 L. Ed. 974 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U.Chi.L.Rev. 365, 370 (1964).
*535 The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government's case was so lacking that it should not have ever been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal no matter how erroneous its decision it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.
98 S.Ct. at 2149-2150.
It seems that the basic distinction is whether the defect that requires reversal involved the guilt or innocence of defendant. Proof of venue is necessary to establish the jurisdiction of the court, but it is not an element of any offense and need only be proved by a preponderance of the evidence. See e.g., Wright v. State, supra. Venue has nothing whatever to do with the guilt or innocence of a defendant.
The Burks court also quoted with approval from United States v. Tateo, 377 U.S. 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964) that the Double Jeopardy Clause does not preclude retrying a defendant whose conviction is set aside because of an error in the proceedings. We are of the opinion that failure to establish venue is in that category and retrial does not violate that constitutional command.
We do not find that Wright would require a different result. Our intermediate court found that Marshall County had no jurisdiction to try defendant for the offense of receiving and concealing stolen property because venue and thus jurisdiction was affirmatively established to be in Davidson County. The court had no alternative but to dismiss an attempted prosecution in Marshall County. Remand as an alternative did not exist, therefore the issue of the application of the Double Jeopardy Clause was not presented. There is not one scintilla of evidence in this case that the offense occurred in any county other than Shelby. It also appears likely that the location of the offense could be ascertained by taking the victim and her brother to lake or river locations that have sandy banks, within an appropriate distance from the known starting place, defendant's residence, 1490 Duke, Memphis.
The result is that we affirm the Court of Criminal Appeals in holding that venue was not established and reverse its dismissal of the case. We remand to the Criminal Court of Shelby County for retrial.
DROWOTA, C.J., and COOPER, HARBISON and O'BRIEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577514/ | 35 So. 3d 1118 (2010)
ALLSTATE INSURANCE COMPANY as Subrogee of Rebecca Waldrop and Eric Miller
v.
Habib MOHAMADIAN, ABC Insurance Company, Lamb'S Repair Service, L.L.C, XYZ Insurance Company, DEF Manufacturing Company and GHI Insurance Company.
No. 2009 CA 1126.
Court of Appeal of Louisiana, First Circuit.
February 17, 2010.
Charles E. Riley, IV, Christopher B. Conley, New Orleans, LA, for Plaintiff/Appellant, Allstate Insurance Company.
Amos H. Davis, Baton Rouge, LA, for Defendants/Appellees, Lamb's Repair Service, L.L.C, and Colony Insurance Company.
Before: PARRO, KUHN, and McDONALD, JJ.
McDONALD, J.
In December of 2006, Rebecca Waldrop and Eric Miller were each renting one townhouse in a four-townhouse building located on East Riverdale Road in Baton Rouge. One of the townhouses in the building was owned by Dr. Habib Mohamadian, who rented it to a tenant. On *1119 December 14, 2006, Dr. Mohamadian had his townhouse's HVAC system serviced by Lamb's Repair Service, L.L.C, which replaced two burned supply lines/heating coils in the system.
On December 23, 2006, a fire occurred at the four-unit building, and after an investigation, the East Baton Rouge Parish Fire Department determined that the fire originated at the HVAC unit located in the attic of Dr. Mohamadian's townhouse. Ms. Waldrop and Mr. Miller both had renter's insurance policies with Allstate Insurance Company (Allstate); both filed claims with Allstate, and both were paid for their damages.
Allstate, as the subrogee of Ms. Waldrop and Mr. Miller, then filed suit against Dr. Mohamadian, ABC Insurance Company (his insurer). Lamb's Repair Service, L.L.C, XYZ Insurance Company (its insurer), DEF Manufacturing Company (manufacturer of the HVAC system and the parts used by Lamb's Repair Service), and GHI Insurance Company (the manufacturer's insurer), asserting that Dr. Mohamadian, his agents, and employees breached their duty by negligently maintaining the townhouse and by negligently installing and maintaining the HVAC system. In the alternative, Allstate asserted that Lamb's Repair Service and its agents and employees breached their duty by negligently performing the HVAC repair work; and also in the alternative, Allstate asserted that DEF and its agents and employees negligently designed and manufactured the HVAC system and parts. Allstate asserted that it had suffered damages in the amount of $142,911.40, plus Ms. Waldrop and Mr. Miller had each paid a $500.00 deductible under their policies. Allstate prayed for payment of its damages, together with costs and legal interest.
Lamb's Repair Service answered the petition with a general denial and asserted that any negligence or fault on the part of third parties, for which Lamb's Repair Service was not responsible, would diminish the plaintiffs recovery. Lamb's Repair Service further asserted that if one or more parties had failed to preserve and spoliated the evidence, that would bar recovery. It also claimed credit for any money paid or available from insurance or income in kind and prayed for judgment in its favor.
Thereafter, Dr. Mohamadian filed a motion for summary judgment, asserting that there was no genuine issue of material fact that the East Baton Rouge Parish Fire Department report stated that the fire originated in the area of the air conditioning unit, but not how or why; that it did not find that anyone did something they should not have done or failed to do something they should have done, nor did it suggest what could have been done to prevent the fire; and that the factors contributing to the ignition were found to be "none" and "undetermined." Dr. Mohamadian asserted that the report by Allstate's fire investigator, Mervin A. Stringer, stated that the specific cause of the fire and the source of ignition were undetermined. Thus, again, the report did not find something that anyone should not have done or failed to do, nor did it suggest what could have been done to prevent the fire.
Dr. Mohamadian asserted that Allstate could not produce factual support sufficient to establish that it could satisfy its evidentiary burden of proof at trial that Dr. Mohamadian was negligent; that res ipsa loquitor did not apply where direct evidence was available; that there was no spoliation of evidence by Dr. Mohamadian, as two investigations were done of the fire, and cleanup work was not begun until six *1120 weeks after the fire. Therefore, there was no genuine issue of material fact, and the motion for summary judgment should be granted dismissing Allstate's claim with prejudice.
Lamb's Repair Service and its insurer, Colony Insurance Company, also filed a motion for summary judgment, asserting that on December 14, 2006, Dr. Mohamadian had called Willard Jerome Lamb, the owner of Lamb's Repair Service, who was certified in air conditioning and heating repair, and advised that the heating system at his townhouse was not working. Mr. Lamb investigated and discovered that the breaker had tripped and that one of the supply lines needed to be replaced. Mr. Lamb replaced the supply line and checked the system, using an amp meter. Lamb's Repair Service asserted that if it had installed the supply line improperly, the breaker would have tripped, and the amp meter would have demonstrated it was not working properly. However, this did not happen. Thus, the system was in proper working order when Mr. Lamb completed the job. Lamb's Repair Service asserted that while Allstate alleged that it failed to use reasonable care in replacing and installing the HVAC unit, Allstate had no factual support sufficient to satisfy its evidentiary burden of proof at trial, and res ipsa loquitor did not apply to establish liability on the part of Lamb's Repair Service. Thus, there was no genuine issue of material fact, and as a matter of law, Lamb's Repair Service was entitled to a summary judgment dismissing Allstate's claims.
On May 1, 2008, Allstate dismissed its claims against Dr. Mohamadian.[1] On July 11, 2008, the trial court denied the motion for summary judgment filed by Lamb's Repair Service and Colony Insurance Company. On July 16, 2008, Lamb's Repair Service and Colony Insurance Company filed a motion and order for written findings of fact and reasons for judgment. Thereafter, the trial court set the request for written reasons for a contradictory hearing on August 11, 2008. The hearing was passed without date.
On November 18, 2008, Lamb's Repair Service filed a "MOTION FOR NEW TRIAL AND/OR RECONSIDERATION OF PREVIOUSLY FILED MOTION FOR SUMMARY JUDGMENT; ALTERNATIVELY, MOTION TO SET ASIDE OR RECALL THE JUDGMENT SIGNED JULY 10, 2008."[2] In its motion, Lamb's Repair Service stated:
1.
Lamb's Repair Service, LLC filed a Motion for Summary Judgment on liability on April 9, 2008 which was heard on May 19, 2008. At the conclusion of oral argument, the Court initially granted this Motion for Summary Judgment. At the urging of counsel for Allstate Insurance Company, the Motion for Summary Judgment was then taken under advisement. On June 30, 2008, a Minute Entry was faxed to us denying the Motion for Summary Judgment without reasons. A Judgment was signed on July 10, 2008.
2.
A Motion and Order for Written Findings of Fact and Reasons for Judgment was filed pursuant to Louisiana Code of Civil Procedure article 1917 on July 16, 2008. On July 22, 2008, Your Honor scheduled a contradictory hearing relative to our Motion for Written Findings *1121 of Fact and Reasons for Judgment, said hearing being scheduled on August 11, 2008. On July 30, 2008, the only other party, Allstate Insurance Company, through its attorneys, Charles E. Reilly and Joshua M. Hudson, filed a formal Memorandum advising the Court that Allstate Insurance Company had no opposition to our Motion and Order for Written Findings of Fact and Reasons for Judgment. Accordingly, Allstate Insurance Company's attorney and I concluded that there was no reason to have a contradictory hearing. To date, we have received no written findings of fact or reasons for judgment.
3.
On November 10, 2008, the Court was contacted to find out when written findings of fact and reasons for judgment could be expected. Undersigned counsel was instructed by Your Honor's Judicial Assistant, Ms. Eileen Knight, to file this Motion for New Trial and/or Reconsideration relative to Lamb's Repair Service, LLC's previously filed Motion for Summary Judgment.
Allstate filed an opposition to the motion for new trial,[3] asserting that the motion was untimely, as La. C.C.P. art. 1974 provided a seven-day delay to file a motion for new trial, and four months had passed between the trial court's judgment denying the motion for summary judgment and Lamb's Repair Service's filing of a motion for new trial. After a hearing, the trial court granted Lamb's Repair Service's motion for new trial and signed a judgment on December 31, 2008, granting Lamb's Repair Service's motion for summary judgment. Allstate is appealing that judgment, asserting that the trial court erred in granting the motion for summary judgment in favor of Lamb's Repair Service.
ANALYSIS
A motion for new trial can be taken from a final judgment. The denial of a motion for summary judgment is not a final judgment. Clement v. American Motorists Insurance Company, 98-504 (La. App. 3 Cir. 2/3/99), 735 So. 2d 670, 672, writ denied, 99-0603 (La.4/23/99), 742 So. 2d 886. The denial of a motion for summary judgment is an interlocutory judgment that is not appealable. La. C.C.P. art. 968; Ascension School Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 06-0992 (La.App. 1 Cir. 3/23/07), 960 So. 2d 939, 940. The denial of a motion for summary judgment is reviewable by supervisory writ. See Clement v. American Motorists Insurance Company, 98-504, 735 So.2d at 671-72.
Thus, if Lamb's Repair Service sought review of the denial of its motion for summary judgment, rather than filing a motion for new trial, it should have filed an application for supervisory writs. We find that the trial court committed legal error in granting Lamb's Repair Service's motion for new trial and then granting its motion for summary judgment. Thus, we reverse the trial court judgment granting Lamb's Repair Service's motion for new trial and its motion for summary judgment, and we remand the case to the trial court.[4] Costs *1122 are assessed against Lamb's Repair Service.
REVERSED AND REMANDED.
NOTES
[1] Although this judgment lacks decretal language, that issue is not before the court on appeal.
[2] This judgment was signed July 11, 2008.
[3] We note that the Louisiana Code of Civil Procedure has no provisions for a "Motion to Reconsider." The proper designation when seeking reconsideration of a judgment is a "Motion for New Trial." See La. C.C.P. arts. 1971-1979; Boudreaux v. Mid-Continent Casualty Co., 05-2453 (La.App. 1 Cir. 11/3/06), 950 So. 2d 839, 842 n. 4, writ denied, 06-2775 (La. 1/26/07), 948 So. 2d 171.
[4] We note that Lamb's Repair Service can file a new motion for summary judgment with the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577507/ | 790 S.W.2d 503 (1990)
Linda S. KAHN, Plaintiff-Appellant,
v.
ROYAL BANKS OF MISSOURI and Farrell Kahn, Defendants-Respondents.
No. 57032.
Missouri Court of Appeals, Eastern District, Division Three.
May 29, 1990.
*505 Rexford H. Caruthers, Martha L. Goodloe, Michael A. Vitale, Eugene J. Brockland, Jr., Sidney Stone, Steven Stone, St. Louis, for plaintiff-appellant.
Terrence Finan Moffitt, John A. Klobasa, Alan C. Kohn, St. Louis, for defendants-respondents.
SATZ, Presiding Judge.
This case concerns liabilities arising from two promissory notes executed in April, 1987 and made payable to the Royal Banks of Missouri (Bank). The trial court found Mrs. Linda Kahn (wife) and Mr. Farrell Kahn (husband) jointly liable on the notes and awarded the Bank the full amount of an injunction bond which the wife had posted as security for a temporary restraining order issued against the Bank. We affirm in part and reverse in part.
We review this court tried case under the well known principles established by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and Rule 73.01(c). We defer to the credibility determinations made by the trial court, and we accept as true the evidence and permissible inferences favorable to the prevailing party and disregard contrary evidence and inferences. E.g., Snowden v. *506 Gaynor, 710 S.W.2d 481, 483 (Mo.App. 1986).
The husband and wife were married in 1959. From the beginning of the marriage, the husband assumed exclusive responsibility for the couple's business affairs, including millions of dollars' worth of oil and real estate investments, and continued to do so throughout the marriage. In 1979, the wife executed two separate powers of attorney: a "durable" power of attorney and a general power of attorney to convey real estate. In the durable power of attorney, she granted the husband broad authority, including the power on her behalf "to borrow money and to pledge ... securities or mortgage ... real estate for such loans if [in his] ... judgment ... such action should be necessary...." In the other power of attorney, she authorized the husband, on her behalf, to "mortgage or otherwise purchase or convey any oil and gas leases or any part or all of the real estate or personal property now owned or hereafter acquired by [her]...."
In April, 1987, the husband signed both his and his wife's names to two renewal notes approximating $1,400,000.00 and made payable to the Bank. The husband pledged jointly owned stock and real estate as collateral for the notes. The notes and pledge were part of one written agreement. The Bank declared the notes in default after they were not paid on time, and the Bank informed the husband and wife of its intention to sell the collateral to satisfy the notes.
The wife then filed the present declaratory judgment action against the Bank and the husband, seeking a declaration that the husband was solely liable on the notes and that the Bank had no interest in the wife's share of the jointly owned property pledged as collateral. At the wife's request, the trial court issued a temporary restraining order prohibiting the Bank from attempting to foreclose on the wife's interest in the collateral.
The husband filed a counterclaim seeking a declaration that his wife and he were jointly liable on the notes and that the pledge of the jointly owned property as collateral was valid. The Bank filed a counterclaim against the wife and a crossclaim against the husband seeking, in each claim, a declaration that the husband and wife were jointly liable on the notes and that the Bank had a valid security interest in the pledged collateral.
The trial court found the husband and wife to be jointly liable on the notes and also found the jointly owned collateral to have been validly pledged. Accordingly, the court entered a judgment in favor of the Bank and against the wife and husband in the amount of $1,543,002.60, constituting principal and interest. The court also awarded the Bank damages caused by the temporary restraining order. This appeal by the wife followed.
The wife makes several arguments on appeal. Their basic thrust is that the husband's signing of his wife's name to the 1987 notes did not make the wife an obligor on those instruments. The dispositive issues raised by these arguments focus on the validity of the husband's acquisition, retention and exercise of the 1979 powers of attorney empowering him to act on her behalf.
The wife contends the durable power of attorney was void from the outset because it was part of her husband's scheme to defraud his creditors by transferring his assets to her, in violation of Missouri's Fraudulent Conveyance Statute, § 428.020.[1] As a corollary, the wife argues the court erred in excluding parol evidence of her husband's alleged scheme.
Parol evidence, like any other evidence, can be admitted only if relevant to a material issue. See Matter of Estate of Passman, 537 S.W.2d 380, 386 (Mo. banc 1976). The material issue here is whether the husband's signing of his wife's name was valid insofar as the Bank, a third party, is concerned. Fraudulent conveyances are void against creditors; they are, nevertheless, "`valid as against the grantor and his privies....'" E.g. Loe v. Downing, 325 S.W.2d 479, 482 (Mo.1959).
*507 The wife is not her husband's judgment creditor, nor does she claim to be one. More important, perhaps, the wife's offer of proof seemingly implies she would testify that she knew of her husband's alleged scheme. Therefore, she clearly has no standing under the Fraudulent Conveyances Statute to question her husband's authority to act on her behalf, insofar as the Bank is concerned.
The wife next argues the durable power of attorney executed in 1979 had expired prior to the execution of the 1987 notes. The wife did not formally revoke the durable power of attorney until 1988. She notes, however, that this power of attorney had no express termination date, and she argues that the power of attorney terminated by operation of law before her husband used it in 1987. We disagree.
An agent's authority under an agency agreement of indefinite duration does terminate at the end of a "reasonable period." Restatement (Second) of Agency, § 105 (1957)[2]; see also 3 Am Jur 2d Agency § 37 (1986). The reasonable duration of an agent's authority depends on such factors as "the nature of the acts specifically authorized, the formality of the authorization, [and] the likelihood of changes in the purposes of the principal." Restatement, § 105, Comment b. "Authority may be kept alive beyond what otherwise would be a reasonable time by the fact that the principal knows that the agent is continuing to make efforts to perform and acquiesces therein." Id.
In the present case, it was reasonable for the husband to believe the durable power of attorney authorized him to act as his wife's agent as long as they were married. While all-encompassing, the durable power of attorney executed in 1979 merely formalized the authority which the husband had in fact been exercising from the date of the marriage in 1959, a 20 year period. According to wife's own testimony, husband had handled the couple's business affairs from the inception of the marriage. The couple had regularly borrowed money to invest in millions of dollars' worth of oil properties and real estate.
The 1987 notes at issue here are the culmination of a series of renewal notes securing long-standing indebtedness. The wife personally signed some of the renewal notes. More important, the wife acquiesced in her husband's execution of the 1987 notes on her behalf: the husband testified that he had informed the wife that he was signing her name to the 1987 notes. The wife concedes that she never told the husband not to sign her name to documents until 1988, when she instituted proceedings to terminate their marriage. These facts show that the durable power of attorney did not terminate by operation of law before the 1987 transactions in issue here.
However, the wife also contends that even if the durable power of attorney was in effect in 1987, the husband's signing of his wife's name to the 1987 notes was a breach of the fiduciary duty he, as the agent, owed his wife, as the principal, because he signed her name for his own benefit. This breach, the wife apparently reasons, precluded the husband from binding the wife to the Bank on the 1987 notes. The wife's apparent reasoning is a free leap justified by neither logic nor law.
Principals and agents do stand in a fiduciary relationship, which obligates an agent "to be perfectly frank with [his principal], to make full disclosure of all material facts, to strictly avoid misrepresentation..., and in all respects to act with the utmost good faith, fidelity and loyalty in the interest of [the principal]." Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App. 1968). An agent who acts for a purpose unrelated to the principal's welfare violates this duty of loyalty, which requires an agent to place his principal's interest above all others, including the agent's. See Utlaut v. Glick Real Estate Co., 246 S.W.2d 760, 763 (Mo.1952). Thus, when an agent is authorized to borrow money on his principal's behalf, "it is inferred that the agent is authorized to borrow only for the purposes of the principal, and the power of attorney, given for the benefit of the principal, *508 is so interpreted, even though expressed in the broadest terms." Restatement, § 75, Comment d.
Obviously, then, an agent has no actual authority to act in violation of his fiduciary duties. However, if we assume, as the wife does for the purpose of this point, that the durable power of attorney authorized borrowing for their joint benefit, then, the husband had at least apparent authority to obtain the 1987 loans, even if husband had breached his fiduciary duties.
Apparent authority results from a manifestation by a principal to a third party that an agent for the principal is authorized to do certain acts. Barton v. Snellson, 735 S.W.2d 160, 162 (Mo.App. 1987). The manifestation from the principal to the third party need not be direct:
The `holding out' of the agent's authority by the principal party may be by action or inaction. The principal may directly communicate the authority to a third party or knowingly permit the agent to exercise such authority. Hamilton Hauling, Inc., v. GAF Corp., 719 S.W.2d 841, 846 (Mo.App.1986).
Apparent authority exists only to the extent that a third party dealing with an agent actually and reasonably believes that the agent possesses the authority held out by the principal. Id.
Thus, as long as an agent intends to act for his principal's benefit, the agent has actual authority to borrow, and he would have authority to represent to a third party that he was so authorized, which, in turn, would create apparent authority. Moreover, authorizing an agent to do certain acts may create apparent authority in the agent to perform unauthorized acts of a similar nature.
Permitting another to do a series of acts which can be reasonably interpreted as creating authority to continue to do similar acts, is a fruitful source of apparent authority. In some of the cases, the initial authority of an agent has terminated but not the apparent authority as to those who knew of the previous relation. Seavey, Agency, § 22, p. 44 (1964). The apparent authority created while an agent authorized to borrow money intends to act for his principal's benefit may therefore outlast the agent's actual authority. "[T]he revocation of the authority of an agent takes effect as to [innocent] third persons only from the time the revocation is made known to them." Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524, 531 (Mo.1968).
Here, the husband testified that he may have presented the durable power of attorney to the Bank as early as 1979 and that he definitely gave the Bank a copy of that power in 1981. The evidence presented at trial, viewed in the light most favorable to the verdict, showed that it was reasonable for the Bank to assume that the husband retained that authority until and unless the wife revoked it. As long as the husband had not breached his fiduciary duties prior to apprising the Bank of the durable power of attorney, the husband retained apparent authority to obtain loans from and to pledge his wife's collateral to the Bank until she communicated revocation of the power of attorney to the Bank. As previously noted, the wife concedes that she did not communicate revocation of the durable power of attorney to the Bank until after the 1987 transactions.
Even if we were to assume that the husband had formulated an intent to breach his fiduciary duties to the wife before ever manifesting to the Bank that he had authority to act on his wife's behalf, the husband retained "inherent agency power" to act as his wife's agent. Admittedly, "apparent authority cannot be based upon an agent's unauthorized claim of authority." Henry v. Cervantes-Diversified & Associates, 700 S.W.2d 89, 92 (Mo.App. 1985). So, if an agent decides to borrow money for his own benefit, he has no actual authority to borrow; nor would the agent have any authority to represent to a third party that he had authority to borrow, which representation could be the basis of apparent authority. Nonetheless, the agent could still bind his principal to the third party by "inherent agency power."
*509 The term, "inherent agency power," was first used in the Restatement (Second) of Agency, § 8A, to explain the power of an agent to bind the principal to a third party where the agent "who conducts the transaction has neither [actual] authority nor apparent authority and there are no estoppel elements." Seavey, supra, at § 8F, p. 15. The term is used in the Restatement
to indicate the power of an agent which is derived not from authority, apparent authority or estoppel, but solely from the agency relation and exists for the protection of persons harmed by or dealing with a servant or other agent. Restatement, § 8A.
Thus,
A disclosed or partially disclosed principal is subject to liability upon a contract purported to be made on his account by an agent authorized to make it for the principal's benefit, although the agent acts for his own or other improper purposes, unless the other party has notice that the agent is not acting for the principal's benefit. Restatement, § 165.
The creation or recognition of this power is based upon a perceived commercial need. Seavey observes that "it is not unfair to place the risk of the agent's honesty upon the principal, since [the principal] has the opportunity of investigating the agent before entrusting him with his affairs, and in the long run this result inures to the benefit of employers [and other principals], whose interests require that they should guarantee the honesty of agents to those doing business with them." Seavey, supra, at § 61A; See also, Restatement, § 161, Comment a.
Our courts have referred to the concept of inherent agency power, neither adopting or rejecting it. Reeves v. Jones, 416 S.W.2d 952, 956 (Mo.1967); Sturgeon v. State Bank of Fisk, 616 S.W.2d 578, 584 (Mo.App.1981). A number of other jurisdictions have expressly adopted the concept. E.g. Nogales Service Center v. Atlantic Richfield Co., 126 Ariz. 133, 613 P.2d 293, 296 (Ariz.App.1980); Cote Bros., Inc. v. Granite Lake Realty Corp., 105 N.H. 111, 193 A.2d 884, 885 (1963); Restatement, Appendix, § 8A. Quite often its existence has been concealed "by basing the liability on apparent authority, even in cases in which it was obvious there was no appearance of authority, or upon an expanded idea of estoppel." Seavey, supra at p. 105. To us, the concept makes good commercial sense and is applicable here.
Since the Bank had no knowledge that the husband may have been acting in violation of his fiduciary duties and therefore beyond his authority, the husband had inherent agency power to deal with the Bank on his wife's behalf. Even if the husband did breach his fiduciary duties as his wife's agent, she, as principal, would still be liable to the Bank, a third party dealing in good faith with her ostensible agent.[3]
The wife also argues she was not liable on the 1987 notes because her husband did not indicate he was signing her name in his representative capacity. The wife contends that both the Uniform Commercial Code, as adopted in Missouri, and the common law regarding durable powers of attorney, as recently codified by statute, absolve her, a principal, of liability under such circumstances. Again, we disagree.
Missouri's Commercial Code provides that "no person is liable on an instrument unless his signature appears thereon." § 400.3-401(1). A principal's "signature may be made by an agent or other representative, and [the agent's] authority to make it may be established as in other cases of representation." § 400.3-403(1). A principal is thus liable on an instrument to which his signature is affixed by an authorized agent. Nevertheless, the wife insists that Comment 2 to § 400.3-403 absolves a principal of liability for commercial paper to which an authorized agent signs *510 the principal's name without revealing the agent's representative capacity.
The wife's argument takes the Comment on which it depends completely out of context. Section 400.3-403(2) concerns the consequences of an agent's signing his own name to an instrument without revealing both the existence and identity of his principal. The statute provides
an authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity. 400.3-403(2) (emphasis added).
Comment 2 to § 400.3-403 indicates the agent may be solely liable under certain circumstances: "even though [the agent] is authorized the principal is not liable on the instrument under the provisions (Section 3-401) relating to signatures, unless the instrument names [the principal] and clearly shows that the signature is made on his behalf." Comment 2 is simply a straightforward application of § 400.3-401: a principal cannot be liable on an instrument to which an agent signs only the agent's name because the principal's signature does not appear on the instrument.
This analysis is entirely consistent with the objective of § 400.3-403, which is to promote the certainty of commercial transactions by enabling the holder of commercial paper to "`tell at a glance' whose obligation he holds." Anderson, Uniform Commercial Code § 3-403:3 (1984). A holder may readily conclude that a principal is obligated on an instrument if the instrument contains either the principal's signature by an authorized representative or an agent's signature accompanied by revelation of the agent's representative capacity and the principal's identity. Absolving the wife, as principal, of liability on an instrument to which her authorized agent, her husband, affixed her name would only impede the certainty of commercial transactions.
Missouri's new Durable Power of Attorney Statute, §§ 404.700-404.735 RSMo 1989, adds an additional degree of certainty to commercial transactions by requiring that "an attorney in fact acting for the principal under a power of attorney shall clearly indicate his capacity ..." § 404.712.1. The statute's apparent requirement that even an agent authorized to sign for his principal must reveal his representative capacity did not exist under the prior Durable Power of Attorney Statutes, §§ 486.550-486.595 RSMo 1986.
However, even if we were to accept the wife's contention that the new Durable Power of Attorney Statutes merely codifies pre-existing common law, the wife would not be absolved of liability to the Bank. The obvious purpose of the new statutory requirement that agents always reveal their representative capacity is to let third parties know with whom they are dealing. This purpose is served whenever a principal's name appears on an instrument, even if an agent has signed the principal's name without revealing the agent's representative capacity. Notwithstanding any liability which an agent might have under our new Durable Power of Attorney Statutes, a principal whose name has been affixed to a commercial paper by an authorized agent is personally liable on that instrument under §§ 400.3-401 and 400.3-403(1). Therefore, the husband's failure to indicate his representative capacity on the 1987 notes did not affect wife's liability on those instruments.
Finally, we address the wife's contention that even if she is liable on the 1987 notes, the trial court erred in awarding the Bank the full $100,000 amount of the injunction bond and a collateral assignment agreement posted by the wife.
At the wife's request, the trial court issued a temporary restraining order on December *511 20, 1988 prohibiting the Bank from attempting to foreclose on the wife's interest in the collateral. The wife filed an injunction bond in the amount of $25,000 and agreed to post an additional bond in the event of a decline in the market value of the stock pledged as collateral. The wife and the Bank subsequently entered into a "collateral assignment agreement," devised as an alternative method for protecting the Bank against the possibility of a decline in the price of the stock pledged as collateral. Under the terms of this agreement, the wife assigned to the Bank a security interest in a $75,000 certificate of deposit in order to cover any damages caused by the temporary restraining order in excess of the $25,000 injunction bond.
Before considering the merits of the wife's contention, that the damages on the bond were improper, we must address two procedural arguments made by the Bank. The Bank first argues that wife's appeal of this portion of the judgment was untimely. We disagree.
On May 19, 1989, the trial court entered an order for the Bank in which it dissolved the temporary restraining order and set a June 9 date for a hearing on the Bank's damages as a result of the temporary restraining order. The court also stated that at the June 9 hearing additional interest up to that time would be computed.
Appeals lie only from final judgments "leaving nothing for future determination." Sinopole v. Morris, 735 S.W.2d 194, 195 (Mo.App.1987). By its very terms, the May 19 order reserved decision on the amount of damages caused by imposition of the temporary restraining order as well as the computation of the interest. Thus, the judgment against the wife did not become final until damages were actually assessed on June 14, and the wife's notice of appeal filed within ten days of that date was timely. Rule 81.04(a).
The Bank also argues that the wife's appeal of this portion of the judgment was not preserved for review because the "statement of facts" portion of wife's appellate brief did not comply with Rule 84.04(c). We have read the wife's brief. It does meet the requirements of Rule 84.04(c). We therefore consider this point on its merits.
The measure of damages recoverable on an injunction bond is the amount necessary to compensate a defendant for losses directly caused by the restraint, while it is in force. Collins & Herman, Inc. v. St. Louis County, 684 S.W.2d 324, 326 (Mo. banc 1985). Damages "occasioned by the [underlying] suit independent of the injunction" are not recoverable from the proceeds of an injunction bond. C.H. Albers Commission Co. v. Spencer, 236 Mo. 608, 139 S.W. 321, 326 (1911). The party seeking damages has the burden of proving loss which is the direct result of the issuance of the restraining order. Economy Gas Co. v. Bradley, 472 S.W.2d 878, 879 (Mo.App.1971).
The trial court included the principal and interest due on the 1987 notes in its calculation of the Bank's damages on the injunction bond and collateral assignment agreement. The trial court itemized the Bank's damages from the temporary restraining order as follows: $14,495.00, attorney's fees; $229.95, deposition expenses; $1,199,425.83, principal and interest due on one note, $1,144,185.54 principal and $55,240.29 interest; and $261,969.17, principal and interest on the other note, $250,000.00 principal and $11,969.17 interest. Although not expressly stated in the order, the court apparently was referring to the interest which had accrued before the date of the temporary restraining order, December 20, 1988. The court awarded the Bank "the total sum of $100,000, the amount of [the Bank's] damages covered by said injunction bond and Collateral Assignment Agreement."
The trial court erred in including the principal and interest due on the notes in its computation of Bank's damages resulting from the temporary restraining order. The issuance of that order did not cause those damages.
The wife does not dispute that the Bank's attorney's fees and deposition expenses are proper elements of damages *512 resulting from the temporary restraining order. The wife only challenges the propriety of including the principal and interest due on the notes. According to the wife, on the date when the temporary restraining order issued, December 20, 1988, there was $67,209.46 in interest due on the two notes. The wife contends that, in addition to its attorney's fees and court costs, the Bank's damages consisted, at most, of the lost opportunity to earn interest at the legal rate of 9% on the amount of interest due as of the date when the restraining order issued. According to the wife's computations, that amount is less than $3,000 for the period when the restraining order was in effect. We disagree.
Section 408.040.1 provides that contractual judgment debts bear interest at either the legal rate of 9% or the contract rate, whichever is greater.[4] Therefore, upon dissolution of a restraining order enjoining collection of a money judgment, "`interest thereon at the legal rate, for the time the money is impounded, may be recovered by way of damages.'" Terminal Railroad Ass'n of St. Louis v. Schmidt, 353 Mo. 79, 182 S.W.2d 79, 84 (1944). However, the legal rate of interest applicable to judgment debts has no bearing upon determination of damages caused by a temporary restraining order when, as here, the order did not enjoin collection of a money judgment.
More relevant, perhaps, "`when the collection of a judgment has been enjoined [, damages] ... should be computed upon the aggregate amount of principal, interest and costs due at the time the injunction took effect.'" Id. at 84-85. Accordingly, if the issuance of a temporary restraining order does deprive a prevailing party of the opportunity to collect interest in excess of the contract rate on a contractual debt, then the prevailing party's damages should include the excess of the higher interest rate over the contract interest rate on the amount of principal and interest due on the date when the restraining order issued, for the time that the order remained in force.
The Bank's argument in support of the trial court's assessment of damages on the bond is also not persuasive. The Bank relies on Terminal Railroad, supra, for the proposition that the principal and interest due on the notes as of December 20, 1988, when the temporary restraining order issued, constitute an appropriate element of damages caused by that order. The Bank's reliance is misplaced.
In Terminal Railroad, collection of a $40,000 judgment had been enjoined. In awarding damages upon dissolution of the injunction, the court allowed not only interest on the principal due when the restraining order issued, but also interest at the legal rate on the accumulated interest due on the judgment as of the time when the restraining order was imposed. 182 S.W.2d at 84. As the court explained, the prevailing party was entitled to interest on the "sum due the day the injunction was issued[,]" including interest which had accrued prior to the injunction. Id. Thus, the Court neither held nor implied that a prevailing party may recover, as damages for the wrongful issuance of a restraining order, principal and interest due on the date when the order issued. Rather, it held that damages may include interest computed upon the sum of principal and interest due on the underlying debt as of the date when the restraining order took effect.
In the present case, the Bank has not shown that, but for the issuance of the temporary restraining order, it would have earned interest in excess of the rate provided in the notes. Economy Gas Co., supra, at 879. The Bank is therefore limited to the other items of damage found by the *513 trial court: attorney's fees and deposition expenses, totalling $14,724.95.
We affirm the trial court's judgment for the Bank and against both the husband and the wife in the amount of $1,543,002.60, representing both principal and interest due on the two notes as of the date of judgment. We also affirm the award of attorney's fees and deposition expenses as compensation for damages which the Bank incurred as a result of the temporary restraining order. The inclusion, as damages, of the principal and interest due on the notes as of December 20, 1988, when the temporary restraining order issued, is reversed.
SMITH and GRIMM, JJ., concur.
NOTES
[1] All statutory references to RSMo 1986, unless otherwise indicated.
[2] All Restatement references are to Restatement (Second) of Agency.
[3] Since inherent agency power is not a privileged power, an agent's wrongful exercise of such power does not prevent a principal from seeking recourse against the agent. Thus, if the husband's actions did, in fact, breach his fiduciary duty to his wife, his actions would not be privileged with respect to his wife, the principal. We express no opinion concerning whether the husband actually violated his fiduciary duty as his wife's agent.
[4] Section 408.040.1 provides in full:
Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than nine percent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear nine percent per annum until satisfaction made as aforesaid. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577509/ | 35 So. 3d 101 (2010)
Shannon SMITH, Appellant,
v.
LOEWS MIAMI BEACH HOTEL OPERATING COMPANY, INC., Appellee.
No. 3D09-1244.
District Court of Appeal of Florida, Third District.
May 12, 2010.
Rehearing Denied June 5, 2010.
James A. Barrios, Lakeland, for appellant.
Restani, Dittmar & Hauser and Helen Ann Hauser, Coral Gables, for appellee.
Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
ROTHENBERG, J.
Shannon Smith, the plaintiff below, appeals the final judgment awarding attorney's fees and costs to Loews Miami Beach Hotel Operating Company, Inc. ("the Hotel") following the voluntary dismissal without prejudice of her negligence lawsuit against the Hotel. Because we conclude that Smith properly preserved her objection to the award of attorney's fees and costs below and because such an *102 award based on a dismissal of the cause of action requires that the dismissal be with prejudice, we reverse.
Smith sued the Hotel for damages in June 2005. The sole claim pled was a tort claim seeking damages for negligent infliction of emotional distress. The Hotel served Smith with a Proposal of Settlement in February 2006 to which she did not respond. Nearly one year later, the Hotel filed a motion for final summary judgment alleging that the impact rule precluded Smith's action. Prior to the hearing on the Hotel's motion, Smith served the Hotel with a Notice of Voluntary Dismissal without prejudice, upon which the Hotel filed its motion seeking an award of attorney's fees and costs based on its Proposal of Settlement and pursuant to section 768.79, Florida Statutes.
On January 13, 2009, the trial court conducted a hearing on the Hotel's motion for attorney's fees and costs. The sole objection raised at that hearing was that the settlement proposal was not made in good faith. After determining that Smith's dismissal of her complaint was in recognition that the only claim she had raised in her complaint was vulnerable to the impact rule, and that in all likelihood the trial court would have granted the Hotel's motion for summary judgment, the trial court concluded that the proposal for settlement was not made in bad faith and thus the Hotel was entitled to its fees and costs. The trial court told the parties that it would set a hearing to determine the amount of attorney's fees and costs to be awarded, and informed the parties that the hearing would be conducted by the successor judge who had been assigned to preside over that division.
At the specially set hearing to determine the amounts to be awarded, Smith renewed her objection to the award of attorney's fees and costs on the ground that the settlement offer was not made in good faith and she raised a new objection: that the voluntary dismissal, which was without prejudice, did not act as a disposition on the merits of the case. Smith then informed the trial court that she had filed a new complaint in another division. Because we conclude that Smith's objection was sufficiently preserved and the law supports Smith's objection, the trial court erred in awarding the Hotel attorney's fees and costs.
Florida Rule of Civil Procedure 1.420(a)(1) provides in pertinent part:
Except in actions in which property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment.... Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.
(emphasis added). In accordance with this rule, the "party seeking affirmative relief has an almost absolute right to dismiss his entire action once without a court order by serving a notice of dismissal at any time before a hearing on a motion for summary judgment." Marine Contractors, Inc. v. Armco, Inc., 452 So. 2d 77, 79 (Fla. 2d DCA 1984) (citing Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)).
Section 768.79, the Offer of Judgment statute, allows a party to recover attorney's fees "when a party has satisfied the terms of the statute and rule." Attorneys' Title Ins. Fund, Inc. v. Gorka, ___ So.3d ___, ___ (Fla. 2010) (citing MGR *103 Equip. Corp. v. Wilson Ice Enters., Inc., 731 So. 2d 1262, 1263 (Fla.1999)). Under section 768.79, a defendant who files an offer of judgment which is not accepted by the plaintiff within thirty days is entitled to an award of attorney's fees and costs where: (1) the judgment is one of no liability; (2) the judgment obtained by the plaintiff is at least twenty-five percent less than the defendant's offer; or (3) the cause of action was dismissed with prejudice.
In MX Investments, Inc. v. Crawford, 700 So. 2d 640, 642 (Fla.1997), the Florida Supreme Court concluded that to be entitled to an award of attorney's fees under section 768.79 based on a dismissal of the cause, the dismissal must be with prejudice. In explaining what constitutes a dismissal with prejudice, the Court made it clear that for purposes of the offer of judgment statute, the dismissal must represent a judgment of no liability. Id. Thus, an involuntary dismissal, a dismissal with prejudice, and a second voluntary dismissal (which serves as adjudication on the merits pursuant to rule 1.420(a)(1)) all qualify as a basis of an award of attorney's fees under section 768.79. The Florida Supreme Court in MX found that the defendant-hotel was not entitled to an award of attorney's fees where the plaintiff rejected a proposal of settlement and then voluntarily dismissed his complaint without prejudice. Similarly, in the instant case, the Hotel is not entitled to an award of attorney's fees and costs because Smith's voluntary dismissal was her first notice of dismissal, her voluntary dismissal was without prejudice, and her voluntary dismissal did not operate as an adjudication on the merits. Accordingly, we reverse the order under review.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/846862/ | Order Michigan Supreme Court
Lansing, Michigan
February 27, 2006 Clifford W. Taylor,
Chief Justice
129440 Michael F. Cavanagh
(27) Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 129440
COA: 263005
Wayne CC: 87-011832
WALTER E. ANTHONY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court's order of
December 27, 2005 is considered, and it is DENIED, because it does not appear that the
order was entered erroneously.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 27, 2006 _________________________________________
l0221 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3044442/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1198
___________
In Re: Darwin Gene Rice; Diane *
Carol Rice, *
*
Debtors. *
-------------------------------- *
Darwin Gene Rice; Diane Carol Rice, *
*
Appellants, *
* Appeal from the United States
v. * Bankruptcy Appellate Panel
* for the Eighth Circuit.
Carol F. Dunbar; Commerce Bank; *
The Farm Service Agency; * [UNPUBLISHED]
Home State Bank; *
*
Appellees. *
___________
Submitted: March 13, 2008
Filed: April 2, 2008
___________
Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Darwin and Diane Rice (the Rices) appeal from the decision of the Bankruptcy
Appellate Panel affirming orders of the bankruptcy court.1 After careful review, see
In re Vote, 276 F.3d 1024, 1026 (8th Cir. 2002) (stating a bankruptcy court’s factual
findings are reviewed for clear error and its legal conclusions are reviewed de novo),
we conclude (1) the bankruptcy court did not abuse its discretion in denying the Rices’
motion for a continuance before the final hearing, because the reason for the
continuance--the Rices’ decision to terminate their counsel’s services only days before
the hearing, and to seek new legal counsel--was within their control, and the matter
had been pending for a lengthy period of time; (2) the bankruptcy court did not err in
denying confirmation of the Rices’ Chapter 12 plan based on the court’s finding the
plan was not feasible; (3) the court did not abuse its discretion in dismissing the case
given the length of time the case had been pending and the Rices’ repeated
unsuccessful efforts to file a feasible plan; and (4) the court’s decision to pierce the
corporate veil of the D & R Cattle Company was proper. The Rices’ challenge to the
order lifting the automatic stay is moot.
We affirm the judgment of the Bankruptcy Appellate Panel, see 8th Cir. R. 47B,
and we deny the pending motion for a supersedeas bond as moot.
______________________________
1
The Honorable Lee M. Jackwig, United States Bankruptcy Judge for the
Southern District of Iowa.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1299320/ | 274 S.E.2d 235 (1981)
Robert TAYLOR
v.
R. L. BAILEY.
Supreme Court of North Carolina.
January 13, 1981.
Jeffrey P. Hunt, Brevard, for plaintiff.
S. Thomas Walton, Asheville, for defendant.
Appeal dismissed on motions of plaintiff and defendant, N.CApp., 271 S.E.2d 296. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918413/ | 764 A.2d 69 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Tyrone UPSHUR, Appellant.
Superior Court of Pennsylvania.
Argued April 17, 2000.
Filed December 7, 2000.
*71 Daniel A. Rendine, Philadelphia, for appellant.
Greg A. Rowe, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before McEWEN, President Judge, DEL SOLE, HUDOCK, EAKIN, JOYCE, STEVENS, MUSMANNO, ORIE, MELVIN, and TODD, JJ.
*70 HUDOCK, J.:
¶ 1 This is an appeal from the judgment of sentence entered after Appellant was convicted by a jury of first degree murder, aggravated assault and possessing an instrument of crime.[1] For the reasons that follow, we affirm.
¶ 2 On January 2, 1995, Philadelphia Police Officer Al Foster responded to the scene of a stabbing which had occurred at approximately 6:00 p.m. at 5700 Elmwood Avenue in Philadelphia. The victim, Robert Young, identified his assailant as Terrance Skinner. Officer Foster, accompanied by Young, drove through the neighborhood in an effort to locate Skinner, but was unsuccessful. Officer Foster then took Young to the hospital, where he was treated and released. Later that evening, at approximately 9:00 p.m., Officer Foster received a radio call that Skinner was seen driving his vehicle in the vicinity of the 5500 and 5600 blocks of Elmwood Avenue. Officer Foster responded to the call, as did Philadelphia Police Officers Grant, Pigford and Riddick. The officers arrived at the described location and found Skinner in an automobile with two other individuals, George Richardson and John Green. A crowd, which included Appellant, had formed around the car and its members were threatening Skinner, Richardson and Green.
¶ 3 Young identified Skinner as his assailant, but stated that Richardson and Green were not involved in the stabbing. Skinner was removed from the vehicle, placed in the backseat of a police cruiser and driven away from the scene by Officers Foster and Grant. Nonetheless, the crowd continued to voice threats to Richardson and Green who remained in Skinner's vehicle. Appellant was excessively vocal in his threats to the two men.
¶ 4 Out of concern for Richardson and Green's safety, Officers Pigford and Riddick placed the men in their police car and escorted them out of the area to the nearby Gray's Ferry Bridge. Richardson and Green exited the police vehicle and began to cross the bridge to reach their homes located in South Philadelphia. While crossing over the bridge, they were approached by Appellant, who confronted them, shot Green in the arm and fatally shot Richardson in the back. Green ran to a nearby gas station and contacted the police.
¶ 5 Subsequently, Green identified Appellant from a photo array and Appellant was arrested. A trial before a jury was held on May 12-15, 1997, following which Appellant was convicted of murder in the first degree, possession of an instrument of crime and aggravated assault.[2] On May *72 20, 1997, the penalty phase hearing was held on the murder conviction and the trial court imposed a life sentence after the jury was unable to agree on the penalty. On July 22, 1997, following preparation of a pre-sentence and mental health report, Appellant was further sentenced to not less than six months nor more than sixty months' imprisonment for the offense of possession of an instrument of crime, and to not less than five nor more than ten years' imprisonment on the aggravated assault conviction. On July 29, 1997, post-verdict motions were filed. On December 1, 1997, the motions were denied by operation of law. This timely appeal followed.
¶ 6 On appeal, Appellant presents the following issues for our consideration:
I. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THUS SHOCKED ONE'S SENSE OF JUSTICE?
II. WHETHER [THE] TRIAL COURT ERRED IN REFUSING TO PERMIT THE TESTIMONY OF POLICE OFFICER BRIAN SPROWAL CONCERNING THE STATEMENT OF AN EYE WITNESS [SIC] TO THE INCIDENT AS AN "EXCITED UTTERANCE" EXCEPTION TO THE HEARSAY RULE?
III. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST [A] "KLOIBER" CHARGE THAT THE IDENTIFICATION TESTIMONY OF MR. JOHN GREEN MUST BE RECEIVED WITH CAUTION?
Appellant's Brief at 2.
¶ 7 In his first issue, Appellant maintains that the verdict was against the weight of the evidence. Specifically, he contends that "[t]he only eye-witness [sic] who testified at the trial, John Green, gave conflicting accounts of the incident in statements to the police, prior trials, and the current trial, as to make his testimony wholly unworthy of belief." Appellant's Brief at 3.
¶ 8 The Pennsylvania Supreme Court has recently set forth the proper considerations for reviewing a challenge to the weight of the evidence.
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence[,] do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Commonwealth v. Widmer, 560 Pa. 308, 319-20, 744 A.2d 745, 751-52 (2000) (citations, quotation marks, and footnote omitted). Stated another way, a court may award a new trial because the verdict is against the weight of the evidence only when the verdict rendered "is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Commonwealth v. Goodwine, 692 A.2d 233, 236 (Pa.Super.1997) (citation omitted). Moreover, *73 appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence. Widmer, 560 Pa. at 321, 744 A.2d at 753. When reviewing the trial court's determination, we give the greatest deference to the findings of the court below.
¶ 9 Initially, we must address the Commonwealth's assertion that Appellant's weight of the evidence claim is unreviewable because the trial court never addressed the claim. After trial, Appellant filed timely post-sentence motions which included the issue of whether the verdict was against the weight of the evidence. At this juncture, however, the trial judge was no longer sitting as a judge and the post-trial motions were denied by operation of law. Consequently, the trial judge never addressed the weight claim presented by Appellant. However, to find this claim unreviewable, as the Commonwealth suggests, would be unjust to Appellant in that he has taken all measures necessary to properly preserve this claim for our consideration. Moreover, when a claim is denied by operation of law, the effect of the denial operates in the same manner as if the court had denied the motion itself. Accordingly, we find that for these reasons, in conjunction with the fact that this was a jury trial and all credibility determinations have been made by the jury and not by the trial judge, we are not precluded from addressing Appellant's weight claim.[3]See Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918, 923-24 (1989) (holding that post-trial motions for new trial and/or in arrest of judgment could be decided by judge other than trial judge where trial judge was relieved of his duties so as to prevent him from making determination on legal issues raised by defendants, and where there was a jury trial such that all issues of credibility and reasonable doubt were resolved by the jury).
¶ 10 In support of his argument, Appellant points to various inconsistencies in the record involving conflicting descriptions of the assailant that appear in reports of police officers who interviewed Green. Specifically, Officer Gramlich testified that Green advised him that six men were on the bridge and the shooter was a black male, age twenty-two, husky, light-skinned, with a slight beard. Later that same evening, Green spoke with a Detective Dougherty and allegedly told the detective that the shooter was a black male, age eighteen or nineteen, five foot eleven inches, thin but muscular, medium complexion, nappy beard with a dark denim jacket. Appellant additionally argues that, during the trials, Green repeatedly contradicted himself by stating that the shooter was wearing a jean jacket and then subsequently stating he was wearing a "hoodie".[4] Appellant also contends that Green's testimony was further rendered incredulous when, in his descriptions to the police, he never mentioned Appellant's prominent scar on the right side of his face, nor did he even give a description of the assailant *74 to Officer Brian Sprowal, who was the first officer on the scene following the shootings. Appellant further challenges the testimony of Officer Pigford as suspect where Officer Pigford testified that Green told him later on the evening of the shootings that the shooter was the "loudmouth," N.T., 5/14/97, at 111, and Officer Pigford knew to whom he was referring but did not relay this information to homicide until thirteen days later. Thus, Appellant contends that this testimony, taken together, renders the jury's verdict against the weight of the evidence. We disagree.
¶ 11 At trial, Green consistently stated that, at the time of the shooting, the shooter was wearing a "hoodie" and identified the shooter as Appellant. He denied telling Officer Gramlich that there were six men on the bridge at the time of the shooting and that Appellant had on a jean jacket at that time. Green, however, did testify that Appellant was wearing a jean jacket at the time of the Elmwood Avenue encounter. "[I]t was solely for the [jury], as the finder of fact, to determine the credibility of witnesses and to resolve any conflicts or inconsistencies in the evidence." Commonwealth v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d 536, 541 (1995). Accordingly, in light of the jury's determination that the testimony of the Commonwealth's witnesses was credible, we fail to find that the verdict was against the weight of the evidence presented at trial.
¶ 12 In his next issue, and the issue which brings the case before the Court en banc, Appellant asserts that the trial court erred in excluding the statement of an unidentified motorist who, within minutes following the shooting, provided a description of the gunman to Police Officer Sprowal. Appellant argues that because the statement of the motorist was made within minutes of the shooting, it was an excited utterance and, therefore, qualifies as an exception to the hearsay rule.
¶ 13 During cross-examination of Officer Sprowal, defense counsel attempted to elicit testimony regarding the information obtained from the unidentified motorist. The Commonwealth objected on grounds of hearsay. At sidebar the parties argued whether or not the motorist's statement qualified as an excited utterance. Appellant's counsel proffered that Officer Sprowal would testify that upon arriving at the scene and briefly speaking with Green, he proceeded onto the bridge where he encountered the motorist who stated that the shooter was a light-skinned black male wearing a "Guess" shirt. N.T., 5/13/97, at 17. The Commonwealth argued in opposition that without anything further there was inadequate evidence to establish the reliability of the statement, and that there was no indication that the motorist was excited when he spoke to the officer. At the conclusion of the sidebar, the court directed defense counsel to lay a foundation for the testimony.
¶ 14 Officer Sprowal then testified that he received a radio call that a shooting had occurred and that he responded to the scene "within about a minute or two." N.T., 5/13/97, at 21. Upon arriving at the scene, Officer Sprowal spent a minute with Green and then proceeded to talk with the unidentified motorist. When asked what the motorist's "condition" appeared to be, Officer Sprowal responded that the motorist was "calm" and spoke in a "matter of-fact tone of voice." Id. at 22-23. Defense counsel then asked Officer Sprowal if the motorist indicated that he had just recently seen something, at which point the Commonwealth again objected. At the conclusion of a lengthy sidebar discussion, the court ruled that the statement was not admissible.
¶ 15 Appellant asserts that the trial court improperly focused solely on the fact that the motorist was not excited when he spoke to Officer Sprowal. He claims that because the statement was made so close in time to the shooting, it qualifies as an excited utterance. The Commonwealth argues that the excitedness of the declarant is a necessary element that is absent in the present case. The Commonwealth further *75 contends that the motorist's statement is lacking the requisite indicia of reliability needed for admissibility pursuant to the excited utterance exception to the hearsay rule because there is no evidence of record that the motorist actually witnessed the shooting.
¶ 16 For a hearsay statement to qualify as an excited utterance, the statement must be:
"[a] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties."
Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942). Admissibility pursuant to this exception requires, initially, that the declarant observe an event sufficiently startling and so near in time as to render his reflective thought process inoperable and, secondly, that the declaration constitute a spontaneous reaction to the startling event. Commonwealth v. Cooley, 465 Pa. 35, 41, 348 A.2d 103, 106 (1975).
Commonwealth v. Counterman, 553 Pa. 370, 400, 719 A.2d 284, 299 (1998) (emphasis added).[5]See also Commonwealth v. Albrecht, 554 Pa. 31, 52-53, 720 A.2d 693, 704 (1998) (same).
¶ 17 Our appellate courts have specifically addressed the admissibility of an unidentified bystander's statement as an excited utterance in Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 240 A.2d 71 (1968), and in Williamson v. Philadelphia Transportation Co., 244 Pa.Super. 492, 368 A.2d 1292 (1976). In Carney, a wrongful death and survival action was filed against Pennsylvania Railroad Company as the result of an accident where a railroad switching engine struck an automobile in which the decedents were passengers. At trial, the statement of an unidentified bystander that the engine came out too fast and had no lights on was admitted into evidence through testimony of the investigating police officer, pursuant to the res gestae exception to the hearsay rule.[6] Upon review, the Supreme Court found that the out-of-court assertion by the unidentified bystander did not demonstrate that the declarant actually viewed the event of which he spoke and, as such, that the admission of the statement constituted reversible error. In reaching its decision, the Court reasoned as follows:
[T]he fundamental basis for admitting purely hearsay statements under the res gestae exception is the recognition that under certain circumstances, based on our experience, the utterances may be taken as particularly trustworthy and as an accurate reflection of what the declarant actually observed. See Wigmore, Evidence § 1747 (3d ed.) (1940). We are of the opinion that out-of-court assertions made by unidentified bystanders who may or may not have actually witnessed the litigated event are not properly admissible as part of the res gestae because their admission would not be consonant with the underlying philosophy of the hearsay rule and the res gestae exception. The mere fact that the police officer inferred from the *76 statements that the declarant must have witnessed the collision, or that the declarant said he witnessed the collision, does not lend any more credence or trustworthiness to the out-of-court statements. In order to justify the admissibility of such testimony, it is incumbent upon the party seeking its admission to persuasively and convincingly demonstrate by the use of other corroborating evidence that the declarant actually viewed the event of which he speaks.
Id. at 496, 240 A.2d at 75.
¶ 18 In Williamson, supra, this Court followed Carney and held that a police officer who had investigated an accident involving a bus and a pedestrian could not testify as to statements about the accident made by two unidentified persons who had alighted from the bus. This Court stated that where the defendant did not make an offer of proof as to what the bystanders actually said to the police officer at the scene of the accident, and did not establish that the two declarants actually saw the accident, the defendant failed to show that the statements satisfied the requirement for admission of evidence under the res gestae exception to the hearsay rule. See also Miller v. Keating, 754 F.2d 507, 509 (3rd Cir.1985) (holding that, in negligence action arising from a vehicle accident, the admission of a statement as an excited utterance by an unidentified bystander to the effect that plaintiff "tried to cut in" was reversible error when bystander's personal knowledge of the vehicle accident could not be proven and the spontaneity of the statement was undetermined).
¶ 19 In the instant case, Appellant has not shown by other corroborating evidence that the statement of identity made by the unidentified motorist was made by a declarant who had actually viewed the event.[7] Even assuming that Officer Sprowal would have testified consistently with defense counsel's offer of proof that the motorist stated to him that he witnessed the shooting, this in itself is insufficient to establish the trustworthiness of *77 the out-of-court statement. Carney, 428 Pa. at 494, 240 A.2d at 74 ("mere fact that the police officer inferred from the statements that the declarant must have witnessed the collision, or that the declarant said he witnessed the collision, does not lend any more credence or trustworthiness to the out-of-court statements.") Thus, because "the facts as disclosed by the record must indicate that the declarant actually witnessed the event to which his statements relate[,]" Id. (emphasis added), the trial court properly precluded the admission of the motorist's statement at trial. See Commonwealth v. Priovolos, 746 A.2d 621, 626, n. 6 (Pa.Super.2000) (providing that an appellate court may affirm the decision of a trial court when it is correct on any basis, regardless of the basis upon which the trial court relied). Because of our disposition of this issue, we need not address the parties remaining arguments pertaining to whether the unidentified motorist's demeanor, while reporting what he saw to the police, would have further prevented the admission of the statement.
¶ 20 Next, Appellant contends that, due to the doubtfulness of Green's identification testimony, trial counsel was ineffective for failing to request that the jury be instructed to receive such testimony with caution, pursuant to Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). Initially, we note that to prevail on a claim of ineffectiveness of counsel Appellant must prove that: (1) the underlying claim is of arguable merit; (2) counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) he was prejudiced by counsel's ineffectiveness. Commonwealth v. Pearson, 454 Pa.Super. 313, 685 A.2d 551, 555-56 (1996) (en banc).
¶ 21 During trial, Green testified that while on the bridge with Richardson, he and Richardson turned around to see a person approaching them from behind. Green stated that when they first turned around they thought that the man approaching them was the excessively vocal individual who had been making threats to them earlier at the scene of Skinner's identification and arrest on Elmwood Avenue. However, the man passed around them and continued walking in front of them and Green realized that this was not the same individual. Based on this testimony, Appellant argues that Green made a misidentification of the shooter and trial counsel should have requested a Kloiber charge. "A Kloiber charge instructs the jury that an eyewitness' identification should be viewed with caution where the eyewitness: (1) did not have an opportunity to clearly view the defendant; (2) equivocated on the identification of the defendant; or (3) had a problem making an identification in the past." Commonwealth v. Rollins, 558 Pa. 532, 555 n. 14, 738 A.2d 435, 448 n. 14 (1999). However, identification testimony need not be received with caution where it is positive, unshaken, and not weakened by a prior failure to identify. Kloiber, 378 Pa. at 424, 106 A.2d at 826. The evidence at trial reveals that Green had an unobstructed view of Appellant on the bridge, which was lit by streetlights, at a distance of three feet and has consistently identified Appellant as the shooter throughout the investigation, including identifying him from a photo array, and positively identifying him at all three trials. Green's identification of Appellant as the assailant has never wavered. Under the circumstances, a Kloiber charge was not required. See Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166 (1999) (holding that where the witness who saw defendant on the road near the murder scene on the night of the murder had an unobstructed view of the defendant and was able to identify him from a photo array and again at trial, the trial court was not required to instruct the jury to receive the identification testimony with caution); Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613 (1991) (providing that a cautionary instruction regarding *78 identification testimony was not required in murder case where none of the witnesses had failed to identify the defendant on a prior occasion, and all of the identifications were positive and unequivocal). Accordingly, counsel cannot be found ineffective for failing to raise a meritless issue. Ly, 528 Pa. at 533, 599 A.2d at 617.
¶ 22 Judgment of sentence affirmed. Application for Post Argument Submission Pursuant to Pa.R.A.P. 2501(a) is denied.
¶ 23 McEWEN, President Judge, concurs in the result.
¶ 24 ORIE MELVIN, J., files a Concurring and Dissenting Opinion.
¶ 25 DEL SOLE, J. files a Dissenting Opinion joined by MUSMANNO, J. and TODD J.
ORIE MELVIN, J., concurring and dissenting:
¶ 1 I concur in the Majority's disposition of the excited utterance and Kloiber charge issues. However, I disagree this Court should address the weight of the evidence issue when it was never properly addressed by the trial court in post-trial motions or in an opinion. Accordingly, because the Majority is espousing a new rule of law for appellate review of a challenge to the weight of the evidence, I respectfully dissent.
¶ 2 I believe the trial court should first make a determination of whether the verdict is against the weight of the evidence. In Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994), our Supreme Court defined the boundaries of the appellate court and trial court functions in reviewing weight of the evidence claims:
An appellate court by its nature stands on a different plane than that of a trial court. Whereas a trial court's decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court's review rests solely upon a cold record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge. Rather our court has consistently held that appellate review of the trial court's grant of a new trial is to focus on whether the trial judge has palpably abused his discretion, as opposed to whether the appellate court can find support in the record for the verdict.
Brown, 538 Pa. at 436, 648 A.2d at 1190 (emphasis added). Therefore, when the trial court has not provided any analysis regarding a challenge to the weight of the evidence, this Court has generally remanded the case for an explicit trial court determination. See Commonwealth v. Ragan, 439 Pa.Super. 337, 653 A.2d 1286 (1995) (holding where appellant challenged the weight of the evidence but the trial court did not address the issue, we could not take silence as an implicit denial of the claims but were required to remand for proper consideration); See also Commonwealth v. Perez, 444 Pa.Super. 570, 664 A.2d 582 (1995) (holding remand necessary where trial court did not address whether counsel was ineffective for failing to raise weight of the evidence claim).
¶ 3 In the present case, I recognize the trial court judge would not be able to address the weight of the evidence claim upon remand because he is no longer a sitting judge. See Armbruster v. Horowitz, 744 A.2d 285 (Pa.Super.1999) (Del Sole, J.) (Cirillo, P.J.E. dissenting), appeal granted, 563 Pa. 625, 758 A.2d 659, 2000 Pa. Lexis 1065 (April 28, 2000) (holding appellate review of weight of evidence claim proper where remand impractical now that the trial judge was no longer sitting in the Court of Common Pleas). However, in light of the Supreme Court's grant of allowance of appeal in Armbruster, and our limited scope of appellate review of these matters as delineated in Brown, I believe this case should be remanded to allow another sitting judge on *79 the Court of Common Pleas of Philadelphia County to address the weight of the evidence claim.
¶ 4 Moreover, the Majority's reliance on Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989), appeal denied sub nom, Commonwealth v. Reap, 525 Pa. 597, 575 A.2d 564 (1990), as support for reviewing the weight of the evidence claim is misplaced. In Cannon, the judge who presided over the trial and heard oral argument on post-trial motions was relieved of his duties before ruling on the motions. Another trial court judge then reviewed the transcripts and entered an order disposing of the motions. In finding this procedure was proper this Court stated:
The court is a tribunal or judicial agency of government that is separate from the individuals who compose it; it is a continuing body that survives the death of its members. An order entered by a judge other than the one who heard the case is not thereby rendered void. The death, disqualification or absence of a judge will not deprive the surviving or remaining judges of authority to hold court and transact the business of the court and in fact to exercise all functions pertaining to the particular court.
Id. at 923-924 (citations omitted).
¶ 5 Contrary to the Majority, I am unable to conclude Cannon authorizes this Court to address the Appellant's weight of the evidence claim. Instead, I believe Cannon gives credence to the proposition that in the event a presiding judge is no longer available, another sitting judge on the Court of Common Pleas of that county may be assigned to conduct certain outstanding matters pending before the court. See Bonavitacola v. Cluver, 422 Pa.Super. 556, 619 A.2d 1363, 1366, 1368, fn. 2. (1993), appeal denied, 535 Pa. 652, 634 A.2d 216 (1993), (overruled on other grounds by Johnston the Florist, Inc. v. TEDCO Construction Corp., 441 Pa.Super. 281, 657 A.2d 511 (1995) (en banc)) (where judge who presided over trial had left the bench prior to drafting an opinion addressing his order denying post-trial motions, another judge was authorized to draft opinion in support of order in light of fact the case was tried before a jury, so presiding judge had made no credibility determinations or factual findings); See also Commonwealth v. Zietz, 364 Pa. 294, 72 A.2d 282 (1950) (stating "[w]hen a judge before whom an action was tried is disabled, resigns or dies, a motion for a new trial may be made to, and determined by another judge of the same court or a special judge designated to act").
¶ 6 The Majority has failed to cite to any authority supporting its contention that absent a determination by the trial court, an appellate court may review a weight of the evidence claim for the first time on appeal. Because I do not favor an appellate court substituting its judgment for that of the trial court in these matters, I respectfully dissent.
DEL SOLE, J., dissenting:
¶ 1 I respectfully dissent from that portion of the Majority's decision which affirms the trial court's ruling excluding, as hearsay, a statement made to a police officer by an unidentified motorist. The Majority holds that the excited utterance exception to the hearsay rule does not apply because it was not established that the declarant actually witnessed the shooting. However, my review of the record indicates that defense counsel was prohibited from establishing whether the motorist actually witnessed the shooting when the trial court limited the testimony to the motorist's "excitability" when making the statement.
¶ 2 At trial of the matter, the court directed defense counsel to lay a foundation for the admission of the motorist's statement, whereupon the following transpired:
Q. Officer Sprowal, what time did you receive your radio call to proceed to that scene?
A. 9:55 p.m.
Q. What time did you get to the scene? *80 A. I would say, within about a minute or two.
Q. Did you talk to the young man first or to the man up on the bridge first?
A. Young man.
Q. How much time did you spend with the young man before you went to the man on the bridge?
A. Maybe, a minute.
Q. Now, the man up on the bridge, did he identify himself as a motorist?
A. Yes.
Q. All right. Now, at that time did he indicate to you that he had witnessed something? Don't tell us what he said. Did he indicate to you that he witnessed something?
THE COURT: No. Sustained on that at this time. Describe the excited.
N.T., 5/13/97, at 21-22. (emphasis added.)
¶ 3 When the officer described the motorist's condition as "calm" the court sustained the prosecutor's objection to the admission of the statement as hearsay. The Majority not only fails to recognize that the officer was prohibited from establishing whether the motorist witnessed the shooting but it also finds that, even if this fact could be established, defense counsel would be required to offer corroborating evidence that the motorist witnessed the shooting. The Majority writes that "[e]ven assuming that Officer Sprowal would have testified consistently with defense counsel's offer of proof that the motorist stated to him that he witnessed the shooting, this in itself is insufficient to establish the trustworthiness of the out-of court statement." Majority opinion at 76-77. In support, the Majority cites to Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 240 A.2d 71 (1968) and Williamson v. Philadelphia Transportation Co., 244 Pa.Super. 492, 368 A.2d 1292 (1976).
¶ 4 The Williamson decision offers no support for the Majority's ruling because it concerned a defendant who failed to make an offer of proof as to what the bystanders said to the police at the scene to establish whether they witnessed the accident. The court ruled that it would uphold the trial court's refusal to admit this testimony "[b]ecause we do not know the substance of their statements." Id. at 1296. In this case, the officer was asked whether the motorist stated that he witnessed something, however the officer was not permitted to answer the question.
¶ 5 In Carney, a statement made by an unidentified bystander to a police officer was admitted into evidence. The officer testified that "a gentleman run [sic] up to me and excitedly said to me that this car, this engine, had come out fast and that it had no light on it." Carney 240 A.2d at 73. Our Supreme Court, in a plurality decision, reversed, finding that there was no evidence in the record to indicate that the unidentified bystander actually witnessed the event. The court found that it would be "mere speculation and surmise" as to whether the declarant saw the accident and that it was just as probable that the witness was repeating what others had told him. Id. at 74. In contrast, in this case we are uncertain whether the motorist relayed to the officer that he witnessed the shooting because defense counsel was stopped from exploring that line of inquiry.
¶ 6 The Majority cites Carney for the further proposition that even if the motorist claimed to have witnessed the shooting, defense counsel must offer corroborating evidence that the declarant actually viewed the event. Majority Opinion at 76. It takes support for this conclusion from a comment in Carney which reads: "[I]t is incumbent upon the party seeking its admission to persuasively and convincingly demonstrate by the use of other corroborating evidence that the declarant actually viewed the event of which he speaks." Id. at 75. This comment in Carney, a plurality decision, is purely dicta because the court's decision ultimately turned on the fact that the record contained no information that the declarant viewed the event. In my view, the comment in Carney is a misstatement of the law, and I note it has *81 never been referred to or relied upon by our Supreme Court. I believe that the Majority errs in relying upon it to hold that defense counsel must offer independent corroborating evidence that a declarant viewed the event before the court can consider whether the statement is an excited utterance.
¶ 7 From my research, I conclude that, where there is an unidentified declarant or a declarant who is unavailable or incapable of testifying, the matter to be corroborated is whether the event itself occurred. When considering the admission of a res gestae statement it is often necessary to first establish by independent proof that the underlying startling event did take place. This step is necessary in those situations where the excited utterance itself is being used to prove that the exciting event occurred. We recognized the need for such proof in Commonwealth v. Barnes 310 Pa.Super. 480, 456 A.2d 1037 (1983).
¶ 8 In Barnes, an agitated caller summoned police to his home and told the officer that the appellant entered his apartment, attacked him and stole $300. The declarant caller died of unrelated causes prior to trial and the prosecutor offered the declarant's statements into evidence as proof that the appellant attacked and robbed the declarant. This Court held that the statements should not have been admitted into evidence. We noted that there was no independent evidence of a forced entry, of bruising or injury to the declarant, and no evidence that money was missing from the declarant or that any money was found on the appellant. This Court concluded that the only evidence of the existence of a crime came from the extrajudicial statements made by the declarant and that, without corroborating evidence of the crime's existence, the statements were not admissible.
¶ 9 Likewise, in Commonwealth v. Sanford, 397 Pa.Super. 581, 580 A.2d 784 (1990), this Court considered not whether there was corroborating evidence of the declarant's witnessing of the event but rather whether the startling event occurred. In Sanford, a three-year old child made unsolicited statements to her mother indicating that she had been sexually assaulted. This Court found there was circumstantial evidence to establish that the event itself did occur and that it was "not a situation where the Commonwealth is attempting to use the excited utterance itself to prove the existence of an exciting event." Id. at 788. See also Janet Boeth Jones, Annotation, Necessity, in Criminal Prosecution, of Independent Evidence of Principal Act to Allow Admission, under Res Gestae or Excited Utterance Exception to Hearsay Rule, of Statement made at Time of, or Subsequent to, Principal Act, 38 A.L.R.4th 1237 (1985).
¶ 10 Our Supreme Court, in Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978), had occasion to consider the admissibility of statements made by a young child and the application of Carney to the facts. The declarant in Pronkoskie was incompetent to testify because of her tender years but her statements indicating her father shot and killed her mother were admitted at trial. The Supreme Court, with citation to Carney, reversed, finding the Commonwealth had failed to establish that the child actually witnessed the shooting. The Court noted that the child's responses during the competency examination indicated that she did not see the shooting. Thus, the Supreme Court relied on the language of Carney which requires a party offering a hearsay statement into evidence under the excited utterance exception to demonstrate the declarant viewed the startling event.
¶ 11 Notably, the Supreme Court did not cite to or reinforce its statement in Carney that corroborating evidence must be submitted demonstrating the declarant actually viewed the event. Rather, the Court appeared to retreat from the comments in Carney, that the statements of a declarant alone are insufficient to demonstrate that he witnessed the event. The Court in Pronkoskie remarked:
*82 This is not to say that a proponent must in all cases conclusively establish that a declarant actually viewed the event to which the declaration relates. Compare Carney v. Pennsylvania R.R. Co., supra; Williamson v. Philadelphia Transportation Company, 244 Pa.Super. 492, 368 A.2d 1292 (1976). As Professor McCormick has noted:
"Must the declarant meet the tests of competency for a witness? In a modified manner the requirement that a witness have had an opportunity to observe that to which he testifies is applied. Direct proof is not necessary; if the circumstances appear consistent with opportunity by the declarant, this is sufficient. If there is low probative value, however, it is usually held inadmissible if there is no reasonable suggestion that the declarant had an opportunity to observe." McCormick, Evidence § 297 at PP. 707-08 (2d ed.1972) (footnotes omitted.)
Pronkoskie, 383 A.2d at 862 n. 6. The Supreme Court also stated that "...[G]enerally, the proponent of the evidence need only establish that a declarant was in a position to view an incident...." Id.[8]
¶ 12 In the instant matter, it is clear that a startling event, a shooting, did occur and there is no need to corroborate this fact. However, defense counsel was not permitted to explore whether the motorist indicated to the officer that he witnessed the shooting. Nor was counsel permitted to question the officer regarding the circumstances surrounding the motorist's declaration because the court focused solely on evidence of his demeanor. Accordingly, I cannot join that portion of the Majority's ruling which would find the motorist's statement cannot be admitted because it was not proven that the motorist actually witnessed the event. I believe defense counsel would likely have been able to meet that test if permitted to do so. Thus, I would remand this matter to allow defense counsel an opportunity to establish whether the motorist indicated that he witnessed the shooting. The court could then view the totality of the circumstances to determine whether the statement qualifies as an excited utterance, by looking to see if it was a spontaneous reaction to a startling event.
¶ 13 MUSMANNO, J. and TODD, J. join in this Dissenting Opinion.
NOTES
[1] 18 Pa.C.S.A. §§ 2502(a), 2702 and 907, respectively.
[2] This was Appellant's third trial on these charges. His two previous trials resulted in mistrials due to the jury being hopelessly deadlocked.
[3] The concurring and dissenting opinion would preclude an appellate court from reviewing a weight of the evidence claim in the first instance even where the trial judge is no longer available to review the claim. We perceive no difference, however, in our ability to review the cold record and that of a trial judge who has had no prior connection with the case. See Armbruster v. Horowitz, 744 A.2d 285 (Pa.Super.1999), appeal granted, 563 Pa. 625, 758 A.2d 659, 2000 Pa.Lexis 1065 (April 28, 2000) (holding that circumstance where trial judge had left the bench without ruling on post-trial claim that verdict was against the weight of the evidence was exception to the general rule that appellate court, relying solely on a cold record, may not exercise review of a weight of the evidence claim; in these exceptional circumstances, interests of justice required that weight of the evidence claim be reviewed by appellate court).
A cold record does not become any warmer in the hands of a trial judge who has no prior connection with the case than it does in the hands of an appellate judge.
[4] "Hoodie" was defined at trial by Green as a hooded sweatshirt. N.T., 5/12/97, at 102.
[5] We note that the Pennsylvania Rules of Evidence, as adopted by our Supreme Court on May 8, 1998, did not become effective until October 1, 1998, and as such, are not applicable to this action.
[6] Res gestae is a "generic term encompassing four discrete exceptions to the hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions." Commonwealth v. Pronkoskie, 477 Pa. 132, 136-37, 383 A.2d 858, 860 (1978) (footnote omitted).
[7] We note that, in an attempt to corroborate the unidentified motorist's statement, Appellant has requested at both oral argument and in a subsequent motion that two police reports which are attached to the motion and entitled "Addendum to Appellant's Brief on Re-Argument" be formally made part of the appellate record. Each report contains a description of the assailant as wearing a "Guess" sweatshirt. Appellant asserts that this documentary evidence was not part of the trial record because there was no opportunity for the evidence to be admitted since the issue concerning corroboration did not become "ripe" at trial. We, however, deny Appellant's motion as the record indicates that Appellant had sufficient opportunity to present and address these reports at the sidebar conferences. The Commonwealth, at sidebar, challenged the motorist's statement, not only on the basis of failure to show that the motorist was excited during his exchange with Officer Sprowal but, as well, on the basis of lack of any other evidence to corroborate the statement made by an unidentified individual to prove that he saw the event. We additionally note that, although Appellant asserts that the police report authored by Officer Bryan Sprowal of his brief encounter with Green supports admission of the statement of the unidentified motorist, the contents of the report, as alleged by Appellant, are inapposite to the testimony given by Officer Sprowal during Appellant's second trial and the trial at issue (notes of testimony of Appellant's first trial are not included in the certified record for our review). Appellant posits that the descriptive information of the perpetrator in his report originated from Green. However, in the notes of testimony of the trials that are available for our review, Officer Sprowal specifically states that he spoke only briefly with Green and did not obtain any identification information from him. Likewise, Green was never cross-examined about this alleged description at trial. In Police Officer Charles Vogt's statement given to a homicide detective, he, by name, identifies another alleged eyewitness to the incident who states that the shooter was wearing a grey "Guess" sweatshirt. If we were to permit Appellant to now admit these reports into evidence, where they have never appeared of record nor been mentioned in the course of at least two of three trials, we would be permitting Appellant to retry his case on appeal with the benefit of hindsight. This is especially true where Appellant, even in his brief on appeal, argues that the only eyewitness other than the unidentified motorist was Green. Appellant's Brief at 21.
[8] I also note that when setting forth the new Rules of Evidence, specifically Pa.R.E. 803, dealing with hearsay exceptions, the Supreme Court did not mention any requirement of corroborating evidence in the Rule or its comment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577549/ | 35 So. 3d 63 (2010)
RAYFIELD INVESTMENT COMPANY, Appellant,
v.
Howard KREPS, Appellee.
No. 4D09-652.
District Court of Appeal of Florida, Fourth District.
May 5, 2010.
Rehearing Denied June 15, 2010.
*64 James K. Green of James K. Green, P.A., West Palm Beach, for appellant.
Howard Kreps, Miami, appellee.
FARMER, J.
Opposing creditors clash over security interests in a painting found in the inventory of a failed art gallery. One creditor is its operating capital lender claiming a perfected security interest in all its inventory. The other is a consignor who placed a painting with the gallery for sale but without perfecting his interest in the consigned goods. Concluding that the governing statutes for security interests give the priority to the lender, we reverse the judgment awarding the painting to the consignor.
Lender made a series of loans totaling $300,000 over a three-year period to a New York corporation doing business in Palm Beach under the trade name Style de Vie. Apparently its lifestyle did not allow it to pay its lender, for the gallery defaulted on the loan. Lender sued to foreclose its security interest on the gallery's inventory. Lender proved non-payment and that it had perfected its security interest by filing a UCC-1 financing statement in Florida. Lender obtained a judgment and a writ of replevin for the inventory.
Consignor intervened after lender's replevin of the inventory and claimed the painting. The evidence showed that he placed the painting with the gallery after lender's security interest had been perfected.[1] He did not attach any tag or legend to the painting that it was on consignment.[2] Nor did he file a UCC-1 financing statement in Florida giving notice of his prior interest in the painting. Following a trial, the court found consignor's interest superior to lender's perfected interest, reasoning:
"[lender] had actual knowledge that [gallery] sold antiques and other goods on consignment. Specifically ... [lender] entered into a Profit Participation Agreement with [gallery] which contemplated participation in the profits of the sales of consigned goods. Further ... [lender] had actual knowledge and contemplated *65 the continuing consignment of goods at [gallery], and contemplated participation in the profits from the sale of consigned goods. [Consignor] has shown by clear and convincing evidence that he has a superior right and title to the painting that is the subject of this law suit."
From the judgment in consignor's favor, lender appeals.
The Florida Uniform Commercial Code (UCC) governs sales and secured transactions. The UCC specifies that the term "security interest" means "an interest in personal property ... which secures payment or performance of an obligation" and "includes any interest of a consignor...." § 671.201(35), Fla. Stat. (2009). As for consignments, UCC Article 9 further specifies:
"Consignment means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and:
1. The merchant deals in goods of that kind under a name other than the name of the person making delivery; is not an auctioneer; and is not generally known by its creditors to be substantially engaged in selling the goods of others;
2. With respect to each delivery, the aggregate value of the goods is $1,000 or more at the time of delivery;
3. The goods are not consumer goods immediately before delivery; and
4. The transaction does not create a security interest that secures an obligation." [internal subheadings omitted]
§ 679.1021(1)(t), Fla. Stat. (2009). Again the record indisputably shows that consignor did nothing to perfect a prior interest in the painting by filing a UCC-1, by affixing a tag or by having the gallery post a sign that some inventory is on consignment.
At trial consignor presented evidence that lender's principal knew some of the gallery's items were on consignment. The lender's principal complained that the gallery failed to furnish inventories during the three years before the consignment. When he finally received an inventory, it listed several thousand items for sale but there were not more than 60 at the time. According to some records, consignment goods never exceeded 15% of inventory in the few years preceding the store's demise.
While lender knew there were some consignment goods for sale, there is absolutely no record evidence as to whether the gallery was "generally known by its creditors to be substantially engaged in selling the goods of others." § 679.1021(1)(t)1c. Consignor presented no evidence as to who or how many creditors the gallery had when he placed his painting there for sale in 2006. Similarly there is no evidence that lender knew this painting was on consignment or of any agreement between the gallery and consignor. So it is clear this case involves a prior perfected security interest in inventory and a subsequent unperfected security interest in a painting placed with the gallery for sale on consignment.
The law does not support the trial judge's decision. The Florida UCC explicitly provides that a perfected security interest in goods takes priority over all subsequently perfected and unperfected security interests in the same goods. § 679.322(1), Fla. Stat. (2009). Florida law also explicitly provides that a consignor's interest in goods placed for sale with a consignee who routinely sells such goods is merely an unperfected security interest subject to the claims of those with prior perfected security interests. See §§ 679.319 and 679.322(1)(b), Fla. Stat. *66 (2009); see also In re Corvette Collection of Boston Inc., 294 B.R. 409, 414 (Bkry.S.D.Fla.2003) (holding that as to consigned goods, presumption is that goods are held by consignee on sale or return basis subject to claims of consignee's creditors).
The consignor in this case could have defeated the priority of secured creditors only by proving that a majority of the gallery's creditors knew that it was substantially engaged in consignment sales. See e.g. Corvette Collection, 294 B.R. at 414. But consignor offered no evidence as to who the gallery's creditors were or what they knew about his goods for sale. The cases follow a general rule of thumb that consignees are not considered to be "substantially engaged" in selling the goods of others unless they hold at least 20% of inventory on a consignment basis. See In re Valley Media Inc., 279 B.R. 105, 125 (Bkry.D.Del.2002); see also In re Wedlo Holdings Inc., 248 B.R. 336, 342 (Bkry.N.D.Ill.2000) (holding as a matter of law that consignee who obtained only 15% to 20% of its inventory on consignment was not substantially engaged in selling goods of others).
To satisfy the "generally known" requirement, a consignor must show that a majority of the consignee's creditors were aware that the consignee was substantially engaged in selling the goods of others by consignment sales, and the majority is determined by the number of creditors, not by the amount of their claims. See Valley Media, 279 B.R. at 126; In re Wicaco Mach. Corp., 49 B.R. 340, 344 (E.D.Pa. 1984) (holding that 20% of creditors knowing of consignment relationship does not satisfy general knowledge requirement, notwithstanding that such creditors represented 63% of claims against debtor). Again, here the consignor had no idea who or how many creditors the gallery had. Consignor's case authorities are inapposite, for they involve actual knowledge by the lender of a specific consignment.
This case is factually similar to Valley Media. There, some of the debtor's vendors had entered into consignment arrangements with the debtor before the debtor filed for bankruptcy. 279 B.R. 105 at 115. The consigned inventory was commingled with all of the other inventory of the debtor at two warehouse locations. 279 B.R. 105 at 116. No signs were posted at the warehouses, and there were no signs or markings on the consigned inventory indicating that the inventory had been obtained on a consignment basis. 279 B.R. 105 at 116. When the debtor moved the bankruptcy court to sell all of its inventory, the consignment vendors objected, arguing that they owned their consignment inventory by virtue of their consignment arrangements. 279 B.R. 105 at 121-22. The court observed that the consignors could have obtained a prior interest in their consigned goods if they had either (1) filed UCC-1 financing statements identifying their goods as required under UCC Article 9, or (2) proved that the consignee was generally known by its creditors to be substantially engaged in selling the goods of others. 279 B.R. at 123. See also In re New York Diamond & Jewelry Exch. Inc., 26 B.R. 32 (Bkry.S.D.Fla.1982) (consignor failed to perfect security interest by filing financing statement and failed to establish that debtor was generally known by its creditors to be substantially engaged in sale of goods of others, had unperfected security interest in diamonds, subject to trustee's right, and since trustee did not have diamond among assets of estate, trustee was entitled to judgment against plaintiff); ITT Commercial Fin. Corp. v. Unlimited Auto. Inc., 166 B.R. 637 (N.D.Ill. 1994) (secured creditor of debtor-dealer had priority over consignor of motor vehicle, *67 where consignor did not comply with applicable filing requirements of UCC and secured creditor enjoyed status of perfected secured creditor with claim to inventory of debtor).
What this case presents is the common collision between a legal rule and an opposing claim for individualized justice. Ours is supposed to be a rule of law, not of judges. Some rules of law are meant to be categorical and unavoidable. The law requires, for example, citizenship to vote, driving on the right side of the road, recorded title to real property, timely assertion of civil claimsto mention just a fewall of which cannot be avoided by an individual claim for sympathetic understanding. Some legal rules explicitly allow their application to be varied by individual circumstances, using equitable principles, but the commercial law on secured transactions is not among them.
The rules for acquiring and enforcing security interests were not written to permit individualized justice and equity contrary to their requirements. It would not be much of a uniform code, for example, if legal rules on sales rights and remedies transformed themselves from case to case, or negotiable instruments were not predictably and reliably negotiable, or that priorities of security interests were adjustable depending on whose individual circumstance is more sympathetic. The statutes give us no authority to refuse to enforce priorities under UCC Article 9 on the basis that the painting has been in the family for years, or that the lender knew the gallery did some consignment sales, or that this lender's funding agreement with the gallery allowed it to share to some extent in its profits, or by framing the painting's sale as a bailment instead of a consignment.[3]
The law creating the priority rule afforded consignor effective tools to avoid a prior security interest in gallery's inventory. These tools were simple, not burdensome, and easily satisfied. He needed only to file a UCC-1 under Florida law. Aside from that, he could have required the gallery to affix a tag onto the painting and place a sign alerting prospective buyers of a consignment sale. He did none of these things. Nothing in the record we have been given suggests that lender or gallery did anything to dissuade him from prior consultation with a lawyer to protect his painting by complying with statutes for avoiding prior interests. In the end he failed to offer any evidence that most of gallery's creditors knew that a substantial part of its sales were consignments.
The judgment of the trial court is in error. The perfected security interest of lender has priority over the claim of consignor.
Reversed.
HAZOURI and MAY, JJ., concur.
NOTES
[1] The painting was by an artist named Cortes. The consignment agreement stated that gallery was free to sell for not less than $42,000.
[2] Florida law requires the consignor of works of art to give notice to the public by:
"affixing to such work of art a sign or tag which states that such work of art is being sold subject to a contract of consignment, or such consignee shall post a clear and conspicuous sign in the consignee's place of business giving notice that some works of art are being sold subject to a contract of consignment."
§ 686.502(2), Fla. Stat. (2009).
[3] See § 679.1021(1)(t), Fla. Stat. (2009) (consignment means any transactionregardless of its formin which a person delivers goods to a merchant for purpose of sale). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577621/ | 35 So. 3d 192 (2010)
EXXONMOBIL PIPELINE COMPANY
v.
UNION PACIFIC RAILROAD COMPANY.
No. 2009-C-1629.
Supreme Court of Louisiana.
March 16, 2010.
Rehearing Denied May 7, 2010.
*193 Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Gary A. Bezet, Gregory Michael Anding, Mark Andrew Marionneaux, Carol Galloway, Baton Rouge, for Applicant.
Phelps Dunbar, LLP, Michael Dale Hunt, Harry Alston Johnson, III, Baton Rouge, for Respondent.
GUIDRY, Justice.[*]
ExxonMobil Pipeline Company (hereinafter, "ExxonMobil") as a common carrier pipeline company seeks to expropriate land belonging to Union Pacific Railroad Company (hereinafter, "Union Pacific") for a private, restricted-access, at-grade surface crossing over Union Pacific's spur track and runaround track in Plaquemine, Louisiana. These tracks are used to service customers Shintech, Air Liquide, and Georgia Gulf. ExxonMobil's reason for the access route is to facilitate performance of maintenance and federally-mandated testing procedures commencing at a valve assembly located within ExxonMobil's right of way on property owned by Georgia Gulf. This valve assembly was part of an extension of ExxonMobil's pipeline to provide ethylene to Shintech. The district court found ExxonMobil failed to show a necessary and public purpose for expropriation of the subject land. The court of appeal majority affirmed. For the reasons set forth below, we reverse the lower courts' rulings, enter judgment in favor of ExxonMobil, and remand the case to the district court for further proceedings.
FACTS AND PROCEDURAL HISTORY
ExxonMobil, as stipulated by the parties, is a common carrier pipe line company with the right to expropriate "private property under the state expropriation *194 laws for use in its common carrier pipe line business...."[1] La.Rev.Stat. 45:254. In 1979, ExxonMobil constructed an ethylene pipeline extending from LA Hwy 1 in Plaquemine, Louisiana, into what is now the Georgia Gulf plant. In 2007, by adding a valve assembly, ExxonMobil constructed an extension of the pipeline into what is now the Shintech plant. The valve assembly is located approximately 2500 feet from LA Hwy 1 on property owned by Georgia Gulf. ExxonMobil employees testified that federal statutes and regulations require monthly inspection of the valve assembly, bi-annual operation of the valves themselves, and a mechanical inspection every five years. This mechanical inspection consists of the placement of a device referred to as a PIG into the line at the valve assembly and then running the PIG to the end of the line. The PIG is placed into the line at the valve assembly with the use of a cherry picker, weighing approximately 40,000 pounds. Additional equipment is used to flare-off the ethylene removed from the valve assembly during insertion of the PIG.
According to testimony at trial, ExxonMobil employees determined that the best access route to the valve assembly would lie from Evergreen Road through Georgia Gulf property, across Georgia Gulf's private outbound track, across Union Pacific's parallel spur and runaround tracks, and along ExxonMobil's right of way for the pipeline extension for about 1000 feet east of the valve site. ExxonMobil's Senior Staff Right of Way and Claims Agent testified that he had immediately ruled out accessing the valve assembly from LA Hwy 1 to the west, because of having to mitigate possible wetland delineations along that route, having to cross or build over other pipelines, having to secure rights of way and additional servitudes from four different property owners, having to build crossings over two ditches, and, most importantly, having to build the road or part of it above its own or another company's pipeline. While a road may cross over a pipeline at a minimum 30-degree angle, the witness explained, the pipeline company does not allow roads to be built alongside and above a pipeline for safety reasons.
ExxonMobil prepared plans, obtained permission for the route from Georgia Gulf crossing its property, and then requested permission from Union Pacific for the 50-by-30-foot section crossing its spur and runaround tracks. ExxonMobil selected the location noting that it appeared there was some build-up at that location allowing informal, if unauthorized, passage over the tracks. At any rate, ExxonMobil employees met at the site with Union Pacific employees, who then rejected the request noting that Union Pacific as a policy matter does not grant new at-grade crossings, even private ones, at least without a corresponding removal of other such crossings. Correspondence ensued, in which ExxonMobil offered inter alia to limit its access to monthly inspections and the mechanical inspection every 5 years, to place a locked gate at the crossing, and to provide sufficient notice to Union Pacific whenever a crossing is to be made. Eventually, ExxonMobil made an offer of money based on its expert's estimated value of the land to be expropriated. Representatives from both companies met again, this time at an attorney's office, but the parties could *195 reach no agreement, with ExxonMobil desiring the at-grade surface crossing and Union Pacific refusing it. Thereafter, ExxonMobil petitioned for expropriation of Union Pacific's property under its authority as a common carrier pipe line company.
Following a bench trial, the district court denied the petition for expropriation. The district court observed that ExxonMobil had to establish that the expropriation is for a public and necessary purpose. The district court further noted that the pipeline had been constructed and was moving product, so that ExxonMobil was required to show a public purpose for the requested servitude across a railroad track to cross the track and inspect its pipeline. Relying on Texas Pipe Line Company v. Stein, 190 So. 2d 244 (La.App. 4th Cir. 1966), rev'd on other grounds, 250 La. 1104, 202 So. 2d 266 (1967), the district court found the public character of the servitude is determined by the extent of the right to its use by the public. Here, the district court reasoned, ExxonMobil had restricted the right of the public to use the crossing by limiting its use only to ExxonMobil employees. The district court further noted that ExxonMobil had obtained over 9000 feet of servitude for the pipeline extension, along with an additional servitude for a road of 1000 feet. On this reasoning, the district court found ExxonMobil had failed to establish a public and necessary purpose for the servitude across Union Pacific's spur and runaround tracks.
ExxonMobil appealed, and a majority of the court of appeal affirmed the district court's ruling. ExxonMobil Pipeline Company v. Union Pacific Railroad Company, 08-2347 (La.App. 1 Cir. 5/13/09), 15 So. 3d 246. The court of appeal majority found that ExxonMobil had failed to establish a public purpose because the right of the public to use the desired servitude had been restricted by ExxonMobil itself. The court of appeal majority observed that, in determining whether a proposed expropriation is for a public purpose, the courts look to the extent of the public's right to its use rather than the number of persons actually using the property at any given time, citing, as did the district court, Texas Pipe Line Company v. Stein, 190 So.2d at 252. The court of appeal majority further noted there must be a general public right to a definite use of the property, as distinguished from a use by a private individual or corporation that may prove beneficial or profitable to some portion of the public, citing Terrebonne Parish Police Jury v. Kelly, 472 So. 2d 229, 232 (La.App. 1st Cir.1985), which had cited River & Rail Terminals v. Louisiana Ry. & Nav. Co., 171 La. 223, 130 So. 337, 340 (1930). However, the Court of appeal majority observed, "actual use by the public is not the criteria by which public purpose is determined," citing Texas Pipe Line Company, 190 So.2d at 250. 08-2347, p. 4, 15 So.3d at 248.
Nonetheless, the court of appeal majority reasoned as follows:
In the instant case, ExxonMobil seeks to expropriate a right of way to build an access road solely to enable it to access its pipeline to perform routine maintenance and inspections. ExxonMobil asserts that the pipeline serves a public purpose and that the access road is necessary to maintain that public purpose. However, the record is devoid of any evidence that the right of way and proposed access road itself will serve a public purpose. In fact, the evidence presented at trial suggests that the portion of the access road crossing Union Pacific's property will be a private crossing, with a locked gate that will only be accessible by ExxonMobil. Further, according to the record, the access road will only be used by ExxonMobil to access *196 its pipeline at the valve site to perform routine maintenance and inspections. None of this evidence demonstrates, however, that the public has a general right to a definite use of the property.
08-2347, p. 5, 15 So.3d at 249. The majority concluded that the land sought to be expropriated would not itself be used to protect the safety of the public, but rather, would be used only by ExxonMobil to access its pipeline and right of way to perform statutorily-required maintenance and inspections. Thus, the majority found no error in the district court's finding that ExxonMobil had failed to establish a public and necessary purpose for the expropriation of the right of way and access road servitude across property owned by Union Pacific.
The dissenting judge on the appellate court panel believed that ExxonMobil did not have to prove the public will directly use an access road to establish a public purpose. The dissenting judge reasoned that ExxonMobil did prove a public purpose because it established it needed access to its pipeline to perform inspections and maintenance of the valve site to ensure the integrity and safe operation of the pipeline and safety of the public. It was sufficient to prove public purpose, the dissenting judge further reasoned, that such maintenance of the pipeline is required by federal statute and that the access road is needed to perform these mandated inspections.
On application by ExxonMobil, we granted the writ application to consider the correctness of the rulings below. ExxonMobil Pipeline Company v. Union Pacific Railroad Company, 09-1629 (La.10/30/09), 21 So. 3d 269.
DISCUSSION
The issue before this court is whether ExxonMobil has established a public and necessary purpose for expropriation of a servitude across Union Pacific's rail tracks for an access road, which ExxonMobil asserts is necessary to perform statutorily-mandated inspections on its pipeline. As previously noted, ExxonMobil is a common carrier pipeline company as defined in La. Rev.Stat. 45:251. La.Rev.Stat. 45:254 thus grants ExxonMobil with the authority to expropriate private property under certain circumstances. That statute provides, in pertinent part:
All persons included in the definition of common carrier pipe lines as set forth in R.S. 45:251 have the right of expropriation with authority to expropriate private property under the state expropriation laws for use in its common carrier pipe line business, and have the right to lay, maintain and operate pipe lines, together with telegraph and telephone lines necessary and incident to the operation of these pipe lines, over private property thus expropriated, and have the further right to lay, maintain and operate pipe lines along, across, over and under any navigable stream or public highway, street, bridge or other public place, and also have the authority, under the right of expropriation herein conferred, to cross railroads, street railways, and other common carrier pipe lines by expropriating property necessary for the crossing under the expropriation laws of this state.
Article I, Section 4 of the Louisiana Constitution of 1974 addresses the expropriation of private property by a private entity for public purposes:
Property shall not be taken or damaged by a private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is *197 public and necessary shall be a judicial question.
Expropriation laws are special and exceptional in character, in derogation of common rights, and as such, must be strictly construed. United Gas Pipe Line Company v. Blanchard, 149 So. 2d 615 (La.App. 1st Cir.), writ denied, 244 La. 135, 150 So. 2d 590 (1963).
Public Purpose
ExxonMobil argues that its ethylene pipeline supplies petroleum to Shintech, and that by supplying even one consumer, a plant facility that provides jobs and other benefits to the community, the pipeline serves a public and necessary purpose. ExxonMobil further argues that the access road is necessary to perform federallymandated inspections on the pipeline and that these inspections are intended to protect the safety of the public and ensure the delivery of needed resources to its consumers. Thus, ExxonMobil argues, the access road serves a public and necessary purpose, by allowing ExxonMobile to maintain and inspect its valve site and pipeline.
The lower courts found that the public would be restricted from actual use of the access road itself, and thus the extent of the right of the public to use the access road indicated that it would not serve a public purpose. ExxonMobil argues the lower courts erred in focusing primarily on whether the public would have actual use of the railroad crossing, when the authority granted to ExxonMobil as a common carrier pipeline company is broad enough to include additional real estate to facilitate the maintenance and inspection of its pipeline. Before this court, Union Pacific has downplayed the lower courts' focus on actual public use of the requested crossing; instead, Union Pacific argues the district court did not only find the lack of a public purpose, it also found that the requested crossing was not shown to serve a necessary purpose.
We find the lower courts erred in focusing primarily upon the actual usage of the public of the desired railroad crossing in determining whether the requested servitude would serve a public purpose. While actual public use of the servitude may play a role in the appropriate case in determining whether the expropriation serves a public purpose, we do not read the constitutional provision and the statutes granting ExxonMobil its authority to expropriate private property as restricting expropriating real estate to that on which the pipeline itself is placed, nor do we interpret these provisions and the jurisprudence as requiring direct public use as the sole factor in determining whether the expropriated property will serve a public purpose.
As the court of appeal majority noted, see 08-2347, p. 7 n. 3, 15 So.3d at 250 n. 3, the courts of this state have taken arguably divergent views on finding a public purpose when a proposed expropriation is alleged to serve only a single, private entity, and thus some courts have focused solely upon whether the public would have the right to actual use. For example, in River & Rail Terminals, Inc. v. Louisiana Ry. & Nav. Co., a railroad laid a spur track across the property of the plaintiff to reach the property of an oil refinery company. The plaintiff accused the railroad of illegal and tortious trespass and sought injunctions prohibiting the railroad from using the track and requiring the track's removal. Although not an expropriation action, this court stated that "[t]he outstanding issue in this case is whether the spur track in question is for a private or public purpose." Id., 130 So. at 338. The plaintiff argued that "the spur track was constructed for the private accommodation of both defendant railroad and the oil refinery, *198 and to make the private business of both more profitable." Id. at 339. This court agreed, finding that the public had the right to use neither the refinery's loading station nor the spur track and that the spur track "serves no other enterprise but the [refinery], and ... was constructed solely for the purpose of enabling [the railroad] to handle tank cars shipped out of the refinery." Id. at 340. In so holding, this court stated, "It is well settled that there must be a general public right to a definite use of the property, as distinguished from a use by a private individual or corporation which may prove beneficial or profitable to some portion of the public." Id. at 340.
However, this court later identified the somewhat differing approaches to determining public purpose, quoting Corpus Juris, vol. 20, p. 551 et seq., as follows:
No general definition of what degree of public good will meet the constitutional requirements for a "public use" can be framed, as it is in every case a question of public policy. The meaning of the term is flexible and is not confined to what may constitute a public use at any given time, but in general it may be said to cover a use affecting the public generally, or any number thereof, as distinguished from particular individuals. Some courts ... hold that "public use" is synonymous with "public benefit," "public utility" or "public advantage," and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interests involved are of considerable magnitude, and it is sought to use the power in order that the natural resources and advantages of a locality may receive the fullest development in view of the general welfare.... Other courts, however, ... hold[] in effect that "public use" means use by the public.... Under this view it is essential to constitute a public use that the general public have the right to a definite and fixed use of the property appropriated, not as a mere matter of favor or by permission of the owner, but as a matter of right.... The character of the use, and not its extent, determine the question of public use. It is not essential that the use or benefit extend to the whole public or any considerable portion thereof, nor that each and every individual member of the community have the same degree of interest therein; the fact that the use and benefit is limited to the inhabitants of a small locality, or that the number of persons who are expected to avail themselves thereof is small, is immaterial provided it is open to all upon the same terms.
City of New Orleans v. New Orleans Land Co., 173 La. 71, 136 So. 91, 92-93 (1931).
Later jurisprudence from this court and our appellate courts, except for that of the First Circuit, has not followed the arguably more restrictive line set forth in River & Rail Terminals. In Calcasieu & S. Ry. Co. v. Bel, 224 La. 269, 69 So. 2d 40, 43 (1953), for example, the plaintiff established that its railroad would serve the public generally and any industries located near its tracks, and that it hoped to move and transport over its line various commodities, including timber, gravel, and cattle. The plaintiff further established that lumber corporations, owners of large tracts of land situated in the vicinity of the proposed rail line, and purchasers of forest products would and could make use of the facilities of this railroad in the shipment of these products. This court in approving the expropriation, reasoned as follows: "It was shown that the railroad will serve the public, and that the public may use and enjoy its facilities; that the construction of the road will be a public advantage and will tend to enlarge the resources, increase *199 the industrial energies, and promote the productive powers of a considerable number of the inhabitants or businesses of a section of this state, and manifestly will contribute to the general welfare and prosperity of the community in which it is located. Consequently the taking is for public purposes and for purposes of public utility, within the meaning of those terms as they are used in the Constitution." Id., 69 So.2d at 42-43.
Another example is Dixie Pipeline Co. v. Barry, 227 So. 2d 1 (La.App. 3d Cir. 1969), writ refused, 255 La. 145, 229 So. 2d 731 (1970), in which the Third Circuit acknowledged that a proposed pipeline would connect a privately owned plant with the proposed expropriator's pipeline, but nonetheless found a public purpose where the plant produced propane from the raw stream it received from area producers and where "the effect of the pipeline will be to transport large quantities of propane gas from the plant to a large market in several states." Id. at 7. Similarly, in finding a public purpose for a proposed pipeline that connected to a single enterprise in Louisiana Resources v. Greene, 406 So. 2d 1360 (La.App. 3d Cir.1981), writ denied, 412 So. 2d 84 (La.1982), the Third Circuit held that "[t]he public need not be supplied gas directly from the pipeline for which expropriation is sought for the expropriation to meet the test of public purpose." Id. at 1364. Rather, "[t]he pipeline serves a public purpose merely by placing more natural gas in the stream of commerce." Id. See also Texas Pipe Line Co. v. Stein, 190 So.2d at 250 ("`actual public use' is not the criteria by which public purpose is determined").
Given the long line of cases since River & Rail Terminals, we agree with the Third Circuit that, despite some previous "restrictive language, the Louisiana jurisprudence has not defined `public purpose' so narrowly." Town of Vidalia v. Unopened Succession of Ruffin, 95-580 (La. App. 3 Cir. 10/4/95), 663 So. 2d 315, 319 (per then Judge Knoll). "Rather, any allocation to a use resulting in advantages to the public at large will suffice to constitute a public purpose." Id.
Accordingly, applying these precepts to the facts of this case, we find the servitude across Union Pacific's spur and runaround tracks would serve a public purpose. Even if the access road, and the private at-grade crossing that is the subject of this litigation, are not directly or actually used or open to the public at large, the road and the servitude do serve a public purpose in that they permit the pipeline company to maintain and inspect its pipeline, which delivers petroleum products to end users, and which redounds in benefits to the public at large. Indeed, we note the rather circular logic of the court of appeal and district court, in that they both reasoned that ExxonMobil's offer to restrict use of the crossing only to ExxonMobil employees once a month and every five years to assuage the safety concerns of Union Pacific was suggestive that the public purpose was not established because the public was not given right of access to the crossing. Even Union Pacific has not made such an argument.
Necessary Purpose
Indeed, Union Pacific's primary challenge to the expropriation proceeding is its claim that ExxonMobil has not separately shown that the at-grade crossing it desires serves a necessary purpose. Union Pacific argues the district court made a factual finding that the desired route sought by ExxonMobil was not necessary, ostensibly because other routes to the valve site were possible. However, we do not interpret the district court's reasoning *200 as a factual finding that the servitude over the rail tracks did not serve a necessary purpose, and to the extent that the district court may have done so, we find the record evidence does not support such a finding.
In challenges to the necessity of a taking, the landowner must prove that the legislatively-authorized expropriator exercised "its large discretion" arbitrarily, capriciously, or in bad faith. Red River Waterway Com'n v. Fredericks, 566 So. 2d 79, 83 (La.1990). Whether the expropriator's purpose is public and necessary is a judicial determination that will not be reversed on appeal absent manifest error. Calcasieu-Cameron Hosp. Serv. Dist. v. Fontenot, 628 So. 2d 75, 78 (La.App. 3d Cir.1993), writ denied, 94-0168 (La.3/18/94), 634 So. 2d 854. In the context of expropriation, "necessary" refers to the necessity of the purpose for the expropriation not the necessity for a specific location. Calcasieu-Cameron Hosp. Serv. Dist., 628 So.2d at 78. Once public necessity is established, the extent and the location of property to be expropriated are within the sound discretion of the expropriation authority and determination of same will not be disturbed by the courts if made in good faith. Id.
The criteria to be considered by the expropriator in determining the location and extent of the property to be expropriated includes factors such as costs, environmental impact, long range area planning, and safety considerations. Red River Waterway Com'n, 566 So.2d at 83 (citing U.S. v. Carmack, 329 U.S. 230, 67 S. Ct. 252, 91 L. Ed. 209 (1946)). The amount of land and the nature of the acreage taken must be reasonably necessary for purpose of the expropriation, but it is not necessary "to show actual, immediate, and impending necessity for the expropriation." City of New Orleans v. Moeglich, 169 La. 1111, 126 So. 675, 677 (1930). The suitability of the property for expropriation is primarily a question of fact on which the judgment of the trial court will not be disturbed unless manifestly erroneous. Board of Com'rs of New Orleans Exhibition Hall v. Missouri Pacific R. Co., 625 So. 2d 1070, 1073 (La.App. 4th Cir.1993), writ denied, 93-3088, 93-3100 (La.1/28/94), 630 So. 2d 802. By statute, expropriation of property for common carrier pipe line purposes may include "the real estate, rights of way, pipe in line, telephone and telegraph lines or other communication systems, tank facilities ... necessary for the proper conduct of its business as a common carrier, all fixtures, equipment and personal property of every kind owned, controlled, operated, used or managed, in connection with, or to facilitate the transportation, distribution and delivery of petroleum through lines constructed of pipe." La.Rev.Stat. 45:251(3) (emphasis supplied).
In this case, ExxonMobil's Senior Staff Right of Way and Claims Agent, Paul Saltaformaggio, testified regarding the necessity of periodic access to the valve assembly for federally-mandated inspection and testing. There is no dispute that such access was necessary to comply with federal regulations. Mr. Saltaformaggio also testified that he rejected building a road from LA Hwy 1 to the valve site for a variety of reasons, and instead selected a route through property owned by Georgia Gulf and across the tracks owned by Union Pacific, the latter consisting of a 50 feet by 30 feet parcel.
First, he believed that such a road coming from LA Hwy 1 would not meet the wetland requirements of the Corps of Engineers, and he believed that there were wetlands along that route, noting there was standing water up to the knee of his hip-boots and the ground was muddy. While ExxonMobil itself did not order a *201 wetlands assessment, a fact Union Pacific cites as indicative of arbitrariness, Union Pacific in advance of trial did commission such a delineation, and wetlands were determined to exist along the so-called alternate route and that they would or could be impacted by the building of a road. Although much of the evidence put on by Union Pacific was to the effect that any wetlands impact could be mitigated and that the Corps of Engineers would possibly approve the building of a road, the fact remains that additional mitigation of wetlands was almost certain to be required in order to build a road from LA Hwy 1, while impacted wetlands along the route selected by ExxonMobil had already been mitigated when the pipeline extension was permitted and constructed. Thus, Mr. Saltaformaggio did not act arbitrarily in citing wetlands delineations as a consideration for not locating the route from LA Hwy 1.
Furthermore, Mr. Saltaformaggio testified that the access road would necessarily cross two ditches or drainage canals, requiring the building of bridges or other crossings and possibly affecting drainage patterns by the addition of foreign fill consisting of clay and rock. He also testified that the pipeline company does not build roads on top of pipelines, citing safety reasons, and that a road along this route would necessarily involve building the road above ExxonMobil's pipeline and possibly other companies' pipelines that traverse that corridor. Although a road can cross a pipeline at a 30-degree angle or more, he explained that the company never builds a road above and parallel to a pipeline because it could exert dangerous loads on the pipe itself and prevent inspection, usually done from the air, for releases of petroleum and damage. No evidence or testimony contradicted his testimony. Indeed, Union Pacific's civil engineering expert agreed that pipeline companies do not allow the building of roads above their pipelines, and he conceded that, while building a road from Hwy 1 was doable, he would probably not recommend that route to ExxonMobil were he consulted by ExxonMobil.
Additionally, Mr. Saltaformaggio testified that physical access from LA Hwy 1 would entail specific safety issues. First, it would require permitting for the building of a driveway off of the highway, which he believed would not be permitted by the Department of Transportation so close to a bridge. He further explained that stopping an 18-wheeler on a busy highway to off-load a 40,000-pound cherry picker at that location would require, at a minimum, closing down the highway for some period of time. He further discounted using as an access Shell Oil Company's property situated at the highway, citing his concerns that an 18-wheeler assembly could not turn-around on that property and that off-loading the cherry picker in that location could present safety issues. Union Pacific presented no evidence that such concerns were unreasonable or arbitrary. Indeed, although Union Pacific's witness opined that these concerns could be alleviated, no witness testified that they were unreasonable considerations.
Finally, Mr. Saltaformaggio testified that a route from LA Hwy 1 would entail seeking additional servitudes for the building of the road from no less than four property owners, as well as permission from other pipeline owners, to expand its right of way to accommodate a road and corresponding bridges. ExxonMobil's existing servitudes, which ranged from 10 to 30 feet, were entered in evidence, and support this witness's testimony. On the other hand, ExxonMobil had already negotiated a servitude for a road along that portion of the new pipeline extension with Georgia Gulf, such that the route selected *202 by ExxonMobil would require seeking a servitude only from Union Pacific. As the district court observed, ExxonMobil's selected route was "absolutely" more convenient and "probably" less costly.
On this record, we find ExxonMobil has established that the private, at-grade crossing over Union Pacific's rail tracks was for a public and necessary purpose. Additionally, we find that Union Pacific failed to establish that ExxonMobil was arbitrary or capricious in the selection of the route chosen. The record evidence shows that ExxonMobil acted in good faith in both selecting the route ultimately proposed to Union Pacific and in attempting to negotiate an agreement with Union Pacific.[2]
DECREE
For the reasons set forth above, we find in favor of ExxonMobil that it has the right to expropriate a permanent right of way across Union Pacific's property. Accordingly, we reverse the rulings of the district court and the court of appeal, and remand the matter to the district court for further proceedings involving the determination of any limitations or ancillary rights and the amount of just compensation.
REVERSED AND REMANDED.
KNOLL, J., dissents and assigns reasons.
WEIMER, J., concurs in the result.
KNOLL, Justice, dissenting.
Although I agree with the majority a public and necessary purpose does exist for access to the Shintech valve site for compliance with federal maintenance and inspection regulations, I believe the majority's expropriation analysis, though based solidly on this Court's jurisprudence, is flawed in its blatant and utter disregard for the clear and unambiguous statutory language mandating not only a public and necessary purpose, but also the proposed property be needed and necessary for the expropriation. For the following reasons, I respectfully dissent.
Under our constitution, "[e]very person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property," which right is subject to reasonable statutory restrictions and the reasonable exercise of the police power. La. Const. art. I, § 4(A). The constitution guarantees "[p]roperty shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner." La. Const. art. I, § 4(B)(4)(emphasis added).
By statutory law, a common carrier pipeline company, such as ExxonMobil in the present case, is authorized to "expropriate needed property" when a price cannot *203 be agreed upon with the owner. La. Rev.Stat. § 19:2(8) (emphasis added). Our law specifically allows:
All persons included in the definition of common carrier pipe lines[1] as set forth in R.S. 45:251 have the right of expropriation with authority to expropriate private property under the state expropriation laws for use in its common carrier pipe line business, and have the right to lay, maintain and operate pipe lines, together with telegraph and telephone lines necessary and incident to the operation of these pipe lines, over private property thus expropriated, and have the further right to lay, maintain and operate pipe lines along, across, over and under any navigable stream or public highway, street, bridge or other public place, and also have the authority, under the right of expropriation herein conferred, to cross railroads, street railways, and other common carrier pipe lines by expropriating property necessary for the crossing under the expropriation laws of this state.
La.Rev.Stat. § 45:254 (emphasis added). By the clear and unambiguous language of this statutory law the property to be expropriated must be both needed and necessary, and the party upon whom the burden to establish both the need and necessity of the property should logically be the expropriator.
The majority and this Court's jurisprudence, however, erroneously relieve the expropriator of this burden, transferring it to the landowner, whose constitutional right to undisturbed ownership of property is divested, and, more significantly, expanding the privilege conferred by statutory law. As the law now stands, all the expropriator must prove is a public need in the expropriation by a preponderance of the evidence. Recreation and Park Commission for Parish of East Baton Rouge v. C & S Development, Inc., 97-2652, p. 3 (La.7/8/98), 714 So. 2d 706, 707 (Knoll, J., not on panel). The extent and location of the property to be expropriated are within the sound discretion of the body possessing the power of eminent domain, and these determinations will not be interfered with by the courts if made in good faith. Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 140, 68 So. 2d 901, 902 (1953). "Once the expropriating agency has met its burden with regard to public need, the burden shifts to the defendant to show that the agency has abused its discretion in selecting the site to be expropriated." Recreation and Park Comm., 97-2652 at p. 3, 714 So.2d at 707. The landowner must prove an abuse of discretion by showing the expropriator acted in bad faith, without adequate determining principles or without reason, or by demonstrating the agency acted without considering and weighing the relevant criteria, namely, the availability of alternate routes, costs, environmental factors, long-range area planning, and safety considerations. Id.
In my opinion, this analysis is wrong and does not reflect a proper balance of the landowner's constitutional right to property with a common carrier pipeline's statutory authority to expropriate property. Moreover, this analysis does not comport with the strict construction of these relevant statutory provisions required by law given "the power of expropriation is in derogation of the fundamental right of free and unmolested ownership of property and that an owner, divested of property rights by expropriation, should be afforded every *204 opportunity to protect his interest therein consistent with law and equity." Central Louisiana Electric Co., Inc. v. Covington & St. Tammany Land & Improvement Co., 131 So. 2d 369, 373 (La.App. 1st Cir. 1961). In light of the derogatory nature of expropriation, the burden should never shift from the expropriator to the landowner until the expropriator has demonstrated it acted in good faith, with adequate determining principles, and with reason, which can be established by proving its selection was guided by the relevant criteria. Significantly, in my view, these criteria should be considered from both the prospective of the expropriator as well as the landowner, whose property is subject to the expropriation.
In the present case, ExxonMobil seeks to expropriate Union Pacific's property to place two at-grade crossings over Union Pacific's tracks for the completion of a road to access, inspect, and maintain its Shintech valve site. Federal regulations require bi-yearly inspections and a mechanical inspection every five years. Monthly inspections are performed in compliance with ExxonMobil's own internal policies. At trial, it was revealed both the monthly inspections and bi-yearly inspections have been performed by ExxonMobil employees, who merely walk to the site with the necessary hand tools required to perform the inspections. The inspection every five years would require the dropping of a PIG into the valve, which process takes about two hours. The delivery of the PIG would require a cherry picker, which weighs about 40,000 pounds and is transported by eighteen wheeler, as well as a flare trailer.
At trial, two routes of access to the site were proposed. The route east of the valve site (desired route), which would need to cross the Union Pacific track, was selected by ExxonMobil's Senior Right-of-way and Claims agent, Paul Saltaformaggio, and was about 1200 feet in distance. The alternate LA 1 route, proposed by Union Pacific, would allow access to the valve site through ExxonMobil's existing servitudes from LA 1 and was about 2500 feet in distance.
Admittedly, Saltaformaggio testified he took into account the relevant criteria in determining the best route for the access road:
Okay. Well, when I looked at whether it was possible to come off of LA 1 I quickly discounted that because there's an existing Shell valve station up there that would require access to be right on top of two pipelines. LIG's pipeline is approximately five feet off of our pipeline. Louisiana Interstate Gas has a pipeline there. There's no driveway that actually puts you perpendicular to LA 1. I felt like that that's a fairly hazardous way to access your right-of-way is off of a busy intersection that you'd have with LA 1 with the railroad being there and a bridge embankment there. You'd have to actually stop on the highway to get your equipment, truck, trailer with a big piece of equipment off of it. So I just discounted coming off of there. I looked if there was any other roads from, that you could come off of LA 1 that existed that would intersect into the right-of-way at different locations. I looked at habitat. I knew from looking at a prior delineated wetland's report on the Shintech end that the habitat was very similar. And that because I had been involved with permitting for twenty-something-years I didn't see much differential between the habitat toward LA 1 versus going back toward the Shintech plant. So to me, it was gonna be more of an impact to the wetlands; there were numerous utilities; you can't put a road directly on top of a *205 pipeline, that's an industry standard that we don't do, it's not a safe practice. And so, therefore, after I looked and eliminated any roads that would've came off of some other way to get into the right-of-way there close to where our pipeline tie-in was I came in through Georgia Gulf, I came in through Air Liquide and when I got up to this location right here (indicating) at this crossing, this spur crossing there there is a culvert on this side and there's a culvert on this side where people have used that as a road across that spur track.
However, a review of the trial testimony in its entirety reveals Saltaformaggio merely paid lip service to the relevant criteria and made his determination based on his observations after "walking the routes," the appearance of an informal crossing, and his previous interactions with Union Pacific. As demonstrated through discovery, there were no reports, documents, or emails regarding the selection of this route. Consequently, we are left with merely his testimony regarding his "beliefs" concerning the various factors, which does not establish ExxonMobil's selection was made in good faith, with adequate determining principles, and with reason or was guided by the essential criteria.
Although concerned with the "impact" on wetlands, i.e., the environmental factor, Saltaformaggio testified he did not procure a wetlands delineation. Notably, Union Pacific's expert in wetland delineation, Scott Nesbit, testified even though the desired route was over a thousand feet shorter, there was no environmental advantage to having a route east or west of the valve site, as the impact would be insignificant either way.
As to safety, Saltaformaggio expressed concerns about the LA 1 route with the placement of the road on or next to its pipelines, particularly regarding the undue weight on the pipeline buried about three and half feet deep, with the congestion of utilities, with the two ditches along the route, and with the use of LA 1. However, he did not and admittedly could not even consider the safety implications to Union Pacific and its railway track because he did not know what services Union Pacific provided to Georgia Gulf and Air Liquide, its two online customers at the time of trial. These services actually entail the daily transporting of hazardous materials, specifically, "vinyl chloride monomer, phenol, caustic, and in some cases chlorine," by two trains manned by two crews. Paul Rathgeber, Union Pacific's industry and public project manager, testified in detail regarding the safety issues from the railroad's perspective and past experiences with ExxonMobil at these types of at-grade crossing:
We had one in Beaumont, Texas actually with ExxonMobil that was suppose to be a temporary used crossing, it has requirements in the agreement that we agreed to that required that it have a locking gate that remains locked except during the use, which is the specific vehicle traveling over, and that they have their own flag person present to ensure safe movement across the track and that they maintain vegetation for a sufficient distance. They have never locked that gate; they never maintained the vegetation, and they never had a flagman until they had a fatality at the crossing when it was not supposed to be used. And they then went out and maintained the vegetation and had a flagman for a couple of months, which has gone away and they still refuse to lock the gate.
He also discussed the national policy trying to restrict or reduce at-grade crossings.
*206 Notably, the desired route would cross two other pipelines, the permission for which crossings ExxonMobil had not obtained prior to trial. Utilities run on both sides of the valve site. Moreover, Union Pacific's civil engineer, Ronald Ferris, testified he knew of no engineering practice or standard that prohibits the construction of the desired road over buried pipelines. As to the specific weight concerns of the alternate LA 1 route, according to Saltaformaggio, a "Pieces report," which factors in wall thickness, depth of cover, age of pipe, grade of pipe, amount of fill, and amount of limestone, could have been conducted for weight determinations and would need to be done to obtain permission from the other pipeline companies for the crossing of their pipelines on the desired route. However, no such report had been done prior to trial. Interestingly, Rathgeber testified locomotives weighing over 400,000 pounds and tank cars weighing around 300,000 pounds are allowed to cross pipeline for a flammable commodity buried at a depth of 4½ feet below the bottom of the rail.
Additionally, regarding the use of LA 1 for the unloading of the cherry picker every five years, there was trial testimony the railroad has successfully unloaded comparable equipment onto LA 1 with a temporary permit to block traffic under the direction of the State Police. Saltaformaggio's testimony also seemed to imply the use of State Police in emergency situations.
Likewise, Saltaformaggio could not have taken into consideration the long-range area planning of the railroad, which was about to begin servicing Shintech and was engaged in a remodeling and refabrication of its track for this purpose. Saltaformaggio also could not testify regarding the cost of the alternate route, a route he did not even consider, because he did not speak with ExxonMobil's servitude providers regarding the expansion of its servitudes, he did not meet with any engineers to discuss the possibility of building bridges over or culverts in the ditches, he did not procure a wetlands delineation, he did not order a Pieces report, and he did not meet with anyone regarding the procurement of a servitude off of LA 1 or the use of Shell's driveway. He most definitely could not testify to the cost implications for the railroad due to the interruption of its services and issues with car storage.
Saltaformaggio did, however, make a determination the desired route was the most convenient, but convenience is not the appropriate standard. In my opinion, ExxonMobil did not demonstrate by a preponderance of evidence the need or necessity of the crossing or the desired route was selected based on adequate determining principles or criteria considered from both sides of the expropriation.
Regardless, the necessity of the expropriated property should be considered a factual determination, just like the determination of the suitability of the proposed property. Greater Baton Rouge Port Comm., 224 La. at 141, 68 So.2d at 902 ("the suitability of the property sought to be expropriated for the purpose as stated is primarily a question of fact"). As a finding of fact, this determination should not be disturbed unless manifestly erroneous.
In the present case, the district court clearly found the property sought as well as the desired route were not necessary because "Exxon has a servitude and every servitude I read the right to construct, maintain, inspect, operate, protect, replace, repair, everyone of your servitude's has that. And you're saying I want another servitude to go inspect it and repair it and maintain it. You had one. You got the whole length of it. You even got a[new] *207 one which is even wider than the other one."
In his reasoning, the district court was particularly interested in ExxonMobil's federally mandated obligation to maintain and repair its existing pipeline, an obligation ExxonMobil has had for the last twenty-eight years and the performance of which could entail the need for and use of heavy machinery or equipment equivalent to or greater in weight than the 40,000 pound cherry picker needed for the PIG. The District Court focused intently upon the fact ExxonMobil has been able to meet this obligation and remain in compliance with federal regulations for the past twenty-eight years, asking Saltaformaggio: "Before you ever built this valve site, for this existing eight-inch ethylene line for the last twenty-eight years you have had and retained an obligation to be able to get whatever equipment is necessary to repair that line to that location, is that not correct?" To this Saltaformaggio replied: "We've had an obligation to be able to, if there's an event out there, to be able to go out there and make a repair, that's correct."
The district court specifically questioned ExxonMobil's ability to repair its pipeline in cases of emergency with the assistance of the State Police in getting access and equipment to the site. He apparently reasoned the servicing of the valve every five years for a two-hour period of time could be accomplished in a manner comparable to the servicing of the line in an emergency. In light of this reasoning, the district court did not find ExxonMobil demonstrated the need or necessity of the desired crossing or route. The district court clearly concluded the authority and ability ExxonMobil had to have as required by federal regulation under its existing servitudes to service its pipelines in an emergency and for maintenance and repair purposes necessarily encompassed the authority and ability to service the valve site every five years.
In conclusion, with all due respect I find I must dissent from my Brethren. Rather than affirm, we should use this case to correct the erroneous interpretation that has crept into our jurisprudence through the years of improperly shifting the burden on the landowner to show the common carrier has not established a need and necessity; this burden clearly rests with the one requesting the expropriation. With this opinion, the majority now blesses this erroneous interpretation, and in my view, lowers the bar for the taking of one's property for the sake of convenience.
Moreover, I find the majority clearly fails to demonstrate the trial court committed manifest error given the factual basis supported by the record for its findings. The record easily demonstrates a reasonable basis for the trial court's ruling and its ruling was not clearly wrong.
NOTES
[*] Kimball, Chief Justice, participated in oral argument but did not participate in the deliberation of this opinion.
[1] La.Rev.Stat. 45:251(1) defines a "common carrier" as including all persons engaged in the transportation of petroleum as public utilities and common carriers for hire; or which on proper showing may be legally held a common carrier from the nature of the business conducted, or from the manner in which such business is carried on. ExxonMobil and Union Pacific stipulated prior to trial that ExxonMobil is a common carrier.
[2] We also find no merit to Union Pacific's argument that ExxonMobil must establish a greater public interest in the property given that Union Pacific is also a common carrier. We note that La.Rev.Stat. 45:254 expressly grants common carrier pipelines, such as ExxonMobil, the right to cross railroads, and that this right is not expressly limited to the right to lay pipelines that cross railroads. As the dissenting judge below reasoned, the language in La.Rev.Stat. 45:254, when read in conjunction with La.Rev.Stat. 45:251(3) (which states a "pipe line includes the real estate [and] rights of way . . . necessary for the proper conduct of its business. . ."), is broad enough to encompass the right of passage or access across a railroad. Additionally, in light of the restrictions on ExxonMobil's use of the servitude offered during its negotiations with Union Pacific, there is no showing that the servitude will interfere in Union Pacific's operations in any significant manner. As Union Pacific's witness testified, at present the operations on the spur and runaround track essentially cease during the day, or at least the afternoon, and any additional daytime usage of the tracks in the future remains speculative.
[1] Throughout Chapter 5 of Title 45 of Louisiana Revised Statutes, the term pipeline is spelled "pipe line." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577633/ | 670 N.W.2d 19 (2003)
Sharon Lynn BLACKWELL, Appellant,
v.
2002 KIA 4 DOOR STL SEDAN with Vehicle Identification Number KNAFB121225129540, License Plate: JAR 987, Respondent.
No. CX-03-395.
Court of Appeals of Minnesota.
October 14, 2003.
*20 Thomas A. Volk, Chaska, MN, for appellant.
Mike Hatch, Attorney General, St. Paul, MN; and Antonio Tejeda, Timothy J. Simonson, Jon C. Saunders, Anderson, Larson, Hanson & Saunders P.L.L.P., Willmar, MN, for respondent.
Considered and decided by RANDALL, Presiding Judge; HALBROOKS, Judge; and HUDSON, Judge.
OPINION
HUDSON, Judge.
Appellant challenges the forfeiture of her vehicle, arguing that her mother, who loaned appellant money to purchase the vehicle, has a bona fide security interest in the vehicle. Because the evidence does not support a conclusion that appellant's mother has a bona fide security interest in appellant's vehicle, we affirm.
*21 FACTS
On July 1, 2002, appellant Sharon Lynn Blackwell was arrested for driving under the influence of alcohol. After her arrest, the state served appellant with a notice of intent to forfeit the 2002 Kia 4-door STL Sedan ("the car") she was driving at the time, as mandated by Minn.Stat. § 169A.63, subd. 6 (2002). The statute provides that a "motor vehicle is subject to forfeiture ... if it was used in the commission of a designated offense." A designated offense includes a violation of section 169A.20, the driving-while-impaired statute. Minn.Stat. § 169A.63, subd. 1(d)(1) (2002). Appellant filed a petition for judicial determination of forfeiture of motor vehicle under Minn.Stat. § 169A.63, subd. 8(f) (2002). Appellant claimed that the forfeiture of her vehicle was unlawful, or at least subject to a private security interest because appellant's mother, Onetta Viera, had loaned appellant money to purchase the motor vehicle, but Viera had not been served with a notice of forfeiture.
Nevertheless, Viera learned of the impending forfeiture, and at a judicial review hearing Viera testified that she paid $9,500 toward the purchase price of the vehicle while appellant paid the remaining amount. Viera also testified that she and appellant orally agreed the money was a loan and that appellant would repay the loan at a 6% interest rate. Viera produced a copy of a payment schedule created from what appears to be an amortization schedule for mortgage payments that Viera obtained from the Internet. Also entered into evidence were four cancelled checks with Viera as the payee and signed by appellant. Each check noted on the memo line that it was payment for the car loan. Viera testified she was unaware that in order to perfect her interest in the vehicle, she was required to register that interest with the State of Minnesota. Because Viera's name does not appear on the vehicle's title, respondent did not know of her interest in it, and accordingly did not serve her with the notice of forfeiture.
Appellant was subsequently convicted of driving while impaired and first-degree driving while impaired. The district court upheld the forfeiture of appellant's vehicle. The district court concluded that the forfeiture statute did not require that Viera be notified of the forfeiture because Viera's name does not appear on the vehicle's title. This appeal follows.
ISSUE
Does appellant's mother have a bona fide security interest in the vehicle under Minn.Stat. § 169A.63, subd. 7, in the absence of any evidence that the motor vehicle was collateral for the loan?
ANALYSIS
Appellant argues that the district court misinterpreted the forfeiture statute and erroneously concluded that appellant's mother does not have a bona fide security interest in appellant's vehicle. We note that the district court did not explicitly rule that Viera does not have a security interest in appellant's vehicle. But implicit in its conclusion that the state was not required to notify Viera of the forfeiture is a determination that Viera does not have a bona fide security interest in appellant's vehicle. Significantly, neither party appeals the district court's notice ruling. Thus, the sole issue before us is whether Viera has a bona fide security interest in appellant's vehicle within the meaning of the forfeiture statute, thereby precluding seizure of the vehicle by the state.
Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). When reviewing a district court's *22 findings of fact, this court may not set such findings aside unless they are clearly erroneous. Rife v. One 1987 Chevrolet Cavalier, 485 N.W.2d 318, 321 (Minn.App. 1992), review denied (Minn. June 30, 1992). This court independently reviews the application of law to a given set of facts. A.J. Chromy Constr. Co. v. Commercial Mech. Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977).
A vehicle is subject to forfeiture if the driver is convicted of the designated offense on which the forfeiture is based. Minn.Stat. § 169A.63, subd. 7(a)(1) (2002). "A vehicle encumbered by a bona fide security interest ... is subject to the interest of the secured party ... unless the party ... had knowledge of or consented to the act upon which the forfeiture is based." Minn.Stat. § 169A.63, subd. 7(b) (2002). Appellant was convicted of driving while impaired and second-degree driving while impaired, and therefore her vehicle was clearly subject to forfeiture. It is less clear whether Viera has a bona fide security interest in the vehicle. To answer that question, we are guided by our recent decision in Stanton v. Mazda 2001, 660 N.W.2d 137 (Minn.App.2003).
In Stanton, granddaughter was stopped and arrested for driving under the influence of alcohol, which represented her third such violation in ten years. Stanton, 660 N.W.2d at 138. Granddaughter was served with a notice of intent to forfeit the Mazda that she was driving at the time, as mandated by section 169A.63, subd. 6. Id. Stanton filed a petition for judicial determination of forfeiture, claiming she had a bona fide security interest in the vehicle. Id. at 139. Stanton had co-signed the automobile loan for her granddaughter, and the loan was guaranteed by Stanton's savings account. Id. at 138.
We concluded that a bona fide security interest in a vehicle under section 169A.63, subdivision 7, does not require that the interest be "perfected" pursuant to Minn. Stat. § 168A.17 (2002).[1]Id. at 140. We reasoned that section 169A.63, subdivision 7, only mandates that there be a "bona fide security interest," not a "perfected security interest" or even a "security interest." Id. at 139-40. We noted that the plain meaning of the phrase "bona fide," as defined by this court, means "made in good faith without fraud or deceit," or "in or with good faith; honestly, openly, and sincerely... real, actual, genuine, and not feigned." Id. at 139 (quoting Rogers v. Ponti-Peterson Post No. 1720, 495 N.W.2d 897, 901 (Minn.App.1993) (citations omitted)). We concluded that Stanton had a bona fide security interest in the Mazda because the granddaughter had sent Stanton a letter confirming that it was collateral for the loan. Id. at 139. We also noted that Stanton had presented an affidavit in which she stated that the Mazda was collateral for the granddaughter's loan thus showing that Stanton had a bona fide security interest in it. Id.
Appellant argues that the facts here are similar to those in Stanton, and establish that Viera has a bona fide security in appellant's vehicle. Appellant contends that Viera's testimony at the hearing as to her interest in the vehicle, the payment schedule, and the cancelled checks evidencing appellant's repayment of the loan, establishes Viera's interest in the car. The state counters that Viera does not have a security interest in appellant's vehicle because a security interest in another's property requires a security agreement, *23 and there is no security agreement in this case. The state relies on the definitions of a "security agreement," a "security interest," and a "secured party" in Chapter 168A.
But the state's attempt to link the forfeiture statute with chapter 168A (Motor Vehicle Titles) is exactly the approach we rejected in Stanton. We reasoned in Stanton that the forfeiture statute provides for an interest in a vehicle even if the security interest is not perfected in accordance with section 168A.17. In so concluding, we noted that by using the phrase "bona fide," the legislature intended that something less than a perfected security interest would suffice under the forfeiture statute. Stanton, 660 N.W.2d at 140. Therefore, it follows that under Stanton, a bona fide security interest under the forfeiture statute can exist in absence of an actual security agreement. Further, Stanton makes clear that a security interest, within the meaning of the forfeiture statute, is determined by the facts presented in each case and not by statutory requirements or definitions.
The state also contends that the facts in this case do not support a conclusion that Viera has a bona fide security interest in the car. The state argues that, unlike Stanton, Viera did not guarantee the loan with her savings account; the appellant did not write a letter pledging the motor vehicle as collateral for the loan; and neither party presented any evidence that appellant's vehicle served as collateral for the loan. We find the state's position here persuasive.
The district court was presented with an amortization schedule of payments that does not indicate what the payments are for, who is responsible for making the payments, or to whom the payments should be made. Viera testified that she loaned appellant $9,500 to purchase a vehicle. In the record are cancelled checks naming Viera as payee in the amount that appears in the monthly payment schedule. It is reasonably clear that the payment schedule relates to appellant's repayment of the $9,500 loan made by Viera. But our analysis does not end here, because we must still decide whether this evidence establishes that Viera has a bona fide security interest in appellant's vehicle. We conclude that it does not.
In Stanton, we defined the phrase "bona fide" as "made in good faith without fraud or deceit." But we tied "good faith" to the clear evidence in that case that the vehicle served as collateral for the loan. In addition to the fact that Stanton co-signed the installment loan, the granddaughter sent Stanton a letter confirming that the vehicle was collateral for the loan. Stanton, 660 N.W.2d at 139. Stanton also presented an affidavit in which she stated that the vehicle was collateral for the granddaughter's loan, thus demonstrating that Stanton had a bona fide security interest in the vehicle. Id.
Here, no such documentation exists. The payment schedule and cancelled checks connect Viera to the loan, but not to the car. We cannot reasonably infer from this evidence that the car served as collateral for the loan, and that in the event of default by appellant, Viera was entitled to possession. Viera certainly has an interest in repayment of the loan made to appellant for the vehicle's purchase, but we hold that the evidence is insufficient to support a conclusion that Viera has a bona fide security interest in appellant's vehicle.[2] We acknowledge that there was *24 nothing fraudulent about Viera's loan to appellant and that our holding today is a harsh result. But to hold otherwise would unwisely expand Stantonsomething we decline to do where neither Viera nor appellant took any steps to pledge the motor vehicle as collateral for the loan, thus demonstrating a secured interest in the motor vehicle.
DECISION
In the absence of any evidence that appellant's vehicle served as collateral for the loan, appellant's mother did not have a bona fide security interest in the 2002 Kia.
Affirmed.
RANDALL, Judge (dissenting).
I respectfully dissent. On these facts, this case should be reversed outright and a bona fide security interest declared in appellant's mother, Onetta Viera. This case, as the majority agrees, is governed by Stanton v. Mazda 2001, 660 N.W.2d 137 (Minn.App.2003). In Stanto n, her granddaughter was arrested for DUI and served with a notice of intent to forfeit her vehicle, a 2001 Mazda. That is the same as our facts, only we are dealing with Viera's daughter, Sharon Blackwell, rather than a granddaughter. In Stanton, Stanton appeared by an affidavit, stating that the Mazda was collateral for her granddaughter's loan. Stanton also had evidence that she had guaranteed her granddaughter's loan with her savings account and she had a letter from her granddaughter pledging the Mazda as collateral.
In this case, the district court had as unchallenged evidence, an amortization schedule of payments that as to amounts and dates and times exactly correlated with Viera's in-court testimony that she loaned Blackwell $9,500 to purchase the 2002 Kia. (Oral argument revealed that the total purchase price was between $11,000 and $12,000.) In the record are cancelled checks naming Viera as payee in the exact amount needed to comply with the monthly payment schedule (five years/60 months). Blackwell's checks to her mother were numbered one through four with each check noting that it was a payment for the car loan. Appellant's counsel claims that these facts are even stronger than the facts in Stanton. I do not know if that is the case. But I can only observe that the undisputed facts in Stanton and in this case do not show a dime's worth of difference in terms of documentation of record to support an unperfected bona fide security interest.
The district judge did not have the benefit of Stanton, so the trial judge went off on a non sequitur, as the majority acknowledges. The trial judge opined that since this was an unperfected security agreement and, therefore, no formal notice was sent to Onetta Viera, that Onetta Viera's claim must fail for that reason.
In its "Findings of Fact, Conclusions of Law, Order and Judgment," the district court stated in Findings of Fact VI, "Ms. Viera was not served with notice of this proceeding." The court then went on in its Conclusion of Law No. 4 to state,
"For those vehicles required to be registered under chapter 168, the notification to a person known to have a security interest in the vehicle is required only if the vehicle is registered under chapter 168 and the interest is listed on the *25 vehicle's title." Minn.Stat. § 169A.63, subd. 8(b). Thus, the requirements of the notification statute have been satisfied because Onetta Viera's claim to the car in question does not appear on the car's title.
The court used this as a basis to deny Viera's claim.
The issue of lack of notice to Mrs. Viera is a nonissue. Neither party raised it, and both parties at the oral hearing agreed that notice was not an issue. Appellant did not argue that his client had improperly not been sent a notice of the hearing (she learned about it in another way and made an appearance and was allowed by the court to give her full testimony) and respondent does not argue that since she did not get a formal notice, she is estopped from presenting a claim. Rather, after agreeing that lack of notice was not an issue, both sides simply argued the merits.
The majority concedes that the district court missed the whole point of Stanton and points out that the state's attempt to link the forfeiture statute with chapter 168A "is exactly the approach we rejected in Stanton." The majority acknowledges that under Stanton you need only a bona fide security interest, not a perfected security interest or even a "security interest." It simply has to be "in good faith." The majority attempts to distinguish Stanton and deprive Viera of her security interest, arguing that in Stanton, there was a letter and an affidavit both indicating that the word "collateral" was used, whereas on our facts, although the written documentation points exactly to a car loan (and the state does not challenge that), the magic words "collateral" do not appear in the Blackwell/Viera documents. It is true that if Blackwell and Viera had had an attorney draft the car loan, all the right buzz words would likely have been used; the loan documents might even have been recorded, thus, making this entire case moot. But this court wrote Stanton for exactly that reason! There are times when close friends and family members loan each other money for vehicles and Stanton made it clear that you don't need any particular magic words or any particular recording or any particular essential document; rather the package of evidence needs only to indicate a good faith security interestand as stated, something less than a perfected security interest.
To accept the majority's reasoning, the following hypothetical has to be assumed. After making her four payments religiously, and noting on each check either "car payment" or "car note," first, second, third, and fourth, Blackwell gets tired of the car and sells it to someone for about what she paid for it, meaning several hundred dollars over the $8,951 balance she owed her mother, Mrs. Viera. Blackwell keeps the entire purchase price and goes to her mother and says, "Gee, Mom, I sold my Kia for $11,000. I am going to keep the entire amount and not pay you off. The way I see it, you just made me a personal loan totally unrelated to the car. We never had any understanding that the car was collateral for what I owe you. I will simply string out the balance for another 46 months at the amortization schedule rate of $183 per month."
Onetta Viera says, "You know, daughter, come to think of it, you are right. Even though you put car payment number 1, number 2, number 3, and number 4 on the first four $183 checks, and that is exactly the payment schedule we agreed upon, it really never was our intent that the car was to be collateral, and I just meant to give you an out-of-pocket loan for your own personal use for the next five years. So you go ahead and keep the money, and just string out the payments over the next four years and eight months."
*26 Unless you believe that was really the intent of Blackwell and Viera, you cannot distinguish this case from Stanton. The Stanton explanation of the term "bona fide" carries the not indirect, but direct implication that buzz words and magic words are not needed as long as the totality of the evidence points to a bona fide interest.
Part of appellant's evidence of record, copies of the four cancelled checks, are telling. They make it undisputedly clear that Viera's loan to Blackwell was not just a generic personal loan, but was a loan for the car.
The check ($183) dated March 19, 2002 has written on it, "# 1 car payment;" the check ($184) dated May 13, 2002 has written on it, "2nd car note;" the check ($208) dated June 10, 2002 has written on it "car notecash;" and the check (183) dated July 15, 2002 has written on it "4th car payment."
Some time prior to June 10, Blackwell had borrowed $25 from her mother and used the third check to pay that $25 personal loan back plus a regular $183 car payment. She was careful to put on the memo portion of the check, "car note cash." If this was really just a personal loan and not tied to the car, why did Blackwell make it a point to spell out both "car note" and "cash" when she deviated upward from the payment schedule in the amount of $25?
The majority states that the result is "harsh." I agree! Then why are we going against the rules of law surrounding forfeitures and penal statutes? The law is settled that penal statutes are construed strictly against the state and in favor of the defendant. See State v. Serstock, 402 N.W.2d 514, 516 (Minn.1987) (citation omitted) (stating that where doubt exists as to legislative intent of a penal statute, doubt must be resolved in favor of the defendant). With the government getting completely out of hand on forfeitures several years ago, the United Stated Supreme Court stepped in and starting with Austin v. U.S., 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) pointed out that excessive "civil forfeitures" can and will run afoul of the U.S. Constitution when the government gets greedy. The case expressly pointed out that the Eighth Amendment is not limited to criminal cases. Austin, 509 U.S. at 602, 113 S.Ct. at 2802. In addition to that law, this punishment by forfeiture goes not against Stanton, admittedly guilty of DUI, but against an innocent third party, her mother. Viera stands in the same shoes as any bona fide lender, e.g., a bank or GMAC. They have no control over the driver's actions and no responsibility for the driver's actions. There is already sufficient punishment laid on Blackwell because she will lose her own equity in the car in addition to being subject to the severe penalties for multiple DUIs.
In sum, we are today artificially narrowing our own case, Stanton v. Mazda, the only precedent out there, and we are artificially limiting Stanton, not to help somebody, but to affect a harsh forfeiture on an innocent third party. This is all done in the face of the rule that penal statutes are to be construed strictly against the state and in favor of the defendant. This is not a good result. We are going against the law and the facts to visit a harsh result on an innocent third partywhy? We are doing it in a case where the district court did not have the benefit of Stanton and so decided the case against Blackwell on a nonissue, the lack of entitlement by Onetta Viera to a formal written notice.
I dissent, and would reverse outright in favor of Blackwell so that Viera's unpaid *27 car loan is recognized and the only forfeiture is Blackwell's equity. At a minimum, I would reverse and remand to the district court to reconsider the facts and the law in light of our holding in Stanton.
NOTES
[1] Minn.Stat. § 168A.17, subd. 1 (2002), provides, "a security interest in a vehicle of a type for which a certificate of title is required is not valid against creditors of the owner or subsequent transferees or secured parties of the vehicle unless perfected...."
[2] The district court did not address whether Viera had a bona fide security interest under Stanton; basing its holding instead on the fact that respondent had no statutory obligation to notify Viera of the forfeiture proceeding because Viera's interest was not registered pursuant to Minn.Stat. Ch. 168. We will not, however, reverse on appeal a correct decision simply because it is based on incorrect reasons. Wolf Motor Co. v. One 2000 Ford F-350, 658 N.W.2d 900, 903 n. 3 (Minn.App. 2003); Katz v. Katz, 408 N.W.2d 835, 839 (Minn.1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577811/ | 670 N.W.2d 465 (2003)
12 Neb. App. 208
In re INTEREST of BRITTANY S., a child under 18 years of age.
State of Nebraska, Appellee,
v.
William F., Appellant.
No. A-02-1396.
Court of Appeals of Nebraska.
October 21, 2003.
*467 Thomas K. Harmon, of Respeliers & Harmon, P.C., Omaha, for appellant.
James S. Jansen, Douglas County Attorney, and Kim B. Hawekotte for appellee.
Kimberley Taylor Riley, guardian ad litem for appellant.
IRWIN, Chief Judge, and SIEVERS and MOORE, Judges.
IRWIN, Chief Judge.
I. INTRODUCTION
William F. appeals the decision of the separate juvenile court of Douglas County terminating his parental rights as to his daughter, Brittany S., pursuant to Neb.Rev.Stat. § 43-292(5) and (7) (Reissue 1998), and finding that such termination is in the best interests of Brittany. William alleges that the juvenile court erred (1) by not requiring the State to provide him with a reasonable plan of rehabilitation before terminating his parental rights and (2) in determining that termination of his parental rights is in the best interests of Brittany. We find that William was not entitled to have the State provide a reasonable plan of rehabilitation before terminating his parental rights under § 43-292(7) and that termination of William's parental rights is in the best interests of Brittany. In light of these findings, no review of the juvenile court's ruling with regard to § 43-292(5) is required.
*468 The court-appointed guardian ad litem (GAL) for William also submits arguments on appeal, which arguments we conclude do not have merit. Accordingly, we affirm the decision of the juvenile court.
II. BACKGROUND
This case comes before us for the second time; the first time it was disposed of in an unpublished opinion, In re Interest of Brittany S., No. A-00-1170, 2001 WL 1091141 (Neb.App. Sept. 4, 2001) (not designated for permanent publication) (Brittany I). A detailed description of the facts is contained therein. We will discuss only the facts necessary to dispose of the case now before us.
This court affirmed the juvenile court's previous adjudication of Brittany as a child within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1998). Brittany I. Subsequently, the Douglas County Attorney's office filed a motion to terminate William's parental rights on April 3, 2002.
William's GAL moved to have a special prosecutor appointed. William's GAL argued that the Douglas County Attorney's office had a conflict of interest because Brittany's former GAL, who had terminated her employment with Nebraska Legal Services and thus her representation of Brittany, began working in the Douglas County Attorney's office in the juvenile division. Further, in the course of her representation of Brittany, the former GAL had hired an attorney and filed a personal injury lawsuit against William on Brittany's behalf. The district court for Douglas County entered a default judgment against William in the personal injury lawsuit. William's GAL asserted that the default judgment against him constituted a legal interest in a civil action, thus creating the appearance of impropriety by the Douglas County Attorney's office and warranting the appointment of a special prosecutor. The juvenile court denied the motion for a special prosecutor.
The hearing on the State's motion to terminate William's parental rights with regard to Brittany occurred on October 31, 2002. The State first presented evidence of William's prior conviction in 1996 of first degree sexual assault on a child. In addition, the State presented the testimony of several experts involved in the case.
Dr. Glenda Lucille Cottam testified as an expert witness on behalf of the State regarding the psychological assessment she conducted on William. Dr. Cottam expressed numerous concerns regarding William. Dr. Cottam testified that William told her he had been convicted of two previous "assault" charges and that he was a registered sex offender. Dr. Cottam's evaluation report indicates William stated that the two assault charges were both sexual in nature, that he "`plea bargained'" and the charges were dropped in one case, and that he was convicted and served jail time in the other case.
Dr. Cottam testified that William indicated he became sexually active at the age of 6 or 7. Dr. Cottam testified that she was concerned about this fact because sexual intercourse at such a young age would cause confusion about appropriateness of behavior and boundaries. Dr. Cottam also testified that she was concerned as to how a child of that age learned to be sexually active and from where the exposure came.
Dr. Cottam testified that she was concerned with William's mental health. She diagnosed William with serious to major depression, mild mental retardation, and possibly an organic personality disorder. Dr. Cottam expressed concern with William's ability to parent children and with his lack of necessary skills and abilities to be a primary parent to a child. Dr. Cottam recognized that while William's depression *469 may be treatable, his overall prognosis showed little hope for much improvement.
Mary Ellen Christ-Anderson, Brittany's therapist, also testified on behalf of the State. Christ-Anderson testified that Brittany was referred to her to work toward some kind of resolution regarding sexual abuse issues. Christ-Anderson testified that at age 2, Brittany was an aggressive and angry child. She was unusually hypervigilant and displayed what her therapist described as a flattened, void, expressionless facial appearance. Brittany exhibited a poor understanding of boundaries, inappropriate touching, and sexual talk and behavior. Christ-Anderson testified that Brittany's behaviors were unusual for a 2- or 3-year-old and that Brittany openly talked about sexual material. Christ-Anderson testified that Brittany's foster parents had also reported disturbing behavior by Brittany.
According to Christ-Anderson, Brittany "clearly identified" William as her source of anger early on in her therapy sessions. Christ-Anderson diagnosed Brittany with posttraumatic stress syndrome, as well as a possible attachment disorder. Brittany had experienced nightmares, "psychic numbing," and hypervigilance; Brittany also had physical symptoms of sexual abuse, such as venereal warts which had to be surgically removed.
Christ-Anderson testified that after 21/2 years of therapy, Brittany had showed improvement with regard to her hypervigilance and some progression toward improvement with regard to her aggression. She also testified that Brittany's anger and aggression were directed at "Billy," referring to William. In addition, Brittany showed some improvement with regard to her inappropriate touching, sexual acting out, and sexual talk.
Finally, Joseph Schoettle, Brittany's caseworker from Child Protective Services of the Nebraska Department of Health and Human Services (Department), testified on behalf of the State. Schoettle testified that Brittany had been in the Department's custody and care continuously since December 29, 1999. Schoettle also testified that he had prepared a court report on January 3, 2002, which recommended William undergo a psychological evaluation with an emphasis on sexual perpetration, which evaluation William did complete. The report also recommended that William (1) provide the Department with releases and information regarding his past evaluation and treatment as a sexual offender; (2) maintain a stable income and safe, adequate, and independent housing for himself and his child; and (3) provide his case manager with monthly verification of fulfilling the housing requirement. The record does not reveal William's compliance or noncompliance with those recommendations. Schoettle also testified that he recommended William have no visitation or contact with Brittany because the allegations against William regarding Brittany had not been addressed and because the Department did not feel it would be safe for William to have contact with Brittany.
Following the hearing, the juvenile court terminated William's parental rights with regard to Brittany. The court determined that the State had proven by clear and convincing evidence that (1) Brittany is a child within the meaning of § 43-247(3)(a) insofar as William was concerned; (2) William was ordered to comply with various plans of rehabilitation; (3) Brittany came within the meaning of § 43-292(5) because William is unable to discharge his parental responsibilities due to mental illness or deficiency, which condition is reasonably expected to continue for a prolonged indeterminate period; (4) Brittany came within *470 the meaning of § 43-292(7) because she has been in an out-of-home placement for 15 or more of the most recent 22 months; and (5) termination of William's parental rights is in the best interests of Brittany. William now appeals the court's order terminating his parental rights.
III. ASSIGNMENTS OF ERROR
William alleges, restated and renumbered, that the juvenile court erred in terminating his parental rights by (1) failing to require the State to provide William with a reasonable plan of rehabilitation to address his mental illness, (2) failing to require the State to provide William with a reasonable plan of rehabilitation so as to have allowed him to prevent the out-of-home placement of Brittany for 15 or more of the most recent 22 months, and (3) incorrectly finding that termination of William's parental rights is in the best interests of Brittany.
William's GAL also filed a brief in this appeal and alleges that the juvenile court erred (1) in not requiring the State to prove by clear and convincing evidence that William is the biological father of Brittany and (2) in not appointing a special prosecutor.
IV. STANDARD OF REVIEW
In an appeal from an order terminating parental rights, an appellate court tries factual questions de novo on the record. Appellate review is independent of the juvenile court's findings. However, when the evidence is in conflict, an appellate court may give weight to the fact that the juvenile court observed the witnesses and accepted one version of facts over another. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).
In reviewing questions of law arising under the Nebraska Juvenile Code, an appellate court reaches conclusions independent of the lower court's ruling. In re Interest of Ty M. & Devon M., supra; In re Interest of Chad S., 263 Neb. 184, 639 N.W.2d 84 (2002).
V. ANALYSIS
Under § 43-292, the juvenile court may terminate an individual's parental rights if one of the grounds enumerated in that statute exists and if the termination is found to be in the child's best interests. In the case at bar, the juvenile court terminated William's parental rights on the basis of the following grounds set forth in § 43-292:
(5) The parents are unable to discharge parental responsibilities because of mental illness or mental deficiency and there are reasonable grounds to believe that such condition will continue for a prolonged indeterminate period; [and]
(7) The juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months.
The juvenile court also found that terminating William's parental rights is in the best interests of Brittany.
1. Termination of Parental Rights Under § 43-292(5) and (7)
William argues that the juvenile court erred in finding that Brittany had been in an out-of-home placement for 15 or more of the most recent 22 months due to the fault of William. Specifically, William argues that the State had a statutory duty to exercise diligent efforts to strengthen the parent-child relationship of William and Brittany, but had failed to provide him with an opportunity to participate in a plan *471 of rehabilitation. This argument is not convincing.
Termination of parental rights on the basis of § 43-292(7) does not require the State to provide a plan of rehabilitation. The Nebraska Supreme Court has made it clear that the requirement to provide reasonable efforts to reunify families as delineated in Neb.Rev.Stat. § 43-283.01 (Reissue 1998) is incorporated into § 43-292 only in subsection (6). See, In re Interest of DeWayne G. & Devon G., supra; In re Interest of Andrew M. et al., 11 Neb.App. 80, 643 N.W.2d 401 (2002).
In this case, the juvenile court terminated William's parental rights on the basis of § 43-292(5) and (7). Accordingly, the State had no obligation to provide William with an opportunity to participate in a plan of rehabilitation. Although the juvenile court found that William had been ordered to comply with various plans of rehabilitation, such a finding was unnecessary, and we therefore need not determine whether it was correct.
Furthermore, it is undisputed that Brittany has been in an out-of-home placement and continuously in the care, custody, and control of the Department since December 29, 1999. The State has proven by clear and convincing evidence that the child falls within the scope of § 43-292(7). Therefore, termination of William's parental rights on the basis of § 43-292(7) was not error.
William also argues that the juvenile court erred in finding that William is unable to discharge his parental duties due to mental illness or deficiency, because the State failed to provide William with a plan of rehabilitation to address mental health issues. Because § 43-292 requires a finding of only one of the enumerated grounds to terminate parental rights and because we find the statutory ground under § 43-292(7) was proven by clear and convincing evidence, we do not consider William's arguments with regard to the juvenile court's determination under § 43-292(5). See, In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002); In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000).
2. Best Interests
William argues that the juvenile court erred in finding that termination of William's parental rights is in the best interests of Brittany. Because our review is independent of the juvenile court's findings, with consideration given to the fact that the juvenile court observed the witnesses and accepted one version of facts over another, we turn to the record.
The evidence supports a conclusion that William is not able to provide adequate care for Brittany. The results of William's court-ordered psychological evaluation indicated that he suffers from mild mental retardation and major depression, only the latter of which is treatable. In addition, Dr. Cottam, William's evaluator, expressed numerous concerns with William's ability to properly parent Brittany, including William's mental health, mild mental retardation, major depression, and prior sexually assaultive behavior. Christ-Anderson, Brittany's therapist, testified that Brittany has several special needs requiring additional parenting skills, such as behavior modification skills and the ability to effectively reward appropriate behavior and provide consequences for inappropriate behavior. According to Christ-Anderson, Brittany's current foster parents have been effectively working with Brittany in these areas.
Furthermore, the evidence suggests that Brittany would be placed in danger if she were under the care of William. In Brittany I, William was found to have *472 sexually molested Brittany's sister. William admitted in his psychological evaluation that he had been charged with sexual assault twice in the past. William's sexual assault conviction in 1996 resulted from William's having had sex with a 13-year-old, whom he claimed he thought was 16 years old. In addition, the State presented persuasive evidence through Christ-Anderson's testimony that Brittany had been sexually abused by William.
Finally, both Christ-Anderson and Schoettle, Brittany's Child Protective Services case manager, testified that in their expert opinions, termination of William's parental rights would be in the best interests of Brittany. These circumstances, considered together, convince this court that the juvenile court did not err in finding that termination of William's parental rights is in the best interests of Brittany.
3. WILLIAM'S GAL'S STANDING
William's GAL asserts the following issues on appeal: (1) The juvenile court incorrectly found that William was the biological father of Brittany, and (2) the juvenile court incorrectly refused to appoint a special prosecutor because of an existing conflict of interest with the Douglas County Attorney's office.
The State asserts that William's GAL does not have standing to present the above arguments, because the arguments do not pertain to the best interests of William. We assume, without deciding, that William's GAL has standing to bring the above arguments.
4. ESTABLISHING PATERNITY
William's GAL asserts that the juvenile court incorrectly failed to require the State to prove paternity by clear and convincing evidence before entering the order terminating William's parental rights. However, paternity was never at issue. Why this is assigned and argued is perplexing, but we will address this issue nonetheless.
In pleadings and affidavits, William has repeatedly identified himself as the natural father of Brittany. "A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true." Sempek v. Sempek, 198 Neb. 300, 304, 252 N.W.2d 284, 288 (1977). William's pleadings and affidavits constitute judicial admissions as to paternity by identifying himself as the natural father of Brittany. Consequently, William may not now appeal on the basis of the State's failure to submit evidence material to a fact which William previously and continuously admitted.
The supplemental petition filed on May 10, 2000, in Brittany I specifically alleged that William was the father of Brittany. The juvenile court adjudicated Brittany to be a child within § 43-247(3)(a) "insofar as the father is concerned" in an order dated October 18 and thereby implicitly adjudicated William's status as the parent of Brittany. William's prior appeal of the October 18 adjudication did not raise any issue regarding his paternity with regard to Brittany.
Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication. Mondelli v. Kendel Homes Corp., 262 Neb. 263, 631 N.W.2d 846 (2001); In re Interest of Marcus W. et al., 11 Neb.App. 313, 649 N.W.2d 899 (2002). The law-of-the-case doctrine operates to preclude a reconsideration of substantially *473 similar, if not identical, issues at successive stages of the same suit. In re Estate of Stull, 261 Neb. 319, 622 N.W.2d 886 (2001); In re Interest of Marcus W. et al., supra. Because of William's judicial admissions of paternity and the juvenile court's implicit adjudication of paternity in Brittany I, the juvenile court's termination of William's parental rights cannot be disturbed on the basis of a failure to prove paternity.
5. CONFLICT OF INTEREST
William's GAL also argues that the juvenile court erred in denying the motion to appoint a special prosecutor because the Douglas County Attorney's office had a conflict of interest. William's GAL alleges that because Brittany's former GAL had filed and obtained a default judgment against William and had subsequently become employed with the Douglas County Attorney's office, the office was disqualified from filing a motion to terminate William's parental rights. The juvenile court denied the appointment of a special prosecutor on July 22, 2002. The State contends that the court's denial of William's GAL's motion was a final, appealable order and that William's GAL did not timely appeal the order.
The denial of a motion for a special prosecutor has been impliedly held not to be a final order. See, State v. Schlund, 249 Neb. 173, 542 N.W.2d 421 (1996) (stating that State's motion to disqualify defendant's counsel because of conflict of interest affects peripheral matter of counsel qualified to represent defendant rather than subject matter of case, as required in Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993)); State v. Hatfield, 218 Neb. 470, 356 N.W.2d 872 (1984) (permitting defendant's appeal at conclusion of trial without discussion of final order for county court's denial of defendant's motion to disqualify prosecuting attorney because of conflict of interest); State v. Boyce, 194 Neb. 538, 233 N.W.2d 912 (1975) (permitting defendant's appeal at conclusion of trial without discussion of final order for district court's denial of defendant's motion for appointment of special prosecutor). In the instant case, even if the juvenile court's order was not final, William was not entitled to the appointment of a special prosecutor.
We share William's GAL's concerns regarding Brittany's former GAL's actions in hiring an attorney to file a personal injury action against William on behalf of Brittany, despite the apparent benign motive in doing so. Generally speaking, a GAL's power is limited to matters related to the action to which the GAL is appointed. 42 Am.Jur.2d Infants §§ 175, 183, and 185 (2000). The Nebraska Supreme Court has adopted a similar position in Orr v. Knowles, 215 Neb. 49, 58, 337 N.W.2d 699, 705 (1983), in which the court stated that a GAL "only has the power to act in the single situation for which he or she is appointed."
Neb.Rev.Stat. § 43-272 (Cum.Supp.2002) states that a GAL has the duty to "protect the interests of the juvenile for whom he or she has been appointed guardian, and shall be deemed a parent of the juvenile as to those proceedings with respect to which his or her guardianship extends." (Emphasis supplied.) Further, Neb.Rev.Stat. § 43-272.01(2)(h) (Reissue 1998) permits a GAL to "file a petition in the juvenile court on behalf of the juvenile, including a supplemental petition as provided in [Neb.Rev.Stat. § ] 43-291 [(Reissue 1998)]." However, neither statute provides statutory authority for a GAL to assist those he or she represents in initiating litigation outside of the proceeding in which the GAL was appointed to represent.
*474 Nevertheless, we do not find that Brittany's former GAL's actions resulted in the Douglas County Attorney's office having a conflict of interest. First, the record does not reflect that Brittany's former GAL ever obtained an actual money judgment against William. While a default judgment was entered against William, the record reflects a letter dated November 26, 2001, which threatened dismissal for lack of prosecution if no action was taken within 30 days. A certificate of readiness for trial was then filed, but no evidence of an entry of a money judgment exists in the record.
Even if a conflict of interest existed, this conflict would not be imputed on the entire Douglas County Attorney's office. It does not appear that the Nebraska Supreme Court has addressed the issue of whether a disqualification of one government attorney is imputed on the entire disqualified government attorney's office. However, other states that have addressed this issue have not imputed a disqualification to the entire government office.
The U.S. Court of Appeals for the Sixth Circuit addressed the issue in United States v. Caggiano, 660 F.2d 184 (6th Cir.1981), in which a district court disqualified an entire government attorney's office in Memphis, Tennessee, because of an alleged appearance of a conflict of interest with one of the attorneys in the office. The Sixth Circuit stated that there is "quite a difference in the relationship between law partners and associates in private law firms and lawyers representing the government." Id. at 190. The court then quoted ABA Comm. on Prof. Ethics Formal Op. 342 (1975), which ruled that other government lawyers in an office were not disqualified from handling matters that one of the office's new associates was involved in prior to beginning work at the government office. The Sixth Circuit then reversed the district court's ruling.
Other states have held similarly to that decision by the Sixth Circuit and some have quoted or cited Caggiano, supra, or ABA Comm. on Prof. Ethics Formal Op. 342. See, e.g., Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987) (holding that government lawyer's disqualification was not imputed to other government lawyers associated with disqualified government lawyer); State v. Fitzpatrick, 464 So.2d 1185 (Fla.1985) (quashing district court's ruling that state attorney's office was not distinct from private law firm for purposes of imputing disqualification of one attorney to all others in office); People v. Lopez, 155 Cal.App.3d 813, 202 Cal.Rptr. 333 (1984); State v. Laughlin, 232 Kan. 110, 652 P.2d 690 (1982); Pisa v. Commonwealth, 378 Mass. 724, 393 N.E.2d 386 (1979); Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980). But see Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982).
In the instant case, the record reflects that Brittany's former GAL's only participation was her involvement as Brittany's former GAL. There is no evidence that suggests Brittany's former GAL was involved in the case after becoming employed with the Douglas County Attorney's office or that she was not effectively screened from any direct or indirect participation after beginning her employment with the Douglas County Attorney's office. As such, this court now finds that even if a conflict of interest did exist, such a conflict would not be imputed to the entire Douglas County Attorney's office.
Finally, we do not find an appearance of impropriety with the Douglas County Attorney's office. William's GAL asserts that Brittany's former GAL's outstanding judgment against William on behalf of Brittany created the appearance of impropriety *475 because she was a judgment creditor. However, this argument is not persuasive.
Generally, even though a minor may be required to appear through a GAL, the child is the real party of interest. 42 Am.Jur.2d Infants §§ 172 and 182 (2000). Furthermore, a GAL does not have the authority to receive the payment of a judgment rendered in favor of the infant. Id. at § 190.
In this case, Brittany's former GAL, through her employer at the time, hired an attorney on behalf of Brittany. The attorney filed the civil action against William. The pleading clearly delineates that the action was filed "By and Through [Brittany's] Guardian Ad Litem." While outside the scope of the statutory defined authority, the pleading is clear on its face that it was filed by a GAL and that any interest in the judgment is owned by Brittany. As such, no appearance of impropriety existed on behalf of the Douglas County Attorney's office, and thus, the appointment of a special prosecutor was not necessary. The juvenile court did not err in denying William's GAL's motion to appoint a special prosecutor.
VI. CONCLUSION
The juvenile court's order terminating William's parental rights with regard to Brittany is affirmed. Termination of parental rights pursuant to § 43-292(7) does not require the State to provide a plan of rehabilitation prior to terminating the parent's rights. Accordingly, the State's alleged failure to do so cannot be error. In addition, the juvenile court did not err in not requiring the State to present evidence that William is the biological father of Brittany. William has never objected to the premise that Brittany is his biological daughter. Further, this court's prior review of this case affirmed an implicit ruling that William is Brittany's biological parent. Under the law-of-the-case doctrine, the ruling that William is Brittany's biological father is conclusive. Finally, there is sufficient evidence on the record to find that termination of William's parental rights is in the best interests of Brittany. As such, the juvenile court properly terminated William's parental rights.
With regard to the denial of the appointment of a special prosecutor, we find no error on the part of the juvenile court in denying this request. William did not timely appeal this issue. Additionally, there is insufficient evidence to find that the Douglas County Attorney's office had a conflict of interest. The juvenile court's decision is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577878/ | 670 N.W.2d 108 (2003)
Lester CAMPBELL, Appellant,
v.
Arnold DELBRIDGE and Covenant Medical Center, Inc., Appellees.
No. 02-1007.
Supreme Court of Iowa.
October 8, 2003.
*109 Douglas V. Coonrad, Hudson, for appellant.
Joseph L. Fitzgibbons and Ned A. Stockdale of Fitzgibbons Law Firm, Estherville, for appellee Covenant Medical Center, Inc.
Allison M. Heffern and James E. Shipman of Simmons Perrine Albright & Ellwood, PLC, Cedar Rapids, for appellee Arnold Delbridge.
Frank Santiago, Iowa City, and Donald T. Ridley, Watchtower Bible and Tract Society of New York, Inc., Patterson, NY, for amicus curiae Christian Congregation of Jehovah's Witnesses.
LARSON, Justice.
Lester Campbell, a surgical patient at Waterloo's Covenant Hospital, sued the hospital and Dr. Arnold Delbridge, Campbell's treating doctor, for reinfusing Campbell's own blood following surgery. The district court dismissed the suit, and Campbell appealed. We reverse and remand.
I. Facts and Prior Proceedings.
Lester Campbell was admitted to Covenant for a total right knee arthroplasty performed by Dr. Delbridge, an orthopedic surgeon. Campbell is a Jehovah's Witness, and he made it clear in his presurgical physical and at his preadmission appointment that his religious beliefs precluded the use of blood or blood products, including his own. His medical chart made numerous references to his refusal to accept blood infusions. Campbell did not receive any blood or blood products during surgery. However, after surgery, Dr. Delbridge ordered the use of a Gish Orthoinfuser (Gish) to collect blood from the surgical site. The doctor decided to use the Gish, as opposed to other devices, because the Gish provided a reservoir where blood can be stored for disposal or possible reinfusion, and it provided the best suction. Further, use of the Gish would preserve Campbell's ability to change his mind about receiving his own blood should it become medically necessary.
The nurse anesthetist who took Campbell to the postanesthesia care unit (PACU) stated in an affidavit that, at the request of Dr. Delbridge, she told the PACU nurses that Campbell was a Jehovah's Witness and was not to be reinfused. The PACU nurses, however, denied receiving this information. The nurse who started the reinfusion admitted in her deposition that she did not look at Campbell's chart for an order to start the reinfusion, as usually required. She based her decision to reinfuse on the fact that the Gish, with its blood reservoir, suggested that reinfusion was to be done. Campbell was reinfused with his own blood for just under an hour.
Campbell sued the doctor and the hospital, alleging negligence, failure to obtain informed consent, breach of contract, medical battery, and invasion of privacy. Campbell had originally indicated he would have an expert witness on the doctor's standard of care, but that witness was withdrawn. Dr. Delbridge moved for summary judgment on the ground that, without *110 expert testimony, Campbell could not make a prima facie showing on any of his theories of recovery. Covenant filed a motion to preclude the plaintiff's medical evidence under Iowa Rule of Civil Procedure 1.508(3) (failure to identify expert) and Iowa Rule of Evidence 5.104(a) (preliminary question of qualification of witnesses to be determined by court).
The court concluded that the plaintiff lacked the necessary expert witnesses to establish liability or damages, and the suit was dismissed.
II. Standard of Review.
The standard of review of a district court's grant of summary judgment is for correction of errors at law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2001). Summary judgment is appropriate only when the moving party shows there are no genuine issues of material fact, and in deciding that issue, we review the record in the light most favorable to the party opposing the motion. Id. Another principle is applicable here:
Because resolution of issues of negligence and proximate cause turns on the reasonableness of the acts and conduct of the parties under all the facts and circumstances, actions for malpractice "are ordinarily not susceptible of summary adjudication."
Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990) (quoting Daboll v. Hoden, 222 N.W.2d 727, 732 (Iowa 1974)).
III. The Issues.
The defendants rely on the principle that, ordinarily, expert testimony is required to establish the applicable standard of care and a breach of it. See Oswald, 453 N.W.2d at 635 (to establish prima facie case of medical malpractice, the plaintiff must produce evidence establishing a standard of care, a violation of the standard, and a causal relationship with the injury). The establishment of these criteria must "[o]rdinarily be made through an expert witness." Id.; see also Iowa Code § 668.11 (2001):
1. A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert's name, qualifications and the purpose for calling the expert ... within one hundred eighty days of the defendant's answer unless the court for good cause not ex parte extends the time of disclosure.
....
2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert's testimony is given by the court for good cause shown.
However, if an issue in a malpractice case may be determined by lay fact finders without the testimony of experts, we have allowed the fact finder to resolve it without expert testimony. For example, in Oswald we ruled that expert testimony was not required as to all of the elements of a medical malpractice case. In that case, the parents of a spontaneously aborted fetus sued the treating doctors and hospital. Susan Oswald, who was pregnant, experienced severe bleeding and cramping well ahead of her expected delivery date. Dr. Clark, one of the defendants, examined her and advised her there was nothing to be done and sent her home. The patient's husband became upset and demanded that his wife be admitted to the hospital. She was admitted, but her ensuing lack of care at the hospital resulted in this lawsuit. A nurse told her if the fetus miscarried it would not be a baby, only a "big blob of *111 blood." One of her treating doctors said, within her hearing, that he did not want to treat her. At one point, the mother screamed in pain and yelled that she was in labor. The doctor did not do a pelvic exam. He suspected, but did not inform the parents, that the mother had a uterine infection. The doctor told the father to calm down his wife, and approximately one-half hour before the doctor's shift ended, he left for vacation. The baby soon began to be born, without medical attention, until the father kicked on a door and got the attention of the medical staff. A one-pound baby girl was delivered, but a nurse announced she was stillborn. One of the doctors examined her for gender but made no further examination. The father called family members to tell them of their loss and, on returning to the room, discovered the baby grasped his finger. The baby, who had been kept on a surgical tray for half an hour, was rushed to a neonatal unit but died twelve hours later. Oswald, 453 N.W.2d at 636-37.
In Oswald the parents sued the medical care personnel and the hospital, but the district court granted summary judgment for the defendants. On appeal we held that some of the plaintiffs' claims, such as whether better care would have saved the baby's life, required expert testimony. The same was true on the question of whether the defendants' callous treatment of the mother added to her medical stress. Id. at 638. We held, however, that to establish emotional distress under these facts
[n]o expert testimony is needed to elaborate on whether the statements by the nurses and Dr. Clark were rude and uncaring; a lay fact finder could easily evaluate the statements in light of the surrounding circumstances to determine whether the language used or message conveyed breached the standard of care expected of medical professionals, and determine the harm, if any, resulting to the plaintiffs....
We are similarly convinced that a lay jury is also capable of evaluating the professional propriety of Dr. Clark's early departure from the hospital, knowing that he had left Susan Oswald unattended in a hospital corridor screaming hysterically that she was about to give birth.
Id. at 639-40.
Oswald relied on a similar New Jersey case, Friel v. Vineland Obstetrical & Gynecological Professional Association, 166 N.J.Super. 579, 584, 400 A.2d 147, 149 (Law Div.1979), which held a doctor's "utter lack of attendance" at critical stages of the delivery "would appear to be within the province of the jury...."
Oswald bore a similarity to the present case also in that it relied in part on admissions of the defendant doctors to establish a breach of the duty of care. Oswald, 453 N.W.2d at 640. Here, Dr. Delbridge testified in his deposition that somebody made an error:
Q. Do you agree that absent an error on somebody's part, Mr. Campbell should not have been reinfused? A. Mr. Campbell's desires were not to be reinfused; that was my intention, and there was an error.
(Emphasis added.)
While Dr. Delbridge concedes the plaintiff should not have been reinfused, he contends he did all he could do to convey the message to the PACU nurses not to do it. He contends he did not order a reinfusion and points to the patient's chart with its "no infusion" notations to defend the claims against him. The nurses, on the other hand, contend they did not get the message about not reinfusing the patient and that this was due in part to the fact that Dr. Delbridge had taken the chart, *112 with its no-infusion notations, with him to write in it. There was even evidence that there might have been a mix-up between Campbell's chart and that of another patient. The nurses also point to the fact that the doctor had ordered the use of a Gish, and this in itself suggests the doctor was ordering reinfusion. The nurses testified that, in the past, they had always reinfused patients when the doctor ordered a Gish to be used.
Whether reinfusion was called for, from a medical perspective, or whether the infusion was properly done would obviously require testimony by a medical expert. However, as in Oswald, we believe a lay fact finder is qualified and capable to resolve issues that are only peripheral to the medical decisions. In Oswald, for example, we said a fact finder could evaluate the propriety of a doctor's leaving his patient early to go on vacation. 453 N.W.2d at 640. Here, Dr. Delbridge contends he did all he could to convey his order not to infuse the patient. The hospital, through its nurses, contends no order was provided to them and further that Dr. Delbridge created an aura of confusion by ordering use of the Gish. These are issues of credibility and communication. These are not complex issues. As we have said:
It is the complexity of professional negligence cases that requires expert testimony. [The defendant] argues that stray-voltage cases are technical in nature and thus require such testimony. Although testimony of witnesses having specialized education and training, or special experience and knowledge, is often admitted into evidence on the ground of necessity, it is not necessarily required merely because a case involves matters of science, special skill, special learning, knowledge, or experience which may be difficult for jurors to comprehend.
Schlader v. Interstate Power Co., 591 N.W.2d 10, 14 (Iowa 1999). In Schlader we quoted from Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313, 317 (1962):
[I]f all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons] of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation [expert testimony is not required].
Schlader, 591 N.W.2d at 14. The bases of the plaintiff's claims in this case are, like in Oswald, "that the care provided by defendants... fell below the standard of medical professionalism understood by laypersons and expected by them." Oswald, 453 N.W.2d at 638 (holding callous remarks by nurses and doctor's admitted failure to determine viability of the fetus were standards of care understood and expected by laypersons); see also Estate of Long v. Broadlawns Med. Ctr., 656 N.W.2d 71, 83 (Iowa 2002). In Long a plaintiff alleged a psychiatric doctor negligently failed to notify the plaintiff's decedent, who had been murdered by the doctor's patient, that the murderer's release was imminent. The defendant in Long claimed that expert testimony was required to inform the jury on "the predictability and probability of the actions of a mental health patient." Long, 656 N.W.2d at 82. The trial court rejected the defendants' argument, and we affirmed on this rationale:
We, like the district court, struggle to see how expert testimony was required in this case. The core negligence issue presented focused on whether Broadlawns fulfilled a promise to Jillene to notify her upon Gerald's discharge. A *113 consideration of the issues surrounding this alleged promise raised no real questions of a "scientific, technical, or other specialized" nature that would require testimony by an expert to "assist the trier of fact to understand the evidence or to determine a fact in issue." Iowa R. Evid. 5.702.
Id. at 83. We concluded that expert testimony on causation and the predictability and probability of the actions of a mental-health patient were not required to be demonstrated by expert testimony. Id.
The evidence concerning the lack of communication between the doctor and the PACU nurses, the possible mix-up in patient charts, and the doctor's admission of error are capable of being resolved by a fact finder without the testimony of experts. The court erred in concluding otherwise and granting summary judgment against the plaintiff on that basis.
IV. Emotional Distress Damages.
The defendants contend the plaintiff's claims for emotional distress could not be established without the aid of an expert witness. The plaintiff saw a psychiatrist four times, and the psychiatrist referred Campbell to a counselor, a licensed social worker, who was employed by Covenant Clinic Psychiatry. The counselor's report concluded that "this [reinfusion] was an event that had occurred that was traumatizing and resulting in the rigid thought process, may be triggering a depression that needed to be addressed." While this statement did not amount to an opinion by a medical doctor based on a reasonable degree of medical certainty, as often is presented, this statement together with the plaintiff's testimony concerning the connection between the event and his later psychological problems present a sufficient factual dispute to avoid summary judgment.
The defendants also contend that the plaintiff can point to no accompanying physical injury to provide a basis for emotional-distress damages. See Oswald, 453 N.W.2d at 639 (noting general rule requiring physical injury). However,
[a]n exception exists ... where the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm.
Id. (citing Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 354 (Iowa 1989)). We cited several cases involving recovery for "deeply emotional" events that did not require an accompanying physical injury and concluded:
Under the comparable circumstances demonstrated by this record, we think liability for emotional injury should attach to the delivery of medical services.
Oswald, 453 N.W.2d at 639. We believe the present case falls under the same rationale and that the plaintiff was not required to establish an accompanying physical injury.
V. Conclusion.
Under our summary-judgment rules,
"[t]he burden is upon the party moving for summary judgment to show [the] absence of any genuine issue of a material fact. All material properly before the court must be viewed in the light most favorable to the opposing party."
Oswald, 453 N.W.2d at 635 (quoting Daboll, 222 N.W.2d at 731).
When we view the evidence in this record in the light most favorable to the plaintiff, we conclude there are disputed issues of fact that preclude entry of summary judgment. We therefore reverse and remand for trial.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577604/ | 670 N.W.2d 249 (2003)
258 Mich. App. 149
Mishelle STEINMANN, Plaintiff-Appellant,
v.
Sarah Louise DILLON and Gary Dillon, Defendants, and
DaimlerChrysler Health Plan, Intervening Party-Appellee.
Mishelle Steinmann, Plaintiff-Appellee,
v.
Auto Club Insurance Association, d/b/a/ AAA of Michigan, Defendant-Appellant, and
DaimlerChrysler Health Plan, Defendant-Appellee.
Docket Nos. 239113, 239559.
Court of Appeals of Michigan.
Submitted August 6, 2003, at Detroit.
Decided August 14, 2003, at 9:10 a.m.
Released for Publication October 16, 2003.
*250 Cochran, Foley & Associates, P.C. (by Terry L. Cochran and Pamela Crnolatic), Livonia, for Mishelle Steinmann.
Fraser Trebilcock Davis & Dunlap, P.C. (by Graham K. Crabtree and Thaddeus E. Morgan), Lansing, for the DaimlerChrysler Health Plan.
Schoolmaster, Hom, Killeen, Siefer & Arne (by Elaine I. Harding) and John A. Lydick, Livonia, Bingham Farms, for the Auto Club Insurance Association.
Before DONOFRIO, P.J., and BANDSTRA and O'CONNELL, JJ.
*251 O'CONNELL, J.
In Docket No. 239113, plaintiff Mishelle Steinmann appeals as of right an order granting summary disposition in favor of intervening party-appellee DaimlerChrysler Health Plan (DCHP) pursuant to MCR 2.116(C)(10). In Docket No. 239559, defendant Auto Club Insurance Association (AAA) appeals as of right an order granting summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(8)[1] and a declaratory judgment. The appeals were consolidated. We reverse in both docket numbers.
I
Plaintiff was injured in an automobile accident on January 5, 2000. At the time of the accident, plaintiff was a covered dependent under a medical insurance plan issued by DCHP.[2] Plaintiff was also insured under a no-fault automobile insurance policy issued by AAA. DCHP paid $14,319.79 in medical expenses on behalf of plaintiff as a result of injuries she sustained in the accident. Subsequently, plaintiff brought a third-party negligence action against the driver and owner of the other automobile involved in the accident.[3] The trial court allowed DCHP to intervene in this action (Docket No. 239113).
Plaintiff settled her third-party negligence lawsuit for $50,000. DCHP sought to recover $14,319.79 in medical expenses from plaintiff's settlement on the basis of a subrogation provision in its administrative manual. Plaintiff, naming DCHP and AAA as defendants, requested a declaratory judgment to resolve the issue of which insurer was responsible for paying plaintiff's medical bills (Docket No. 239559). In Docket No. 239113, the trial court granted DCHP's motion for summary disposition, ruling that plaintiff was required to reimburse DCHP for medical expenses out of her third-party tort settlement. In Docket No. 239559, the court concluded that AAA was required to reimburse plaintiff for plaintiff's payment to DCHP.
II
We review de novo a trial court's grant or denial of summary disposition. Spiek v. Dep't. of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. Spiek, supra. All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). The motion may be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. (quotation omitted). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. Downey v. Charlevoix Co. Bd. of Co. Rd. Comm'rs, 227 Mich.App. 621, 625, 576 N.W.2d 712 (1998). The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted *252 by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(C)(10). Id. at 626, 576 N.W.2d 712; MCR 2.116(G)(5). When reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), this Court "must consider the documentary evidence presented to the trial court `in the light most favorable to the nonmoving party.'" DeBrow v. Century 21 Great Lakes, Inc. (After Remand), 463 Mich. 534, 539, 620 N.W.2d 836 (2001), quoting Harts v. Farmers Ins. Exchange, 461 Mich. 1, 5, 597 N.W.2d 47 (1999).
In Docket Nos. 239113 and 239559, plaintiff and AAA argue that the trial court erred in ruling that the subrogation provision in DCHP's administrative manual required plaintiff to reimburse DCHP for medical expenses out of her third-party tort settlement.
Thus, at issue is the interpretation of the plan agreement between plaintiff and DCHP. See Yerkovich v. AAA, 461 Mich. 732, 736, 610 N.W.2d 542 (2000). The administrative manual of DCHP's insurance plan contains the following provision:
SUBROGATION
A. General
In the event that an Enrollee receives services that are paid by the Program, or is eligible to receive future services under the Program, the Program shall be subrogated to the Enrollee's rights of recovery against, and is entitled to receive all sums recovered from, any third party who is or may be liable to the Enrollee, whether by suit, settlement or otherwise. An Enrollee shall take such action, furnish such information and assistance, and execute such documents as the Program may request to facilitate enforcement of the rights of the Program and shall take no action prejudicing the rights and interests of the Program. [Emphasis in original.]
Black's Law Dictionary (7th ed.) defines "subrogation" as "[t]he substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor" and, alternatively, as "[t]he principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy." A subrogee "stands in the shoes of the subrogor and acquires no greater rights than those possessed by the subrogor." Yerkovich, supra at 737, 610 N.W.2d 542.
The Michigan no-fault act, M.C.L. § 500.3103 et seq., bars recovery of medical expenses from third-party tortfeasors arising out of the ownership, maintenance, or use of a motor vehicle. MCL 500.3135. Plaintiff's settlement proceeds, therefore, did not include compensation for medical expenses. Plaintiff and AAA contend that because plaintiff could not recover medical expenses from the third-party tortfeasors under M.C.L. § 500.3135, DCHP is prohibited from recovering medical expenses from plaintiff's settlement because a subrogee cannot acquire greater rights than the subrogor. We agree.
An insurance contract should be read as a whole, giving meaning to all its terms. Auto-Owners Ins. Co. v. Churchman, 440 Mich. 560, 566, 489 N.W.2d 431 (1992). An insurance contract is clear if it fairly admits of but one interpretation. Farm Bureau Mut. Ins. Co. v. Nikkel, 460 Mich. 558, 566, 596 N.W.2d 915 (1999). An insurance contract is ambiguous if, after reading the entire contract, its language can be reasonably understood in different ways. Id. Ambiguous terms in an insurance policy must be construed against the *253 drafter and in favor of the insured. Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41, 664 N.W.2d 776 (2003).[4]
The insurance contract in this case is not ambiguous. Reading the subrogation clause as a whole, because the "entitled to receive all sums recovered from ... any third party" language is in the same sentence as the "shall be subrogated to the Enrollee's rights of recovery against" language and because all the language is included under the "SUBROGATION" heading, the subrogation clause is narrow and limited to traditional subrogation. Consequently, DCHP only has subrogation rights and is not entitled to reimbursement from plaintiff's settlement because the plan does not provide DCHP with a right to reimbursement. As subrogee, DCHP is only entitled to recover what plaintiff is entitled to recoverbecause plaintiff cannot recover medical expenses, DCHP cannot recover. See id.
III
In granting defendant DCHP's motion for summary disposition, the trial court relied on Ward v. Wal-Mart Stores, Inc., Assoc. Health & Welfare Plan, 7 F.Supp.2d 927 (W.D.Mich., 1998).[5] In Ward, the district court ruled that the defendant, a self-funded employee welfare benefit plan under ERISA, was entitled to reimbursement out of the plaintiff's third-party tort recovery for noneconomic damages that were suffered as a result of an automobile accident, not under the plan's subrogation provision, but under the plan's separate reimbursement provision. In that case, the plan's subrogation rights were limited to recovering against any "third party who may be liable for the amount of such benefits[.]" Id. at 930 (quotation omitted). The court held that because the plaintiff's third-party tort settlement could not include reimbursement for medical expenses, the third-party tortfeasor was not a third party "who may be liable for the amount of such benefits covered or paid by the Plan." Id. Accordingly, the court held that the subrogation provision did not allow the plan to recover medical expenses from the plaintiff's settlement.
However, the district court further held that the plan could recover medical expenses from the plaintiff's third-party tort settlement on the basis of a separate reimbursement provision, which gave the plan "the right to ... recover benefits previously paid by the PLAN" from third parties regardless of whether the payment is designated as payment for such damages including, but not limited, to pain and suffering, loss of income, medical benefits, or any other specified damages.[6]Id. at 930.
*254 Here, the subrogation clause is limited and creates only subrogation rights for defendant DCHP. Because the "entitled to receive all sums recovered" language follows the subrogation language and is included under the subrogation heading, DCHP is not entitled to reimbursement from plaintiff's settlement. The plan simply does not contain a separate right to reimbursement.[7] See Farm Bureau Mut. Ins. Co., supra; Wilkie, supra at 469 Mich. 41, 664 N.W.2d 776.
Reversed.[8]
NOTES
[1] In both cases, the trial court did not articulate on which subrule of MCR 2.116(C) summary disposition was appropriate. On the basis of the subrules cited by the moving parties, we conclude that the trial court granted summary disposition based on MCR 2.116(C)(10) in Docket No. 239113 and MCR 2.116(C)(8) in Docket No. 239559.
[2] DCHP is a self-funded employee health benefit plan created and administered pursuant to the Employee Retirement Income Security Act (ERISA), 29 USC 1001 et seq.
[3] The driver and owner of the other automobile involved in the accident were defendants Sarah Louise and Gary Dillon, respectively. They are not parties to this appeal.
[4] We note that the rule of reasonable expectationthat the policyholder has a right to coverage he could reasonably expect from reading the contract, see Wilkie v. Auto-Owners Ins. Co., 245 Mich.App. 521, 524, 629 N.W.2d 86 (2001)was overruled in Wilkie, supra at 469 Mich. 41, 664 N.W.2d 776.
[5] Federal district court decisions are not binding precedent. See Jodway v. Kennametal, Inc., 207 Mich.App. 622, 630-631, 525 N.W.2d 883 (1994). In addition, Ward was reversed in part on other grounds in an unpublished decision, 194 F.3d 1315 (C.A.6 1999).
[6] Judge O'Connell notes that public policy in Michigan prohibits recovery of medical expenses from third-party tortfeasors. See, e.g., M.C.L. § 500.3135 (the no-fault act). Therefore, reimbursement clauses like the one contained in Ward, supra, indirectly violate Michigan public policy concerning reimbursement of medical expenses from third-party tortfeasors. Logic implies that if one cannot directly recover medical expenses from third-party tortfeasors, one is not allowed to do so indirectly.
[7] In the present case, no separate reimbursement clause exists. Therefore, this issue is not properly before this Court.
[8] Because of our disposition of this case, it is unnecessary to reach the other issues raised on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736097/ | 727 N.W.2d 375 (2006)
2007 WI App 19
JOHNSON
v.
JOHNSON.
No. 2006AP883.
Wisconsin Court of Appeals.
December 14, 2006.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577546/ | 35 So. 3d 125 (2010)
The STATE of Florida, Appellant,
v.
Jose CARRENO, Appellee.
No. 3D08-1081.
District Court of Appeal of Florida, Third District.
May 19, 2010.
*127 Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
Grey & Mourin and Juan E. Mourin, for appellee.
Before SUAREZ, CORTIÑAS, and SALTER, JJ.
CORTIÑAS, J.
The State of Florida appeals the trial court's order granting the motion of defendant Jose Carreno to suppress evidence seized from his home after execution of a search warrant. The trial court found that the affidavit in support of the search warrant lacked sufficient facts to establish probable cause for issuance of the warrant. We reverse.
In his affidavit in support of the warrant, Detective Robert Holleran of the Miami-Dade Police Department detailed how he received an anonymous tip that the defendant's house was being used to grow marijuana and that the owner would be "cropping the harvest" that day. He explained that on the basis of that tip, the police set up surveillance at the property and saw the defendant's blue Lincoln Navigator[1] and a black Ford F-150 pickup truck enter the fenced-in property through an electronic gate. He stated that the bed of the pickup was empty when it entered but was filled with black garbage bags when it departed a short time later. He further stated that the police followed the pickup truck and soon stopped it for running a stop sign. Detective Holleran stated that he smelled marijuana emanating from the bags; after the driver gave his permission, Detective Holleran opened the bags and found marijuana clippings, marijuana leaves, and the root systems of marijuana plants. The affidavit further reported that the driver told police that the defendant, whom he claimed not to know, had paid him $300 to take the garbage bags to the dump.
Based upon these sworn facts, the original judge issued a warrant for the described premises. The police searched the residence and seized numerous marijuana plants and equipment, evidence that the house was being utilized as a "grow house" to cultivate marijuana. After a hearing on the defendant's motion to suppress the evidence seized, the successor circuit court judge found that "[t]he anonymous tip coupled with the single search of the garbage bags, with no other observations suggesting there was a hydroponics laboratory inside the home, did not provide sufficient probable cause to search the interior of the defendant's home."
A review of the record shows that the original circuit court judge followed the correct standard for determining that there was probable cause to believe that evidence of a crime would be found in the defendant's home. See State v. Woldridge, 958 So. 2d 455, 458 (Fla. 2d DCA 2007). It was the reviewing court that failed to apply the proper standard, one of "great deference," to the original judge's determination. See Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Section 933.02(3), Florida Statutes, provides that a search warrant for property may be issued "[w]hen any property constitutes evidence relevant to proving that a felony has been committed." Before a court can issue a search warrant, *128 however, "the judicial officer issuing such a warrant [must] be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant." Whiteley v. Warden, Wyo. State Pen., 401 U.S. 560, 564, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). More specifically, Section 933.18(5), Florida Statutes, provides that a search warrant shall be issued for the search of a private dwelling "on sworn proof by affidavit of some credible witness that he or she has reason to believe that one of said conditions [e.g., "[t]he law relating to narcotics or drug abuse is being violated therein"] exists, which affidavit shall set forth the facts on which such reason for belief is based." Therefore, "the affidavit in the warrant application must satisfy two elements: first, that a particular person has committed a crime . . . and, second, that evidence relevant to the probable criminality is likely located at the place to be searched. . . ." Burnett v. State, 848 So. 2d 1170, 1173 (Fla. 2d DCA 2003). To that end, "the affidavit itself must contain either information concerning the informant's veracity or sufficient independent corroborating evidence." Woldridge, 958 So.2d at 458 (citing Pagan v. State, 830 So. 2d 792, 806-07 (Fla.2002)).
It is the task of the issuing judge "to examine the affidavit for facts and fact-based conclusions" in determining whether probable cause exists for the issuance of a search warrant. Burnett, 848 So.2d at 1174. The Florida Supreme Court has
defined "probable cause" as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. The reasons cited by the police must be sufficient to create a reasonable belief that a crime has been committed. As long as the neutral magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirement of probable cause is satisfied.
Schmitt v. State, 590 So. 2d 404, 409 (Fla. 1991) (internal citations omitted). The judge's duty "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). To reiterate, "it is the `probability, and not a prima facie showing, of criminal activity [that] is the standard of probable cause.'" Doorbal v. State, 837 So. 2d 940, 952-53 (Fla.2003) (quoting Gates, 462 U.S. at 235, 103 S. Ct. 2317). This standard "requir[es] `more than mere suspicion but less evidence than is necessary to convict.'" United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000) (quoting United States v. Burns, 624 F.2d 95, 99 (10th Cir. 1980)).
However, in reviewing a prior determination of probable cause and the issuance of the search warrant, the reviewing court must "accord[] `great deference' to a magistrate's determination," even in a marginal or doubtful case. United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (citing Spinelli, 393 U.S. at 419, 89 S. Ct. 584); see United States v. Lockett, 674 F.2d 843, 845 (11th Cir.1982). In fact, "once a Magistrate has found probable cause and has issued a warrant, his judgment is conclusive unless arbitrarily exercised. . . ." United States v. Giacalone, 541 F.2d 508, 513 (6th Cir. 1976). Therefore, "the trial court should not disturb an issuing magistrate's determination absent a clear determination that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause." Woldridge, 958 So.2d at *129 458 (citing State v. Price, 564 So. 2d 1239, 1241 (Fla. 5th DCA 1990)). To that end, the trial court, when reviewing the issuance of a warrant based on a probable cause affidavit, "does not conduct a de novo determination of whether there was probable cause to issue the warrant. Instead, the trial court determines only whether substantial evidence supported the magistrate's determination that probable cause existed." Woldridge, 958 So.2d at 458 (citing Bonilla v. State, 579 So. 2d 802, 805 (Fla. 5th DCA 1991)).
When this Court reviews an order granting a motion to suppress, we must defer to the trial court's findings of historical fact but "review de novo its application of established law to those facts." Brachlow v. State, 907 So. 2d 626, 628 (Fla. 4th DCA 2005) (citing McNamara v. State, 357 So. 2d 410, 412 (Fla.1978)). Here, under the facts of this case, the trial court judge did not give great deference to the original judge's probable cause determination.
The trial court, in holding that there was nothing in the affidavit to provide probable cause for a search of the defendant's home, found that this case was similar to Raulerson v. State, 714 So. 2d 536 (Fla. 4th DCA 1998), in which an anonymous tip and a one-time trash pull yielding cannabis residue were found to provide insufficient probable cause for issuance of a warrant. However, Raulerson is distinguishable in that it, like Gesell v. State, 751 So. 2d 104 (Fla. 4th DCA 1999), concerned a "small amount of marijuana . . . consistent with personal use," State v. Gross, 833 So. 2d 777, 781 (Fla. 3d DCA 2002), which did "not suggest a pattern of continuous drug activity." Raulerson, 714 So.2d at 537. Indeed, the court in Raulerson contrasted it with "those cases involving discovery of narcotics from a one-time trash pull, where additional information was included in the affidavits [that] suggested patterns of continuous drug activity," id., such as State v. Mayes, 666 So. 2d 165 (Fla. 2d DCA 1995), and Scott v. State, 559 So. 2d 269 (Fla. 4th DCA 1990), both of which combined a single trash pull with police surveillance that corroborated an anonymous tip. See also United States v. Sumpter, 669 F.2d 1215, 1221 (8th Cir.1982) (holding that a single trash pull "might be sufficient," but it helps if "other facts bolster the sufficiency of the affidavit in establishing probable cause to believe that illegal drugs would be found"); United States v. Biondich, 652 F.2d 743 (8th Cir.1981) (single trash pull sufficient, considering prior drug convictions); State v. Carbonell, 816 So. 2d 1169, 1170-71 (Fla. 4th DCA 2002) (single trash pull and surveillance sufficient); Lopez v. State, 775 So.2d 1007-08 (Fla. 3d DCA 2001) (multiple tips regarding drug dealing and single trash pull yielding "a considerable amount of drug paraphernalia and cocaine residue" sufficient); cf. Thompson v. State, 548 So. 2d 806, 808 (Fla. 1st DCA 1989) (finding a "bare assertion" insufficient "unless the affidavit demonstrates a factual basis for the belief").
In both Raulerson and Gesell, unlike the instant case, "the officers did not conduct any surveillance or independent follow-up investigation to corroborate the anonymous tip." Gesell, 751 So.2d at 105. Here, however, the anonymous caller reported that the defendant would be "harvesting the crop" that day; when police searched the garbage bags, they found clippings, leaves, and a root system, evidence that substantiated the caller's claim. As in Baker v. State, 762 So. 2d 977, 978 (Fla. 4th DCA 2000), "the items found in the trash pull . . . were consistent with the specific information from the caller. . . ." See also Gross, 833 So.2d at 781 ("In light of all of the other available information, the single trash search . . . was sufficient to corroborate the anonymous tip and to provide probable cause. . . .").
*130 Several cases require authentication of the defendant's ownership of the drug paraphernalia or plants found in a curbside trash pull before the evidence is deemed sufficient probable cause for issuance of a search warrant. Such proof often comes in the form of personal papers, see, e.g., State v. Jacobs, 437 So. 2d 166, 167 (Fla. 5th DCA 1983), or mail with the defendant's name on it, see, e.g., Baker, 762 So.2d at 978; Mayes, 666 So.2d at 165. The ownership of the trash bags is a nonissue here, however: the police observed the removal of the bags from the fenced, gated yard of the defendant's residence, and the pickup truck's driver confirmed that the defendant had paid him to take them to the dump.
Here, Detective Holleran presented sufficient facts in his affidavit for the original judge "to make a practical, common-sense decision, based on the circumstances set forth in the affidavit, that the defendant committed the alleged crime . . . and that `evidence relevant to the probable criminality [of marijuana trafficking was] likely to be located at the place searched[,]'" namely, the defendant's residence. State v. Abbey, 28 So. 3d 208, 212 (Fla. 4th DCA 2010) (quoting State v. Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006)). The affidavit alleged that the police received an anonymous tip that marijuana was being grown in the defendant's home; they set up surveillance and observed suspicious behavior, i.e., the driver of the pickup truck removing a number of garbage bags from next to the home; the odor of marijuana was emanating from the bags, which were found to contain marijuana clippings, leaves, and root systems; and the driver of the pickup stated that he had been paid $300, a disproportionately large amount, to take the bags to the dump. These facts "support the finding that there was a probability, though not necessarily a prima facie showing, of criminal activity." Abbey, 28 So.3d at 212. Furthermore, given that the trash bags belonged to the defendant, and marijuana was not being grown in the yard, it was reasonable for Detective Holleran and the original judge to infer that marijuana was being grown inside the defendant's home.
Because the detective's affidavit in support of the search warrant contained sufficient facts to establish probable cause that the defendant was engaging in the trafficking of cannabis and that the evidence of the crime would be found in his home, we hold that the original judge properly issued the search warrant. Because the trial court failed to use the proper standard of review, according great deference to the original judge's probable cause determination, we reverse the trial court's order suppressing the evidence obtained as a result of that warrant.
NOTES
[1] The anonymous informant stated that the owner of the property drove a blue Lincoln Navigator. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577589/ | 322 S.W.2d 284 (1959)
Lloyd Ray MULLICAN, Appellant,
v.
STATE of Texas, Appellee.
No. 30558.
Court of Criminal Appeals of Texas.
March 25, 1959.
John H. Regner, Houston, for appellant.
Dan Walton, Dist. Atty., Thomas D. White and Samuel H. Robertson, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Judge.
The conviction is for felony theft; the punishment, enhanced by a prior conviction for felony embezzlement, ten years.
Appellant was employed by a car wash company and resided with Rex Rawles, its manager.
On the evening of August 2, 1958, Mr. Rawles permitted appellant to use his automobile and showed him a bag of money representing the day's receipts, which he had carried home and placed in a cedar chest in his bedroom. He instructed appellant to open the business the next morning in the event he was not back.
Mr. Rawles returned home late that night. Appellant was not there and the bag of money and his automobile were missing.
Mr. Rawles testified that there was $406 in the bag, but there was other testimony which fixed the amount at $372.75.
Appellant was apprehended in Laredo a week later and Mr. Rawles next saw his automobile there. Upon being returned to *285 Houston appellant signed a confession admitting that after he left Rawles he returned to the Rawles residence and got the money and went to Laredo and then to Mexico where he was arrested. His statement was the Rawles said the bag contained $250 or $260.
The value of the automobile was shown to be some $1,400.
The indictment alleged the theft of $460 in money and of an automobile of the value of $1,500. The charge of the court, to which there were no objections, authorized a conviction upon a finding that appellant fraudulently took any part of the property mentioned in the indictment of the value of $50 or over.
The prior conviction alleged for enhancement of punishment was proved by the certified copy of the records of the Texas Department of Corrections, which included copies of the judgment and sentence, photographs and fingerprints of the defendant in said cause; and the testimony of an expert witness who compared these fingerprints with those he took of appellant and found them to be fingerprints of the same person.
We find no error in the admission of such evidence and find it sufficient to sustain the allegation as to the prior conviction for felony embezzlement. See Art. 3731a, Vernon's Ann.Civ.St.; Stockwell v. State, Tex.Cr.App., 316 S.W.2d 742, and cases there cited.
Appellant complains that the trial court refused to order the district attorney to turn over to him the statement of the complaining witness Rex Rawles, that he might use it in cross-examining said witness.
The record shows that such statement was first requested after the State had rested and then upon the claim that the assistant district attorney had used such statement in examining the witness Rawles.
The attorney for the State testified that he did not use any written statement in examining the witness Rawles except the confession of appellant.
In this condition of the record, no error is shown by this bill.
The record does not support appellant's claim of consistent leading questions propounded by the State to its prosecuting witness. In fact the statement of facts is principally in narrative form.
The confession of appellant was admitted by the court, and no issue was submitted to the jury and none requested regarding its being voluntary.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577731/ | 35 So. 3d 20 (2008)
CALVIN CALHOUN
v.
WENDY BONNER.
No. 2070904.
Court of Civil Appeals of Alabama.
November 24, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Dismissed on joint motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577758/ | 629 F. Supp. 819 (1985)
Frank E. LAWRENCE
v.
UNITED STATES of America INTERSTATE COMMERCE COMMISSION, et al.
Civ. A. No. 80-3321.
United States District Court, E.D. Pennsylvania.
November 14, 1985.
On Motion for Reconsideration March 7, 1986.
Lawrence J. Fox, Drinker, Biddle & Reath, Philadelphia, Pa., for plaintiff.
James G. Sheehan, Asst. U.S. Atty., Philadelphia, Pa., for defendants.
MEMORANDUM
SCIRICA, District Judge.
I. BACKGROUND
A motion for summary judgment has been filed by defendants the United States, the Interstate Commerce Commission (ICC) and William Love, who at the time in question was Assistant Director of the ICC's Office of Consumer Protection. Plaintiff has invoked the jurisdiction of this court *820 pursuant to the general federal question statute, 28 U.S.C. § 1331 (1980 Supp.); the Mandamus Act, 28 U.S.C. § 1361 (1976); and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1977).
Plaintiff's complaint charges the defendants, along with three other employees of the ICC, with various forms of harassment that led to plaintiff's suffering a heart condition and subsequently retiring on medical disability in August 1977 from his position as an ICC investigator. Plaintiff claims that the harassment began in February 1976, soon after an "unknown source" leaked to the national press, information that plaintiff had supplied to Congress at the request of the Subcommittee on Oversight and Investigations of the Commerce Committee of the House of Representatives. Plaintiff alleges that for thirteen months following the leak, one individual in particular, Anthony W. Bummara, harassed him by directing plaintiff's secretary to (1) keep a record of plaintiff's comings and goings, (2) apprise plaintiff of her conduct, and (3) refuse to do any of plaintiff's typing without first getting approval from Mr. Bummara. Plaintiff also charges that his colleagues were warned they would lose their jobs if they fraternized with him. In addition, plaintiff claims that the other defendants, including the ICC, wrongfully encouraged Mr. Bummara's actions.
Plaintiff's complaint initially sought compensatory and punitive damages for emotional distress, humiliation and embarassment against the individual defendants only, a new position in a federal agency other than ICC, and back pay and benefits "which would have accrued since his forced retirement." In an earlier opinion, Judge Hannum characterized the claims for money damages against the individual defendants as state law actions for intentional infliction of emotional distress and dismissed them as time-barred under the applicable Pennsylvania two-year statute of limitations. Lawrence v. United States, 631 F. Supp. 631, 636 (E.D.Pa.1982). Judge Hannum permitted the action to proceed, however, "for non-monetary relief against all defendants under the Administrative Procedure Act and under the Mandamus Act." Id. at 639. In a subsequent memorandum and order Judge Hannum granted summary judgment in favor of Mr. Bummara and two other ICC employees, whose recent retirements had made them inappropriate defendants in a mandamus action. Lawrence v. United States, 631 F. Supp. 631 at 639 (E.D.Pa.1982).
Today I consider the four arguments raised by the remaining defendants: (1) absence of a case or controversy; (2) estoppel; (3) laches; and (4) failure to exhaust administrative remedies. Finding that plaintiff failed to exhaust his administrative remedies, I grant the defendants' motion.
II. DISCUSSION
A. Case or Controversy
Defendants' first argument is that plaintiff failed to submit a case or controversy. Pointing to the specific relief sought by plaintiff, i.e., reinstatement to a civil service position with a federal agency other than ICC and back pay, defendants contend that since neither the Mandamus Act nor the APA allows monetary awards or the performance of "discretionary" government acts, plaintiff's claim is merely a request for an advisory opinion. This argument is unpersuasive.
Relying on Flast v. Cohen, 392 U.S. 83, 94-95, 88 S. Ct. 1942, 1949, 20 L. Ed. 2d 947 (1968),[1] defendants argue that the primary consideration in determining a case or controversy *821 question is whether the remedy sought is available through the judicial branch. Although this conclusion may be derived from Flast v. Cohen, the clear focus of the Article III, § 2 requirement is on the nature of the claim rather than on the remedy. The purpose of the case-or-controversy requirement is to "`limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" GTE v. Consumers Union, Inc., 445 U.S. 375, 382, 100 S. Ct. 1194, 1199, 63 L. Ed. 2d 467 (1980), quoting Flast v. Cohen, supra.
The test is "whether the `conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.'" Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 2308, 60 L. Ed. 2d 895 (1979) (citations omitted). Further, I must determine whether the plaintiff "suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S. Ct. 373, 374-75, 78 L. Ed. 2d 58 (1983). It is only where these conditions are met and the issues are pressed before the court "with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests," United States v. Fruehauf, 365 U.S. 146, 157, 81 S. Ct. 547, 554, 5 L. Ed. 2d 476 (1961), that "a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them." Public Service Commission v. Wykoff, 344 U.S. 237, 244, 73 S. Ct. 236, 240, 97 L. Ed. 291 (1952).
In this case, the parties have a real, well-focused controversy, particularly when the alleged facts are viewed for purposes of this summary judgment motion in the light most favorable to plaintiff. See Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). At issue is whether defendants' conduct infringed upon plaintiff's exercise of his First Amendment freespeech rights, and whether that conduct was the cause of the disability that forced plaintiff to retire.
In addition, there is no intrusion by the court into the province of another governmental branch. In passing the Mandamus Act, Congress specifically established a judicial forum for the redress of certain actions by federal officials. Although the offer of employment is discretionary rather than ministerial, and relief under the Act does not extend to the performance of discretionary duties, a mandamus action is not automatically barred here. Mandamus may lie not only to compel ministerial duties, but where, as alleged here, "there has been an action taken by a government official contrary to law and so plainly prohibited as to be free from doubt." Naporano Metal and Iron Co. v. Secretary of Labor of U.S., 529 F.2d 537, 542, (3d Cir. 1976); see Taylor v. United States Dept. of Labor, 552 F. Supp. 728, 744-45 (E.D.Pa. 1982), aff'd mem., 725 F.2d 670 (3d Cir. 1983). Even if defendant ICC lacks the power to reemploy plaintiff in a non-ICC position, defendant United States is not necessarily similarly restricted.
B. Estoppel
Defendants also argue that summary judgment should be entered in their favor on three theories of estoppel: judicial estoppel, equitable estoppel and collateral estoppel. Each argument is based on the plaintiff's disability retirement application. On that application, plaintiff wrote: "I suffered a Myocardial Infarction March 24, 1977. I am undergoing treatment three days a week at a cardiac rehabilitation center. I am unable to carry out the vigorous activity required by my position. Totally disabled March 1977." (Defendants' Exh. "1"Plaintiff's June 6, 1977 Application for Civil Service Retirement).
Defendants' judicial and equitable estoppel theories are grounded on defendants' *822 belief that plaintiff, because of his representation in June 1977, should be precluded from asserting that he is now able to work, and that his disability was brought about by defendants' wrongful acts. These arguments misconstrue the law.
The doctrine of judicial estoppel, as defendants note, prohibits a party from "assert[ing] contrary positions in the same or related proceedings. It is, more properly, a rule which estops a party from `playing fast and loose' with the courts." Selected Risks Insurance Co. v. Kobelinski, 421 F. Supp. 431, 434 (E.D.Pa.1976). The implication in plaintiff's November 1980 complaint that he was at that time able to perform a job other than his old ICC job is not necessarily contrary to his June 1977 statement that he could not perform "the vigorous activit[ies] required by [his old ICC] position," nor is it contrary to the statement in his June 1983 affidavit that he "[had] been at all times since [his] retirement ... physically healthy and able and willing to work except at heavy manual labor jobs or at any job in the Philadelphia Office of the Interstate Commerce Commission." (Plaintiff's Exh. "2") Nor is it contrary to his October 5, 1978 declarations that he resigned from employment as a parking lot attendant because he was "physically unable to keep up," or that he resigned from an automobile salesman position because he "could not take the pressure," and that, therefore, he was not sufficiently recovered to earn a livelihood.[2] (Defendants' Exh. "4") It is entirely possible that plaintiff's condition had improved when he filed suit, and for the purposes of this motion, it must be so assumed.
Furthermore, on this particular issue, plaintiff is not necessarily playing "fast and loose with the courts." In Selected Risks, the U.S. Small Business Administration (SBA) initially succeeded in having a claim filed in federal court dismissed for lack of subject matter jurisdiction.[3] When plaintiff refiled the same action in state court, the SBA removed the case to federal district court, and opposed a motion to remand to state court. The court permitted remand, ruling that the SBA, having once opposed district court jurisdiction, was judicially estopped from reasserting it. Not only has plaintiff here stopped short of making contrary arguments, he has not necessarily assumed contradictory positions before this court on this issue. Scarano v. Central R. Co. of New Jersey, 203 F.2d 510 (3d Cir.1953) can also be distinguished. Plaintiff in Scarano sought reinstatement less than thirty days after a jury awarded him damages on his Federal Employers' Liability Act claim of permanent disability. Here, even if plaintiff's representations were contradictory, they were made twenty-two months apart, giving rise to the possibility that he recovered.
In addition, I cannot agree with defendants that "Lawrence's present stance is also at odds with his current acceptance of disability benefits." A retiree's acceptance of a disability annuity should not affect his attempt to redress an alleged violation of his constitutional rights. Nor should the mere receipt of civil service disability benefits prevent an individual from seeking a new job with the government. This practice would frustrate the government's efforts, evidenced by the BRI questionnaire sent to Lawrence nearly fourteen months after his retirement, see supra, n. 2, to curtail disability payments to annuitants who are no longer disabled.
Defendants' equitable estoppel argument is based on U.S. ex rel. K & M Corp. v. A & M Gregos, Inc., 607 F.2d 44 (3d Cir.1979), where the court stated that "among the more important requirements of [equitable] estoppel are that the party to be estopped *823 has misrepresented or wrongfully concealed some material fact and that this party acted with the intention that the asserting party rely to his detriment on his misunderstanding." Id. at 48. Under this test, defendants' argument fails.
First, plaintiff's failure to assert on his application that the government and its agents had caused his retirement does not necessarily constitute a wrongful concealment of a material fact giving rise to equitable estoppel. In any event, these matters are factual issues that cannot be decided on a motion for summary judgment.
Defendants' assertion of "collateral estoppel" also misses the mark. The doctrine of collateral estoppel provides that a
... judgment in [a] prior action [between the same parties, but upon a different cause or demand] operates as an estoppel, not as to matters which might have been litigated and determined, but `only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' ... [S]ince the cause of action involved in the second proceeding is not swallowed by the judgment in the prior suit, the parties are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and decided at that time. But matters which were actually litigated and determined in the first proceeding cannot later be relitigated.
Kelly v. Warminster Township Board of Supervisors, 512 F. Supp. 658, 663-64 (E.D. Pa.1981), aff'd mem., 681 F.2d 806 (3d Cir.), cert. denied, 459 U.S. 834, 103 S. Ct. 76, 74 L. Ed. 2d 74 (1982), quoting Sea Land Services v. Gaudet, 414 U.S. 573, 593, 94 S. Ct. 806, 819, 39 L. Ed. 2d 9 (1973). Defendants contend that because the Civil Service Commission (CSC) determined in 1977 that plaintiff was totally disabled, he is barred "from now contending that he was not disabled" (Defendants' Motion for Summary Judgment at p. 20). This argument, however, fails to consider that the claim raised in plaintiff's complaint was not actually litigated and determined by the CSC in the first proceeding. The question decided by the CSC was whether plaintiff was permanently disabled. The question raised in plaintiff's complaint is whether defendants caused the disability. Since there is no identity of issues, there is no collateral estoppel. Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583, 588 (3d Cir.1975); Cf. Covington v. Department of Health & Human Services, 750 F.2d 937, 943-44 (Fed.Cir.1984); Gonzalez v. Department of Transportation, 701 F.2d 36 (5th Cir.1983) (both noting the importance of holding a hearing on the issue of voluntariness of a civil servant's retirement).
C. Laches
Defendants also contend that plaintiff's failure to file suit until more than three years after his application for disability gives rise to the equitable defense of laches. Defendants note that plaintiff was aware of all the alleged facts surrounding this action when he filed his application and that the ICC would suffer particular prejudice if plaintiff were reinstated with back pay, since the agency, inter alia, has made "significant personnel changes" since plaintiff's departure, including hiring someone to fill his position. Accordingly, reinstatement of plaintiff would effectively force the ICC to pay two civil servants for one job. In addition, defendants argue that any trial today would be hindered by the failure of witnesses to remember the incident.
It is well established that two elements are necessary for the defense of laches: "`(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.'" Equal Employment Opportunity Commission v. The Great Atlantic & Pacific Tea Co., 735 F.2d 69, 80 (3d Cir.), cert. dismissed, ___ U.S. ___, 105 S. Ct. 307, 83 L. Ed. 2d 241 (1984), quoting Costello v. United States, 365 U.S. 265, 282, 81 S. Ct. 534, 543, 5 L. Ed. 2d 551 (1961). Although there may be some instances when laches can be weighed by the court on a summary judgment motion, e.g., Walker v. McCollough, *824 257 F. Supp. 560 (E.D.Pa.1966), the "[l]ength of delay and existence of prejudice are questions of fact." Minnesota Mining & Manufacturing Co. v. Berwick Industries, Inc., 532 F.2d 330, 334 (3d Cir. 1976); see GAF Corp. v. Amchem Products, Inc., 570 F.2d 457 (3d Cir.1978), rev'g 399 F. Supp. 647 (E.D.Pa.1975).
Both parties have filed affidavits[4] raising issues of fact that cannot be decided here. See Metropolitan Wire Corp. v. Falcon Products, Inc., 528 F. Supp. 897, 902 (E.D.Pa.1981); Anaconda Co. v. Metric Tool & Die Co., 485 F. Supp. 410, 427 (E.D.Pa.1980); Morgan v. Sharon Pennsylvania Board of Education, 472 F. Supp. 1157, 1160 (W.D.Pa.1979); Cf. Webster v. Great American Insurance Co., 544 F. Supp. 609, 610-11 (E.D.Pa.1982).
D. Exhaustion
Defendants' final argument is that plaintiff is barred by the doctrine of exhaustion from seeking a judicial remedy. Defendants argue that plaintiff should have pursued the administrative relief available through either the ICC or the Civil Service Commission.[5] In particular, defendants note that at the relevant time period, there were three administrative procedures by which plaintiff should have sought relief: written ICC procedures for bringing employee grievances, written ICC procedures for effecting and challenging employee disciplinary and adverse actions[6] and CSC provisions for appealing "adverse actions."[7] Plaintiff counters that (1) there is no point in requiring exhaustion since neither plaintiff's retirement nor his former colleagues' harassment was the type of event that implicates the "adverse action" provisions of the ICC manual or the CSC regulations; (2) exhaustion does not apply to the ICC grievance procedures; and (3) any failure to pursue administrative relief was for good cause, since plaintiff's doctor advised for health reasons against Lawrence's pursuit of either a judicial or administrative remedy. (Plaintiff's Exh. "1"June 20, 1983 affidavit of Frederick A. Furia, M.D.). For the reasons outlined, I find defendants' exhaustion arguments persuasive.
The Supreme Court has long held that there may be no judicial relief until the prescribed administrative remedy is exhausted. E.g., Myers v. Bethlehem, 303 U.S. 41, 50-51, 58 S. Ct. 459, 463, 82 L. Ed. 638 (1938). Three policy concerns underlie this judicially-fashioned doctrine:
First, adherence to the doctrine shows appropriate deference to Congress' decision, embodied in statute, that an independent administrative tribunal, and not the courts, should serve as the initial forum for dispute resolution. [citations omitted]
Second, the exhaustion doctrine illustrates respect for administrative autonomy by forbidding unnecessary judicial interruption of the administrative process. This autonomy allows the administrative tribunal to exercise its own discretion, apply its own special expertise, and correct its own errors, thereby promoting *825 administrative responsibility and efficiency and minimizing the frequent and deliberate flouting of administrative processes which could weaken the tribunal's effectiveness. [citations omitted]
Third, the exhaustion requirement fosters judicial economy both by permitting the administrative tribunal to vindicate a complaining party's rights in the course of its proceedings, thereby obviating judicial intervention, and by encouraging the tribunal to make findings of fact on which courts can later rely in their decisionmaking. [citations omitted]
Republic Industries v. Central Pennsylvania Teamsters, 693 F.2d 290, 293 (3d Cir.1982).
These policies are so strong that they admit only three exceptions: "(1) when the nonjudicial remedy is clearly shown to be inadequate to prevent irreparable injury; (2) when resort to the nonjudicial remedy would `clearly and unambiguously violate statutory or constitutional rights'; and (3) when exhaustion would be futile." Id. at 293 (citations omitted). "Moreover, these exceptions apply only in `extraordinary circumstances.'" Id. at 294.
As in the Republic case, plaintiff does not assert any of the three exceptions, but instead challenges the general applicability of the exhaustion doctrine to the purported administrative schemes at issue. Accordingly, I must apply a two-part test: 1) whether the purported administrative scheme at issue "is properly an administrative remedy, and, if so, 2) whether the remedy is adequate." Id. If the answer to both inquiries is "yes", then the exhaustion doctrine is applicable.
In this case, defendants argue that each of the three administrative schemes offers a remedy. Since any scheme alone is sufficient to give rise to the doctrine of exhaustion, defendants need only show that one of the administrative schemes meets the two-part test.
The Civil Service Commission regulations in effect at the time of plaintiff's separation from the ICC provided that a federal employee "is entitled to appeal to the Commission from an adverse action...." 5 C.F.R. § 752.203 (1977). See 5 U.S.C. §§ 7511-7701 (1967). Plaintiff asserts that his separation does not constitute such an "adverse action," and that therefore he has no administrative remedy. This argument may be refuted on three grounds, satisfying the first prong of the Republic test.
First, a government-induced separation of an employee, which is in effect what plaintiff alleges here, constitutes an "adverse action," and consequently, implicates the administrative scheme of the CSC. See Gratehouse v. United States, 512 F.2d 1104, 1108, 206 Ct. Cl. 288 (1975); see also Newberger v. United States Marshals Service, 751 F.2d 1162, 1167 (11th Cir.1985); Christie v. United States, 518 F.2d 584, 207 Ct. Cl. 333 (1975). Second, even if the separation does not constitute an "adverse action," challenges to government-induced separations shall be brought in the first instance to Civil Service Commission or its successor agency. See Newberger v. United States Marshals Service, supra at 1167-1168; Gratehouse, supra at 1108; Phillips v. Klassen, 502 F.2d 362, 368 (D.C. Cir.), cert. denied, 419 U.S. 996, 95 S. Ct. 309, 42 L. Ed. 2d 269 (1974); Onnen v. United States, 524 F. Supp. 1079, 1085 (D.Neb. 1981); Pascal v. United States, 543 F.2d 1284, 1288, 211 Ct. Cl. 183 (1976)[8]. Third, defendants' uncontroverted quotations from plaintiff's deposition indicate that plaintiff himself acknowledged the propriety of the CSC remedy. Plaintiff had pursued CSC remedies in the past. More importantly, plaintiff had consulted with the CSC regarding his current allegations and *826 had been advised by the CSC that he could appeal to that agency. (Defendants' Motion for Summary Judgment at 31-32)
With regard to the second prong of the Republic test, i.e., the adequacy of the administrative remedy, I must analyze whether the remedy furthers the three major policies underlying the doctrine of exhaustion. See Republic, supra at 295. Initially, it is obvious that requiring plaintiff's use of the administrative scheme here furthers Congress' desire to make the CSC (or the MSPB) the forum of first recourse for a separated employee and to encourage administrative automony through the exercise of its own expertise. To hold otherwise, and thereby sanction plaintiff's bypass of the CSC would undermine Congress' decision to entrust "the Commission with the function of hearing and deciding appeals from assertedly wrongful separations from federal service." Fitzgerald v. Hampton, 467 F.2d 755, 760 (D.C.Cir.1972) (emphasis deleted). The CSC and its successor, the MSPB, are specially qualified to regulate the federal competitive service. See 5 U.S.C. § 1302 (1967). Moreover, the CSC, unlike the arbitrator in Republic, has authority to provide the remedy sought by plaintiff. See, e.g., 5 C.F.R. § 7.3 (giving the CSC power to prescribe regulations authorizing re-employment in a released employee's former agency)[9] and § 5.1(b) (permitting the CSC to vary from "the strict letter of its regulations" when necessary to protect the integrity of the competitive service) (1977).
Not even plaintiff's assertion that an administrative agency lacks the constitutional expertise of a court is persuasive. The mere presence of a constitutional issue does not excuse exhaustion, particularly where the facts here, unlike those in Republic, do not concern a "facial constitutional challenge." Republic, supra at 296. In Republic the court stated that where non-facial constitutional challenges are made, the administrative tribunal is to be given at least the opportunity "either to moot [the] constitutional issues or establish a factual matrix for judicial review."[10]Id. This requirement also leads to the conclusion that the CSC remedy furthers the third major policy underlying exhaustion, judicial economy, and completes the application of the two-part Republic test.
Finally, plaintiff argues that if, as I have found, the exhaustion doctrine applies to at least one of the administrative schemes at issue, he should nonetheless be excused from it because his "decision not to pursue an administrative remedy [was] for good cause: he feared it might endanger his health." (Plaintiff's Answer to Defendant's Motion for Summary Judgment at 26.) Given the explicit delineation of only three exceptions to the exhaustion rule, and the clear statement that even those exceptions "apply only in `extraordinary circumstances'", id. at 294, plaintiff's argument is not compelling. Even under the lower standard for the application of the exhaustion doctrine set forth pre-Republic in Goodrich v. U.S. Department of the Navy, 686 F.2d 169, 177 (3d Cir.1982) ("[I]t is within the discretion of the court to waive the exhaustion requirement when application of the doctrine would be unjust."), I cannot hold that requiring plaintiff to exhaust his administrative remedy(ies) is unjust here, especially since the medical doctor's affidavit, on which plaintiff relies to excuse his failure to exhaust, attests also to the medical risk in pursuing a judicial remedy.
III. CONCLUSION
In summary, I conclude that at least one of the administrative schemes, the CSC *827 regulations, provides an adequate administrative remedy for plaintiff's claim. Since plaintiff has failed to demonstrate that his case falls into one of the carefully drawn exceptions to the exhaustion doctrine or that application of the doctrine here is unjust, I find that its application here precludes his further pursuit of a judicial remedy. See Beale v. Blount, 461 F.2d 1133, 1137 (5th Cir.1972) (The exhaustion of available administrative remedies is a prerequisite to the maintenance of a mandamus action commanding re-employment by an ex-employee of the federal government alleging to be the victim of improper discharge.) Accord, Bolger v. Marshall, 193 F.2d 37 (D.C.Cir.1951); Baskin v. Tennessee Valley Authority, 382 F. Supp. 641, 647 (M.D.Tenn.1974), aff'd mem., 519 F.2d 1402 (6th Cir.1975); cf. Holmes v. U.S. Board of Parole, 541 F.2d 1243, 1247 (7th Cir.1976), overruled on other grounds, Solomon v. Benson, 563 F.2d 339 (7th Cir.1977); Lilienthal v. Parks, 574 F. Supp. 14 (E.D.Ark. 1983).
ON MOTION FOR RECONSIDERATION
In his motion for reconsideration of my November 14, 1985 ruling, plaintiff argues that requiring him to exhaust his administrative remedies prior to coming to court is wrong because the doctrine of exhaustion "constitutes an inadequate remedy to prevent irreparable harm," and its application would be "futile and unjust". These contentions lack merit.
The adequacy of the administrative scheme has already been spelled out, and need not be reiterated here. The futility that plaintiff identifies as resulting from his administrative recourse having been time-barred is undercut by provisions in the ICC Disciplinary and Adverse Actions Manual, p. 22-761 (1975), the ICC Employee Grievance Procedures Manual, pp. 22-727-8 (1975) and 5 C.F.R. § 752.203 (1977) that allow for the waiver or extension of time limits for bringing claims. Finally, even accepting plaintiff's implication that the use of "injustice" as an exception to exhaustion was not vitiated by Republic Industries v. Central Pennsylvania Teamsters, 693 F.2d 290 (3d Cir.1982), which did not include "injustice" as an applicable exception, see id. at 293, the facts in plaintiff's case are clearly distinguishable from the sole example of "injustice" cited by plaintiff. In Goodrich v. United States Department of the Navy, 686 F.2d 169 (3d Cir.1982), cert. denied, ___ U.S. ___, 105 S. Ct. 958, 83 L. Ed. 2d 965 (1985), the court held that adherence to the exhaustion doctrine would result in injustice because Goodrich was denied information necessary to effectively prosecute the case by the federal agency that demoted him. Plaintiff has not even claimed he was denied such information here.
NOTES
[1] In particular, defendants focus on the following language:
Embodied in the words "cases" and "controversies" are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.
Flast v. Cohen, 392 U.S. 83, 94-95, 88 S. Ct. 1942, 1949-50, 20 L. Ed. 2d 947 (1968).
[2] These statements were made in response to a Civil Service Commission, Bureau of Retirement, Insurance, and Occupational Health (BRI) questionnaire designed to monitor disability annuitants to see whether they remain disabled.
[3] The Middle District of Pennsylvania court, however, specified that its dismissal was without prejudice to plaintiff reinstating its action in the U.S. Court of Claims. See 28 U.S.C. § 1346 (1976).
[4] See, e.g., Defendants' Exh. "6" (March 8, 1983, affidavit from Raymond T. Jones, Assistant Regional Compliance Officer, ICC, outlining, inter alia, an increase in the number of ICC investigators employed following plaintiff's departure) and Plaintiff's Exh. "1" (June 20, 1983 affidavit of Frederick A. Furia, M.D. attesting to plaintiff having been given medical advice not to pursue a cause of action with regard to his departure from the ICC).
[5] Pursuant to the Civil Service Reform Act of 1978, 5 U.S.C. §§ 7101-7703 (1980), the CSC no longer exists. Its functions have now been delegated to two successor agencies. The CSC's appellate responsibilities, referred to here, are vested in the Merit Systems Protection Board (MSPB). See Section 201 of Reorganization Plan No. 2 of 1978, reprinted in 5 U.S.C. § 1101 note (Supp. III 1979); 5 U.S.C. §§ 1201-09 (Supp. III 1979). See also Atwell v. Merit Systems Protection Board, 670 F.2d 272 (D.C.Cir. 1981).
[6] See Defendants' Exh. "5" (Addendum E, "Disciplinary and Adverse Actions," Transmittal Letter No. 123, ICC Manual pp. 22-75322-765; Addendum F, "Employee Grievance Procedures," Transmittal Letter No. 123, ICC Manual pp. 22-72522-738, (Feb. 18, 1975)).
[7] See 5 C.F.R. 752.203 (1977 ed.).
[8] See also Bush v. Lucas, 462 U.S. 367, 385 n. 26, 103 S. Ct. 2404, 2415 n. 26, 76 L. Ed. 2d 648 (1983), wherein the Supreme Court noted:
Exec. Order No. 10988, § 14, 3 CFR. 521 (1959-1963 Comp.), and Exec. Order No. 11491, § 22, 3 CFR. 861 (1966-1970 Comp.), printed in note following 5 U.S.C. § 7301 [1976], gave all employees in the competitive service the right to appeal adverse actions to the Civil Service Commission, and made the administrative remedy applicable to adverse personnel actions other than removal and suspension without pay.
[9] Although in his complaint, plaintiff sought to be placed in a government agency other than the ICC, he stated in his June 1983 affidavit that "I now feel able to perform duties for any ICC office except the one in Philadelphia." (Plaintiff's Exhibit "2")
[10] The conclusion that Lawrence should have first presented his constitutional claim to the CSC is also supported by the Supreme Court's decision in Bush v. Lucas, supra, 462 U.S. at 386, 103 S.Ct. at 2415, that "[c]onstitutional challenges to agency action, such as First Amendment claims raised by petitioner, are fully cognizable within [the civil service's administrative] system." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580878/ | 12 S.W.3d 269 (1999)
Rhonda FRATZKE, Appellant,
v.
Bernadette MURPHY, Appellee.
No. 98-SC-0684-DG.
Supreme Court of Kentucky.
December 16, 1999.
Rehearing Denied March 23, 2000.
*270 Charles A. Saladino, David Vance Oakes, Saladino Law Firm, Paducah, for Appellant.
Robert L. Prince, Prince & Brien, P.S.C., Benton, for Appellee.
Opinion of the court by Justice JOHNSTONE.
Appellant, Rhonda Fratzke, appeals from a decision of the Court of Appeals reversing the Marshall Circuit Court in part and remanding. We affirm.
While walking a picket line, Fratzke was hit by a car driven by appellee, Bernadette Murphy, on December 3, 1992. Subsequently, Fratzke filed a complaint against Murphy. In the complaint, she alleged inter alia:
As a result of the negligence of the Defendants, Bernadette Murphy and Guard Screen, Company, Inc., the Plaintiff has been forced to incur hospital[,] doctor, medical and drug expenses in an amount in excess of One Thousand Dollars ($1,000.00) and will be forced to incur same in the future; she has undergone physical and mental pain and suffering and will be forced to undergo same in the future; she has suffered a permanent injury; and her ability to earn money has been permanently impaired; and she has been damaged thereby.
On August, 7, 1995, the trial court entered an order directing that trial briefs be filed at least twenty days prior to trial. The briefs were to contain an itemized list of the claimed special damages sought by the parties.
On October 4, 1995, Murphy served a set of interrogatories on Fratzke that included a request to identify "each item of damage, including pain and suffering, which you claim arises out of this action...." In response to the interrogatories, Fratzke provided only an itemized list of medical expenses incurred to date. Further, in her trial brief, Fratzke included only a list of medical expenses.
This trial commenced on December 27, 1995. During opening statements, Murphy's counsel objected to references made by Fratzke's attorney concerning damages other than those listed in Fratzke's interrogatory answers or in her trial brief. The trial court reserved its ruling on the issue and allowed Fratzke's attorney to continue his opening argument.
After closing arguments, Murphy's counsel objected to instructing the jury on any damages other than medicals. After noting Fratzke's failure to fully comply with the court's order concerning the trial brief or to fully answer Murphy's interrogatories, the trial court nonetheless overruled the objection stating that such a result was unduly harsh. The trial court *271 then submitted the case to the jury with instructions to award Fratzke damages that fairly and reasonably compensated her for: pain and suffering, medical expenses, future medical expenses, lost wages, and permanent impairment of power to labor and earn money. The jury returned with a verdict that awarded Fratzke $25,000 in pain and suffering, $33,513.62 for medical expenses, $12,000 for future medical expenses, $27,500 for lost wages, and $25,000 for permanent impairment of her power to labor and earn money. The trial court entered a judgment in accordance with this verdict on February 5, 1996.
The trial court denied Murphy's motion to "Alter, Amend, or Vacate Judgment; Alternative Motion for New Trial" on March 1, 1996. Subsequently, Murphy appealed to the Court of Appeals arguing in pertinent part that CR 8.01(2) precluded Fratzke from recovering damages for pain and suffering, future medicals, lost wages, and impairment of earning power because amounts for those unliquidated damages were not included in Fratzke's answers to interrogatories.
The Court of Appeals originally affirmed the trial court in full. Murphy sought discretionary review in this Court and we remanded the case to the Court of Appeals to reconsider its decision in light of Burns v. Level, Ky., 957 S.W.2d 218 (1997). Upon reconsideration, the Court of Appeals reversed the trial court's award of damages in question and remanded with instructions to vacate that portion of the judgment which awarded Fratzke damages for pain and suffering, future medicals, lost wages, and impairment of earning power. Fratzke then sought discretionary review of the second Court of Appeals' decision, which we granted. We affirm for the reasons set forth below.
CR 8.01(2) states:
In any action for unliquidated damages the prayer for damages in any pleading shall not recite any sum as alleged damages other than an allegation that damages are in excess of any minimum dollar amount necessary to establish the jurisdiction of the court; provided, however, that all parties shall have the right to advise the trier of fact as to what amounts are fair and reasonable as shown by the evidence. When a claim is made against a party for unliquidated damages, that party may obtain information as to the amount claimed by interrogatories; if this is done, the amount claimed shall not exceed the last amount stated in answer to interrogatories.
Murphy propounded an interrogatory which requested Fratzke to identify "each item of damage, including pain and suffering, which you claim arises out of this action. ....." This clearly encompassed Fratzke's claims of damages for pain and suffering, future medicals, lost wages, and impairment of earning power as these claims were stated in the complaint. Further, these claims are clearly unliquidated damages within the meaning of CR 8.01(2). Fratzke did not object to this interrogatory, nor was her answer non-responsive since it provided a list of medical expenses incurred to date. By omitting an amount for any damage claim other than her medical expenses incurred to date, Fratzke effectively stated that her claim for her unliquidated damages was nothing. Thus, under the rule, Fratzke's claim for unliquidated damages at trial could not exceed $0.00.
Fratzke first tries to find safe harbor in CR 15.02, however, there is no place within the rule for her to weigh anchor.
CR 15.02 states in pertinent part:
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that admission of such evidence would prejudice *272 him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
CR 15.02 only applies to pleadings. CR 7.01 sets forth an inclusive list of documents that constitute "pleadings" within the context of our civil rules. Further, the rule specifically provides: "No other pleading shall be allowed...." (emphasis added). Interrogatories are not included within the CR 7.01 inclusive list of pleadings; thus, interrogatories are not "pleadings" within the meaning of the civil rules. Consequently, CR 15.02 has no application to the case at bar. This result is neither harsh nor hyper-technical. Fratzke had a simpler method of amending her claim for unliquidated damages that did not require Fratzke to make a motion to the trial court.
The language of CR 8.01(2) clearly implies that Fratzke had the right to supplement her answers to Murphy's interrogatories concerning her claims for unliquidated damages: "... the amount claimed shall not exceed the last amount stated in answer to interrogatories." (Emphasis added). If she did not have the right to supplement her answers, then the word "last" would have no meaning. While Fratzke does argue that she did in fact supplement her answers, the argument must fail.
The trial in this case began on December 27, 1995. During opening argument on the same day, Murphy's counsel objected to any mention of Fratzke's claims for unliquidated damages on grounds that CR 8.01(2) prohibited her from recovering on those claims. The trial court reserved ruling on the objection. On December 28, 1995, on the afternoon of the last day of trial, Fratzke filed with the court clerk supplemental answers to her interrogatories that provided monetary amounts for her unliquidated damage claims. We note that according to the supplemental answers, service was via the U.S. mail. Nothing in the record indicates that these supplemental answers were served on or brought to the attention of the defense at any time during trial.
According to CR 26.05, when a party has a duty to supplement a response to a discovery request, the party must "seasonably" supplement the response. While CR 8.01(2) does not expressly place a duty on a party to supplement answers to interrogatories, it effectively creates such a duty by providing the consequence of failing to supplement. Thus, CR 8.01(2) and CR 26.05 may be fairly and reasonably construed together so as to impose a "seasonable" time limit on a party's ability to supplement an answer to interrogatories for claims for unliquidated damages. While CR 26.05 does not include a definition of "seasonable," we believe that, as a matter of law, any attempt to supplement answers to interrogatories after trial has commenced is not seasonable within the meaning of the rule. We note that nothing in the rules precludes a trial court from entertaining a motion to supplement answers to interrogatories after trial has commenced. However, Fratzke never made such a motion. Nor is there anything in the record to indicate that she in any way brought her supplemental answers to the attention of the trial court. Therefore, we hold that Fratzke's attempt to supplement her answers to interrogatories to include amounts claimed for unliquidated damages, which was made on the last day of trial and without leave of court, was ineffective.
Fratzke also argues that any error in admitting evidence of her claim of damages for pain and suffering, future medicals, lost wages, and impairment of earning power and instructing the jury on the same was harmless under CR 61.01. The basis of this argument is the assertion that Murphy was fully aware of Fratzke's claims for the damages in question. This argument might have merit if the purpose of CR 8.01(2) was to apprise a party of the nature of an opposing party's claims for *273 unliquidated damages. However, the purpose of the rule is to allow a party to discover the amount an opposing party is seeking for unliquidated damage claims. Since Fratzke provided no amount for her unliquidated damage claims through discovery, we cannot say that the error was harmless.
Finally, citing Burns v. Level, supra, Fratzke argues that the trial court had the discretion to overrule Murphy's objection to instructing the jury on unliquidated damages. The inclusion of language in Burns that the trial court did not abuse its discretion in granting the defendant a directed verdict on the plaintiff's unliquidated damages claim for permanent impairment to earn money was unfortunate. The import of our decision in Burns is that CR 8.01(2) provides its own remedy and that implementation of that remedy is mandatory upon the trial court and is not discretionary. This is evidenced by our reliance in Burns on National Fire Insurance Company v. Spain, Ky.App., 774 S.W.2d 449, 451 (1989), which held that CR 8.01(2) prevents a trial court from awarding damages for unliquidated claims that are in excess of the last amount claimed by the plaintiff in answers to interrogatories.
Contrary to the argument made by the dissent, our opinion today does not "bury a landmine in civil litigation." Rather, we merely hold that CR 8.01(2) means what it says. The language of the rule is mandatory and gives a trial court no discretion as to its application. The dissent argues that our reading of the rule "will inevitably lead to a miscarriage of justice, as in the instant case." However, as noted, Fratzke was free to seasonably supplement her answers. Further, after a seasonable time had expired, she could have moved the trial court to allow her to supplement her answers. She did neither. Therefore, applying the plain and ordinary meaning of the rule does not and will not create an "inflexible rule that will surely result in injustice." There are other safeguards in place to protect the interests of fairness and justice without resorting to the dissent's tortured interpretation of the rule.
While the result in this case may seem harsh, it is required by the plain language of CR 8.01 and the holding of Burns v. Level, supra.
Therefore, the decision of the Court of Appeals is hereby affirmed.
COOPER, J., Special Justice SUSAN WESLEY McCLURE, STUMBO, J., and WINTERSHEIMER, J., concur.
LAMBERT, C.J., dissents by separate opinion, with KELLER, J., joining that dissent.
KELLER, J., dissents by separate opinion, with LAMBERT, C.J., joining that dissent.
GRAVES, J., not sitting.
LAMBERT, Chief Justice, dissenting.
I am now of the opinion that our decision in Burns v. Level, Ky., 957 S.W.2d 218 (1998), to the extent that it mandated the result here, was erroneous. I qualify my view because the precise holding in Burns was that the trial court did not abuse its discretion in granting a directed verdict upon the unitemized damages. Contrary to the assertion in the majority opinion, Burns did not hold that such a result should occur in every case.
It is widely acknowledged that our purpose in prohibiting recitation of sums alleged as damages in the prayer for relief is to prevent public notoriety of shocking, outrageous claims which may bear little relationship to the actual damages sustained. To accommodate a defendant, CR 8.01 authorizes the use of interrogatories to obtain disclosure of the amount actually sought. For failure to answer interrogatories, a party may move, under CR 37.04, for an order compelling answers. No motion to compel was made in this case.
The effect of the majority opinion will be to bury a landmine in civil litigation whereby *274 a party may propound the interrogatories and thereafter sit silently by hoping the opposing party will, through inadvertence or neglect, fail to timely answer. A hard and fast rule prohibiting recovery of damages for failure to answer damages interrogatories will inevitably lead to a miscarriage of justice, as in the instant case. A far better approach would be to leave the remedy for failure to answer interrogatories to the sound discretion of the trial judge. The perspective of the trial judge with respect to analyzing prejudice, unfair surprise, and generally allocating responsibility is far superior to that of any appellate court. Unfortunately, we have abolished trial court discretion in this regard and announced an inflexible rule that will surely result in injustice.
KELLER, J., joins this dissenting opinion.
KELLER, Justice, dissenting.
I dissent because I believe that Burns v. Level, 957 S.W.2d 218 (1998), clearly and properly holds that the decision whether to grant a directed verdict with respect to plaintiffs' unitemized damages claims on the basis of CR 8.01(2) is a matter left to the discretion of the trial judge. Because the trial judge did not abuse this discretion, I would reverse the decision of the Court of Appeals and reinstate the original verdict.
Initially, I would note that the majority inconsistently gives decisive weight to the language of CR 8.01(2). With respect to alleged violations of this rule, the majority adopts a strict construction of the rule's language and concludes that "CR 8.01(2) provides its own remedy" which is found within the rule's language and is independent of whether defense counsel is actually surprised. In contrast, in order to address Fratzke's contention that the supplemental interrogatory response filed with the trial court during trial satisfied CR 8.01(2), the majority feels the need to "import" language from CR 26.05[1] and clarify the rule's language by analyzing policy rationale behind CR 8.01(2). With respect to the sanction associated with CR 8.01(2), questions of what information the defense possessed and when they possessed it are irrelevant. The same is not true, however, according to the majority, when it explains the "last amount stated" language.
The last sentence of Section II of this Court's opinion in Burns, supra, where the court addressed the trial court's directed verdict on the plaintiffs' claim for permanent impairment to earn money, reads, in part: "... we cannot conclude that the trial court abused its discretion in granting a directed verdict dismissing Appellant's claim for those damages." Burns, supra at 221-22 (emphasis added). I agree with Chief Justice Lambert that this Court held in Burns that the trial court involved in that case did not abuse its discretion in granting a directed verdict based on Burns' failure to answer either the initial interrogatory or the supplemental interrogatory regarding itemization of unliquidated damages. The majority characterizes this language as "unfortunate." I disagree with this characterization and dissent from the majority opinion because I do not believe this language appeared in Burns as the result of some kind of accident. I feel that this Court discussed the trial court's discretion regarding whether or not to grant a directed verdict within the Burns opinion because it is relevant and important to the holding.
*275 Finally, I see nothing in the record which leads me to believe that Murphy was prejudiced by Fratzke's failure to itemize her claims for unliquidated damages. The pleadings filed in this case clearly gave notice to Murphy that pain and suffering, future medical expenses, lost wages, and permanent impairment of power to earn labor and money were issues within this case that Fratzke intended to litigate. Fratzke did provide documentation showing the extent of her claim for past medical expenses, and she bound herself to a maximum verdict of $50.000, and thereby gave Murphy notice of the total amount sought in unliquidated damages, when she stipulated the amount in controversy to prevent removal to federal court. See, Cole v. Great Atlantic and Tea Co., 728 F. Supp. 1305, Note 2 (E.D.Ky.1990). Contrary to the statement in the majority opinion that "[t]he court entered a judgment in accordance with [the] verdict," a verdict was only entered for $50.000.00, not for the total amount apportioned to Murphy by the jury.
Although I write separately in dissent from Chief Justice Lambert, I wholeheartedly agree with his statements regarding the superior position of the trial judge to analyze and determine issues of this sort. Rules cannot think; judges can. It is for this that we should accord great discretion to trial judges in matters of this nature. I believe Burns acknowledges this by applying an abuse of discretion standard. Seeing no abuse of discretion on these facts, I would reverse the Court of Appeals.
LAMBERT, C.J., joins this dissent.
NOTES
[1] I would note that the majority cites to this rule despite the fact that nothing in the record demonstrates that Fratzke was "under a duty seasonably to supplement [her] response" as contemplated by the rule. CR 26.05. In fact, subsection (c) of CR 26.05 supports the argument made in Chief Justice Lambert's dissent that Murphy should have filed a motion to compel Fratzke to fully answer the interrogatory before utilizing CR 8.01(2) offensively:
(c) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. CR 26.05. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3036717/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1660
___________
Murlin R. Phillips, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Jon A. Kiser, Wayne *
County Prosecutor, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: December 30, 2004
Filed: January 10, 2005
___________
Before MURPHY, BYE, and SMITH, Circuit Judges.
___________
PER CURIAM.
Missouri inmate Murlin Phillips appeals from the district court’s preservice
dismissal of his fee-paid 42 U.S.C. § 1983 complaint against Wayne County
Prosecutor Jon Kiser.
We conclude that we lack jurisdiction over Phillips’s appeal, because the order
Phillips challenges is not a final appealable order. See 28 U.S.C. § 1291 (creating
appellate jurisdiction over final decisions of district courts); Thomas v. Basham, 931
F.2d 521, 522-24 (8th Cir. 1991) (appellate courts have obligation to raise
jurisdictional issues sua sponte “when there is an indication that jurisdiction is
lacking”). Phillips’s complaint included allegations that Kiser had him transferred
to a different prison and held in solitary confinement, interfering with his ability to
prepare a defense in his state court criminal case. The district court’s order did not
address this claim. See Fed. R. Civ. P. 54(b) (“order or other form of decision,
however designated, which adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any of the
claims or parties”).
Accordingly, we dismiss this appeal without prejudice. We deny Phillips’s
pending motions.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1736116/ | 852 F. Supp. 676 (1994)
Sandra M. VODDE, Plaintiff,
v.
INDIANA MICHIGAN POWER CO. and Elio Bafile, Defendants.
No. 1:93-CV-306.
United States District Court, N.D. Indiana, Fort Wayne Division.
February 28, 1994.
John C. Theisen and Jeffrey S. Schafer, Gallucci, Hopkins and Theisen, P.C., Fort Wayne, IN, for plaintiff.
Herbert C. Snyder, Jr., Barnes & Thornburg, Fort Wayne, IN, for defendants.
MEMORANDUM OF DECISION AND ORDER
COSBEY, United States Magistrate Judge.
I. INTRODUCTION
This matter is before the Court[1] on the Motion to Dismiss filed by Defendant Elio Bafile ("Bafile") on January 12, 1994, together with a memorandum in support. On January 31, 1994, the Plaintiff Sandra M. Vodde ("Plaintiff") filed a response. A reply brief was filed by Bafile on February 14, 1994. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons hereinafter provided, Bafile's Motion to Dismiss will be GRANTED.
II. BACKGROUND
The Plaintiff has brought this action against both Bafile and Indiana Michigan Power Company ("I & M") alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. and the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991 ("Title VII"), 42 U.S.C. § 2000e, et seq.
The Plaintiff contends that she began working at I & M in 1980 as a junior key entry operator. (Plaintiff's Complaint ¶ 11). Gradually she received promotions in the accounting department. (Id.)
The Plaintiff contends that since December 1984, she has been disabled within the meaning of the ADA because of physical and mental impairments. (Plaintiff's Complaint ¶ 13). The Plaintiff has received a number of leaves of absence and apparently in July of 1991, the Plaintiff obtained another one and consulted with I & M supervisors to determine whether this absence would negatively reflect upon her performance. (Plaintiff's Complaint, ¶ 16). She was assured that there would be no negative repercussions. *677 (Id.) Notwithstanding these assurances, the Plaintiff's next job performance evaluation reflected a "1" in the attendance/punctuality category. (Plaintiff's Complaint ¶ 17). Such a rating is the most unsatisfactory level of performance. (Id.) Apparently the Plaintiff alleges that her original rating, given by one of her supervisors, was really a "3" and that Bafile, the Plaintiff's supervisor in accounting, later changed the rating to a "1." (Plaintiff's Complaint ¶ 18). The Plaintiff contends that Bafile did not alter male job performance evaluations, only hers, and that Bafile generally treated male employees and non-disabled employees more favorably with respect to transfers to other positions. (Plaintiff's Complaint ¶ 19).
It is further alleged that Bafile consistently refused to reasonably accommodate the Plaintiff's disabilities and refused her a transfer until August 1993 when she transferred to a meter reader position. (Plaintiff's Complaint ¶ 20). Plaintiff contends that she was thus treated differently than similarly situated male and non-disabled employees. (Id.). The Plaintiff also contends that she was not permitted to return to work after her last leave of absence despite the fact that Bafile received correspondence from the Plaintiff's treating physicians and other health care providers indicating an ability to return to work. (Plaintiff's Complaint ¶ 21). Plaintiff contends that this again is evidence that she was treated differently than similarly situated male and non-disabled employees. (Id.)
Thus, the Plaintiff contends that Bafile was acting as an agent of I & M and engaged in discriminatory and retaliatory practices with malice and reckless indifference to the Plaintiff's rights. (Plaintiff's Complaint ¶ 22).
The Plaintiff now seeks back pay and benefits, compensatory damages, punitive damages, costs, pre-judgment interest and attorney fees. (See Plaintiff's Complaint Count VII.)
Bafile's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) rather squarely presents the following issue: can the Plaintiff maintain an individual liability claim against Bafile under either the ADA or Title VII? Bafile's obvious answer is that such a claim cannot be maintained, citing a recent case from the Ninth Circuit, Miller v. Maxwells' Int'l, Inc., 991 F.2d 583 (1993) cert. denied ___ U.S. ___, 114 S. Ct. 1049, 127 L. Ed. 2d 372 (1994). Essentially, the Miller court held that individual defendants cannot be held liable for damages under Title VII, and by logical extension the ADA. Id. at 587.
The Plaintiff's rejoinder is that the ADA and Title VII both clearly permit claims against supervisory individuals; that the Miller case "completely misreads the definition provisions of the ADA and Title VII"; and that even if the Court finds those statutes ambiguous, it should still interpret them as supporting individual liability against corporate agents such as Bafile. The Plaintiff argues that only with such a reading will the twin purposes of Title VII and the ADA, compensation and deterrence, be thus advanced.
Bafile's reply argues that the Miller case does not stand alone: indeed, district courts in the Seventh Circuit have held that supervisory individuals may be liable only in their official capacities, not as individuals. See, for example, Weiss v. Coca-Cola Bottling Co., 772 F. Supp. 407 (N.D.Ill.1991) aff'd., 990 F.2d 333 (7th Cir.1993). Moreover, Bafile observes that since the passage of the Civil Rights Act of 1991 (allowing for compensatory and punitive damages) there is now a need to reconcile how the statute's damages caps for small employers (since the number of "employees" determines the amount of the cap) could possibly apply to supervisory personnel with purported individual liability. (See Plaintiff's Memorandum in Support, p. 6). Indeed, Bafile's point is that since he had no "employees," a literal reading of the statute would seemingly lead to the rather incongruous conclusion that he is entitled to no damages cap protection at all. (Id.) The incongruity arises because very small employers fall outside the Acts; larger, but still small companies have the protection of the caps; yet individual supervisors like Bafile have seemingly no protection whatsoever. See Memorandum in Support, pp. 6-7. In fact, if the statutes were read quite literally, it could be argued that the average supervisory *678 employee (no doubt as small as any entity excluded by Title VII or the ADA) is not excluded from liability, and would have exposure equal to the largest "covered entity."
This all presents a rather interesting question regarding the current statutory framework under both the ADA and Title VII. The Court will attempt to resolve the point, but first, a review of the standard on a motion to dismiss is in order.
III. MOTION TO DISMISS STANDARD
A complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts which would support his claim of entitlement to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
In determining the propriety of dismissal under Fed.R.Civ.P. 12(b)(6), the court must "accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences therefrom in favor of the plaintiff." Perkins v. Silverstein, 939 F.2d 463 (7th Cir.1991). See also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Gomez v. Illinois State Bd. of Education, 811 F.2d 1030, 1032-33 (7th Cir.1987). The purpose of the motion to dismiss is to test the legal sufficiency of the complaint and not to decide the merits. Triad Assoc., Inc. v. Chicago House Auth., 892 F.2d 583, 586 (7th Cir.1989). "If it appears beyond doubt that plaintiff can prove any set of facts consistent with the allegations in the complaint which would entitled them to relief, dismissal is inappropriate." Perkins, 939 F.2d at 463. Further, the court must "construe pleadings liberally, and mere vagueness or lack of detail does not constitute sufficient ground for a motion to dismiss." Strauss, 760 F.2d at 767.
IV. DISCUSSION
The threshold question before the Court is whether Bafile, in regard to the ADA, can be considered a "covered entity" who could be liable for discriminating in employment matters against a qualified individual based on that person's disability. 42 U.S.C. § 12112(a). The term, "covered entity" includes "an employer." 42 U.S.C. § 12111(2). The term "employer" is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person." 42 U.S.C. § 12111(5)(A).
Similarly, Title VII prohibits "employers" from discriminating against individuals on the basis of "race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a), (b). Title VII's definition of "employer" was the model for the ADA's. § 2000e(b).
To date, the Seventh Circuit has yet to directly address whether individuals who are officers or supervisors of either Title VII, or ADA employers, are subject to personal liability under those statutes; however, in some Title VII cases where the issue has not been directly addressed, the court has upheld such personal liability. See, e.g., Gaddy v. Abex Corp., 884 F.2d 312, 318-19 (7th Cir.1989) (upholding personal liability for decision-making supervisor in Title VII case); EEOC v. Vucitech, 842 F.2d 936, 939-42 (7th Cir. 1988) (same).
Other courts have not been as silent. See Bertoncini v. Schrimpf, 712 F. Supp. 1336 (N.D.Ill.1989) (compiling cases). Indeed, sometime ago this court considered the question. See, e.g., Hinton v. Methodist's Hospitals, Inc., 779 F. Supp. 956, 959 (N.D.Ind. 1991) (Judgment granted in favor of individual defendant because he was a co-worker, not a managerial supervisor.); Root v. Ebby, 39 Employment Practice Decision (CCH) P35, 963, 1984 WL 2126 (N.D.Ind. November 30, 1984) (motion to dismiss denied because individual defendant may have had "significant control" over plaintiff's access to employment and was thus an "employer.")
Some courts have come to the conclusion that individual capacity suits under Title VII (and presumably, by extension, the ADA) are improper. Miller, 991 F.2d at 587; Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991); Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.1990); Weiss v. Coca-Cola Bottling Co., 772 F. Supp. 407, 411 (N.D.Ill. 1991); aff'd. 990 F.2d 333 (7th Cir.1993) Pommier v. James L. Edelstein Enterprises, 816 F. Supp. 476 (N.D.Ill.1992); Hangebrauck *679 v. Deloitte and Touche, 1992 W.L. 348743 at *3 No. C 3328. (N.D.Ill. November 9, 1992); Mobley v. Kelly Kean Nissan, Inc., 1993 W.L. 356924 at *4, No. C 2625 (N.D.Ill. Sept. 9, 1993). But see, Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir.1989), vacated in part, 900 F.2d 27 (4th Cir.1990) (supervisor may be individually liable as "employer" under Title VII); Jones v. Continental Corp., 789 F.2d 1225 (6th Cir.1986) (same); Vakharia v. Swedish Covenant Hospital, 824 F. Supp. 769 (N.D.Ill.1993); Strzelecki v. Schwartz Paper Co., 824 F. Supp. 821, 829 n. 3 (N.D.Ill.1993); U.S. Equal Employment Opportunity Comm. v. AIC Security Investigations Ltd., 1993 W.L. 427454 at *4-7 (N.D.Ill. Oct. 21, 1993).
What seems to be clear is that the term "employer," under both Title VII and the ADA, is defined to include any agent of the employer. 42 U.S.C. § 2000e(b); 42 U.S.C. § 12111(5)(A). The question becomes, however, did Congress really intend by means of that definition to impose individual liability upon a supervisory individual as a mere agent of the employer? In answer to that question, Miller basically got it right. Although the Plaintiff criticizes Miller for its apparent reliance upon the theory of respondeat superior liability to explain why the term "agent" is even in the statutes, the court does not believe that such an analysis is, as the Plaintiff suggests, "fatally flawed." As the Seventh Circuit has noted, the definition of "employer" in the context of Title VII "surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible." See Shager v. Upjohn, 913 F.2d 398, 404-05 (7th Cir.1990) (an ADEA case, but discussing agency in the context of Title VII's definition of "employer") (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 72, 106 S. Ct. 2399, 2408, 91 L. Ed. 2d 49 (1986)). Essentially, Title VII and the ADA both employ agency language because it underscores the notion that the employer is to have some derivative liability for the deliberate discriminatory acts of its employees. Id. More precisely, in contrast to a case involving acts of sexual harassment by an employee (where the employer's own fault must be shown under a "known or should have known" standard before liability can be established) a supervisory employee who takes a negative employment action against a protected employee because of some discriminatorily wrongful intent, "does not carry his behavior so far beyond the orbit of his responsibilities as to excuse the employer." Shager, 913 F.2d at 405 (citing Restatement (Second) of Agency § 228 (1958). So, such intentionally discriminatory conduct on the part of the supervisory employee, done within his "apparent authority," means that the employer is liable in contrast to those alleged acts of sexual harassment by an employee (conduct surely unrelated to the employer's business), which require something more: the employer's own fault. Id. See also, Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990). "In both sorts of case, however, the ultimate concern is with confining the employer's or principal's liability to the general class of cases in which he has the practical ability to head off the injury to his employee's, or other agent's, victim." Shager, 913 F.2d at 405.
The point then is that unlike a sexual harassment claim (where the employer may be free from fault, but the agent culpable) the situation described by the Plaintiff in her complaint here would lead to liability on the part of the employer, I & M, since Bafile's alleged actions were clearly done within his "apparent authority." This is precisely the type of derivative liability that Congress intended to write into the statutes. Shager, 913 F.2d at 404-05.
Thus, within this context, I & M stands answerable for Bafile's alleged discriminatory acts. While it might be somewhat unrealistic to expect an employer to be able to purge every trace of sexual harassment from the work place (thus leading to the liability rule governing such claims), it has long been the rule that an employer is responsible for the deliberate acts of his employee acting within the scope of his authority (e.g., authority encompassing a supervisor rating an employee; and a supervisor determining inter-departmental transfers of employees). Shager, 913 F.2d at 404. Thus, the Miller court was correct when it relied on a species of derivative liability in formulating the rule *680 that only "official capacity" supervisory liability was possible. Miller, 991 F.2d at 587. In other words, Bafile can be liable only in his official, not individual, capacity. Id. After all, on these facts, I & M presumably had a longstanding opportunity "to head off the injury to" Bafile's victim. See Shager, 913 F.2d at 405. As a consequence, Bafile's acts were, if anything, I & M's acts. Id. at 404. Since suing Bafile in his "official capacity" (all that is available here) is the same thing as suing I & M, keeping him in this case serves no useful purpose.
Apart from policy concerns that evince themselves within the case law, "[t]he statutory scheme itself indicates that Congress did not intend to impose individual liability on employees." Miller, 991 F.2d at 587. Indeed, it was the intent of Congress to limit liability to employers with fifteen or more employees. 42 U.S.C. § 2000e(b). The obvious intent was to remove from small entities the burden of those costs associated with litigating discrimination claims. Miller, 991 F.2d at 587. Given that premise, it is difficult to conclude that Congress intended to remove truly small employers from the ambit of liability, and to cap damages as to those slightly larger, yet at the same time, sought to impose unchecked civil liability against individual employees acting in their official capacities. Id.
In fact, the enactment of the Civil Rights Act of 1991 does not alter the force of this conclusion. While some cases prior to the Civil Rights Act of 1991 merely "bolstered" their arguments of no individual liability by observing that the remedies available under Title VII were remedies which only an employer, not an individual, could generally provide i.e., back pay, reinstatement and other equitable relief if warranted, Pommier, 816 F.Supp. at 481 (citing Weiss, 772 F.Supp. at 410-11); the addition of compensatory and punitive damages into the mix does not mean that individual liability has now become the expressed intent of Congress. Of course, some courts now view the passage of the Civil Rights Act of 1991 as an indication that these new damages can now be imposed against individuals. See EEOC v. AIC Security Investigations, 1993 W.L. 427454 at * 5. This obscures the fact that while the Civil Rights Act of 1991, 42 U.S.C. § 1981a, now permits compensatory and punitive damages for intentional discrimination, Congress at the same time specifically capped those damages depending upon the size of the respondent employer. 42 U.S.C. § 1981a(b)(3)(A)-(D). This Court thus agrees with Miller that "if Congress had really wanted to impose individual liability under Title VII for compensatory or punitive damages, it would have included individuals in this litany of limitations [i.e. the caps] and would have discontinued the exemptions for small employers."[2] 991 F.2d at 587-8 n. 2. Thus, passage of the Civil Rights Act of 1991 really suggests that Congress did not intend to include individual supervisory personnel within the meaning of "employer." Moreover, such an interpretation would present practical difficulties as well. For instance, in U.S. Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 576-77 (N.D.Ill.1993) the court was faced (after finding the sole shareholder of the employer corporation individually liable) with having to reconcile the court's expressed notion of individual liability with the various damages caps available to small employers. The court took the rather facile approach of simply engrafting the damages cap available for the true employer upon the liability exposure of the individual defendant. Id. at 577. Such an approach, of course, means that two employees of two different-sized employers, each having performed the same discriminatory act, could have their liability exposure assessed on somewhat disparate scales (i.e., application of the caps). While capping exposure based on the number of employees might make some sense as to the true employer (giving the liability scheme at least some degree of proportionality), that logic does not transfer easily to cases involving individual employees. Moreover, such a result is inconsistent; an individual supervisory defendant is being *681 held liable in his individual capacity, yet essentially becomes cloaked with "official capacity" status for benefit of the caps. It is unlikely that Congress, in addressing a national concern, truly intended such a "crazy-quilt" scheme of liability.
Finally, the policy concerns of the Plaintiff have been adequately met by the current statutes. In today's current litigation environment, employers are attuned to employee discriminatory conduct and have established elaborate monitoring and response procedures. Clearly, under the facts of this case, where liability can be visited upon the employer through the acts of the employee, the employer will be acutely sensitive to any suggestion of discrimination and will be committed to its eradication. In short, "no employer will allow supervisory personnel to violate Title VII [or the ADA] when the employer [will thus be] liable ... [.]" Miller, 991 F.2d at 588. Indeed, the normally deep-pocketed and publicity-conscious employer (in general contrast to the ordinary supervisory employee bent on pursuing some private agenda) can be counted upon to be the most effective guardian of the marketplace. Thus, the concern for deterrence can be adequately met by this interpretation of the statute.
As for compensation, it is a stretch to suggest that having the supervisory employee made a party to the action will advance the compensatory interests of the victim. Indeed, in almost all situations, and certainly here, having the employer held liable is adequate assurance that the goal of compensation will be met.
In conclusion then, the Defendant Bafile's Motion to Dismiss should be granted.
V. CONCLUSION
Defendant Bafile's Motion to Dismiss is hereby GRANTED.
NOTES
[1] Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
[2] An entity with fewer than 15 employees is not an "employer" within the meaning of either Title VII, or the ADA, and thus falls outside the provisions of each Act. 42 U.S.C. § 2000e(b); 42 U.S.C. § 12111(5)(A). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918380/ | 764 A.2d 577 (2000)
In re PRIVATE COMPLAINT OF Petitioner Donald ADAMS.
Appeal of Donald Adams.
Superior Court of Pennsylvania.
Argued July 26, 2000.
Filed December 13, 2000.
*578 Leon Williams, Philadelphia, for appellant.
Lawrence Goode, Assistant District Attorney, Philadelphia, for Com., appellee.
Before KELLY, JOYCE and BECK, JJ.
BECK, J.:
¶ 1 In this appeal we decide inter alia what evidence a trial court may consider when it reviews a district attorney's denial of a private criminal complaint. We hold that the trial court may review all evidence that the district attorney considered in making her decision and is not limited to reviewing the four corners of the private criminal complaint. We affirm.
¶ 2 While he was on the street protesting President Clinton's appearance in Philadelphia, appellant Donald Adams was involved in a physical confrontation with members of the Teamsters Union. Television crews captured the fracas on videotape, which was then broadcast on the evening news. As a result, Teamsters Marc Nardone and Kevin McNulty were *579 charged with assaulting Adams; they also faced reckless endangerment and related charges.
¶ 3 Sometime later, Adams filed a private criminal complaint seeking that charges also be filed against John Morris, a Teamsters official who was present at the incident. According to Adams, Morris "signaled" Nardone, McNulty and others to begin assaulting him by placing his (Morris's) own hat on top of Adams's head.[1]
¶ 4 The Philadelphia District Attorney's Office notified appellant that his complaint was denied based on "contradictory statements by both sides" and "insufficient evidence." Ultimately, Adams appealed the denial to the Philadelphia Court of Common Pleas. After a full hearing, the Honorable Peter F. Rogers denied appellant's request that charges be filed against Morris and this appeal followed.
¶ 5 A private criminal complainant is permitted to seek judicial review of the denial of his or her complaint by the district attorney. Pa.R.Crim.P. 106. Where the district attorney's denial is based on a legal evaluation of the evidence, the trial court undertakes a de novo review of the matter. Commonwealth v. Cooper, 710 A.2d 76 (Pa.Super.1998). Where the district attorney's disapproval is based on policy considerations, the trial court accords deference to the decision and will not interfere with it in the absence of bad faith, fraud or unconstitutionality.[2]Id. at 79. In the event the district attorney offers a hybrid of legal and policy reasons for disapproval, deference to the district attorney's decision, rather than de novo review, is the appropriate standard to be employed. Id. at 80. On appeal, this court is limited to determining whether the trial court abused its discretion. Id.
¶ 6 Appellant essentially raises two claims. First, he claims that the trial court, in reviewing the district attorney's denial, was limited to assessing the four corners of the private criminal complaint and erred in considering additional evidence. Second, he claims that the decision reached by the court was erroneous.
¶ 7 In deciding whether the district attorney acted properly, Judge Rogers reviewed the evidence that the district attorney considered, including a television news program videotape of the incident. The trial court reviewed the matter de novo and concluded that the district attorney's assessment was based on the legal sufficiency of the evidence.
¶ 8 Appellant claims that the trial court erred in making the videotape part of its review. Instead, according to appellant, the court was limited to deciding the matter based only on the allegations made in the private criminal complaint, and was not permitted to consider anything beyond the four corners of the complaint.[3]
*580 ¶ 9 Appellant's argument is based, in part, on Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993). There, a panel of this court was faced with a private complainant's claim that the district attorney erroneously disapproved his complaint. The district attorney had informed the private complainant that his complaint was disapproved because "the Commonwealth could not, with the evidence asserted by ... [the complainant], prove its case beyond a reasonable doubt." Id. at 166.
¶ 10 The issue in Jury was whether the district attorney applied the proper standard in assessing the complaint. This court found that he had not. Requiring a complainant to establish her allegations beyond a reasonable doubt, reasoned the Jury court, would force "private complainants to prove their cases to the district attorney, where, in fact, the complaint need only aver evidence sufficient to mount a prima facie case." Id. at 168. Clearly, the rule of Jury is that a private complainant's duty is limited to presenting the district attorney with a prima facie case. Significant to the instant case is the fact that Jury did not consider the question of the district attorney's duty to evaluate the private criminal complaint based on her own investigation.
¶ 11 A prosecutor's office is required to investigate a private criminal complaint after it is filed. In deciding whether a prima facie case has been made out, the prosecutor considers both the content of the complaint, and the result of her own investigation of the case. A well-crafted private criminal complaint cannot be the end of the inquiry for the prosecutor. For even if the facts recited in the complaint make out a prima facie case, the district attorney cannot blindly bring charges, particularly where an investigation may cause her to question their validity. Forcing the prosecutor to bring charges in every instance where a complaint sets out a prima facie case would compel the district attorney to bring cases she suspects, or has concluded via investigation, are meritless. The public prosecutor is duty bound to bring only those cases that are appropriate for prosecution. This duty continues throughout a criminal proceeding and obligates the district attorney to withdraw charges when she concludes, after investigation, that the prosecution lacks a legal basis. In Re Piscanio, 235 Pa.Super. 490, 344 A.2d 658, 660 (1975).
¶ 12 When the district attorney refuses to file the criminal complaint and the matter is appealed, the trial court is placed in the position of addressing the decision of the district attorney. It cannot properly and thoroughly do so if it only focuses on the four corners of a complaint to the exclusion of the district attorney's investigation and other material she considered.[4] A case decided in the wake of Jury, Commonwealth v. Metzker, 442 Pa.Super. 94, 658 A.2d 800 (1995), confirms our conclusions.
¶ 13 In Metzker, a panel of this court was asked to consider whether the trial court erred in affirming the district attorney's denial of a private criminal complaint. The complainants, officers of a *581 senior citizen social club, sought to bring charges against the club's former officers in connection with cash shortages. The district attorney disapproved the complaint, noting "insufficient evidence after police investigation; lacks prosecutorial merit." Id. at 800. The trial court affirmed. This court found no error in the trial court's resolution of the case. It reached its conclusion by recognizing, among other things, that the district attorney's investigation and assessment of the complaint were relevant to his decision to disapprove.[5]
While we said in Jury the complainant is not required to prove the case beyond a reasonable doubt where disapproval is based on a legal assessment of the complaint, as a policy matter, a prosecutor can consider if a conviction is attainable. Where the district attorney concludes, based on investigation, that a conviction is doubtful or impossible, discretion can and should be exercised to refuse approval.
Traditionally, prosecutors in Pennsylvania have been given great latitude in deciding which cases to prosecute and in rejecting those which do not warrant prosecution. The power to prosecute is enormous, bringing as it does the resources of the Commonwealth to bear on the accused. Thus, we expect those entrusted with this authority to exercise it wisely, and not proceed where they conclude that a conviction cannot be attained.
Id. at 801 (emphasis supplied).
¶ 14 Even if we assume that the complaint in this case sets forth a prima facie case to support the charges sought, this matter remains much like Metzker. Here, the district attorney informed the complainant that she would not approve the charges since her investigation yielded contradictory statements and ultimately prompted her to conclude that the evidence was insufficient. In essence, the district attorney echoed the sentiments of the district attorney in Metzker, i.e., that the matter lacked prosecutorial merit.[6] In assessing the district attorney's decision the trial court properly reviewed the evidence that the district attorney considered in making her decision. We find no merit in appellant's argument that the trial court acting as a reviewing court is limited to examining the four corners of the private criminal complaint.
¶ 15 Appellant's second argument is that the trial court erred in its ultimate decision in this case even if it acted properly in reviewing the videotape. Contrary to the arguments of appellant and the judgment of the trial court, the district attorney's disapproval in this case is not subject to de novo review because, as we determined above, it was not based on a purely legal assessment of the complaint. Instead, it was in part a policy-based decision.[7] Thus, we must evaluate it *582 to determine whether it was based on fraud, bad faith or unconstitutionality.[8]
¶ 16 Our evaluation is a simple one. Appellant makes no arguments sounding in bad faith, fraud or unconstitutionality. Further, the trial court does not mention such conduct nor does it note even an allegation of such conduct. Finally, our independent review reveals none. It appears that in this case the district attorney deemed the matter lacking in prosecutorial merit due to divergent and conflicting versions of events by those present at the incident. Such an assessment is not prohibited as there is no evidence it was motivated by bad faith or fraud and no proof that it is unconstitutional in its basis.
¶ 17 We hold that in reaching its conclusion, the trial court indeed was authorized to consider everything the district attorney considered. We also find that the trial court did not err in resolving this case in favor of the district attorney. The district attorney's decision was a policy based one for which there is no proscription. See Metzker, supra. As a result, we are compelled to affirm the order of the trial court, which upheld the decision of the district attorney to disapprove appellant's private complaint.
¶ 18 Order affirmed.
NOTES
[1] Teamsters Heather Diocson and Sharon Hopkins filed private complaints against Adams, alleging that he punched Diocson. The result of these complaints is unclear from the record.
[2] The Cooper court adopted the bad faith/fraud/unconstitutionality standard for policy-based disapprovals because our supreme court unanimously agreed that such a standard was appropriate in Commonwealth v. Brown, 550 Pa. 580, 708 A.2d 81 (1998). The supreme court's decision in Brown is not binding precedent because there was no majority agreement on the primary issue in the case, i.e., whether the appellate court reviews the trial court's or the prosecutor's exercise of discretion. However, this court's subsequent approval of the standard in Cooper is indeed controlling and we follow it here. See Cooper, supra at 81 (district attorney's policy reason was valid in the absence of bad faith, fraud or unconstitutionality). Also, Cooper held that an appellate court reviews the decision and rationale of the trial court, not the district attorney.
[3] In a contradictory stance, appellant chastises the trial court for refusing to consider the transcripts from Nardone and McNulty's preliminary hearing. The court refused to consider the transcripts because at the time the district attorney reviewed the matter, the preliminary hearing had not taken place. Appellant claims that if the court could have considered evidence outside the complaint, the preliminary hearing testimony would have militated in favor of the filing of charges against Morris.
[4] For this reason we conclude that the trial court properly refused to consider evidence that was unavailable to the district attorney, i.e., the preliminary hearing testimony. The trial court's task is that of a reviewing body. It reviews the district attorney's decision for error by looking at all of the evidence anew. Thus, the court cannot consider items that were not available to the district attorney when she considered the matter. In the event new evidence comes to light, nothing prevents the private complainant from filing a new complaint and setting out the evidence in an expanded affidavit. However, the trial court cannot be the first entity to assess evidence proffered by a private complainant. See Rule 106 (private complaints are filed in the first instance with the district attorney and, if disapproved, "the affiant may petition the court of common pleas for review of the decision").
[5] In Metzker this court made the following statement:
The trial court concluded and we agree that the complaint set forth sufficient facts to allege a prima facie case. As we stated in Commonwealth v. Jury, ... once the complaint establishes a prima facie case, the prosecutor cannot rest the disapproval on a legal assessment of the complaint.
Id. at 800-01 (citations omitted) (emphasis supplied).
[6] In Michaels v. Barrasse, 452 Pa.Super. 325, 681 A.2d 1362 (1996), another case decided after Jury, this court found that the district attorney's assertion of insufficient evidence, coupled with no opinion by the trial court, was a legal sufficiency matter requiring de novo review. The Michaels court remanded the matter for a trial court opinion.
This case differs materially from Michaels. First, the trial court here has provided us with its rationale. Second, the district attorney here offered more than a mere legal insufficiency basis. Like the district attorney in Metzker, she supplemented her rationale with a post-investigation assessment of the case and a policy decision not to commence prosecution.
[7] "Where the District Attorney concludes, based on investigation, that a conviction is doubtful or impossible, discretion can and should be exercised to refuse approval." Metzker, supra at 801.
[8] We may affirm an order of the trial court on any ground, regardless of the rationale employed by the trial court. Commonwealth v. Petroski, 695 A.2d 844, 847 (Pa.Super.1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918389/ | 764 A.2d 421 (2001)
166 N.J. 66
STATE of New Jersey, Plaintiff-Appellant,
v.
Charles G. HACKETT, Defendant-Respondent.
Supreme Court of New Jersey.
Argued September 12, 2000.
Decided January 18, 2001.
*422 John J. Farmer, Jr., Attorney General of New Jersey, argued the cause for appellant (Mr. Farmer, attorney; Catherine M. Foddai, Deputy Attorney General, of counsel and on the brief).
Michael N. Huff, Philadelphia, PA, argued the cause for respondent.
The opinion of the court was delivered by LaVECCHIA, J.
The issue in this appeal is whether the evidence adduced at the trial of a defendant *423 accused of exposing himself to three minor girls was sufficient to sustain convictions for both fourth-degree lewdness and third-degree endangering the welfare of children. We were informed after oral argument that defendant passed away on September 26, 2000. Citing the significant public importance of addressing the relationship between these two sexual offenses, the State has urged the Court to issue an opinion notwithstanding defendant's death. Defense counsel has not objected to that request. We agree that this case involves important public issues in need of resolution. Accordingly, we elect to decide the issues presented even though the defendant has passed away. See Zirger v. General Accident Ins. Co., 144 N.J. 327, 330, 676 A.2d 1065 (1996).
After a two-day trial, a jury convicted defendant, Charles Hackett, of fourth-degree lewdness, N.J.S.A. 2C:14-4b(1), and third-degree endangering the welfare of children, N.J.S.A. 2C:24-4a. The victims were three young girls, M.M., A.S., both age eleven, and M.R.K., age thirteen. On several occasions while they were walking to their school bus stop located in front of defendant's residence in Middle Township, the girls witnessed defendant standing nude near the front window in his home. Defendant was sentenced to a four-year term on the endangering conviction and a concurrent eighteen-month term for lewdness.
The majority of the Appellate Division panel below, in reversing defendant's endangering conviction, concluded that while a defendant could be prosecuted for both crimes, the State had failed to present adequate evidence that the lewd conduct here would tend to impair or debauch the morals of a child, a requisite element of an endangering conviction. State v. Hackett, 323 N.J.Super. 460, 478, 733 A.2d 554 (1999). The majority also found fault with the jury instruction pertaining to the endangering charge, determining that it lacked sufficient clarity. The dissent, however, concluded that there was sufficient evidence introduced into the record upon which the endangering conviction could have been sustained.
The State appeals as of right due to the dissent below. R. 2:2-1(a)(2). We hold that based on the testimony offered, a jury could conclude beyond a reasonable doubt that Hackett's conduct had the capacity to impair or debauch the morals of a minor.
I.
A.
The evidence introduced by the State indicated the following. On the morning of October 2, 1996, while she was walking to her school bus stop, M.M. saw defendant standing nude in his home at a distance of approximately three or four feet from the unobstructed front window. According to M.M., defendant waved to her. On cross-examination, M.M. conceded that defendant's waving may have simply been a hand gesture made while talking on the telephone. M.M. testified that on prior occasions during that school year, she had observed defendant standing nude near the front window while he was talking on the telephone. In all, M.M. surmised that she had seen defendant standing nude on approximately ten occasions.
A.S. observed defendant standing nude only on October 2, 1996. According to A.S., defendant was facing away from her while he was speaking on the telephone. On that same date, M.R.K., the thirteen-year old, observed defendant standing nude while talking on the telephone. M.R.K. indicated that defendant had been visible, standing naked near a window in his home. According to M.R.K., defendant "posed" for her. When questioned about what she meant by her testimony that defendant posed, M.M. responded, "[h]e was just standing there." According to M.R.K., she later approached defendant and told him, "I have been seeing somebody standing nude in your house, and I am getting sick of it because my friends are too young to see this." Defendant *424 responded by stating that he would check his security cameras. Following this confrontation, M.R.K. did not again see defendant in the nude.
Subsequently, A.S.'s mother, T.W., was informed of the October 2 incident. It was T.W.'s recollection that in September and October 1996, defendant's windows were not shielded by either curtains or blinds, but following M.R.K.'s confrontation with him blinds were closed on defendant's front window.
T.W. informed the Middle Township Police Department of the October 2 incident and an investigation ensued. When questioned about the episode, defendant denied any wrongful conduct although he conceded that "he may have answered the phone without any clothes on." Defendant did not testify at trial.
B.
The Appellate Division, sua sponte, raised the issue whether "an actor's conduct that is completely encompassed by the fourth-degree crime as defined by N.J.S.A. 2C:14-4b(1)(lewdness observed by a child less than 13 years of age) may also be prosecuted as a third-degree crime as defined by N.J.S.A. 2C:24-4 (endangering the welfare of children) in the absence of any elements not already encompassed by N.J.S.A. 2C:14-4(b)(1)." Answering that question in the affirmative, the Appellate Division majority concluded that the two statutes proscribe independent criminal conduct and require distinct proofs to warrant conviction for each offense. Hackett, supra, 323 N.J.Super. at 475, 733 A.2d 554.
The majority also agreed that defendant's exposure of his nudity to the girls could constitute the "sexual conduct" element necessary to sustain an endangering conviction, citing the decision in State v. White, 105 N.J.Super. 234, 251 A.2d 766 (App.Div.), certif. denied, 54 N.J. 242, 254 A.2d 789 (1969). Hackett, supra, 323 N.J.Super. at 472, 733 A.2d 554. In that case, the defendant had shown photographs of nude men and women in various postures to a child. The majority below reasoned that if showing nude photographs to children could equate with "sexual conduct" under the endangering statute, defendant's nudity could as well. Ibid. But, the panel concluded that an act of exposure may constitute the third-degree crime of endangering only if that exposure had "more than a theoretical capacity to have impaired or debauched the child's morals." Ibid. That added requirement did not make it "necessary for the State to prove... that the child was not debauched [prior to the act], or his morals more impaired after the act than they were before. The statute forbids the performance of acts which tend to debauch the child or impair his morals whether they actually did so is immaterial." Id. at 477, 733 A.2d 554 (quoting State v. Raymond, 74 N.J.Super. 434, 438, 181 A.2d 515 (App.Div.1962), appeal dismissed, 39 N.J. 241, 188 A.2d 305 (1963)). Nevertheless, the majority concluded that there was insufficient evidence to support the State's claim that defendant's sexual conduct would impair or debauch the morals of a child. Id. at 478, 733A.2d 554.
Noting the "absence of any expert opinion or any evidence offered by a representative of the Division of Youth and Family Services," the majority determined that the limited evidence presented at trial did not suggest that defendant's mere nudity "would tend to corrupt, mar, or spoil the morals" of the girls. Ibid. The majority held that that failure necessitated a reversal of the conviction. Ibid. In so holding, the majority also pointed out that the Model Jury Charge's definition of "sexual conduct" was flawed because it used a reference to nudity that was applicable to N.J.S.A. 2C:24-4b (1)(i), the section of the statute prohibiting child pornography. In such a circumstance, the nudity described is the nudity of the child, not, as was the case here, the nudity of the actor.
*425 The dissenting member of the panel below asserted that prior case law established that it is not necessary that defendant's conduct actually be demonstrated to have impaired or debauched the morals of a minor. Id. at 485, 733 A.2d 554. It was his view that the victims' testimony that defendant, on numerous occasions, stood nude in his home in full view of the children passing by "was sufficient to present a jury question as to whether defendant's conduct tended to impair or debauch the morals of the child." Ibid. The dissent disagreed that expert testimony would be necessary to prove that endangering had occurred. Id. at 489, 733 A.2d 554. Finally, the dissent concluded that although the majority correctly alluded to a flaw in the Model Jury Charge on endangering, that infirmity was not implicated in the present case because the trial court explicitly defined sexual conduct as acts constituting lewdness, the offense charged in count one against defendant. Ibid.
II.
A.
In State v. Zeidell, 154 N.J. 417, 713 A.2d 401 (1998), the Court was called upon to determine how the Legislature intended to distinguish second-degree sexual assault from fourth-degree lewdness. In Zeidell, the defendant was witnessed masturbating while standing on a boardwalk in clear view of two children and an adult who were on the beach approximately seventy-five feet from the boardwalk. Id. at 420, 713 A.2d 401. Defendant was convicted of tender-years-sexual assault, N.J.S.A. 2C:14-2b, endangering the welfare of children, N.J.S.A. 2C:24-4a, and fourth-degree lewdness, N.J.S.A. 2C:14-4b(1). Id. at 419, 713 A.2d 401. The Court distinguished fourth-degree lewdness from second-degree-tender years sexual assault by noting that lewdness requires that the actor's exposure be performed with the actor's knowledge or reasonable expectation that he is likely to be observed by a child less than thirteen years of age. Id. at 430, 713 A.2d 401. Moreover, "lewdness is limited to exposing or displaying an actor's intimate parts rather than touching them." Id. at 431, 713 A.2d 401.
Tender-years-sexual assault, on the other hand, requires there to be a touching of the actor's intimate parts "in view" of an underage child "whom the actor knows to be present." N.J.S.A. 2C:14-1d. Thus, the Court continued, "unlike lewdness, sexual assault does not require the underage child to actually observe the touching" although it was noted that the children did testify that they saw the prohibited act so there was no dispute that they were in Zeidell's field of vision. Ibid.
Our inquiry here must distinguish third-degree endangering from fourth-degree lewdness.
2C:14-4. Lewdness.
a. A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.
b. A person commits a crime of the fourth degree if:
(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.
2C:24-4. Endangering Welfare of Children.
a. Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L. 1974, c. 119, § 1 (C.
*426 9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.
In the context of this appeal, our analysis of the offenses of lewdness and endangering the welfare of children reveals a common denominator that is an element of both offenses: the nudity of the defendant. Lewdness is a disorderly persons offense whenever the actor commits a lewd or offensive act that he knows or reasonably anticipates is likely to be viewed by victims older than thirteen who would be affronted or alarmed by such conduct. N.J.S.A. 2C:14-4a; Zeidell, supra, 154 N.J. at 430, 713 A.2d 401. The lewd or offensive act becomes a fourth-degree offense when the lewdness constitutes the exposing of the actor's genitals for the sexual gratification of the actor or some other person. The fourth-degree offense of lewdness must involve a victim under the age of thirteen, and the actor must be at least four years older than the victim. Ibid.; N.J.S.A. 2C:14-4b(1).
In order to constitute fourth-degree lewdness then, the nudity of the actor must be occasioned by the sexual desire of the actor to be observed by a minor who is less than thirteen. Hackett, supra, 323 N.J.Super. at 474, 733 A.2d 554. The mens rea of the actor constitutes an important element of the offense of fourth-degree lewdness. In the crime of endangering the welfare of children, the potential effect on the victim constitutes an additional factor not required for a lewdness prosecution.
Endangering the welfare of children is a third-degree offense where an actor "engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child...." N.J.S.A. 2C:24-4a. The same nudity that may constitute the fourth-degree offense of lewdness can additionally form the basis for the third-degree offense of endangering the welfare of children if such nudity "would impair or debauch the morals" of a child under the age of sixteen. The actor's nudity may form the basis of a second-degree conviction under the act if, in addition to the requisite elements discussed above, the actor was the parent, guardian or otherwise stands in loco parentis. Thus, the focus in a prosecution for endangering the welfare of children shifts from the mental state of the actor in performing the lewd conduct to the potential effect that such conduct may have on the morals of the child or children who are witness to the conduct.
We agree with the Appellate Division majority that a conviction for fourth-degree lewdness should not automatically sustain a third-degree endangering conviction. To sustain such a conviction, there must be proof that the nudity went beyond mere exposure and "would impair or debauch the morals" of the children subjected to such conduct. We also concur with the majority's conclusion that if a defendant is convicted of both lewdness and third-degree endangering offenses, the trial court should merge the lewdness conviction into the endangering conviction. Cf. State v. Still, 257 N.J.Super. 255, 259, 608 A.2d 404 (App.Div.1992) (holding that defendant's endangering conviction merged into conviction of sexual assault). We note that the Appellate Division sustained defendant's lewdness conviction. That conviction is not challenged in this appeal. We part ways with the majority, however, by concluding that the evidence adduced at trial was sufficient to have enabled a properly-instructed jury to conclude that the defendant's conduct would debauch or impair the morals of girls aged thirteen and under.
B.
Our review of this matter necessarily requires a review of the recent history of the lewdness and endangering statutes. *427 In 1992, both statutes were amended by the Legislature as part of an effort to increase penalties for sexual crimes committed against minors. Office of the Governor, News Release, "Governor Florio Signs Laws Toughening Penalties and Boosting Child Protection Efforts." (May 13, 1992). Specifically, L.1992, c. 8, § 1 increased the gradation for lewdness when the victim is less than thirteen years old from a disorderly persons offense to a fourth-degree crime. Similarly, L.1992, c. 6, § 1 upgraded endangering where defendant did not have a legal duty for the care of the child from a fourth-degree offense to a third-degree offense.
The majority and dissent arrived at different conclusions regarding the import of the 1992 amendments to the statutes. The dissent contended that because the Legislature indicated a need for stricter punishment of sexual acts involving minors, to conclude that a defendant could be convicted under both the lewdness and endangering statutes is reasonable. Hackett, supra, 323 N.J.Super. at 488, 733 A.2d 554 (Steinberg, J., dissenting). The majority determined that the amendments reflected a "careful and deliberative decision" that the "mere act of exposure, with nothing more, if observed or likely to be observed by a child younger than thirteen years old, should constitute a fourth-degree crime not a third-degree crime." Id. at 476, 733 A.2d 554. However, the majority did not dispute that defendant's nudity in this case constituted "sexual conduct" as proscribed by N.J.S.A. 2C:24-4a, relying on White, supra, which held that displaying explicit photographs of nude adults to children was "sexual conduct." Id. at 472, 733 A.2d 554.
The reported cases in which a defendant has been prosecuted for endangering the welfare of children typically have involved charges of additional, more serious crimes, notably sexual assault. See, e.g., State v. D.R., 109 N.J. 348, 537 A.2d 667 (1988) (observing that defendant convicted of aggravated sexual assault, sexual assault and endangering); State v. Miller, 108 N.J. 112, 527 A.2d 1362 (1987)(holding that defendant's conviction of endangering should not merge with conviction of aggravated sexual assault). Therefore, to analyze the type of conduct that has been found to impair or debauch the morals of a child, we must consider decisional law construing the current statute's predecessor, N.J.S.A. 2A:96-3:
N.J.S.A. 2A:96-3. Debauching or impairing morals of a child under 16.
Any person who forces or induces any child under the age of 16 years to do or to submit to any act which tends to debauch the child or impair its morals is guilty of a misdemeanor.
[N.J.S.A. 2A:96-3 (repealed by L.1978, c. 95).]
In State v. Bottigliero, 174 N.J.Super. 101, 103, 415 A.2d 396 (Resent. Panel 1980), the court held that the endangering statute was congruent to N.J.S.A. 2A:96-3. In that case, defendant pled guilty to impairing the morals of two girls. The defendant had shown one girl pictures of a man and a woman engaged in sexual intercourse, and asked another girl to touch his genitals, although there was no indication that the girl did so. Id. at 103, 415 A.2d 396. Similarly, in State v. South, 136 N.J.Super. 402, 346 A.2d 437 (App.Div. 1975), certif. denied, 69 N.J. 387, 354 A.2d 315 (1976), defendant was convicted of both open lewdness, N.J.S.A. 2A:115-1, and impairing the morals of a minor for exposing himself to a young girl outside a mall. Id. at 405, 346 A.2d 437. The defendant had approached the girl and her two friends, asking them to lead him to the men's room. The defendant then told the girls he did not want to go to the men's room but wanted to go outside. The victim was then led behind a tractor trailer where defendant exposed himself. Defendant's conviction for both open lewdness and impairing were affirmed. Id. at 410, 346 A.2d 437. And as noted earlier, in White, supra, the court in affirming defendant's conviction under N.J.S.A. 2A:96-3 for displaying nude photographs held *428 "[t]he mere fact that most cases decided under the statute involve physical contact does not compel such a reading into the legislation of such a condition which the Legislature did not see fit to include." 105 N.J.Super. at 237, 251 A.2d 766.
Thus, convictions under N.J.S.A. 2A:96-3 often were sustained even when defendant's only "act" consisted of simple exposure. Admittedly, N.J.S.A. 2A:96-3 and N.J.S.A. 2C:24-4a are not mirror images of one another. For example, the former statute speaks of "any act" that would debauch or impair, whereas N.J.S.A. 2C:24-4a is limited to "sexual conduct." Moreover, the current statute does not appear to require that the State demonstrate that the defendant "force[d] or induce[d]" the child to submit to the act that tends to debauch the child, as required by the earlier statute. That is a significant change because in Bottigliero, White and South there was clearly some degree of inducement present. The deletion of the "force[d] or induce[d]" language from the statute's present version suggests that there no longer need be any force or inducement and supports the conclusion that mere nudity repeatedly presented at a window can constitute endangering the welfare of children if the other elements of the endangering crime are met.
N.J.S.A. 2C:24-4a also has altered the language requiring the State to show that the act "tends to debauch the child or impair its morals." The current statute prohibits sexual conduct "which would impair or debauch the morals of a child." Case law interpreting the predecessor statute, N.J.S.A. 2A:96-3, and the Model Jury Charge instructs that it is not necessary for the State to show that the sexual conduct actually resulted in impairing or debauching the morals of the child. As the court noted in Raymond, supra, 74 N.J.Super. at 438, 181 A.2d 515, "[t]he statute forbids the performance of acts which tend to debauch or impair morals whether they actually did so is immaterial." In State v. Raymond, supra, 74 N.J.Super. at 436, 181 A.2d 515, the defendant was convicted of both lewdness and impairing the morals of the victim. Id. at 437, 181 A.2d 515. The defendant had sexual contact with a minor. Defendant attempted to introduce evidence to show that the victim had previously engaged in sexual relations with other adults. The Appellate Division held that "the mere fact that the victim had had previous similar relations with others did not make defendant's act one which did not tend to debauch or impair his morals." Id. at 438, 181 A.2d 515.
As did the majority and dissent below, we do not view the altered statutory language "which would impair or debauch the morals of a child" as heightening the proof required on this element. Proof of actual impairing or debauching of the victims' morals is not required. The legislative language prohibits any sexual conduct that would result in the impairing or debauching of an average child in the community. The word "would" signals the futurity of a likely event; it does not require the event's actual occurrence.
III.
The victims' testimony at trial provided a thin but sufficient basis upon which a jury could have arrived at a guilty verdict on the endangering charge. The testimony at trial revealed that defendant stood nude in his house, in open view through a front window on October 2, 1996 and several other occasions in the morning hours at the designated time children were assembling at a school bus stop located directly in front of his home. This was not a case involving a child's stolen glimpse of nudity, but instead there was testimony of repeated instances when the defendant allowed himself to be viewed naked, through an unobstructed window, by girls who were age thirteen and under. That description of defendant's conduct supports an endangering charge. The jury might well have determined that defendant's actions appeared designed to attract the attention *429 of little girls in a flagrant and repetitive way. Furthermore, M.M. testified that defendant waved at her while he stood nude, talking on the phone. M.R.K. stated that she saw defendant "posing." And, the testimony of M.R.K., the thirteen-year-old, revealed that she confronted defendant to inform him that she was "getting sick" of the nudity and that her "friends are too young to see this." This suggests that the girls sensed a sexual element to defendant's conduct.
We are satisfied that there was no need for expert testimony to establish that defendant's conduct had the tendency to impair or debauch the morals of the children who observed his nudity. That is a determination that a jury is well-equipped to make. We have previously recognized "[t]hat the uncritical acceptance of expert testimony can becloud the issues." State v. R.W., 104 N.J. 14, 30, 514 A.2d 1287 (1986). Other states have recognized that juries are quite qualified to determine whether the statutory standard of endangering has been met. See, e.g., State v. Hummer, 184 Ariz. 603, 911 P.2d 609, 613 (Ariz.Ct.App.1995); People v. Harris, 239 Cal.App.2d 393, 48 Cal.Rptr. 677, 681 (1966); State v. Sullivan, 11 Conn.App. 80, 525 A.2d 1353, 1363 (1987); People v. Simmons, 92 N.Y.2d 829, 677 N.Y.S.2d 58, 699 N.E.2d 417, 419 (1998). As the court noted in Sullivan, in determining whether a defendant's conduct violated the statute, the jury "drew on its knowledge, common sense and experience as to the kind of conduct which is likely to impair the morals of young children." Id. at 1363. In Simmons, supra, a day care worker was charged with fifteen counts of endangering the welfare of a child for "repeatedly directing vulgar remarks of a sexual nature" to a twenty-three-month-old child. Simmons, supra, 677 N.Y.S.2d 58, 699 N.E.2d at 418. Persons can be convicted under New York's endangering statute if they act "in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old." N.Y. Penal Law § 260.10(1) (McKinney 1998). Similar to the holdings involving our endangering statute, the New York Court of Appeals held that actual harm need not be proven in order to sustain an endangering conviction. Ibid. The court also found that "jurors, drawing upon their commonsense understanding of the nature of children, could reasonably conclude that ... the remarks were likely to cause the child harm." Id. 677 N.Y.S.2d 58, 699 N.E.2d at 419.
The dissent below contended that this record did not require scientific, technical or other specialized knowledge, and that a jury is capable of concluding whether defendant's conduct had the tendency to impair or debauch the morals of a child. We agree. We need not look any further than to our Rules of Evidence to find support for that result. N.J.R.E. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Landrigan v. Celotex Corporation, 127 N.J. 404, 413, 605 A.2d 1079 (1992), set forth the criteria for the admissibility of expert testimony:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror;
(2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise to offer the intended testimony.
A determination of whether specific conduct has the tendency to impair or debauch the morals of the average child is not "beyond the ken of the average juror." The issue to be decided is not "so esoteric that jurors of common judgment and experience cannot form a valid judgment...." *430 Butler v. Acme Markets, 89 N.J. 270, 283, 445 A.2d 1141 (1982). In Horn v. Village Supermarkets, Inc., 260 N.J.Super. 165, 175-76, 615 A.2d 663 (App.Div.1992), certif. denied, 133 N.J. 435, 627 A.2d 1141 (1993), the court, in a malicious prosecution case, precluded expert testimony concerning the anxiety that the plaintiff was alleged to have felt because the assessment of such alleged anxiety was within the common experience and knowledge of the average juror.
In State v. Walker, 216 N.J.Super. 39, 45-46, 522 A.2d 1021 (App.Div.), certif. denied, 108 N.J. 179, 528 A.2d 10 (1987), the court concluded that the testimony of a psychiatrist or psychologist was not necessary to prove that a sexual assault victim suffered "incapacitating mental anguish" due to the attack. Such a factor, that would elevate the charge to first-degree aggravated assault, was for the jury to determine. The court held that the victim's own testimony, if accepted by the jury, would support a connection between the rape and her subsequent emotional state.
In our view, this jury had the ability to discern whether the conduct that occurred had the capacity to debauch or impair the morals of an average child in the community. The question is not whether the victims of the alleged endangering actually had their morals impaired or debauched, but whether the actor's "sexual conduct" was conduct that likely would impair or debauch the morals of a child in the community. Such a determination is well within the abilities of the average jury, and allows the jury to fulfill its role as arbiter of community standards when applying the laws of our State.
IV.
As noted above, we agree with the majority's determination that the trial court's jury instruction regarding endangering was flawed, but for a different reason. The panel correctly noted that the Model Jury Charge, as it existed at the time of defendant's trial, was deficient because it improperly defined "sexual conduct" as including "nudity, if alone or depicted for the purpose of sexual stimulation or gratification of any person who may view it." That language was taken from N.J.S.A. 2C:24-4b(1)(i), the section of the statute proscribing child pornography. Clearly, incorporating that instruction could have resulted in confusion where the "sexual conduct" charge alludes to defendant's nudity. The Appellate Division majority erred, however, in that the trial court, in fact, did not instruct the jury with a verbatim recitation of the Model Charge. The court omitted from its charge that portion of the Model Charge that the Appellate Division majority properly concluded was inappropriate.
With regard to the endangering count, the trial court instructed the jury as follows:
Now the second count of the indictment charges endangering the welfare of a child. The defendant is charged in the indictment withwith that offense, and the statute which makes that a crime reads as follows: Any person who engages in sexual conduct which would impair or debauch the morals of a child is guilty of a crime. In order to find the defendant guilty of this crime, the State is required to prove beyond a reasonable doubt the following elements: One, that the victim or victims were children under the age of 16; two, that the defendant knowingly engaged in sexual conduct; three, that such conduct would impair or debauch the morals of a child or children.
Now as to the first element, that the victims were children, the use of the term "child" in the statute means any person under the age of 16 at the time of the offense. Now proof of the first element was shown by the proof of the ages of the alleged victims in this case.
As to the second element, that the defendant knowingly engaged in sexual conduct, sexual conduct is a phrase *431 which includes various prohibited acts. The term "sexual conduct" is a phrase which includes acts which would include, also, the offense charged in count one [lewdness] and/or the offense charged as alan alternative to count one [disorderly persons lewdness], which I justboth of which I just defined for you moments ago. You will recollect that this second element must be shown to have been done knowingly. The third element, which I will define for you, must also have been done knowingly; and that is, that the sexual conduct was engaged knowing it would impair or debauch the morals of the children. Sexual conduct which would impair or debauch the morals of a child is conduct which tends to corrupt, mar, or spoil the morals of a child under 16 years of age. The law provides that sexual conduct would impair or debauch the morals of the child. It is not necessary to show that the sexual conduct actually resulted in impairing or debauching the morals of a child.
Now as I have instructed you, both the second and third elements of the offense require the defendant acted knowingly. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that the conducthis conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if the person is aware that it is practically certain that the conduct will cause such a result.
In order to find the defendant guilty, the State must prove each and every element of the offense as I have just defined it for you beyond a reasonable doubt. If you find the defendant has failed to prove any ofor all of the elements of the offense beyond a reasonable doubt, then you must find the defendant not guilty.
[emphasis added.]
The trial court, in omitting the offending sentence, avoided the error cited by the majority of the Appellate Division. The dissent correctly observed that the trial court's charge specifically limited the jury's consideration of "sexual conduct" to the acts of lewdness. But the jury charge as given here was flawed nonetheless because it reasonably could have had the effect of directing a guilty verdict.
The trial court must give a clear explanation of the applicable law to provide the jury with an adequate understanding of the relevant legal principles. State v. Burgess, 154 N.J. 181, 712 A.2d 631 (1998). A jury must be charged on each element of the crime. State v. Green, 318 N.J.Super. 361, 376, 724 A.2d 254 (App.Div.1999), aff'd, 163 N.J. 140, 747 A.2d 1234 (2000). That portion of the jury's charge that stated that "[t]he law provides that sexual conduct would impair or debauch the morals of the child" effectively obscured the distinction between the second and third elements of the endangering statute. The jury was instructed incorrectly that if it found defendant's actions constituted sexual conduct, then the jury must conclude the defendant necessarily impaired or debauched the morals of children. The separate determination that the jury must make on the third element of the endangering crime was not properly explained. We are certain that the jury was entitled to a more precise instruction than it received from the charge it was given in order for it to have properly determined beyond a reasonable doubt whether defendant's sexual conduct would debauch or impair the morals of a child as required under the statute. Normally we would consider that defect to constitute plain error requiring a new trial. But, defendant is deceased and a retrial is not possible.
We note that the Model Jury Charge for endangering the welfare of a child was revised June 19, 2000. The charge in its current form appears to correct *432 the infirmities inherent in the charge's previous version. The revised charge deletes any reference to nudity and leaves it to the trial court to instruct the jury on the nature of the sexual conduct allegedly committed by the defendant. The revised charge also appears to have addressed the problem in this case by completely omitting the following sentence: "The law provides that the sexual conduct would impair or debauch the morals of a child." We shall entrust to the Committee on Model Jury Charges, Criminal, the question whether any further amendment to the model charge is necessary. In that connection, we note that the revised charge states that "[s]exual conduct [that] would impair or debauch the morals of a child is conduct which tends to corrupt, mar or spoil the morals of a child under sixteen (16) years of age." (emphasis added). That explanatory language could, in our view, be supplemented to more clearly inform the jury of its obligation to consider the proof of sexual conduct offered by the State and to evaluate that proof in the context of objectively reasonable contemporary standards in determining whether that conduct would tend to impair the morals of the victim.
V.
As modified, the judgment of the Appellate Division is affirmed; because defendant is deceased, the matter is remanded to the trial court for entry of an order dismissing the endangering count of the indictment.
For affirmanceChief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI7.
OpposedNone. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918443/ | 101 B.R. 170 (1989)
In re John W. CARTER and Vinnese Carter.
In re Dale Leon MARTIN.
Bankruptcy Nos. 87-40521-PKE, 88-50069-PKE.
United States Bankruptcy Court, D. South Dakota.
June 8, 1989.
*171 Kay Cee Hodson, Sioux Falls, S.D., for U.S. trustee.
David O. Carter, Carlsen, Carter, Hoy & Eirinberg, P.C., Sioux Falls, S.D., for John W. and Vinnese Carter.
John Harmelink, Harmelink & Fox Law Offices, Yankton, S.D., for Dale Leon Martin.
PEDER K. ECKER, Bankruptcy Judge.
These cases are before the Court on applications for court approval of professional compensation from estate funds. The cases are presented on the United States Trustee's office's objections and the Court's duty to scrutinize fee applications independent of objections.
The United States Trustee's objections are addressed to hourly rates for travel time and inadequately itemized fee applications. The United States Trustee requests the Court to set standards as to the rate professionals may bill for their travel time.
Travel Time
Virtually all the travel time is billed at the applicants' full hourly rate. The United States Trustee's office contends that travel time should be billed at a reduced rate, unless the applicant demonstrates that legal work was performed during the travel time.
The Bankruptcy Code provision dealing with compensation of attorneys is 11 U.S.C. § 330(a)(1). Section 330(a)(1) provides that the bankruptcy court may award reasonable compensation for actual, necessary services rendered by an attorney based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title. See In re Powerine Oil Co., 71 B.R. 767, 770 (9th Cir.1986).
The Eighth Circuit in Mann v. McCombs (In re McCombs), 751 F.2d 286, 288 (1984), stated the following:
Section 330 is meant to encourage high standards of professional legal practice in the bankruptcy courts. Bankruptcy courts are no longer bound by pre-code notions of frugality and economy in fixing fees. Bankruptcy courts must consider whether the fee awards are commensurate with fees for professional services in nonbankruptcy cases, thus providing sufficient economic incentive to practice in the bankruptcy courts. *172 See In re Atlas Automation, Inc., 27 B.R. 820, 822 (E.D. Mich. 1983); see also In re Hanson, No. 386-00136, Ch. 12, at 2 (Bankr.D.S.D. Mar. 8, 1989). The award of fees is within the discretion of the bankruptcy court. McCombs, 751 F.2d at 287.
The factors utilized for consideration of attorney awards are found in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974), and made applicable in the bankruptcy context by In re First Colonial Corp. of America, 544 F.2d 1291 (5th Cir.1977), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). The twelve factors considered in Johnson are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the clients or other circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. The Johnson factors were approved by the Court of Appeals for the Eighth Circuit in Cleverly v. Western Electric Co., 594 F.2d 638, 642 (8th Cir. 1979), and by this district for bankruptcy cases in In re Doyle-Lunstra Sales Corp., 19 B.R. 1003 (D.S.D.1982). Also, while preserving the bankruptcy estate is no longer the primary concern in awarding professional fees, this Court has held that economy should be retained as a relevant factor. Hanson, No. 386-00136 at 2; see In re Henning, 55 B.R. 682 (Bakr.D.S.D.1985) (Henning II). I determined that a balance must be struck between preserving the estate for creditors and "the need to be generous enough to encourage lawyers and others to render the necessary and exacting services that bankruptcy cases often require." Henning II, 55 B.R. at 684, citing In re Yale Express System, Inc., 366 F.Supp. 1376, 1381 (S.D.N.Y.1973); see Hanson, No. 386-00136 at 2.
The burden of persuasion remains at all times with the applicant to show the reasonableness of the compensation or reimbursement sought. In re Tri-County Water Ass'n, Inc., 91 B.R. 547, 548 (Bankr. D.S.D.1988). The burden of production shifts to the objector only after the applicant has presented a prima facie case. In re Ralph Marcantoni & Sons, Inc., 62 B.R. 245, 247 (Bankr.D.Md.1986).
The court has the independent authority and responsibility to determine the reasonableness of all requests for payments of attorneys' fees. See In re Pettibone Corp., 74 B.R. 293, 299-300 (Bankr.N. D.Ill.1987). This responsibility exists whether or not any objections or requests for hearing have been filed with regard to a particular fee application. Id. The court may rely upon its own knowledge of customary rates and its own experience in determining the reasonableness and necessity of fees without the need for independent evidence. In re Golf Consol Services, Inc., 91 B.R. 414, 415 (Bankr.S.D.Tex.1988).
As the United States Trustee's brief points out, the published cases vary widely in the compensation allowed for reasonable and necessary travel time. These various courts have varied from no compensation, Jungkurth v. Eastern Financial Services, Inc., 87 B.R. 333, 337 (E.D.Pa.1988); In re Seneca Oil Co., 65 B.R. 902, 909 (Bankr.W. D.Okla.1986), to one-half the attorney's hourly rate, In re S.T.N. Enterprises, Inc., 70 B.R. 823, 837 (Bankr.D.Vt.1987); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D. Iowa 1988); In re Taylor, 66 B.R. 390, 397 (Bankr.W.D.Pa.1986), to 75% of the attorney's hourly rate, In re C & J Oil Co., Inc., 81 B.R. 398, 404 (Bankr.W.D.Va.1987), to the attorney's full hourly rate, In re Frontier Airlines, Inc., 74 B.R. 973, 977 (Bankr. D.Colo.1987). At least two courts have recognized the flat hourly rate for travel. In re Sinor, 87 B.R. 620, 624 (Bankr.E.D. Cal.1988) ($50.00 per hour for travel); In re Amatex Corp., 70 B.R. 624, 627 (Bankr.E. D.Pa.1985) ($40.00 per hour for travel). The court in Frontier Airlines, however, *173 stated the following in regard to compensation for travel time:
As to travel time, the question is not whether the time spent traveling was nonproductive, but rather whether the travel time was reasonable and necessary. If the trip was necessary, then the time spent in making the trip was part of the total time necessary for the performance of the professional services which were rendered.
Frontier Airlines, 74 B.R. at 979.
Judge Hoyt, in Hanson, stated the following with regard to compensation for travel time:
In the District of South Dakota, the geographic locations of the court points does [sic] not always coincide with the attorney's residence, and the concession must be made that substantial travel time is often necessary. Also, because a limited number of attorneys in our district practice bankruptcy law, the debtor's ability to hire qualified counsel would be unduly chilled if travel was not fully compensable.
Hanson, No. 386-00136 at 3. This Court is in agreement with Judge Hoyt's reasoning in Hanson and, therefore, will find that the applicants should be compensated for their travel time at their full hourly rate if, indeed, their travel time was reasonable and necessary. This Court will also find that the applicants' travel time was both reasonable and necessary.
This result is proper because frugality is no longer the main objective and full compensation is generally available for travel in cases "other than in a case under" title 11. Hanson, No. 386-00136 at 3; see 11 U.S.C. § 330(a); see also McCombs, 751 F.2d at 288. On the other hand, trimming fees in cases where they become too large a percentage of the total fees applied for will help maintain the balance this Court spoke of in Henning II. Henning II, 55 B.R. at 684; see Hanson, No. 386-00136 at 4.
This holding requires that professionals seeking compensation from the estate prorate travel time and expenses between bankruptcy cases on which they are working. See Hanson, No. 386-00136 at 4. Out-of-town counsel appearances must be scheduled for the same date on as many of their files as practical. Id. Also, when traveling, attorneys are encouraged to work on their bankruptcy cases when practical. Id. Legal services need not be rendered on the file on which the attorney is traveling. Id. Work performed on one file when traveling on another file may be prorated between the cases. Id.
It must be borne in mind that travel is not always necessary within the meaning of Section 330. Id. Of course, travel can be unnecessary for many reasons. Id. This Court spoke of one such type of junket when it held that an attorney located far from the "situs of the bankruptcy" could not expect compensation for travel when "adequate local representation" is available. In re Henning, 52 B.R. 350, 352 (Bankr.D.S.D.1985), quoting In re Interstate United Electronics Sales Co., 44 B.R. 784 (Bankr.S.D.Fla.1984); see Hanson, No. 386-00136 at 4. The Hennings hired Chicago counsel. Hanson, No. 386-00136 at 4.
Attorneys should make every attempt to keep travel expenses at a minimum. Id. Such things as encouraging client meetings in their office rather than traveling to an outsite, having documents delivered by paraprofessionals or office staff when personal delivery is necessary, and more use of teleconferencing are just a few examples that come to mind. Id. Also, attorneys should not expect full compensation for a task that requires little or no legal expertise. See Doyle-Lunstra, 19 B.R. at 1007; see also Hanson, No. 386-00136 at 2, n. 3.
The point at which the attorney's travel time fees become too large a portion of the total fees applied for must be determined on a case-by-case basis. Hanson, No. 386-00136 at 4; see In re Hogg, 103 B.R. 207 (Bankr.D.S.D.1988) (where 50.6 hours of travel time amounted to over one-fifth of the entire amount of fees applied for, fees attributed to travel time were cut by one-half); In re Larry Eugene Hanson, No. 485-00388 *174 (Bankr.D.S.D. July 28, 1986) (fees reduced for travel time amounted to approximately one-fourth of the entire application). In this case, the applicants' travel time fees were not too large a portion of the total fees applied for and, therefore, the fees for travel time requested by the applicants are approved.
Sufficiency of the Fee Application
Bankruptcy Rule 2016 provides in pertinent part:
"An entity seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested."
Many courts have grappled with the question of what constitutes a sufficiently "detailed fee statement" as required by Bankruptcy Rule 2016. Some courts have set forth very precise requirements. In In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bankr.D.Vt.1987), the court required meticulous, contemporaneous records for all compensation and reimbursement sought. The court stated each application must include a specific analysis of each task with time separately allotted to each task. Id. at 832. Counsel was advised to submit a self-contained fee application wherein the relationship of each task to the case was explained and the time expended and the amount charged were clearly set forth. Id. at 832-45.
Similar requirements were imposed by the court in In re Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988). The court in Pothoven stated the following:
At a minimum, every application for attorney fees must include a specific analysis of each task for which compensation is sought. The application should list and describe the activity, the date it was performed, the attorney or professional who performed the work, the time spent on the work and the individual's hourly rate.
Id. at 584.
Other courts, though in less lengthy discourses, have adopted the same fundamental requirements. "Counsel must make a reasonable effort to submit meaningful billing records from which . . . this court, as well as other interested parties, can make an informed evaluation of the nature, reasonableness and value of the services which have been provided." In re Frontier Airlines, Inc., 74 B.R. 973, 977 (Bankr. D.Colo.1987). The nature and substance of each item of service should be set forth. Doyle-Lunstra, 19 B.R. at 1006.
The United States Trustee's objections contend that Mr. Carter has not sufficiently documented all entries such that the Court can determine pursuant to 11 U.S.C. § 330(a)(1) whether reasonable compensation is sought for only actual, necessary services. Specifically, services on October 8 and 15 and December 14 of 1987, and February 10, 11, 22, and 23, March 1, 2, 3, 9, 15, 18, and 29, April 22 and 26, May 2 and 12, June 10, August 1, and September 1 of 1988 are not clearly identified nor is their relationship to this bankruptcy proceeding set forth.
The United States Trustee has asked the Court to enter an order requiring applicant to amend his application in recognition of the above objections and that applicant be awarded reasonable compensation for only those services he has shown to be actual, necessary services.
After reviewing Mr. Carter's fee application, the United States Trustee's objections to Mr. Carter's fee application, and Mr. Carter's response to the United States Trustee's objections, this Court will find that Mr. Carter has adequately explained and identified the insufficiently documented services, objected to by the United States Trustee, and their relationship to this bankruptcy proceeding. Therefore, the fee application of David Carter is approved. In regard to future fee applications submitted to this Court, we suggest to Mr. Carter that he should be more specific and use more detail when documenting *175 the entries in his billing statements. We think this would alleviate the problem he has run into with this fee application.
Paraprofessional Billing
If paralegal work is to be compensable, the qualifications of the assistant should be established to justify the charge. Hanson, No. 386-00136 at 5. While legal secretaries acquire vast knowledge of the subject matter and are certainly an integral part of any law office, their service is considered one of the many items that make up the cost of office overhead which in turn is reflected in the hourly rate charged by the attorney. Id. Simply classifying a secretary as a paralegal for billing purposes does not justify compensating secretary time. Id.
The United States Trustee's objections contend that Mr. Harmelink has failed to sufficiently identify two persons, "PCL" and "TS," for whom professional compensation for their services is sought. They argue that the Court and parties in interest are unable to determine whether "PCL" and "TS" are attorneys, paralegals, or other professionals who may receive reasonable compensation for professional services under 11 U.S.C. § 330(a)(1). Also, the United States Trustee's office contends that Mr. Harmelink has failed to sufficiently itemize some time spent in travel since it was lumped with other legal services rendered on the same day.
Again, there seems to be a problem of insufficient detail with an applicant's billing records. Here the problem is the insufficient identification of the paralegal performing legal services for Mr. Harmelink. After reviewing Mr. Harmelink's fee application, the United States Trustee's objections to Mr. Harmelink's fee application, Mr. Harmelink's response to the United States Trustee's objections, and a letter submitted to the United States Trustee's office, identifying the persons performing the paralegal work for Mr. Harmelink, the Court will find that Mr. Harmelink has adequately identified the persons performing the paralegal services for him. Also, the services performed by the persons identified as "TS" and "PCL" are of paralegal nature; this satisfies the requirement as to the assistant being qualified as a paralegal. This Court finds that the rest of Mr. Harmelink's application for fees is sufficiently detailed. Therefore, Mr. Harmelink's fee application is approved.
With the opening of the United States Trustee's office in Sioux Falls, the machinery is now in place to scrutinize compensation applications. Hanson, No. 386-00136 at 7. No longer is court approval of fees and expenses requested such a foregone conclusion. Id. When constructing an application, the professionals must bear in mind that it is his or her burden to show that court approval is warranted. In re Tri-County Water Ass'n, Inc., 91 B.R. 547 (Bankr.D.S.D.1988). Insufficiently documented expense and fee entries will be disallowed. See Henning II, 55 B.R. at 685; see Hanson, No. 386-00136 at 7. In other words, those professionals seeking court approval of fee and expense applications have a strong incentive to establish the propriety of their applications by adequate itemization. Hanson, No. 386-00136 at 7.
This decision constitutes the Court's Findings of Fact and Conclusions of Law in the above-entitled matter pursuant to Bankr.R.P. 7052 and 9014 and Fed.R.Civ.P. 52. The fee applicants in this case, Mr. Carter and Mr. Harmelink, are directed to submit proposed orders consistent with the Court's Findings of Fact and Conclusions *176 of Law and in accordance with Bankr.R.P. 9021, to the Clerk of this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918449/ | 101 B.R. 383 (1989)
In re MIAMI OPTICAL EXPORT, INC., Debtor.
Bankruptcy No. 88-03710-BKC-TCB.
United States Bankruptcy Court, S.D. Florida.
May 31, 1989.
*384 Phillips and Phillips, P.A., Miami, Fla., for debtor-in-possession.
Tew Jorden Schulte & Beasley, Miami, Fla., for Official Committee of Unsecured Creditors.
David Braverman Associates, Inc., Ft. Lauderdale, Fla., for debtor-in-possession.
ORDER ON FEE APPLICATIONS
THOMAS C. BRITTON, Chief Judge.
The debtor's amended plan (CP 43), as subsequently amended further on May 2, 1989 (CP 52) and May 11 (CP 57), was confirmed on May 17 (CP 59), upon the recommendation of the U.S. Trustee. At the confirmation hearing, held May 15, all fee applications were also heard. This Order addresses those applications.
The presently filed fee applications (CP 45, 47, 49, 58) total $22,204, none of which has been opposed. The absence of objections is not evidence of value and affects in no way the court's duty to examine carefully all bankruptcy fee applications to prevent excessive charges. York Intern. Building, Inc. v. Chaney, 527 F.2d 1061, 1068 (9th Cir.1975); Matter of Nor-Les Sales, Inc., 32 B.R. 900, 902 (Bankr.E.D. Mich.1983) (collecting some of the precedent on this point).
The Lodestar
Since Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), judicial review of fee applications focuses on the lodestar: the product of the hours reasonably expended times a reasonable hourly rate, adjusted for the results obtained. Our Circuit, in Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1298-1304 (11th Cir.1988), has recently illuminated this process.
Debtor's Counsel
The debtor's attorney has applied for fees of $14,387 for 67.25 hours spent plus an estimated 15 additional hours, at an hourly rate of $175, less a $7,500 retainer, and expenses or $536.60. (CP 49).[1] The services were provided over a seven-month period, August 23, 1988 to March 28, 1989.
Like the other two fee applicants, this is a fully qualified applicant, who did successfully what he was employed to do. This *385 attorney, with over 40 years' experience as a bankruptcy specialist, is exceptionally qualified.
I accept as reasonable his hourly rate and I accept the reasonableness of the time he has spent, but he has provided no basis for his estimate of 15 additional hours. In this very small case, he should be able to make a first distribution (substantial consummation) and submit a motion for a final decree terminating this case in half that time. His fee is approved, therefore, in the amount of $13,081.25.
He is also entitled to reimbursement for his expenses to date of $536.60 plus an additional $36.60 for mailing the creditors' first distribution with which he may enclose his final report and motion for a final decree.
He has received a prepetition retainer of $7,500 and a cost deposit of $2,500, both of which must be credited against the foregoing sums, leaving a balance payable to this applicant of $3,654.45.
Debtor's Accountant
The retention in this case of the debtor's prepetition accountants was authorized as of September 16, 1988. (CP 23). They seek $3,680 for 75.5 hours at an average hourly rate of $48.74 spent over a six-month period, September 16, 1988 to March 16, 1989. (CP 47). The application is approved.
Attorneys for Creditors' Committee
The timely application (CP 45) of the attorneys for the creditors' committee sought $3,600, including estimates for costs and future services. A supplemental application (CP 58) reduced the estimates. This applicant now requests $3,241.50 in fees for a total of 17.7 hours at an average hourly rate of $183.14 spent during the months between February 15, 1989 and April 28, 1989.
I accept the reasonableness of the time spent, but see no reason why this debtor's estate should pay more than the $175 hourly rate which enabled the debtor to retain the most experienced bankruptcy specialist in this district, which I find to be the appropriate lodestar for these services.
The applicant has also requested reimbursement for $243.58 expenses. I disagree with respect to $79.80 charged for "photocopy, in house" and "postage", which I have considered overhead in approving an average hourly charge of $175. This application is, therefore, approved in the total amount of $3,261.28.
Clerk's Fees
The Clerk's mandatory fees (CP 55) of $84.25 are approved and shall be paid as an administrative charge.
U.S. Trustee's Costs and Charges
As specified in the confirmed plan (CP 43, ¶ 1.01): "all costs and charges due U.S. Trustee and other claims arising after the commencement of the Chapter 11 proceedings" are also administrative claims approved by this court.
Payment of Foregoing Administrative Expenses
All administrative expenses, as approved by this Order, except the sums payable to the debtor's counsel, shall be paid "in full cash" if and when the confirmation order of May 17, 1989 (CP 59) "becomes final and non-appealable, provided that no stay of the confirmation order is then in effect." (CP 43, ¶ 1.01 and ¶ 8.05).
Because 11 U.S.C. § 1129(a)(9)(A) requires such payment "on the effective date of the plan" (which I have just construed in accordance with ¶ 6.01 of the confirmed plan) "except to the extent that the holder of a particular claim has agreed to a different treatment of such claim" (§ 1129(a)), and because debtor's counsel as disbursing agent has reported that only $180.55 (payable to Uvex Winter Optical, Inc.) is enough to satisfy the preconfirmation deposit required by this court under B.R. 3020(a) "of the consideration required by the plan to be distributed on confirmation", I presume this completely inadequate deposit results in part at least from the *386 agreement of debtor's counsel to accept delayed payment.
His payment shall therefore be deferred until such time and in such amounts as will not result in debtor's default in the payment of all other administrative expenses and all other sums to be distributed on confirmation, which I construe to be the date the confirmation order becomes final and unappealable.
DONE and ORDERED.
NOTES
[1] I do not overlook the fact that this application was filed after the March 20 deadline set by this court's Order. (CP 38). The deadline was extended for this applicant, (CP 42), and the application was timely. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918342/ | 764 A.2d 449 (2001)
336 N.J. Super. 172
Kyron McCOY, Plaintiff-Appellant,
v.
Thomas J. McCOY, Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Submitted November 15, 2000.
Decided January 5, 2001.
*450 John J. D'Anton, Ridgefield, attorney for appellant.
William J. Roca, Clifton, attorney for respondent.
Before Judges BAIME, CARCHMAN and LINTNER.
The opinion of the court was delivered by LINTNER, J.A.D.
Plaintiff, Kyron Henn-Lee, formerly Kyron McCoy, appeals an order of the Chancery Division, Family Part, denying her motion for permission to permanently move her daughter, Katherine Erin McCoy, from New Jersey to California. Plaintiff maintains that the Family Part judge erred in his application of the law to the facts established by the record. Defendant, Thomas McCoy, counters that the judge's conclusions that (1) plaintiff did not show a good faith reason for the move, and (2) the move would interfere with the best interest of the child, were supported by the factual record. We reverse and remand for further proceedings.
Plaintiff and defendant were married on April 12, 1991. Katherine was born on November 22, 1991. The infant suffered a stroke before she was born, which left her neurologically impaired. As a result, she is hemiplegic and wears a brace on her right leg, which is connected to her foot to help her walk. She has very little use of her right hand, for which she is given physical therapy. She also suffers from visual impairment and a seizure disorder, which has been treated with a fair amount of success with medication.
*451 The couple was divorced in June 1994. Pursuant to a property settlement agreement, they have joint custody of Katherine, with plaintiff having physical custody. Defendant's visitation consists of one evening per week, two weeks in the summer (which he carries out by the use of extended weekends), and alternating weekends and holidays. Defendant has exercised his visitation regularly, and enjoys a very close relationship with Katherine.
Both parties remarried in 1997. Defendant lives with his current wife, Lydia, who is employed as a first grade teacher in the Ridgewood Public School System and enjoys a good relationship with Katherine. Katherine has a close relationship with defendant's mother, as well as Lydia's parents. Lydia's mother gives Katherine piano lessons on a weekly basis which, considering Katherine's disabilities, is a tremendous accomplishment. At the time of the hearing, defendant was employed at Patent IKG in Paramus, where he has worked for five years and earns a salary of $30,000 per year, along with health benefits, including medical, prescription drug and vision coverage for himself, his present wife and Katherine.
Plaintiff is currently separated from her husband, Mr. Lee, and intends to file for divorce. In 1998, she began working as a freelance graphics designer performing administrative consultation on web sites. She earned a total of $47,000 of which $26,000 was paid by one company, Online Imaginations (Online), the balance coming from freelance work for other companies. She did not receive any medical benefits. In August 1998, plaintiff received a job offer from Online in California, which consisted of a salary of $45,000, medical benefits, and the potential for stock options in the event the company went public. The offer would permit her to work at the Online office during the time that Katherine attends school and makeup the remainder of the eight-hour workday at home, enabling her to be with Katherine after school hours. Plaintiff traveled to California to investigate housing and the school district to determine whether it had facilities for Katherine's special needs. After meeting with school administrators, teachers and a behavior specialist, she learned that there was a place for Katherine at the Rossier School. Plaintiff's proposal was to reside in Brea, California, which she describes as a quiet community. She intends to rent a three-bedroom condominium unit, which has two baths and a large kitchen. There is a pool and a playground associated with the condominium complex. The Rossier School, which is equivalent to the school currently attended by Katherine, is located in Garden Grove California, approximately ten to fifteen minutes away. Plaintiff testified that she has one or two good friends in California who could provide the same support for her in caring for Katherine, similar to her existing situation in New Jersey.
Currently, plaintiff has a dating relationship with Philip Aranbula, who lives in California and is also involved in an internet business. She testified that accepting the job in California would afford her advantages that would include a stable salary, medical benefits for herself and Katherine, and a more conducive climate for Katherine who has a history of asthma. She also indicated that she would not have to travel as much in California and would work fewer hours than she currently does as a freelance consultant, thus freeing up more time to spend with Katherine.
Plaintiff proposed the following visitation schedule for defendant: (1) two weeks between June and July coinciding with Katherine's two week break between the end of the school year and the beginning of a special session in July; (2) the entire month of August; (3) the school break periods occurring between Christmas and New Years, in February and April, totaling three weeks. According to plaintiff, this would afford defendant the same total time (66 days) that he currently enjoys. In addition, plaintiff proposed building a *452 web site, which would include the use of camera-computer technology to give defendant, his family and friends, the ability to communicate directly with Katherine on a daily basis and review her school work and records. Defendant would be afforded daily face-to-face communication with Katherine, albeit through an electronic medium.
Defendant testified that he felt it would hurt his relationship with Katherine if she was away from him for long periods of time. Both parties confirmed that Katherine's relationship with her grandparents is wonderful. Defendant and his wife maintain that it would be in Katherine's best interest to remain in New Jersey, given the love she receives from her extended family and the environment in which she is doing so well. Lydia also confirmed the close loving relationship Katherine has with plaintiff. She testified that, although at times she finds herself in a mothering position, she recognizes that she is not Katherine's birth mother. She does not believe that Katherine should be removed from her mother.
Defendant contends that the evidence, which demonstrates the significant support Katherine receives, justifies the trial judge's conclusion that a move to California would be adverse to Katherine's best interest.
In Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988), the Supreme Court modified the two-prong analysis previously established in Cooper v. Cooper, 99 N.J. 42, 56, 491 A.2d 606 (1984). It replaced the first prong which required that a custodial parent show a real advantage to the move, with the proviso that any good faith reason to move will suffice. The Court, however, retained the second prong which required that the move would be permitted only if it did not interfere with the best interest of the child or substantially change the visitation rights of the noncustodial parent. Levine v. Bacon, 152 N.J. 436, 439-40, 705 A.2d 1204 (1998). The elimination of the need to show a real advantage was based upon the realization of the disparate treatment of custodial and noncustodial parents. Holder, supra, 111 N.J. at 349, 544 A.2d 852. The Court observed that an award of custody unfairly inhibits the custodial parent from moving elsewhere, while giving the noncustodial parent the freedom to move about the country without restriction. Ibid. Thus, a trial judge's first inquiry is the motivation for the move. Any sincere good-faith reason for the move is sufficient. Id. at 353, 544 A.2d 852. In order to reach a determination that there is an absence of good faith on the part of the custodial parent, there necessarily must be a finding that the motivation behind the move is inspired by something other than good faith. For example, as stated in Holder, "[i]f the court should find that the purpose of the move is to thwart the noncustodial parent's visitation rights, that obviously will not satisfy the test." Ibid.
The trial judge's determination that plaintiff did not have a sincere good faith reason for moving to California, was not born out by the record. In finding that plaintiff failed to establish a sincere good faith reason for the move, the judge erred in his application of the standard established by Holder. Considering plaintiff's testimony concerning the need for a more stable salary, the judge found that there "might be a slight improvement, but I don't see a substantial benefit here." He went on to say:
She made no job search in New Jersey to find better employment, better terms of work.... It would seem to me that's also part of her duty of good faith, to show that the offer ... could not be duplicated here in New Jersey, and that she couldn't find full time employment in this area ... which would be comparable to the employment offer to her in California. That's another factor that reflects upon the good faith, sincere issue on behalf of the plaintiff.
The above findings make it clear that the judge based his determination of the absence *453 of good faith, in part, on the fact that the advantage plaintiff would gain in accepting a full time job with a stable salary represented only a "slight improvement." His finding that plaintiff failed to seek like employment in the metropolitan area likewise was tantamount to the application of the Cooper standard, which was specifically modified by Holder.
Plaintiff need not show an advantage, any good faith reason will suffice. Here, there was no testimony to contradict plaintiff's assertion that her reasons were based upon her desire to have the stability of a direct employee rather than to rely on the less secure status of an independent contractor consultant. The evidence reveals that the parties equally respect each other's close and loving relationship with Katherine. We are satisfied that plaintiff established a good faith reason to move to California. Although defendant contends that the move will adversely affect his visitation, he does not argue that the move is motivated by a desire to adversely affect defendant's visitation rights.
The judge also confused the inquiry concerning lack of any good faith reason with the second prong, requiring a determination of whether the move is inimical to the best interest of the child. In reaching his decision that good faith was not shown, he said:
It would seem to me that with a special needs child, any move from New Jersey to California may present some problems. It raises a red flag. She did not consult with [any] experts before coming to court with her application.
He went on to conclude:
Now that extended family will not be available in California to assist her. The cases that I read, or several of the cases involving relocation, specifically talk about extended family. In many of the cases, a mother is seeking to relocate to be with, or in close proximity, to extended family. That's not the case here. Here, plaintiff is seeking to remove the child from the child's extended family. That's a major factor here on the issue of good faith and sincerity.
Defendant's argument that the judge appropriately considered the prospective advantages of plaintiff's move as bearing on the issue of absence of good faith, because the move would require a substantial change in his visitation schedule, is misplaced. In Holder, supra, 111 N.J. at 353, 544 A.2d 852, the Court stressed that, where there is a substantial change in the visitation schedule, the prospective advantage of the move, the integrity of the party's motives, and the development of a reasonable visitation schedule are factors that should be considered in the determination of the second prong, whether the child will suffer from the move. The Court emphasized: "[m]otives are relevant, but if the custodial parent is acting in good faith and not to frustrate the noncustodial parent's visitation rights, that should suffice." Ibid. In our modern mobile society it may be possible to honor a visitation schedule and still recognize a custodial parent's right to move. In deciding between the two "the beacon remains the best interests of the children." Id. at 354, 544 A.2d 852.
Having determined that plaintiff did establish a good faith reason for her move, we next examine the trial judge's conclusions that the move would be contrary to the best interest of Katherine. The judge concluded that there was insufficient proof by plaintiff that her suggested visitation, which included daily internet communication, would be a comparable substitute for in-person weekly contact and communication with Katherine. He found:
I'm satisfied here that the defendant has been an active parent, actively engaged in the child's education, activities and day-to-day functions. That will not take place if the move to California is allowed.
So I find, number one, that plaintiff has not established her burden; and, number two, the evidence here does establish *454 that the essential relationship between father and daughter will be substantially altered in the event the plaintiff moves to California, and that will result in factors which are inimical to the best interests of the child. It will also adversely affect the parenting rights of the non-custodial parent.
Once a divorce occurs, the relationship a child has with both parents is irrevocably changed. D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 205-06, 365 A.2d 27 (Ch.Div.), aff'd, 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976). A child becomes more emotionally dependent on the custodial parent and, therefore, the best interest of the child requires taking into account the best interest of the custodial parent. Likewise, there is a strong interest in preserving and fostering the child's relationship with the noncustodial parent. Cooper, supra, 99 N.J. at 54-55, 491 A.2d 606. What is in the best interest of the child is a difficult issue which is fact sensitive, no two cases are alike. Id. at 58, 491 A.2d 606. As such, once there is a finding of good faith, the judge is required to balance the evidence presented by the parties bearing upon both the adverse and the positive effects on a child, as they relate to the custodial parent's right to move and the noncustodial parent's rights to visitation.
Every time a custodial parent moves to a distant location, the ability of the noncustodial parent to exercise visitation rights is adversely affected. Winer v. Winer, 241 N.J.Super. 510, 520-21, 575 A.2d 518 (App.Div.1990). However, that fact alone may not be contrary to the best interest of the child, so long as an alternate visitation schedule can be created that continues and preserves the relationship between the child and the noncustodial parent. Balancing the effects on a child with the rights of the parents, the judge should require alternative visitation schedules from both parties and suggest other possible schedules in an attempt to minimize the adverse effect that the move will have on the visitation rights of the noncustodial parent. Levine, supra, 152 N.J. at 441, 705 A.2d 1204.
Here, the judge merely stated the obvious conclusions that defendant's relationship will be substantially altered by the move, without exploring whether different visitation plans could be devised to accommodate and preserve the relationship the child has with her father and her extended family. In weighing the evidence, the judge failed to consider and make findings concerning the relationship that Katherine has with her mother and whether the evidence showed that the move would result in improvements in housing and schooling. The judge should have determined whether Katherine would benefit from the move by making findings of fact concerning plaintiff's testimony respecting her added job stability and the increased time she would have available to be with Katherine.
We believe that plaintiff's suggested use of the Internet to enhance visitation was both creative and innovative. Dismissing the suggested use of the Internet, the judge never focused on the actual alternate visitation schedule proposed by plaintiff and whether it was comparable to defendant's current schedule or inimical to the best interest of Katherine. We conclude that the judge failed to adequately consider alternative visitation plans. In reaching a determination, if the judge finds the actual visitation schedule offered by plaintiff is not sufficient, submission of alternative visitation schedules should be required in an attempt to arrive at a solution that assures the continued development of Katherine's relationship with defendant and recognizes plaintiff's right to move.
The evidence reveals that both parties are equally devoted to Katherine and have developed a close relationship despite having gone their separate ways. Their positive attitudes toward Katherine should not inhibit plaintiff's right to relocate, but instead be utilized by the judge as a foundation to support the move and, at the *455 same time, benefit Katherine. We, therefore, reverse and remand to require (1) further proof concerning alternative visitation schedules and (2) findings of fact, after weighing all the evidence, as to whether the proposed move is inimical to the best interest of Katherine.
Reversed and remanded for further proceedings consistent with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918356/ | 764 A.2d 659 (2000)
SHAWNEE DEVELOPMENT, INC., Petitioner,
v.
COMMONWEALTH of Pennsylvania, Respondent. (Two Cases)
Commonwealth Court of Pennsylvania.
Argued December 7, 1999.
Decided December 18, 2000.
As Amended December 19, 2000.
Philip E. Cook, Jr., Pittsburgh, for petitioner.
Christopher M. Kazmaier, Harrisburg, for respondent.
Before SMITH, Judge, FLAHERTY, Judge and NARICK, Senior Judge.
*660 FLAHERTY, Judge.
These matters are on Petitions for Review of two Orders of the Board of Finance and Revenue (the Board). The Board affirmed the Department of Revenue's (Department) recalculation of the Capital Stock Tax (Tax) liability of Shawnee Development, Inc., (Petitioner) for fiscal years ending March 31, 1994, and March 31, 1995. The Department calculated Petitioner's Tax liability to include certain debt forgiveness. We reverse.
Petitioner, a Pennsylvania corporation, is engaged in the business of selling and developing real property in this Commonwealth. Petitioner defaulted on its obligations to financial institutions as a result of a depression in the real estate market. Petitioner then began a debt restructuring process which resulted in the settlement of its debt obligations at a discount. In other words, Petitioner's debts, totaling Thirty-eight million, thirty-eight thousand five hundred ninety-five dollars ($38,038,595.00) over a four-year period, from April 1, 1991, to March 31, 1995, were forgiven. Pursuant to a joint Stipulation of Facts, the forgiven debt was not considered as income for the purposes of either federal income taxation or for Pennsylvania corporate net income taxation. Prior to the debt forgiveness, Petitioner was insolvent, and after forgiveness of the debt, Petitioner still remained insolvent. For the purpose of valuation of capital stock, Petitioner's net income and its net worth were determined to be zero for this four-year period. See Section 601(a) of the Tax Reform Code of 1971 (Act), Act of March 4, 1971, P.L. 6, No. 2, as amended, 72 P.S. § 7601(a), and Sections 155.26 and 155.27 of the Department Regulations (Regulations), 61 Pa.Code §§ 155.26 and 155.27. When Petitioner filed its annual Tax Reports for the years 1991 to 1995, it excluded this forgiveness of indebtedness from the calculation of its book income. With respect to the fiscal year ending March 31, 1995, the Department recalculated the value of Petitioner's Capital Stock from Zero to Five million four hundred twenty-eight thousand six hundred thirty-five dollars ($5,428,635.00).[1] This recalculation resulted in an increased tax liability from the minimum Three hundred dollar ($300.00) figure to Sixty-nine thousand two hundred fifteen dollars ($69,215.00).[2] From the Department's determinations, Petitioner filed an appeal to the Board of Appeals which affirmed. The Board also affirmed, and this appeal followed.
One of the issues before us is whether the Act and the accompanying Regulations of the Department require the inclusion of cancellation of indebtedness in income per book for the purpose of determining the Tax liability of a taxpayer who is insolvent both before and after the forgiveness of indebtedness. Petitioner also challenges the constitutionality of the Act on due process and equal protection grounds under both the United States and the Pennsylvania Constitutions. It also contends that the Act violates the Uniformity Clause of the Pennsylvania Constitution and requests attorneys' fees as a result of the alleged constitutional violations.[3]
Section 601(a) of the Act defines "Average net income", one of the components used in the valuation of capital stock for tax purposes, in pertinent part, as follows:
*661 `Average net income.' The sum of the net income or loss for each of the current and immediately preceding four years, divided by five.... The net income or loss of the entity for any taxable year shall be the amount set forth as income per books on the income tax return filed by the entity with the Federal Government for such taxable year....
72 P.S. § 7601(a). (Emphases supplied). See also Section 155.26(a), (b) of the Regulations, 61 Pa.Code § 155.26(a), (b). Section 601(a) also defines "Net worth", another component used in the valuation of capital stock for tax purposes, in relevant part, as follows:
`Net worth.'
(1) Net worth shall be the sum of the entity's issued and outstanding capital stock, surplus and undivided profits as per books set forth for the close of such tax year on the income tax return filed by the entity with the Federal Government....
72 P.S. § 7601(a). (Emphases supplied). See also Section 155.27(a) of the Regulations, 61 Pa.Code § 155.27(a). Petitioner contends that the phrase "income per books" is not defined in the Act or in its accompanying Regulations. Additionally, neither the Act nor the Regulations provides for the situation of a taxpayer who is insolvent both before and after debt forgiveness as is Petitioner here.
In Tool Sales & Service v. Commonwealth of Pennsylvania Board of Finance and Revenue, 536 Pa. 10, 637 A.2d 607 (1993), our Supreme Court was called upon to interpret the phrase "income per books" as applied to "S" corporations. There, Regulation Section 155.26(g), 61 Pa.Code § 155.26(g), prohibited an adjustment to net income or loss with respect to the amount an "S" corporation would pay in Commonwealth Corporate Income and Commonwealth Personal Income taxes if it were subject to federal income taxes. The Court left open the question of the applicability of federal tax law to Commonwealth tax law. It opted, instead, for a statutory construction analysis. Section 155.22, a Regulation applicable for taxable years prior to 1984, defined "book income" as "[i]ncome ... reported in Line 1 of Schedule M-1 of the Federal 1120 form". 61 Pa.Code § 155.22. This Regulation had allowed the adjustment. The Court concluded that the term "income per books", as defined by Section 155.22, had not acquired a "peculiar and appropriate meaning" which must be applied despite the existence of the new Regulation which prohibited any adjustment to net income or loss for federal income, Corporate Net Income or Commonwealth Personal Income taxation. See Section 1903 of the Statutory Construction Act of 1972(SCA), 1 Pa.C.S. § 1903. The Court did determine, however, that the term "income per books", as set forth in Section 601 of the Act, was ambiguous. After rejecting several other Canons of statutory construction, the Supreme Court concluded that Section 1921(a)(8) of the SCA governed in the interpretation of the phrase "income per books". This section allows for the consideration of "[l]egislative and administrative interpretations of such statute" when the statutory language is deemed to be ambiguous. 1 Pa.C.S. § 1921(c)(8). The Court held that the "Department of Revenue Regulations interpreting the Tax Reform Code will not be disregarded by this court unless clearly inconsistent with the code...." 536 Pa. at 22, 637 A.2d at 613, (quoting SmithKline v. Beckman Corp. v. Commonwealth, 85 Pa.Cmwlth. 437, 482 A.2d 1344, 1353 (1984)). The Supreme Court then concluded that Tool Sales had failed in its burden of proving that the term "income per books", as defined in Regulation Section 155.22, had acquired such a peculiar and appropriate meaning so as to override the language of Regulation Section 155.26(g). It also held that Tool Sales had failed to demonstrate that Regulation Section 155.26(g) was clearly erroneous in that it conflicted with *662 the law which it was promulgated to enforce, i.e., Section 601 of the Act.
Tool Sales is inapplicable, however, because no statute or regulation specifically addresses the matter here before us of an insolvent, debt-forgiven taxpayer who is subject to the Tax.[4] The Department points to Section 155.26(h) of its Regulations, which allows "[n]o adjustment to net income or loss ... on account of nonrecurring or extraordinary items." 61 Pa.Code § 155.26(h). (Emphasis supplied). It argues that this Regulation, coupled with Regulation Section 155.22, addresses the issue at hand. Thus, the Department characterizes the concept of debt forgiveness as a nonrecurring or extraordinary item, which is not excludable from the Tax. This novel interpretation urged upon us by the Department is interesting, albeit irrelevant. Instead, we turn to Section 1903(a) of the SCA, 1 Pa.C.S. § 1903(a). This provision states, in pertinent part:
§ 1903. Words and phrases
(a) [T]echnical words and phrases and such others as have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning or definition.
We conclude that the "peculiar and appropriate meaning" which the term "income per books" has acquired is grounded in Federal income tax law. Section 61 of the Internal Revenue Code of 1954 (the I.R.C.) states, in relevant part:
§ 61. Gross Income defined.
(a) General definition. Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including... the following items:
* * *
(12) Income from discharge of indebtedness....
(b) Cross references.... For items specifically excluded from gross income, see part III (sec. 101 and following).
I.R.C. § 61. Section 108 of the I.R.C. sets forth the following relevant language:
§ 108. Income from discharge of indebtedness.
(a) Exclusion from gross income. Gross income does not include any amount which (but for this subsection) would be includible in gross income by reason of the discharge (in whole or in part) of indebtedness of the taxpayer if
* * *
(B) the discharge occurs when the taxpayer is insolvent
* * *
(3) Insolvency exclusion limited to amount of insolvency. In the case of a discharge to which paragraph (1)(B) applies, the amount excluded under paragraph (1)(B) shall not exceed the amount by which the taxpayer is insolvent.
* * *
(d) Meaning of terms; special rules relating to certain provisions.
(1) Indebtedness of taxpayer. For purposes of this section, the term `indebtedness of the taxpayer' means any indebtedness
(A) for which the taxpayer is liable, or
(B) subject to which the taxpayer holds property.
* * *
(2) Insolvent. For purposes of this section, the term `insolvent' means the excess of liabilities over the fair market value of assets. With respect to any discharge, whether or not the taxpayer is insolvent, and the amount by which the taxpayer is insolvent, shall be determined on the basis of the taxpayer's assets and *663 liabilities immediately before the discharge.
I.R.C. § 108. (Emphases supplied). Petitioner argues that even after debt forgiveness, it still remains insolvent. The Department does not question Petitioner's insolvency status, but maintains, nevertheless, that the amount of this forgiveness is subject to valuation for the purpose of assessing the Tax. We do not agree. The foregoing provisions of the I.R.C. exclude the income of a debt-forgiven, yet still insolvent, taxpayer for the purposes of federal taxation. In the absence of guidance from our own Legislature, we apply the foregoing provisions to exclude Petitioner's debt forgiveness from liability for the Tax at hand by reason of Petitioner's after-forgiveness insolvency.[5] Consequently, we reverse the Orders of the Board.[6]
ORDER
AND NOW, this 18th day of December, 2000, the Orders of the Board of Finance and Review recalculating the Capital Stock Tax liability of the Petitioner for fiscal years ending March 31, 1994, and March 31, 1995, are hereby REVERSED. Judgment for Petitioner shall be entered unless Exceptions are filed within thirty (30) days of this Order pursuant to Pa.R.A.P. 1571(i).
NOTES
[1] Petitioner also challenges the Department's recalculation for the fiscal year ending March 31, 1994, even though the Department ultimately adjusted the value of the Capital Stock to Zero with the concomitant minimum tax liability of Three hundred Dollars ($300.00).
[2] See Section 602 of the Act, as amended, 72 P.S. § 7602.
[3] In appeals from decisions of the Board, we have the broadest scope of review because the Commonwealth Court functions as a trial court, even though such cases are heard in our appellate jurisdiction. Unisys Corporation v. Commonwealth, 726 A.2d 1096 (Pa.Cmwlth.1999).
[4] Additionally, Petitioner is not an "S" Corporation.
[5] Since we have concluded that Petitioner's debt forgiveness is excluded from the Tax, Regulation Section 155.26(h) has no application in any event, since it focuses upon the matter of disallowance of an adjustment.
[6] In light of our disposition, we need not address Petitioner's constitutional or attorneys' fees claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918370/ | 764 A.2d 242 (2000)
In re Matthew J. TRAVERS, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
No. 97-BG-114.
District of Columbia Court of Appeals.
Argued January 21, 1998.
Decided December 28, 2000.
*244 Matthew J. Travers, pro se.
Ross T. Dicker, Assistant Bar Counsel, with whom Leonard H. Becker, Bar Counsel at the time the brief was filed, was on the brief, for the Office of Bar Counsel.
Elizabeth J. Branda, Executive Attorney, for the Board on Professional Responsibility.
Before WAGNER, Chief Judge, TERRY, Associate Judge, and KING, Senior Judge.[*]
TERRY, Associate Judge:
The Board on Professional Responsibility ("the Board") found that respondent Matthew J. Travers, a member of our bar, accepted an illegal fee and engaged in conduct that seriously interfered with the administration of justice. Given these findings, the Board has recommended that Mr. Travers be suspended for ninety days and that his reinstatement be conditioned on satisfaction of a $3,652.74 judgment against him. Mr. Travers contends that the record does not support a finding that he committed misconduct and that the recommended sanction is not warranted. Bar Counsel argues that there was substantial evidence that Mr. Travers engaged in misappropriation and that he should therefore be disbarred. We reject both of these arguments and adopt the recommendation of the Board.
*245 I. FACTUAL BACKGROUND
The misconduct charges against Mr. Travers arose in 1983 when he accepted attorney's fees from an estate without filing with the court a petition for such fees, as was then required by D.C.Code § 20-751 (1981).[1] That statute provided in part:
(a) Reasonable compensation for work performed by a personal representative, special administrator or attorney with respect to administration of the estate pursuant to this title may be paid upon approval by the Court of a request filed as provided in subsections (c) through (g).
* * * * *
(c) Each personal representative or special administrator shall submit a written request to the Court for compensation for services performed by such personal representative or administrator or any attorney employed by either of them. This request shall be accompanied by verified documentation of the following:
(1) the reasonable relationship of proposed compensation to the nature of the work performed;
(2) a statement by any attorney employed by the personal representative that as soon as feasible the attorney gave to the personal representative an estimate of costs and any change in costs for work to be performed with respect to administration of the estate;
(3) the reasonableness of the time spent, including the number of hours spent and the usual hourly compensation for the work performed;
(4) the results achieved; and
(5) a statement by the personal representative or special administrator that all of the time limitations imposed by the provisions of this title or by the Rules have been met....
* * * * *
(f) The Court shall consider the factors set forth in subsection (c), as well as any exception filed to the request for compensation, prior to authorizing such compensation. [Emphasis added.]
On February 20, 1982, Ruth Mills died intestate with one principal asset in her estate: a house on Fairmont Street, N.W. ("the property"). After her heirs contacted him for legal advice in September 1983, Mr. Travers successfully prevented a threatened foreclosure on the property and agreed to assist them in the administration of the estate. On October 3, 1983, Mr. Travers prepared a petition for appointment of Sylvia Mills Simmons, Ruth Mills' daughter, as personal representative of the estate and filed consent and waiver forms signed by all interested parties. The forms stated that the signers agreed and consented to: (1) the sale of the property; (2) a five percent commission from the sale of the property, to be paid to Ms. Simmons; and (3) payment to Mr. Travers for his services in the amount of ten percent of the sale proceeds, plus expenses. At the hearing before the Board's hearing committee, Mr. Travers admitted that at the time he prepared and filed the consent forms, he was "very familiar" with section 20-751 of the Code, which clearly stated that compensation for an attorney's services could not be paid from estate assets without prior court approval.
Four days later, on October 7, Ms. Simmons was appointed personal representative of the estate, and she and Mr. Travers established an estate checking account. The signatures of both Ms. Simmons and Mr. Travers were required on any check drawn on the account. On October 18, 1983, they both signed a check for $3,000, drawn on the estate account, payable to *246 Mr. Travers and intended as a retainer for his legal services. Neither Ms. Simmons nor Mr. Travers obtained court approval for this payment. After the property was sold for $36,000 on May 2, 1985, Ms. Simmons and Mr. Travers drew a second check on the estate account payable to Travers, this time in the amount of $652.74. Once again, neither Ms. Simmons nor Mr. Travers filed the appropriate petition with the court before signing the check.
Mr. Travers filed a statement of account for the estate on December 4, 1986. Because Ms. Simmons had failed to complete the requirements for the final accounting of the estate, she was removed as personal representative on May 12, 1988. Werner Strupp was appointed as her successor, and on November 17, 1988, he filed a motion to refer the matter to the court's auditor-master for an accounting of Ms. Simmons' administration of the estate. The auditor-master found in her report that Mr. Travers had been paid legal fees in the amount of $3,652.74 from the estate without prior court approval and recommended that judgment be entered against him and Ms. Simmons if that amount were not forwarded to the estate within ten days. Mr. Travers filed exceptions to the auditor-master's report, but after a hearing the probate court ratified the report and entered judgment against Mr. Travers. This court affirmed that decision in an unpublished Memorandum Opinion and Judgment. Travers v. Strupp, No. 91-PR-1427 (D.C. April 16, 1993).[2] We specifically held that since Mr. Travers had been retained to assist in the administration of the estate, he was subject to the requirements of D.C.Code § 20-751. "Because the property was an asset of the estate, any legal action Travers undertook with regard to the property was an action on behalf of the estate...." Appendix, infra at 253. Mr. Travers filed a petition for rehearing en banc, which was denied on July 19, 1993.
Despite our ruling, Mr. Travers did not pay the $3,652.74 judgment. Mr. Strupp made futile demands on Mr. Travers for reimbursement on August 13 and September 10, 1993, and filed a complaint with the Clients' Security Trust Fund on October 22, 1993. On February 10, 1994, Mr. Travers filed with the court a request for compensation for his legal services to the estate in the amount of $3,652.74. Because he had not satisfied the outstanding judgment against him in the same amount and therefore already had the money in his possession, the court denied his request and later denied as well his motion for reconsideration.
The Office of Bar Counsel conducted an investigation and, on April 7, 1995, formally charged Mr. Travers with violating Disciplinary Rules (DR) 2-106(A), 9-103(A), and 1-102(A)(5), and Rules of Professional Conduct 1.15(a), 1.16(d), and 8.4(d).[3] After an evidentiary hearing,[4] a hearing committee found that Mr. Travers violated DR 2-106(A) by receiving a fee without obtaining permission as required by D.C.Code § 20-751, violated DR 9-103(A) and Rule 1.15(a) by negligently misappropriating client funds, and violated Rule 8.4(d) by failing to pay the judgment, which seriously interfered with the administration of justice. The committee therefore recommended that he be suspended from the practice of law for three months and that he be required to make restitution in the amount of $3,652.74, plus interest, before reinstatement. After both Bar Counsel and Mr. *247 Travers filed exceptions[5] to the hearing committee's report, the Board issued its own report, upholding the committee's findings that Mr. Travers violated DR 2-106(A) and Rule 8.4(d), but finding that Mr. Travers' conduct did not amount to misappropriation. The Board therefore recommended that he be suspended for ninety days, with reinstatement conditioned on satisfaction of the $3,652.74 judgment. The matter comes before us on the Board's recommendation and the exceptions taken by both Bar Counsel and Mr. Travers.
II. RESPONDENT'S MISCONDUCT
As in all disciplinary cases, we must accept the Board's findings of fact "unless they are unsupported by substantial evidence of record." D.C. Bar Rule XI, § 9(g)(1); see, e.g., In re Pierson, 690 A.2d 941, 947 (D.C.1997) (citing cases). The Board reviews the hearing committee's findings and conclusions under the same standard unless they are determinations of "ultimate facts," which are actually conclusions of law. See In re Micheel, 610 A.2d 231, 234 (D.C.1992).
A. Illegal fee
The hearing committee found that Mr. Travers did not adhere to the requirements of D.C.Code § 20-751 and therefore accepted an illegal fee in violation of DR 2-106(A).[6] The Board upheld this finding, and Bar Counsel does not take exception to it. The record makes clear that Mr. Travers accepted compensation from the estate without prior court approval, contrary to the express language of D.C.Code § 20-751. This court has specifically held that a violation of D.C.Code § 20-751 is also a violation of DR 2-106(A). In re Ray, 675 A.2d 1381, 1385-1386 (D.C.1996). Mr. Travers maintains, however, that D.C.Code § 20-751 did not apply to him because he was not retained to perform services for the estate, but merely to stave off the impending foreclosure on the property that was the estate's chief asset.
We previously resolved this very issue against Mr. Travers in our affirmance of the judgment in Travers v. Strupp. We held that Mr. Travers was indeed performing services for the estate because his work "in forestalling foreclosure on [the] property, obtaining financing for its renovation, and then facilitating its sale, would have involved both payment of debts against the estate ... and preparation for distribution of the estate...." Appendix, infra at 253. "Because the property was an asset of the estate, any legal action Travers undertook with regard to the property was an action on behalf of the estate," and thus we held that Mr. Travers was subject to D.C.Code § 20-751 and that any payment made to him would have had to be in accord with that statute. Appendix, infra at 253. Because that decision is binding here under principles of collateral estoppel, see In re Robertson, 618 A.2d 720, 723 (D.C.1993); In re Mandel, 605 A.2d 61, 62 (D.C.1992); In re Richardson, 602 A.2d 179, 180 (D.C.1992), we reject Mr. Travers' renewed contention that he was not subject to the requirements of D.C.Code § 20-751. That contention is no more meritorious now than it was in Travers v. Strupp.
Travers also argues that his conduct is governed by the provisions of D.C.Code § 20-752, rather than D.C.Code § 20-751. Section 20-752, unchanged since its enactment in 1980, provides:
Without regard to the provisions of section 20-751, when a personal representative or a person nominated as personal representative defends or prosecutes *248 in good faith and with just cause any proceeding relating to the decedent's estate, whether successful or not, such personal representative shall be entitled to receive from the estate any necessary expenses and disbursements relating to such proceeding.
In the circumstances of this case, we need not consider whether section 20-752 relieved Mr. Travers of the need to seek court approval under section 20-751 before accepting his fees. In Travers v. Strupp this court held that Travers' fees were for legal work done in connection with the administration of the estate, for which any payment would have to be made in accordance with section 20-751. His present argument, that he was subject to section 20-752 rather than section 20-751, is thus barred by collateral estoppel.
We therefore conclude that there was sufficient evidentiary support for the Board's and the hearing committee's findings that Mr. Travers accepted an illegal fee in violation of DR 2-106.[7]
B. Interference with the administration of justice
The Board accepted the committee's finding that Mr. Travers violated Rule 8.4(d), which states that it is misconduct for an attorney to "[e]ngage in conduct that seriously interferes with the administration of justice," by failing to pay the $3,652.74 judgment rendered against him and affirmed by this court in Travers v. Strupp. To establish a violation of that rule, Bar Counsel must make a three-part showing:
First ... the conduct must be improper. That is, the attorney must either take improper action or fail to take action when, under the circumstances, he or she should act.... This conduct may be improper, for example, because it violates a specific statute, court rule or procedure, or other disciplinary rule.... Second ... the conduct itself must bear directly upon the judicial process (i.e., the "administration of justice") with respect to an identifiable case or tribunal. This of course will very likely be the case where the attorney is acting either as an attorney or in a capacity ordinarily associated with the practice of law.... And third, the attorney's conduct must taint the judicial process in more than a de minimis way; that is, at least potentially impact upon the process to a serious and adverse degree.
In re Hopkins, 677 A.2d 55, 60-61 (D.C. 1996) (citations omitted).[8] We have held that conduct such as failure to appear for a hearing constitutes a violation of Rule 8.4(d), In re Lyles, 680 A.2d 408, 417 (D.C. 1996), as does failure to file a timely notice of appeal, In re Drew, 693 A.2d 1127, 1133 (D.C.1997). In this case we are satisfied that Mr. Travers' refusal to satisfy the judgment, a flagrant violation of a court order, was also a violation of Rule 8.4(d). That refusal, moreover, had more than a de minimis effect on the judicial process because the personal representative of the estate had to make repeated demands for payment, had to file a complaint with the *249 Clients' Security Trust Fund, and, most importantly, has been unable to close the estate and distribute its assets for several years.
Mr. Travers contends that his failure to satisfy the judgment did not interfere with the closure of the estate because his subsequent request for compensation in the amount of $3,652.74 also prevented closure. On November 16, 1995, the probate court denied that request because he had not satisfied the judgment against him for $3,652.74. Mr. Travers now argues that because that denial, from which he noted an appeal, constituted an outstanding claim against the estate, it too prevented the personal representative from distributing the estate. We find this argument unpersuasive. Had Mr. Travers satisfied the judgment, the court would have heard and substantively ruled on his motion for compensation. He simply cannot rely on the same conduct that violated Rule 8.4(d) to argue that he should not be held culpable under that rule. If anything, his argument provides further evidence that his refusal to satisfy the judgment interfered with the administration of justice.[9] We note, in any event, that some time after the present case was argued, another division of this court affirmed the November 1995 denial of Mr. Travers' request for compensation in an unpublished memorandum opinion. See In re Estate of Mills, No. 95-PR-1753 (D.C. May 13, 1999). Accordingly, we uphold the Board's finding that Mr. Travers violated Rule 8.4(d).[10]
C. Misappropriation
The hearing committee found that Mr. Travers engaged in misappropriation, in violation of DR 9-103(A) and Rule 1.15(a), because his acceptance of illegal fees constituted an unauthorized use of estate funds entrusted to him. The committee further found that the misappropriation was negligent because Mr. Travers "sincerely believed" that D.C.Code § 20-751 did not apply to him, and that his actions in obtaining the consents of the heirs and filing those consents with the court "support a finding that he was not reckless and that he was [in] no way trying to mislead [the court] or conceal his conduct." Bar Counsel took exception to the finding of negligent misappropriation, arguing that Mr. Travers' misappropriation was either intentional or reckless. The Board, finding that Mr. Travers did not have exclusive control of the estate checking account and therefore was not entrusted with estate funds, concluded that he did not commit any form of misappropriation. Bar Counsel disagrees with that conclusion and renews his contention that Mr. Travers engaged in intentional or reckless misappropriation.
We have interpreted both DR 9-103(A) and Rule 1.15(a) to prohibit "any unauthorized use of client's funds entrusted to [an attorney], including not only stealing but also unauthorized temporary *250 use for the lawyer's own purpose, whether or not he derives any personal gain or benefit therefrom." In re Harrison, 461 A.2d 1034, 1036 (D.C.1983) (citation omitted); accord, e.g., In re Pierson, 690 A.2d at 947 (citing Harrison and other cases). "Improper intent need not be shown." In re Ray, 675 A.2d at 1386 (citations omitted). There are, therefore, three elements of misappropriation: (1) that client funds were entrusted to the attorney; (2) that the attorney used those funds for the attorney's own purposes; and (3) that such use was unauthorized. At issue in this case is the first element, namely, whether an attorney who is a joint signatory on an estate account is "entrusted" with the funds in that account. That is not an easy question to answer. The case law is sparse and inconclusive, especially on the question of whether the attorney must have exclusive control of client funds, as opposed to joint control with the representative of the estate.
We conclude, in the particular circumstances of this case, that we need not attempt to answer that question. Assuming, without deciding, that the hearing committee was correct in finding misappropriation, we agree with the hearing committee substantially for the reasons stated by the committee that any misappropriation was negligent and not reckless or intentional. This finding is supported by the evidence and is not clearly erroneous; accordingly, we leave for resolution in some future case the more difficult issues raised by Bar Counsel.[11]
III. SANCTION
Finally, we must determine an appropriate sanction for Mr. Travers' violations of DR 2-106(A) and Rule 8.4(d).[12] We generally defer to the Board's sense of justice and its recommended sanction. See, e.g., In re Goffe, 641 A.2d 458, 463 (D.C.1994) (Board's recommendation of a sanction "comes to us with a strong presumption in favor of its imposition"); In re Lenoir, 604 A.2d 14, 15 (D.C.1992). Our rules require us to "adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar Rule XI, § 9(g)(1). In this case, the Board, believing that the upper boundary of the range of penalties for taking an illegal fee should be comparable to that for negligent misappropriation a six-month suspension and noting that Mr. Travers was admittedly familiar with D.C.Code § 20-751, that his sanction should be enhanced because of the Rule 8.4(d) violation, and that he had a record of prior discipline,[13] has recommended that he be suspended for ninety days, with reinstatement conditioned on satisfaction of the $3,652.74 judgment. We accept the Board's recommendation.
*251 In deciding whether a sanction is appropriate, we consider a variety of factors, including "the nature of the violation, aggravating and mitigating circumstances, the absence or presence of prior disciplinary sanctions, the moral fitness of the attorney, and the need to protect the legal profession, the courts, and the public." In re Lenoir, 585 A.2d 771, 774 (D.C. 1991) (citations omitted). We normally "evaluate each case on its particular facts... taking into consideration such factors as mitigating and aggravating circumstances." In re Ross, 658 A.2d 209, 211 (D.C.1995) (citations omitted).
This court has imposed a broad spectrum of sanctions for Rule 8.4(d) violations. In re Ray, in which the attorney was suspended for six months, appears to be the high-water mark for sanctions in an illegal fee case. See 675 A.2d at 1389. Ray was a more egregious case than the one now before us: the attorney in Ray put the estate at risk and also engaged in the unauthorized practice of law, albeit in another state. In In re Hudock, 544 A.2d 707, 710 (D.C.1988), a reciprocal disciplinary case from Virginia in which the attorney accepted an illegal fee, we ordered only a public reprimand, the same sanction that had been imposed in Virginia. In that case, however, the attorney's misconduct consisted solely of failing to disclose a contingency fee agreement in a workers' compensation hearing. We agree with the Board that the instant case lies somewhere between Ray and Hudock and that the sanction should accordingly fall between a six-month suspension and a public reprimand. We must also take into account, of course, Mr. Travers' failure to repay the illegal fee in violation of a court order and his previous disciplinary record. Weighing all of these factors, we think the Board's recommended sanction of a ninety-day suspension is reasonable and is not inconsistent with previous sanctions for comparable conduct.[14]
We also emphatically agree that Mr. Travers should satisfy the judgment against him before being reinstated. D.C. Bar Rule XI, § 3(b) gives this court authority to "require an attorney to make restitution ... to persons financially injured by the attorney's conduct ... as a condition of probation or of reinstatement." In In re Ray we ordered restitution when the attorney engaged in the unauthorized practice of law and accepted a fee from an estate without authorization. 675 A.2d at 1389 (citing Godette v. Estate of Cox, 592 A.2d 1028 (D.C.1991) (personal representative must reimburse the estate for fee taken without court approval)). In addition, we specifically held in Travers v. Strupp that Mr. Travers was liable to the estate for $3,652.74; consequently, he continues to be in violation of Rule 8.4(d) by failing to pay that amount to the estate. See In re Steele, 630 A.2d 196, 197-198 (D.C.1993) (accepting the Board's recommendation that attorney pay restitution in the amount of $300 when she had failed to satisfy a judgment entered against her). We see absolutely no reason not to require Mr. Travers to satisfy the outstanding judgment of $3,652.74 as a condition of reinstatement.
It is therefore ORDERED that respondent, Matthew J. Travers, shall be suspended from the practice of law in the District of Columbia for a period of ninety days, effective thirty days from the date of this opinion, and that as a condition of reinstatement to membership in the Bar he shall pay the $3,652.74 judgment owed to the estate, plus all applicable interest.
*252 APPENDIX
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 91-PR-1427
Matthew James Travers, Appellant
v.
Werner Strupp, Appellee
Appeal from the Superior Court of the District of Columbia
(Hon. Emmet G. Sullivan, Trial Judge)
(Argued April 14, 1993 Decided April 16, 1993)
Before Ferren, Schwelb, and Farrell, Associate Judges.
MEMORANDUM OPINION AND JUDGMENT
This appeal concerns a dispute over appellant's entitlement to legal fees for services rendered in connection with the sale of a home that constituted the sole asset in the personal estate of Ruth E. Mills. Because we agree with the Probate Division that appellant failed to comply with the requirements of D.C.Code § 20-751 (1989 Repl.) concerning compensation for work performed in administering an estate, we affirm the judgment against appellant for the sum of $3,652.74.
Ruth Mills died intestate on February 20, 1982. On or about September 22, 1983, two of Mills' daughters, Sylvia Mills Simmons and Cynthia Denise Mills, contacted appellant Michael James Travers for legal advice concerning an impending foreclosure on the decedent's house at 1240 Fairmont Street, N.W., Washington, D.C., in which they were still living. Travers proposed that the sisters obtain financing to pay off the foreclosing party and refurbish the property and then sell it. For his services in connection with these transactions, Travers requested a fee of ten percent of the sales price, to which the sisters and all known heirs agreed. Meanwhile, on October 3, 1983, Sylvia Mills Simmons filed a petition for appointment as personal representative of Ruth Mills' estate, which the Probate Division duly granted. Eighteen months later, Simmons filed with the Probate Division a petition to sell the property at 1240 Fairmont with the consent of the heirs. On May 1, 1985, the court issued an order authorizing the sale, and the property was sold for $36,000. Thereafter, Simmons paid Travers $3,652.74.
Simmons was subsequently removed as personal representative of the Mills estate on May 12, 1988, for failure to complete the requirements for presentation of her first and final account of the estate. The court appointed Werner Strupp, the appellee in this case, as successor personal representative. Upon Strupp's motion, the court referred this matter to an auditor-master for an accounting of Simmons's administration of the estate. In the course of preparing her report, the auditor-master requested Travers to submit a request for compensation and warned him that, absent court approval of the payment he had received, she would have to find that his fee should be paid back into the estate. Travers responded with a letter detailing how and why Simmons had paid him, but he never filed a formal request for compensation in accord with the requirements of D.C.Code § 20-751. Accordingly, the auditor-master's report recommended judgment for $3,652.74 against Simmons and Travers jointly and severally. Travers filed objections to the report, and a hearing was held on October 24, 1991. At the hearing, Travers took the position that he was not required to file a petition for compensation because the court had already in effect approved his fee when it authorized the sale of the estate property. Finding Travers' claim unpersuasive, the court ratified the auditor-master's report and entered judgment against Travers.
D.C.Code § 20-751[1] "replaced a customary percentage test for determining *253 compensation for personal representatives and attorneys with a procedural framework requiring the personal representative to submit a written request for compensation to the court, accompanied by verified and substantiating documents." Poe v. Noble, 525 A.2d 190, 193 (D.C.1987) (emphasis added). "The purpose of the documentation is to aid the court in its determination of the reasonableness of the requested fee for apparently the sole purpose of protecting the interests of claimants under the will." Id.
Travers claims on appeal that he was not subject to these requirements because he was not retained to administer the estate. Although there is no statutory definition of the phrase "administration of the estate," BLACK'S LAW DICTIONARY 44 (6th ed.1990) defines administration of estates as follows:
The management and settlement of the estate of an intestate decedent, or of a testator who has no executor, performed under the supervision of a court, by a person duly qualified and legally appointed, and usually involving: (1) the collection of the decedent's assets; (2) payment of debts and claims against the estate; (3) payment of estate taxes; (4) distribution of the remainder of the estate among those entitled thereto. The administration of an estate runs from the date of an individual's death until all assets have been distributed and liabilities paid.
It is undisputed that the property at 1240 Fairmont Street was an asset of the Mills estate. Consequently, the work that Travers did in forestalling foreclosure on this property, obtaining financing for its renovation, and then facilitating its sale, would have involved both payment of debts against the estate (i.e., paying off the foreclosing party) and preparation for distribution of the estate (liquidating the property by selling it).
Travers does not claim that in carrying out these tasks he was not acting as a lawyer. Nor do we find persuasive his argument that he was not actually working for Simmons in her capacity as personal representative, but for all of the Mills children. This position elevates form over substance. Because the property was an asset of the estate, any legal action Travers undertook with regard to the property was an action on behalf of the estate, regardless of whether or not Simmons had been formally appointed personal representative. Furthermore, Travers listed himself as Simmons' attorney on her petition for appointment, and virtually all of his work, except for the initial filing to forestall foreclosure, was completed after Simmons received her appointment. We fail to see, therefore, how Travers' services would not constitute legal work done in connection with the administration of the estate. Accordingly, we conclude that any payment to Travers would have had to be in accord with the provisions of D.C.Code § 20-751.
Because Travers was subject to the provisions of § 20-751, his other arguments on appeal must fail as well. He argues, first, that his fee agreement constituted an equitable lien on the property and was, therefore, enforceable at the time the property was sold. This argument might be tenable were Travers an ordinary creditor. But the fact that his claim against the estate was for legal services rendered to the estate means that he could not collect without fulfilling the requirements of § 20-751.
Second, Travers contends that the court's order authorizing sale of the property also approved his fee, because it permitted the "personal representative [to] convey the property ... free of all liens...." Both the auditor-master and the trial court rejected this position. The trial court noted that "this language [`free of all liens'] normally refers to liens of record against the subject property.... It doesn't refer to your [Travers'] lien for attorney's fees or services rendered in your capacity as the attorney." Given that the sale authorization *254 order makes no specific reference to attorney's fees in any way, we agree with the trial court's interpretation of the phrase "free of all liens." Moreover, even if Travers were right in his claim that the court had approved of his fee, the court would have abused its discretion in so doing, since it may not approve a fee for the administration of an estate without making adequate findings of fact setting forth the basis for the fee. See Williams v. Ray, 563 A.2d 1077, 1080 (D.C.1989).
In sum, we conclude that the trial court did not abuse its discretion in entering judgment against Travers for the $3,562.74 he received in fees from the estate. See Godette v. Estate of Cox, 592 A.2d 1028, 1036 (D.C.1991) (upholding order compelling personal representative to reimburse estate for improper payments, where representative failed to account adequately for expenditures from the estate and did not obtain court approval before withdrawing compensation from the estate). There is no inequity in this outcome, since all Travers had to do to justify his fee was to file a request for compensation in accord with D.C.Code § 20-751, as he was asked to do by the auditor-master. Why he refused to do so remains a mystery.
Accordingly, it is
ORDERED AND ADJUDGED that the judgment on appeal is hereby affirmed.
NOTES
[*] Judge King was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on November 23, 1998.
[1] An amendment to the probate code in 1995 eliminated the requirement that an attorney seek court approval before receiving fees from an estate. This new provision, however, did not take effect until July 1, 1995, and was not made retroactive. Since Mr. Travers accepted the fees in 1983, this case is governed by the former version of D.C.Code § 20-751.
[2] Our decision in Travers v. Strupp is reproduced as an appendix to this opinion.
[3] The former Disciplinary Rules apply to conduct before January 1, 1991. On that date the Disciplinary Rules were superseded by the Rules of Professional Conduct, which apply to acts committed thereafter.
[4] Before the hearing, Mr. Travers filed a motion to defer the disciplinary proceedings pending his appeal from the denial of his claim for compensation. The Board, noting that the appeal involved a different issue from that presented in the disciplinary action, denied the motion.
[5] Mr. Travers also filed motions to set aside the committee's report and to stay all proceedings until other court proceedings had been decided. The Board denied the motions, noting that his objections would be considered upon full review by the Board.
[6] DR 2-106(A) provides that a lawyer "shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."
[7] We also agree with the Board that Mr. Travers did not violate Rule 1.16(d). That rule provides:
In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is not entitled, and refunding any advance payment of fee that has not been earned....
There was no evidence that Mr. Travers did not earn his fee or that it was unreasonable; consequently, there is no basis for finding a violation of Rule 1.16(d).
[8] This three-part standard refers to the language of DR 1-102(A)(5), which was supplanted by Rule 8.4(d) in 1991. It remains binding, however, because "[c]onduct prohibited by Rule 8.4(d) includes conduct prohibited under former DR 1-102(A)(5), and the case law interpreting DR 1-102(A)(5) has been incorporated into Rule 8.4(d)." In re Hopkins, 677 A.2d at 56-57 n. 1; see D.C. Rule of Professional Conduct 8.4, comment 2.
[9] We acknowledge Mr. Travers' concern that if he had forfeited the $3,652.74, he might not have received any compensation for his services. However, his chosen method of self-help retaining the money in violation of a court order and filing a motion for compensation was nonetheless improper. Even though he may have had a right to receive compensation for his work, any "right to self-help is strictly limited by law and, in the lawyer's case, by the rules of professional conduct." In re Haar, 698 A.2d 412, 424 (D.C.1997).
[10] Mr. Travers was originally charged with violating DR 1-102(A)(5), the predecessor of Rule 8.4(d). The Board, however, accepted the committee's finding that Mr. Travers did not violate that rule because there was not sufficient evidence that Mr. Travers interfered with the administration of justice before January 1, 1991, the effective date of Rule 8.4(d). Because the estate could not have been closed until at least May 1991, when the auditor-master filed her final report, and because the judgment against Mr. Travers was not affirmed by this court until April 1993, we agree with the Board that Mr. Travers did not interfere with the administration of justice before January 1991 and thus did not violate DR 1-102(A)(5).
[11] Bar Counsel, citing In re Burton, 472 A.2d 831, 837, cert. denied, 469 U.S. 1071, 105 S. Ct. 563, 83 L. Ed. 2d 504 (1984), contends that misappropriation occurs "whenever an attorney assumes a fiduciary relationship and violates his duty." Burton does not support that assertion. In Burton the attorney deposited client funds into a trust account over which he had sole power and subsequently made unauthorized withdrawals from the account for his own personal and business uses. It was that act, and that act alone, which constituted misappropriation. It is not enough for an attorney simply to violate a fiduciary duty; the attorney must have been "entrusted" with client funds and must have used those funds without permission in order to be found guilty of misappropriation.
[12] Because we conclude that Mr. Travers did not engage in reckless or intentional misappropriation, we reject Bar Counsel's argument that he should be disbarred on that ground.
[13] According to the Board's report, Mr. Travers received an informal admonition in 1989 for failing to return an unearned fee promptly upon discharge or withdrawal, in violation of DR 2-110(A)(3), and for failing to appear, on at least seven occasions, for oral examinations following entry of judgment against him in connection with his violation of DR 1-102(A)(5).
[14] Bar Counsel, citing In re Newsome, No. D 34-79 (D.C. November 21, 1979), in which an attorney was disbarred for taking an illegal fee from an estate, seeks "at least a six-month suspension" in the event that we conclude that Mr. Travers did not engage in misappropriation. In Newsome, however, the attorney accepted a fee that not only was illegal, but also far exceeded the potential fee; in addition, his misconduct was aggravated by his failure to participate in the disciplinary proceedings. Because neither of these factors is present in this case, Newsome is inapposite.
[1] [Footnote omitted.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918377/ | 764 A.2d 838 (2001)
362 Md. 229
GENERAL MOTORS CORPORATION, et al.
v.
Joseph SCHMITZ, Jr.
No. 38, Sept. Term. 2000.
Court of Appeals of Maryland.
January 4, 2001.
*839 Alan B. Robinson (Jordan, Keys & Jessamy, LLP, Greenbelt; Karen Miller of Jordan, Keys & Jessamy, LLP, Washington, DC, all on brief), for petitioners.
Michael P. Tanczyn, Towson, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY[*], RAKER, WILNER, CATHELL and HARRELL, JJ.
RAKER, Judge.
Respondent, Joseph Schmitz, Jr., filed suit in the District Court of Maryland, sitting in Carroll County, against Petitioners, JBA Chevrolet (hereinafter JBA) and General Motors Corporation (hereinafter GM), pursuant to Maryland's Automobile Warranty Enforcement Act, Maryland Code (1984, 2000 Repl.Vol., 2000 Supp.) §§ 14-150114-1504 of the Commercial Law Article (commonly known as the "lemon law")[1] and for breach of implied warranty under the Maryland Uniform Commercial Code, Maryland Code (1957, 1997 Repl.Vol., 2000 Supp.) § 2-314 of the Commercial Law Article. The District Court denied Respondent's claim for breach of warranty, but found for Respondent on his lemon law claim and entered judgment against Petitioners in the amount of $20,000.00, ordered Petitioners to accept return of Respondent's vehicle, and awarded attorney's fees and court costs to Respondent. Petitioner appealed to the Circuit Court for Carroll County, and that court affirmed.
We granted GM's and JBA's Petition for Writ of Certiorari to consider whether the District Court of Maryland has jurisdiction over lemon law actions and whether Respondent provided sufficient notice of his vehicle's defects to GM in order to bring suit under the lemon law. We shall hold that, pursuant to Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) § 4-401(1) of the Courts and Judicial Proceedings Article, the District Court had jurisdiction in this action. We shall also hold that the statutory requirement that the consumer provide written notice to the manufacturer of a vehicle's defects by certified mail pursuant to § 14-1502(b)(1) as a condition precedent to bringing suit is dependent upon the manufacturer's conformity with the conspicuous disclosure requirements of the same section. Accordingly, we shall affirm the judgment of the circuit court.
On September 21, 1996, Respondent purchased a 1997 Chevrolet Astro van from JBA. Upon delivery of the van, Respondent noticed that it would pull to the right upon braking. In an attempt to repair the problem, Respondent brought the van back to JBA on October 11, 1996, December 19, 1996, January 30, 1997, May 16, 1997, July 1, 1997, and July 2, 1997.
*840 After the sixth unsuccessful repair attempt, Respondent demanded a replacement vehicle from JBA. In response to his demand, JBA referred him to a GM Zone representative. The GM Zone representative referred him to another GM dealership, Westminster Motors (hereinafter Westminster) in Westminster, Maryland, where Respondent took the Astro van on July 29, 1997. After attempting to service the vehicle for two weeks, Westminster contacted Respondent and advised him that they were unable to correct the problem, despite having done everything that GM technicians and engineers had recommended.
Respondent then filed a complaint with the Better Business Bureau. The following day, Respondent received a telephone call from a GM representative. She advised Respondent that GM engineers had determined that there was nothing wrong with the van and that the problem that he had identified was an "operational characteristic" of the vehicle.
Respondent initiated the instant lemon law complaint in the District Court. As previously indicated, the court found in favor of Respondent. GM appealed to the Circuit Court for Carroll County. After hearing oral argument, that court affirmed.
When an action has been tried without a jury, an appellate court reviews the case on both the law and the evidence, and it will not set aside the judgment of the trial court unless it is clearly erroneous. See Maryland Rule 8-131(c); Spector v. State, 289 Md. 407, 433, 425 A.2d 197, 209-10 (1981); Kowell Ford, Inc. v. Doolan, 283 Md. 579, 581, 391 A.2d 840, 841 (1978). "The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court's determination, it is not clearly erroneous and cannot be disturbed." Ryan v. Thurston, 276 Md. 390, 392, 347 A.2d 834, 835-36 (1975). See Murphy v. 24th St. Cadillac, 353 Md. 480, 497, 727 A.2d 915, 923 (1999).
Petitioners contend that the District Court lacks general equity jurisdiction, that the remedies available under § 14-1502 are purely equitable in nature, and that, therefore, the District Court lacks the jurisdiction to hear lemon law cases. Respondent argues that the District Court has concurrent jurisdiction with the circuit courts to entertain lemon law actions, subject to the jurisdictional limits on monetary damages set forth by statute.
Petitioners are correct that the District Court does not have general equitable jurisdiction. See Creamer v. Helferstay, 294 Md. 107, 448 A.2d 332 (1982). The jurisdiction of the District Court is entirely statutory. The civil jurisdiction of the District Court is established by Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) §§ 4 XXX-X-XXX of the Courts and Judicial Proceedings Article. The District Court has concurrent jurisdiction with trial courts of general jurisdiction, at the election of the plaintiff, over civil actions in contract and tort if the amount in controversy is between $2500.00 and $25,000.00, exclusive of interest, costs, and recoverable attorney's fees. See Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) § 4-401(1) of the Courts and Judicial Proceedings Article; Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) § 4-402(d)(1)(i) of the Courts and Judicial Proceedings Article.
Before the circuit court, GM argued that the remedies of rescission and specific performance under the lemon law are equitable remedies, thus divesting the District Court of jurisdiction because the District Court does not have general equitable powers. The circuit court rejected GM's argument, ruling that
[t]he instant case contains neither an affirmative order of recission [sic] nor was it brought as an action in equity. Indeed, the Plaintiff's complaint arises from a statutory authority that seeks damages. One needs look no further *841 than the Plaintiff's complaint to see that the Plaintiff filed suit seeking $20,000.00 as damages.
The court concluded that, inasmuch as the plaintiff's damages were in excess of $2500 and less than $25,000, the Diareixr Court
and circuit court had concurrent jurisdiction. Accordingly, it held that the District Court had jurisdiction over this action. We agree. A plain reading of Petitioner's complaint in the District Court clearly demonstrates that he sought only monetary damages as a remedy, not the equitable remedy of specific performance.[2]
Petitioners argue that Respondent failed to comply with the notice requirement contained in § 14-1502(b)(1) and that such notice is a condition precedent to bringing suit, which precludes his right to recover under the statute. Respondent argues that, because he gave actual notice to Petitioners of his vehicle's defect, given Petitioners' active participation in the unsuccessful attempts to repair the vehicle, such notice is sufficient to comply with the statutory notice requirement of § 14-1502. Section 14-1502(b) provides, in relevant part:
Correction of defects.(1) If a new motor vehicle does not conform to all applicable warranties during the warranty period, the consumer shall, during such period, report the nonconformity, defect, or condition by giving written notice to the manufacturer or factory branch by certified mail, return receipt requested. Notice of this procedure shall be conspicuously disclosed to the consumer in writing at the time of sale or delivery of the motor vehicle.
(2) The consumer shall provide an opportunity for the manufacturer or factory branch, or its agent to cure the nonconformity, defect, or condition.
On its face, the statute provides no indication of the consequences of a consumer's failure to comply with the notice requirement. It also does not indicate whether actual notice can be sufficient in lieu of notification by certified mail, a question that this Court declined to decide in Murphy. See Murphy, 353 Md. at 505 n. 6, 727 A.2d at 927 n. 6. Because we hold, *842 infra, that Petitioners are not entitled to rely on the written notice requirement of § 14-1502(b)(1) as a condition precedent to bringing suit since they failed to disclose the notice requirement conspicuously to Respondent at the time of the vehicle's sale, we do not reach the question of whether actual notice would suffice under the statute.
In construing a statute, a court's paramount objective is to ascertain and give effect to the intent of the legislature. See Lewis v. State, 348 Md. 648, 653, 705 A.2d 1128, 1130-31 (1998); Molesworth v. Brandon, 341 Md. 621, 630, 672 A.2d 608, 613 (1996). In order to discern the intent of the legislature, we look first to the plain language of the statute. See Lewis, 348 Md. at 653, 705 A.2d at 1131. If the statute is ambiguous or unclear, courts look to the legislative history and the purpose of the enacted provision and statutory framework. See id. at 653, 705 A.2d at 1131; Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 513-16, 525 A.2d 628, 632-33 (1987).
Based upon a plain reading of the statute, it does not necessarily follow that Respondent's failure to give written notice in this case is fatal. The legislative history of § 14-1502 of the lemon law indicates that the General Assembly specifically contemplated and adopted an amendment proposed by Delegate William McCaffrey in the Economic Matters Committee to add the requirement that "notice of the requirements of this paragraph shall be conspicuously disclosed in writing to the consumer at the time of sale or delivery of the motor vehicle" after the clause requiring notice by certified mail. See Automotive Warranty Enforcement Act, 1984 Maryland Laws ch. 750, § 1(B)(1), at 3505 (S.B. 767); 1984 Maryland Laws ch. 786, § 1(B)(1), at 3707 (H.B.1256) (codified as amended at Maryland Code (1984, 2000 Repl.Vol., 2000 Supp.) § 14-1502 of the Commercial Law Article).
Based upon this legislative history of § 14-1502(b)(1), it seems clear that the legislature intended that the consumer's obligation to provide written notice of the defect to the manufacturer be dependent upon the manufacturer's obligation to disclose conspicuously the notice requirement to the consumer in writing at the time of the sale.
The District Court found that Petitioners had not complied with the provision in § 14-1502(b)(1) requiring that the procedure for giving notice of defects be conspicuously disclosed to the consumer in writing at the time of sale or delivery of the motor vehicle. The procedure was located on page twenty-seven of the thirty page warranty booklet, and there was no evidence that Respondent had ever been otherwise notified of the procedure.
The "Customer Satisfaction Procedure" section on page twenty-six of the GM Warranty and Owner's Assistance manual instructs a dissatisfied owner to follow two steps if his or her concerns are not resolved to satisfaction: step one, to discuss the concern with a member of dealer management; and step two, if still not satisfied, to contact the Chevrolet Customer Assistance Center at its toll-free number. This is precisely the procedure that Respondent followed in this case. On page twenty-seven of the manual, there is a single paragraph entitled "State Warranty Enforcement Laws," which reads:
Laws in many states permit owners to obtain a replacement vehicle or a refund of the purchase price under certain circumstances... To the extent allowed by state law, General Motors requires that you first provide us with written notification of any service difficulty you have experienced so that we have an opportunity to make any needed repairs before you are eligible for the remedies provided by these laws.
This provision follows after the customer satisfaction procedure outlined on the prior page of the manual. It is in the same small print as the rest of the warranty booklet and is not made conspicuous in any *843 way, such as with bold print, italics, or underlining. The customer satisfaction procedure on the previous page, by contrast, is set out within a box of solid dark lines and has bold print in several key places. Given the inconsistent instructions in the warranty booklet and the relative conspicuousness of the procedures that Respondent followed in this case, the trial court was correct in concluding that Petitioners did not conspicuously disclose the procedure for giving notice of defects under § 14-1502(b)(1). Since Petitioners failed to comply with § 14-1502 in disclosing to Respondent his obligation to follow the statute's notice procedures, Respondent's failure to do so will not now act as a bar to recovery under the lemon law.
We hold that the District Court of Maryland had jurisdiction in the instant action pursuant to Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) § 4-401(1) of the Courts and Judicial Proceedings Article and that the manufacturer's right to written notice of a vehicle's defects by certified mail, as a condition precedent to bringing suit under § 14-1502(b)(1) of the lemon law, is contingent upon the manufacturer's compliance with the section's requirement of conspicuous disclosure of the notice procedure.[3]
JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY AFFIRMED. COSTS TO BE PAID BY PETITIONERS.
NOTES
[*] Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
[1] Unless otherwise indicated, all statutory references are to Maryland Code (1984, 2000 Repl.Vol., 2000 Supp.), Commercial Law Article.
[2] The lemon law allows a consumer to elect one of two potential remedies for uncorrectable defects: a replacement vehicle or a refund of the purchase price (less a reasonable allowance for the consumer's use of the vehicle and for damage unrelated to the defect). See § 14-1502(c). It is possible that the General Assembly may have left a gap in the enforcement mechanisms of the statute with respect to consumers that elect to seek replacement of their motor vehicles, rather than refunds, since this remedy might be considered equitable in nature and arguably might be beyond the authority of the District Court. See, e.g., Motor Vehicle Mfrs. Ass'n v. O'Neill, 212 Conn. 83, 561 A.2d 917, 920 (1989) (explaining that the Connecticut lemon law was enacted in order to provide consumers of new motor vehicles additional equitable remedies for the enforcement of express warranties made by vehicle manufacturers); Motor Vehicle Mfrs. Ass'n v. State, 75 N.Y.2d 175, 551 N.Y.S.2d 470, 473, 550 N.E.2d 919 (1990) (holding that New York's lemon law is a breach of contract action, where the replacement remedy is analogous to the equitable remedy of specific performance and the refund remedy is the equivalent of an action for rescission, in the context of whether or not a lemon law action invokes the right to trial by jury). Given that the purpose of the lemon law was to establish rights for consumers and to ensure enforcement of manufacturers' warranties on motor vehicles, see Senate Constitutional and Public Law Committee, Bill Analysis, Senate Bill No. 767 (1984), we have some doubt that the General Assembly would have intended such a result.
In any event, such a potential gap could easily be remedied by statute. See, e.g., 1988 Maryland Laws ch. 488, at 3363-65 (codified as amended at Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) § 4-401(7) of the Courts and Judicial Proceedings Article) (granting the District Court exclusive original civil jurisdiction over petitions of injunction filed by tenants requesting that the court order the landlord to repair serious and dangerous defects if the landlord has not repaired the defects within a certain period of time). Nonetheless, since Petitioner in this case sought only monetary refund damages for his vehicle, we do not reach the question of whether the District Court would have had jurisdiction over an action seeking a replacement vehicle.
[3] Petitioners also advanced arguments in their brief regarding evidence of the automobile defect, the qualifications of Respondent's expert witness, and discovery sanctions against Petitioners; however, none of these arguments was raised in their Petition for Writ of Certiorari and Petitioners conceded during oral arguments that these issues had not been properly preserved for review by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918353/ | 764 A.2d 104 (2000)
Andrew BRIMMER, Petitioner,
v.
WORKERS' COMPENSATION APPEAL BOARD (NORTH AMERICAN REFRACTORIES), Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs October 2, 1998.
Decided December 15, 2000.
*105 Thomas J. O'Brien, Philadelphia, for petitioner.
Mary T. Uhlig, Philadelphia, for respondent.
Before DOYLE, President Judge, KELLEY, Judge, and RODGERS, Senior Judge.
DOYLE, President Judge.
On April 15, 1999, this Court filed a previous opinion and order affirming the decision of the Workers' Compensation Appeal Board in the above-captioned matter. Thereafter, Andrew Brimmer filed an Application for Reargument, which we denied on June 25, 1999, but, at the same time, we granted reconsideration of our prior opinion and order, both of which we then withdrew. On reconsideration of our prior opinion, it appears that Brimmer is arguing that his earning power (actual wage) during the periods when he took his vacation was less than his pre-injury average weekly wage, because he was not paid anything at all during his actual vacation periods, although he did receive a lump sum vacation payment earlier that year. However, the record is devoid of any evidence as to the amount of vacation pay that Brimmer received in a lump sum, and, as it was his burden to establish the amount of his earning power, we now reaffirm our earlier opinion, which is published herewith.[1]
Andrew Brimmer (Claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming a decision of a Workers' Compensation Judge (WCJ) which had denied his petition to reinstate his total disability benefits.
On July 7, 1993, Claimant sustained an injury to his right knee while working for North American Refractories (Employer). On August 13, 1993, Employer executed a Notice of Compensation Payable under which Claimant received $475 per week. On September 20, 1993, Claimant returned to work with Employer in a light-duty capacity and executed a Supplemental Agreement acknowledging his return to work and providing that he would receive varied amounts of partial disability benefits based on his fluctuating post-injury *106 wages.[2]
Pursuant to a collective bargaining agreement negotiated between the United Steelworkers of America, Local 3269, Claimant's Union, and Employer, all eligible employees[3] would receive a vacation, of varying length, based on their length of service with Employer. The procedure provided that at the beginning of each year, eligible employees would request a vacation period. Regardless of when the employee took his vacation, he would receive a lump sum payment of his vacation pay in the beginning of the year. The amount of vacation pay would be based upon a percentage of the employee's total wages for the previous year. As a result, during any time period when an employee would not be at work because of vacation, i.e., during the time when the employee actually took his vacation, Employer would not pay the employee for that time. If the employee worked during his vacation period, however, he was paid for the time that he worked, and, thus, he would in effect be paid double for the time for his vacation.
Claimant in this case scheduled his vacation from May 23, 1994, to May 28, 1994, and for the days of January 28, 1994, February 22, 1994, June 17, 1994, July 29, 1994, August 12, 1994, and November 17, 1994. Accordingly, per Employer's policy, Claimant received no compensation during that time, because it had already made the lump sum vacation payment to Claimant. Employer did, however, obtain supplemental agreements from Claimant authorizing this.
On January 9, 1995, Claimant filed a reinstatement petition, alleging that
[a] reinstatement of Compensation benefits is in order as Defendant has failed to remit certain, particular compensation due and owing to me in 1994. Specifically, my disability and wage loss continued during my vacation from 5/23/94 to 5/28/94, and 1/28/94; 2/11/94; 2/22/94; 6/17/94; 7/29/94; 8/12/94; and 11/17/94, and [Employer] has failed to remit compensation in that time frame.
(Reinstatement Petition at 1.) In response, Employer filed a timely answer denying the allegations in the petition, and hearings were scheduled before a WCJ.
At the hearings, Claimant testified to the above events. Specifically, Claimant acknowledged that he had taken the above dates off as vacation and noted that physically he could perform his light-duty job at those times. In Claimant's words, he took the vacation days to relax. Claimant did acknowledge, however, that he signed Supplemental Agreements for the periods at issue. Finally, Claimant admitted receiving a lump-sum payment representing his vacation pay at the beginning of the year.
In response, Employer presented the testimony of Bill Wagner, Employer's personnel manager. He outlined Employer's policy on vacation. Specifically, he testified that Employer does not require any employee to take a vacation each year; rather it is a voluntary decision made by each employee. Vacation time is awarded based upon the length of an employee's service with Employer, and the payment *107 which an employee receives is based upon his previous years' total wages. However, pursuant to the terms of the CBA, if an employee is unable to work due to injury or illness, he still receives the same vacation time as he would have received had he worked the entire previous year.
In addition, Mr. Wagner stated that employees who elect to take vacation are not paid during the times that they are on vacation, but rather Employer makes a lump-sum payment at the beginning of the year. Mr. Wagner noted that Employer did not force Claimant to take vacation days.
On November 30, 1995, the WCJ issued a decision and order denying Claimant's reinstatement petition because Claimant failed to satisfy his burden of proof. Specifically, the WCJ concluded that Claimant's loss of earnings, for the purpose of entitlement to partial disability benefits, was due to his voluntary decision not to work during his vacation, and, on appeal, the Board affirmed this decision. This appeal by Claimant followed.
On appeal,[4] Claimant argues that he continued to experience a loss of wages during the time that he took his vacation because there was no evidence that, even if he had worked during his vacation, his earnings during that period would have been greater than or equal to his pre-injury wage. Specifically, Claimant argues that he had two different wages losses. Wage-loss "one" occurred when he returned to work at wages less than his pre-injury wage; wage-loss "two" occurred when he voluntarily removed himself from Employer's workforce during his vacation days. It is the first wage loss for which Claimant seeks partial disability benefits.
It is, of course, well settled that a claimant seeking to have his benefits reinstated following a suspension bears the burden of proving that: (1) through no fault of his own, his earning power has again been affected by the work-related injury; and (2) the disability that gave rise to the original claim continues. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990).
Claimant argues that the relevant inquiry is not whether he lost earnings as the result of his vacation, but rather whether his earnings during that period equaled or exceeded his pre-injury wage. Claimant asserts that his wages during the vacation periods did not, in fact, exceed his pre-injury wage, and, therefore, he was entitled to continue to receive partial disability benefits during that period.
In support of his argument, Claimant points us to two recent decisions of this Court, Howze v. Workers' Compensation Appeal Board (General Electric Co.), 714 A.2d 1140 (Pa.Cmwlth.1998), and Armstrong World Industries v. Workers' Compensation Appeal Board (Evans), 703 A.2d 90 (Pa.Cmwlth.1997). The claimant in Howze was receiving partial disability benefits as the result of a March 31, 1993 injury. On January 19, 1994, however, Employer terminated the claimant for threatening another employee, and Employer subsequently sought a suspension of the claimant's benefits which the WCJ granted and the Board affirmed. On appeal to this Court, however, we reversed the Board, concluding that at least some of the claimant's disability, i.e., the difference between the claimant's pre-injury wage and his wage prior to his termination, was the result of his work-related injury, and Employer had failed to prove otherwise.
In Armstrong, we affirmed a decision of the Board which held that, although an employee voluntarily removes himself from an employer's workforce, if he demonstrates that he is still seeking employment elsewhere, he is still entitled to benefits *108 because he has not removed himself from the workforce completely. In Armstrong, the claimant credibly testified that he was attempting to find employment outside of employer's workforce.
In the present case, Claimant specifically stated that, although he was physically capable of performing his light-duty job with Employer, he did not perform it while he was on vacation and did not attempt to find other employment during that time. Accordingly, Claimant's reliance on Armstrong is misplaced. Similarly, Claimant's reliance on Howze is also misplaced, because, unlike the facts in the present appeal, although Howze experienced a greater wage loss as the result of his termination, even if Howze had not been fired, he would have continued to earn wages less than his pre-injury wage due to his injury.
Unlike the claimant in the Howze case, however, the Claimant in the present case did not establish that he experienced a wage loss that was separate and distinct from the one that occurred as the result of his voluntary decision to take time off from work for vacation. Although Claimant was not paid for the time during which he took his vacation, he had received a lump-sum payment for that time earlier in the year, and he did not demonstrate that any other loss of wages occurred. Accordingly, because Claimant failed to establish a wage loss which was not the result of his voluntary decision not to work, he did not carry his burden of proof, and, therefore, both the WCJ and the Board correctly denied his reinstatement petition.
Order affirmed.
ORDER
AND NOW, December 15, 2000, the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby affirmed.
NOTES
[1] We note that, if Brimmer was arguing that Employer is not entitled to a credit against his partial disability benefits for an accrued entitlement (vacation pay), he would be correct. See, e.g., Salukas v. Workmen's Compensation Appeal Board (Mack Trucks, Inc.), 90 Pa. Cmwlth. 612, 496 A.2d 425 (1985). But, that is not Brimmer's argument, and Employer is entitled to use Brimmer's vacation pay, which Brimmer actually received, in the computation of what his "earning power" was for the vacation time which he took. Vacation pay is part of a claimant's earning power, even if it was paid at a time prior to the vacation.
[2] Claimant's light duty position included periodic overtime work. The record reveals that, during the weeks when Claimant worked overtime, his post-injury wages equaled or exceeded his pre-injury wage and, therefore, he received no disability benefits.
[3] Pursuant to the terms of the Collective Bargaining Agreement, an employee would be eligible for vacation time during any calendar year if:
1. He performed work during such calendar year, (unless prevented from doing so because of sickness or bodily injury).
2. [He has] one (1) year or more of continuous service, and
3. [He has] received earnings in at least fifty percent (50%) of the pay periods in the twelve (12) month period immediately preceding July 1 of the current calendar year (unless sickness or bodily injury has prevented the employee from attaining this minimum.)
(Article XI, Section 1, Collective Bargaining Agreement.)
[4] Our standard of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated, or whether an error of law was committed. Morey v. Workmen's Compensation Appeal Board (Bethenergy Mines, Inc.), 684 A.2d 673 (Pa.Cmwlth.1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578222/ | 439 F. Supp. 762 (1977)
CHAMBER OF COMMERCE OF the UNITED STATES of America, Plaintiff,
v.
DEPARTMENT OF INTERIOR et al., Defendants.
Civ. A. No. 77-1573.
United States District Court, District of Columbia, Civil Division.
November 3, 1977.
Raymond A. Peck, Jr., Washington, D. C., for plaintiff.
Irwin L. Schroeder, Dept. of Justice, Washington, D. C., for defendants.
MEMORANDUM OPINION
JOHN H. PRATT, District Judge.
This is the latest of several actions filed in this Court to challenge agency submissions of legislative proposals to Congress on the ground that the proposals were not accompanied by adequate environmental impact statements, as required by section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). See Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 431 F. Supp. 722 (D.D.C.1977); Wingfield v. OMB, 10 ERC 1961 (D.D.C.1977), appeal docketed (D.C. Cir. Apr. 4, 1977).
*763 Section 102(2)(C) of NEPA requires that a detailed environmental impact statement be included in "every recommendation or report on proposals for legislation" submitted by a federal agency to the Congress.
Plaintiff's motion is for declaratory and injunctive relief. For the reasons given herein, the motion for declaratory relief, and for injunctive relief of both temporary and permanent character, is denied.
I. BACKGROUND.
The plaintiff, Chamber of Commerce of the United States of America (Chamber) a non-profit District of Columbia corporation, is the largest association of business enterprises in the United States. Its direct membership encompasses in excess of 65,000 businesses of different sizes, and more than 3,700 state and local Chambers of Commerce and similar groups. The Chamber has advanced its position on environmental issues both before the Congress and in the courts.
The origins of its action here are in the portions of the Alaska Native Claims Settlement Act of 1971, 43 U.S.C. §§ 1601 et seq. (Supp. V 1975), which promulgate procedures for establishing the status of federal lands in Alaska not committed to Native corporations or reserved for special purposes. Comprising approximately 365 million acres, Alaska is the largest state of the Union. Of the approximately 215 million acres remaining in federal ownership, about 75 million are already part of the so-called four national-interest systems: National Park, National Forest, National Wildlife Refuge, and the National Wild and Scenic Rivers Systems. Section 17(d)(1) of the Alaska Native Claims Settlement Act (ANCSA) provided that, during the 90 days following passage of the Act, all unreserved federal lands in Alaska automatically would be withdrawn from "all forms of appropriation under the public land laws," including mining and mineral leasing laws. 43 U.S.C. § 1616(d)(1). Section 17(d)(2)(A) directed the Secretary of the Interior to withdraw up to 80 million acres of unreserved federal land for study to determine whether the lands should be included in the national-interest systems. Id. § 1616(d)(2)(A). Over the two-year period following passage of the ANCSA, the Secretary was to forward recommendations to the Congress on which of the withdrawn lands should be included in the national-interest systems. Id. § 1616(d)(2)(C), (D).
On December 17, 1973, then Secretary Morton submitted proposals pursuant to section 17(d)(2) recommending that 83.47 million acres be added to the national-interest systems. Known as the "Morton proposals," these recommendations were based on draft environmental impact statements (EIS), which were the subject of extensive public comment between then and 1975, when the Final EIS's containing 16,800 pages were issued in their 28-volume final form. In March 1975, the Secretary forwarded new recommendations, based on the Final EIS's, and altering both the acreages to be included in the national-interest systems and the procedures for management of these lands. Congress took no final action on either set of recommendations.
In January 1977, Congressman Udall of Arizona, upon his own initiative, introduced a bill identified as the vehicle by which the House of Representatives would consider additions to the Alaska national-interest systems. H.R. 39, 95th Cong., 1st Sess.[1] As drafted, the bill would add about 116 million acres, as either new units or extensions of existing units, to the four Alaska national-interest systems. In April 1977, defendant Andrus, the incumbent Secretary of the Interior, testified before a subcommittee of the House Committee on Interior and Insular Affairs to the effect that H.R. 39 was under study within the Department of the Interior, and that the Department's response to the bill would be forthcoming in August or September 1977. By letter of August 2, 1977, Committee Chairman Seiberling *764 requested Secretary Andrus to submit the Department's views to the Committee by September 9, 1977, and to testify before the Committee on September 15, 1977.
On September 14, 1977, plaintiff appeared before this Court to request a temporary restraining order to prevent the Secretary from submitting the Department's views to the Committee and giving testimony thereon. The motion was denied.
The Secretary testified as scheduled, and presented the Department's recommendations as to H.R. 39. In summary, they would place about 92 million acres of Alaska lands into the four systems: about 41.7 million acres in new and existing National Parks and Monuments areas, 45.1 million acres in National Wildlife Refuges, 33 rivers totalling 2.45 million acres in the National Wild and Scenic Rivers System, and 2.5 million additional acres to existing National Forests. In developing the so-called Andrus proposals, the Department reviewed both the Morton proposals and the bills before the House of Congress, prepared an option paper, and forwarded ensuing recommendations to the Office of Management and Budget. A few questions which could not be resolved by interagency consultation within the OMB were presented to the President for decision. During the summer of 1977 the Congressional committees responsible for the pending bills held hearings in Alaska and the contiguous 48 states to solicit public response in the form of testimony and comments on the bills. However, the Department prepared nothing in the form either of an additional EIS on the Andrus proposals or of a "negative determination" that an EIS would not be required in this context.
Plaintiff's challenges to the process by which the Andrus proposals were developed and submitted to Congress are numerous. Among the legislative and administrative strictures the plaintiff asserts the Department's actions to have violated are NEPA itself, 42 U.S.C. § 4332(2)(C); a Presidential directive regarding federal agency implementation of the NEPA requirements, Exec. Order No. 11,514, 35 Fed.Reg. 4,247 (1970), reprinted in 42 U.S.C. § 4321 app., at 10,658; the Council on Environmental Quality regulations on the subject, CEQ Guidelines on Preparation of Environmental Impact Statements, 40 C.F.R. § 1500.5(a)(1) (1976); the Department's own manual, "Statement of Environmental Impact," par. 516, ch. 2.5.A(1), reprinted in 36 Fed.Reg. 19,343, 19,344 (1971), and other statutes such as the Federal Land Policy and Management Act of 1976, 43 U.S.C.A. § 1782(a) (Supp.1977). The defendants' position has been that the Andrus proposals are an elaboration on the earlier Morton proposals and therefore not "proposals for legislation" under section 102(2)(C) of NEPA; that the EIS prepared in connection with the Morton proposals treats adequately the provisions of the Andrus proposals with a few minor exceptions and therefore there has been substantial compliance with NEPA; that the Andrus proposals were in response to a Congressional initiative, and thus not subject to NEPA; that the plaintiff lacks standing to bring the action, and that the relief sought cannot be granted.
The disposition of this action on grounds of lack of standing to sue obviates consideration of plaintiff's substantive assertions that the Department's actions violate NEPA. However, a few observations on the merits are in order. First, many of the factors that render this action not justiciable because of lack of standing also would militate against a decision on the merits for the plaintiff. For example, the very speculativeness of the injury plaintiff alleges also would limit plaintiff's ability to satisfy the requirement of irreparable injury for injunctive relief. That the asserted injury is not redressable by injunctive relief weighs against the plaintiff in terms of both justiciability and the availability of injunctive relief. Second, the evidence in the record raises substantial doubts as to the plaintiff's likelihood of success on the merits. The Government has argued at least colorably that the Andrus proposals are not, in fact, "proposals for legislation," but responses to Congressional requests for comments and therefore beyond the ambit of *765 NEPA. Moreover, to the extent that the Andrus proposals evolved from the Morton proposals, and do not have "any broader implications or impacts" than the earlier proposals, which proposals accompanied by Final EIS's are already before Congress, raise serious questions to plaintiff's likelihood of ultimate success.
II. STANDING TO SUE.
The implications of this action extend beyond questions of standing, into other "facets of the broader concept of justiciability" such as the political question doctrine and the ripeness doctrine. See Harrington v. Bush, 180 U.S.App.D.C. 45, 49, 553 F.2d 190, 194 n.6 (1977). The absence of standing here, however, renders consideration of the latter doctrines unnecessary.
In the words of Justice Powell's deceptively simple formulation, "when a plaintiff's standing is brought into issue, the relevant inquiry is whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S. Ct. 1917, 1924, 48 L. Ed. 2d 450 (1975). In Harrington v. Bush, the District of Columbia Circuit has set forth four separate inquiries distilled from Supreme Court articulations of the standing doctrine. 553 F.2d at 205 n.68.[2] The first is the existence of the "irreducible constitutional minimum" of "injury in fact," the absence of which obviates consideration of the others. Second, the interests asserted by the plaintiff must fall "arguably within the zone of interests" protected by the statute. See Association of Data Processing Servs. Organization, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184 (1970). Third, the injury asserted must be causally related to the allegedly illegal action, Simon, supra, 426 U.S. at 41-42, 96 S. Ct. 1917; S. v. D., 410 U.S. 614, 617, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973). Fourth, the injury must be "likely to be redressed by a favorable decision," Simon, supra, 426 U.S. at 38, 96 S. Ct. 1917, in that the action's "outcome will demonstrably cause him to win or lose in some measure." Harrington, 180 U.S.App.D.C. at 61, supra 553 F.2d at 206.
1. Injury in Fact. Plaintiff's allegations disclose two discrete sources of interest for purposes of standing to sue. The first arises out of the Chamber's own "long-standing commitment to the conservation of our Nation's natural resources and the responsible development of these resources . . ." Affidavit of William G. Van Meter, ¶ 2. The second stems from the interests, economic and otherwise, of individual Chamber members in the status of the lands encompassed within the Andrus proposals. Each kind of interest is cognizable for purposes of determining standing under NEPA: an organization may have standing to sue in representation of its members, based on injury to one or more of them, Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), and the interests infringed may be environmental and aesthetic as well as economic. United States v. SCRAP, 412 U.S. 669, 686, 93 S. Ct. 2405, 37 L. Ed. 2d 254; Sierra Club v. Morton, supra, 405 U.S. at 734, 92 S. Ct. 1361. *766 Moreover, even if the Chamber or its members were motivated in substantial part by economic self-interest, this would not necessarily preclude their asserting standing under NEPA. National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971).
That plaintiff's interests are cognizable generally under NEPA, however, does not compel the determination that it has sustained an injury in fact sufficient to maintain this action. Only if the Department's transmittal of the Andrus proposals to Congress has inflicted the requisite injury in fact may the plaintiff surmount this initial, constitutional hurdle in the way of its standing to sue. Thus, the issue at this point devolves on the nature of the injury in fact required under NEPA: May the injury derive solely from the submission of legislative proposals without an adequate EIS, and the concomitant denial of participation in the process of compiling an EIS, or must it comprise a more immediate, less speculative threat to the interests of the plaintiff? Plaintiff has urged the former construction, quoting the District of Columbia Circuit: "The harm against which NEPA's impact statement requirement was directed was not solely or even primarily adverse consequences to the environment; such consequences may ensue despite the fullest compliance. . . . Thus, the harm with which courts must be concerned in NEPA cases is not, strictly speaking, harm to the environment, but rather the failure of decision-makers to take environmental factors into account in the way that NEPA mandates." Jones v. District of Columbia Redevelopment Land Agency, 162 U.S.App.D.C. 366, 376, 499 F.2d 502, 512 (1974). The language quoted, however, bears not upon standing because it appears to have been conceded that residents of an area covered by a proposed urban renewal plan had standing to sue. Rather the case turns upon the propriety of injunctive relief against four neighborhood redevelopment programs which, though fully approved, had not actually been implemented when the District Court denied the injunctive relief on grounds of lack of imminence. Id., 162 U.S.App.D.C. at 370-71, 499 F.2d at 506-07. The issue before the Court of Appeals was solely whether a project which had received all necessary legislative and administrative approval need be "imminent" in terms of physical implementation before preliminary injunctive relief was appropriate. Id., 162 U.S.App.D.C. at 376, 499 F.2d at 512.
The facts underlying the present litigation make it clearly distinguishable. The injury in fact which plaintiff asserts, in the last analysis, is that its members would be adversely affected in their access to the forest, agricultural and mineral (including oil and gas) resources of Alaska if the Congress should enact the Andrus proposals into law. Assuming for the moment that Interior's failure to prepare an updated or supplemental EIS deprives interested parties of the opportunity to participate in the decision-making process and of a perspective on the factors which entered into the Secretary's decision, such deprivation by itself does not confer standing to sue on parties so deprived. This is because the Andrus proposals are in the lap of Congress. Their effect on the contents of any subsequent legislation and the date of the ultimate enactment of such legislation are speculative to say the least. In such a context, plaintiff has failed to allege specific injury in fact which in the words of the Supreme Court in Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962) manifest "such a personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues."
The decision most clearly analogous to the matter at hand is Wingfield v. OMB, in which Judge Gesell recently held that section 102(2)(C) of NEPA "was not intended to create a right of action in a private party to claim injury in some fashion from the ongoing legislative process." No. 77-489, 9 ERC 1961, 1962 (D.D.C. Apr. 4, 1977). The plaintiff, owner of property on which surface and underground mining operations were in progress, sought to enjoin Executive agencies from transmitting to Congress reports and recommendations on pending *767 federal mining legislation. Id. Plaintiff distinguishes Wingfield on the ground that the departmental proposals in that action were far less sweeping, and worked much less radical a transformation of the pending bills than the Andrus proposals are alleged to do. Even if the difference between the two sets of proposals were as great as plaintiff claims, the determinative principles of Wingfield remain fully applicable:
"Plaintiff's economic interest in these legislative developments is highly speculative inasmuch as the legislation is still in the formative stage; and there is no indication of what the effect, if any, will be upon his affairs in the event some legislation of some kind is enacted.
. . . . .
"The injury here would occur only if the House accepts CEQ's recommendations, the Senate accepts them as well and . . . the legislative package as finally passed by both Houses is signed into law by the President."
9 ERC 1962-63.
The speculative and conjectural foundation for plaintiff's allegation of injury, together with the fact that the alleged injury will occur, if at all, in the future, undermine the "concreteness of the controversy" and severely militate against a finding of injury in fact for purposes of standing to sue. Harrington v. Bush, 553 F.2d 190, 209 (D.C. Cir. 1977).
2 & 3. "Zone of Interests" and "Causation." The second and third standing factors merit little discussion here. As noted above, plaintiff's interests, economically rooted through they may be, still fall within the zone of interests encompassed by NEPA. The causation factor, however, weighs against the plaintiff, principally because this discussion earlier rejected the argument that the Department's transmittal of the Andrus proposals to Congress inflicted any "injury in fact" on the plaintiff. The plaintiff has been caused no injury in fact by reason of the actions of the Secretary.
4. "Redressability." The determination that plaintiff has sustained no "injury in fact" sufficient to confer standing to sue obviates consideration of remaining factors bearing on standing. However, the close conceptual relationship between "injury in fact" and "redressability" justifies more than cursory analysis of the likelihood that judicial relief could or would avert or alleviate the injury alleged. The plaintiff has sought a declaration that the transmittal of the Andrus proposals to Congress, unaccompanied by an adequate EIS, violates NEPA, and injunctive relief against such transmission. Finally, plaintiff requests the Court to order compliance with NEPA.
It is plaintiff's request for injunctive relief which brings the political questions implicated in this action to the forefront. Precisely when the inchoate political question here coalesced need not be decided; it suffices to note that no injunction would have issued after August 2, 1977, when the House Committee on Interior and Insular Affairs requested the Department's views and Secretary Andrus' testimony on the Alaska proposals. At that point, if not before, the political dialogue between the legislative and executive branches formally commenced, and any judicial intrusion thereafter risked breaching the separation of powers doctrine, and potentially infringing upon the President's constitutional power to present recommendations for legislation to the Congress. U.S.Const., art. II, sec. 3; see Wingfield v. OMB, supra at 1963. Though directed on its face against transmittal of the proposals, an injunction would in effect restrain Congress from considering them, and in that respect, would be "wholly out of the question." W. Rodgers, Environmental Law § 7.2(d), at 714 (1977). See also Atchison, Topeka & Santa Fe Railway Co. v. Callaway, supra at 727 n.5.
Although the declaratory relief sought by plaintiff, if granted, would disrupt the legislative process less dramatically than injunctive relief, other considerations would militate against declaratory relief even if the plaintiff could demonstrate "injury in fact." Admittedly, the Court in Atchison, Topeka & Santa Fe Railway Co. reached a contrary conclusion, indicating first, that *768 such relief was within its power to afford; second, that declaratory relief would redress the injury complained of, and third, that declaratory relief, if ultimately granted, would "aid the legislative process." 431 F.Supp. at 727 n.5, 730. Moreover, as the Court noted, the District of Columbia Circuit has indicated that declaratory relief, even when granted without injunctive relief also, in some instances suffices to rectify the NEPA violations asserted. Id. at 730; see Scientists' Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 398 n.1, 481 F.2d 1079, 1082 n.1 (1973); Jones v. District of Columbia Redevelopment Land Agency, supra, 162 U.S.App. D.C. at 376, 499 F.2d at 512. None of these three decisions, however, controls under the circumstances of this action.
The factors weighing against declaratory relief here are manifold. One practical consideration stems from the probability, conceded by both parties, that preparation of a formal EIS on the Andrus proposals, assuming one to be required, would consume much time and prodigious effort; the question becomes whether Congress must defer its consideration of the Andrus proposals until the EIS was completed. If so, the award of declaratory relief would impede legislative deliberation as effectively as an injunction; if Congress decided to exercise its legislative powers, despite a declaratory judgment, the Court's grant of declaratory relief would be a gratuitous gesture, and the EIS itself a wasted effort, particularly in light of the possibility that the Andrus proposals might die in Congress. Another point against declaratory relief here is that Congress itself, the author of NEPA, is free to direct the Department to correct any NEPA violation on pain of refusing to consider the Andrus proposals until NEPA's requirements are met. See F. Anderson, NEPA In the Courts: A Legal Analysis of the National Environmental Policy Act 130-31 (1973). Yet another consideration bearing on the availability of declaratory relief is the possibility that plaintiff could seek a remedy in court after Congress enacts the Andrus proposals, if it does so. The Scientists' Institute decision does indeed indicate that the fact that a program may be underway does not preclude a judicial declaration of the necessity of an EIS. 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973). Any prediction that such relief would be available to plaintiff after Congress acts upon the Alaska lands would, of course, be conjectural. What is evident, however, is that redress of plaintiff's grievance must await definitive Congressional action. The considerations impelling that conclusion are similar to those which led the First Circuit in Ogunquit Village Corp. v. Davis to decline "[to] requir[e] to be done now what should have been done earlier" on a project physically completed before the action was filed. 553 F.2d 243, 245 (1st Cir. 1977). Although the Andrus proposals are far from actual implementation, the executive decision-making process took place, and its results had been requested by Congress, well before this action was filed. As in Ogunquit Village, whatever remedy there may be for plaintiff's grievance must, at least until Congress concludes its deliberations on the Andrus proposals, come from Congress itself.
To conclude, the problems of separation of powers implicit in this action limit the avenues of redress available to the plaintiff, and thus "point to the need for a very clear showing of concrete, personal injury in this type of case so that federal courts will not be thrust into the role of `continuing monitors of the wisdom and soundness of Executive action. . . .'" Harrington v. Bush, supra at 215 (emphasis in original), quoting Laird v. Tatum, 408 U.S. 1, 15, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972). Plaintiff has not demonstrated that it has sustained such an injury. Accordingly, its motion for relief must be denied in full.
An Order consistent with the foregoing has been entered this day.
NOTES
[1] Other pending bills bearing on the Alaska lands programs are H.R. 1652 and H.R. 2082, both before the House Committee on Merchant Marine and Fisheries, and S. 1787, introduced by Senator Stevens of Alaska.
[2] Considerable confusion within the District of Columbia Circuit has arisen with respect to the status of these four inquiries vis-a-vis one another. Harrington and Tax Analysts and Advocates v. Blumenthal, 184 U.S.App.D.C. ___, 566 F.2d 130 (1977) together indicate that these four inquiries are separate and to be considered seriatim. 184 U.S.App.D.C. at ___-___, 566 F.2d at 137, 138; 180 U.S.App.D.C. at 60, 553 F.2d at 205 n.68. Another recent opinion, however, indicates that causation and redressability are not separate prudential limitations, but "identifiable aspects of the `injury in fact' test which has long been recognized as the primary standing criterion in the federal courts." American Soc'y of Travel Agents, Inc. v. Blumenthal, 184 U.S.App.D.C. ___ at ___ - ___, 566 F.2d 145 at 149-150 (1977). Still another formulation defines causation in terms of redressability, treating both elements as distinct from "injury in fact." Animal Welfare Institute v. Kreps, 183 U.S.App.D.C. 109 at 115, 561 F.2d 1002 (1977). Without pretending to resolve whether causation and redressability are of constitutional dimension, this discussion treats them as at least related to the threshold constitutional requirement of "injury in fact." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577885/ | 322 S.W.2d 662 (1959)
Mrs. J. G. WILKINSON et al., Appellants,
v.
Milton D. WILKINSON, Appellee.
No. 6255.
Court of Civil Appeals of Texas, Beaumont.
March 26, 1959.
Rehearing Denied April 15, 1959.
*663 Marion G. Holt, Nacogdoches, for appellant.
James A. Doherty, San Augustine, for appellee.
McNEILL, Justice.
This is a will contest which originated in the county court of San Augustine County. Appellee Milton D. Wilkinson filed for probate a certain instrument dated November 9, 1956 alleged to be the last will of Minnie Lee Verdell, deceased. Appellants, Mrs. J. G. Wilkinson (mother of deceased) and her daughter, Mrs. Emma T. Miller, (sister of deceased) joined by her husband, J. Smith Miller, opposed the probate on the grounds that appellee had secured the execution of the will through undue influence and that at the time the will was executed the deceased did not have testamentary capacity. From an order of the county court probating the will, Mrs. Wilkinson and Mrs. Miller, joined by her husband, appealed to the district court where upon a trial before a jury and verdict finding that the deceased did have testamentary capacity and there was no undue influence exerted upon her, judgment was again rendered upholding the will, hence this appeal by contestants.
This appeal is before this court on one point of error, which reads: "The trial court erred in admitting testimony of the witness, Doctor Kreimeyer, to the effect that Minnie Lee Verdell was mentally able and had testamentary capacity to make a will, such statements being made over the objection that such statements invaded the province of the jury.'
The testimony complained of was given by Dr. James H. Kreimeyer, who testified that he was connected with the Rusk State Hospital at Rusk, Texas, and had been for about three years; that his work had to do altogether with mental patients and that he had treated the deceased, who had voluntarily spent about two months in the summer of 1957 in the Rusk State Hospital. He said she was neurotic and run down physically. While on the witness stand as appellee's witness and after having given a description of her mental and physical condition, and having stated that he had seen her professionally practically every day during her residence at the hospital, the following took place on direct examination:
"Q. Doctor, based on that, from a medical standpoint, would you say that she was a competent person or an incompetent person?
"By Mr. Hot: Now, Your Honor, we are going to object to that as being an improper question there; it is not the proper criteria for determining testamentary capacity; and we are going to object to it for that reason.
"By the Court: You might elaborate on that questioncompetency in what respects.
"Q. In regard to making a disposition of her property by will?
"By Mr. Holt: We are going to object to that as beingthat is for the jury to decide whether or not she is competent to make a will; that is invading the province of the jury, and *664 we are going to object to that for that reason.
"By the Court: Objection overruled.
"By Mr. Holt: Note our exception.
"Q. Dr. Kreimeyer, what was your answer to that, in regard to her competency? A. I hadn't answered it, but
"Q. I mean what would your answer be? A. I would say that she was in possession of her mental faculties to that extent."
Appellants assert that the court erred in allowing the doctor to testify that the deceased, in effect, was in possession of her mental faculties to the extent of making disposition of her property by will, and cite as authority therefor the leading case of Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 627, 628, 36 L.R.A. 64. This case holds that a witness, either lay or expert, may not testify that a testator has or has not the mental capacity to make a will, since this involves a legal conclusion. On this point the court said: "It is important to keep before us in the discussion of this question the distinction between opinions of witnesses upon a mental condition, as sanity or insanity and the like, which are allowed by nearly all the authorities, and such opinions when directed to the question of legal capacity to perform the act in question." The court then states as the reason for excluding questions asking for legal conclusions that the expert, not knowing the law applicable, will apply his own notion of the legal standard of testamentary capacity which may mislead the jury. The case of Pickering v. Harris, Tex.Com.App., 23 S.W.2d 316, discusses Brown v. Mitchell and reaffirms the holding therein made, and in addition, besides ruling testimony involving the legal conclusion of legal capacity not admissible, held that to allow such testimony also invades the province of the jury. Although some authorities (Sec. 1421, McCormick & Ray, Texas Law of Evidence, 2nd Edition, Vol. 2, pages 252-256, and Adamson v. Burgle, Tex.Civ.App., 186 S.W.2d 388) question the soundness of this second reason under this case, we believe appellants' objection to the quoted testimony was good. While the overall question above quoted did not inquire of the doctor whether the deceased had mental capacity to make the very will in question, yet we think this is its effect. Wiseman v. Robbins, Tex.Civ.App., 230 S.W.2d 371.
But appellee asserts in his counter-point that having cross-examined the doctor in relation to the testimony objected to after the above ruling of the court, appellants had waived the error. We do not think this is a sound proposition. A party does not waive his objection to inadmissible testimony by cross-examination in relation thereto. Cathey v. Missouri, K. & T. R. Co., 104 Tex. 39, 133 S.W. 417, 33 L.R.A., N.S., 103.
Appellee urges also that since other testimony of a similar nature by the doctor was admitted without objection, the error of the court in admitting the testimony complained of is harmless. Counsel for appellee on redirect examination elicited from Dr. Kreimeyer the following testimony which was not objected to:
"Q. During the time she was over there, based on your examinations of her are you in a position to testify that she was capable of knowing the general nature and extent of her property, knowing what her property was and what it consisted of? A. I would presume she was.
"Q. Do you think she would have been able to know who her relatives and next of kin were? A. I think so.
"Q. Do you think she would be able to know what we call the natural objects of her bounty and their claims upon her, that is, the people who might expect to receive something from her at her death? Do you think she would *665 be able to know who those people might be? A. I would think so.
"Q. Do you think she would have memory sufficient to collect in her mind the elements of business about to be transacted in making a will and to hold those elements long enough to perceive at least their obvious relations to each other and to be able to form a reasonable judgment as to them, as to those elements? A. I think so.
"Q. Do you think that she would at that time have had sufficient mental ability to understand the business in which she might have been engaged in making a will and understand what she was doing? A. I think so.
"Q. Do you think she would have at that time been able to understand the effects of her act in making a will? A. Yes, sir."
It will be noted that these various questions took separate parts of the ordinary definition of "testamentary capacity" and interrogated the doctor in relation thereto. The effect of using sections of the definition in questioning a witness is to give him the legal yardstick by which to guide his testimony thus obviating the objection that his testimony is upon a legal conclusion as stressed in Brown v. Mitchell, supra. It seems that subdividing the definition of the term "testamentary capacity" and using the different sections of it as a basis for questions addressed to the expert witness have been upheld in many recent cases. For example, such questions were upheld in Adamson v. Burgle, Tex.Civ. App., 186 S.W.2d 388, and in Welch v. Shoubrouck, by this court, reported in 260 S.W.2d 84 (87). See cases in Note 39, under Sec. 1421, p. 254 Vol. 2, McCormick & Ray, Texas Law of Evidence. See, also, an excellent article by District Judge A. R. Stout on this question in 7 Baylor Law Review, 121 (124-125); and see 23 T.L.R. 120.
The last testimony quoted appearing admissible and no objection having been made thereto, we believe that the error of the trial court in admitting the testimony first set out is harmless. Rule 434, Texas Rules of Civil Procedure.
The trial court's judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577900/ | 322 S.W.2d 109 (1959)
Virgil MYERS et al., Appellants,
v.
Marlon WALKER et al., Appellees.
Marion WALKER et al., Appellants,
v.
Alma MYERS et al., Appellees.
Court of Appeals of Kentucky.
March 13, 1959.
*110 Earle M. Nichols (Nichols & Nichols), Madisonville, for appellant Myers.
Maubert R. Mills (Gordon & Gordon & Mills), Madisonville, for appellants Walker & Crabtree.
Earle M. Nichols (Nichols & Nichols), Maubert R. Mills (Gordon, Gordon & Mills), Carroll Morrow (Moore & Morrow), Madisonville, Fred Hume, Providence, William R. Tapp, Madisonville, Clarence Bartlett, Owensboro, Carroll Franklin (Franklin & Franklin), Madisonville, for appellees.
BIRD, Judge.
This litigation arises from an automobile collision that happened in a hollow on State Highway No. 70 in Hopkins County.
Four groups of people are involved in this action.
First, and traveling westward we have the Wilson group, composed of Arthur Wilson and his wife, Christine Wilson. Arthur Wilson was the owner and driver of one car involved in the collision. Christine Wilson was riding with him.
Second, and traveling eastward we have the Myers group, composed of Virgil Myers, his wife, Alma Myers, and his infant daughter, Ann Myers. Alma Myers was the owner and driver of the Myers car which was also involved in the collision. Her husband, Virgil, and their daughter, Ann, were riding with her.
Third, we have the Coal Company group composed of Marion Walker, Glenn Walker and Homer Crabtree, partners doing business as Walker & Crabtree Coal Company who mined coal near the place of the collision and operated trucks from the mine by the place of the collision to a coal tipple.
Fourth, we have the Trucker group composed of Bradley Whitfield, Sypert Bilbro, E. M. Bruce and Earl Hibbs, all of whom operated one or more trucks from the company mine by the place of the wreck to the same tipple.
At this point we shall state facts sufficient to present clearly the circumstances under which the collision occurred.
Highway No. 70, upon which the collision occurred is a hard surfaced road used generally by the public for all kinds of transportation, including the hauling of coal by the Company, the Truckers and divers other persons not involved in this action.
In approaching the place of the collision from either east or west it was necessary to travel downhill.
At or near the top of the hill west of the place of the collision a graveled county road intersects with State Highway No. 70. Over this county road the Company and Truckers operate their trucks from the mine to Highway No. 70. From this road they enter the highway, turn left and proceed downhill by the place of the collision to the tipple where the trucks are unloaded. The Company and the Truckers had been so operating on the day of the collision. On this day it had been raining and, at the time of the collision, the highway was wet and slippery.
It was after dark when the Myers car was driven eastward by the intersection and *111 down the hill. As it neared the bottom of the hill it turned across the highway into the path of the Wilson car and the two cars immediately collided. The evidence clearly shows that the Wilson car was at all times in its proper lane of traffic.
However, the Myers started action by suing Arthur Wilson and charging him with negligence in the operation of the Wilson car. In the same action the Myers sued the Company and the Truckers, charging them with negligence as follows:
"In the hauling and transportation of said coal by motor truck over said highway, said defendants negligently and carelessly deposited or caused to be deposited on the traveled surface of said highway, which is surfaced with `black top' or asphalt, near said coal mine, large and heavy amounts of mud, soil and debris, which rendered the same dangerous to the operation of passenger automobiles thereon, particularly if said automobiles were travelling in an easterly direction on said highway, for the reason that the major portion of said deposit is just east of and below the top of a hill, so that it cannot be discovered or seen by the driver of a car travelling east thereon in time to avoid the same, or in time to stop an automobile before striking such heavy deposit."
The Myers sought damages from Arthur Wilson, the Company and the Truckers charging their injuries and losses to the concurring negligence of each and all of them.
The Wilsons by counterclaim, cross-claim and original complaint charged Alma Myers with negligence in the operation of her automobile and charged the Company and Truckers with negligence as did the Myers because of the mud deposits. Appropriate defensive pleadings were filed by all of the parties.
After the testimony offered on behalf of Alma Myers, Virgil Myers and Ann Myers, Arthur Wilson moved for a directed verdict on the complaint of each of the Myers as against him. This motion was sustained and a verdict was rendered for him. A judgment was entered thereon for Arthur Wilson absolving him from liability on each of the Myers' claims.
At the close of all the evidence Alma Myers moved for a directed verdict on the complaints of the Wilsons against her. This motion was overruled.
The Company and Truckers moved for directed verdicts as against all complaints against them. These motions were all overruled and the case was submitted to the jury.
The jury found for Arthur Wilson and Christine Wilson against the Company and Alma Myers and provided for equal payment of damages.
The jury found for Virgil Myers and Ann Myers against the Company group.
The Truckers were exonerated in all actions against them.
Judgments were entered on the verdicts. The Company group appeals from each of the judgments against them. The Myers appeal from all judgments against them.
We shall first consider and dispose of the appeal of the Company.
From the evidence there is no doubt that quantities of mud were carried by the coal trucks of the Company and the Truckers from the mine and county road onto the highway where it fell from the wheels and was deposited on that part of the highway traveled by the Myers. However, the evidence does not show that the deposits were made on the highway exclusively by the Company and the Truck Operators. There is nothing in the evidence to show that any particular truck carried mud upon the highway. Some may have carried mud and some not have carried mud. Mud could likewise have been carried by others living on and driving over the county road *112 onto Highway No. 70. Others using the highway generally could well have contributed to the deposits on the highway. There is nothing to show that all of the mud or most of it was carried by coal trucks operating from the mine to the tipple but let us assume, however, that the evidence does so show. It is nevertheless the opinion of this Court that the Company, its partners, and each of the Truckers should have been granted a directed verdict as to all complaints against them.
There is no proof in this record that the Truckers were agents or servants of the mine owners. The only testimony on that point is to the effect that each Trucker was paid by the load. We have specifically held that such testimony is not sufficient to establish a master-servant or employer-employee relationship. Sigmon Ikerd Co. v. Napier, Ky., 297 S.W.2d 917. This being true we find at least six unrelated truckers operating one or more trucks from the mine over the county road and highway to the tipple on the day of the collision and previously. As pointed out there is no way of determining who carried what or how much. A jury will not be permitted to make that determination by speculation or conjecture. In Lowe's Adm'r v. McFarland, Ky., 291 S.W.2d 1, 2, in a similar situation we said:
"Fire clay from the western part of Carter County and some from Rowan County had been hauled in trucks by the appellee to its stockpile or direct to its plant. But there are three or four other fire brick manufactories in the vicinity, and they also have hauled the same kind of material along the highway where the accident occurred. And, as we understand, individuals have done the same thing. Such material frequently spilled from the trucks. No witness testified to having seen the clay fall from the appellee's truck or undertook to say from whose vehicles the material had dropped. It is left to speculation as to whose trucks had spilled the clay which caused the car in which the decedent was riding to skid or who was responsible for its presence on the road. The court directed the verdict for the Refractories Company because of the speculative character of evidence of responsibility. * * *
"The well established rule that evidence so unsatisfactory as to require resort to speculation or supposition is not sufficient to justify submission of a case to the jury applies with equal force to the identification of a party whose negligence caused the injury. Stacey v. Stoner, 260 Ky. 848, 86 S.W.2d 1006; cf. Wright & Taylor, Inc. v. Ochs, 306 Ky. 396, 208 S.W.2d 52."
Under the evidence and the law all of the judgments against Crabtree and Walker Coal Company and Marion Walker, Glenn Walker and Homer Crabtree must be reversed.
Let us next consider the appeals of Alma Myers, Virgil Myers and Ann Myers from the judgment entered on the directed verdict for Arthur Wilson. Answering one question will solve the problem as to each of the appellants. Was there such evidence of negligence on the part of Arthur Wilson as to require a submission to the jury? The proof in this case conclusively shows that Arthur Wilson was operating his automobile on his right side of the highway. There is no proof of excessive speed or of the failure to perform any duty which he owed to the Myers. It is true that Mrs. Myers stated that the Wilson car was a hundred yards away when she began to skid or swerve on the highway. She does not state how far away Wilson was when she got her car into his lane of traffic, but she does say that she was hit "as I whirled around." When asked about Wilson's speed she would not offer to estimate but did say, "I wouldn't say fast." From this testimony, it is apparent that Wilson was close upon *113 her when she came across the road into his lane. Mention is made of Wilson having the last clear chance to avoid the collision. There is nothing in the evidence to show that Wilson discovered or could have discovered her peril in time to avoid the collision. Considering the weather, the condition of the highway and her own testimony about his speed and her being hit as she whirled around, it is apparent that Wilson had no chance to avoid the collision and resulting injuries. Before the doctrine of last clear chance will be applied it must be shown that he had not only a last chance but a clear chance to avoid the collision after her peril was discovered, and that he negligently failed to do so. Whitesides v. Reed, Ky., 306 S.W.2d 249, at page 251.
So far as the record discloses there is no proof of negligence either before or after she was placed in a perilous position and the court was correct in directing a verdict for Wilson as against the claims of Alma Myers, Virgil Myers and Ann Myers. The judgment on that verdict for Arthur Wilson must be affirmed.
Finally let us consider the appeal of Alma Myers from the judgment of Arthur Wilson and Christine Wilson wherein each were awarded substantial damages to be paid equally by her and the Company.
She insists that she was not negligent and that, under the evidence, the trial court should have directed a verdict for her on each of the complaints against her.
It is admitted that, at the time of the collision, Mrs. Myers' car was across the center line of the highway in the wrong lane of traffic. Her mere presence there is prima facie proof of negligence on her part and, to sustain her claim of no negligence, she must show by the evidence that her negligence did not put her there. This she undertakes to do by saying that the muddy and slippery condition of the highway was the sole cause of her presence on the wrong side of the highway. In other words, she says she skidded over there and that the skidding was not superinduced by any negligent act on her part. This has been held to be a good defense. Arthur v. Rose, 289 Ky. 402, 158 S.W.2d 652; Hunt v. Whitlock's Adm'r, 259 Ky. 286, 82 S.W.2d 364; Atlantic Greyhound Corp. v. Franklin, 301 Ky. 867, 192 S.W.2d 753.
However, there is proof here that Mrs. Myers did not skid across the highway at all. Arthur Wilson testified as follows:
"13. Tell the jury in your own words what happened as you approached the scene that has been identified here as the scene of this collision? A. Well, sir, I started down 70 to Providence to take my wife down there to the doctor, and as I goes over the hill I noticed a car coming, and as I approached the car, I don't remember whether I had started up the grade or not but the car was over on her side of the road, the lady that was driving, she wasn't weaving or wobbling or anything, and she dropped off the highway and either applied the brakes or cut the wheel of her car and came directly over in my line of traffic before I could get my brake on.
"14. How suddenly was it she came over in your lane? A. So quick that I didn't have time to get my brake on, and I was driving an Olds 88 with hydramatic.
"15. Did she come across abruptly or gradually? A. Just as square in front as if she was going to park there.
"72. And as you were approaching each other, you say her car suddenly whipped across the road in front of your automobile? A. No, sir, I said she dropped off the pavement.
"73. Did you see her drop off the pavement? A. Yes, sir.
*114 "74. What part of her car dropped off? A. The right front wheel." (Emphasis ours.)
There is nothing to show that Mrs. Myers dropped off the pavement because of the slick road. In fact she denies that it happened. It may be fairly inferred from the Wilson statement that Mrs. Myers simply dropped over the edge of the pavement and in trying to get back on the pavement cut suddenly across the road into the path of Wilson's car. There was then an issue of fact to be determined by the jury. The jury found that Mrs. Myers had failed to explain her presence on the wrong side of the road and held that she was negligent. The question was properly submitted to the jury.
Mrs. Myers insists further that the case should be reversed because of the erroneous admission of evidence. The testimony about which the complaint is made was not offered by the Wilsons but by the Company. The court permitted Walker and Crabtree, over the objection of the Myers, to testify as to tracks off the right side of the highway about where Wilson said Mrs. Myers went off the pavement. Later counsel for the Wilsons moved the court to withdraw the testimony from the consideration of the jury with the proper admonition. All of the Myers joined in this motion but Crabtree and Walker objected and the motion was overruled. Wilsons' counsel again moved the court to withdraw this testimony in the cases of Arthur Wilson and Christine Wilson against Alma Myers. He asked that the admonition to the jury be confined to those cases. Although Alma Myers had joined the Wilsons in the first motion, on the second motion she objected to the evidence being so withdrawn from the jury. Alma Myers having objected to the testimony being withdrawn in Wilson's cases against her, she will not be heard to complain on the appeal of those cases because of the erroneous admission of the testimony.
Alma Myers complains too of the instructions. We have carefully examined each instruction given by the court and those offered and rejected. Some of the objections to the instructions have become moot questions because of previous holdings in this opinion. We have considered the others and have concluded that there is no prejudicial error in them.
Finding no prejudicial error it is then our conclusion that the judgment should be affirmed as to Alma Myers' liability in the action of Arthur and Christine Wilson against her.
Insomuch as the Company and the Truckers were still in the case when the jury returned its verdict and directed equal payments by Mrs. Myers and the Company, we have concluded to reverse the case and direct a new trial for the sole purpose of determining the amount of damages. We will not speculate on what the jury may have done with the Company and the Truckers out of the case.
The judgments against Marion Walker, Glenn Walker and Homer Crabtree awarding damages to Arthur Wilson and Christine Wilson are reversed.
The judgments against Marion Walker, Glenn Walker and Homer Crabtree awarding damages to Virgil Myers and Ann Myers are reversed.
The judgments dismissing the actions of Virgil Myers, Alma Myers and Ann Myers against Arthur Wilson are affirmed.
The judgments against Alma Myers awarding damages to Arthur Wilson and Christine Wilson are affirmed as to the finding of liability. They are reversed for the sole purpose of determining by new trial the amount of damages in each instance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3041907/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1422
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Tony Ever Salas-Pineda, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 1, 2007
Filed: February 7, 2007
___________
Before COLLOTON, HANSEN, and BENTON, Circuit Judges.
___________
PER CURIAM.
Tony Salas-Pineda (“Salas”) pled guilty to illegally re-entering the United
States after he was deported for an aggravated felony – a Minnesota drug trafficking
offense – in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The district court1 imposed
a sentence of 46 months’ imprisonment. On appeal, Salas argues the enhanced
sentencing provisions of section 1326(b) violate the Fifth and Sixth Amendments,
because a defendant’s sentence is enhanced based on a prior conviction, which is a
fact that must be pleaded in an indictment and proven beyond a reasonable doubt.
1
The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
We reject Salas’s claims. Salas’s prior conviction was specifically alleged in
the indictment to which he pleaded guilty, thus eliminating any potential issue under
the Fifth Amendment. Salas also admitted in his unconditional plea agreement that
he had a prior conviction for an aggravated felony, thus satisfying any Sixth
Amendment concerns. See United States v. McCully, 407 F.3d 931, 933 (8th Cir.
2005). Moreover, as Salas concedes, even absent the specific allegation in the
indictment and the admission in the plea agreement, his argument fails under
Almendarez-Torres v. United States, 523 U.S. 224 (1998), which remains good law.
See United States v. Levering, 431 F.3d 289, 295 (8th Cir. 2005), cert. denied, 126 S.
Ct. 2366 (2006); United States v. Raya-Ramirez, 244 F.3d 976, 977 (8th Cir. 2001).
Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1577997/ | 266 Wis.2d 36 (2003)
2003 WI 135
670 N.W.2d 545
IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Susan L. SCHUSTER, Attorney at Law:
OFFICE OF LAWYER REGULATION, Complainant,
v.
Susan L. SCHUSTER, Respondent.
No. 03-1935-D.
Supreme Court of Wisconsin.
Decided October 28, 2003.
*37 ¶ 1. PER CURIAM.
We review the stipulation filed by Attorney Susan L. Schuster and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12.[1] As part of the stipulation Attorney Schuster admits to engaging in professional misconduct involving the use of her office trust account, failing to take steps reasonably practicable to protect a client's interest, and making misrepresentations in a disclosure to the OLR. The parties stipulated that as a sanction for the misconduct Attorney Schuster's license to practice law in Wisconsin be suspended for 90 days and that, upon reinstatement of her license, she be required to submit quarterly trust account records to the OLR for review for a period of two years.
¶ 2. We approve the stipulation and conclude that the seriousness of Attorney Schuster's misconduct warrants a 90-day suspension of her license to practice law. *38 We also agree that it is appropriate to impose conditions upon Attorney Schuster's practice following her reinstatement.
¶ 3. Attorney Schuster was admitted to practice law in Wisconsin in March of 2000 and practices as a sole practitioner in Stoughton. She has not previously been the subject of a disciplinary action.
¶ 4. In July 2003 the OLR filed an order to answer and complaint. The complaint alleged four counts of misconduct related to Attorney Schuster's use of her client trust account and two counts of misconduct related to her representation of a client in a custody and child support matter.
¶ 5. On August 23, 2003, Attorney Schuster and the OLR entered into a stipulation whereby Attorney Schuster admitted the facts and misconduct alleged by the OLR in its complaint. The OLR's complaint alleged, and Attorney Schuster admitted, that she deposited personal funds into her trust account and paid both personal and business expenses out of the trust account, in violation of SCR 20:1.15(a);[2] that she wrote *39 checks on her client trust account when she did not have sufficient funds on deposit to cover them, and that she wrote checks to both herself and payable to "cash" without determining the clients to whom the funds were attributable, in violation of SCR 20:8.4(c);[3] that she withdrew fees from her client trust account without first obtaining her clients' consent, in violation of SCR 20:1.15(d);[4] and that she failed to create and maintain the required trust account records, including a receipts and disbursements journal, a subsidiary ledger for each *40 client, and a reconciliation of the subsidiary ledgers to the monthly bank statements, in violation of SCR 20:1.15(e).[5]
¶ 6. The OLR's complaint also alleged, and Attorney Schuster admitted, that she engaged in misconduct with respect to her representation of a client in a custody and child support matter. The client signed an agreement to pay Attorney Schuster an advance fee of $1500 against which hourly fees of $150 per hour would be drawn. The agreement provided that Attorney Schuster would bill the client on a monthly basis and it also provided that the client understood that the failure to make payments was sufficient reason for Attorney Schuster to withdraw as counsel. Contrary to the fee agreement Attorney Schuster did not routinely send *41 the client monthly billing statements. Instead Attorney Schuster would call the client when she wanted a fee payment and would tell the client how much she expected the client to pay.
¶ 7. The $1500 advance fee covered Attorney Schuster's services for the client through early December 2001. Attorney Schuster prepared a bill covering the period from September 14, 2001, through December 13, 2001, showing that as of December 13, 2001, the client owed Attorney Schuster $91.25. As of January 8, 2002, Attorney Schuster's subsequent billing statement showed that the client owed a balance of $1004.75. On January 29, 2002, the client sent Attorney Schuster a check for $500. Attorney Schuster's subsequent billing statements failed to credit the client for this payment.
¶ 8. Between March 2002 and June 2002 the client made four additional payments to Attorney Schuster totaling $1250. These payments were credited to the client on the billing statements subsequently provided by Attorney Schuster to the OLR. At a pretrial conference held on May 16, 2002, the court scheduled a trial to begin on Friday, October 4, 2002. In a June 5, 2002, letter to Attorney Schuster the OLR staff pointed out Attorney Schuster's apparent failure to credit the client with the $500 payment in January 2002. The OLR requested a written response from Attorney Schuster.
¶ 9. On June 21, 2002, despite the OLR's inquiry, Attorney Schuster sent the client billing statements for April and May 2002 failing to credit the client with the $500 payment. In a cover letter Attorney Schuster informed the client she needed to make a $700 payment no later than July 3, 2002. In a June 28, 2002, letter to the OLR staff Attorney Schuster acknowledged that she had made an error on the client's bill and on July 1, *42 2002, Attorney Schuster sent the client a letter informing her of the oversight. The corrected balance the client then owed Attorney Schuster was $840.
¶ 10. Attorney Schuster stated she had telephone conversations with the client in July and August 2002 regarding payment of outstanding fees and she said the client promised to make payments but failed to do so. On September 24, 2002, Attorney Schuster telephoned the client and informed her if she did not make an additional fee payment, Attorney Schuster intended to withdraw as the client's counsel prior to the October 4, 2002, trial. The client promised to make a payment as soon as she received her next paycheck on September 27, 2002.
¶ 11. On September 25, 2002, Attorney Schuster wrote to the court, with a copy to opposing counsel and the guardian ad litem, listing five issues to be resolved at the October 4 trial, including attorney fees. On Friday, September 27, 2002, one week before the scheduled trial, the client met Attorney Schuster in a parking lot and gave her a $500 money order. The client said at no time during the meeting did Attorney Schuster indicate she intended to withdraw from the case. Attorney Schuster denied to the OLR that she met with the client on September 27 and denied receiving a $500 money order. The client provided the OLR with a copy of a $500 money order payable to Attorney Schuster dated September 27, 2002.
¶ 12. After sending a copy of the money order to Attorney Schuster, along with the OLR's investigative report, the OLR investigator was contacted by Attorney Schuster's counsel who requested a cancelled copy of the money order. The OLR subpoenaed and obtained the cancelled $500 money order which showed that Attorney Schuster had endorsed it and that it had *43 cleared the credit union on October 3, 2002, the day before the client's trial. Only after receiving this evidence did Attorney Schuster acknowledge she had received the $500 from the client.
¶ 13. Despite receiving the $500 payment Attorney Schuster prepared a "notice of withdrawal as attorney," which she dated September 27, 2002. The notice cited the client's failure to substantially fulfill an obligation to the attorney, as set forth in an accompanying affidavit, as the basis for the withdrawal.
¶ 14. Attorney Schuster claimed to have mailed the notice of withdrawal to the client on September 27, 2002, asserting the client had a full week to retain new counsel. Contrary to Attorney Schuster's assertion the affidavit attached to the notice of withdrawal was not notarized until September 30, 2002, so the notice could not have been mailed on September 27. Attorney Schuster subsequently admitted she had not mailed the notice of withdrawal on September 27. Attorney Schuster hand-delivered the notice and affidavit to the circuit court on Monday, September 30, 2002. She claimed the circuit court clerk told her that a motion hearing would be scheduled for Wednesday, October 2, 2002. When the court issued a motion hearing notice it gave the motion date as Thursday, October 3.
¶ 15. The client's first notice of Attorney Schuster's withdrawal was through a telephone message left by Attorney Schuster on the client's answering machine at 6:40 p.m. on Monday, September 30, 2002. The notice of Attorney Schuster's withdrawal and accompanying affidavit were personally served on the client the following day, October 1, 2002. Attorney Schuster appeared in circuit court on October 2, 2002. The judge signed an order permitting withdrawal from *44 the case. Attorney Schuster made no effort to contact the client about seeking a continuance of the trial.
¶ 16. On October 3, 2002, Attorney Schuster received a recommendation from the guardian ad litem that was highly relevant to the client's trial. Attorney Schuster did not contact the client or attempt to provide her with a copy of the guardian ad litem's recommendation prior to the trial. Pursuant to the hearing notice she had received the client appeared at the courthouse on October 3 and learned that the judge had signed an order the day before permitting Attorney Schuster's withdrawal from the case. All parties and counsel except for Attorney Schuster appeared for the October 4, 2002, trial. The guardian ad litem and four witnesses were also present. Upon learning of the scheduling confusion the court vacated its order allowing Attorney Schuster to withdraw. The court granted a continuance to allow the client time to retain new counsel. On October 7, 2002, pursuant to a directive from the court, Attorney Schuster sent the client a copy of her file. On October 8 the judge signed a new order permitting Attorney Schuster to withdraw.
¶ 17. In the stipulation Attorney Schuster admits that by notifying the client four days prior to the trial that Attorney Schuster was withdrawing from representation, without discussing with the client whether she wanted to seek a continuance of the trial and without providing the client with a copy of her file upon termination of representation, Attorney Schuster violated SCR 20:1.16(d).[6] Attorney Schuster also admits *45 that by falsely stating in writing to the OLR that the client had failed to meet with Attorney Schuster on September 27, 2002, and had failed to make a $500 payment when in fact Attorney Schuster had received and cashed a $500 money order from the client dated September 27, 2002, and by falsely stating to the OLR that she had mailed the notice of her intention to withdraw to the client a full week in advance of the trial when the evidence demonstrated that she did not mail a notice to the client on that date, Attorney Schuster admits that she violated SCR 22.03(6).[7]
¶ 18. The parties agree that an appropriate level of discipline to impose in response to Attorney Schuster's misconduct is a 90-day suspension of her license to practice law in Wisconsin. The parties also agree that, upon reinstatement of her Wisconsin law license, Attorney Schuster be required to submit quarterly trust account records to the OLR for review for a period of two years.
¶ 19. We approve the parties' stipulation and adopt the stipulated facts set forth therein. We also impose the stipulated discipline.
¶ 20. IT IS ORDERED that the license of Susan L. Schuster to practice law in Wisconsin is suspended for a period of 90 days effective December 2, 2003.
*46 ¶ 21. IT IS FURTHER ORDERED that Susan L. Schuster comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.
¶ 22. IT IS FURTHER ORDERED that upon reinstatement of Wisconsin law license Susan L. Schuster submit quarterly trust account records to the OLR for review for a period of two years.
NOTES
[1] SCR 22.12 provides: Stipulation.
(1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
(2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
(3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
(4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.
[2] SCR 20:1.15(a) provides:
(a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in bearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state.
[3] SCR 20:8.4(c) provides: "Misconduct. It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
[4] SCR 20:1.15(d) provides:
(d) When, in the representation, a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be treated by the lawyer as trust property until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall continue to be treated as trust property until the dispute is resolved.
[5] SCR 20:1.15(e) provides:
(e) Complete records of trust account funds and other trust property shall be kept by the lawyer and shall be preserved for a period of at least six years after termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, listing the date and payee of each disbursement, with all disbursements being paid by check, (iii) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips. A record of all property other than cash which is held in trust for clients or third persons, as required by paragraph (a) hereof, shall also be maintained. All trust account records shall be deemed to have public aspects as related to the lawyer's fitness to practice.
[6] SCR 20:1.16(d) provides:
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
[7] SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577918/ | 35 So. 3d 22 (2008)
F.M.
v.
A.B.
No. 2071044.
Court of Civil Appeals of Alabama.
October 21, 2008.
Decision of The Alabama Court of Civil Appeal Without Published Opinion Transferred to Madison Cir. Ct. for trial de novo pursuant to Rule 28(D), Ala.R.Juv.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577909/ | 274 S.W.3d 850 (2008)
CITY OF HOUSTON, Appellant,
v.
Joseph A. BUTTITTA, Appellee.
No. 01-07-00323-CV.
Court of Appeals of Texas, Houston (1st Dist.).
December 4, 2008.
*851 Timothy J. Higley, City of Houston Legal Department, Senior Assistant City Attorney, Houston, TX, for Appellant.
Robert A. Armbruster, Houston Police Officers' Union, Houston, TX, for Appellee.
Panel consists of Justices ALCALA, HANKS, HIGLEY.
OPINION ON REHEARING
GEORGE C. HANKS, JR., Justice.
We withdraw our opinion and judgment issued July 17, 2008, and issue the following opinion and new judgment instead. We deny the City of Houston's motion for rehearing en banc as moot.
*852 The City appeals the trial court's order granting the plea to its jurisdiction. The City contends that the trial court erred in granting the plea because the City's pleadings sufficiently set out facts establishing jurisdiction under the Declaratory Judgment Act. According to the City, it did not ask the trial court to issue a declaratory judgment that a decision by the Police Officers' Civil Service Commission (the "Commission") to request a memo regarding misconduct be removed from an officer's permanent personnel file was wrong. Instead, the City contends that its request for declaratory relief asked the Court to declare that the Commission's decision should be overturned because the Commission never had the jurisdiction to issue such an order in the first place. In essence, the City seeks a declaration from the district court as to the scope and effect of the Commission's decision. Because the City's pleadings sufficiently set out facts establishing jurisdiction under the Declaratory Judgment Act, we reverse and remand.
Background
In 2006, an investigation conducted by the Houston Police Department ("HPD") determined that officer Joseph A. Buttitta had engaged in conduct that violated various HPD policies. In lieu of other disciplinary action, the City accepted Buttitta's request to receive a voluntary two-level demotion. A letter from the chief of police explaining Buttitta's misconduct and demotion was prepared and placed in Buttitta's permanent personnel file, pursuant to Local Government Code section 143.089.[1] Buttitta filed a motion with the Police Officers' Civil Service Commission ("Commission"), requesting that the letter be removed from his personnel file. After hearing oral argument on the motion, the Commission granted Buttitta's request and ordered that the letter be removed from his personnel file. The letter was removed and returned to the chief of police, who, after consultation with the City's legal department, directed that the letter be placed back in Buttitta's file.
Due to the controversy as to whether the letter should be placed in Buttitta's file, the City filed a petition in district court requesting a declaration that (1) the Commission did not have jurisdiction to order that the letter be removed and (2) the letter be returned to Buttitta's file. Buttitta filed a plea to the court's jurisdiction. The court granted Buttitta's plea and the City's petition was dismissed. The City now appeals.
Plea to the Jurisdiction
In its sole issue, the City complains that the trial court improperly granted Buttitta's plea to the jurisdiction. Specifically, the City argues that its petition set out sufficient factual allegations to establish jurisdiction under the Declaratory Judgment Act.
Standard of Review
A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the subject matter of the action. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The purpose of a dilatory plea is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits should never be reached. Id.
Because the question of subject matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004). We must look to *853 the allegations in the pleadings, construe them in the plaintiff's favor, and look to the pleader's intent. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). In doing so, we consider the facts alleged in the petition, and to the extent relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001).
The plaintiff bears the burden to allege facts affirmatively demonstrating the trial court's jurisdiction to hear a case. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and the defect is incurable, then the cause is properly dismissed. Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 805 (Tex.1989). However, when the plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555.
Analysis
The City contends that its petition sufficiently alleged facts establishing questions of statutory construction regarding the rights, status, and legal relations of the parties, specifically about whether the Commission's order is legal and enforceable and whether the letter must be removed from Buttitta's personnel file. According to the City, it showed that there is a substantial justiciable controversy between the parties that involves a genuine conflict of tangible interests. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995). Therefore, the City concludes that it has pled facts that fall within the scope of the Declaratory Judgment Act ("DJA")[2] and establish the trial court's jurisdiction to hear the case.
It is well settled that the DJA is not a grant of jurisdiction, but "merely a procedural device for deciding cases already within a court's jurisdiction." Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex.1996) (quoting State v. Morales, 869 S.W.2d 941, 947 (Tex.1994)); see also TEX. CIV. PRAC. & REM.CODE ANN. § 37.003 (Vernon 1997) ("A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.") (emphasis added). Regardless of whether the petitioner established a controversy resolvable under the DJA, a court must first have subject matter jurisdiction before it can render a declaratory judgment. See County of Galveston v. Tolle, 176 S.W.3d 859, 862 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).
We hold that the dispute over the scope and effect of the Commission's decision is a justiciable controversy over which the district court would have had proper subject matter jurisdiction. See, e.g., Nueces County v. Nueces County Civil Serv. Comm'n, 909 S.W.2d 597 (Tex.App.-Corpus Christi 1995, no writ). Nueces County stands for the proposition that courts may issue declaratory judgments as to the scope and authority of administrative agencies, even if the right to an appeal from an agency decision is in doubt. Id. at *854 598. See also Sheppard v. Thomas, 101 S.W.3d 577, 582-83 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (citing Nueces County as the type of case in which a sheriff or police chief could seek a district court's determination that a commission ruling was ultra vires).
Conclusion
We reverse the judgment of the trial court, and remand this case for further proceedings.
NOTES
[1] TEX. LOC. GOV'T CODE ANN. § 143.089 (Vernon 2008).
[2] Under the DJA, "[a] person . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder." TEX. CIV. PRAC. & REM.CODE ANN. § 37.004(a) (Vernon Supp.2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577913/ | 322 S.W.2d 279 (1959)
B. M. WESTOVER, Appellant,
v.
STATE of Texas, Appellee.
No. 30563.
Court of Criminal Appeals of Texas.
March 25, 1959.
*280 Nicolas & Nicolas, by Alfred N. Nicolas, Corpus Christi, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Presiding Judge.
The offense is felony theft by false pretext; the punishment, 2 years.
Williamson testified that he was "the office manager and work on the counter at Bradley Motor & Armature Works," that the appellant came in the establishment where he was employed and purchased a used electric motor and pulley of the value of $76.47, giving a check in such sum in payment thereof, that the check was later returned by the bank marked "unable locate," and that the same had not been paid.
V. A. Bradley, Jr. testified that he and his father owned the Bradley Motor & Armature Works as a partnership and that he was "in control and possession of the business" and operated it as manager, that when the check in question was returned unpaid he made several efforts to get in touch with the appellant and wrote to him, but was unable to find him and received no reply to his letter until shortly before the trial, and that the check had not been paid.
Sam Bradley testified that he was sales engineer for the Bradley Motor & Armature Works, that he made a trip in an effort to locate the appellant but was unable to do so and finally turned the check over to the district attorney's office.
It was shown that the appellant had no account in the bank on which the check was drawn.
Appellant did not testify in his own behalf, but called his wife who testified that they had resided at Mathis for a number of years and that the appellant operated a lumber yard and drive-in grocery.
By brief, appellant asserts that a fatal variance exists because the indictment charged that the appellant took the motor from V. A. Bradley, Jr. while the proof showed that it was Williamson who made the sale, and relies upon McGinty v. State, 93 Tex. Crim. 160, 245 S.W. 924. In McGinty, the check was given to one Mangum who was "in charge" of the Pure Food Grocery. From the above statement of the case, it is apparent that the only evidence on the subject was that V. A. Bradley, Jr. was in control of the business.
In Whitaker v. State, 85 Tex. Crim. 272, 211 S.W. 787, 788, we said, "There is no attempt to show that Coffee (to whom the check was given) was the special owner, and had exclusive possession, control, and management of the property, but as an employe of the Stewart Products Company he took their money and cashed this check." This Court held that ownership should not, under such facts, have been alleged in Coffee.
Though not free from question, we have concluded that under this record possession was properly charged in Bradley.
Appellant next contends that the record does not reflect any false pretext made by the appellant. In Dixon v. State, Tex.Cr.App., 215 S.W.2d 181, 182, this Court said:
"Verbal assertions or direct representations are not required to show a false pretense or representation. Such *281 may be shown by the conduct and acts of the party. Wharton's Criminal Law, Vol. 2, Sec. 1436, p. 1727, 22 Am. Jur., p. 455, Sec. 19; Blum v. State, 20 White & W. 578, 54 Am.Rep. 530; Brown v. State, 37 Tex. Crim. 104, 38 S.W. 1008."
See also Branch's Ann.P.C., 2nd Ed., Vol. 5, Sec. 2827, p. 343.
Finding no reversible error, the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577947/ | 322 S.W.2d 115 (1959)
James SHEPPERD, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
March 13, 1959.
*116 Daniel W. Davies, Davies & Hirschfeld, Newport, for appellant.
Jo M. Ferguson, Atty. Gen., David B. Sebree, Asst. Atty. Gen., for appellee.
MONTGOMERY, Chief Justice.
James Shepperd was indicted for the murder of C. M. Jacobs. He was found guilty of voluntary manslaughter. His punishment was fixed at twenty years' confinement in the penitentiary. On appeal, he questions the admissibility of testimony concerning difficulties and quarrels with his wife and other misconduct prior to the killing and the sufficiency of the evidence to sustain the verdict. Appellant claimed the killing was done in self-defense.
Appellant and his wife, Mildred, lived in a small settlement near Butler. The house in which they lived belonged to her father, C. M. Jacobs, who lived about two houses away. Appellant and his wife each had children by prior marriages. Mildred obtained a divorce from appellant shortly after the shooting.
A short while before the shooting, appellant came home from work and began to curse his wife's children and to abuse and threaten her. He had been drinking beer. He testified that his wife had been drinking too. The children were not at home. Mildred left and went to her father's, where she reported that appellant was "on another one of his rampages." "Pounding noises from up home" could be heard at her father's. A call for assistance was made to the sheriff's office from her father's home.
Appellant placed some things, including a shotgun, in his car and departed. He testified that it had been his intention to take up living quarters elsewhere but he had returned home upon discovering that he still had on his working clothes. While he was gone, his father-in-law, carrying a.45-caliber pistol in his right hand, went to appellant's home. He walked through it from front to rear, surveying the damage. As the father-in-law was leaving the house by the rear door, appellant drove up in front of the house. Jacobs walked around toward the front of the house. Appellant was seated behind the steering wheel of his car.
Mildred testified that she could see only her father. She stated that her father said, "Don't do it, Jimmy," just as he jumped behind a low cedar tree and raised his arm to shoot. Immediately two shots were fired; one from the shotgun, mortally wounding the father-in-law; and one from *117 the pistol which struck the left rear door of appellant's car.
Appellant testified that the deceased said nothing to him and without provocation raised his arm to fire. While appellant was obtaining his shotgun from the rear seat of the car, a shot was fired. Appellant then fired the shotgun because, he testified, he was in great fear for his life. No one testified to seeing the actions of appellant when he fired.
There is no merit in the contention that the evidence is insufficient to sustain the verdict. The testimony of the deceased's daughter is sufficient on which to base the verdict. When, as here, the evidence is in direct conflict as to whether the killing was done in self-defense, it is within the province of the jury to determine which of the contradictory witnesses to believe, and this Court will not disturb the verdict. Jones v. Commonwealth, Ky., 281 S.W.2d 920; Schull v. Commonwealth, 310 Ky. 319, 220 S.W.2d 842; Shepherd v. Commonwealth, 306 Ky. 121, 206 S.W.2d 485.
The Commonwealth's attorney, in his opening statement, said that the Commonwealth would prove that appellant "is addicted to and does use intoxicants, and on a great number of occasions he has come into his home while under the influence of liquor and has caused disturbances * * *." In speaking of an occasion prior to the shooting, he said, "* * * there was an altercation and trouble * * *; that he (appellant) threatened and beat his wife; that he tore from the hinges a door in that house * * *." Motions to discharge the jury and to admonish the jury were successively made and overruled. Over appellant's objection, and without any admonition from the trial court, the Commonwealth was permitted to introduce testimony in detail to the effect that appellant had come home drunk on several occasions during the six months preceding the killing, had beaten and treated his wife badly, cursed the children, wrecked fixtures and a door in the house, and on one occasion had threatened to kill his wife. It was shown that the deceased had known of this conduct.
It is urged on behalf of appellant that such testimony was irrelevant and highly prejudicial. The purpose of an opening statement is to outline to the jury the nature of the charge against the accused and the law and the evidence upon which counsel will rely to support it. It is improper to make statements which he cannot prove or will not be permitted to introduce. Criminal Code of Practice, Section 220; Turner v. Commonwealth, Ky., 240 S.W.2d 80. The propriety of the trial court's rulings on the opening statement must then turn on whether the evidence of prior misconduct of appellant was admissible or not. Appellant urges that it described other offenses and was inadmissible.
The general rule is that the prosecution cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding proofs that he is guilty of the crime charged. Brashear v. Commonwealth, 178 Ky. 492, 199 S.W. 21. There is another rule, equally applicable, which has been said to form an exception to the general rule, and that is, all evidence which is pertinent to the issue and tends to prove the crime charged against the defendant is admissible, although it may also prove or tend to prove the commission of other crimes by him, or to establish collateral facts. Clary v. Commonwealth, 163 Ky. 48, 173 S.W. 171; Bess v. Commonwealth, 116 Ky. 927, 77 S.W. 349, 25 Ky. Law Rep. 1091. When proof of another crime is admissible under this rule, the fact that it may tend to prejudice the defendant in the minds of the jurors is not grounds for its exclusion. Thus, evidence of other crimes is competent when it tends to establish identity, or guilty knowledge, or the intent or motive for the commission of the crime under trial, or malice, or when *118 other offenses are so connected or interwoven with the one being tried that they cannot well be separated from it. Roberson's Criminal Law and Procedure, Second Edition, Sections 1793-4, pages 1896-1901, and collected cases.
The Commonwealth argues that it was necessary to show the previous conduct of the appellant in order to explain why the deceased was carrying his pistol and why he was going to the house occupied by the appellant as a home. It is urged that this evidence showed that the deceased for approximately six months had been increasingly fearful for the physical safety of his daughter and of his property. The action of the deceased cannot be justified as being in defense of his daughter since she was at that time in his home and in no danger, real or apparent.
It is argued that the deceased went to appellant's home to exercise a right to protect his house. An owner in possession of real property has a right to use such means as in the exercise of a reasonable judgment are necessary to protect his premises from forcible invasion, and prevent the forcible attempt to divest him of the possession of his property, and in defense of his rights an assault and battery upon a trespasser will be justified; but in no case is the taking of life or the infliction of great bodily harm allowable where the invasion is made without actual force, even though forcible in law. Even if a trespass is made with actual force, the right to take life does not arise until the trespasser assaults the owner, and there are reasonable grounds to believe that it is necessary to kill, or to wound, to protect life or to prevent great bodily injury. Stacey v. Commonwealth, 189 Ky. 402, 225 S.W. 37, 25 A.L.R. 490; Roberson's Criminal Law and Procedure, Second Edition, Section 294, page 392.
Appellant, in returning, was coming back to his own home where he had a right to be even though the deceased owned the property. He was not a trespasser. The error in the argument of the Commonwealth is that it seeks to justify the conduct of the deceased.
The issue on trial was whether under the circumstances the appellant was justified or excused in killing the deceased. Appellant admitted the killing but claimed that it was done in self-defense. His conduct prior to the day of the shooting was irrelevant and immaterial in the determination of this issue. A showing of the conduct of appellant and the circumstances of the day of the killing was sufficient. This presented the relations and attitudes of the persons involved. The evidence did not disclose any ill will on the part of appellant toward the deceased or any previous discord between them. Any further proof of marital discord between appellant and his wife tended to draw the minds of the jurors from the issue before them, raised a variety of issues, compelled the accused to meet charges of which the indictment gave him no information or notice, and created a prejudice which may have misled or predisposed the jurors to believe the accused guilty of the offense charged.
Accordingly, the evidence of conduct of appellant prior to the day of the killing was inadmissible. The statement of the Commonwealth's attorney concerning same and the admission of the evidence complained of constitute reversible errors. The cases relied on by the Commonwealth are not considered applicable.
Judgment reversed with direction to grant a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577939/ | 322 S.W.2d 817 (1959)
CUPPLES-HESSE CORPORATION, Plaintiff-Appellant,
v.
Del L. BANNISTER, Collector of Revenue, City of St. Louis, Missouri, and Harold Jaeger, Assessor of the City of St. Louis, Missouri, Defendants-Respondents.
No. 46962.
Supreme Court of Missouri, Division No. 1.
March 9, 1959.
Motion for Rehearing or to Transfer Denied April 13, 1959.
Fordyce, Mayne, Hartman, Renard & Stribling, Joseph Renard, Robert P. Stanislaw, St. Louis, for appellant.
Charles J. Dolan, Acting City Counselor, Thomas F. McGuire, Associate City Counselor, David S. Hemenway, Asst. City Counselor, St. Louis, for respondents.
Motion for Rehearing or to Transfer to Court en Banc Denied April 13, 1959.
*818 VAN OSDOL, Commissioner.
This is an action in equity instituted by Cupples-Hesse Corporation, plaintiff, against defendants, Collector and Assessor of the City of St. Louis, to enjoin the collection of portions of property taxes levied or to be levied on plaintiff's real estate for the taxable year 1957 and certain subsequent taxable years.
Plaintiff alleged that portions of the taxes are unconstitutional, and that the remedies provided in Sections 138.180, 138.430(2), 138.470(4); and Const., Art. V, § 22, and 536.100 RSMo 1949, V.A.M.S., are not adequate, certain and complete under the facts alleged in the petition. In paragraph 14 of the petition, plaintiff stated that it had not exhausted any statutory remedy available under the laws of the State of Missouri with respect to the assessments of 1957 and subsequent years for the reason that plaintiff, if it had resorted to the statutory remedy would have been and would be subjected to a "multiplicity of litigations" involving the same valuation of plaintiff's real estate. Defendants, Collector and Assessor, filed their motion to dimiss which was sustained by the trial court on the ground "that plaintiff has failed to pursue the proper statutory remedies as provided" by the Statutes and the provisions of the Constitution, supra, and "that said statutory remedies * * * are adequate, certain and complete." Plaintiff has appealed from the order of dismissal.
In its petition plaintiff alleged it was and is the owner of described industrial properties located in St. Louis and that during and for the taxable year 1955 the land was assessed by defendant Assessor at $40,240 and the improvements on the land were assessed at $662,760; that on or about May 1, 1956, the Assessor notified plaintiff that the assessed value of the land had been changed as of January 1, 1956, by increasing the assessment thereof to $95,360 and that the improvements were assessed for the year 1956 at $662,760; that at all times it had been the practice of the Assessor in assessing real property to physically inspect and value the same at intervals of five years or more, and to carry such valuation forward each year on the assessment rolls until changed by order of some competent authority; and that plaintiff is informed and believes that it is the intention of the Assessor to continue such practice in the years to come.
Plaintiff further alleged that the 1956 assessment of plaintiff's land was based entirely on the valuation of the year 1955 except as the valuation was modified by the St. Louis Board of Equalization in 1956; that a portion of the 1956 assessment of improvements on part of plaintiff's lands was based solely on a valuation of the improvements in the year 1946, except as the valuation had and has been modified by the State Tax Commission in 1948 and by the St. Louis Board of Equalization in 1956; that the 1956 assessment of improvements on the remaining portion of plaintiff's land was based solely on the valuation of improvements in 1947, and carried forward from year to year on the assessment rolls, except as that valuation was modified by the Board of Equalization in 1956.
It was alleged that, with respect to the assessment of the 1956 tax, plaintiff had instituted timely appeal proceedings under the provisions of the Statutes supra, and upon hearing by the Board of Equalization the assessment on plaintiff's land was reduced in the amount of $3,350 and in the amount of $60 on the improvements, and upon appeal to the State Tax Commission the decision of the Board of Equalization was affirmed; and that, in December, 1956, plaintiff filed its petition for review of the decision of the State Tax Commission.
(Although it is not disclosed in the instant transcript on appeal, we note from defendants' brief that the Circuit Court of the City of St. Louis rendered a judgment, October 29, 1958, affirming the decision of the State Tax Commission; that *819 plaintiff appealed from the stated judgment of the Circuit Court; and that the proceeding involving the 1956 tax is now pending in this Court on appeal.)
It was further alleged by plaintiff in its petition in the instant case that defendant Assessor in the year 1957 assessed plaintiff's land at $92,010 and the improvements at $662,700; that the 1957 assessment was made solely by carrying forward the assessment of plaintiff's real estate for the year 1956 to the assessment rolls for the year 1957, and that in fact the assessment for 1957 was based entirely on the valuations made in the manner and at the times mentioned, and that the true value of the real estate for tax purposes for the year 1957 was $40,240 for the land, and $462,000 for the improvements thereon.
Plaintiff further stated that the assessment on the described land for the year 1957 was not in compliance with the law, and that the assessment should be set aside and the property reassessed for the following stated reasons,
"(a) The assessment of said land is discriminatory, arbitrary, and oppressive, because the Assessor systematically failed to adjust the assessed value of residential land and commercial land in the City of St. Louis and in the immediate area wherein the above-described land lies, in proportion to the assessed value placed upon plaintiff's aforesaid land by said Assessor, and because the Assessor systematically failed to adjust the assessed value of other industrial land within the same area in proportion to the increased assessed value placed upon plaintiff's land as aforesaid.
"(b) The said assessment is in violation of Section 3 of Article X of the Constitution of the State of Missouri, which requires that taxes `shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.'
"(c) Said assessment is in violation of the Fourteenth Amendment of the Constitution of the United States, because it attempts to deprive and deny to plaintiff the equal protection of the laws.
"(d) The formula and method applied and used by the Assessor and later approved by the State Tax Commission are arbitrary, illegal, unjust and oppressive."
Plaintiff further stated that the buildings and improvements were not assessed in compliance with the law, and that the assessment should be set aside and the same reassessed for the following stated reasons,
"(a) Lack of uniformity exists between the respective assessed values placed upon each of the several buildings of said property, and between the assessed value placed upon such buildings and upon other buildings in the same district and industrial area, in this that the ratio of assessment to reproduction cost in the case of specific buildings on plaintiff's property varies widely from the ratio of assessment to reproduction cost in the case of other buildings on plaintiff's property and in the case of buildings on other properties in the district and in the same industrial area.
"(b) In fixing the assessed value of buildings and improvements upon said property, the Assessor failed to take into consideration the depreciated value of said buildings and improvements.
"(c) That in assessing the buildings and improvements upon plaintiff's property and upon other industrial land in the same district and area, the Assessor has applied a formula wherein the reproduction cost prevailing in the year 1942 is used as a basis for such formula, whereas in assessing improvements and buildings or residential property in the City of St. Louis and within the same district wherein plaintiff's property lies, the Assessor has applied a formula wherein the reproduction cost prevailing in the year 1927 is made the basis thereof.
"(d) That the assessment of the buildings and improvements upon plaintiff's property *820 is in violation of Section 3 of Article X of the Constitution of the State of Missouri, because such assessment and the tax levied thereon is not uniform with that of other property of the same class in the City of St. Louis and in the district wherein plaintiff's property is located; that said assessment is in violation of the Fourteenth Amendment of the Constitution of the United States, as it attempts to deprive and deny plaintiff the equal protection of the laws."
As stated in plaintiff's petition, prior to the institution of the instant action, plaintiff had not exhausted the statutory remedy available to it under the provisions of the Statutes and the Constitution, supra, with respect to the 1957 assessment, and plaintiff avers that it has not pursued the remedy so provided as to that assessment, because if plaintiff must submit to the valuation in issue in the 1956 proceedings during the pendency of the appeal of those proceedings, "plaintiff will be subjected to a multiplicity of litigations involving the same valuation of plaintiff's real estate, and * * * all of the said actions can be obviated by one proceeding in this (circuit) Court restraining the collection of the disputed portion of the tax until the said appeal is finally determined and a decree entered thereon adjudging the validity or invalidity of the disputed assessment." It was further stated that the instant action will not intolerably impede the State's collection of revenue in that plaintiff will tender and pay defendant Collector each year, until a final determination of all issues, that portion of the taxes assessed against plaintiff's real estate which is based on what plaintiff contends is its true value, and in that the situation in which plaintiff finds itself is not likely to recur with any degree of frequency; and that plaintiff has no adequate remedy at law save by this action "in that if plaintiff pays the full amount of taxes claimed * * * for the year 1957, and it is subsequently determined in this proceeding that the amount thereof is excessive, discriminatory and void as alleged * * *, plaintiff could not obtain a refund of said excess tax; and * * * if plaintiff refuses to pay any of the taxes claimed * * * on or before December 31, 1957, it will be subjected to penalties and interest, and a cloud will be cast on its title to its land, all of which will cause plaintiff irreparable injury."
Plaintiff prayed (a) that the court adjudge that the 1957 assessment and all assessments in subsequent years during the pendency of this action, which are based solely on the 1956 assessment, are unconstitutional, illegal, void, and of no effect, to the same extent as the 1956 assessment is unconstitutional, illegal, void and of no effect; or that the court set aside the assessment for 1957, and for subsequent years during the pendency of this action, which are based on the aforesaid 1956 assessment, and direct a reassessment according to law; (b) and (c) that pending the determination of this action on the merits a portion of monies tendered by plaintiff shall be paid to defendant Collector, and that he be required to accept such sum ($16,875.26)the amount plaintiff claims is the correct amount of the tax yield if the property had been properly assessedand the remainder of the monies tendered ($8,483.01) to be received into the registry of the court until further court order; (d) that pending the determination of this action, a temporary and final injunction shall issue enjoining the defendant Collector from collecting further sums on account of the 1957 assessment; (e) that, after notice and hearing, plaintiff be adjudged to incur no liability by way of penalty or interest on that portion of the 1957 real property tax as is represented by the difference between the amount ($16,875.26) admittedly due, and the amount claimed by defendants; and (f) that the court make such further orders and grant plaintiff such other and further relief as the court may deem just and proper.
Our question isin the situation as stated in plaintiff's petition, may a taxpayer having failed to avail himself of the statutory *821 (legal) remedy with respect to a claimed illegal, fraudulent or unconstitutional assessment in a subsequent taxable year or in subsequent taxable years, but who had pursued the statutory remedy with reference to taxes assessed for a preceding taxable year, resort to a court of equity for relief on the ground of prevention "of a multiplicity of suits" and restrain the collection of the taxes for a subsequent taxable year or for subsequent taxable years until the final decision in the statutory remedial proceeding instituted with respect to the assessment of the stated preceding taxable year? Plaintiff-appellant has framed our question in another way"Must a taxpayer who finds himself in the situation confronting appellant, submit his claim each year to the State Tax Commission, or be forever barred from relief against the annual imposition of a tax unconstitutional in part? Appellant contends that he need not and that a Court of Equity should on these facts exercise its lawful jurisdiction to enjoin collection of the illegal portion of the tax."
It must be conceded that ordinarily the legal remedial procedure provided by the Statutes and the Section of the Constitution mentioned supra affords the taxpayer adequate remedies for complaints of fraud, illegality or discrimination in the assessment of taxes for a given year and that such procedure must ordinarily be availed of by the taxpayer before a resort to equitable relief. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 323 Mo. 180, 19 S.W.2d 746; Id., 328 Mo. 836, 42 S.W.2d 23; Washington University v. Baumann, 341 Mo. 708, 108 S.W.2d 403; Wiget v. City of St. Louis, 337 Mo. 799, 85 S.W.2d 1038, 100 A.L.R. 1284; Boonville Nat. Bank v. Schlotzhauer, 317 Mo. 1298, 298 S.W. 732, 55 A.L.R. 489, as clarified and supplemented in Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra, 323 Mo. 180, at page 194, 19 S.W.2d 746, at page 752; State ex rel. Merritt v. Gardner, 347 Mo. 569, 148 S.W.2d 780; Baumann v. Sheehan, 8 Cir., 140 F.2d 747.
It also must be conceded that the legal remedy so provided would have been adequate, certain and complete with respect to the assessment for the taxable year 1957 had plaintiff availed itself of it with respect to the assessment for that year; but, of course, as is averred by plaintiff, plaintiff each year would have been required to avail itself of the statutory remedy with respect to each of the assessments for 1957 and subsequent taxable years; consequently, plaintiff has sought to invoke the doctrine that a court of equity may take cognizance of a controversy in order to prevent a multiplicity of suits. Vol. 1, Pomeroy's Equity Jurisprudence, 5th Ed., § 243 et seq.
Plaintiff argues that since it had but one choice as to its remedy with reference to the assessment of 1956, and having challenged the validity of the formulas and methodology utilized by defendant Assessor in the years 1946, 1947 and 1955, on which it is alleged the assessment of 1956 was based, and having successively appealed from the several and adverse decisions rendered in the 1956 statutory proceedings and, since in 1957 and during the pendency of the 1956 proceedings, defendant Assessor assessed plaintiff's property by the same formulas and methodology which are contested in the 1956 proceedings now pending upon appeal, plaintiff should now be entitled or permitted to avail itself of the power of a court of equity to be exercised on the ground of the prevention of multiplicity of actions, and thus stay the collection of the tax for the year 1957, and subsequent years pending the final determination of the 1956 litigation. It is conceded by plaintiff, as intimated, that it could have attacked each assessment each subsequent year by availing itself of the same statutory remedy; however, plaintiff says, this choice left plaintiff "faced with the prospect of litigating numerous successive action involving the same parties and identical questions of law and fact. The only alternative route to relief was the (instant) action * * * in equity to enjoin collection of the illegal portion of each year's tax *822 in the years subsequent to 1956 which (action) was predicated on the inadequacy" of plaintiff's remedy at law.
Plaintiff principally relies on Begley v. Mississippi Valley Trust Co., Mo.Sup., 252 S.W. 84; Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra, 323 Mo. 180, 19 S.W.2d 746; and Washington University v. Baumann, supra. In the Begley case plaintiffs sought to enjoin a defendant, holder of a note, from instituting and dismissing and reinstating or reinstituting actions against plaintiffs as endorsers. Plaintiffs stated a claim or cause of action in equity. The intention of defendant to thus harass plaintiffs was not left to conjecture by the pleadings, and, because of which harassing, intermittent and dilatory procedures, the evidence supporting the defense might have been lost, or the plaintiffs, in their defense, otherwise put to disadvantage and inconvenience. This court in the first Brinkerhoff-Faris decision (323 Mo. 180, 19 S.W.2d 746) refused equitable relief on the theory that plaintiff had stood silently by and failed to avail itself of the relief afforded by statutory procedure; however, such procedural relief became available only after overruling the case of Laclede Land & Improvement Company v. State Tax Commission, 295 Mo. 298, 243 S.W. 887, in that very Brinkerhoff-Faris decision. Had the complete statutory remedy been actually available to plaintiff in the Brinkerhoff-Faris case (as such a remedy was available to instant plaintiff) as this court in that case supposed, the first decision of the Brinkerhoff-Faris case, refusing equitable relief, would have been correctly ruled. So considered, the Brinkerhoff-Faris case does not tend to support plaintiff's contention here. In Washington University v. Baumann, supra, the plaintiff was afforded relief in equity without having resorted to statutory procedure. This equiable relief was granted on the ground of plaintiff's contractual charter right to immunity from taxes, superior to taxing law. Taxation of its property would have been a violation of its charter right to tax immunity. Plaintiff would have been subjected annually to tax aggressions if it had paid the taxes exacted by the taxing authority upon property which actually was immune from taxation. Plaintiff's numerous parcels of land would have been affected. Plaintiff would have been involved in a multitude of litigations which could be obviated in one proceeding. Title to plaintiff's land would have been clouded, and plaintiff would have suffered irreparable injury. Of like effect are Morris Canal & Banking Co. v. Mayor, etc., of Jersey City, 12 N.J.Eq. 227; and Bank of Kentucky v. Stone, C.C., 88 F. 383. In former litigation these respective plaintiffs had been held exempt from taxation. Plaintiff in our case does not state its claim on the theory that the taxing officials were acting beyond their jurisdiction or powers, or that the assessments were made on property immune or exempt from taxation, or were made vexatiously. It is true that plaintiff in the instant case did not stand silently by and permit the taxing officials to assess and levy taxes and then institute the instant equitable action after the taxes were due as in the Brinkerhoff-Faris case, which delay, said this court in that case, constituted laches. Apparently, plaintiff in our case deliberately chose not to avail itself of the statutory remedial procedure with respect to the assessment of 1957, and apparently with respect to subsequent years, and chose to institute this action in equity, as stated, on the sole ground of the prevention of a multiplicity of suits.
In these connections, we return to the theory of plaintiff that the several assessment proceedings constitute successive or simultaneous similar actions at law against the instant plaintiff, all depending upon similar issues of fact and involving the same legal questions so that the decision of one would virtually be a decision of all the others. With respect to this class of cases and the incidence of the question of invoking the jurisdiction or power of a court of equity to interfere and restrain and thus prevent a multiplicity of suits, Pomeroy has said that a court of equity "may" *823 interfere and restrain the prosecution of the actions, so that the determination of all the matters in issue between the two parties may be brought within the scope of one judicial proceeding and one decree, and a multiplicity of suits may thereby be prevented. But it was further said that it "must be admitted that this exercise of the equitable jurisdiction is somewhat extraordinary, since the rights and interests involved are wholly legal, and the substantial relief given by the court is also purely legal. It may be assumed, therefore, that a court of equity will not exercise jurisdiction on this particular ground, unless its interference is clearly necessary to promote the ends of justice, and to shield the plaintiff from a litigation which is evidently vexatious. * * *". Vol. 1, Pomeroy's Equity Jurisprudence, 5th Ed., § 254, p. 505.
We think it important to note that defendant Assessor has the duty of assessing property each year (Section 137.080 RSMo 1949, V.A.M.S.), and that each year's assessment constitutes an independent proceeding and judgment. Boonville Nat. Bank v. Schlotzhauer, supra. In taxation matters it has been observed that the doctrine of res judicata is of but limited application, inasmuch as the assessment for each year is an independent determination for that year. Each year's tax is a separate transaction and each action relating to each year's tax is a new cause of action. In re Breuer's Income Tax, 354 Mo. 578, 190 S.W.2d 248; Young Men's Christian Ass'n of St. Louis and St. Louis County v. Sestric, 362 Mo. 551, 242 S.W.2d 497. It is not clearly seen that the issues of law and fact in the assessment of the 1956 tax were or are to be all the same in assessing the taxes for 1957 and for the stated subsequent years, even though, as alleged, the "formulas and methodology" utilized by the Assessor in 1956 were or are to be utilized by the Assessor in the assessments for 1957 and subsequent years. It has been said that the weight of authority supports the proposition that the determination of value of property for taxation on a particular date is not conclusive as to value on a subsequent date. Annotation 150 A.L.R. 5, at page 79.
In fact, even "limited" application of the doctrine of res judicata could not presently be available to plaintiff. No final decision has been rendered in the 1956 proceeding. Plaintiff merely anticipates that the final decision in the 1956 proceeding upon appeal may be favorable to plaintiff. And, if plaintiff is permitted to maintain this equitable action and if upon appeal the 1956 proceeding is determined favorably to plaintiff, this instant proposed equitable litigation likely would be involved and prolonged in the determination of the extent to which the final decision upon appeal of the 1956 proceeding should affect the court's decision in the instant case and affect, upon remand, the assessments or reassessments for 1957 and subsequent years. Thus, in this case and in cases involving similar situations in taxation, would the orderly coordinated statutory legal procedures for taxation be delayed, frustrated, and thrown out of coordination, and taxation and the action of taxing officials unnecessarily subjected to the supervision of courts of equity.
We decline to reverse the trial court's order and to sanction the invoking of jurisdiction and intervention of a court of equity upon the facts stated here.
The trial court's order and judgment of dismissal should be affirmed.
It is so ordered.
COIL and HOLMAN, CC., concur.
PER CURIAM.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577938/ | 274 S.W.3d 732 (2008)
John H. VAUGHAN, Appellant,
v.
David NIELSON, M.D. and David Nielson, M.D., P.A., Appellees.
No. 04-07-00382-CV.
Court of Appeals of Texas, San Antonio.
August 27, 2008.
*734 Earl Landers Vickery, Law Office of Lanny Vickery, Austin, TX, Michael P. Mallia, Vickery, Waldner & Mallia, L.L.P., Houston, TX, for Appellant.
George G. Brin, Gerald D. McFarlen, Janice Byington, Brin & Brin, P.C., San Antonio, TX, for Appellee.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
OPINION
Opinion by: REBECCA SIMMONS, Justice.
This is a lack of informed consent and negligence case. The trial court granted summary judgment for Appellees Dr. David Nielson, M.D. and David Nielson, M.D., P.A. (collectively, "Nielson") on claims brought by Appellant John H. Vaughan regarding a surgical procedure by Nielson to treat Vaughan's excessive sweating. We reverse the judgment of the trial court and remand this case for further proceedings.
BACKGROUND
Vaughan suffered from axillary hyperhidrosis, or profuse sweating in his armpits, due to over-activity of the sympathetic nervous system. After seeing Nielson's website describing endoscopic thoracic sympathecotomy ("ETS") as a treatment option for his condition, Vaughan completed an on-line questionnaire and contacted Nielson's office for a consultation.
A consent form was faxed to Vaughan and a member of Nielson's staff subsequently explained the form via telephone. Vaughan signed and returned the form, and was scheduled for surgery.
On the day of surgery, a nurse employed by Northeast Baptist Hospital (the "hospital") presented Vaughan with a second consent form from Nielson. This second form lists thirteen possible treatments for patients with hyperhydrosis and states that ETS is the "[t]reatment of choice for severe Hyperhydrosis ..." The form describes the procedure for ETS and lists the "advantages" of ETS. It describes the probabilities of likely results in percentages *735 for satisfaction, stating "90% for axillary sweating." Additionally, the form lists four possible "side effects" with blanks for the patient to initial, as well as the statement that "I have read and understand all other side effects listed on Dr. Nielson's website and all of my questions have been sufficiently answered."[1] Vaughan initialed all five blanks in the "side effects" section of the form.
The form also lists numerous "complications" followed by another blank for the patient's initials indicating that the patient has "read the above complications as listed on Dr. Nielson's website and all of my questions have been answered."[2] Again, Vaughan initialed this blank. Finally, the form requires the patient to "write the following sentence in your handwriting on the line below[:] `I have read and understand the above information regarding Micro ETS Surgery.'" There is no dispute that Vaughan wrote the sentence. Vaughan then signed the form, as did a witness.
Vaughan also signed a separate consent form provided to him by the hospital. This form indicated that Vaughan was consenting to a "bilateral endoscopic thoracic sympathectomy."
Vaughan met Nielson shortly before the surgery, and in a brief discussion, Nielson confirmed that Vaughan had read through the side effects. As a result of this meeting, Nielson also diagnosed Vaughan with Reynaud's Syndrome, basing the diagnosis on holding Vaughan's hand during the meeting. Nielson then performed surgery on Vaughan.
Since the surgery, Vaughan reports having several serious side effects, including severe "compensatory sweating" (sweating in body parts other than the one for which the patient sought treatment), heat intolerance manifested by "split body syndrome" (his upper body is frequently cold while his lower body is warm, and vice versa), difficulty with breathing, and lowered maximum heart rate.
Vaughan sued Nielson, alleging lack of informed consent and negligence. Nielson moved for summary judgment on both traditional and no-evidence grounds. The trial court granted summary judgment for Nielson and this appeal followed.
*736 STANDARD OF REVIEW
In a medical malpractice case, a defendant is entitled to a "traditional" summary judgment when the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more of the essential elements of plaintiff's causes of action. Greene v. Thiet, 846 S.W.2d 26, 29 (Tex. App.-San Antonio 1992, writ denied). In deciding whether there is a disputed material fact issue precluding summary judgment, the reviewing court takes evidence favorable to the nonmovant as true, indulges every reasonable inference in favor of the nonmovant and resolves any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). For an informed consent claim, the defendant has the burden to negate one or more of the elements of the plaintiff's claim, which are "(1) a duty of the physician to conform to a certain standard of care; (2) a failure to conform to the required standard; (3) resulting injury; and (4) a causal connection between the [physician's] conduct and the injury." Greene, 846 S.W.2d at 29.
In reviewing a "no-evidence" summary judgment, the court examines the record in the light most favorable to the non-movant. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003). The burden is on the non-movant to present more than a scintilla of probative evidence to raise a genuine issue of material fact on each of the challenged elements. TEX.R. CIV. P. 166a(i). "Less than a scintilla of evidence exists when the evidence is `so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, 118 S.W.3d at 751 (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex.1983)). More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, 118 S.W.3d at 751. A no-evidence summary judgment motion should be denied if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX.R. CIV. P. 166a(i).
INFORMED CONSENT
Vaughan argues that summary judgment was improper on his informed consent claim because Nielson allegedly (1) misrepresented the likelihood of success for ETS for patients with excessive upper body sweating and (2) failed to inform him of the desirability of other treatments for his condition. Vaughan further asserts that had he been provided adequate disclosure of the risks, he would not have had the surgery.
A. Chapter 74 of the Civil Practice and Remedies Code
In Texas, informed consent claims are governed by subchapter C of Chapter 74 of the Civil Practice and Remedies Code. Chapter 74 creates the Texas Medical Disclosure Panel (the "Panel") and charges the Panel with responsibility for identifying those medical and surgical procedures that do and do not require disclosure of risks and hazards to the patient or the person authorized to consent for the patient. TEX. CIV. PRAC. & REM.CODE ANN. §§ 74.102-.103 (Vernon Supp.2008). The Panel creates lists of procedures that require specific disclosures, which are referred to as "List A" procedures, and those that require no disclosure, which are referred to as "List B" procedures. These lists are published first in the Texas Register and then in the Texas Administrative Code. Id. at § 74.103; 25 TEX. ADMIN. CODE § 6.102 (List A); 25 TEX. ADMIN. CODE § 6.103 (List B).
To satisfy the consent requirement for a List A procedure, the physician *737 must disclose to the patient, or the person authorized to consent for the patient, those risks and hazards identified by the Panel in List A. TEX. CIV. PRAC. & REM.CODE ANN. § 74.104 (Vernon 2005). Consent to a List A procedure is effective "if it is given in writing, signed by the patient ... and by a competent witness, and if the written consent specifically states the risks and hazards that are involved in the medical care or surgical procedure in the form and to the degree required by the [Panel] under Section 74.103." TEX. CIV. PRAC. & REM. CODE ANN. § 74.105 (Vernon 2005). If the disclosure complies with these requirements, it creates a rebuttable presumption that the physician complied with Chapter 74's requirements. TEX. CIV. PRAC. & REM. CODE ANN. § 74.106(1) (Vernon 2005). "[T]he presumption of proper disclosure [can] be rebutted only by showing the invalidity of the consent form, such as by proof that the patient's signature was forged, or that the patient lacked capacity to sign." Earle v. Ratliff, 998 S.W.2d 882, 891-92 (Tex.1999). A physician who "ma[kes] disclosures as prescribed by the Panel" cannot be negligent "for not disclosing other risks and hazards associated with the recommended procedure." Id. at 891.
If the procedure is neither on List A nor List B, that is, a procedure about which the Panel has not made a determination as to the scope of the physician's duty to inform, the physician "is under the duty otherwise imposed by law." TEX. CIV. PRAC. & REM.CODE § 74.106(b). For such a procedure, the physician's duty is to disclose all risks or hazards that could influence a reasonable person in making a decision to consent to the procedure. Peterson v. Shields, 652 S.W.2d 929, 930-31 (Tex.1983).
B. ETSList A, List B, or Neither?
The scope of Nielson's duty to inform is determined by whether ETS is a List A procedure, a List B procedure, or neither. Vaughan contends that ETS is neither a List A nor a List B procedure and, therefore, Nielson's duty was to disclose all risks that could have influenced his decision. Nielson argues that, because ETS is a type of endoscopic surgery of the thorax and endoscopic surgery of the thorax is a List A procedure, Nielson was obligated only to disclose those risks required by the Panel to be disclosed for such a procedure. 25 TEX. ADMIN. CODE § 601.2(s)(2). Vaughan does not dispute that ETS involves an endoscopic surgery of the thorax, but argues that ETS is more properly categorized as a type of sympathectomy, a procedure that the Panel has not designated as List A or List B.
Our research has not revealed any authorities to guide us on how to categorize a procedure when the parties dispute whether it is a List A procedure or not, nor have the parties cited any such authority. However, we have no trouble concluding on this record that, as a matter of law, ETS is not a List A procedure.
First, Nielson's consent form required Vaughan to consent to "Thoracic Sympathectomy," not endoscopic surgery of the thorax. "Thoracic Sympathectomy" is described on the form as "[i]nterruption of nerve impulses to sweat glands of the palms, face, and armpits by cutting or electrocautery [of] ... [t]he ganglia (nerve junctions) which lead to the sweat glands of the palms, underarms, scalp and face." These nerve junctions "are accessible through the chest (thoracic cavity) because they travel along the side of the spine of the back." According to the form, "[i]n the past, [to perform a sympathectomy] a rib was removed or a large, painful incision was required." The form describes Micro ETS as means to gain "easy access" to this *738 part of the spine, "requir[ing] only a single 1/12th inch incision per side." Endoscopic surgery of the thorax, then, is treated in Nielson's consent form as the procedure by which Nielson would access the nerve junctions along the spine so that he could perform the "Thoracic Symapthectomy."
Also compelling is the consent form provided by the hospital. That form identifies the procedure to which Vaughan consented as "Bilateral Endoscopic Thoracic Symapthectomy." Attached to the form is a comprehensive list of all List A procedures, each with a space for the hospital to check to indicate the procedure being performed, and boxes for the patient and a nurse to initial. The form has a separate section for "List B Procedures" with a space to identify the specific procedure, and another section for "Other Procedure," i.e., neither List A nor List B, also with a space to identify the specific procedure. The hospital form identified two procedures to be performed on Vaughan: (1) in the List A section, the box for "Endoscopic surgery of the thorax" is checked;[3]and (2) in the "Other Procedure" section, the box for, "Bilateral Endoscopic Thoracic Sympathectomy (BETS)" is checked and Vaughan's initials are handwritten in the "patient" box. The hospital, then, treated the procedures as distinct, by disclosing risks for both endoscopic surgery of the thorax and ETS, and by expressly identifying the procedures as List A and "Other" (neither List A nor List B).
We conclude that the hospital form correctly identifies ETS as a non-list procedure. Endoscopic surgery of the thorax was the procedure by which Nielsen accessed Vaughan's thorax so that he could perform the separate procedure of ETS. Nielsen was required to disclose the risks for each of these procedures. Because ETS is a non-list procedure, Nielson's duty was to disclose all risks or hazards which could influence a reasonable person in making a decision whether to consent to ETS. Peterson, 652 S.W.2d at 930; Ritter v. Delaney, 790 S.W.2d 29, 30 (Tex.App.-San Antonio 1990, writ denied).
C. Adequacy of Disclosure
1. Failure to advise of other options.
Vaughan claims that Nielsen breached the standard of care by failing to inform him of the risks that ETS was not the proper surgery for him and by failing to encourage Vaughan to attempt other treatments first. The Texas Supreme Court, however, has held that a party alleging that a physician misdiagnosed his condition or failed to advise him of the risk that the procedure might not be necessary does not state an informed consent claim. Binur v. Jacobo, 135 S.W.3d 646, 655 (Tex. 2004). "[I]f a physician recommends an unnecessary surgery, there may be liability for negligence in making an erroneous diagnosis or prognosis, but there can be no claim for lack of informed consent." Id. Accordingly, evidence that Nielson should have advised Vaughan to try other procedures first, or that Nielson failed to properly diagnose Vaughan's condition, does not support Vaughan's informed consent claim.
2. Responsibility for disclosure.
Vaughan suggests that there is a fact issue whether Nielson improperly delegated his nondelegable duty to inform Vaughan of the risks. Nielson argues in response that he was not required to personally present the consent form to *739 Vaughan and that he fulfilled his duty to disclose as a matter of law when Vaughan signed the consent form before the surgery.
Texas cases have consistently held that nothing in Chapter 74 requires a physician to personally promulgate the disclosure form. Jones v. Miller, 966 S.W.2d 851, 855 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Eckmann v. Des Rosiers, 940 S.W.2d 394, 398-99 (Tex.App.-Austin 1997, no writ); Jones v. Papp, 782 S.W.2d 236, 240-41 (Tex.App.-Houston [14th Dist.] 1989, writ denied). To be sure, the physician retains responsibility for the propriety of the disclosure form. Papp, 782 S.W.2d at 241. The simple fact, however, that Nielson did not present the form to Vaughan does not raise any fact issue.
3. Misrepresenting and understating the risk.
Vaughan also argues that the consent form did not adequately disclose the risks because it misrepresented the success rate of ETS for axillary hyperhidrosis and understated the risk that Vaughan would develop compensatory sweating and other side effects. Citing a Fifth Circuit case, Vaughan asserts that a gross disparity between percentages of success and risk represented in the consent form and actual percentages can render an otherwise proper consent inadequate. McNeil v. Wyeth, 462 F.3d 364, 368 and n. 4 (5th Cir.2006) (in product liability involving duty of drug manufacturer to warn, holding that fact issue was raised where manufacturer warn[ed] of a much lower risk than the actual risk, "[W]e do not mean to suggest that de minimis differences in risk would send the adequacy question to the jury, but when the differences in risk are significant, their potential misleading impact is a question for the jury.").
Nielson asserts that his form disclosed all risks that a reasonable patient would consider in deciding whether to consent to ETS. He further contends that because Vaughan does not allege that he was harmed by the occurrence of an undisclosed risk, Vaughan cannot establish causation. Greene, 846 S.W.2d at 31 ("In order to establish that the failure to obtain informed consent was a proximate cause of his injuries, the plaintiff ... must ... establish ... that he developed ... nondisclosed risks or hazards, or, stated another way, that he was injured by the occurrence of [a] risk of which he was not informed."). Finally, Nielson argues that Texas does not require quantification of the risks and hazards in order for there to be adequate informed consent.
The form that Vaughan signed does disclose all the risks that Vaughan claims occurred as a result of the ETS procedure. Vaughan does not claim, however, that he is suffering from the occurrence of an undisclosed risk. His contention is that by grossly misrepresenting the likelihood of success and the risk of certain side effects, Nielson's disclosure is not adequate. TEX. CIV. PRAC. & REM.CODE ANN. § 74.101 (informed consent claims may be based on failure to disclose "or adequately disclose"). We agree.
As was explained by one court of civil appeals:
When a doctor misrepresents a patient's physical condition, the doctor's diagnosis, or test results, for the purpose of inducing the patient to consent to surgery, the harm caused by the misrepresentation is the formation of a consent decision by the patient based upon inadequate or erroneous facts. In short, the doctor ... fraudulently obtains a consent to operate. Thus the issue of informed consent encompasses not only the negligent failure to apprise a patient *740 of the risks of an operation but also the fraudulent report to a patient of test results.
Gaut v. Quast, 505 S.W.2d 367, 369 (Tex. Civ.App.-Houston [14th Dist.]), writ denied per curiam on other grounds, 510 S.W.2d 90 (Tex.1974). Several other Texas cases treat a claim that a physician secured a patient's consent through misrepresentation as an informed consent claim. See Theroux v. Vick, 163 S.W.3d 111, 114 (Tex.App.-San Antonio 2005, pet. denied) (patient's claims that doctor misrepresented his prior experience and training and misrepresented or failed to disclose the risks of need for more invasive surgery are based on "whether [the doctor] adequately disclosed the risks of the surgical procedure to her"); Baribeau v. Gustafson, 107 S.W.3d 52, 62 (Tex.App.-San Antonio 2003, pet. denied) ("Baribeau's fraudulent misrepresentation about the extent of the procedure he intended to perform essentially prevented [Gustafson] from making an informed choice about her medical treatment."); Marks-Brown v. Rogg, 928 S.W.2d 304, 306 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (allegation that doctor misrepresented nature of patient's cancer and failed to disclose risks of proposed treatment based upon patient's prior heart condition and medical history is one for lack of informed consent); Johnson v. Whitehurst, 652 S.W.2d 441, 446 (Tex.App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.) ("The issue of fraudulent misrepresentation by a doctor is included within the category of informed consent.").[4]
Here, Vaughan presented expert testimony from Dr. Mark Dylewski[5] that the actual chance that ETS would successfully treat axillary hyperhidrosis is 33%, not 90% as represented by Nielson. Dylewski further testified that Nielson downplayed the risk of compensatory sweating, claiming that it "may occur in 50% of patients" and that "it is regarded as a minor inconvenience for most patients," when in fact compensatory sweating occurs in 80-100% of patients, is more pronounced in patients like Vaughan who present with axillary as opposed to palmar hyperhidrosis, and will be "debilitating" in around 25% of patients who have EST to treat excessive armpit sweating.
It is one thing for a reasonable patient to consent to a procedure that he believes has a 90% chance of success; it is another thing altogether to consent to the same procedure knowing it actually has only a 33% chance of success. Similarly, consent to a procedure where the risk of a particular side effect is, in reality, 80-100% and 25% of patients will be "debilitated" by that side effect, is far different than consent after the patient is told that only 50% of patients will experience that side effect and "most patients" regard it as "a minor inconvenience."[6] These are not the sort *741 of de minimis differences in risk assessments that the Fifth Circuit said in McNeil would raise no fact issue. McNeil, 462 F.3d at 368 n. 4. Rather, the discrepancies in these percentages are sufficient to raise a fact issue as to whether Nielson misinformed Vaughan of the true risks of the procedure. Id. at 368 (holding that significant difference between percentages given in warning and actual percentages raises fact issue for jury).[7]
Vaughan also raised a fact issue on causation by testifying that he would not have had the surgery had he known it only had a 33% chance of success and there was a 25% chance that he would experience debilitating compensatory sweating. McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989). This Court held in Green v. Thiet that a plaintiff can establish causation in an informed consent case only when his injury is one that he was not informed about. 846 S.W.2d at 141. This holding does not preclude a plaintiff from claiming in an informed consent case that the risk was not adequately disclosed because the physician misrepresented the probability that the risk would occur. There is no meaningful difference between sustaining an injury from a risk about which the patient was not informed and sustaining an injury from a risk about which the patient was misinformed. In either case, the patient is entitled to offer proof that the lack of true information caused the patient to consent to a procedure to which he otherwise would not have consented.[8]
*742 Accordingly, because Vaughan raised a fact issue as to the elements of his informed consent claim, we hold that the trial court erred in granting summary judgment dismissing that claim.
NEGLIGENCE
As noted above, Vaughan alleges that Nielson misdiagnosed his condition, recommended and performed a procedure that was not medically advisable under the circumstances, and failed to recommend safer alternative treatments.[9] These negligence claims are distinct from Vaughan's informed consent claim. Nielson responds that the trial court properly granted a no-evidence summary judgment on Vaughan's negligence claims because there is no evidence that Nielson breached the standard of care in any of these respects.
Vaughan presented expert testimony from Dylewski that ETS is seldom, if ever, appropriate for treatment of axillary hyperhidrosis. Dylewski testified that Nielson breached the standard of care by failing to advise Vaughan to attempt alternative treatments and by performing ETS despite a limited chance of success and despite Vaughan's low resting heart rate immediately before the surgery, which was also a contraindication for ETS for Vaughan. Dylewski further testified that Nielson breached the standard of care by diagnosing Vaughan as having Raynaud's disease based solely on holding Vaughan's hand before the surgery.
When the gravamen of a patient's claim is that the physician performed an incorrect or unnecessary surgery, that claim is one for negligence, not informed consent. Binur, 135 S.W.3d at 656. Vaughan presented some evidence in support of his claim that Nielson failed to properly diagnose his condition and performed an unnecessary surgery, and the trial court erred in granting summary judgment on that claim. Id.
CONCLUSION
Vaughan presented evidence raising a fact issue as to whether Nielson misrepresented the risks and the likelihood of success for ETS. Vaughan also presented some evidence that Nielson breached the standard of care by misdiagnosing Vaughan's condition, failing to recommend alternative treatments, and performing an unnecessary procedure. The trial court, therefore, erred in granting summary judgment for Nielson.
Accordingly, the judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.
NOTES
[1] These side effects were described on the form as follows:
[1] Compensatory sweating on the trunk or thighs may occur in 50% of patients. Sweating in these areas is regarded as a minor inconvenience for most patients. Severe compensatory sweating that can soak through clothing may develop in some patients. The tolerance of compensatory sweating is patient dependent. Some tolerate severe sweating while others do not tolerate even minor compensatory sweating.
[2] Gustatory Sweating (increased sweating while smelling or eating) occurs in some patients.
[3] Impaired sweating of the upper chest/back, hands, face/head.
[4] Heat Intolerance[.]
[2] The complications were listed on the form as follows:
Serious Complications are unusual
Possible perforation of breast implants if present
Sensitive Pleurae (chest lining sensitivity) limiting exercise
Horners Syndrome occurrence rate 0.3%
Heat intolerance
Pneumothorax (collapsed lung)
Bleeding
Postop Neuralgia and parasthesias are uncommon
Possible hair loss
Bradycardia (slow heart rate) possibly requiring a pacemaker
Subcutaneous emphysema
Possible conversion to open thoracotomy
Possible recurrence of symptoms
Possible necessity for re-do operations
[3] The copy of this form in the record is a photocopy that is cut off at the bottom, such that the particular warnings listed for endoscopic surgery of the thorax and the boxes for the patient and nurse to initial are missing. Presumably, like the rest of the form, the warnings for endoscopic surgery of the thorax are those identified by the Panel.
[4] Some Texas cases permit plaintiffs to simultaneously state claims for both lack of informed consent and fraud. See Crundwell v. Becker, 981 S.W.2d 880, 883 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Melissinos v. Phamanivong, 823 S.W.2d 339, 344 (Tex. App.-Texarkana 1991, writ denied). Here, however, Vaughan disavowed bringing a fraud claim. His summary judgment response stated that he alleged Nielson's misrepresentations about the likelihood of success and side effects as part of his informed consent claim.
[5] Dylewski's qualifications to testify as a medical expert are not at issue in this appeal. Because of the procedural posture of this case, we accept Dylewski's testimony as true. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).
[6] The precise issue of whether a gross disparity between the success rates represented by the physician and actual success rates can give rise to an informed consent claim was addressed by the Wisconsin Court of Appeals in Molitor v. Engeler, 1990 WL 118263, *3 (Wis.Ct.App. 1990). There, the patient presented testimony that his physicians represented that "there was an 80% chance" that the proposed procedure for treating the patient's cancer would be successful, when in fact the cure rate was "only approximately 15-20%." Id. at *3. The court of appeals reasoned:
A genuine issue of material fact exists regarding [the doctors'] representations to [the patient] on the success rate for the proposed treatment. If the defendants . . . misrepresented to [the patient] their opinions as to the success rate, they breached their duty of disclosure. If that breach occurred, the question will be whether a reasonable person, fully apprised of the success rate, would have consented to the proposed treatment. ... We cannot say that no reasonable person would have declined such a treatment, knowing that it involved only a fifteen to twenty percent chance of success. The fact-finder must make that determination.
Id.
[7] Our opinion should not be construed as requiring a physician to quantify risk levels when informing a patient of a procedure's risks. Here, Nielson made quantification the issue by stating percentages that, according to Vaughan's expert, significantly differ from the actual percentages.
[8] In Weidner v. Marlin, No. 04-96-00160-CV, 1997 WL 531129 (Tex.App.-San Antonio Aug.29, 1997, no pet.), this Court considered a claim similar to Vaughan's. In Weidner, the plaintiff brought an informed consent claim (and disavowed claiming fraud) based on the doctor's alleged misrepresentation that there was a 50-80% chance the patient would lose total bladder control or suffer paralysis if he did not have a particular surgery. Id. at *8. The plaintiff's expert disagreed with this assessment, testifying that without the surgery, the plaintiff had a 20-25% chance of being as impaired as he was at the time of the testimony. Id. at *8 n. 10. This Court affirmed a summary judgment for the doctor, however, because the plaintiff's expert also testified that "there was good scientific support for [the doctor's opinion] and ... that there was a scientifically supportable range of assessing the risk." Id. at *8 n. 10 and *9. Such "legitimate differences of opinion relating to matters of medical prognosis" and disagreement "among learned experts regarding ... the risk of not having surgery" meant that, as a matter of law, there was no misrepresentation. Id. at *9. Here, on the other hand, Dylewski emphatically testified that the percentages in Nielson's disclosure form were contrary to overwhelming scholarly and scientific research.
[9] Vaughan also claims that Nielson failed to properly train and supervise his staff. This claim, however, is predicated on Vaughan's contention that it was improper for Nielson to secure Vaughan's consent to the surgery through employees or agents, a contention we have already rejected in connection with Vaughan's informed consent claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577973/ | 322 S.W.2d 260 (1958)
Curtis Richard LEE, Appellant,
v.
The STATE of Texas, Appellee.
No. 29701.
Court of Criminal Appeals of Texas.
October 8, 1958.
*261 John Cutler, Houston, for appellant.
Dan Walton, Dist. Atty. Thomas D. White and Monroe Northrop, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
Upon a trial before the Court without a jury, appellant was convicted of unlawfully possessing policy paraphernalia and his punishment assessed at a fine of $500.
Vice-squad Officer B. G. Bond of the Houston Police Department testified that on the day in question, he observed the appellant driving alone in a 1957 Ford Automobile on Holman Street in the City of Houston; that he followed the appellant and after he stopped, proceeded, under the authority of a search warrant, to search the automobile which appellant was driving; and in the search he found in the glove compartment fourteen T & L policy books, various "days plays", report sheets and cash in the amount of $230.21. After qualifying as an expert he further testified that the items found in the glove compartment of the automobile were adaptable for use in connection with a policy game.
It was further shown that the license number on the automobile which appellant was driving was issued to a person by the name of C. R. Lee.
Appellant did not testify or offer any evidence in his behalf.
In his brief and in oral argument appellant contends that both the complaint and information are invalid because they did not set out the written instruments that constituted the policy plays which he was charged with having possessed. While appellant filed no exception or motion to quash in the trial court we have examined both the complaint and information and find the allegations therein sufficient to charge the offense. The failure to set out the written instruments that constituted the policy plays did not render the pleadings insufficient to charge an offense. Cagle v. State, 147 Tex. Crim. 354, 180 S.W.2d 928.
Appellant next insists that the search of the automobile was illegal because of certain claimed defects in the affidavit for the search warrant and the warrant itself. The record reflects that both the search warrant and the affidavit were produced by the State, marked for identification purposes only and in making his objection thereto, counsel for the appellant read certain portions thereof from the affidavit to the Court and secured the Court's ruling on such objections. Though appellant's counsel had these in his hand he has not perfected his bill of exception by transmitting them to us. Neither instrument appears in the record before us. therefore the question of the legality of the search is not presented for review. Bailey v. State, 157 Tex. Crim. 315, 248 S.W.2d 144; Williams v. State, 159 Tex. Cr.R. 487, 264 S.W.2d 731 and DeLeon v. State, Tex.Cr.App., 297 S.W.2d 140. This is so because the validity of a search warrant is a question of law. Having secured a ruling from the trial court that they were valid, the State made out a prima facie case authorizing the search. In order to defeat the prima facie case so made out, it became incumbent upon the accused to bring the warrant and the affidavit to this Court so that we may pass upon the correctness of the trial court's ruling. It should be remembered that this is not a case where the officers merely said they had a search warrant but failed to produce the same. Here, they produced the warrant and secured a ruling from the trial court that the warrant was a legal warrant. If the court was in error in such ruling, then it became incumbent upon the appellant, *262 as in any other case, to bring the warrant before this Court so that we might pass upon the question so raised.
The State had no burden in the trial court to establish to the satisfaction of this Court that the search was lawful. The burden on the State was to satisfy the trial judge of such fact. It is the well-established rule of appellate review in this Court, if not all appellate courts, that the ruling of a trial judge is presumed to be correct and the burden rests upon the appellant to establish the contrary.
Without the search warrant and affidavit or evidence of their contents we are in no position to say that the trial court erred in admitting evidence obtained by the search under such warrant.
We find no error in the Court's action in permitting Officer Bond to explain the game of policy and to describe how the various items taken from the automobile driven by appellant were used in the game. The Officer was shown to be qualified as an expert and, as such, was authorized to give such testimony. Grigsby v. State, Tex.Cr.App., 298 S.W.2d 595.
Appellant contends that Art. 642c, sec. 2, Vernon's Ann.P.C., under which he is prosecuted, is invalid and unconstitutional because it does not define a policy game and delegates legislative power to police officers or experts to determine what is "adaptable for use in any policy game". With this contention we cannot agree. Whether or not a "writing, paper, print," etc., was "designed or adaptable" for such use would be a question of fact, like any other question of fact, upon which proof might be offered.
Finding the evidence sufficient to support the conviction and no reversible error appearing;
The judgment of the trial court is affirmed.
Opinion approved by the court.
DAVIDSON, Judge (dissenting).
According to their testimony, the officers searched appellant's automobile by reason and under authority of a search warrant. The evidence upon which this conviction rests and without which no conviction could legally result was obtained as a result of that search.
Appellant objected to the evidence obtained as a result of the search because of the illegality of the search warrant.
Neither the search warrant nor the affidavit upon which it was issued was offered in evidence and neither is a part of this record. But the contents of these instruments are not shown, nor is it otherwise shown that the affidavit and the search warrant complied with statutory requirements or were sufficientupon their faceto authorize the search.
The majority opinion overrules appellant's objection and admits the evidence obtained as a result of the search because appellant did not bring before this court the affidavit and the search warrant and evidence the correctness of the objection leveled thereto. In other words, it is the holding of the majority that the burden is upon the accused to show that a search of his property or the arrest and search of his person are unlawful before he can claim that such search was unlawful and that the evidence obtained was illegal. Stated another way: the holding of the majority is that evidence obtained by officers as a result of the search of one's person or property is admissible and so remains until and unless the person attacking the admission of the evidence shows that the search was without authority of law, thereby casting upon the accused the burden of proving that said evidence was not admissible.
To such conclusion I cannot agree.
It is my opinion that when the state seeks to introduce evidence obtained as a result of a search of one's person, property, or possessions the burden is upon the state, as a condition precedent to the admission of *263 such testimony, to show that it was lawfully obtained and therefore admissible in evidence. For the state to comply with that burden, the least objection by the accused is all that is or should be required. Stated another way: it is my view that when the state seeks to introduce evidence which upon its face is ordinarily not admissible and becomes admissible only by reason of some exception, the burden is upon the party offering the evidence to show a compliance with or existence of the exception as a condition precedent to the admission of the evidence.
A general objection on the part of the accused requires a showing that the exception exists which renders admissible the otherwise inadmissible testimony.
Here are the reasons why my view is correct and that of the majority incorrect:
The Constitutions of this state (Art. 1, Sec. 9), Vernon's Ann.St., and of the United States (Fourth Amendment) guarantee that the people of this state "shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches." Only such searches and seizures (arrests) as are reasonable are authorized. All others are therefore prohibited as unreasonable.
The framers of the Constitution did not undertake to define what searches and seizures are reasonable. The legislature, however, has provided by statute for the issuance of search warrants and for the arrest, with a warrant of arrest, of individuals. In addition to these statutes, this court, by construction, has authorized search of certain properties upon what is known as probable cause.
A search or arrest made in compliance with these statutes or which comes within the rules stated is reasonable, within the meaning of the Constitution. It follows, therefore, that searches and arrests which are made without lawful authority are unreasonable and are prohibited by the Constitution.
What constitutes an unreasonable search or seizure, as I understand it, is very aptly stated in 47 Am.Jur., Searches and Seizures, Sec. 52, p. 533, as follows:
"The decisions appear to warrant the generalizations that every unlawful search and seizure is unreasonable, and that a search and seizure is unreasonable where it is not authorized by statute; or where the statute under which the warrant is issued does not conform to the conditions under which the constitutional guaranties permit such warrants to issue; or where the conditions prescribed by the statute have not been met * * *."
The legislature of this state was not content, however, to rest the admission of evidence alone upon the constitutional provision prohibiting unreasonable searches and seizures but, in addition, enacted Art. 727a, Vernon's Ann.C.C.P., which provides that:
"No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the United States or of this State shall be admitted in evidence against the accused on the trial of any criminal case."
Such statute not only renders inadmissible evidence obtained in violation of the search and seizure provisions of State and Federal Constitutions but includes any evidence obtained in violation of the statute law of this state touching searches and arrests.
What I have said is to demonstrate that unless and until evidence obtained in a search or arrest is, prima facie, shown to be obtained in accordance with legal requirements and therefore reasonable, its receipt in evidence in a criminal case is expressly prohibited and unlawful.
Now let us see what this court has said touching the question as to which party has the burden of establishing the admissibility or inadmissibility of evidence obtained by a search or an arrest:
*264 The case of Henderson v. State, 108 Tex. Cr.R. 167, 1 S.W.2d 300, 301, is, in my opinion, directly in point upon the question. In that case the state placed peace officers upon the stand and proposed to prove by them what they found as a result of a search of the residence of the accused. The accused objected to such proof because it was not shown that the search was authorized. The prosecuting attorney then asked the witnesses if they had a search warrant. It was developed that the officers did not have the warrant with them at the trial but that it was in the office of a justice of the peace. Without any further effort on the part of the state to produce the warrant, to show its issuance, or to prove its contents the officers were permitted to testify as to what they found as a result of a search of the residence over the objection that the state had failed to show that the witnesses had a valid search warrant. The court there said:
"The real question is, having proved only that the officers had a search warrant, without any showing that it was regular on its face, had the state laid a sufficient predicate to permit evidence as to the result of the search? Our present statutes, notably Articles 4a and 727a, C.C.P. (1925), place the receipt of evidence secured by search of a private residence somewhat on the same basis as the confession of the accused which is excluded by statute unless taken under certain conditions (Art. 727, 1925 C.C.P.), which requires a predicate to be laid by the state which prima facie shows that the formalities have been complied with before the confession becomes admissible."
After citing supporting authorities, the holding in the case was stated as follows:
"In the absence of a showing that the warrant under which the officers assumed to act in the present case was regular on its face and contained recitals showing compliance with the legal requirements, the learned trial judge fell into error in admitting proof of the evidence complained of."
It is difficult to understand how a case could be more directly in point with the instant case.
Here, the officers made a search of the automobile upon the authority of what they said was a search warrant. The search warrant was not offered in evidence and does not appear in the record. There is an entire absence of any proof in this record as to the contents of the warrant or whether it was regular on its face or contained recitals showing compliance with legal requirements.
The case of Blackburn v. State, 145 Tex. Cr.R. 384, 168 S.W.2d 662, 663, follows the Henderson case and is also deemed directly in point here. In that case appellant objected to the admission in evidence of testimony showing the result of a search of his premises because the state did not exhibit, as a condition precedent to the introduction of said testimony, a valid search warrant authorizing the search. This court held in that case as follows:
"When objection was interposed to evidence of the officers, mere proof that the officers had a search warrant is no evidence that such warrant was regular on its face, and contained recitals showing compliance with legal requirements."
Under that holding, the mere exhibition of the search warrant to the trial court, without introducing it as evidence, was not and could not be sufficient, because there was nothing to show that the exhibited warrant was regular upon its face or complied with legal requirements.
The objection to proof of the search was well taken.
From the authorities above discussed it appears that it is the correct rule of law in this state that when evidence is sought to be introduced which was obtained as the result of a search warrant the state, as a *265 condition precedent to the introduction of such testimony, must present a prima facie case showing that the search warrant was properly issued.
It becomes material, then, to know when the state has fulfilled the burden cast upon it.
The authorities are in accord that this is accomplished when the state introduces a search warrant regular upon its face, or otherwise presents a prima facie case showing that the search was authorized by lawin which event the burden is upon the accused to show the illegality of the search and the admissibility of the evidence. Taylor v. State, 120 Tex. Crim. 268, 49 S.W.2d 459, and authorities there cited.
Such is the construction I place upon the case of Williams v. State, 159 Tex. Crim. 487, 264 S.W.2d 731, authored by me while a commissioner of this court and which the majority opinion cites as supporting their holding that the accused has the burden of proving the invalidity of a search warrant relied upon to sustain a search and the inadmissibility of evidence obtained as a result of a search of his person or property.
It will be noted that the Williams case pointed out that the search was made by virtue of a search warrant. The state had thereby made out a prima facie case. In such instance, the burden shifted to the accused to show the invalidity of the warrant. Such was the holding in the Williams case.
The DeLeon case, cited in the majority opinion, is susceptible of the construction that the search warrant was introduced and in the record.
Neither the Williams case nor the DeLeon case supports or sustains the holding of the majority. If they do, however, then they ought to be overruled because they are wrong and against the weight of the authority and destroy our constitutional guarantee against unreasonable search and seizure.
Under the holding of the majority it is now the law of this state that peace officers can, in the dead of night, kick in the door of one's private residence, search and ransack his house, and arrest and carry him to jail without evidencing any lawful authority for such acts and conduct.
To complain thereof or to seek redress therefor, such an outraged citizen is required to prove that the officers had no lawful authority to do what they did. Their acts, of and within themselves, show the wrongfulness and unlawfulness thereof. But, under the holding here, such acts are presumed to be lawful and remain so until the outraged citizen shows that the acts were committed without lawful authority.
It will be remembered that at one time it was unlawful for a peace officer, or any other person, to search one's private residence, person, or personal possessions without having first obtained a search warrant as required by law. The penalty for a violation of that law was a fine of not less than $100 nor more than $500 or by confinement in the county jail for not more than six months or by both such fine and imprisonment. Arts. 4a and 4b, Code of Criminal Procedure of 1925.
The legislature repealed those statutes in 1929, and since that time there has been no law in this state making it unlawful and punishable as a penal offense for a peace officer to search one's private residence, person, or possessions without lawful authority.
Under the holding of this court in the instant case, the only chance a peace officer now takes in searching one's private residence, property, or possessions, or person is that if the injured party can make proof that such search was unlawful all he can do is to sue the officer for damages.
Under such system and rule, the freedom from unreasonable search and arrest of which we so proudly boast has deteriorated to the point that it now exists only at the will and pleasure of the peace officers of this state.
*266 I have no apology for expressing my views at length upon the question of search in a case which is of little importance, such as the instant case. The rule announced here and to which I address myself is the same as if this were a case of great moment.
The majority opinion appears not to justify the introduction of the evidence of the search solely upon the proposition that the appellant failed to show that the search was unlawful. The majority take the alternative position that if they are not correct in holding that the burden was on the appellant to show the unlawfulness of the search the state met the burden because, having exhibited the warrant and its supporting affidavit to the trial judge and having secured a ruling from him that they were valid, the state made out a prima facie case authorizing the search.
I am at a loss to ascertain from this record any authority for the statement that the search warrant and the affidavit were exhibited to the trial court. Here is the record as I read it:
The state adduced from the witness Bond, who made the search of the automobile, the following testimony:
"Q. State what you did when you first saw the defendant. A. Followed him.
"Q. Did you later stop the automobile? A. He stopped himself in the twenty-one hundred block of Berry.
"Q. What did you do after the defendant stopped? A. We handed him a policy search warrant, and identified ourselves as officers. He read the search warrant.
"Q. What was the search warrant for? A. A policy search warrant for the automobile he was driving, issued by Judge Maes.
"Q. Automobile license number SK-689? A. Yes sir.
"Q. I am going to show you this affidavit, and search warrant and ask you if this is the affidavit and search warrant you got for the automobile? A. Yes sir.
"Q. Did you obtain it from Judge Maes? A. Yes sir."
At this point, state's counsel announced that he "would like to have the affidavit marked State's exhibit number one for identification only." The court reporter noted in the statement of facts that the instrument was marked by him as state's exhibit number one for identification purposes only, following which the testimony of the witness Bond was resumed, as follows:
"Q. I'll show you the search warrant and ask you if you recognize that? A. Yes sir.
"Q. Is that the search warrant you obtained from Judge Maes? A. Yes sir."
Thereupon, state's counsel asked to have "the Search Warrant marked State's Exhibit number two for identification only" and the court reporter noted that he marked the instrument as "State's exhibit number two for identification purposes only."
The foregoing is all that this record reflects as to the introduction or exhibition of the affidavit and the search warrant, that is: that state's counsel asked that the instruments be marked for identification. Nowhere is it shown that those instruments were introduced in the record or exhibited to the court or the appellant.
It is apparent, therefore, that the record fails to reflect that the state, before searching the automobile, showed its authority to do so.
But, for the sake of argument, let it be conceded that the affidavit and the search warrant were exhibited to the trial court, as the majority opinion says. Such by no means dispenses with the necessity of having this record reflect the affidavit and the warrant.
Besides the appellant, there are others interested in knowing the contents of these *267 instruments and whether they authorized a search of the automobile. Those others happen to be the judges of this court!
Here is a man convicted in this state upon testimony which the state admits was obtained by a search of his automobile, under a search warrant.
To the introduction of that testimony repeated objections are urged, to which the trial court makes, among others, the following ruling:
"Let the record show the defendant and his attorney object to the introduction of any and all of the items found as a result of this search, and he has a running objection to any testimony concerning the findings, and the result of the search."
From the conviction which resulted, the appellant exercises his right of appeal and his right to have this court determine whether the state was authorized to use against him the evidence obtained as a result of a search of his automobile.
By that appeal, the jurisdiction of this court attaches and it thereby becomes the duty of the judges of this court to determine if the evidence of the search was admissible, such determination to be made from the record before us.
As one of the judges of this court I know that under the Constitution of this state one's automobile is protected from unreasonable search and seizure. I know that the statute law of this state prescribes when a search warrant may issue to search one's automobile and the requisites to the issuance of a valid search warrant. I know that under the prior holdings of this court the burden is upon the state to show the right to search under a search warrant.
Charged with the knowledge of these requirements, how am I, as a judge of this court, to determine the question of the lawfulness of the search if there is not before me, as a part of the record, evidence sufficient to show the right of the officers to make the search?
I cannot delegate to another the right to make that determination for me. I have no right to accept the finding of the trial court and blindly adopt his conclusions as my own.
When I vote to affirm a conviction obtained solely and alone as a result of a search of one's person, property, or possessions, under a search warrant, I ought to be able to point in the record before me to where the state showed that the warrant was valid and authorized the search.
Such a showing is not here.
My brethren sustain the validity of Art. 642c, V.A.C.P., in so far as it makes unlawful the possession of policy slipswhich is the offense for which appellant has been convicted.
The fact that the state, here, in order to prove its case had to call upon what it termed an expert witness upon policy to testify as to what the meaning of "policy plays" was, of and within itself shows that the statute, in making unlawful the possession of a policy play, is so vague, indefinite, and uncertain as to come within the condemnation of Art. 6, Vernon's Ann.P.C., which renders the statute invalid.
Whenever the meaning of a statute or the words contained therein are dependent upon expert testimony, the expert makes the law and not the legislature. If one expert by his testimony can make a statute, another expert can by his testimony destroy it. Moreover, expert testimony has never been permitted to invade the province of the jury and to determine the very fact which the jury were called upon to determine.
Here, it was the duty of the jury to determine whether appellant possessed a policy play. The expert made that determination for the jury by testifying as to what a policy play was.
I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577972/ | 274 S.W.3d 468 (2008)
Steve CHIPMAN, Jr., Movant-Appellant,
v.
STATE of Missouri, Respondent-Respondent.
No. 28883.
Missouri Court of Appeals, Southern District, Division Two.
October 3, 2008.
*470 Margaret M. Johnston, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., and Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for Respondent.
GARY W. LYNCH, Chief Judge.
Steve Chipman, Jr. ("Movant") entered a plea of guilty to an amended charge of second-degree murder (pursuant to section 565.021).[1] At the same time, he also entered an Alford plea to a charge of forcible rape (pursuant to section 565.030).[2] Both charges were brought in connection with the rape and murder of Movant's twelve-year-old cousin ("Victim").[3] Movant was sentenced to two consecutive thirty-year terms of imprisonment. Once incarcerated, Movant filed a timely pro se motion for post-conviction relief under Rule 24.035.[4] Counsel was appointed, and an amended motion was filed. Following an evidentiary hearing, the motion court entered judgment *471 denying relief. This appeal followed. We affirm.
Movant's Claim for Post-Conviction Relief
In his amended motion, Movant contended that he was denied due process of law "in that the plea court accepted his guilty plea to murder in the second degree without a factual basis having been demonstrated for that offense, contrary to Rule 24.02(e)." Movant claimed that "[d]uring the plea hearing, the factual basis for the crime was purportedly established only by the following: [Prosecutor] . . . . On August 7th of 2005 here in Stoddard County, up north of Acorn Ridge, Missouri, Mr. Chipman caused the death of [Victim]. He did so by stabbing her." Movant further contended that the prosecutor's description
consists of conclusions, not facts. It is merely a citation of the charge. There was no demonstration of any evidence that movant had acted "knowingly[."] There was no demonstration of movant's state of mind; of whether movant acted intentionally, was reckless, or otherwise. And there was no demonstration that movant was acting "with the purpose of causing serious physical injury[."] Likewise, there was no demonstration of any evidence that movant was committing or attempting to commit a felony, or was fleeing from such. No facts were demonstrated whatsoever. A factual basis for a guilty plea must be demonstrated. It cannot be assumed.
Movant concluded that his "plea was not knowing and voluntary in that he [pleaded] guilty to a crime where no factual basis had been shown. Had the Court properly ensured that a factual basis was established for the charge before accepting the plea, it would have rejected [Movant's] guilty plea."
Standard of Review
This court reviews a denial of post-conviction relief under Rule 24.035 to determine whether the motion court's findings and conclusions were clearly erroneous. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court's findings and conclusions are deemed clearly erroneous only if, after a review of the record, this Court is left with a definite and firm impression that a mistake has been made. Id.
Discussion
On appeal, Movant presents one point relied on, wherein he claims that the motion court "clearly erred" in denying his motion "when it found that a factual basis existed for his guilty plea to murder in the second degree, because [Movant's] plea was unknowing and involuntary since the guilty plea record failed to establish a sufficient factual basis." Movant contends that his acknowledgment of the truth of the prosecutor's statement that he caused Victim's death "by stabbing her with a knife . . . did not establish a factual basis because it is as consistent with the elements of voluntary manslaughter as it is with second degree murder." Movant challenges only his plea to the charge of murder in the second degree. He does not contest his Alford plea to forcible rape under count two of the amended information. Movant further asserts that he admitted only that he caused victim's death by stabbing her, and "[h]e was not asked about his mental state or his purpose when he stabbed her." This admission, he claims, fails to establish that he had the purpose of causing serious physical injury and does not establish a sufficient factual basis for second degree murder.
"A factual basis for a guilty plea is necessary to ensure that the guilty plea *472 was intelligently and voluntarily entered, thereby satisfying due process requirements." State v. Henry, 88 S.W.3d 451, 457 (Mo.App.2002) (citing Parker v. State, 608 S.W.2d 543, 545 (Mo.App.1980)). Rule 24.02(e) provides that "[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." This rule, however, is not constitutionally mandated. Sales v. State, 700 S.W.2d 131, 133 (Mo.App.1985). Nor does a plea court's failure to comply with this rule render its judgment invalid for lack of jurisdiction. Samuel v. State, 156 S.W.3d 482, 484 (Mo.App.2005); Waserman v. State, 100 S.W.3d 854, 861 (Mo. App.2003); State v. Henry, 88 S.W.3d 451, 457 (Mo.App.2002). Rather, the purpose of Rule 24.02(e) "is to aid in the constitutionally required determination that a defendant enter a plea of guilty intelligently and voluntarily." Schuerenberg v. State, 98 S.W.3d 922, 923 (Mo.App.2003). Rule 24.02(e) serves as protection for "an accused who may appear to be pleading voluntarily and with an understanding of the nature of the charge, but who does so without realizing that his conduct does not actually fall within the charge." Price v. State, 137 S.W.3d 538, 541-42 (Mo.App. 2004). In other words, a movant's post-conviction constitutional challenge to the knowingness and voluntariness of his or her guilty plea based upon an insufficient factual basis must not only prove the insufficiency of a factual basis on the record before the plea court, i.e., the lack of compliance with Rule 24.02(e), but also must demonstrate that such failure deprived him or her of the actual knowledge of the factual basis for the charge, thereby rendering his or her plea unknowing and involuntary and, thus, unconstitutional.
Compliance with Rule 24.02(e)
There is no particular ritual in establishing a factual basis for a guilty plea as required by Rule 24.02(e). Myers v. State, 223 S.W.3d 165, 167 (Mo.App. 2006). Further, "[n]othing in the rule requires that a factual basis be established before a guilty plea is accepted." Price, 137 S.W.3d at 542. A determination that there is a factual basis for the plea "can be made anytime before the judgment is entered and `from anything that appears on the record.'" Id. (quoting United States v. Adams, 961 F.2d 505, 512 (5th Cir.1992)). See also Martin v. State, 187 S.W.3d 335, 339 (Mo.App.2006) ("the factual basis does not have to be established from the defendant's words or by an admission of the facts as recited by the State, as long as the basis exists on the record as a whole."). "An appellate court's focus is on whether the defendant understood the nature of the charge against him and not on whether a particular ritual was followed or every detail was explained." Wagoner v. State, 240 S.W.3d 159, 165 (Mo.App.2007).
In denying Movant's claim, the motion court, in addition to the prosecutor's summary statement of the facts supporting the murder charge, referenced a motion hearing held on November 21, 2006, two months before Movant's plea hearing, in which evidence was heard by the trial court on Movant's motions to suppress statements and evidence. The motion court notes that the transcript of that hearing was filed in the underlying criminal case just eight days later on November 29, 2006, some two months before Movant's plea hearing. This transcript was designated as Motion Court Exhibit 1 and was offered and received into evidence at the motion hearing when the motion court took judicial notice of the entire underlying criminal case file. This exhibit, however, was omitted by the Movant from the record before this court. Therefore, the content and the intendment will be taken as unfavorable to Movant and as *473 favorable to the motion court's ruling. See State v. Crawford, 32 S.W.3d 201, 206 n. 4 (Mo.App.2000).
The motion court also referenced the autopsy report admitted into evidence during the plea hearing as exhibit 3. The autopsy report indicated that Victim "died as a result of knife stab wounds of the head and back." It also found that Victim had been stabbed thirty-four times. The motion court found that "[t]he foregoing was sufficient to establish a factual basis[,]" in that all were part of the record and available to the plea court.
Count I of the amended information charged that Movant "committed the class A felony of murder in the second degree,. . . in that on or about August 7, 2005, . . . [Movant] knowingly caused the death of [victim] by stabbing her." Under section 565.021.1(1), "[a] person commits the crime of murder in the second degree if he: (1)[k]nowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person[.]"
Section 562.016 establishes definitions of the culpable mental states relating to the elements of conduct, result, and attendant circumstances set out in the statutes defining the offense. Defined under subsection 2, "[a] person `acts purposely[,'] or with purpose, with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result." Section 562.016.2. Subsection 3 provides that "[a] person `acts knowingly[,'] or with knowledge, (1)[w]ith respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or (2)[w]ith respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result." Section 562.016.3.
Movant here claims that his affirmance of the accuracy of the prosecutor's statement that he caused Victim's death by stabbing her "does not establish that [Movant] had the `purpose of causing serious physical injury' to [Victim] when he stabbed her[.]" This claim, however, ignores the fact that Movant stabbed Victim thirty-four times, as disclosed by the autopsy report admitted into evidence and in the record before the plea court. Based upon this additional fact, coupled with Movant's admission that he killed Victim by stabbing her, the plea court could reasonably infer that Movant acted with the purpose of causing Victim serious physical injury. In addition, we consider the omission from the record on appeal of the transcript of the hearing on Movant's motions to suppress statements and evidence, which was before the plea court, as supporting this inference. See State v. Crawford, 32 S.W.3d 201, 206 n. 4 (Mo.App. 2000). We conclude, therefore, that the record before the plea court sufficiently established a factual basis for Movant's plea of guilty to murder in the second degree, and the motion court's findings and conclusions to that effect were not clearly erroneous.
Movant's Actual Knowledge of Factual Basis for Plea
In addition to its findings regarding the evidence in the record before the plea court, the motion court found, "Movant was present at the preliminary hearing and at the suppression hearing, and he knew the contents of his incriminating statements."
Movant's preliminary hearing was held October 28, 2005. Testifying at this hearing were several law enforcement officers who participated in the investigation of Victim's murder, including Scott Rawson, with the state highway patrol, who interviewed *474 Movant and obtained his statement that when victim threatened to tell his parents that the two had sex, he got mad, and "lost it," stabbing victim in the neck. In addition, a document authored by Movant and titled "Voluntary Letter of Apology" was admitted at Movant's preliminary hearing. This document read:
Dear Aunt Cindy,
I'm so sorry for what I did. I know nothing I say will make you understand but if I could take it back I would, if I could trade places with her I would. But I thought you should know I'm sorry for lying to everyone and I don't blame you if you hate me. But I love everyone very much. Me and [Victim] had sex at the barn after we told each other about our night. The [sic] she wanted a cigarette, I said I only had a few, then she said she would tell that we had sex, besides what's the big deal we've smoked before. But I got scared and lost it. I then got rid of my clothes and went home. Dad has nothing to do with this. I was at the field beside the house when he went hunting, then I ran through the downstairs door took a shower then went to bed.
When I lost it I stabbed her in the neck. I was so scared after that I wanted to die, but I set the hay on her and put it on fire. I finally told the police and I'm going to show them where I hid everything.
The Movant's presence at his preliminary hearing demonstrates that he had knowledge of the State's possession of his written letter to his aunt Cindy, wherein he confessed that he stabbed Victim after she threatened to "tell that we had sex" and that he burned her body in an attempt to cover up the killing. Both of these facts, in addition to the facts in the record before the plea court, would support a reasonable inference that Movant knowingly killed Victim to prevent her from disclosing that they had sex a factual basis for a plea to second degree murder. See section 565.021.1(1). This knowledge, regardless of whether the plea court complied with Rule 24.02(e) or not, supports the motion court's conclusion that Movant's plea was knowingly and voluntarily made, and that conclusion is not clearly erroneous.
We need not reach the merits of Movant's contention that his affirmation of the prosecuting attorney's statement during the plea hearing, considered in isolation by itself, was as consistent with the elements of voluntary manslaughter as it was with second degree murder. This is so because the plea court had much more factual information in the record before it than just the prosecutor's statement and Movant's admission thereof the autopsy and the transcript of the hearing on Movant's motions to suppress statements and evidence and, regardless of any limitation on the facts that may have been before the plea court, Movant had sufficient actual knowledge of the facts to render his plea knowing and voluntary as found by the motion court. Movant's point is denied.
Decision
The judgment of the motion court is affirmed.
PARRISH, J., and RAHMEYER, J.
NOTES
[1] References to statutes are to RSMo 2000, unless otherwise indicated.
[2] See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162(1970). Movant's Alford plea was entered based on a plea agreement with the State of Missouri. Movant was initially charged with one count each of first-degree murder, armed criminal action, forcible rape, and statutory rape. After the State filed notice of its intent to seek the death penalty and one week before his trial setting, Movant entered guilty pleas pursuant to a plea agreement under which the State dismissed the counts of first-degree murder, armed criminal action, and statutory rape, and amended the charge of first-degree murder to second-degree murder. To the charge of forcible rape, Movant continued to insist that the sex was consensual, thus he entered an Alford plea.
[3] Section 566.226 requires, in part, that "[a]fter August 28, 2007, any information contained in any court record, whether written or published on the Internet, that could be used to identify or locate any victim of sexual assault, domestic assault, stalking, or forcible rape shall be closed and redacted from such record prior to disclosure to the public." Therefore, we use the term "Victim" in this opinion in order to comply with this statute. No disrespect is intended.
[4] References to rules are to Supreme Court Rules (2007), unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577992/ | 274 S.W.3d 693 (2007)
U.S. IMAGING, INC. d/b/a Sadi Pain Management and Berney R. Keszler, M.D., Appellants,
v.
Craig GARDNER and Thelma Gardner, Appellees.
No. 04-07-00340-CV.
Court of Appeals of Texas, San Antonio.
December 28, 2007.
Rehearing Overruled February 28, 2008.
*694 Stephanie S. Bascon, Rebecca A. Copeland, Reagan Burrus Dierksen Lamon & Bluntzer, P.L.L.C., New Braunfels, TX, L. Cullen Moore, Debra Ibarra Mayfield, Nathan M. Rymer, Rymer, Moore, Jackson & Echols, P.C., Houston, TX, for Appellant.
William M. Nichols, William M. Nichols, P.C., San Antonio, TX, Elizabeth Higginbotham, Liddell, Sapp, Zivley, Hill & Laboon, L.L.P., Austin, TX, for Appellee.
Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice Rebecca, SIMMONS, Justice.
MEMORANDUM OPINION
Opinion by REBECCA SIMMONS, Justice.
This case stems from a medical malpractice suit wherein Craig and Thelma Gardner (jointly "the Gardners") filed suit alleging that U.S. Imaging, Inc. d/b/a SADI Pain Management ("SADI") and Dr. Berney Keszler breached the standard of care regarding a lumbar epidural procedure performed on Mr. Gardner. SADI and Keszler filed objections to the expert report and motions to dismiss based on an inadequate expert report pursuant to Section 74.351 of the Texas Practice and Remedies Code.[1] The trial court overruled the objections and denied the motions to dismiss and this appeal ensued. We reverse the trial court's order and remand this matter to the trial court for entry of a dismissal with prejudice regarding the Gardners' claims against SADI and Keszler.
FACTUAL BACKGROUND
Craig Gardner complained to Dr. Keszler of lower back pain. On July 7, 2004, Keszler allegedly performed a percutaneous fibrinolysis, neurolysis and nonspecific nerve root decompression and epiduolysis of adhesions (a lower epidural procedure). On August 24, 2006, the Gardners filed a health care liability suit claiming: (1) Keszler's performance of the epidural procedure was not adequately described in the medical records; (2) the procedure resulted in spinal meningitis, a recognized risk associated with epidural procedures; (3) Keszler performed a procedure that had no medical indication; and (4) the procedure was not performed in accordance with protocols for the stated procedure and for which procedure, Mr. Gardner had not given consent.
In accordance with Section 74.351 of the Texas Civil Practice and Remedies Code, the Gardners proffered an expert report prepared by Dr. Edson Parker. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon 2006). SADI and Keszler filed objections to the expert report and a motion to dismiss under Section 74.351. Id. The Gardners did not file a written response to either the objections or the motions to dismiss. The trial court conducted a hearing *695 on April 19, 2007 and denied the motions to dismiss.
STANDARD OF REVIEW
An appellate court reviews the denial of a motion to dismiss filed pursuant to Section 74.351 under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Accordingly, this court must determine whether the trial court acted arbitrarily and without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).
A plaintiff asserting a health care liability claim must timely provide each defendant health care provider with an expert report. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). The statute defines "expert report" as follows:
a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Id. § 74.351(r)(6). If a plaintiff timely furnishes the required report, the defendant may file a motion challenging the report's adequacy. See id. § 74.351(l).
INADEQUACY OF THE REPORT
When considering a Section 74.351 motion to dismiss, the issue for the trial court is whether the plaintiff's expert report constitutes a "good-faith effort" to comply with Section 74.351. See TEX. PRAC. & REM.CODE. ANN. § 74.351(l) (providing the trial court must grant the motion "only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)."). To constitute a good-faith effort, the report must (1) inform the defendant of the specific conduct called into question by the plaintiff's claims and (2) provide a basis from which the trial court may conclude the claims have merit. Palacios, 46 S.W.3d at 879.
We first address appellants' claims that the report fails to provide the necessary causal relationship between Keszler's acts or omissions and Mr. Gardner's injury. We note there are no "magical words" required to establish the necessary causal link. See Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002).
In his report, Parker concludes:
It is my medical opinion, to a reasonable degree of medical certainty, that the persistent profound sensorineural hearing loss Mr. Gardner currently suffers, as diagnosed by Dr. Robert Spears, following the lumbar epidural procedure performed by Dr. Keszler on 7/1/04, with subsequent meningitis, is directly related to that procedure, a procedure which had no medical indication for its performance, was not performed in accordance with protocols for the stated procedure and for which Mr. Gardner did not give his informed consent, specifically with respect to the risk of meningitis.
Although an expert report need not marshal all of the plaintiff's proof, it must include the expert's opinion on the standard of care, breach, and causal relationship and may not merely state conclusions about the required elements of each. Id. at 52 citing Am. Trans. Care Cntr. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001). Section 74.351 requires an expert to explain the basis of his opinions and link his conclusions to the facts. Id. A court looks no further than the four corners of the document. Id. at 53; TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l), (r)(6). This requirement precludes a court from *696 filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. Bowie Mem'l Hosp., 79 S.W.3d at 53.
Parker faults Keszler for performing an unnecessary surgery, not fully informing Mr. Gardner of the inherent risks, and of not performing the surgical procedure described in his surgical notes. Although Parker concludes that Mr. Gardner's injuries are "directly related" to the epidural procedure, he fails to explain how Keszler's procedure caused Mr. Gardner's hearing loss or the Gardners' alleged damages in general. Accordingly, Parker's report does not establish a causal link between the alleged breach from the standard of care, if any, and Mr. Gardner's injury. See § 74.351(r)(6).
This case is distinguishable from cases like Gallardo v. Ugarte, 145 S.W.3d 272 (Tex.App.-El Paso 2004, pet. denied). In Ugarte, the twenty-eight page expert report explained that the doctor failed to accurately assess and diagnose the patient and, further, failed to explain his actions in his notes, and opined that it was these failures that caused the death of the patient. Id. at 279. The court held the report represented a good-faith effort to provide a fair summary of the expert's opinions as to causation because it indicated that if the proper steps had been taken, the injury could have been prevented from occurring or progressing. Id. at 280. Our case is inapposite.
Here, Parker simply states the meningitis and hearing loss are "directly related to [the lumbar epidural] procedure." He fails, however, to provide any basis for this opinion. Absent in his report is any discussion or authority that the epidural procedure in question caused Mr. Gardner's meningitis or that the meningitis caused his hearing loss. Unlike Ugarte, Parker fails to identify how the epidural procedure was the cause of the injuries or more specifically, how Keszler's negligence, if any, caused Mr. Gardner's injuries. Parker's report offers only conclusory comments related to causation. Because we cannot infer causation, the report is inadequate and the trial court should have dismissed the cause of action under Section 74.351. Because this determination is dispositive of this appeal, we need not address the remaining issues.
CONCLUSION
Because Parker's report fails to provide the necessary causal link between any negligence by Keszler and the resulting meningitis or resulting hearing loss, the report is inadequate and the trial court should have granted SADI's and Keszler's motions to dismiss. We, therefore, reverse the trial court's order and remand the cause to the trial court for a determination of reasonable attorney's fees and costs of court and to enter a judgment dismissing the Gardners' claims against Appellants U.S. Imaging, Inc. d/b/a SADI Pain Management and Dr. Berney Keszler with prejudice.
NOTES
[1] SADI also filed a motion to dismiss claiming no expert report had been served on it within the statutory deadline. Because we hold the expert report inadequate, we do not reach this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577991/ | 322 S.W.2d 529 (1959)
Durwood E. PELTON, Appellant,
v.
STATE of Texas, Appellee.
No. 30498.
Court of Criminal Appeals of Texas.
March 4, 1959.
Sam L. Harrison, Leonard Brown, San Antonio, for appellant.
Charles J. Lieck, Jr., Dist. Atty., James E. Barlow and Crawford B. Reeder, Asst. Dist. Attys., San Antonio, Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Presiding Judge.
The offense is murder; the punishment, 35 years.
There is little conflict in the evidence, and it will be summarized. The appellant and the deceased had a business transaction *530 involving $35 and some furniture on the day charged in the indictment, and the appellant felt that he had been defrauded. That night he saw the deceased leave a tavern, demanded the return of his money, and when the deceased stated that he did not have it the appellant assaulted him. According to his confession, he hit the deceased three or four times with his fist, and while the deceased was on the ground, kicked him an unknown number of times in the face with his right foot. The deceased was then picked up and put in an automobile; the appellant got in the back seat with him, and the automobile was driven around the city for approximately thirty minutes, during which time, according to the State's witnesses, the appellant continued to beat the deceased. The confession further recites that they finally found a place "to dump him off" near a warehouse in the industrial district. State's witnesses testified that the appellant pulled the deceased out of the automobile, kicked and beat him some more, and they then drove away, leaving the deceased lying on the ground, where he was found the next morning in the snow.
The autopsy showed that the deceased's death was the result of a number of factors. There was damage to his brain which caused him to lose consciousness. His jaw was broken in three places, which caused an unusual tension on the throat muscles. The blows which he had received caused a swelling of the tissue in his windpipe, and as a result of all three he died from the loss of air. When arrested the next morning, there was blood on the appellant's shirt, pants and shoes.
The facts will be discussed more fully in connection with the contentions advanced in the appellant's brief.
He first contends that the court erred in admitting the confession. The appellant was arrested at 8:30 in the morning, and the lengthy confession was signed within two hours thereafter. According to the bill, the officer talked to the appellant twenty minutes before "the defendant gave the statement." In his brief, the appellant states that he was carried to the morgue and shown the body of the deceased prior to the signing of the confession. In his testimony, the appellant says that this trip was made after he signed the confession and because he kept insisting that the deceased was not dead. There is ample evidence that the confession was freely and voluntarily given, and the appellant merely claims that he signed the same because he was told to and that he did not read it, and yet his signature appears on each page.
Bill of exception No. 2 complains of the action of the court in permitting the State to plead surprise and prove the contents of a statement which had been made by the witness Maxey. In connection with this bill, we deem it sufficient to observe that the procedure which was employed was as near perfect as the writer has observed. When the witness did not testify as expected, the jury were withdrawn, and State's counsel testified fully as to his prior conversations with the witness and demonstrated that he was in fact surprised. The witness was then questioned from his former statement and admitted that the statement was correct.
Bill of exception No. 3 complains of the failure of the court to grant an instructed verdict at the conclusion of the State's evidence and need not be discussed.
Bill of exception No. 4 complains of the failure of the court to "reduce the accusation from murder with malice to murder without malice." We are cited no authority in support of this contention nor are we aware of any. A death penalty conviction was affirmed in Northern v. State, Tex.Cr.App., 216 S.W.2d 192, where it was shown that the accused kicked the deceased around the head with his foot See also Ray v. State, 160 Tex. Crim. 12, 266 S.W.2d 124; Phillips v. State, Tex. Cr.App., 216 S.W.2d 213, and cases there cited.
*531 Bill of exception No. 5 complains that the court permitted the State to reopen its case through the witness Castillon when he was called by the defense. When the witness testified for the State in making out its case in chief and was tendered to the defense, counsel announced, "I have no questions at this time." Later, when presenting his defense, Castillon was recalled by appellant and asked to identify a certain receipt. Following this, he was questioned by the State concerning some of his original testimony. The effect of the court's ruling in permitting such questions at that time was to permit the State to reopen its case, which this Court has consistently held that the court might do at any time prior to the completion of the argument, and no error is shown by the bill. See Article 643, Vernon's Ann.C.C.P., and case there cited.
Bills of exception Nos. 6 and 7 relate to the same matter discussed in connection with Bill No. 4 and need not be discussed separately.
Bill of exception No. 8 complains of the court's charge on the law of principals. The qualification certifies that such charge was given at the appellant's request, and no error is presented by the bill.
Bill of exception No. 9 complains of that portion of the court's charge in which he instructed the jury that they must acquit the appellant of murder unless they found that in striking, kicking and stamping the deceased the appellant intended to kill him. His objection was that such instruction did not contain the word "specific" before the phrase "intent to kill." Recently, in Martin v. State, Tex.Cr.App., 213 S.W.2d 689, we held that the word "specific" need not precede the phrase in question.
A charge similar to the one before us here was approved in Wilson v. State, 136 Tex. Crim. 590, 126 S.W.2d 977.
What we have just said disposes of appellant's contentions presented by his bills numbered 10, 11 and 12.
By bill of exception No. 13, he complains of the failure of the court to charge on the law of circumstantial evidence. We have concluded that the testimony of the witnesses Leon Maxey and Dr. Hausmann take this case out of the circumstantial evidence rule. There was no testimony to support appellant's contention that the court should have charged on accident.
Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304536/ | SNODGRASS, J.
The original bill in the cause was filed May 31, 1927. To collect a note in the principal sum of $1666.66, with interest and attorney’s fee.
The answer was filed June 22, 1927, denying that defendant was indebted to complainant in any amount.
It was admitted that he signed the note as Trustee, and while it was also admitted that he endorsed the note as an individual, waiving demand notice and process, he also claimed the endorsement was without consideration and that the note was executed by him as trustee for himself and another in the purchase from complainant of a tract of five acres of land in the out suburbs of Fort Myers, Florida, for which he had executed a mortgage deed conveying said five acres to complainant for the purpose of securing the payment of the said two notes (one being that sued on) all it was claimed under the representations to be thereafter detailed, and which it claimed was sufficient to avoid the note.
The answer then set out the facts to be that ‘ ‘ on December 7, 1925, and for some time previous thereto and for several months there*658after defendant was in Fort Myers, Florida, having been attracted to the place largely because of great activities then prevailing in the selling and buying of real estate. Complainant, or her agent in some way learned that defendant was probably a prospective purchaser of real estate. She, or her agent, approached defendant representing that complainant owned five acres of unimproved real estate to the north of Fort Myers and across the Caloosahatchie river. She, or her agent, carried defendant to see this acreage, which was wild and unimproved land without any road frontage, only a trail going by or through said five acres to a small home of some settler living in the piney woods in that vicinity. Said five acres was wholly unimproved, the soil consisting' chiefly of white sand, as defendant is now informed and believes, costing complainant only a trifle, and the land was practically without value unless developments should be made in or near same. Defendant in effect made these observations. and complainants, or her agent, in order to induce defendant to purchase said acreage held out and represented to him with great earnestness that developments in the vicinity of this property had been provided for and assured him that these developments would begin at once and be completed without delay. Complainant, or her agent, represented to this defendant that a street or boulevard would be built along the front or one side of this property and that just across this-street or boulevard a large hotel would certainly be erected; that an artificial lake would soon be made and that one side of said five acres would front on this lake. It was further held out to this defendant that a yacht basin would be put in very near this property and that golf links would be laid out and finished without delay, said golf links as represented to be very near said five acre tract. Other' representations were made to this defendant by complainant, or her agent, of large and wonderful developments soon to be made in the vicinity of this property. These representations were made to defendant by complainant, or her agent, to the end and for the purpose of creating in defendant a desire to purchase said five acres and defendant says that said representations fired his desire to purchase said acreage and he contracted to do so for himself and his associate in this deal, Emmett S. Newton. Defendant took title to said property as trustee for the use and benefit of himself and said Newton. No 'other person was interested with defendant in this deal. Because of said representations concerning said developments and improvements near said five acre tract complainant induced defendant to purchase said five acres for the fabulous consideration of $6,250. Of this amount defendant paid to complainant, or her agent, in cash at the time he signed said notes $2,916.68, and executed said two notes for $1,-666.66 each, maturing on November 6, 1926, and November 6, 1927, respectively.
*659After complainant bad procured defendant’s cash and said notes and the mortgage deed aforesaid and after she had delivered to him deed purporting to convey said five acres to him, complainant’s agent returned later to defendant and asked him to endorse said notes personally, which he did as an accommodation and in appreciation of the great favor complainant bad conferred upon defendant, as he then thought, by allowing him to purchase such a wonderful piece of property, which would soon be a gem set in improvements consisting of good roads, magnificent buildings, sparkling lake and a yacht basin covered with yachts of happy and prosperous owners. No valuable consideration was paid to defendant to endorse said notes personally.
Defendant believed said representations made by complainant, or her agent, and candidly felt that be bad made a good deal and continued to believe this until after July, 1926, be paying semiannual interest on said notes on that date. When said semi-annual interest was paid it was still held out to defendant that he need not worry about said improvements that they would surely come along and that he had a good investment.
It was not long thereafter, however, until defendant began to see that complainant had sold a gold brick. None of said improvements were put in. It is true that there was some work done on said hotel and a little work done upon streets, but all this soon ceased. The proposed street is now in weeds and bushes, the little work that was done on the hotel has fallen into decay, the lake, the yacht basis and golf are “as a tale that was told,” and said five acre tract remains now as it was when said intriguing representations as aforesaid were made to defendant; scrub palmettos covers its sandy surface and there is not the slightest prospect that any improvements will be made on or near said property within years to come, if ever.
Said false and fraudulent representations were known to be such at the time made, or could have been known as false and fraudulent by complainant by the exercise of ordinary care and diligence. Said representations as to said developments and improvements were made as definite existing facts, soon to materialize. Defendant relied upon same, said representations being the inducing cause of defendants purchasing said five acre tract and executing said notes. ’ ’
The foregoing is quoted from the answer as embodying its defense and giving the background of this case, though the Florida law as to foreclosure in the remaining portions of the answer is referred to seemingly as an insistence that that was the only remedy complainant had in the collection of the notes. The answer also set out the comparative present value of the property to be not over $75 and offers of compromises that had been made by the defendant and its declination by complainant insisting “that a court of equity *660will not permit complainant to force this defendant to pay to her the unconscionable sum of $6,250 for said five acres of real estate which is now and was at the time it was sold to defendant practically worthless and in no event worth more than $300 or $400.
In this attitude of the pleadings certain proof, the deposition of defendant S. O. Bankson, and of one G. M. Tuck, was taken and filed, and to the deposition of defendant was filed as exhibit “A” an abstract claimed to be the one delivered to complainant at or before the closing of his purchase of the land, and in which there appeared certain gaps in the chain of title from which it might have been inferred, that there were certain deeds absent from the record or that the title might be outstanding in other than the defendant.
Whereupon an application was made to amend the answer, and though the amendment sought to be filed and the application supporting it was made part of the record it was denied by the Chancellor who gave his reasons therefor as follows:
“The application is for leave to set up an entirely different defense from that which was set up in the original answer under oath, and this defense is not a meritorious one. There is no allegation that the complainant did not have title in fact but only that there was a breach of an alleged condition precedent that she was to furnish an abstract showing a mercantile title in her. After accepting the abstract and holding it all this time he now says that he understands that it shows that she had no title, but whether it shows the truth or not defendant does not undertake to say. Application denied.”
Defendant also made application supported by affidavit to file a cross-bill which was allowed to be done subject to all defenses.
To this cross-bill an answer was filed and the cause was heard on the original bill and answer and the proof taken thereunder and a decree was entered adjudging that the defenses against the payment of the note sued on are not sustained by the evidence and that complainant was entitled to recover on said note the amount due thereon with interest ficom May 6, 1926, the date to which interest had been paid according to endorsement on the back thereof together with 10°/0 attorneys’ fees, amounting in all to the sum of $2063.65, with all costs of the cause. However to his decree there was added:
“But it further appearing that the defendant has filed a cross-bill in the cause alleging that complainant had not title to the tract of land for part of the purchase price of which the note sued on was given and it further appearing that the complainant is a nonresident without property in this State, it is further ordered that upon the execution by defendant of bond in the penalty of $250, with good security to be approved by the Clerk and Master, said bond to be filed in this cause, conditioned to *661pay such damages and .further costs as may he hereafter decreed against the cross-complainant execution upon the foregoing judgment will he stayed until the further order of the court. ’ ’
An appeal was prayed from this decree hut for the present was denied, the bond indicated was given.
The Chancellor’s finding upon which this decree was entered, was made part of the record and is as follows:
‘'Bill to collect a note given as a part of the purchase price of a tract of land near Ft. Myers, Florida, sold to defendant upon the eve of the collapse of the real estate boom in that State. An answer alleging false and fraudulent representations by complainant and her agents in regard to improvements that would be made upon adjoining property.
“The evidence shows that defendant purchased the tract of land in question upon the strength of a commonly received report that the Hollywood Company, which one Elmer E. Jones appears to have been the head of, was going to lay out and develop a suburb of Fort Myers upon an adjoining tract of land and to this end makes various extensive and expensive improvements thereon. The boom burst and the improvements were never made. But there were no fraudulent representations. Complainant’s agents 'believed the report. Defendant himself believed it independently of anything the agents told him. The whole town believed it. Defendant bought on his own judgment. because he thought he saw an opportunity to make a profitable speculation.
“There is no merit in this defense and complainant will have a judgment for the amount of the note, principal and interest and 10% attorneys’ fees and costs.
“But it appearing that the defendant has filed a cross-bill in this cause alleging that the complainant had no title to the said tract of land and it further appearing that complainant is a nonresident without property in this State, it is ordered that execution upon said judgment be stayed until the further order of the court upon defendant giving a bond to pay such damages and further costs as may be decreed against him in this cause. ’ ’
Further proof was taken upon the issue thus left by the cross-bill for determination and the cause finally heard on the 23rd day of January, 1929, on the cross-bill of the defendant and the answer thereto, the testimony and the entire record in the cause, from all of which it was adjudged and decreed that the allegations of the cross-bill were fully met and denied in the answer of the original complaint thereto and were not sustained by the proof and that the *662cross-complainant was not entitled to the relief prayed in the cross-bill. Accordingly the same was dismissed and the execution held up on the original decree was released and complainant and bis securities were adjudged to pay all costs incident to the cross-bill.
A supplemental decree was also entered showing the Chancellor’s action on certain exceptions to the evidence.
From this decree defendant and cross-complainant Bankson prayed for, obtained and has perfected an appeal to this court making assignments of error numbered from 1 to 7 inclusive. The first three are as follows:
“The Chancellor committed reversible error:
“1. In finding, bolding and decreeing that complainant was entitled to recover from defendant $2063.65, because the evidence, without contradictions, shows that the land, for part of the purchase price of which the note sued upon was given, was sold to defendant and he was induced to purchase same because of extravagant and untrue statements as to' pending and imminent developments on .a vast scale in the vicinity of this property, he thereby being induced to agree to pay a price shockingly out of proportion to its real value. Those developments were not made and the land sold defendant was stripped of'its speculative glamour and left on his hands without sale value, its value, if any, being not over $100' per acre, or a total of $500.
“2. In finding, holding and decreeing that the allegations of the cross-bill had been fully met by the answer and not sustained by the proof, because the cross-bill charges and the proof shows that cross-defendant had no title to the five acres she undertook to convey to cross-complainant, that title to the property was vested in Joel W. Corbitt, or his heirs, that she conveyed nothing to him and that there was a failure of consideration, properly interposed as a defense to the note sued upon.
“3. In not finding, holding and decreeing that the allegations of the cross-bill had been sustained by the proof; that cross-defendant had no title to the land sold cross-complainant; that title to the land was vested in the heirs of Joel W. Corbitt at the time of the execution of the note sued upon, and still remains in them; that there was a breach of the covenant of seizen; that there was a failure of consideration, and that the note sued on, and the other note for a like amount and for the same purpose, be cancelled and surrendered to cross-complainant. ’ ’
The other four relate to. the Chancellor’s actions as to evidence set out in each assignment, and without encumbering this opinion with *663here setting out what it was in detail we incorporate same by referring to it as appearing in appellant’s assignment on pages 20, 21 and 22 of his brief.
"We are of opinion that no error appears in overruling the exceptions contained in the fourth and fifth assignments. .. Whatever infirmity may have attached to this evidence regarding its weight it was neither irrelevant nor incompetent, under the pleading. While it is true this record is not a proceeding to set up a lost instrument, it is a proceeding as it finally shaped itself to defeat the collection of the note upon the ground that no title was communicated to the cross-complainant in the deed that was executed to him by the original complainant Mrs. Pollock, in the absence of any deed from Joel W. Corbitt, the last grantee in whom the record showed the title to the five acres vested. The witness was Anthony C. Corbitt, the next grantor appearing in the abstract, who testified to a deed to the property that had previously been made to him by the said Joel W. Corbitt, and which after delivery to him he had sent, to Key West stated to be the county seat of Monroe county at that time in which the land was situated, and that this deed with others of his was lost before record in the fire that destroyed the clerk’s office.
Defendant insists that this evidence was incompetent and irrelevant under the pleadings.
Under the situation as it existed the burden was upon the cross-complainant to show that no title was communicated to him and he had only offered one circumstance, the absence of a recorded deed from Joel W. to Anthony C. Corbitt to carry his burden.
Without reference as to whether that was sufficient to shift the burden to other obligation to show an execution and delivery of a deed by the said Joel W. to the said Anthony C., that issue was involved as an incident of proof, determinable upon the best evidence that was available at the time and not required to await the exigency of a formal setting up of the instrument itself so as to be offered on the trial as record evidence proving the fact previously vitalized by a decree under proper issues and parties.
Manifestly therefore the issue as it was raised here by the pleadings of deed or no deed had to be established by verbal proof both as to the execution, delivery and contents as it was shown to have been lost before registration. Its registration under the facts of this case cuts no figure. The simple execution and delivery of an instrument is sufficient to vest title to land as between the parties when it is so intended.
For the same reason the testimony of the witness Daniel J. Moore who had seen the deed and had had it in his possession and had turned it over to one J. H. Daughtry was both relevant and competent and the objection thereto' as contained in the 5th assignment was properly overruled.
*664Some strictures were made in appellant’s brief on apparent discrepancies in the proof and the mention of a Daughtry to whom the deed seems also to have been turned over, whose name does not appear in the abstract or title to the 5 acres in question, and some-deductions made as to the deed being sent to Key West, regarding which we concur in the observations made in the brief of appellee as follows:
“It is of course immaterial when or to what place'Anthony Corbitt sent the deed in question to be recorded. The witnesses were testifying as to events which occurred nearly thirty years before their depositions were taken and it is quite possible they are mistaken as to some of the dates, and it is even conceivable they may have sent the deed to the wrong place to be recorded. The material and important fact to which he testified, however, is the existence of the deed from Joel; and on this point the three witnesses are positive, and they could hardly be mistaken.
“As to the reference to a sale to a man named Daughtry, it will be seen that the conveyance from Anthony Corbitt to Daniel Moore embraced a tract of twenty acres.
“The land in question in this case is only five acres of this twenty acre tract and it is quite possible that a portion of the twenty acres may have been conveyed to the man Daughtry referred to in Moore’s testimony.”
The sixth objection is as to a statement made by B. M. Moore, wife of Daniel J. Moore in response to the following question. Q. Did you hear Mr. Moore state that at one time he had in his possession a deed from Joel W. Corbitt to Anthony C. Corbitt conveying this land? A. Yes, sir.
Even if this evidence should not be competent as confirmatory, but rather that it was incompetent as hearsay, the evidence of the two men regarding the existence of the deed, was not contradicted, and it became immaterial.
The evidence of D. M. Pollock to which the 7 assignments relate is as follows:
“This piece of property was purchased by Mrs. Pollock from Roland T. Halton, of High Point, North Carolina, and was sold by her to G. W. Clark, of Port Myers, Florida. At the time of sale deed was made by Mrs. Pollock to G. W. Clark and tendered to him, but he asked that owing to the fact that he had just resold this piece of property to S. O. Bankson that deed be made direct from Mrs. Pollock to said Bankson. This was done, as requested.
“Q. Then, as you relate, Mrs. Pollock had no dealings of any kind with Mr. Bankson? A. Never. Mrs. Pollock nor jnyself had any business dealings with Mr. Bqnkson,
*665‘Q. Did you Rave a written contract with Mr. Clark, or oral contract. A. We Rad a written contract.
‘‘Q. Have yon made any effort to locate tRis contract? A, I Rave, but Rave bepn unable to locate it.”
It is insisted that the Chancellor should Rave sustained objection to this because incompetent and irrelevant in that (a) it contravened the allegations of the original bill, (b) It undertakes to modify, alter or change a written contract, to-wit, the deed given by the original complainant and to witness to the original defendant. (c) Witness undertakes to tell conversations between himself and said Clark when defendant was not present in person, nor any one representing him. (d) The contract to sell Clark was in writing and was the best- evidence of what it contained.
We do not think there was any error committed in, overruling the exceptions. It was not in any contradiction to the manner in which the property came to be deeded to cross-complainant, but in explanation of the circumstances thereof. It was insisted that Clark and the other members of the real estate firm were agents of Mrs. Pollock and that she therefore was bound by the representations made to cross-complainants by them, whereas it appears that Clark represented himself as the purchaser to whom the abstract had been given, and that Clark in the meantime before closing his trade had himself sold the property to cross-complainants and by an arrangement later effected had caused Mrs. Pollock to make the deed to cross-complainant instead of himself. These facts we think were independently relevant and competent.
It is true that it was stated that the contract with Clark was in writing, the objection the oral testimony being merely that (d) the contract to sell to Clark was in writing.
Pollock testified that he had made an effort to locate the contract but had been unable to locate it. There was no objection appearing that the loss of the contract had not been sufficiently proven as to admit oral testimony. Besides the other matters, regarding the claim of title or such parts of it as was covered by the oral evidence was not in dispute.
The Chancellor’s opinion covering the disposition of the case made by the cross-bill and issues thereon, and made part of record is as follows:
‘‘The abstract of title shows, and the facts is, (are), that complainant had a connected record chain of title by mesne conveyances from Anthony C. Corbitt and wife to herself. But the land was granted by the state of Florida to Joel W. Corbitt in 1906, and there is no record of any conveyance out of Joel W, Corbitt or unto Anthony C. Corbitt.
*666“If the contract between complainant and defendant were an executory one, this defect in the title would have justified the defendant in refusing to accept it. But defendant accepted the title and took a deed of conveyance from complainant, with a covenant of general warranty and other covenants including that of seizin. In this situation defendant cannot successfully resist the payment of the purchase money unless he shows a breach of the covenants in fact.
“There was no fraud in the transaction on the part of complainant. She submitted to defendant, or rather to Clark, the same abstract of title upon which she purchased the property, and defendant had every opportunity to examine it before he took the deed from her.
“The fact is that Joel W. Corbitt conveyed the land to his brother Anthony C. Corbitt by deed. This deed the latter held until he conveyed the land to Daniel J. Moore in 1890, and then sent it along with other deeds to the recording office at that time in Key West, where it and his other deeds were dstroyed by a fire which destroyed the court house. The date and a substantial copy of the deed are not shown as would seem to be required by sections 3265-3267 of the revised statutes of Florida, for the judicial establishment of lost papers, but that Joel W. Corbitt did make such conveyance to Anthony C. Corbitt is wholly undisputed in the evidence in the cause. The other facts in the evidence are corroborative. Anthony C. Corbitt was in possession of the land for four years, before he conveyed it to Moore. His deed to Moore was recorded in 1892. Joel W. Corbitt must have lived for at least ten or twelve years after the deed by Anthony C. Corbitt was recorded, but neither he in his lifetime nor his heirs or anyone for them after his death has ever asserted title to the land against said deed.
“Florida has a statute, passed May 22, 1925, which by its terms would seem to perfect the record title of complainant, but as the validity and construction of this statute appears not to have been passed upon by the court of last resort of that State, I base my decision upon the fact of the deed.
“It results that the cross-bill must be dismissed, and that complainant have execution of the judgment heretofore rendered in her favor.”
From the record we concur in this opinion, which we think is the only conclusion from the facts that could be made.
The original disposition of the case removed all questions of fraud that might have affected the validity of the deed, and we think properly so.
*667Complainants own allegations and proof show Mm to have been a victim o.f a 'psychology originating in an unparalleled combination of circumstances affecting conditions and real estate values in Florida at the time of his purchase.
It was not a question as it appears, of purchasers but as to' finding something that was uncopped to sell and at prices that were or had been advancing to unheard of levels, what was represented to him by these real estate agents who represented themselves (Mrs. Pollock knowing nothing about it) was not only it appears believed in by them, but by everybody, and the champion guarantee underlying most if not all their inflated hopes was not founded in what Clark and his company of real estate agents could do or represented that they could or would do, but in the specious promises of what other syndicates representing supposed millions were going to do with an addition, fronting so favorably upon this particular five acres.
The proof does not show any connection of the owners of this tract with this company or syndicate that was relied upon to create all the improvements that were to reflect and infuse other value into this small adjoining tract which seems to have been fortunately at the time owned by Mrs. Pollock who had agreed to sell it to Clark, the defendant assuming, as was thought, in time to make a speculative investment before the wild orgie had reached its peak.
In this connection, omitting simply the reference to the record, we quote with approval a section of the brief of Mrs. Pollock’s counsel as it related to the claim of fraudulent representations as affecting the title he received.
“(a) If defendant had proved all the representations alleged in this answer they would not have entitled him to avoid payment of the note. In the first place he went out and examined the property and saw its condition for himself; and having as good an opportunity as the complainant of ascertaining all facts regarding, it he cannot complain of any alleged misrepresentation. Perkins v. McGavock, Cooke, 415; Oliver v. McLean, 2 Shan., 280; Bridges v. Robinson, 2 Tenn. Chy., 720-724; Knuckolls v. Lea, 10 Humph., 577; Sou. Dev. Co. v. Silva, 125 U. S., 247; Pomeroy’s Eq. Jurisp., Secs. 893-894.
“In the second place the alleged representations were necessarily mere expression of opinion, or promises as to what would take place on the property or be done in the future, and statements of that character are not actionable. Landreth v. Schevenel, 102 Tenn., 486; McElya v. Hill, 105 Tenn., 319; 26 C. J., p. 1079, et seq.
“It is not alleged that it was represented that complainant would herself make the improvements and developments re*668ferred to or that she owned or controlled the property on which they were to be made.
“(b) When the defendant came to take his testimony, however, he utterly failed to prove any of the alleged representations. The exact facts of the situation are that defendant was one of the numerous army of get-rieh-quick speculators who flocked to Florida during the late boom, expecting to make a large amount of money on a very small investment. He went down to Fort Myers and spent about thirty days prospecting around prior to the purchase of this property. He never saw either the complainant or'her husband; and the only representations to which he testified consisted of what “everybody in town” and the newspapers and the real estate agents who had charge of the proposition were saying about what was going to be done, on a contemplated sub-division adjacent to the complainant’s five acre tract, which was known as Hollywood. He made the purchase of this property through a real estate agent named Tuck of the firm of Clark & Tuck; and he thought if everything that was being talked about was done he would make a good trade. He bought the property purely for speculation and with the hope that he could sell it to someone else at a profit.
“Within about thirty days after he had purchased however, the Boom “seemed to be evaporating” and his dreams of a quick and easy profit were dispelled.
“He says that the substance of the representations made to him by the real estate agents was that “with all these improvements that were anticipated and planned it would enable me to make a profit on the land;” that there seemed to be no doubt in anybody’s mind that the improvements would be made; that he thought so and Clark & Tuck thought so, and the other dealers as well.
“The deposition of Mr. Tuck was also taken on behalf of defendant, and he says that while there was great excitement over the expected developments on the Hollywood additions, he did not undertake to guarantee or assure Bankson as to whether the developments were going to be carried out, and Bankson knew as much about it as he did, and “maybe more.”
“Mr. D. M. Pollock, the husband of the complainant Kathryn Pollock, in whose name as administrator the suit was revived after the death of his wife, testifies that he, on behalf of his wife, sold this land to G. W. Clark, of the firm of Clark & Tuck; that when they came to make the deed Clark requested they make it direct to defendant Bankson, and they did this as requested; and that he had no dealings or transactions with Bank-son, and never met him.
*669“On these facts tbe Chancellor held that there was no merit in the defense that defendant was induced to purchase the property by false and fraudulent representations and that he was liable on the note.”
As indicated we think that after settlement of the questions of fraud the only question left was that raised by the cross-bill as to whether or not title was actually lodged in cross-complainant in the deed of Mrs. Pollock to himself which the cross-bill denied alleging that it was outstanding. As a preliminary to this lodgment registration was not essential. The cross-complainant had been given a warranty deed and there was nothing in the way of adding actual possession to the constructive possession which as the Chancellor, in effect, held passed to him through the deed of Mrs. Pollock.
The proof does not show any breach of covenant in the deed held by cross-complainant entitling him to "sue or any damage resulting therefrom. The fact that the abstract of the recorded deeds did not show a perfect title is not the question. That there was a break in the chain of title so far as the record was concerned would or sbould have been apparent to a mere layman who had the intelligence to examine it much less to a man experienced in the real estate business as cross-complainant was shown to be. However it did not follow from this that title did not exist, though it is insisted in the brief of appellant that S. C. Headly, the abstractor who made the abstract of title and the extension thereof which are found in the record, testified that he had carefully examined and re-examined the public records of Lee county, Florida, touching title to the tract involved in this litigation, and that his definite conclusion and testimony is that the title to said five acre tract never passed out of Joel ~W. Corbitt to whom it was granted along with other property, by state deed dated Dec. 10, 1835.
It is manifest that he was only testifying as to what appeared from the recorded deeds, and to the same effect and with more accuracy was the testimony of Mr. Geo. D. Preston, a title attorney; but the question was not so much as to what the record showed, though it was competent and valuable as far as it went, but as to the one time existence of what it failed to show, is a deed from the said Joel W. Corbitt to Anthony C. Corbitt for the land; for if such a deed had ever conveyed the land to him, it is manifest that the title would not revert to his heirs should the deed happen to be lost or destroyed. That this deed had been in existence as vesting title in Anthony C., was sufficiently proven we think by the testimony of the latter and by D. J. Moore, without regard to the testimony of Moore’s wife.
Appellant is therefore mistaken in his insistence that title was in the heirs of Joel W. Corbitt and that therefore there was not made *670to him livery of seizin. The covenant of bis grantor that she was lawfully seized and possessed of tbe land in fee simple does not therefore appear to have been broken.
We have no more cared to pass upon the effect of Chapter 1071 of the acts of Florida than the Chancellor did. It was passed in 1925 and does not appear to have been passed upon by any Florida Court. No Florida law has been shown making ineffectual, until registration, a deed that had as a matter of fact been executed, delivered and received with the intent that it should vest title.
While we sympathize with cross-complainant in the disastrous results of his venture we think under the proof he can claim no other salvaging consolation than that afforded him in what remains of value in his purchase. Without any proof saddling the original complainant with any invalidating responsibility or commitment of liability we cannot say that her deed was void or find any circumstance justifying us in robbing her of the fruits of her wise business sagacity in taking advantage of the fortuitous circumstances that for a time communicated a speculative value to her land.' We think it appears that cross-complainant was the victim of his own folly and if he has survived that vortex of changing fortunes with solvency he has reason to congratulate himself for no doubt many like him were financially engulfed.
The assignments are all overruled and the decree of the Chancellor is affirmed with costs against appellant and his securities.
Portrum and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1577986/ | 35 So. 3d 38 (2010)
PERRIN
v.
STATE.
No. 5D09-3407.
District Court of Appeal of Florida, Fifth District.
May 4, 2010.
Decision Without Published Opinion Affirmed. | 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.