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/4515784/ | Opinion issued March 12, 2020.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00809-CV
———————————
HENRY TOWNSEND, Appellant
V.
LEONARD NOLAN, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 1105175
MEMORANDUM OPINION
This is an appeal from the trial court’s order, signed July 30, 2018, dismissing
appellant’s case for want of prosecution. The appeal was dismissed on January 29,
2019 for failure to file a clerk’s record. When this court received proof of payment
for the clerk’s record, the Court granted rehearing on August 20, 2019, and reinstated
the appeal on the active docket.
Appellant’s brief was due on September 19, 2019. Two extensions were
granted until December 16, 2019, the last of which stated that no further extensions
would be granted. On December 31, 2019, the Court issued a notice advising
appellant that unless the brief was filed within ten days, we might dismiss the appeal
for want of prosecution. Appellant neither timely filed a brief nor requested an
extension. See TEX. R. APP. P. 38.8(a)(1) (the appellate court may dismiss for want
of prosecution for failure to file appellant’s brief).
Accordingly, we dismiss the appeal for want of prosecution. See TEX. R. APP.
P. 38.8(a)(1), 42.3(b), 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
2 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1645120/ | 40 So. 3d 31 (2010)
Becky J. PERRONE, Appellant,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Wealthbuilders Financial Group, Appellees.
No. 1D10-614.
District Court of Appeal of Florida, First District.
June 21, 2010.
*32 Becky J. Perrone, pro se, Appellant.
Geri Atkinson-Hazelton, General Counsel, and M. Elaine Howard, Deputy General Counsel, for Appellees.
PER CURIAM.
Becky Perrone appeals a final order of the Unemployment Appeals Commission ("Commission") finding she is disqualified from receiving benefits because she voluntarily left employment without good cause attributable to the employer. In its order, the Commission adopted the referee's findings of fact:
The claimant worked, as a full-time marketing assistant, for a financial services provider from May 2006, through June 2009. The claimant's job duties, as a marketing assistant, involved taking care of existing clients, establishing new clients, answering telephones, and scheduling appointments. Prior to separation, the claimant's immediate supervisor informed the claimant that she needed to establish new clients for the company. The claimant informed her immediate supervisor that it was becoming more difficult to establish new clients through old client referrals. The claimant informed her immediate supervisor that the company should begin to host more public seminars to attract potential clients. The claimant's immediate supervisor informed the claimant that seminars were cut, due to a lack of productivity, and the cost it involved to host them. The claimant attempted to further explain to her immediate supervisor her rationale, and was threatened to be fired. On June 24, 2009, the claimant voluntarily quit, due to believing she no longer had employment security.
The appeals referee found Ms. Perrone quit her job with good cause attributable to her employer, and thus, deemed her qualified for unemployment compensation benefits. The Commission reversed the referee's decision, finding that the facts do not show Ms. Perrone had good cause to voluntarily leave work. We agree.
Section 443.101(1)(a), Florida Statutes, provides that an individual shall be disqualified from receiving unemployment compensation benefits for voluntarily leaving work without good cause attributable to the employing unit. Fear of being fired does not constitute good cause for quitting one's job under section 443.101(1)(a). See Diaz-Perna v. Evens, 833 So. 2d 795, 795 (Fla. 3d DCA 2002) (affirming order denying unemployment benefits where appellant quit his job because he believed he either was going to be fired or would suffer a pay cut).
AFFIRMED.
WEBSTER, WETHERELL, and MARSTILLER, JJ. concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515794/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re DOCKERY/MITCHELL/SINGLETON March 12, 2020
Minors.
No. 349741
Wayne Circuit Court
Family Division
LC No. 17-000068-NA
Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
In this child protective proceeding, respondent mother appeals as of right an order awarding
the father, M. Miles, sole legal and physical custody of the minor child, MM, and terminating its
jurisdiction and wardship over MM. Respondent previously had sole legal and physical custody
of MM. We affirm.
Respondent has four children: MM, JS, DD, and KM. This matter originated as a child
protective action initiated by the Department of Health and Human Service (DHHS) to make
respondent’s four children temporary court wards. During the pendency of the child protective
proceedings, respondent’s children were removed from her care and MM was placed with her
father, Miles. The court assumed jurisdiction over the children and ordered respondent to
participate in services to work toward reunification. Subsequently, Miles filed a motion for sole
custody of MM. In excess of two years after the children came under the court’s jurisdiction,
respondent completed the terms of her treatment plan and her children were returned to her
custody, with the exception of MM who remained with Miles. The court awarded Miles sole
physical and legal custody of MM. After Miles was awarded custody of MM, the court terminated
its jurisdiction and wardship over MM. Respondent contends that the court erred because the
award of sole physical and legal custody of MM to Miles was not in MM’s best interests. We
disagree.
The trial court’s findings of fact in a child custody case are reviewed under the great weight
of the evidence standard. In re AP, 283 Mich. App. 574, 590; 770 NW2d 403 (2009). “The court’s
factual findings are against the great weight of the evidence if the evidence clearly preponderates
in the opposite direction.” Id. Discretionary decisions, including the court’s ultimate award of
custody, are reviewed for an abuse of discretion. Id.; McIntosh v McIntosh, 282 Mich. App. 471,
-1-
475; 768 NW2d 325 (2009). “An abuse of discretion exists when the trial court’s decision is so
palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of
judgment, or the exercise of passion or bias.” Berger v Berger, 277 Mich. App. 700, 705; 747
NW2d 336 (2008). The trial court’s interpretation and application of law are reviewed for clear
error. In re AP, 283 Mich. App. at 590. “Clear legal error exists when the trial court incorrectly
chooses, interprets, or applies the law.” Id.
Respondent first argues that the trial court should have retained jurisdiction and continued
the child protective proceedings to ultimately return MM to respondent. We disagree.
This matter involves the Juvenile Code, MCL 712A.1 et seq., and the Child Custody Act
(CCA), MCL 722.21 et seq. Both acts allow the state to “become involved in a child’s upbringing
under certain limited circumstances when a child’s welfare is affected.” In re AP, 283 Mich. App.
at 592. In actions involving the legal or physical custody of a child, courts are bound by the CCA.
Id. And once a custody order is entered, a court cannot change the award of custody without
following certain procedures designed to prevent unwarranted and disruptive custody changes. Id.
But when a child’s safety is threatened, the juvenile code governs the court’s involvement in the
parent-child relationship. Id. Orders entered by a juvenile court with jurisdiction supersede all
previous court orders, including custody orders, during the pendency of the juvenile proceedings.
Id. at 593. Once the juvenile court dismisses its jurisdiction, however, previous custody orders
have full force and effect because the CCA vests the domestic relations court with continuing
jurisdiction over the custody matter. Id. at 593-594. The circuit court presiding over a proceeding
under the juvenile code may, however, consider related matters under the CCA, including a motion
for a change in custody. Id. at 598-599. But the court must effectuate any changes or modifications
in accordance with the procedural and substantive requirements of the CCA. Id. at 578.
This matter originated as a child protective action initiated by the DHHS to obtain
jurisdiction and to make respondent’s children temporary wards. According to the petition
authored by DHHS, it was contrary to MM’s welfare to remain with respondent because of
respondent’s untreated mental health issues. During this proceeding brought under the juvenile
code, Miles filed a motion for a change of custody. To grant a change of custody under the CCA,
the trial court must determine whether proper cause or a change of circumstances existed such that
a custody modification was in the child’s best interests. Id. at 600. The party seeking the change
must establish either proper cause or a change of circumstances. Corporan v Henton, 282 Mich
App 599, 603; 766 NW2d 903 (2009). To constitute a change of circumstances meriting a
consideration of a custody change, there must have been a change in conditions pertaining to
custody that has, or could have, a significant impact on the child’s well-being since the entry of
the last custody order. Id. at 604, quoting Vodvarka v Grasmeyer, 259 Mich. App. 499, 513; 675
NW2d 847 (2003). Removal of a child from the home by CPS is sufficient evidence of a change
in circumstances to warrant consideration of a change in custody. Shann v Shann, 293 Mich. App.
302, 306; 809 NW2d 435 (2011). In this case, after the trial court examined the updated custody
report from the Clinic for Child Study, the court found by a preponderance of the evidence that a
change of circumstances had occurred because MM was removed from respondent’s care and
custody in January 2017. After MM was removed from respondent’s care, MM was placed with
Miles and MM had been residing with Miles for the past two years. This was sufficient evidence
to establish a change in circumstances warranting a reevaluation of custody. See id.
-2-
Respondent argues that trial court should have granted her custody because she rectified
the circumstances that led to her children being removed from her care. In essence, respondent
argues that, because MM’s placement with Miles was temporary, MM should be returned to her
care. But respondent did not voluntarily transfer custody of MM. MM and her siblings were
removed from respondent’s care by DHHS because of respondent’s mental health issues. In
addition, MM’s placement with Miles has not been temporary. There was no agreement regarding
when, or if, MM would be returned to respondent, and MM has resided with Miles for the past two
years. MM has established stability and permanency with Miles. Therefore, consistent with the
purposes underlying the CCA, it is in MM’s best interest “to minimize disruptive changes to
custody arrangements,” and keep her in Miles’s care. See Kaeb v Kaeb, 309 Mich. App. 556, 567;
873 NW2d 319 (2015).
Next, the trial court had to determine whether a custodial environment existed. See In re
AP, 283 Mich. App. at 604. Whether an established custodial environment exists is a question of
fact that the trial court must address before it determines the child’s best interests. Brausch v
Brausch, 283 Mich. App. 339, 356 n 7; 770 NW2d 77 (2009). A custodial environment is
established if
over an appreciable time the child naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life, and parental comfort.
The age of the child, the physical environment, and the inclination of the custodian
and the child as to permanency of the relationship shall also be considered. [MCL
722.27(1)(c).]
“A custodial environment can be established as a result of a temporary custody order, in violation
of a custody order, or in the absence of a custody order.” Berger, 277 Mich. App. at 707. In
addition, “[r]epeated changes in physical custody and the uncertainty resulting from an upcoming
custody trial can destroy an established custodial environment.” Rains v Rains, 301 Mich. App.
313, 333; 836 NW2d 709 (2013).
The trial court concluded that MM’s custodial environment was with Miles. MM was
removed from respondent’s care because of concerns regarding respondent’s untreated mental
health problems. During the child protection proceedings, respondent refused to take her
medication and participate in therapy on multiple occasions. Respondent also struggled to benefit
from any of the court-ordered services. It took respondent over two years to complete the court-
ordered services, and during that time MM had been residing with Miles. After MM was placed
with him, Miles became actively involved in her life, and the court noted that MM was
“flourishing.” Therefore, the trial court did not err by finding that an established custodial
environment existed with Miles. “If an established custodial environment exists with one parent
and not the other, then the noncustodial parent bears the burden of persuasion and must show by
clear and convincing evidence that a change in the custodial environment is in the child’s best
interests.” In re AP, 283 Mich. App. at 601.
The court, however, failed to consider whether an established custodial environment
existed with both parties. Respondent was granted sole physical and legal custody of MM in 2008,
and for the first nine years of MM’s life she resided exclusively with respondent. Miles was largely
absent from MM’s life before MM was placed in his care in 2017. After MM was placed in Miles’
-3-
care, MM continued to have supervised visits with respondent. Therefore, although MM resided
exclusively with Miles for two years, there is the possibility that an established custodial
environment existed with both parties. However, even if the court had determined that an
established custodial environment existed with both parents, a joint established custodial
environment may be disrupted if clear and convincing evidence indicated that a change was in the
best interests of the child. Powery v Wells, 278 Mich. App. 526, 529; 752 NW2d 47 (2008). And,
here, after evaluating the best-interest factors, the court found by clear and convincing evidence
that it was in MM’s best interests to grant sole physical and legal custody to Miles. Therefore, the
court used the appropriate standard in determining whether a change in custody was warranted.
See In re AP, 283 Mich. App. at 602.
The best-interest factors are specified in MCL 722.23. “A trial court must consider and
explicitly state its findings and conclusions with respect to each of these factors.” Foskett v
Foskett, 247 Mich. App. 1, 9; 634 NW2d 363 (2001). “A court need not give equal weight to all
the factors, but may consider the relative weight of the factors as appropriate to the circumstances.”
Sinicropi v Mazurek, 273 Mich. App. 149, 184; 729 NW2d 256 (2006). In its discussion of the best-
interest factors, the circuit court held that factors (b), (d), (e), (g), (h), and (k) favored Miles. The
court determined that factors (a), (c), and (j) equally favored both respondent and Miles, and that
factor (f) favored respondent. With respect to factor (i), the court stated that it had information
regarding MM’s preference, but elected not to disclose the child’s preference.
Respondent challenges the trial court’s determination that it was in MM’s best interests to
grant Miles’s motion for sole physical and legal custody. Respondent also contends that it is in
MM’s best interests to be in the same household as her siblings. We disagree.
Respondent argues that the record does not support the trial court’s finding that factor (a)
did not weigh in her favor. This factor considers “[t]he love, affection, and other emotional ties
existing between the parties involved and the child.” MCL 722.23(a). Specifically, respondent
argues that the “[t]he court reasoned that the best interest of [MM] did not include the love and
bond between the child and her mother and siblings.” However, the circuit court determined this
this factor equally favored both respondent and Miles because the court recognized that both
parties had developed an emotional bond with MM.
Respondent also argues that the trial court failed to adequately consider that she had
rectified the problems that led to her children being removed from her care. Respondent contends
that she has successfully completed all of the court-ordered services, that she is treating her mental
health issues, and that JS, DD, and KM have been returned to her care. The trial court specifically
recognized that MM and her siblings had been removed from respondent’s care. “Since that time
[Miles] has stepped up and cared for his child.” Although respondent completed her court-ordered
services, it took her over two years to do so, and during that time MM had been residing with
Miles. Further, while respondent was in the process of completing the services, she continually
refused to take her medications and had assaulted JS on one occasion. Respondent also continued
to maintain a domestic relationship with another individual, despite their history of violent
interaction. The trial court emphasized that Miles had provided MM with a stable home and that
MM would maintain continuity if she remained with Miles. Specifically, MM had been in the
same home for the past two years, “whereas when [MM] was with the [respondent] they had moved
on more than a couple occasions for one reason or another. . . .” Further, the circuit court noted
-4-
that MM has been “flourishing” since she has been living with Miles. The Clinic Evaluation
Report provided that MM’s grades have improved significantly and that MM has begun
participating in after-school activities.
Respondent further contends that it is in MM’s best interests to be in the same household
as her siblings. “[I]n most cases it will be in the best interests of each child to keep brothers and
sisters together. However, if keeping the children together is contrary to the best interests of an
individual child, the best interests of that child will control.” Wiechmann v Wiechmann, 212 Mich
App 436, 440; 538 NW2d 57 (1995) (footnote omitted). After examining the relevant factors, the
court determined that it was clearly in MM’s best interests to remain with Miles. The court noted
that MM also resides with her two half siblings at Miles’ home and that MM has developed a
relationship with her half siblings. The court encouraged respondent and Miles to work together
so that MM could maintain her relationship with DD, JS, and KM, and the court ordered that
respondent should have “liberal” parenting time. We conclude that the trial court did not abuse its
discretion in awarding Miles physical and legal custody of MM. See Berger, 277 Mich. App. at
705.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
-5- | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1578811/ | 12 So. 3d 461 (2009)
Robbie ARNOLD, Stacey Guidry, Johnny Arnold, Jr., Christina Arnold Shamburger and Daniel Arnold, Individually and o/b/o The Deceased, John R. Arnold, Plaintiffs-Appellants
v.
OUACHITA PARISH FIRE DEPARTMENT, Defendant-Appellee.
No. 44,378-CA.
Court of Appeal of Louisiana, Second Circuit.
May 13, 2009.
*462 Guerriero & Guerriero, by Jeffrey D. Guerriero, Kevin D. Alexander, Breithaupt, Dunn, Dubos, Shafto & Wolleson, LLC, by Michael L. DuBos, K. Lamar Walters, III, Monroe, for Appellants.
Hayes, Harkey, Smith & Cascio, by John C. Roa, for Appellee.
Before CARAWAY, PEATROSS & MOORE, JJ.
PEATROSS, J.
The plaintiffs, family members of the deceased John Arnold, brought this survival and wrongful death action against the Ouachita Parish Fire Department after Mr. Arnold perished in a fire at his mobile home. Finding that the plaintiffs failed to carry the burden of proving by a preponderance of the evidence that any negligence on the part of the fire department was a cause-in-fact of Mr. Arnold's death, the trial court ruled in favor of the fire department, dismissing plaintiffs' claims with prejudice. The trial court further held that, even if negligence and cause had been shown, the fire department is immune from liability under La. R.S. 9:2798.1.[1] Plaintiffs appeal. For the reasons stated herein, we affirm.
*463 FACTS
The events giving rise to the present action are tragic for the Arnold family. At approximately 12:30 a.m. on December 20, 1998, Mr. Arnold and his son were in Mr. Arnold's mobile home at the Red Oak Trailer Park in Ouachita Parish watching television. After declining his father's request that he spend the night, the son fixed his father a plate of food and went to his brother's home, where he was living at the time.
At 2:03 a.m., a neighbor, who had just moved into the mobile home park that day, called 911 to report that Mr. Arnold's mobile home was on fire. The caller was connected to the main dispatcher with the Ouachita Parish Fire Department and spoke with Communications Officer Todd Robertson. The caller advised that he had just arrived from Virginia that day and moved into the trailer park; therefore, he was not certain of the specific address. The caller first provided the correct address of 1116 Washington Street, then changed that number to 1611 Washington Street, which does not exist. The caller further advised that the location was the Red Oak Trailer Park, across from the Porch Lounge. The caller related to the dispatcher that he could see smoke and flames through the windows of the mobile home.
Mr. Robertson dispatched three units from different stations. One of the stations was only two blocks from the Red Oak Trailer Park. The dispatcher, however, failed to verify the address with the printout that shows the address from which the call originated; and, therefore, the responding units were sent to the incorrect municipal address. In addition, the dispatcher did not advise the units that the call was from a neighbor, not the occupant (so that the occupant may still be inside) and he failed to advise the units that the caller related to him that he did not see anyone outside the burning trailer, but that there was a car parked outside.
As a result of being provided an incorrect address, the responding units turned the wrong way down Washington Street, towards the nonexistent 1600 block, and continued in the wrong direction until they reached the Cheniere Dam, at which point they knew they were not in the right place. Meanwhile, the caller had apparently seen the fire trucks pass the trailer park and called the fire station a second time to alert the dispatcher that the units had gone past the trailer park and were traveling in the wrong direction. The dispatcher then relayed the correct address to the units. Once at the dam, however, only the smallest of the units, a pickup truck with a 250 gallon water tank usually used for grass fires, could turn around. The larger units had to continue a mile further to find a place large enough to turn around.
The first unit on the scene of the fire was the small truck, which arrived 9 minutes after the call was placed. The testimony is consistent that this was 5-6 minutes longer than it should have taken the units to arrive from the stations. The firemen admitted that they did not know the location of the Red Oak Trailer Park, despite the fact that Washington Street was a main thoroughfare. One of the firemen was aware of the location of the Porch Lounge; however, a tape recording from the units' radio revealed that it was not *464 until the units had made it to the dam that the fireman informed the others, "Guys, the Porch Lounge is back that way but it's the 1200 block...."
Once on the scene, the small truck began spraying water on the exterior rear side of the mobile home. The testimony indicates that this is called an exterior approach and forces gas, toxic fumes and smoke into the interior of the structure. There was no search and rescue at this point. The testimony revealed that there were not enough firemen at the scene initially to enter the burning trailer. After the arrival of the additional units, however, there still was no search and rescue conducted. When the large units arrived, the exterior extinguishment continued until the fire was put outapproximately 37 minutes. It was not until that time that a fireman entered the mobile home to put out remaining hotspots. In so doing, he found Mr. Arnold lying 5-6 feet from the back door, facing his bed. Mr. Arnold's dog was found under the bed. Both were deceased.
The fireman who discovered Mr. Arnold's body testified that the body was "stiff" and that he called on two other firemen to check the body to confirm that the man was deceased. There was smoke and soot on the bed with an indention and clean area where Mr. Arnold had been lying. All parties agree that it seems as though Mr. Arnold awoke and, while trying to rescue his dog, succumbed to smoke and fumes. There was no soot on the body, only burns on the arm and chest consistent with steam or gas burns.
The record reveals that, at approximately the same time the initial call was made to 911, another neighbor approached the mobile home and banged on the door. He could hear a dog barking, but there was no response from Mr. Arnold. The neighbor then left the trailer park to alert Mr. Arnold's two sons, who lived less than a mile away. When they arrived back at the mobile home, the responding fire units had arrived and all attempts to go inside the trailer to see if their father was inside were rebuffed by the firemen. According to the sons' testimony, they were told by a fireman that their father was not inside the trailer, but had been observed leaving the trailer park. At least one of the firemen on the scene was under the impression that Mr. Arnold had been the 911 caller reporting the fire.
After investigating the physical scene immediately after the fire, fire inspectors discovered that improper splicing of wires in an outlet started the fire which smoldered in a mattress that was pushed up next to the outlet on the floor. Fire department investigators determined that the fire smoldered in the mattress for up to two hours before igniting into actual flames. They concluded that there could have been smoke and gas in the mobile home sufficient to kill Mr. Arnold before the fire erupted.
Investigator Tommy Willis from the coroner's office was notified and arrived on the scene at approximately 3:00 a.m., before the body was removed from the mobile home. Assisting him was the chief investigator, Todd Sylvester. The coroner's investigation report notes that the body was found face down next to the bed. The report further notes that rigor mortis was not present and lists the time of death as approximately 2:28 a.m., the same time that is listed for the discovery of the body. The death certificate also lists the time of death at 2:28 a.m. Officer Willis testified in deposition regarding his notation of the time of death:
I think at that time what I probably used is probably the time that the fire was first reported. That's just an estimation, notnot an exact thing. *465 There's no way to exactly know for sure....
Officer Willis further agreed in his testimony that, had the fire started an hour earlier, the body would have been in "about the same condition."
Officer Willis also testified that he indicated on the report that no autopsy was ordered or performed, but that that determination was made solely by the coroner, Dr. Clyde Elliot. Dr. Elliot testified that it was standard practice not to order an autopsy in this type of case, i.e., where there was no trauma to the body or suspicion of criminal activity associated with the death. He further testified that he did not examine the body, but found no reason from reviewing the coroner's investigation report to dispute the findings listed thereon. By the time Dr. Elliot received the report and signed the death certificate, Mr. Arnold had been buried.
The children and estranged wife of Mr. Arnold filed suit asserting a survival action and seeking damages for wrongful death. They alleged that the actions/inactions of the fire department in responding to and fighting the fire caused Mr. Arnold's death and lessened his chances of survival. After hearing all of the evidence, some of which is outlined above, the trial court found that, more likely than not, Mr. Arnold perished from smoke/gas inhalation prior to the flames being visible outside the trailer prompting the call to 911. Accordingly, the court found that Plaintiffs had not proven by a preponderance of the evidence that any failure on the part of the fire department caused the death. While not specifically addressing the numerous alleged breaches of duty, the trial court found no evidence that, had the responding fire units arrived on the scene in three, rather than nine, minutes, Mr. Arnold would have been alive and rescued. As such, the court ruled in favor of the fire department, dismissing the plaintiffs' claims with prejudice. As previously stated, the court further found that, in any event, the fire department would be immune from liability under La. R.S. 9:2798.1. This appeal ensued.
DISCUSSION
On appeal, the plaintiffs raise the following three assignments of error (verbatim):
1. The trial court erred in failing to address the undisputed evidence that the Ouachita Parish Fire Department's dispatch, response and approach to the fire failed to comply with the fire department's own policies and procedures, as well as industry standards.
2. The trial court erred in finding that Plaintiffs failed to carry their burden of proof that the actions and/or inactions of the Ouachita Parish Fire Department were a cause in fact of John Arnold's death and in failing to address whether the actions and/or inactions of the Ouachita Parish Fire Department resulted in a lost chance of survival for John Arnold.
3. The trial court erred in finding that the discretionary function immunity conferred by La. R.S. 9:2798.1 protects the Ouachita Parish Fire Department for its actions and/or inactions in its dispatch, response and approach to fighting the fire.
Since the ruling of the trial court was based on its finding a lack of proof of causation, and because the resolution of this issue is determinative of review on appeal, our discussion will begin with assignment of error number two regarding the plaintiffs' failure to carry their burden of proof on causation.
In Hebert v. Rapides Parish Police Jury, 06-2001 (La.4/11/07), 974 So. 2d 635, *466 the supreme court outlined the determination of liability for a public body:
Most cases alleging negligence on the part of a public body have been analyzed by this Court under the duty-risk analysis. Cormier v. T.H.E. Ins. Co., 98-2208, p. 6 (La.9/8/99), 745 So. 2d 1, 7. In the classic duty-risk analysis, one of the inquiries the court must answer is: What, if any, duties were owed by the respective parties? Cormier, 98-2208 at pp. 6-7, 745 So.2d at 7; Mart v. Hill, 505 So. 2d 1120, 1122 (La.1987). The particular facts and circumstances of each individual case determine the extent of the duty and the resulting degree of care necessary to fulfill that duty. Cormier, 98-2208 at p. 7, 745 So.2d at 7. A plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Id.; Berry v. State Through Dept. of Health and Human Resources, 93-2748, p. 4 (La.5/23/94), 637 So. 2d 412, 414.
The plaintiff bears the burden of proof and must establish his claim by a preponderance of the evidence. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La.12/1/04), 893 So. 2d 1, 4-5. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So. 2d 654, 664 (La.1989). It follows from this, that speculation, conjecture, mere possibility, and even unsupported probabilities are not sufficient to prove a plaintiffs claim. See Coon v. Placid Oil Co., 493 So. 2d 1236, 1240 (La.App. 3d Cir.), writ denied, 497 So. 2d 1002 (La. 1986).
As previously stated, in the case sub judice, the dismissal of the plaintiffs' case was based on the finding of the trial court that they did not prove causation, i.e., that any alleged action or inaction on the part of the fire department was a cause-in-fact of the death of Mr. Arnold. Causation is a question of fact and is, therefore, subject to the manifest error standard of review. Mart v. Hill, 505 So. 2d 1120 (La.1987); Wallace v. State Farm Mutual Automobile Insurance Co., 36,099 (La.App. 2d Cir.6/14/02), 821 So. 2d 704.
Under the manifest error standard, in order to reverse a trial court's determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So. 2d 880 (La.1993). On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So. 2d 216. A reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared *467 with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Id.
In its reasons for judgment, the trial court stated:
All expert testimony presented at trial was to the effect that, in a mobile home fire, due to the nature of the components used in constructing a mobile home, toxic fumes and smoke are released from the inception of the fire even if not smoldering in nature and can very quickly cause any occupants to be overcome and die. The preponderance of the evidence, both direct and circumstantial, was to the effect that this fire smoldered for a significant period of time before erupting into a blaze with this smoldering action having the necessary consequence of filling the trailer with toxic fumes and smoke which, according to all the testimony, would have been fatal to Mr. Arnold within a matter of minutes. The unknown caller established that the fire was ongoing in the Arnold trailer at 2:03 a.m., the time of his first call, and necessarily conveyed the fact that the smoke and accompanying flames were already in progress in the Arnold trailer at that time.
The circumstances observed by the 911 caller at the time of the first call indicate more likely than not that the interior of the trailer had already been filled with toxic fumes and smoke prior to the fire being discovered and reported and, based upon the expert testimony presented, Mr. Arnold was more likely than not already dead at the point of the first 911 call.
After an exhaustive review of the record, we conclude that the evidence substantiates the finding of the trial court regarding causation. There is no definitive time of death of Mr. Arnold and the testimony is conclusive that, in a mobile home fire, the gases and fumes can overwhelm an individual and cause death before the blaze actually erupts. The uncontradicted testimony was that the fire smoldered for a period of time prior to producing flames. In addition, we note that there was no response from Mr. Arnold when the neighbor beat on the door of the mobile home at approximately the same time the call was being placed to 911. Moreover, at the time the first call was placed, flames were visible from the exterior of the structure. Finally, the testimony was inconsistent regarding the presence of rigor mortis in the body. As stated, the firemen noted that the body was stiff, however, the two investigators with the coroner's office reported that rigor mortis was not present. We also note that Officer Willis explained that the time within which rigor mortis sets in varies depending on the environment and conditions of the body, including the manner of death and temperature. He related that it may take anywhere from two to five hours for the body to become rigid. Accordingly, we find that the trial court was within its discretion to find this fact not to be determinative of the issue of causation.
In summary, despite the tragic circumstances of Mr. Arnold's death, we cannot say that the trial court was clearly wrong in holding that the plaintiffs did not prove by a preponderance of the evidence that any alleged negligence on the part of the fire department contributed to his demise. In light of our conclusion on the issue of causation and the proper dismissal of plaintiffs' claims, we pretermit discussion of any other issues raised by plaintiffs on appeal.
CONCLUSION
For the foregoing reasons, the judgment of the trial court in favor of the defendant, *468 the Ouachita Parish Fire Department, dismissing the claims of the plaintiffs, Robbie Arnold, et al., is affirmed at the plaintiffs' cost.
AFFIRMED.
NOTES
[1] La. R.S. 9:2798.1, Policymaking or discretionary acts or omissions of public entities or their officers or employees, provides in pertinent part:
A. As used in this Section, "public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
* * * | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579148/ | 671 N.W.2d 578 (2003)
In re PETITION FOR DISCIPLINARY ACTION AGAINST Dale C. NATHAN, a Minnesota Attorney, Registration No. 77227.
No. C5-02-519.
Supreme Court of Minnesota.
November 26, 2003.
*580 Kenneth L. Jorgensen, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Relator.
Dale C. Nathan, Eagan, MN, pro se.
Heard, considered, and decided by the court en banc.
OPINION
PER CURIAM.
This disciplinary action arises out of the misconduct of the respondent, Dale C. Nathan, in a child custody matter and a CHIPS proceeding. The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action on May 2, 2002. A hearing was held on October 2 and 3, 2002, before the Honorable Warren E. Litynski acting as referee. The referee found that Nathan: (1) violated Minn. R. Prof. Conduct 3.1, 3.4(c), 4.4, and 8.4(d) by engaging in a pattern of harassing and frivolous litigation; (2) violated Rules 3.4(c) and 8.4(d) by violating, threatening to violate, and assisting his client in violating court orders; (3) violated Rules 3.4(c) and 8.4(d) by violating and threatening to violate confidentiality statutes and rules; (4) made baseless and derogatory statements about judges in violation of Rules 8.2(a) and 8.4(d); (5) made false statements contrary to Rules 4.1 and 8.4(c); and (6) failed to pay or arrange to pay sanctions, violating Rules 3.4(c) and 8.4(d). The referee recommended that Nathan be indefinitely suspended from the practice of law, with leave to apply for reinstatement after six months.
Nathan was admitted to practice law in Minnesota in 1965. Nathan has been admonished twice before. Nathan's misconduct in these matters falls into three general categories. The first is a pattern of harassing and frivolous conduct; the second is a pattern of violating, threatening to violate and assisting others in violating court orders and confidentiality statutes; and the third is making unfounded derogatory statements about judges and false statements to others. We will consider Nathan's conduct in the child custody and CHIPS matters in turn.
Child Custody Matter
In late 1999 or early 2000, Nathan began representing a mother in a child custody matter arising out of a paternity proceeding. The father was seeking unsupervised visitation of the child and the mother sought to prevent unsupervised visitation. The pattern of harassing and frivolous litigation that the referee found Nathan engaged in was pervasive in this matter.
Nathan sent the guardian ad litem several harassing letters. In one letter he called her "worse than worthless" and threatened to "deal with her accordingly." In another letter addressed to her, he threatened to inform others involved in the case that she was not "truthful or impartial *581 and cannot be trusted." Nathan also wrote letters to the judge complaining that the guardian ad litem was biased. Because of Nathan's conduct, an attorney was appointed to represent the guardian ad litem. Nathan then sent the guardian ad litem's attorney a letter threatening to publish the guardian ad litem's letters to him and the judge on Nathan's website "as examples of outrageous actions by a court-appointed quasi-expert."
Nathan engaged in a similar pattern of conduct towards the individual appointed as the visitation investigator. The judge ordered the parties to split the cost of hiring the investigator and to cooperate with her by giving her access to all necessary records and individuals. In a letter to the investigator, Nathan stated that he would not pay for her services, as he believed that the judge's order was "premature and unjustified." Nathan was also upset because he learned that during a supervised visitation session the investigator asked the child to refer to her father as "Dad." Nathan stated that this was "not acceptable" and threatened to discontinue visitation. Three days later, Nathan sent the investigator another letter, stating that she could not have direct contact with the mother or any member of her family. That letter included several derogatory statements about the investigator's professional reputation and threatened to publish a description of her actions on Nathan's website.
In addition to threatening to violate the court order to cooperate with and pay for the investigator, the referee found that Nathan violated and assisted his client in violating other court orders in this matter. After the judge adopted the investigator's visitation recommendation and ordered a transition from supervised to unsupervised visitation, the mother did not bring the child to a scheduled supervised visitation. The father's attorney moved for a contempt hearing and the mother went into hiding and did not appear. In an affidavit, the mother stated that she did not appear on Nathan's advice, and that throughout the time she was in hiding with the child, Nathan advised her not to turn herself in.[1] The father did not see the child again for over a year.
The judge asked Nathan multiple times to disclose his client's location and whether his client was in the state. Nathan stated that he advised his client not to appear but refused to give the legal basis for that advice. Nathan repeatedly refused to disclose any information relating to his client's location, citing attorney-client privilege. The judge found Nathan in contempt. Nathan still refused to disclose the location of his client and was incarcerated for 54 days. Nathan never complied with the court's order.
The referee also found that Nathan made a frivolous request for a stay in this matter when he requested that visitation be stayed until a claim of abuse was investigated. The same claim of abuse had been raised one year earlier and after an investigation was determined to be unfounded.
There are two statements that Nathan made about the judge in this case that the referee found to be baseless or derogatory. Both statements came in a petition that Nathan filed in the court of appeals to overturn the visitation order. In that petition, Nathan wrote that the judge "is a bad judge," who "substituted his personal view for the law" and "won election to the office *582 of judge by appealing to racism." The referee found that the only evidence of a personal view the judge expressed was not inconsistent with the law. The referee also found that Nathan's sole basis for the allegation that the judge won election by appealing to racism was that the judge's opponent in the previous election had what Nathan referred to as a Hmong-sounding name.
In addition to the false statements Nathan made about the judge, the referee found that Nathan made a false statement to opposing counsel. During a telephone conversation, Nathan told opposing counsel that he had been recording the conversation without counsel's knowledge. Nathan did not in fact record the conversation.
CHIPS Proceeding
Nathan represented the mother of four children in a CHIPS proceeding in which Ramsey County sought to terminate the mother's parental rights to the two youngest children. The referee found that Nathan engaged in a pattern of harassing and frivolous litigation, violated and threatened to violate court orders and confidentiality statutes and rules, made baseless derogatory statements about judges, and made false statements.
The pervasive nature of the harassing and frivolous litigation and the threats to violate and violations of court orders and confidentiality statutes and rules in this matter are closely linked. Nathan sent a letter to the psychologist hired by the county demanding that she provide a written response to 31 questions. Nathan wrote: "If you do not provide satisfactory bases for your allegations, I will publish your letter on my website." Nathan also harassed the social worker in the case. In a memorandum to the court Nathan wrote: "What is happening in this case is madness. It is uncivilized. [The mother] is being denied custody of her children * * * by an out-of-control power crazed social worker on the basis of a report by a psychologist * * *. The person who is crazy is [the psychologist]." Nathan also repeatedly called the social worker a racist, including a statement in a memorandum to the court of appeals. Nathan continued with a similar course of conduct toward all involved in the case. For example, Nathan asked the court to order the foster parent of one of the children to send the child to the school of the mother's choice and threatened to sue the foster parent if the court did not grant his request.
As a result of Nathan's conduct and threats to disclose information, the judge issued a protective order restraining "Nathan from making public any part of the juvenile protection case record in this case without first obtaining a court order." The judge also ordered Nathan to pay $1,500 in sanctions and restrained him from further harassing any witnesses or parties. After the judge issued this order Nathan sent him a letter threatening to publish an article about the case "regardless of the consequences to me." Nathan then published an article on his website describing the case entitled The Young Sex Perverts and placed an ad in the newspaper directing individuals to the article. Nathan also sent letters to the assistant county attorney and others threatening to violate the protective order. In a memorandum responding to a contempt motion that followed, Nathan admitted that he published materials in violation of the court order because "[o]ccasionally, it is necessary to violate a court order or even a law in order to correct serious injustices."
The court found Nathan in contempt for violating the protective order and ordered him to remove all information regarding *583 the case from his website, fined him $500, and again restrained him from publishing any information regarding the case. Two days later Nathan sent the judge a letter stating that if the judge did not schedule a hearing and provide 10 items of relief he was requesting, he would publish an article in area newspapers. Enclosed was an article entitled The Young Sex Perverts with the judge's name prominently displayed below the title. Nathan published the article in the St. Paul Pioneer Press as a paid advertisement on November 3, 2000, shortly before election day.
The final piece of harassing and frivolous conduct in this matter is a federal lawsuit Nathan filed against the social worker, judge, assistant county attorney, psychologist, and one of the foster parents, among others, alleging their actions violated 42 U.S.C. § 1983 (2000). The defendants moved for summary judgment, and the federal district judge granted the motion and awarded the psychologist $2,607.09 in attorney fees.
In addition to the article Nathan published, he made other baseless and derogatory statements about judges in this matter. One of the other statements Nathan made was in a brief to the court of appeals. In that brief, Nathan called the judge "an extremely bad judge" and stated "I am aware that this Court is determined to support trial court judges in whatever action they take in order to preserve the almost unlimited power of judges to do what they wish."
The referee found that Nathan made false statements in two separate instances in this matter. First on October 3, 2000, Nathan requested permission from the judge to order a transcript of two witnesses' testimony. The request stated: "I will use the transcripts only for the purpose of preparing for cross-examination." (Emphasis added.) Then in a November 8 letter requesting the transcript for a different purpose, Nathan wrote: "As I thought I made clear, my purpose in obtaining this transcript is not to prepare for cross-examination." (Emphasis added.) After the judge pointed out these discrepancies Nathan sent another letter to the judge stating: "[O]ne of my purposes of ordering the * * * transcript was to prepare for cross-examination. Although not stated in that letter, a second purpose was to provide a copy of the * * * transcript to [the] psychologist."
The second false statement occurred when Nathan filed a motion seeking permission to provide information about the case to an organization performing research on juvenile crime. In that motion Nathan wrote that the research director requested information on the CHIPS case and that the "research director [of the organization] believes there may be major problems in the work of the Ramsey County Juvenile Court." The referee found that Nathan made this statement with knowing or reckless disregard for the truth because a research assistant from the organization contacted Nathan for general information only and did not ask for any material relating to a specific case.
Finally, the referee found that Nathan violated the rules of professional conduct by failing to pay or arrange to pay the $1,500 and $500 sanctions imposed in the CHIPS matter, and the $2,607.09 in attorney fees imposed in the federal lawsuit. At the time of the referee's decision in November of 2002, Nathan had not paid any of the sanctions owed Ramsey County. In his reply brief, Nathan claims that he has paid the sanctions; however, there is no evidence in the record that indicates payment.
Disciplinary Action
If a respondent orders a transcript of the referee's hearing, the referee's findings *584 of fact and conclusions of law are not conclusive and either party may challenge the findings of fact or conclusions of law. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). Nevertheless, this court gives "great deference to a referee's findings on disputed facts and will not reverse the referee's findings and conclusions unless they are clearly erroneous." In re Westby, 639 N.W.2d 358, 367 (Minn.2002).
Nathan does not cite which of the referee's findings of fact and conclusions of law are clearly erroneous. However, there appear to be four primary issues that Nathan raises: (1) he did not file a frivolous motion in violation of Rule 3.1 by asking for a stay in the child custody matter; (2) he did not violate Rules 3.4(c) and 8.4(d) by failing to disclose the location of his client; (3) his statements about judges did not violate Rules 8.2(a) and 8.4(d); and (4) the alleged false statements were either justified or honest mistakes and therefore did not violate Rules 4.1 and 8.4(c). We will consider each argument in turn.
Nathan asserts that his request to stay unsupervised visitation in the child custody matter until the county could investigate the abuse allegation was not frivolous because the child verified the abuse to the psychologist, which constituted new evidence. The same claim of abuse had been raised one year earlier and after an investigation was determined to be unfounded. For this reason the referee's finding that the request for a stay was frivolous is not clearly erroneous.
Nathan contends that he did not violate the rules of professional conduct by refusing to disclose the location of his client. However, in an affidavit to this court on December 12, 2002, in support of his request to order a partial transcript, Nathan stated: "I do not and will not challenge any of the findings in the Findings of Fact, Conclusions of [L]aw, and Recommendations for Discipline dated November 22, 2002 in the subject proceedings that relate in any way to Conclusion[ ] of Law Number 2." (Emphasis added.) Conclusion of Law Number 2 concerns the referee's findings of fact that Nathan violated the order to disclose his client's location. Therefore, Nathan has waived any objections to the referee's conclusions on this issue.
"A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge." Minn. R. Prof. Conduct 8.2(a). Nathan argues that in order to warrant discipline his statements had to constitute a clear and present danger to the administration of justice; his statements are protected because they are opinion, and that he believed there was a basis for the statements. However, statements about judges need not constitute a clear and present danger to the administration of justice to violate the rules of professional conduct. The cases Nathan cites to support his contention that we should apply a clear and present danger standard are inapposite. See, e.g., Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947) (discussing the prevention of publication of statements that could prejudice ongoing trials). Moreover, Nathan's statements about judges are not protected statements of opinion. Merely cloaking an assertion of fact as an opinion does not give that assertion constitutional protection. In re Westfall, 808 S.W.2d 829, 832-33 (Mo.1991) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), for the proposition that one cannot create an "artificial dichotomy" between opinion and fact by couching an assertion of fact as an opinion). The standard used to determine *585 if a statement is false or made with reckless disregard as to its truth or falsity is "an objective one dependent on what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances." In re Graham, 453 N.W.2d 313, 322 (Minn.1990).
The referee's findings regarding Nathan's statements about judges are not clearly erroneous, as the statements plainly were made with knowing or reckless disregard for the truth. Additionally, Nathan's argument that he felt some of the statements are true is not germane because the standard for judging statements is an objective one. See Graham, 453 N.W.2d at 322.
Likewise, the referee's findings that Nathan made false statements are supported by the record and not clearly erroneous. Nathan admits that his statement to opposing counsel in the child custody proceeding that he was recording a telephone conversation was false, but contends that the statement was justified because opposing counsel became agitated during the conversation. Nathan does not cite any authority for the proposition that an attorney may lie to opposing counsel without violating the rules of professional conduct if that attorney believes the lie to be justified.
Nathan next contends that he requested court documents be released to the community organization based on what he believed was said in a voice mail message left by a research assistant. Nathan asserts that there may have been some confusion about the content of the message, but that he did not knowingly make a false statement. However, the record clearly demonstrates that the research assistant never requested documents relating to a specific case. Therefore, the evidence supports the referee's finding that the request for information was made with knowing or reckless disregard for the truth.
Nathan claims that his statements regarding the use of the transcript in the CHIPS proceeding were not false. Instead, Nathan argues that there was merely an inconsistency in two letters sent more than one month apart. The text of the three letters detailed above support the referee's findings. The discrepancies among these three letters are more than a mere inconsistency. In each letter, using unambiguous language, Nathan makes a different representation to the court regarding the use of the transcript.
The final issue we must consider is the appropriate discipline. "The purpose of discipline is not to punish the lawyer but, rather, `to protect the courts, the public, and the profession and to guard the administration of justice.'" Westby, 639 N.W.2d at 370 (quoting In re Flanery, 431 N.W.2d 115, 118 (Minn.1988)). "In evaluating the appropriateness of the disciplinary sanction," this court considers "the misconduct, the cumulative weight of the disciplinary rule violations, the potential harm to the public, and the harm to the legal profession." Id. "Although prior cases may be helpful by analogy, each case must be decided on its unique facts and circumstances." In re McCoy, 447 N.W.2d 887, 890 (Minn.1989). A failure to acknowledge or express remorse for disciplinary violations is an aggravating factor. See, e.g., In re Selmer, 568 N.W.2d 702, 704 (Minn.1997); In re Jensen, 542 N.W.2d 627, 634 (Minn.1996); In Re Pokorny, 453 N.W.2d 345, 348 (Minn.1990).
Nathan's briefs and statements at oral argument demonstrate that he does not acknowledge his actions were wrong. Nathan made it clear both in his briefs and at oral argument that he does not believe that violating a court order one feels is *586 unjust is necessarily wrong. Additionally, Nathan apparently believes that violating a court order that has been appealed but not stayed is permissible. Nathan also implies in his brief that he will not engage in harassing conduct again solely because he now realizes that such conduct is ineffective. Furthermore, Nathan's threats to judges and parties if they refused to comply with his demands, and the fact that Nathan's client was convicted of a crime as a result of following his advice not to appear in court and produce the child, are particularly troubling examples of misconduct.
We have imposed indefinite suspensions in similar cases where attorneys engaged in a pattern of harassing and frivolous litigation. Jensen, 542 N.W.2d at 632-34 (indefinitely suspending attorney for a minimum of 18 months for engaging in a pattern of "harassing and frivolous litigation, neglecting professional obligations, and misrepresentations to judicial officers"); Selmer, 568 N.W.2d at 702-03 (indefinitely suspending attorney for a minimum of 12 months for engaging in a pattern of frivolous and harassing conduct). We concur with the referee's recommendation that Nathan should be indefinitely suspended from the practice of law with leave to apply for reinstatement after six months. However, considering the quantity and severity of Nathan's misconduct, we disagree with the referee's finding that Nathan should be given credit against the suspension for the 54 days he was incarcerated for contempt.
Accordingly, we order that:
1. Respondent Dale Nathan is hereby indefinitely suspended from the practice of law with no right to reapply for reinstatement for six months from the date of this opinion;
2. Nathan shall comply with Rule 26, RLPR;
3. Nathan shall successfully complete the professional responsibility portion of the bar examination within one year of the date of this opinion;
4. Nathan shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR;
5. Nathan shall provide to the Director proof of satisfaction of all outstanding sanctions and attorney fees;
6. Any petition for reinstatement shall comply with the requirements of Rule 18(a)-(e), RLPR;
7. As a condition of reinstatement Nathan shall submit a sworn affidavit or testify under oath that he will not intentionally disobey a court order; and
8. If Nathan is reinstated to the practice of law, he shall be placed on supervised probation for two years following reinstatement, with the terms and conditions of probation to be determined at the time of reinstatement.
So ordered.
BLATZ, C.J., took no part in the consideration or decision of this case.
NOTES
[1] Subsequently, the mother was convicted of depriving another of custodial or parental rights under Minn.Stat. § 609.26 (2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578908/ | 671 N.W.2d 125 (2003)
258 Mich. App. 260
Mark CHURELLA, Susan Radtke, and Peter Treboldi, Plaintiffs-Appellants,
v.
PIONEER STATE MUTUAL INSURANCE COMPANY, Dan Czmer, Jack D'Arcy, Harlan Gingrich, Robert West, Carleton Wilson, Dale Little, Gordon Gingrich, and Milton Timmerman, Defendants-Appellees, and
Attorney General, Commissioner of the Office of Financial and Insurance Services, and National Association of Mutual Insurance Companies, Intervening Defendants-Appellees, and
MgNish Dennehy Agency, Inc. and Lori Smith, Defendants.
Docket No. 238695.
Court of Appeals of Michigan.
Submitted August 6, 2003, at Detroit.
Decided August 28, 2003, at 9:00 a.m.
Released for Publication October 29, 2003.
*126 Jaffe Raitt Heuer & Weiss, P.C. (by Joseph J. Shannon and Melanie LaFave), Detroit, for the plaintiffs.
*127 Kaufman & Payton (by Alan Jay Kaufman and Donald L. Payton), Farmington Hills, for the Pioneer State Mutual Insurance Company and its directors.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and William A. Chenoweth, Assistant Attorney General, for the Attorney General and the Commissioner of the Office of Financial and Insurance Services.
Dykema Gossett, PLLC (by Lori M. Silsbury), Lansing, for amicus curiae the National Association of Mutual Insurance Companies.
Before: DONOFRIO, P.J., and BANDSTRA and O'CONNELL, JJ.
O'CONNELL, J.
Plaintiffs Mark Churella, Susan Radtke, and Peter Treboldi appeal as of right the trial court's order dismissing their suit pursuant to MCR 2.116(C)(8) for failure to state a claim on which relief may be granted. This case arose when plaintiffs brought suit to compel defendant Pioneer State Mutual Insurance Company and its directors, defendants Dan Czmer, Jack D'Arcy, Harlan Gingrich, Robert West, Carleton Wilson, Dale Little, Milton Timmerman, and Gordon Gingrich, to distribute the company's excess surplus. Plaintiffs claimed a right to sue as policyholders and therefore owners of Pioneer. Plaintiffs claimed that the directors violated the business judgment rule by failing to consider whether to distribute the excess surplus.[1] We affirm.
I
Plaintiffs filed an action seeking certification as a class action, alleging that as current and past policyholders, they had standing as owners of the company to compel Pioneer to distribute its excess surplus. They claimed that the company was holding millions of surplus in excess of its reserve requirements and that it was obligated to distribute that surplus. Furthermore, they claimed that the directors breached fiduciary duties owed to the policyholder-owners by failing to distribute the surplus, and thus were not protected by the business judgment rule.
In their answer, Pioneer and its director sought a judgment of no cause of action, claiming that plaintiffs had no recognizable claim under Michigan law and that the directors' actions were in the best interests of the policyholders and, therefore, protected by the business judgment rule. They also moved to dismiss for lack of subject-matter jurisdiction pursuant to MCR 2.116(C)(4).
The Attorney General and the Insurance Commissioner argued that while Michigan had no case law on point, court decisions in other states had denied similar plaintiffs the right to compel distribution when there was no dissipation of a surplus. They claimed that policyholders are different from shareholders because policyholders contract to have their insurance claims paid, while shareholders buy shares for *128 investment purposes. While the Attorney General and the Insurance Commissioner admitted that plaintiffs had a beneficial interest in the surplus, they argued that plaintiffs had no right to compel distribution because plaintiffs did not allege that they were promised a share of the surplus, or that they had contracted for a share.
Plaintiffs, on the other hand, argued that policyholders have the same rights as shareholders, and that the board of directors was not protected by the business judgment rule because it had failed to act. The trial court decided to adjourn the hearing regarding the motions to dismiss because it found two cases cited by defendants difficult to distinguish, and wanted to give plaintiffs time to respond. The trial court indicated that it was troubled by the notion of ownership because plaintiffs conceded that their ownership rights could not be transferred.
Following a second hearing, the trial court granted summary disposition because it determined it did not have subject-matter jurisdiction over plaintiff's claim. The court further concluded that plaintiffs presented no deposition or affidavit indicating that the directors behaved in an improper fashion, but even if the directors had behaved improperly, it would be the Insurance Commissioner's job to sanction their behavior. The trial court subsequently dismissed the case and ordered plaintiffs to pay Pioneer's costs and attorney fees.
Plaintiffs appealed, and this Court affirmed the trial court's ruling regarding subject-matter jurisdiction, but reversed its imposition of costs and fees. Churella v. Pioneer State Mut. Ins. Co., unpublished opinion per curiam of the Michigan Court of Appeals, decided November 12, 1999 (Docket Nos. 204840, 209998), 1999 WL 33430022. Our Supreme Court reversed and remanded to this Court because it determined that M.C.L. § 500.403, 500.410, and 500.810 of the Insurance Code did not clearly give the Insurance Commissioner exclusive jurisdiction over plaintiffs' claim. 463 Mich. 993, 624 N.W.2d 725 (2001). This Court then remanded to the trial court to rule on the substantive issues.
The Attorney General and the Insurance Commissioner again moved for summary disposition pursuant to MCR 2.116(C)(4) and (C)(8). Pioneer also moved for summary disposition pursuant to MCR 2.116(C)(8). The trial court noted that it had already ruled substantively against plaintiffs, and that plaintiffs had received what they bargained for, i.e., insurance coverage, and that they had no cause of action beyond that for which they bargained.[2] The trial court again granted defendants summary disposition, reiterating the language of its previous order granting summary disposition for failure to state a claim.[3] This appeal followed.
*129 II
The issue on appeal is whether policyholders have a right to compel distribution of a surplus and whether the business judgment rule shields directors when they do not make the distribution.
We hold that policyholders do not have a right to compel distribution of a surplus where there is no statute, company bylaw, or contract provision according them that right, and where they did not sufficiently plead facts to overcome the business judgment rule.
This Court reviews de novo a trial court's grant of summary disposition for failure to state a claim. Beaudrie v. Henderson, 465 Mich. 124, 129, 631 N.W.2d 308 (2001). When reviewing a trial court's grant of summary disposition for failure to state a claim on which relief can be granted, an appellate court assumes that all factual allegations in the nonmoving party's pleadings are true, Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999), and determines whether there is a legally sufficient basis for the claim. Beaudrie, supra at 129, 631 N.W.2d 308. In the instant case, plaintiffs' factual allegations are that they are policyholders and that the board of directors has not distributed the company's excess surplus.[4]
For this Court to conclude that plaintiffs' claim is legally sufficient, we must decide (1) that plaintiffs as policy holders, are owners of Pioneer, (2) that policyholders have the same rights as shareholders with respect to compelling distribution of excess surplus, (3) that shareholders have the right to compel distribution, and (4) that plaintiffs are not precluded by the business judgment rule from bringing suit. It appears clear that policyholders are owners of mutual insurance companies. Because of their ownership interest, policyholders of mutual insurance companies are both insureds and insurers. Comm'r of Ins. v. Arcilio, 221 Mich.App. 54, 66, 561 N.W.2d 412 (1997). Moreover, defendants concede that plaintiffs have some form of ownership interest.
However, whether a policyholder has the same rights as a shareholder is not as clear. Plaintiffs cited several cases that analogized policyholder suits to shareholder suits. Pincus v. Mut. Assurance Co., 4 Pa. D. & C.3d 71, 73 (1976), aff'd 251 Pa.Super. 626, 381 A.2d 913 (1977) (a suit challenging a mutual company's dividend policy is governed by the same legal principles applicable to stock companies); Barnes v. State Farm Mut. Auto. Ins. Co., 16 Cal.App.4th 365, 375, 20 Cal.Rptr.2d 87 (1993) (a policyholder has the same legal rights a shareholder has). These cases clearly analyzed suits to compel distribution by policyholders according to the same principles used to analyze shareholder suits to compel dividends.
*130 On the other hand, defendants assert that the relationship between a policyholder and a mutual insurance company is that of creditor and debtor, and that the policyholder's rights are determined by statute, company, bylaws, or contract. Prudential Ins. Co. of America v. Miller Brewing Co., 789 F.2d 1269, 1275 (C.A.7, 1986) (an insurance policy is interpreted like a contract); Pink v. Town Taxi Co., 138 Me. 44, 51, 21 A.2d 656 (1941), citing Greenlaw v. Aroostook Co. Patrons' Mut. Fire Ins. Co., 117 Me. 514, 105 A. 116 (1918) (a member of a mutual insurance company has the right to share profits and the duty to share losses according to state law, the company's bylaws, and contract); Boynton v. State Farm Mut. Automobile Ins. Co., 207 Ga.App. 756, 757, 429 S.E.2d 304 (1993) (a member has no contractual right to proceeds where the contract provides that distribution is within the company's discretion); Barnes, supra at 375, 20 Cal.Rptr.2d 87 (statute provides that members of a mutual insurance company have the same rights as shareholders of stock corporations). Yet, these cases are only persuasive authority because they involve decisions from other states and a federal circuit court. See Farm Bureau Mut. Ins. Co. v. Buckallew, 246 Mich.App. 607, 613-614 n. 6, 633 N.W.2d 473 (2001); Sharp v. City of Lansing, 464 Mich. 792, 802-803, 629 N.W.2d 873 (2001).
Indeed, none of the parties cited any binding Michigan authority on this issue, and the trial court indicated that it believed the issue was one of first impression. Nevertheless, while Michigan courts have not squarely dealt with this question, previous decisions involving similar issues are helpful. In a suit by a policyholder to enjoin reinsurance designed to allow a mutual insurance company to continue business, our Supreme Court indicated that a policyholder's rights depended on the terms of the policy. Glover v. Diggs, 368 Mich. 430, 432, 118 N.W.2d 278 (1962). Because plaintiffs in the instant case did not allege that the terms of their policies gave them the right to compel distribution, it initially appears that their claim fails.
Furthermore, this Court previously determined that the Insurance Code, M.C.L. § 500.100 et seq., did not incorporate by reference the appraisal rights given to shareholders by the general corporation act, M.C.L. § 450.98 et seq. Wiltsie v. Standard Accident Ins. Co., 1 Mich.App. 212, 216, 135 N.W.2d 592 (1965). This Court further stated that the Legislature did not intend to supplement omitted provisions from the Insurance Code, with provisions of the general corporation act. Wiltsie, supra at 214-215, 135 N.W.2d 592. Because we are unable to find a provision in the Insurance Code affording policyholders the right to compel distribution, it appears that plaintiffs have no basis on which to maintain their suit. While Wiltsie, supra, was decided before November 1, 1990, and therefore is not binding precedent, MCR 7.215(J)(1), Wiltsie is supported by M.C.L. § 450.1123(2), which provides that Michigan's Business Corporation Act, M.C.L. § 450.1101 et seq., does not apply to insurance companies.
On the other hand, the Court in Glover, supra at 434, 118 N.W.2d 278, also stated, "If a suit of this nature, brought by the holder of a policy issued by an insurance company, may be regarded analogous to an action by a stockholder of a corporation when duly authorized under the law of the State, like rules of procedure must be observed." This statement appears to consider the concept that a policyholder's suit should be treated like a shareholder's suit. In addition, the Supreme Court stated that mutual insurance company policyholders "would be in a better position to assert a property interest in the surplus...." In re *131 Certified Question (Fun `N Sun RV, Inc. v. Michigan), 447 Mich. 765, 791 n. 34, 527 N.W.2d 468 (1994), after remand 223 Mich. App. 542, 567 N.W.2d 460 (1997). However, this statement was not essential to the determination of that case and, thus, is not binding precedent. Faith Reformed Church of Traverse City, Michigan v. Thompson, 248 Mich.App. 487, 496, 639 N.W.2d 831 (2001).
We note that the arguments propounded by plaintiffs and defendants may be harmonized; where a policyholder of a mutual insurance company has the right to bring suit to compel distribution of surplus, the action must be treated as a shareholder's suit to compel a dividend; however, the policyholder must derive the right to compel distribution from either statute, the company's bylaws, or the policy itself. This analysis is consistent with Glover, supra at 432, 434, 118 N.W.2d 278. An extension of Glover in this fashion results in a holding that plaintiffs have no legal ground to support their claim.
Even if we did determine that plaintiffs have a legal basis on which to maintain their suit, they must next overcome the business judgment rule:
"It is a well-recognized principle of law that the directors of a corporation, and they alone, have the power to declare a dividend of the earnings of the corporation, and to determine its amount. Courts of equity will not interfere in the management of the directors unless it is clearly made to appear that they are guilty of fraud or misappropriation of the corporate funds, or refuse to declare a dividend when the corporation has a surplus of net profits which it can, without detriment to its business, divide among its stockholders, and when a refusal to do so would amount to such an abuse of discretion as would constitute a fraud, or breach of that good faith which they are bound to exercise towards the stockholders." [In re Butterfield Estate, 418 Mich. 241, 254-255, 341 N.W.2d 453 (1983), quoting Hunter v. Roberts, Throp & Co., 83 Mich. 63, 71, 47 N.W. 131 (1890) (citation omitted).]
Plaintiffs in the instant case claim that the directors are not protected by the business judgment rule because they failed to exercise their discretion when they failed to consider whether to distribute the excess surplus. They alleged in their complaint that Pioneer and its directors violated their fiduciary responsibilities to the policyholders by not distributing the surplus. However, plaintiffs did not explain how the failure to distribute the surplus amounted to fraud or bad faith. They cite several cases to support their claim that failure to declare a dividend is an abuse of business discretion. However, we find none of the cited cases dispositive.
In Miller v. Magline, Inc., 76 Mich.App. 284, 256 N.W.2d 761 (1977), this Court noted that the dividend policy was one of the major purposes of a for-profit corporation, id., at 304-305, 256 N.W.2d 761, while in the instant case, the major purpose of a mutual insurance company is to provide insurance coverage to its policyholders. In addition, this Court quoted with approval the chancellor's finding that the directors could not claim that the company was unable to afford a dividend when they had paid themselves significant bonuses. Id. at 309, 256 N.W.2d 761. Plaintiffs have not made similar allegations in the instant case.
In Marvin v. Solventol Chemical Products, Inc., 298 Mich. 296, 298 N.W. 782 (1941), a board of directors signed an agreement giving another party complete control over the company's finances. Id. at 298, 298 N.W. 782. Our Supreme Court determined that the directors could not contract away their duty to exercise independent judgment.Id. at 301-302, 298 N.W. 782. In the instant case, plaintiffs *132 did not allege that the directors had, by contract, abdicated their managerial responsibilities.
While Dodge v. Ford Motor Co., 204 Mich. 459, 508-509, 170 N.W. 668 (1919), appears to support plaintiffs' position that a failure to distribute excess profits, without more, is an abuse of discretion, our Supreme Court also noted that the purpose of a business corporation is to provide profit to its shareholders. Id. However, this is not the purpose of a mutual insurance company. The purpose of a mutual insurance company is to provide affordable insurance coverage to its members. Kamm & Schellinger Brewing Co. v. St. Joseph Co. Village Fires Ins. Co., 168 Mich. 606, 618, 134 N.W. 999 (1912).
Therefore, because plaintiffs did not explain how the directors' failure to consider a distribution constituted fraud or bad faith dealings, and because plaintiffs have not cited any cases indicating that a failure to declare a dividend, without more, constitutes an abuse of business discretion, we conclude that plaintiffs have not sufficiently pleaded facts that would overcome the business judgment rule. Conclusory statements, unsupported by factual allegations, are insufficient to state a cause of action. ETT Ambulance Service Corp. v. Rockford Ambulance, Inc., 204 Mich.App. 392, 395, 516 N.W.2d 498 (1994).
In sum, we hold that policyholders have no right to compel distribution where there is no statute, company bylaw, or contract provision according them that right, and where they did not sufficiently plead facts to overcome the business judgment rule.
Affirmed.
PAT M. DONOFRIO, P.J., concur.
BANDSTRA, J. (concurring).
I concur with the majority that we should affirm in this case. However, the decision that the policyholders have no right to compel distribution of a surplus makes it unnecessary to consider whether the directors violated the business judgment rule in failing to make that distribution. I would not reach that second question and note that, by doing so, the majority opinion might be misread as indicating that policyholders such as those involved here would have a right to compel a distribution if they could allege and prove that the business judgment rule was violated. I do not read the majority opinion to have that import and write separately to point that out.
Further, I note that our decision that the policyholders have no right to compel a distribution should not be viewed as unduly harsh. They are not without a remedy. If a majority of policyholders thinks that a distribution should be made, they can elect new board members who share that view.
RICHARD A. BANDSTRA, agree.
NOTES
[1] The Attorney General and the Commissioner of the Office of Financial and Insurance Services (the Insurance Commissioner) moved to intervene as defendants, and moved for dismissal pursuant to MCR 2.116(C)(8) and (C)(4), alleging that the trial court lacked subject-matter jurisdiction and that plaintiffs failed to state a claim on which relief could be granted. The National Association of Mutual Insurance Companies (NAMIC) also moved to intervene as a defendant and filed a brief supporting dismissal, but was granted leave to file amicus briefs in lieu of being granted leave to intervene as a defendant. Nonparty defendant Lori Smith, an employee of nonparty defendant MgNish Dennehy Agency, Inc., originally approached Pioneer at an agent's meeting with information regarding plaintiffs' lawsuit, and she and her company were listed as potential witnesses for Pioneer.
[2] Plaintiffs assert that the trial court considered issues beyond the pleadings and, thus, its order granting summary disposition was decided under MCR 2.116(C)(10), rather than MCR 2.116(C)(8). Because neither defendants' motion nor their supporting briefs included extraneous evidence, see Smith v. Globe Life Ins. Co., 460 Mich. 446, 455, 597 N.W.2d 28 (1999), we conclude that the court properly considered the motions under MCR 2.116(C)(8).
[3] Once a court concludes that it lacks subject-matter jurisdiction, any further action it takes is void. Altman v. Nelson, 197 Mich.App. 467, 472-473, 495 N.W.2d 826 (1992); see also Burke v. Michigan Catastrophic Claims Ass'n, unpublished opinion per curiam of the Court of Appeals, decided April 15, 2003 (Docket No. 227123), 2003 WL 1879928 (circuit court had no jurisdiction over policyholders' suit for breach of fiduciary duty and contract concerning extent of distributed surplus). There may be a question whether the trial court could rely on its findings in the previous order after it determined it lacked jurisdiction. However, the parties do not raise this issue on appeal. Our Supreme Court determined that the trial court did have subject-matter jurisdiction, and the trial court adopted its original findings after it was found to have subject-matter jurisdiction. Therefore, we conclude that the court could validly rely on its previous findings.
[4] Defendants submitted with their brief on appeal meeting minutes indicating that the board of directors considered whether to distribute excess surplus on November 1, 2001, and decided not to distribute it. However, plaintiffs point out that these minutes were not presented to the trial court, and there is no indication in the record that the trial court considered them. Because this Court "is limited to the record established by the trial court," Reeves v. Kmart Corp., 229 Mich.App. 466, 481 n. 7, 582 N.W.2d 841 (1998), we will not consider the meeting minutes in our decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578925/ | 671 N.W.2d 522 (2003)
In the Interest of S.D. and K.D., Minor Children,
D.D., Father, Appellant.
No. 02-1905.
Court of Appeals of Iowa.
September 10, 2003.
*524 Sally Peck, Iowa City, for appellant father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Michael Wolf, County Attorney, and Jayme Kirsch, Assistant County Attorney, for appellee.
David Pillers, Clinton, for appellee mother.
Thomas Lonergan of Mayer, Mayer, Lonergan & Rolfes, Clinton, for minor child.
Considered by SACKETT, C.J., and MILLER and HECHT, JJ.
SACKETT, Chief Justice.
Appellant-father, David, appeals the decision of the juvenile court finding his children to be in need of assistance under Iowa Code section 232.2(6)(c)(1) (2001). David does not challenge the finding that the children are in need of assistance, but he contends the finding is supported by the children's mother's conduct, not his. David contends the juvenile court abused its discretion in (1) not granting his pro se motion for change of venue and considering it as a motion for recusal of the judge, and (2) denying his request to hire an expert witness. He also contends the court should not have limited the witnesses he sought to introduce from testifying. David further contends his trial attorney was ineffective in a number of instances. We affirm the finding the children are children in need of assistance and affirm on the issues raised. We preserve David's right to challenge the effectiveness of his trial counsel in several respects.
I. BACKGROUND FACTS AND PROCEEDINGS.
David and Kimberly are the parents of the children at issue here, Shawn, born February 2, 1998, and Kerri, born October 30, 1999. The couple never married[1] but did live together for a period of about ten years. Kimberly's older children, Melissa and Jason, also lived with the couple.
What is termed "a founded report" concluding David sexually abused Melissa was filed by the Department of Human Services on August 28, 2001. On March 29, 2002 Kimberly obtained a protective order against David, as a finding was made that he was guilty of domestic abuse. Apparently, criminal charges accusing David of sexual abuse were filed, but after an April *525 2002 trial he was acquitted of the charges. On April 26, 2002 the protective order against David was modified to allow him supervised visits with his children. David requested that the protective order be cancelled, and after a May 10, 2002 hearing, District Court Judge C.H. Pelton denied David's request. David contends he filed a complaint with the Judicial Qualifications Commission, challenging comments Judge Pelton made during the hearing, indicating he did not consider the fact David had been acquitted of sexual abuse in a criminal trial in deciding the civil issue of placement of his children. David claims Judge Arlen Van Zee was mentioned in this complaint. A copy of the complaint is not a part of the record, nor is there any showing Judge Van Zee ever received a copy of the complaint.
David began exercising supervised visits with the children in April 2002. Kimberly was concerned about Shawn's behavior following the visits. Shawn was referred to Joyce Morrison, LISW, for an evaluation. Morrison reported that during play therapy Shawn made consistent statements telling her David threatened to kill Kimberly and Shawn's siblings, and he demonstrated with knives how David would do it. The statements were made while Morrison and Shawn engaged in what Morrison called play therapy. During several sessions of the play therapy Shawn's statements about David remained consistent. Shawn told Morrison he needed to protect Melissa because David told him he wanted to perform various sex acts with Melissa and then kill her.[2] Morrison concluded Shawn had symptoms of separation anxiety, emotional distress, and acute stress disorder and was on the verge of developing post-traumatic stress disorder. Following Morrison's evaluation the court issued an ex parte order on July 30, 2002, terminating David's visits with his children.
On August 1, 2002 a petition was filed requesting that Shawn and Kerri be found to be children in need of assistance under Iowa Code section 232.2(6)(b) and (c)(1). On August 6, 2002 David's attorney filed a motion requesting that the court dismiss Morrison as a play therapist and hire another play therapist. The motion contended Morrison was prejudiced against David because she was an expert witness in a trial where he was the defendant, and she displayed animosity towards David and would not render an unbiased opinion. The motion asked that another play therapist be hired at State expense. The State resisted the motion, noting that Kimberly had hired the therapist, that the interest of the children was at issue, and that information about David's prior history would be made known to another therapist. On September 10, 2002 David filed a pro se motion to transfer the case out of Clinton County, for the following reasons:
(1) prejudice from recent jury trials, (2) filed a complaint with judicial qualifications committee against Judge Pelton (3) Judge Pelton's comments on May 10th that he didn't care that I was aquitted [sic] because I was still accused of sex abuse I would still have to have supervised visits.
The motion was resisted by Kimberly and the guardian ad litem for the children.
Through his attorney David filed a written response to the petition to have the children found to be in need of assistance, contending Kimberly (1) was treated for substance abuse in 1992; (2) had a criminal record including a domestic abuse report *526 in Sioux City, Iowa; (3) allowed a child to watch an inappropriate movie in October of 2000 which the couple argued about, she hit him, and he called the police; (4) allowed two men with criminal histories to live in her home; (5) allowed Melissa, a minor, to have her boyfriends live in the home; (6) lied to the police when she said David kidnapped her son; (7) allowed Shawn to play with a handgun; and (8) smoked marijuana. David further alleged he was advised in August of 2002 that someone called 911 saying Kimberly was going to kill him. He also alleged Kimberly did not protect his children from their half-siblings and others.
Kimberly filed a "Motion in Limine" seeking to exclude evidence at trial as to (1) her actions and conduct that occurred or transpired more than six months prior, (2) evidence from two previous sexual abuse trials, (3) allegations concerning David's sexual conduct, (4) evidence of her criminal history, and (5) evidence concerning a 911 call in August of 2002.
On September 23, 2002, the date of trial, David's attorney filed a renewed motion to hire at State expense a play therapist for a second opinion. She contended Dr. McEchron, a psychologist from Davenport, had recommended the children be evaluated by a play therapist in Iowa City, who was contacted and agreed to evaluate the children. The motion further indicated the Davenport psychologist had recommended to David's attorney and a Department of Human Services worker that a second opinion from a qualified play therapist was necessary. The motion noted that the allegations in the petition center on Morrison's evaluation of one of the children. The motion was not accompanied by an affidavit, nor was it verified.
The matter came on for hearing before the Honorable Arlen J. Van Zee. The court first addressed the motion for change of venue, denying it because it was not in proper form, and finding even if it were, it failed to state a valid ground for a change of venue. The court further noted Judge Pelton was not sitting on the case. The court also denied the renewed motion to hire a play therapist at State expense. In addition to filing the motion, David's attorney stated that the psychologist had expressed little confidence in Morrison's report. The juvenile court, in denying the motion, reasoned the methodology of the play therapist was not the issue; rather the issue was the statements made by the child. In support of its ruling denying David's request, the court cited the lack of a report or affidavit from the psychologist indicating the second therapist was necessary, as well as the fact that it would delay the proceedings.
The court also addressed the motion in limine filed by Kimberly and joined in by the guardian ad litem and the State. David's position was that he believed the children were children in need of assistance because of Kimberly's conduct, not because of his.[3] The judge said the State's petition focused on David's behavior and statements made by the children. He stated that was what they were going to deal with that day, and they were not going beyond that issue because that was the issue before the court. The judge further said it did not appear activities six months ago or before were relevant, as the allegations in the petition were recent and those were the allegations they were going to deal with. He noted that absent a statement or offer of proof showing the witnesses had knowledge of the allegations and specifics in the petition, their testimony *527 was not relevant, and the court would not allow it.
David's attorney made no further objection, offered no statements as to the witnesses' testimony, nor did he attempt to make an offer of proof as to the testimony sought to be offered.
On September 30, 2002, prior to the juvenile court's ruling in the child in need of assistance proceedings, David filed a pro se motion for new trial, contending he filed a complaint with the Judicial Qualifications Committee in August of 2002, the complaint included Judge Van Zee, and Judge Van Zee had knowledge of the complaint and was a party or a material witness to it. David requested Judge Van Zee recuse himself. There is no evidence when or if Judge Van Zee was notified of the complaint's filing.
On October 4 Judge Van Zee issued the order finding Shawn and Kerri to be children in need of assistance because of the actions of David. The court affirmed in writing the oral rulings made on the motions for a change of venue and for a second expert, as well as the motion in limine. The court found that the ex parte order of July 30, 2002 should remain in effect, and that continued separation was necessary to avoid risk to the children's life or health.
On October 9, 2002 Judge Van Zee recused himself from David's case. On October 11, 2002 David filed a pro se motion for a new adjudication hearing, arguing Judge Van Zee should have recused himself before making a decision in the child in need of assistance proceedings. On October 14 David's attorney filed a motion for a new adjudication hearing on David's behalf. Judge Mullen denied the motion.
A dispositional hearing was held on October 29, 2002 before Judge Mullen, in which custody of the children was placed with Kimberly. Visitation for David was conditioned upon his participation in services outlined in the case plan.
II. MOTION FOR CHANGE OF VENUE.
Change of venue and request for recusal. David's first argument is that the district court abused its discretion in failing to grant his motion for change of venue. He further contends that his motion should have been construed as a motion for Judge Van Zee's recusal, and it should also have been granted on this basis. In the alternative he claims he had ineffective assistance of counsel because his attorney failed to file a motion for recusal. The decision to grant or refuse a change of venue primarily rests in the discretion of the trial court, and we will reverse that decision only when the discretion has been abused. State v. Wagner, 410 N.W.2d 207, 210 (Iowa 1987). The motion states no grounds to support a change of venue as provided for in Iowa Rule of Civil Procedure 1.801. A copy of the complaint against Judge Pelton is not in the record. There was no showing in the motion or through testimony that Judge Van Zee was directly interested in the action or related to either party. See Iowa R. Civ. P. 1.801(2). Nor was the motion supported by David's affidavit and those of three disinterested persons to qualify for a change of venue under rule 1.801(3). There was no basis shown for granting the motion.
Recusal. David did not make a motion for recusal prior to the time the hearing was conducted. Nor is there anything in the record that would support a finding at the time the hearing was commenced or when Judge Van Zee filed his decision that Judge Van Zee was aware of the filing of the complaint against him.
*528 The burden of showing grounds for recusal is on the party seeking recusal. State v. Haskins, 573 N.W.2d 39, 44 (Iowa Ct.App.1997); Campbell v. Quad City Times, 547 N.W.2d 608, 611 (Iowa Ct.App. 1996). This burden is substantial and we will not overturn the trial judge's decision absent an abuse of discretion. State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982). In order to show an abuse of discretion, a party must demonstrate the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. In re Estate of Olson, 479 N.W.2d 610, 613 (Iowa Ct.App. 1991).
Though the complaint against Judge Van Zee apparently was filed prior to his ruling, there is no evidence he knew of the complaint before he filed his ruling. This case is therefore distinguishable from In re Stigler, 607 N.W.2d 699, 705-709 (Iowa 2000). In that case the court agreed with the Judicial Qualification Commission that Judge Stigler's actions violated Canon 3(D)(1) of the Iowa Code of Judicial Conduct where the judge considered an application for attorney fees in a case where the judge earlier had exhibited displeasure with an attorney adverse to the application. Stigler, 607 N.W.2d at 708-09. The attorney had filed a complaint against the judge, and the judge had prior thereto announced his intention not to hear matters in which the attorney was involved. Id. The court noted that if Judge Stigler had not previously announced a bias toward the attorney, his ruling might be excused as a mere error of judgment, but his acknowledgment of bias made it much more serious. Id.
In this case, in contrast, there is no evidence Judge Van Zee was aware of the complaint. See Wagner v. State, 364 N.W.2d 246, 251-52 (Iowa 1985). There is also no evidence he had exhibited any prior bias towards David.
Furthermore, we find no merit in David's argument that his motion requesting a change of venue should have been construed by the court as a totally separate motion for recusal. We note that David's justification for arguing the motion for change of venue, which he construed as a motion for recusal, comes largely from comments not apparent in the record Judge Van Zee allegedly made during the CINA proceedings. The alleged comments noticeably occurred after the motion for change of venue had been denied. We affirm on this issue.
III. MOTION TO HIRE ADDITIONAL EXPERT.
David next claims the court abused its discretion in denying his motion to hire an additional expert for a second opinion. We review the trial court's decision whether to grant David's motion for an additional expert for an abuse of discretion. State v. Barker, 564 N.W.2d 447, 450 (Iowa Ct. App.1997). Morrison was apparently the expert witness in David's criminal sexual abuse trial resulting in the April 2002 acquittal. David's motion was accompanied by a letter from Dr. McEchron, a psychologist in Davenport, who stated in the letter that he had concerns about the reliability and validity of play therapy for interpreting children's behavior. Dr. McEchron was not available to testify, nor did he sign an affidavit accompanying his letter. See Iowa R. Civ. P. 1.413(3). The motion was not made in conformity with the rules. Consequently, the juvenile court did not abuse its discretion in denying it.
IV. MOTION IN LIMINE.
David next argues the juvenile court abused its discretion in limiting the witnesses he sought to introduce on his *529 behalf following the State's motion in limine to exclude them. David sought to introduce witnesses in support of his theory that other individuals, including Kimberly, were responsible for Shawn's behavior. The juvenile court limited David's witnesses.
The State argues David has not preserved error on this issue because he failed to make an offer of proof for each of the witnesses he sought to introduce. As David concedes, he did not make an offer of proof as to any of these witnesses.[4] We conclude this issue has not been properly preserved for our review. See State v. Lange, 531 N.W.2d 108, 114 (Iowa 1995).
V. INEFFECTIVE ASSISTANCE OF COUNSEL.
David argues his counsel rendered ineffective assistance by (1) failing to make offers of proof regarding potential witnesses he sought to introduce; (2) failing to include an affidavit from Dr. McEchron with his motion for an additional play therapist; (3) failing to cross-examine Morrison properly; and (4) failing to object to Morrison's report as hearsay.
David has the statutory right to representation by counsel under Iowa Code section 232.89 (2001). Due process requires counsel appointed under a statutory directive to provide effective assistance. In re D.W., 385 N.W.2d 570, 579-80 (Iowa 1986). We apply the same standards adopted for counsel appointed in a criminal proceeding. Id.; see Strickland v. Washington, 466 U.S. 668, 687-98, 104 S.Ct. 2052, 2064-70, 80 L.Ed.2d 674, 693-700 (1984). As the party claiming ineffective assistance of counsel, David must show that (1) counsel's performance was deficient, and (2) actual prejudice resulted. D.W. 385 N.W.2d at 580. Unless both showings are made, the claim must fail. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). We recognize that in making this argument, David must overcome the strong presumption that counsel's conduct fell within the wide range of competent professional assistance and that his or her actions reflected sound legal strategy. D.W., 385 N.W.2d at 580.
Offer of proof. David contends his counsel was ineffective for failing to make offers of proof for several witnesses whom David claimed could give an alternative viewpoint for the cause of Shawn's behavior. The State argues David has failed to meet his burden to show how such testimony likely would have changed the outcome of the proceedings, especially considering David's five witnesses who testified to his good relationship with the children and to problems with Kimberly and her friends.
Additional expert. David also argues his counsel was ineffective for failing to request a hearing on his motion for an additional expert, as well as to attach an affidavit from Dr. McEchron to the motion regarding the usefulness of play therapy in interpreting behavior to his motion for an additional expert.
Cross examination. Additionally, David argues his counsel failed to cross-examine either Morrison or Kimberly properly concerning their possible biases. David further states his attorney failed to properly cross-examine Morrison about her assertions of the improbability of Shawn's fabricating his story and to object to her report.
*530 We are unable on the record before us to either address or dismiss the above claims of ineffective assistance of counsel, so we preserve them for further proceedings. There is no procedural equivalent to postconviction for proceedings to terminate parental rights or for CINA proceedings; direct appeal is the only way for appellants to raise an ineffective assistance of counsel claim in such proceedings. A party claiming ineffective assistance of counsel must develop an affirmative basis to demonstrate counsel's inadequate representation. See, e.g., Sallis v. Rhoads, 325 N.W.2d 121, 122 (Iowa 1982). David had a right, which he did not exercise, to seek a limited remand to the juvenile court to present additional evidence and obtain a fact-finding on the issue. Iowa R.App. P. 6.12(7); see, e.g., State v. White, 337 N.W.2d 517, 520 n. 2 (Iowa 1983); and State v. Nelson, 329 N.W.2d 643, 647 (Iowa 1983). Parental rights have not been terminated here, and David agrees to the finding that the children are in need of assistance. David's challenge is to custodial care and visitation. The matter remains in juvenile court. The issue of ineffective assistance can be litigated there, and the juvenile court can fashion a remedy to effectuate justice should David meet the heavy burden to show his trial attorney was ineffective.
Objection to report. David's final claim is that his counsel was ineffective for failing to object to Morrison's report, which included Shawn's statements, as inadmissible hearsay evidence. This challenge has no merit, and we do not preserve it. See In re Long, 313 N.W.2d 473, 478-79 (Iowa 1981).
AFFIRMED.
NOTES
[1] David contends they were married by common law.
[2] Shawn's exact words were that David would "touch [her] boobies, feel her pussy, have sex with her, and kill her."
[3] A review of the exhibits indicates that both the CASA volunteer and the DHS found there were deficiencies in Kimberly's care of the children.
[4] Our review is de novo in these proceedings. For this reason the court should allow testimony subject to objection so there is a record for us to review on appeal. No objection to the juvenile court's refusal to hear the other evidence was made on these grounds. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578996/ | 671 N.W.2d 900 (2003)
STATE of Minnesota, Appellant,
v.
Matthew Philip ANDERSON, Respondent.
No. A03-290.
Court of Appeals of Minnesota.
December 9, 2003.
*901 Mike Hatch, Attorney General, St. Paul, MN; and Jay M. Heffern, Minneapolis City Attorney, Julie L. Delgado-O'Neil, Assistant City Attorney, Minneapolis, MN, for appellant.
Robert L. McCormick, University Student Legal Service, Minneapolis, MN, for respondent.
*902 Considered and decided by KALITOWSKI, Presiding Judge, STONEBURNER, Judge, and PORITSKY, Judge.[*]
OPINION
STONEBURNER, Judge.
Appellant State of Minnesota challenges the district court's pretrial order granting respondent's motion to suppress evidence obtained after a traffic stop on the basis that the officer did not have reasonable suspicion for the stop. Because the officer articulated an objective basis for the stop based on a reasonable interpretation of an ambiguous statute that has not been otherwise construed by an appellate court, we reverse.
FACTS
A University of Minnesota police officer stopped respondent Matthew Philip Anderson for a suspected violation of Minn.Stat. § 169.18, subd. 11 (2002), after respondent, traveling in the center lane of a three-lane one-way street, passed within three feet of the officer's squad car that was stopped in the right lane in connection with a previous stop. After respondent was stopped, the officer observed him displaying indicia of intoxication and arrested respondent for driving while impaired. Respondent was charged with driving while impaired in the fourth degree and driving while impaired with a blood alcohol concentration of .10 or more within 2 hours. Respondent was not charged with violating Minn.Stat. § 169.18, subd. 11, which requires that before passing a stopped emergency vehicle "the driver of a vehicle shall safely move the vehicle to a lane away from the emergency vehicle."
Respondent moved to suppress the evidence obtained by the officer after the stop, arguing that the officer misinterpreted Minn.Stat. § 169.18, subd. 11, and therefore had no objective basis to stop respondent. The district court agreed and granted respondent's motion to suppress. This appeal followed.
ISSUES
Did the district court err in granting respondent's motion to suppress evidence obtained after a traffic stop, on the basis that the stop was illegal because the officer did not have an objective basis to reasonably suspect that respondent had violated Minn.Stat. § 169.18, subd. 11 (2002)?
ANALYSIS
1. Standard of review
When the state appeals a pretrial suppression order it "must clearly and unequivocally show that both the trial court's order will have a `critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error." State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quotation omitted). The parties do not dispute that the suppression order in this case precludes prosecution and therefore has a critical impact.
"In reviewing a district court's determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo." State v. Britton, 604 N.W.2d 84, 87 (Minn.2000). In doing so, findings of fact are reviewed under a clearly erroneous standard, "giving due weight to the inferences drawn from those facts by the district court." Id. *903 (quoting State v. Lee, 585 N.W.2d 378, 383 (Minn.1998)).
To be lawful, a stop "must, be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." State v. Victorsen, 627 N.W.2d, 655, 664 (Minn.App. 2001). "[I]n all stop cases, the decision for the trial court at the suppression hearing depends on whether the officer is able to articulate at the hearing a `particular and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Johnson, 444 N.W.2d 824, 827 (Minn.1989) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981)). "Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle." State v. George, 557 N.W.2d 575, 578 (Minn.1997). An officer may conduct a limited investigative stop when the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Britton, 604 N.W.2d at 87 (quotation omitted). Although the factual basis required to justify an investigatory stop is "minimal," a stop cannot be based on "mere whim, caprice, or idle curiosity." Marben v. Dept't of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980) (quotation omitted).
2. Officer's articulated basis for stop
The officer stopped respondent for a perceived violation of Minn.Stat. § 169.18, subd. 11 (2002), and told respondent that the sole reason he was stopped was the violation of the statute. The statute provides:
When approaching and before passing an authorized emergency vehicle that is parked or otherwise stopped on or next to a street or highway having two or more lanes in the same direction, the driver of a vehicle shall safely move the vehicle to a lane away from the emergency vehicle.
Minn.Stat. § 169.18, subd. 11 (emphasis added). The officer testified that he interpreted this statute to require drivers "to give a buffer lane between [the] emergency vehicle and the driver's car ... so that an officer has a safety zone."[1] Under the officer's interpretation of the statute, respondent was required to move to the far left lane, leaving a full lane between his car and the stopped squad car. Under this interpretation of the statute, the officer observed a violation.
The district court concluded that the statute is not ambiguous and does not require one to leave a buffer lane between the driver and the stopped emergency vehicle. "It means being in the next lane over from where the police car is stopped, because that is what it says: `A driver of a vehicle shall safely move a vehicle to a lane away from the emergency vehicle.' That does not mean two lanes over and that is sufficient." Based on this interpretation of the statute, the district court determined that the officer did not have an objective legal basis for suspecting that respondent violated the law. "The objective legal basis would have been if the officer's vehicle was in the centerlane. And that was not there."
We first hold that the district court erred in concluding that Minn.Stat. § 169.18, subd. 11, is not ambiguous. At oral argument, counsel for respondent candidly conceded that the officer's interpretation *904 of Minn.Stat. § 169.18, subd. 11, was not unreasonable. We agree and conclude that because the phrase "a lane away" could mean either in the next lane or a full lane away, the statute is ambiguous. See State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003) (statute is only ambiguous when language is subject to more than one reasonable interpretation). Because respondent was not charged with a violation of Minn.Stat. § 169.18, subd. 11, the issue of the correct interpretation of the phrase "a lane away," as used in the statute, is not before us. The issue before us is whether the officer had an objective, articulable basis for believing that respondent violated the statute.
The district court based its decision that the officer did not have an objective legal basis for the stop on State v. George, which held that an officer had no objective basis to reasonably suspect that a motorcyclist was operating his factory-equipped motorcycle in violation of a law that states that a motorcycle cannot have more than two headlights. 557 N.W.2d at 578. But the holding in George was fact-specific. And we conclude that George is distinguishable from the case before us because George did not involve an officer's interpretation of an ambiguous statute. The officer in George mistakenly interpreted an unambiguous statute and therefore had no objective basis for the stop. See id. at 579. But George does not disturb the long line of cases supporting the general principle that an officer may make a stop if he or she is able to articulate a reasonable, objective basis for that stop. Id. at 578. We hold that a stop based on a law enforcement officer's objectively reasonable interpretation of an ambiguous statute that has not been interpreted by an appellate court is valid.
Under the totality of the circumstances, we conclude that the officer's interpretation of the ambiguity in Minn.Stat. § 169.18, subd. 11, was reasonable. And, based on the officer's objective observations, he had a reasonable, articulable suspicion that respondent had violated the statute. This stop was therefore not based on whim, caprice, or idle curiosity. The officer had an objectively reasonable legal basis for the stop and articulated that basis at the time of the stop and at the suppression hearing. Because the stop was not illegal, the district court erred by granting respondent's motion to suppress.
In addition, respondent submitted a motion to strike a portion of appellant's appendix to its brief as not being part of the record. We agree that under the applicable procedural rules the document was not part of the record before the district court and therefore should not have been included in appellant's appendix. See Minn. R.Crim. P. 28.02, subd. 8 (record on appeal consists of papers filed in the district court); Minn. R.Crim. P. 28.01, subd. 2 (except as otherwise provided, the rules of civil appellate procedure apply to criminal appeals); Minn. R. Civ.App. P. 130.01, subd. 1 (appendix "shall contain ... portions of the record").
DECISION
The law enforcement officer had an articulable, reasonable, objective basis to stop respondent for a suspected violation of Minn.Stat. § 168.18, subd. 11. The district court erred in concluding that the stop was illegal and in granting respondent's motion to suppress.
Reversed; motion to strike granted.
NOTES
[*] Retired judge of the district court, serving the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[1] The state does not dispute the district court's finding that the officer's squad car was stopped in the right lane. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578846/ | 281 S.W.3d 532 (2008)
In re Randy J. POLLET, M.D., Relator.
No. 08-07-00069-CV.
Court of Appeals of Texas, El Paso.
September 25, 2008.
*533 Larry W. Hicks, Hicks & Llamas, P.C., Cynthia C. Llamas, El Paso, for relator.
James F. Scherr, Scherr, Legate & Ehrlich, P.C., El Paso, for real party in interest.
Carl H. Green, Mounce, Green, Myers, Safi & Galatzan, El Paso, Joel W. Reese, Winstead PC, Dallas, for other parties.
Before CHEW, C.J., McCLURE, and CARR, JJ.
OPINION
DAVID WELLINGTON CHEW, Chief Justice.
In this original proceeding, Relator, Dr. Randy J. Pollet M.D., challenges the trial court's failure to rule on his motion to dismiss the underlying medical malpractice claim pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code. Mandamus relief is conditionally granted.
This original proceeding arises out of a personal injury and workers' compensation claim filed by Mr. Rafael Martinez, against *534 his employer Brokers Logistics on February 17, 2005. On June 6, 2006, Brokers Logistics filed a motion for leave to designate Dr. Randy Pollet as a responsible third party under Chapter 33 of the Texas Civil Practice and Remedies Code. The trial court granted the motion on July 21, 2006.
On June 27, 2006, while the motion to designate was pending, Mr. Martinez sent Dr. Pollet a letter explaining that Brokers Logistics had alleged that his doctor had contributed to his injuries. Mr. Martinez included a copy of an expert report produced for Brokers Logistics by Dr. William Blair, M.D. On September 7, 2006, Mr. Martinez filed his Sixth Amended Petition, adding Dr. Pollet as a defendant in the case. Dr. Pollet filed his original answer on October 6, 2006.
On January 8, 2007, Dr. Pollet filed a motion to dismiss Mr. Martinez's claims against him, arguing that Mr. Martinez failed to comply with the notice and medical expert report requirements of the Texas Medical Liability Act. The trial court held a hearing on Dr. Pollet's motion to dismiss on January 29, 2007. During the hearing, counsels for both Mr. Martinez and Brokers Logistics noted that the parties were scheduled to take both Dr. Blair's and Dr. Pollet's depositions within days. On February 15, 2007, the trial court entered an order indicating that Dr. Pollet's motion to dismiss was taken "under advisement," and refusing to rule on the motion until after the deposition of Dr. Blair. Dr. Pollet filed this original proceeding challenging the trial court's refusal to grant his motion to dismiss on March 12, 2007.
Mandamus is an extraordinary remedy, proper only when the realtor can show: (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). A trial court commits a clear abuse of discretion when it refuses to rule on a pending motion within a reasonable amount of time. In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex.App.-El Paso 2006, orig. proceeding). What is considered a reasonable amount of time depends on the circumstances of each case. Id.
To establish that the trial court abused its discretion by failing to rule, the relator must show that the trial court: (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Sepeda, 143 S.W.3d 871, 872 (Tex.App.-El Paso 2004, orig. proceeding). "`When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act,' and mandamus may issue to compel the trial court to act." Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding).
According to the record before us, Dr. Pollet filed his motion to dismiss on January 8, 2007. The trial court held a hearing to consider several motions, including the motion to dismiss on January 29, 2007. At the hearing's conclusion, rather than granting or denying Dr. Pollet's motion to dismiss, the trial court took the motion "under advisement" and indicated there would be no ruling until after the parties deposed Dr. Blair.
Relief by writ of mandamus is warranted in cases, in which the very act of proceeding to trial regardless of the outcome would defeat the substantive right involved. In re McAllen Medical Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008)(orig.proceeding). In the medical liability context, a defendant health care provider is entitled to have the claim dismissed with prejudice, as defined by statute, for a plaintiff's failure to timely serve *535 a medical expert report. See In re Samonte, 163 S.W.3d 229, 238 (Tex.App.-El Paso 2005, orig. proceeding). The Legislature intended this procedure to preclude extensive discovery and prolonged litigation in frivolous cases. In re Roberts, 255 S.W.3d 640, 641 (Tex.2008)(per curiam)(discussing the legislative intent behind the enactment of former Article 4590i, the predecessor to Chapter 74 of the Texas Civil Practice and Remedies Code). An appeal is not an adequate remedy when a trial court's refusal to rule, and therefore enforce a statutory provision, would frustrate the Legislature's intent. Id.
By refusing to rule on Dr. Pollet's motion to dismiss, the trial court has forced Dr. Pollet to expend time and resources in order to participate in an expert deposition which, if the court later determines the case must be dismissed, would prove useless.[1] This is an example of the type of expenditure the Legislature intended to protect physicians from by creating the expert report requirement, and providing a right to dismissal for a plaintiff's failure to comply. Accordingly, the trial court abused its discretion by refusing to rule on the motion to dismiss until after the parties took Dr. Blair's deposition. Because no adequate remedy exists to remedy the trial court's error, we conditionally grant mandamus relief. The writ will issue only if the trial court fails to rule on the motion to dismiss.
NOTES
[1] The parties have provided this Court with significant briefing on the issues of whether Dr. Pollet was properly served with the expert report, and whether Dr. Blair's report is sufficient under the requirements of Texas Civil Practice and Remedies Code section 74.351. Our authority in the mandamus context is limited to directing the trial court to consider and rule on the pending matters. See In re Hearn, 137 S.W.3d 681, 685 (Tex.App.-San Antonio 2004, orig. proceeding). We are prohibited from instructing the trial court how to rule. Id. Therefore, we express no opinion on the issues of service or sufficiency of the expert report. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578863/ | 12 So. 3d 490 (2009)
Calvin GREELY, Plaintiff-Appellant,
v.
OAG PROPERTIES, LLC, et al., Defendants-Appellees.
No. 44,240-CA.
Court of Appeal of Louisiana, Second Circuit.
May 13, 2009.
*491 Street & Street, by C. Daniel Street, Monroe, for Plaintiff-Appellant.
Hudson, Potts & Bernstein, LLP, by Charles W. Herold, III, Monroe, Donald H. Zeigler, III, for Defendants-Appellees OAG Properties, LLC and State Farm Fire & Casualty Insurance Company.
Before BROWN, WILLIAMS and GASKINS, JJ.
GASKINS, J.
In this personal injury case arising from a trip and fall on the premises of the defendant/landlord, the plaintiff/lessee appeals from a summary judgment dismissing his suit with prejudice. We affirm.
FACTS
The plaintiff, Calvin Greely, and his mother, JoAnn Greely, leased a residence on Georgia Street in Monroe from the defendant, OAG Properties, LLC ["OAG"].[1] The lease agreement they signed, which was for a period of one year from August 2005 to July 2006, included a provision requiring the lessee to maintain the premises. The lease agreement also contained an indemnification clause releasing the landlord from liability for any damage or injury to the lessee or lessee's family and requiring the lessee to hold the landlord harmless from any and all claims. In relevant part, the lease stated:
11. MAINTENANCE AND REPAIR; RULES. Lessee will, at its sole expense, keep and maintain the Premises and appurtenances in good and sanitary condition and repair during the term of this Agreement and any renewal thereof....
....
18. INDEMNIFICATION. Lessor shall not be liable for any damage or injury of or to the Lessee, Lessee's family, guests, invitees, agents or employees or to any person entering the Premises or the building of which the Premises are a part or to goods or equipment, or in the structure or equipment of the structure of which the Premises are a part, and Lessee hereby agrees to indemnify, defend and hold Lessor harmless from any and all claims or assertions of every kind and nature.
The plaintiff and his mother signed the unit inspection report on September 15, 2005, after inspecting the premises; it included notations that all portions of the yard were acceptable.
On February 27, 2006, the plaintiff and his brother Robert were cleaning up the backyard when the plaintiff tripped on the stump of a sapling. He fell face down on a concrete slab and hit his head. The concrete slab was located behind the house; *492 the yard debris he had been picking up was on the far side of the slab away from the house. The plaintiff was taken to the hospital by ambulance where he received more than 30 stitches for a cut over his left eye. Years before this accident, the plaintiff had a brain aneurysm which was removed; following that surgery, he began suffering seizures. At the time of the accident, he was still taking daily doses of medication for these seizures. He and his mother stated that he had been free of seizures for four years before his February 2006 fall; however, they testified in their depositions that after this head injury, he began having seizures again.
On February 21, 2007, the plaintiff filed suit against OAG, alleging that it had "apparently cut saplings which had grown in the yard but had cut them so as to leave a stump high enough to cause a trip hazard to any person walking in the yard." The plaintiff accused OAG of "maintaining an unreasonably dangerous condition in the form of a sapling stump presenting a trip hazard in the yard of its residence intended for lease." Additionally, the plaintiff asserted that OAG failed to warn him about the presence of the stump or to inspect its premise so as to discover dangerous conditions before leasing it, and that it left the concrete slab in the yard, which also posed a hazard. The plaintiff asserted that his injuries included a concussion, headaches and disfigurement. In his first supplemental and amending petition, the plaintiff added OAG's insurer, State Farm Fire and Casualty Company, as a defendant.
In their answer, the defendants asserted that the accident was the sole fault of the plaintiff. They denied that there was any defect or hazard on the premises. They also stated that the sapling stumps were open and obvious to everyone, including the plaintiff who had lived there for six months prior to the incident and knew or should have known of their presence. Finally, they pled comparative fault as an affirmative defense and requested a jury trial.
In May 2008, the defendants filed a motion for summary judgment. Attached as exhibits in support of the motion were copies of the lease and the unit inspection report; photos of the area taken about a week after the plaintiff was injured; and the affidavit of Hamid R. "Tony" Sanaie, a managing member of OAG who served as the landlord. He stated that in August 2005, he cleaned the yard by cutting sapling tops and removing all tops, cuttings, debris and leaves as required by Section 8 Monroe Housing Authority. He further stated that the sapling stumps that remained were readily visible as the ground cover was cleared away and that he sprayed the area with Round-Up®. At the time of the unit inspection on September 15, 2005, he stated that the sapling stumps were clearly visible. Mr. Sanaie attested that he never received any complaints from the plaintiff or his mother about the area where the plaintiff fell. Also submitted were the depositions of the plaintiff, his mother, and his brother Robert.
The defendants argued that the lease signed by the plaintiff before he moved into the premises in September 2005 contained an indemnification clause and a provision by which the lessee undertook to maintain the premises. They noted that the unit inspection report was signed by the plaintiff and his mother on September 15, 2005, after inspecting the premises with Mr. Sanaie. The defendants contended that the tree stump did not present an unreasonable risk of harm and that the plaintiff had a duty to be aware of his surroundings.
*493 The plaintiff filed an opposition to the motion for summary judgment. Attached to the opposition were his affidavit and four photos. He asserted that the stump was about five inches high and one and three quarter inches wide. He stated that the landlord told him he was going to clean up that area and that he did not know the stump was there because it was covered with leaves.
The motion for summary judgment was argued before the trial court and taken under advisement in August 2008. Subsequently, the trial court granted the motion without reasons; judgment in conformity with this ruling was signed on October 3, 2008.
The plaintiff appeals.
LAW
Summary judgment
Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So. 2d 342 (La.1991); Costello v. Hardy, XXXX-XXXX (La.1/21/04), 864 So. 2d 129. A court must grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B).
The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
Trip and fall
Under Louisiana law, the owner/lessor is generally liable for the condition of the leased premises. Allstate Insurance Company v. Veninata, XXXX-XXXX (La.App. 4th Cir.11/7/07), 971 So. 2d 420, writ denied, XXXX-XXXX (La.3/7/08), 977 So. 2d 918; McCloud v. Housing Authority of New Orleans, XXXX-XXXX (La. App. 4th Cir.6/11/08), 987 So. 2d 360. However, a lessor may shift responsibilities to a lessee, including liability for injury resulting from defects in the property, because contracting parties can waive warranties and obligations in the codal articles and statutes, so long as such waivers do not affect the rights of others and do not harm the public good. Tassin v. Slidell Mini-Storage, Inc., 396 So. 2d 1261 (La. 1981); Veninata, supra.
Liability for a thing under one's ownership or custody, such as a tree, is governed by La. C.C. art. 2317.1. An essential element for this liability is that a ruin, vice or defect existed that created an unreasonable risk of harm. Frazier v. Bryant, 41,978 (La.App.2d Cir.4/4/07), 954 So. 2d 349. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the *494 hazard outweigh, and thus justify, its potential harm to others. Reed v. Wal-Mart Stores, Inc., XXXX-XXXX (La.3/4/98), 708 So. 2d 362; Johnson v. City of Monroe, 38,388 (La.App.2d Cir.4/7/04), 870 So. 2d 1105, writ denied, XXXX-XXXX (La.6/25/04), 876 So. 2d 843.
A landowner is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of reasonable care or was as obvious to a visitor as it was to the landowner. McCloud, supra.
La. C.C. art. 2696 states:
The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose.
This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee.
La. C.C. art. 2699 states:
The warranty provided in the preceding Articles may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee.
Nevertheless, a waiver of warranty is ineffective:
(1) To the extent it pertains to vices or defects of which the lessee did not know and the lessor knew or should have known;
(2) To the extent it is contrary to the provisions of Article 2004; or
(3) In a residential or consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety.
La. R.S. 9:3221 provides:
Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.[2]
Where the language of the provision is clear and unambiguous, the law does not require that a transfer of liability provision, pursuant to La. R.S. 9:3221, be brought to the plaintiffs attention or that it be explained to him. Ford v. Bienvenu, 2000-2376 (La.App. 4th Cir.8/29/01), 804 So. 2d 64, writ denied, 2001-2688 (La.12/14/01), 804 So. 2d 639.
Signatures on an agreement are not mere ornaments. A person who signs a written agreement is presumed to know its contents and cannot avoid its obligations by claiming that he did not read it, that he did not understand it, or that it was not explained. Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873 (La. App.2d Cir.4/19/06), 927 So. 2d 677, writ denied, XXXX-XXXX (La.9/15/06), 936 So. 2d 1271.
*495 DISCUSSION
The plaintiff contends that the landlord created an unreasonably dangerous condition by cutting the saplings next to an unused concrete slab. Because the stump was allegedly covered with leaves, the plaintiff asserts that the danger was not obvious. As to the indemnification provision of the lease, the plaintiff argues that since that provision was not initialed by the lessees, there is no evidence that the provision was brought to their attention, as required by La. C.C. art. 2699. He also claims that the indemnification provision, which is authorized under La. R.S. 9:3221, has no application here because the landlord created the dangerous condition and knew of it prior to the lease.
On appeal, the defendants observe that the plaintiff did not claim that the indemnification clause was ineffective before the trial court and that, even now, he does not cite authority to support his contention that the clause had to be initialed to be effective. The defendants argue that a person is presumed to know the contents of what he signs and that the indemnification clause is enforceable under La. R.S. 9:3221.
The defendants also maintain that the trial court correctly concluded that the plaintiff would not be able to meet his burden of proof under La. R.S. 9:3221, thus mandating the granting of summary judgment. They assert that the plaintiff and his mother assumed the responsibility of maintaining the yard during the lease term. Thus, if the alleged defect was less visible at the time of the accident, the blame for that fell upon them, not the defendants. According to the defendants, the tree stump did not present an unreasonable risk of harm because it was an open and obvious condition that the plaintiff knew existed. Also, the defendants contend that they did not create any condition of leaves covering the stumps or have notice of the same.
In Wood v. Cambridge Mutual Fire Insurance Company, 486 So. 2d 1129 (La. App. 2d Cir.1986), this court observed:
The yard of a residence is not intended or expected to have a completely "table-top" smooth surface. Yards usually present minor hazards or conditions which could cause an unobservant and inattentive person to trip and fall. Yards can and usually do have irregularities and minor obstacles such as depressions, drains, faucets, trees, shrubs, and tree roots and are not intended or designed for use as a walkway without observation and care as are sidewalks and designated walkways. Such conditions do not amount to defects that present an unreasonable risk of injury to tenants.
We agree with the defendants' position. The stump, in and of itself, was not a defective condition. It was located on the far side of a concrete slab, behind and away from the house. When the landlord gave the premises over to the tenants to be used and maintained by them, the sapling was newly trimmed and the area around it had been cleared. The stump was open and visible to a reasonably observant tenant. The depositions of the plaintiff and his mother showed that they knew that the landlord had cut down the shrubbery and vegetation in the yard in the area where the plaintiff fell. They entered into the lease and inspected the yard in September; if leaves came to conceal the stump by the time of the accident in February, thereby making it potentially hazardous or unreasonably dangerous, the fault for that condition lies solely with the tenants for neglecting their responsibly to *496 maintain the yard.[3] As the landlord neither created the alleged hazard nor had any notice of its existence, the lease provision authorized by La. R.S. 9:3221 is effective.
Like the trial court, we find that summary judgment was appropriate under the facts of this case. Accordingly, we affirm the trial court judgment dismissing the plaintiff's suit.
CONCLUSION
The trial court ruling which granted summary judgment in favor of the defendants and dismissed the plaintiff's suit with prejudice is affirmed. Costs of this appeal are assessed to the appellant, Calvin Greely.
AFFIRMED.
NOTES
[1] While the lease named Ms. Greely as the "Lessee," it also specified that the premises were to be occupied by "Lessee and Lessee's immediate family" which was to consist of her and Calvin exclusively; Calvin signed both the lease and the related unit inspection report.
[2] Comment (h) to La. C.C. art. 2699 provides, in pertinent part:
Civil Code Article 2699 (Rev.2004) deals with the contractual obligations between the parties rather than with the delictual or quasi-delictual obligations that one party may incur vis a vis the other party, or vis a vis third parties. Consequently, Civil Code Article 2699 (Rev.2004) does not supersede the provisions of R.S. 9:3221 which provides for delictual or quasi-delictual obligations incurred as a result of injury occurring in the leased premises. Section 3 of this Act amends and reenacts R.S. 9:3221 to provide that the amendment and reenactment of Civil Code Article 2699 does not change the law of R.S. 9:3221.
[3] The deposition testimony of the tenants indicated their awareness of their obligation to maintain the yard. Obviously the lease began at a time when leaves generally are not yet falling, therefore, making the stump visible; however, by February, this seasonal change had occurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578903/ | 12 So. 3d 752 (2009)
HARRIS
v.
STATE.
No. SC08-1829.
Supreme Court of Florida.
June 12, 2009.
Decision without published opinion Case closed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578901/ | 281 S.W.3d 776 (2009)
KENTUCKY RETIREMENT SYSTEMS, Appellant,
v.
Sandra BOWENS, Appellee.
No. 2007-SC-000509-DG.
Supreme Court of Kentucky.
April 23, 2009.
*778 Michael Todd Butler, Jennifer A. Jones, Leigh Ann Jordan, Katherine I. Rupinen, Brown J. Sharp, II, Brian C. Thomas, James Eric Wampler, Kentucky Retirement Systems, Frankfort, KY, Counsel for Appellant.
Michael S. Endicott, Paintsville, KY, Counsel for Appellee.
Opinion of the Court by Justice SCOTT.
Appellant, the Board of Trustees of the Kentucky Retirement Systems, (hereinafter the "Board") appeals to this Court seeking relief from the opinion of the Court of Appeals. Specifically, Appellant argues the Court of Appeals erred: 1) by applying the "cumulative effect" rule, as enunciated in Dillon v. Celebrezze, 345 F.2d 753, 757 (4th Cir.1965), and 2) in adopting the "treating physician rule," pursuant to Houston v. Secretary of Health & Human Servs., 736 F.2d 365, 367 (6th Cir.1984). For the reasons discussed herein, we affirm the opinion of the Court of Appeals on application of the "cumulative effect" rule, but reverse its adoption of the "treating physician" rule.
Facts
Appellee, Sandra Bowens, was an employee of Johnson County Home Health for approximately nine years, from July 1995 until she went on leave under the Family Medical Leave Act (FMLA) in May 2004. As a home health aide, Appellee's duties included washing patients' hair, cooking their meals, cleaning their home, and bathing them.
In July 1997, she was involved in a motor vehicle accident during the course of her employment, as a result of which, she sustained a "flexion-hyperextension injury" to her neck. Her head, back, and arm were also injured in the accident. As a result of her injuries, she was reassigned to office work, where her duties included answering the phones, making charts, completing the mail log, ensuring maintenance of company vehicles, transporting documents, and inputting data into the computer system.
In March 2002, she was involved in a second motor vehicle accident. The record is unclear as to whether this accident occurred in the course of her employment. *779 This accident resulted in a torn medial meniscus in her right knee, which would have required surgery to correct. Appellee did not undergo surgery to repair her meniscus, as she was diagnosed with cancer around January 2003.[1] This latter diagnosis resulted in a mastectomy of her left breast on February 7, 2003, followed by numerous radiation and chemotherapy treatments. Incredibly, during the course of her radiation and chemotherapy treatments, Appellee continued to work, often arriving before her co-workers, leaving to take her treatments, and then returning to the office for the rest of the day. She was unable to complete her chemotherapy, however, because of a bad reaction to it.
There were multiple physical side-effects of the radiation and chemotherapy. She suffered from fatigue, decreased mobility and swelling of her arm. She suffered from cognitive difficulties and loss of memory. She was often hoarse and coughed chronically. She also had her lymph nodes removed and suffered from radiation burn, causing her to forego the last five treatments of chemotherapy. Further, she suffered from arthritis in her back and her still unrepaired torn medial meniscus. In 2004, she was diagnosed with ataxia and asthma. She also complained of additional ailments including headaches, dizziness, fatigue, carpal tunnel syndrome, unsteadiness, and memory problems.
During her radiation and chemotherapy treatments, Appellee was granted an informal work accommodation. The accommodation limited the amount of time Appellee spent picking up documents and limited the amount of weight she was required to lift. This accommodation ended with her treatments.
Although she was still working at the time, Appellee applied for disability retirement on March 21, 2003, citing arthritis, breast cancer, and the injuries sustained from the two (2) motor vehicle accidents as the cause of her disability.[2] She continued to work, however, until May 26, 2004.
Her application for state benefits, however, was denied and an administrative hearing was held on June 24, 2004. The hearing officer thereafter recommended that Appellee's application for retirement benefits be denied and the Board adopted the hearing officer's Report and Recommended Order as its final administrative decision, denying Appellee's application for disability retirement benefits.
Appellee then filed a petition for judicial review in the Franklin Circuit Court. That court affirmed Appellant's final administrative decision. Appellee then filed an appeal to the Court of Appeals, which affirmed the decision of the Franklin Circuit Court in part, and vacated and remanded in part for further proceedings consistent with the application of the "cumulative effect" and "treating physician" rules as aforementioned. We granted discretionary review.
Law
"In its role as the finder of fact, an administrative agency is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses, including its findings and conclusions of fact." McManus v. Kentucky Retirement *780 Systems, 124 S.W.3d 454, 458 (Ky.App. 2003) (internal quotation marks and citation omitted). Thus, "[a] reviewing court is not free to substitute its judgment for that of an agency on a factual issue unless the agency's decision is arbitrary and capricious." Id. at 458.
In determining whether an agency's action was arbitrary, the reviewing court should look at three primary factors. The court should first determine whether the agency acted within the constraints of its statutory powers or whether it exceeded them.... Second, the court should examine the agency's procedures to see if a party to be affected by an administrative order was afforded his procedural due process. The individual must have been given an opportunity to be heard. Finally, the reviewing court must determine whether the agency's action is supported by substantial evidence.... If any of these three tests are failed, the reviewing court may find that the agency's action was arbitrary.
Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky.App.1994) (internal quotation marks and citation omitted). "`Substantial evidence' means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998) (citing Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972)). We review an agency's conclusions of law de novo. See Aubrey v. Office of Attorney General, 994 S.W.2d 516, 519 (Ky.App.1998).
Analysis
a. "Cumulative Effect" rule
Appellant argues the Court of Appeals erred in applying the "cumulative effect" rule and determining the hearing officer erred by failing to properly evaluate her injuries' combined effect upon Appellee. We disagree and uphold the Court of Appeals' application of the "cumulative effect" rule in this instance.
Appellee argued to both the Franklin Circuit Court and the Court of Appeals that Appellant failed to consider the "cumulative effect" of all of Appellee's medical problems in making its disability determination.[3] In this regard, the Franklin Circuit Court found that, KRS 61.600 requires only a finding based on the examination of the objective medical evidence. The hearing officer's findings of fact were based on a careful examination of all of the objective medical evidence presented. This is all that the statute requires.
The Court of Appeals, however, reached a different conclusion, relying on Ashland Exploration, Inc. v. Tackett, 971 S.W.2d 832, 834 (Ky.App.1998) ("We see nothing in the amended statute which prevents the ALJ from considering the cumulative effects of a work-related injury and an occupational disease such that they may combine to render a claimant totally disabled."). Noting that, under KRS § 61.600(5)(a)(2), Appellee's incapacity must be based on objective medical evidence, as well as her "residual functional capacity and physical exertion requirements," the Court of Appeals found that KRS 61.600(5)(a)(2) evidences a legislative intent that the cumulative effect of a disability claimant's ailments must also be considered in assessing the claimant's eligibility *781 for benefits. From a review of the record, the Court of Appeals did not believe the cumulative effects were so evaluated; nor do we.
KRS 61.600 provides, in part, that upon the examination of the objective medical evidence by licensed physicians pursuant to KRS 61.665, it shall be determined that: 1) the person, since his last day of paid employment, has been mentally or physically incapacitated to perform the job, or jobs of like duties, from which he received his last paid employment; 2) the incapacity is deemed to be permanent; and 3) the incapacity does not result directly or indirectly from bodily injury, mental illness, disease, or condition which pre-existed membership in the system or reemployment, whichever is most recent.
At issue here is whether Appellee was permanently incapacitated by her ailments. KRS 61.600 defines impairment as permanent "if it is expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months from the person's last day of paid employment in a regular full-time position." It further provides that "the determination of a permanent incapacity shall be based on the medical evidence contained in the member's file and the member's residual functional capacity and physical exertion requirements." A disability claimant's residual functional capacity:
shall be the person's capacity for work activity on a regular and continuing basis. The person's physical ability shall be assessed in light of the severity of the person's physical, mental, and other impairments. The person's ability to walk, stand, carry, push, pull, reach, handle, and other physical functions shall be considered with regard to physical impairments. The person's ability to understand, remember, and carry out instructions and respond appropriately to supervision, coworkers, and work pressures in a work setting shall be considered with regard to mental impairments. Other impairments, including skin impairments, epilepsy, visual sensory impairments, postural and manipulative limitations, and environmental restrictions, shall be considered in conjunction with the person's physical and mental impairments to determine residual functional capacity.
KRS 61.600(5)(b).
Appellee introduced evidence that:
1) As a result of a work-related car accident in 1997, she sustained a neck (a flexion-hyperextension) injury, back injury, pain in her shoulder, and arthritis in her back. She further asserted she had permanent lifting restrictions, possibly the result of the car accident.
2) She was involved in another car accident in 2002 which resulted in a tear in the medial meniscus of her right knee. The tear would require surgery to correct.
3) In January 2003, she was diagnosed with breast cancer, and she underwent a partial mastectomy of her left breast. She had three months of chemotherapy and thirty-four radiation treatments. She was unable to complete her chemotherapy because she had a bad reaction to the treatments.
4) Due to her bad reaction to chemotherapy and radiation treatments, she suffered from fatigue, burns on her skin, difficulties with her memory, and frequent coughing. She also had difficulty swallowing because her saliva production decreased as a result of the radiation.
5) In 2004, she complained of additional ailments, including headaches, dizziness, *782 unsteadiness, and ataxia. Ataxia is defined by the New World Dictionary of the American Language 87 (2d ed.1978), as "difficulty coordinating voluntary bodily movements."
Further, Appellee testified that her primary or worst complaint was not knowing where the cancer was at the time. She testified that her worst physical complaint concerned her chest and her arm. She complained of fatigue. She was taking numerous medications for her multiple ailments.
Appellee's daughter, Tonya Spradling, lived next door to Appellee and testified at the hearing that she had to help her mother cook and clean. Appellee's husband testified that she complained primarily of knee, back, arm, and chest pain. He also testified that her memory had worsened. Moreover, in February 2005, one of Appellee's treating physicians, Dr. Belhasen, submitted a letter stating she "continue[d] to have multiple medical problems stemming from her breast cancer and subsequent mastectomy" and "continue[d] to be disabled."
As a result of her various ailments, Appellee's doctors found that she was unable to lift more than five (5) pounds; that she could not stand or walk for more than four (4) hours total in a work day, with no more than two hours uninterrupted; and that she could not sit for more than four (4) hours in a work day, with no more than one hour uninterrupted. She was unable to walk up stairs. Further, she could never climb, stoop, crouch, or kneel, and could only balance or crawl infrequently. She was restricted from moving machinery, among other environmental restrictions. Moreover, Appellee's ability to reach, push, and pull were affected by her impairments. Her various ailments also rendered her unable to type and typing was one of her primary job responsibilities.
In reviewing the evidence, the hearing officer assessed the impact of each of Appellee's individual ailments. Regarding her pulmonary problems, the hearing officer concluded Appellee was not disabled because "[t]he tests closest in time to [Appellee's] last day of paid employment revealed normal LV systolic function, mild concentric LVH, decreased compliance, and small pericardial effusion. A chest x-ray of May 4, 2004[,] was interpreted as showing no convincing evidence of acute cardiopulmonary pathology."
In assessing Appellee's orthopedic problems, the hearing officer concluded that Appellee was not disabled, although she had a torn medial meniscus in her knee, because she had a "full range of motion with no swelling or deformity" in that knee as of December 2002. Appellee also had a total body scan in April 2004 which revealed no "skeletal metastases and was noted to be unremarkable." Further, after chemotherapy in March 2003, Appellee attended physical therapy for her neck and shoulder problems; she was released from therapy after multiple sessions "with increased range of motion."
As to the side effects of chemotherapy, the hearing officer acknowledged that "[i]t is understandable that [Appellee] may require a period to recover from [such side effects], but in this case, [Appellee] continued to work in her sedentary position even during treatment." The hearing officer noted Appellee completed her treatment "in August 2003 and was able to continue working" until May 2004. Further, the hearing officer noted that "[t]here does not appear to be a specific incident that caused [Appellee] to stop working on that day. [Appellee's] physicians have indicated she is unable to perform her job duties but have not submitted objective evidence to support their conclusory statements."
*783 Yet, Appellee introduced reports of functional capacity examinations from two of her treating physicians, including Dr. Belhasen's 2003 medical report submitted with Appellee's application for Social Security Disability Insurance Benefits where she opined that Appellee was "unable to sit, stand, or walk for long periods;" "unable to walk up stairs;" "unable to lift more than ten pounds;" and "unable to type," due to her various ailments. Such evidence constitutes "objective medical evidence."
Nonetheless, the hearing officer found "[t]here is no evidence that [Appellee] suffers from carpal tunnel syndrome and the most recent reports submitted reflect [Appellee] no longer has breast cancer." He noted that although Appellee complained of unsteadiness and memory problems, "no objective testing [was] submitted to confirm the presence of either condition or to what extent [Appellee is] impaired by the conditions."
After his review of the evidence, the hearing officer concluded that Appellee "failed to provide objective evidence of a condition that would permanently prevent her from performing her usual work activity." He then recommended denial of Appellee's application for disability retirement benefits.
Yet, in considering Appellee's claim for disability benefits, the hearing officer evaluated the effect of each insular injury on Appellee's ability to perform her job duties and determined that no one injury rose to the level of disabling Appellee. He did not evaluate the cumulative effect of Appellee's multiple ailments on the "whole person." At a minimum, Appellee produced sufficient evidence of disability due to her various ailments that she was entitled to a determination of whether the cumulative effect of her ailments rendered her unable to work. However, by analyzing each ailment singularly, the hearing officer "so fragmentized [Appellee's] several ailments and the medical opinions regarding each of them that he failed to properly evaluate their effect in combination upon this claimant." Dillon, 345 F.2d at 757. The hearing officer's review and findings regarding Appellee's injuries thus failed to consider her multiple ailments in accordance with the "residual functional capacity" standard in KRS 61.600(5)(a)(2), which clearly, in instances such as this, supports an additional "cumulative effects" analysis.
By failing to properly consider the cumulative effect standard implicit in KRS 61.600, Appellant exceeded the constraints of its statutory powers and arbitrarily denied Appellee's disability claim. Bowling, 891 S.W.2d at 409. Given Appellee's evidence in this case, a "cumulative effects" analysis is mandated. Accordingly, we affirm the Court of Appeals on this issue.
b. "Treating Physician" rule
Appellant next argues the Court of Appeals was erroneous in determining that the opinions of treating physicians are entitled to more weight than the opinions of the non-examining physicians, i.e., the treating physician rule. For the reasons set forth herein, we agree.
KRS 61.600 provides that the Board must consider the objective medical evidence provided by licensed physicians in determining disability. KRS 61.510(33) defines objective medical evidence as:
reports of examinations or treatments; medical signs which are anatomical, physiological, or psychological abnormalities that can be observed; psychiatric signs which are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings which are anatomical, physiological, or psychological phenomena *784 that can be shown by medically acceptable laboratory diagnostic techniques, including but not limited to chemical tests, electrocardiograms, electroencephalograms, X-rays, and psychological tests[.]
Here, the Court of Appeals adopted a new doctrine outside the statutory scheme. In doing so, it relied upon a federal case interpreting Social Security Administration statutes and regulations and found that the opinions of treating physicians must be given greater weight than the opinions of non-treating physicians, to wit:
Although there is no Kentucky case on point, in a Social Security Disability context, the opinion of a treating physician is "given greater weight than that of the government's physician ... [but] only if the treating physician's opinion is based on sufficient medical data." Houston v. Secretary of Health & Human Services, 736 F.2d 365, 367 (6th Cir.1984). We find this logic persuasive, particularly considering that the physicians on the Medical Review Board who reviewed Appellant's application were non-examining physicians. It appears, based on the conclusions reached by the hearing officer, that he gave greater weight to the non-examining physicians' opinion than to those of the treating physicians.
Therefore, adopting the logic of Houston, we find that the agency erred when it determined that the opinions of treating physicians are not entitled to more weight than the opinions of the nonexamining physicians serving on the Medical Review Board. Consequently, the circuit court erred when it concluded that this claim lacked merit.
The introduction of the "treating physician" rule into Kentucky disability analysis is inappropriate for several reasons. Although the statute does not set forth a standard for weighing this evidence, it is well-settled that the trier of fact may evaluate the evidence presented and give the evidence the weight the fact-finder deems appropriate. McManus, 124 S.W.3d at 457-458. In Bowling, the Court said "[t]o put it simply the trier of facts in an administrative agency may consider all the evidence and choose the evidence that he believes." 891 S.W.2d at 410 (quoting Com. Transp. Cabinet v. Cornell, 796 S.W.2d 591, 594 (Ky.App.1990)). Further, a reviewing appellate court cannot substitute its judgment for that of the fact-finder regarding evaluations of evidence or questions of fact. See 500 Associates, Inc. v. Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121, 132 (Ky.App.2006); Louisville Edible Oil Products, Inc. v. Revenue Cabinet Commonwealth of Kentucky, 957 S.W.2d 272, 273 (Ky.App.1997) ("The Court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.").
Moreover, in Houston, the Sixth Circuit was interpreting specific federal regulations, 20 C.F.R. § 404.1529, 20 C.F.R. § 404.1527(d)(2), that give greater weight to the opinion of a treating physician if that opinion is supported by substantial evidence. See Allen v. Califano, 613 F.2d 139 (6th Cir.1980). There is no analogous Kentucky statute authorizing greater weight to be given to the opinions of the treating physician. As administrative agencies are creatures of statute, such a rule is inappropriate. Dept. of Natural Resources and Environmental Protection v. Stearns Coal and Lumber Co., 563 S.W.2d 471 (Ky.1978). See also Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831, 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003) ("Nothing in the Act itself ... suggests that plan administrators must accord special deference to the opinions of treating physicians.").
*785 Therefore, pursuant to KRS 13B.150(2), the Court of Appeals was without authority to adopt and apply the treating physician rule in an administrative hearing such as this.
Conclusion
For the foregoing reasons, we reverse the Court of Appeals on the "treating physician rule," but affirm and remand this matter to the Board for further review of the evidence under the "cumulative effect" standard consistent with this opinion.
All sitting. All concur.
NOTES
[1] Appellant testified at her disability hearing that her employer asked her not to have the surgery because she is the only employee who is able to obtain certain information off the computer, and her employer did not want her to take time off from work.
[2] Appellee was awarded Social Security disability benefits for being totally and permanently disabled on September 19, 2003.
[3] The same argument was presented to the Board on exception from the hearing officer's report and recommendation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578968/ | 281 S.W.3d 308 (2009)
Timothy COFFER, Respondent,
v.
Angela WASSON-HUNT, et al., Appellants.
No. SC 89605.
Supreme Court of Missouri, En Banc.
March 17, 2009.
As Modified May 5, 2009.
*309 William E. Quick, Anthony W. Bonuchi, Kansas City, MO, Lisa S. Morris, Daniel J. Haus, Office of General Counsel, Kansas City, MO, for Appellants.
John P. O'Connor, Wagstaff & Cartmell, Michael L. Belancio, Kansas City, MO, for Respondent.
RICHARD B. TEITELMAN, Judge.
The Kansas City Board of Police Commissioners appeals a judgment setting aside the board's termination of police officer Timothy Coffer. The board terminated Coffer after finding that he had violated several police policies in connection with the arrest of a drunk driver.
FACTS
On September 12, 2003, Coffer, along with officer Aaron Bryant, observed a car traveling at a high rate of speed with a flat front tire and sparks emitting from the wheel. Coffer and Bryant stopped the car. Coffer asked the driver, Halgene Lucas, to exit the vehicle. Lucas placed his hands outside the driver's side window but did not exit the vehicle immediately. Coffer pulled Lucas from the car. While doing so, Lucas' hand brushed against Coffer's gun. Coffer then punched Lucas several times. Bryant handcuffed Lucas. After Lucas was handcuffed, Coffer punched Lucas at least two more times. Coffer then picked up Lucas and dropped him face-down onto the pavement, spit on him, and directed profanities at him. The arrest was recorded on the patrol car's video system, but there was no audio recording.
Coffer was served with written charges alleging that he had violated policies prohibiting the use of excessive force in executing an arrest and was given notice that he had a right to a hearing. Coffer voluntarily waived his right to a hearing before the board and opted to present his case to a hearing officer.
The hearing was public, and Coffer was represented by counsel. After hearing testimony from several witnesses and viewing the videotape, the hearing officer recommended that Coffer be reinstated. The board reviewed the transcript of the hearing, the videotape and the recommendations of the hearing officer. The board voted unanimously to terminate Coffer's employment. Coffer filed a petition for review in the circuit court, which reversed *310 the board's decision and ordered that Coffer be reinstated.
ANALYSIS
An appellate court reviews the decisions of the administrative agency, not the circuit court. State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003). The standard of review requires the appellate court to determine "whether the agency's findings are supported by competent and substantial evidence on the record as a whole; whether the decision is arbitrary, capricious, unreasonable or involves an abuse of discretion; or whether the decision is unauthorized by law." Community Bancshares, Inc. v. Secretary of State, 43 S.W.3d 821, 823 (Mo. banc 2001). This Court must look to the whole record in reviewing the board's decision, not merely at that evidence that supports its decision. Lagud v. Kansas City Bd. of Police Commissioners, 136 S.W.3d 786, 791 (Mo. banc 2004). If the evidence permits either of two opposing findings, deference is afforded to the administrative decision. Id.
I. Timeliness of Appeal
Coffer asserts that the board's appeal from the circuit court's judgment is untimely and that the appeal should be dismissed. A notice of appeal must be filed within 10 days after a civil judgment becomes final. Rule 81.04(a). The finality of a judgment is determined by the date the judgment was entered and whether any post-trial motions are filed. Rule 81.05(a). "A judgment is entered when a writing signed by the judge and denominated `judgment' or `decree' is filed." Rule 74.01(a). Under these rules, the board's notice of appeal is timely if it was filed within 10 days of the later of: (1) 30 days from the entry of the judgment or (2) the resolution of all authorized post-trial motions.
The circuit court issued a judgment and sent it to the parties October 5, 2006. The judgment never was file-stamped with a date, however, and was not entered into the docket until November 22, 2006. Coffer asserts that the judgment was not "filed" until it was entered into the docket November 22, 2006, and that the timeline for filing an appeal runs from that date.
Rule 43.02(b) defines "filing" as follows:
The filing of pleadings and other papers with the court as required by Rules 41 through 101 shall be made by filing them with the clerk of the court, except that a judge may permit the papers to be filed with judge, who shall note thereon the filing date and forthwith transmit them to the office of the clerk.
Although not entered immediately into the docket, the trial judge signed the judgment October 5 and forwarded it to the court clerk, who then formally sent the judgment to the parties as an official document of the court. Under these facts, therefore, the judgment was filed October 5, not November 22. The November 22, 2006, docket entry simply recorded a judgment that already had been entered. To hold otherwise would conflict with Rule 43.02(b) and the basic principle that "a `judgment derives its force from the court's judicial act and not from the ministerial act of its entry upon the record.'" State v. Collins, 154 S.W.3d 486, 492-493 (Mo.App.2005) quoting State v. Patterson, 959 S.W.2d 940, 941 (Mo.App.1998). The judgment was entered October 5, 2006.
The board filed a motion to reconsider the judgment on November 2, 2006. The motion referenced Rule 75.01, which states that the trial court retains control over a judgment for 30 days after entry of judgment. Based on this reference, Coffer concludes that the board's motion is not an authorized after-trial motion that delays *311 the finality of a judgment under Rule 81.05(a). Despite the reference to Rule 75.01, the board's motion raised alleged factual and legal errors in the judgment and, therefore, qualified as a motion for new trial. See Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 392 (Mo. banc 1993)(after-trial motions are assessed based on the allegations, not the motion's style or form). The board's motion to reconsider was an authorized after-trial motion for purposes of Rule 81.05(a).
The court never ruled on the board's November 2, 2006, after-trial motion. The motion was deemed overruled, therefore, and the judgment became final 90 days later, on January 31, 2007. Rule 81.05(a)(2)(A). The board filed its notice of appeal January 25, 2007. The board's premature notice of appeal became effective January 31, 2007, when the judgment became final. Rule 81.05(b). The board's notice of appeal was filed timely.
II. Sufficiency of Evidence
Coffer asserts there was insufficient evidence to support the board's decision to terminate him for excessive use of force, but he is wrong. There was substantial evidence to terminate Coffer's employment. The videotape shows Lucas being handcuffed and restrained. Coffer then proceeds to punch Lucas, pick him up and drop him face-down on the pavement, and spit on him.
In addition to the videotape, the hearing officer heard testimony from Sergeant William Conroy, Captain Roger Lewis and former Police Chief Richard Easley. The parties stipulated that Conroy was an expert in police procedure. Conroy testified that any contact Lucas had with Coffer's gun was only incidental because Lucas simply hit the weapon as he fell down. Conroy noted that Coffer made no attempt to secure his weapon as he had been trained to do in the event of a "gun grab." Conroy testified that Coffer overreacted by unnecessarily punching Lucas after he had been subdued and then dropping him on the pavement and spitting on him. Conroy characterized the punches as unnecessary "pay back," which met the definition of "excessive use of force."
Lewis filed an investigative report in which he offered his opinion that the "actual threat felt by Officer Coffer is questionable, as he is never observed to visually or physically check the security of his weapon within the holster." Like Conroy, Lewis observed that Coffer continued to punch Lucas after the threat of a gun grab was neutralized. Finally, Easley testified that that the incident was "an extremely serious situation involving excessive use of force" and that the spitting incident caused "an extremely negative perception of the police department."
The videotape plus the statements of Conroy, Lewis and Easley constitute substantial evidence supporting the board's decision. Although Coffer and other officers testifying on his behalf offered different interpretations of the arrest, the board did have substantial evidence on which to base its decision. That reasonable people disagreed as to whether Coffer violated police procedures means only that this Court should defer to the board's findings. Lagud, 136 S.W.3d at 791, n. 5.[1]
III. "Sham" Proceeding
Coffer next asserts that the hearing before the designated hearing officer was a "sham" proceeding because the board declined to follow the hearing officer's findings *312 and recommendation. The result, according to Coffer, is that he was denied his statutory right to a public hearing before the board.
Section 84.600, RSMo 2000, sets forth the procedure by which the board may terminate an officer's employment. The statute provides that once a disciplinary complaint is made against an officer, the officer "shall have the right to appear before the board at a public hearing...." After reviewing the evidence, the Board is authorized to determine what punishment, if any, shall be imposed. Id.
Section 84.600 grants officers the right to appear before the board. As with any other statutory right, an officer can waive his or her right to appear before the board. See Shearlock v. Mut. Life Ins. Co. of N.Y., 193 Mo.App. 430, 182 S.W. 89, 91 (1916) (holding that a statutory right may be waived); State v. Emery, 95 S.W.3d 98, 102-103 (Mo. banc 2003)(defendant waived statutory right to a jury-recommended sentence). By electing to have his case heard before a designated hearing officer, Coffer waived his right to a hearing before the board. Even though Coffer waived his right to a board hearing, section 84.600 specifically vests the board with authority to make the final determination regarding what employment action should be taken. Coffer's decision to waive his right to a hearing did not confer or eliminate any power that the board has under section 84.600.
The board's decision to terminate is affirmed. The circuit court's judgment is reversed, and the case is remanded to the circuit court for entry of judgment consistent with the board's recommendation.
All concur.
NOTES
[1] Coffer also argues there was insufficient evidence in the record of the policies he was charged with violating. Coffer raises this argument for the first time on appeal. The argument is waived. Donovan v. Temp. Help, 54 S.W.3d 718, 719 (Mo.App.2001)(issues not presented to the administrative agency are waived on appeal). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578986/ | 281 S.W.3d 885 (2009)
Jack JOHNSON, Appellant,
v.
INDIANA WESTERN EXPRESS, INC., and Treasurer, State of Missouri, as Custodian of the Second Injury Fund, Respondents.
No. SD 29258.
Missouri Court of Appeals, Southern District, Division Two.
April 1, 2009.
Motion for Rehearing or Transfer to Supreme Court Denied April 14, 2009.
Application for Transfer Denied May 26, 2009.
*886 Jerry Kenter, Brianne Niemann, Boyd & Kenter, P.C., Kansas City, MO, for Appellant.
Bill W. Richerson, Sanders, Conkright & Warren, LLP, Overland Park, KS, for Respondents.
JOHN E. PARRISH, Judge.
Jack Johnson (claimant) filed claims for workers' compensation benefits against Indiana Western Express, Inc. (IWX) and the Second Injury Fund. The Labor and Industrial Relations Commission (the commission) denied the claims. This court affirms.
Claimant's Claim for Compensation was directed to an alleged injury sustained February 9, 2006. He asserted that during the course of his employment as an over-the-road truck driver, he was "suddenly, violently and unexpectedly jerked forward when a gust of wind caught a door" he was opening on his trailer; that this resulted in injury to his "[b]ack and body as a whole." The commission found that claimant's injury and disability existed prior to the February 9, 2006, incident; that claimant did not sustain a new injury on that date that arose out of and in the course and scope of his employment.
The commission's Award Denying Compensation affirmed the decision of the administrative law judge. The award and decision of the administrative law judge were attached to and made part of the *887 commission's award by incorporation by reference. "When the commission's findings include the administrative law judge's award by incorporation by reference, it is reviewed as part of the commission's decision." Reese v. Coleman, 990 S.W.2d 195, 197 n. 2 (Mo.App.1999).
This court's review addresses only questions of law. Miles v. Lear Corp., 259 S.W.3d 64, 66 (Mo.App.2008). It may modify, reverse, remand, or set aside an award of the commission only (1) if the commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. § 287.495.1, RSMo 2000. This court defers to the commission on issues of fact. Miles, supra. Questions of law are reviewed de novo. Id.
Claimant began his most recent employment by IWX in November 2005. He had previously worked for IWX from December 2000 through May 2001. After terminating his earlier employment by IWX, claimant bought his own truck and worked as a self-employed driver from 2001 through 2004. In August 2004, he sustained a low back injury while removing chains from a generator he had delivered to a location in Florida. He was asked what he did at that time. He answered, "It was like I twisted around. I think I was jerking the chain off or something. I twisted around and I heard a pop in my back. And that was pretty much it from you know, pretty much by the end of that deal." Claimant did not work following the August 2004 injury until he began working for IWX in November 2005.
Claimant was treated for his 2004 injury by Dr. Richard Marks in Ft. Worth, Texas. He received epidural injections for pain. He also underwent a "two-level TDR," a transcutaneous disc resection, in April 2005 at the L4-5 and L5-S1 levels.[1] Claimant was last seen by Dr. Marks on June 30, 2005. An MRI had been performed on June 29, 2005. Claimant reported that although the pain and numbness in his lower left extremity had abated post-surgery, pain and spasm tightness in his back continued.
Dr. Marks' report stated that the back pain could be quite debilitating; that it could "leav[e] him down for as long as 2 days at a time." He observed, "[T]he back pain itself as well as muscle spasm tightness is significant, virtually disabling [claimant] from doing his normal work activities." Dr. Marks recommended physical therapy. He requested a follow-up visit. He discussed a need to undergo future surgery, a discectomy and fusion, in order "for any definitive care to be rendered." Claimant did not follow-up with Dr. Marks with respect to the 2004 injury.[2]
Claimant said he started feeling better after his last visit with Dr. Marks; that he was walking for physical therapy. He decided on his own that he was able to work as an over-the-road truck driver and applied for a position with IWX.
The commission based its denial of benefits, in large part, on the testimony of Dr. Jeffrey MacMillan. Dr. MacMillan examined claimant prior to the evidentiary hearing in this case. Dr. MacMillan's *888 opinion was that claimant's medical condition and claimant's need for ongoing treatment was not related to the February 9, 2006, incident. He found no evidence that claimant ever recovered from the August 2004 injury, or that claimant suffered a new injury.
Dr. MacMillan found that the MRI test performed after the 2004 injury and an MRI performed after the 2006 event did not support that a further injury had occurred. Dr. MacMillan explained, "So you have MRIs bracketing the alleged injury but there is really no significant change between those two studies. So, on the second study there is no evidence of a new injury and, typically, there has to be some objective evidence that something happened or something changed."
Dr. MacMillan concluded that claimant's pain was caused by two degenerative discs; that the discs were abnormal prior to February 2006. He explained that pain is often a protective mechanism that does not necessarily mean a new injury has occurred. He said that symptoms of a degenerative condition often "wax and wane" over time. Dr. MacMillan suggested, "[Y]ou got a guy who's been out of work for several months, he has to somehow get back to work and try and support his family and he goes back to work and low [sic] and behold his back hurts as bad as it did after the initial injury."
Dr. MacMillan was asked about a statement in a report he had submitted that stated "[a]lthough [claimant] alleges that his symptoms changed considerably with his February 2006 injury, there is no documentation in the medical record that would suggest he ever truly improved following Dr. Marx's[[3]] last entry." Dr. MacMillan was asked the following questions and gave the following answers:
Q. ... When you say "last entry," you mean the entry of June 30th of 2005?
A. Yes.
Q. What is the basis for that opinion, the fact that there is no evidence of any medical treatment with Dr. Marx [sic] or anyone else between June 30th, 2005, and February 9th, 2006?
A. Well, [claimant] says that he was able to go back to work and he had some backaching and stiffness, particularly after he sat for long periods of time, and so on. But there is nothing in the record that documents that fact.
Q. Is that significant to your opinion; I mean, is your opinion based solely on the fact that there is no medical documentation that there was ever a change in his condition?
A. No, not at all. It's based on the fact that there is no change in the MRI and if we are in a situation where you have a patient who goes in to the doctor and says I'm better and I'm ready to return to work and then he has a period of time where he receives no ongoing treatment and then he hurts himself at work and has an MRI which documents a significant change or an objective change in his spine, we say, okay, here is a guy who appears to have been better but then he goes and hurts himself and now he has an objective change in his MRI.
In this situation, we have a guy whose last medical entry he's disabled and then we have no idea what happens and he goes for a very short period of time and *889 all of a sudden he comes back with a new alleged injury, but there is no change in his MRI. So there is no objective evidence that anything happened between his first treatment and the second injury. So, the assumption that you have to make is that there is no new injury. This is all part it's all a continuation of the first injury.
Dr. MacMillan acknowledged that this was different than cases in which you only have an MRI performed after the event from which an injury is claimed; that in those instances, it is necessary to surmise if there has been a change in a patient's condition. He continued, "But in this case you have a different scenario. You have somebody who has clearly documented severe symptoms before the alleged injury. You have very similar symptoms after the alleged injury, and you have an MRI before the alleged injury that shows degenerative changes, and you have a virtually indistinguishable MRI after the alleged injury. So there is no objective evidence that anything changed."
Dr. MacMillan was asked, "[I]n looking at these films that you reviewed of this patient, do you see anything on the subsequent studies to indicate to you that there was a change in the pathology of his spine after February 9th, 2006, that did not exist prior to that date?" Dr. MacMillan answered, "No." Dr. MacMillan's opinion was that the event of February 9, 2006, was not the primary or prevailing factor in causing claimant's need for additional medical treatment.
Dr. MacMillan was asked if he knew if the doctor with whose opinion he disagreed, Dr. Stuckmeyer, was currently performing orthopedic surgery. He answered that Dr. Stuckmeyer was not currently performing orthopedic surgery and had not done so for several years.
The commission, in adopting the administrative law judge's findings, concluded:
It is clear that Drs. MacMillan and Stuckmeyer differ as to the causation of claimant's current complaints. Dr. MacMillan finds it unrelated to any injury in February of 2006, and Dr. Stuckmeyer finds that the injury is related to such incident. Consequently, the major issue presented by the parties is whether claimant's current physical condition was caused by his alleged accident. Indeed, there is no evidence to dispute that an incident occurred on February 9, 2006, as claimant describes, when a gust of wind caught the door he was trying to open and jerked him forward. Claimant alleges that that incident caused his current complaints. Thus, the issue of accident rises or falls with the determination of causation. Indeed, § 287.020,[[4]] in effect at the time of this injury, states that: "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. `The prevailing factor['] is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.["] 287.020.3(1), RSMo. Additionally, an accident must produce "at the time objective symptoms of an injury." § 287.020.2. Moreover, "[i]n determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate test or diagnostic procedures." § 287.190.6(2).
*890 The commission found "from the evidence" that claimant had a significant back injury that preexisted the accident that occurred February 9, 2006; that the ultimate decision regarding compensability depends on the determination of which doctor was correct with respect to whether claimant's current condition was caused by the February 9, 2006, incident.
The commission found, again adopting the administrative law judge's findings:
Based upon all of the evidence in this case, [the commission] conclude[s] that claimant did not sustain an injury by accident arising out of and in the course and scope of his employment on February 9, 2006, and that his current physical complaints were not caused by the event of February 9, 2006. There is no evidence to dispute claimant's testimony that an event occurred on that date; however, [the commission] find[s] that claimant sustained no new injury that caused his current physical complaints. Indeed, the evidence is that his actual physical condition, as determined by objective findings, remains virtually identical to what it was following his surgery from his August 20, 2004, injury.
The commission found that claimant failed to meet his burden of proof to prove his current physical condition was caused by the event of February 9, 2006.
Claimant asserts one point on appeal. He contends that the commission erred in entering an award of no compensation; that the facts found by the commission do not support an award of no compensation. Claimant contends that "the accident sustained by [him] on February 9, 2006[,] was the prevailing factor in causing both the resulting medical condition and disability to the low back and body as a whole." Claimant refers to four aspects of the evidence he presented as support for his claim of error. He contends that (A) he had recovered sufficiently from his prior back injury to enable him to return to work as a truck driver in the same capacity as before the prior injury; (B) he was not disabled at the time of the incident on February 9, 2006; (C) he had passed a DOT physical examination taken at the request of IWX and had been found not to be disabled, and that he met all requirements of the DOT to drive an over-the-road truck without restrictions; and (D) where there exists a pre-existing but non-disabling condition, a subsequent accident that results in a disability to the injured employee is the prevailing factor in causing any resulting medical condition and additional disability.
Claimant's statement of facts is a summary of testimony of three witnesses and a summary of Dr. James Stuckmeyer's report that was admitted in evidence. With respect to differences in the testimony on which claimant relies and the testimony on which the commission based its findings, "[t]he [c]ommission is charged with passing upon the credibility of witnesses, and it may disbelieve testimony of a witness even though no contradictory or impeaching evidence is presented." Gordon v. City of Ellisville, 268 S.W.3d 454, 458 (Mo.App.2008). This court defers to the commission on issues of fact. Miles v. Lear Corp., supra. Likewise, with respect to conflicting testimony of expert witnesses, the commission is free to believe whichever expert it chooses to believe. Gordon, supra, at 461. It is within these parameters that issues raised on appeal are addressed.
Further, as explained in Gordon, since the effective date of the 2005 changes to The Workers' Compensation Law, new and significantly different standards must be applied in determining the compensability of a claim.
*891 Case law preceding the 2005 amendments to the Worker's [sic] Compensation Law indeed permitted a claimant to recover benefits by establishing a direct causal link between job duties and an "aggravated condition." See Rono v. Famous Barr, 91 S.W.3d 688, 691 (Mo. App. E.D.2002). However, since Rono was decided, the legislature amended Section 287.020, changing the criteria for when an injury is compensable. In particular, the legislature struck out language stating that an injury is deemed to arise out of and in the course of employment where it is reasonably apparent that the "employment" is a "substantial" factor in causing the injury, "can be seen to have followed as a natural incident of the work" and "can be fairly traced to the employment as a proximate cause." See S.B. Nos. 1 & 130, section A 93rd Gen. Assem., 1st Reg. Sess. (Mo.2005). ...
Under the current statute, a work injury "is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." Section 287.020.3 (emphasis added). Further, Section 287.800 RSMo Supp.2006 requires this Court to strictly construe the provisions of the Worker's [sic] Compensation Law. Thus, we must limit our consideration of Claimant's claim for benefits to the standard contained in the current version of section 287.020.3. ...
Id. at 459. The commission recognized this, pointing out that § 287.190.6(2) requires that "where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings."
Claimant's arguments (A) and (B), that he had sufficiently recovered from his prior back injury so that he was able to return to work as an over-the-road driver and that claimant was not disabled at the time of the February 9, 2006, incident, are contrary to the facts found by the commission. The commission found the medical evaluation of Dr. MacMillan to be credible and relied on those findings in denying claimant workers' compensation benefits. Dr. MacMillan found that claimant's condition following the February 9, 2006, occurrence and claimant's need for ongoing medical treatment were not related to that incident. Dr. MacMillan found no evidence that claimant had recovered from the August 2004 injury; that claimant's condition after February 9, 2006, was unchanged from what it had been before the occurrence on that date. He found the MRI test that was conducted prior to the February 9, 2006, event was "virtually indistinguishable" from the MRI test conducted after that incident; that there was "no significant change" between the two MRI tests that bracketed the February 9, 2006, event. He diagnosed the cause of claimant's pain to be two degenerative discs; discs that were abnormal prior to February 9, 2006.[5]
Dr. MacMillan's assessment was consistent with the earlier observations of Dr. Marks, the surgeon who performed surgery on claimant after the 2004 injury. After the surgery, Dr. Marks found abnormalities at claimant's L4-5 disc and L5-S1 disc of the lumbar spine. Dr. *892 Marks concluded at that time that claimant was virtually disabled from his normal work activities; that claimant would need a discectomy and fusion for definitive care.
Claimant argues that Dr. MacMillan's evaluation differed from that of Dr. Stuckmeyer; that Dr. Stuckmeyer's evaluation determined claimant sustained a disabling injury from the event that occurred February 6, 2006, that entitled claimant to benefits. The commission did not agree. It concluded that Dr. MacMillan's evaluation was persuasive; that it was supported by the objective analysis of the MRI studies. That determination is binding on this court in that credibility regarding competing medical theories is a decision to be made by the commission. Baird v. Ozarks Coca-Cola/Dr. Pepper Bottling Co., 119 S.W.3d 151, 154 (Mo.App. 2003). "When the right to compensation depends on the acceptance of one of two competing medical theories, the issue is one of fact and the [c]ommission's finding will not be disturbed unless the [c]omission acted unreasonably in accepting testimony that was not substantial or decided the issue contrary to the overwhelming weight of the evidence." Keener v. Wilcox Elec., Inc., 884 S.W.2d 744, 746 (Mo.App.1994).
This court does not find that the commission acted unreasonably, that the testimony it accepted was insubstantial, or that the commission decided the issue contrary to the overwhelming weight of the evidence. The evidence did not require a determination that claimant had recovered sufficiently from his prior injury to perform the same kind of work that he had previously performed when he started his last employment by IWX. The evidence was sufficient for the commission to find that on February 9, 2006, claimant remained disabled as a result of his prior injury.
Claimant's argument (C) is that because he passed a DOT physical that was taken at the request of IWX prior to his last employment by IWX and found to meet the conditions required for a commercial license, the facts found by the commission do not support an award of no compensation. Claimant took a physical examination to determine his fitness as a commercial driver in November 2005. It was conducted by a Dr. Morris in Ft. Worth, Texas. He passed the examination and was certified to drive a commercial vehicle. Claimant contends this was prima facie evidence that he was not disabled prior to February 2006.
Claimant cites no authority for his argument that the passing of the DOT physical examination required a finding other than that made by the commission. This court finds nothing in the record that supports claimant's argument that the commission was required to find that because claimant passed the requisite physical examination for licensure, he no longer suffered from his prior disability.
Finally, claimant contends in argument (D) that the facts found by the commission do not support an award of no compensation because claimant's prior injury was non-disabling; that, therefore, the February 9, 2006, incident disabled claimant so that its consequences were the prevailing factor that caused his subsequent physical disability. There was sufficient medical evidence, as previously discussed, from which the commission could find that the February 9, 2006, incident was not the prevailing factor in the disability claimant experienced after that date. As noted, supra, under current law, in order for an event that arises out of and in the course of one's employment to entitle an employee who has a prior disability to additional benefits, the event must be a prevailing factor that results in further disability. It *893 is not sufficient that the event simply aggravates a preexisting condition. § 287.020; Gordon v. City of Ellisville, 268 S.W.3d at 459.
Claimant's point on appeal is denied. The commission's award of no compensation benefits is affirmed.
LYNCH, C.J., and RAHMEYER, J., concur.
NOTES
[1] Claimant explained his surgery as "a two-level TDR, meaning he did two separate procedures on two discs."
[2] Claimant visited Dr. Marks in March 2006 after the February 9, 2006, event. Dr. Marks recommended a traction regimen, prescribed an anti-inflammatory, and requested that claimant not work. A follow-up visit was suggested. Claimant did not follow up with Dr. Marks after the March 2006 visit.
[3] Dr. MacMillan's testimony was given by deposition. The name "Dr. Marx" appears in a number of places throughout the deposition. This court infers that the "Dr. Marx" referred to in the deposition transcript is intended to be Dr. Richard Marks who treated claimant in Ft. Worth, Texas.
[4] References to statutes are to RSMo Supp. 2005 unless otherwise stated.
[5] Compare Gordon v. City of Ellisville, supra, that observed aggravation of a preexisting condition arising out of and in the course of employment had been compensable prior to the 2005 amendments to § 287.020, but that the current version of § 287.020 restricts compensation to injuries in which the work accident was the prevailing factor in causing the resulting medical condition and disability. Gordon, 268 S.W.3d at 459. Dr. MacMillan did not find that the February 9, 2006, occurrence produced any injury that was the prevailing factor in any disability claimant suffered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579175/ | 51 S.W.3d 801 (2001)
LAMAR COUNTY ELECTRIC COOPERATIVE ASSOCIATION and Cap Rock Electric Cooperative, Inc., Appellants,
v.
Philip RISINGER, Appellee.
No. 06-01-00014-CV.
Court of Appeals of Texas, Texarkana.
Submitted June 12, 2001.
Decided June 26, 2001.
James R. Rodgers, The Moore Law Firm, LLP, Paris, for Lamar County Electric.
*802 Ronald W. Lyon, Law Offices of Ronald Lyon, Sherman, Bryce J. Denny, Cook, Yancey, King & Galloway, PC, Shreveport, LA, for Cap Rock Electric.
J. Don Gordon, Hynds & Gordon, Sherman, for appellee.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
ROSS, Justice.
This is an appeal from an order of the trial court denying the motion of Lamar County Electric Cooperative Association (Lamar) and Cap Rock Electric Cooperative, Inc. (Cap Rock) to dissolve a temporary injunction. We have jurisdiction pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2001).
This action for declaratory judgment and injunctive relief commenced on December 8, 2000, by Philip Risinger, an individual citizen and resident of Lamar County, against Lamar and Zed Smith, secretary of the board of directors of Lamar. Cap Rock is an intervenor. The petition alleged certain irregularities regarding the notice and other documentation sent by the board of directors of Lamar to the membership in connection with the annual meeting and election of the board of directors. Risinger sought the declaration of the trial court that the procedures employed were unlawful, and further sought to enjoin the annual meeting and election of the board unless proper procedures were employed in calling the meeting and election.
On December 8, 2000, the trial court issued a temporary restraining order, ordering that Lamar desist and refrain from:
conducting the year 2000 annual meeting of the members of Lamar County Electric Cooperative Association; conducting an election of board members from Districts # 2, # 3 and # 4 without having mailed ballots to all members of the association in accordance with the bylaws; utilizing proxies to cast votes in an election of members of the Board of Directors; and utilizing the resources, property, funds, assets, personnel, facilities or name of the association to influence or to any way affect the outcome of any election on the question of election of members of the Board of Directors.
The order further provided, "This order shall not be effective unless and until plaintiff executes and files with the clerk a bond, in conformity with the law, in the amount of Ten Thousand and 00/100 dollars ($10,000.00)." (Emphasis added.)
The bond filed by Risinger was in the amount of $10,000.00, with Jack Nelson and James Sam Cooper listed as sureties.
Lamar filed a motion to dissolve the temporary restraining order or, in the alternative, to increase the amount of the bond. The motion alleged, aside from the allegations that $10,000.00 was not enough security, that:
[T]he record is entirely devoid of any evidence that either Jack Nelson or Sam Cooper are "good and sufficient" sureties. There is no affidavit of solvency on the record. In fact, it appears that Risinger picked two persons who are not sureties at all, but who rather should be parties in this lawsuit.... To have a bond in a [temporary restraining order] case signed by two interested parties as sureties, without ANY evidence of their solvency, was an abuse of discretion by this Court and the bond should immediately be stricken until such time as Nelson and Cooper provide the Court with evidence of their solvency.
On December 14, 2000, a hearing was held on the motion to dissolve the temporary *803 restraining order. The only mention at that hearing regarding the sufficiency of the sureties was the following:
MR. DENNEY [Attorney for Lamar and Cap Rock]: Your Honor, may I just clarify the record? Is the court denying us a chance to examine the sureties about their solvency and ability to
THE COURT: Yes....
The trial court granted the temporary injunction, continuing in effect the bond issued for the temporary restraining order, i.e., $10,000.00 with the above-named individuals as sureties.
One point of error is raised in this appeal: Did the trial court err in denying Cap Rock's and Lamar's requests to examine the two sureties on the temporary injunction bond?
Rule 684 of the Texas Rules of Civil Procedure provides in part as follows with regard to a trial court's order granting any temporary restraining order or temporary injunction:
In the order granting any temporary restraining order or temporary injunction, the court shall fix the amount of security to be given by the applicant. Before the issuance of the temporary restraining order or temporary injunction the applicant shall execute and file with the clerk a bond to the adverse party, with two or more good and sufficient sureties, to be approved by the clerk, in the sum fixed by the judge, conditioned that the applicant will abide the decision which may be made in the cause, and that he will pay all sums of money and costs that may be adjudged against him if the restraining order or temporary injunction shall be dissolved in whole or in part.
Tex.R. Civ. P. 684 (emphasis added).
While many of the cases discussed below involved supersedeas and other types of bonds, the rules requiring the sureties on those bonds to be "good and sufficient" are applicable to the requirements for the sureties on the type of bonds at issue in this case.
The phrase "good and sufficient sureties" is, and has been for many years, a requirement for a bond filed in connection with some extraordinary, injunctive, or summary action taken by a court. For example, a successful plaintiff in the trial court, who obtains a money judgment against a defendant, is entitled to undertake appropriate legal proceedings to collect its judgment, even pending an appeal by the defendant, unless the defendant supersedes the judgment by means of a proper bond with proper sureties. Tex. R.App. P. 24.1(b)(1)(D) requires that in order to supersede a money judgment pending an appeal, a bond must, among other things, be signed by a sufficient surety or sureties as obligors. Tex.R.App. P. 24.4(a)(2) permits an appellate court to review the sureties on any supersedeas bond. See generally McDill Columbus Corp. v. Univ. Woods Apartments, Inc., 7 S.W.3d 923, 925 (Tex.App.-Texarkana 2000, no pet.).
In TransAmerican Natural Gas Corp. v. Finkelstein, 911 S.W.2d 153 (Tex.App.-San Antonio 1995, orig. proceeding), the court of appeals determined that the two sureties provided by defendants on their appeal of an $18 million judgment were insufficient in that they failed to provide the judgment creditor any security "in addition to the personal liability of the appellant, for the payment of the judgment." Id. at 155. The court held that some form of review of the propriety of the security furnished, either by the trial court, if there were material factual disputes, or by the court of appeals, was proper. Id. at 154-55. Cases from Texas and other jurisdictions establish clearly *804 that a court may review the adequacy or sufficiency of sureties on such bonds.
In Ex parte Moss, 459 S.W.2d 194 (Tex. Crim.App.1970), the Texas Court of Criminal Appeals upheld a trial court's denial of habeas relief to a criminal defendant who had tendered bail to the sheriff allegedly "by a good and sufficient surety." The sheriff had refused to accept the bail because a licensed attorney was named as a surety on the bond and the district judge had instructed him not to accept such bonds signed by the attorney as a surety. Id. at 195. The bond tendered to the sheriff was not offered into evidence, and the court noted that "[n]o proof of the sufficiency of the surety appear[ed] in the record." The court held that absent proof of proper bonds signed by a good and sufficient surety, no abuse of discretion by the trial court was shown. Id.
In Benge v. Foster, 74 S.W.2d 542 (Tex. Civ.App.Amarillo 1934, writ ref'd), the plaintiff sued the clerk of the court for allegedly negligently approving a replevin bond without determining whether it was signed by "two or more good and sufficient sureties." Id. at 544. The court of appeals reversed the trial court's judgment in favor of the clerk because of erroneous jury instructions pertaining to the definition of "good and sufficient sureties." Its analysis of such requirements is instructive:
The bond in question is strictly statutory and one of its imperative demands, as expressed in article 4084, is that such bond must be signed by "two or more good and sufficient sureties." We are not authorized to judicially amend this article by making it read in effect that such a bond is sufficient if any of its signers were solvent on the date of its execution. We cannot hold that the Legislature didn't mean what it said when two "good and sufficient" sureties were requiredthat it meant that neither surety need be "good and sufficient" if the principal was [sic] solvent, or, if he were insolvent, then one good and sufficient surety sufficed even if all the others were bankrupt.
Id.
In Glascock v. Mansfield, 25 Tenn.App. 401, 158 S.W.2d 358 (1941), one of the issues to be determined was whether the plaintiff real estate brokers, seeking to recover commissions, had been properly licensed as real estate agents. Tennessee law at that time required, among other things, that persons could not engage in the business of real estate agents "without obtaining a license and giving a bond to the State of Tennessee, executed by two good and sufficient sureties...." The statute further provided that if one of the named sureties died, became insolvent, moved from the state or otherwise became undesirable, the clerk was to direct the real estate agent to appear and give another, sufficient bond or give up his license. Id. at 358-59. The Tennessee court held that the bond filed by the two agents, who were partners, was insufficient as a matter of law, on the ground that each partner signed as principal for himself and as surety for the other, and the statute plainly required security in addition to that of the principals. Id. at 359.
In Smith v. Weaver, 41 Pa.Super. 253 (1909), part of the plaintiff's contractual obligation to the defendant was that he furnish a performance bond with a "good and sufficient surety" satisfactory to the defendant. The defendant found the surety unacceptable. In an attempt to show that the defendant had arbitrarily rejected the surety, the plaintiff offered an affidavit. The court held that the affidavit was "clearly not evidence. The surety could have been called and would have thereby subjected himself to a cross-examination *805 by the defendant." Id. at 256. The court held that calling the surety as a witness is the proper way to determine whether the surety is "good and sufficient."
These cases establish that the conditions imposed on a performance bond, appeal bond, or other similar obligation, including the sufficiency of the sureties on that bond, are proper subjects for inquiry by the potential obligees of these bonds. In the McDill Columbus case, there were two full-fledged hearings regarding the sufficiency of the amounts and the sureties on the supersedeas bond that was offered by the judgment debtor. McDill Columbus Corp., 7 S.W.3d at 925.
Risinger has cited Hill v. Halliburton, 32 Tex. Civ. App. 21, 73 S.W. 21 (1903, orig.proceeding), in support of his argument that the matter of the sufficiency of the bond is a matter of discretion with the clerk and the trial judge may not set aside the clerk's approval of a bond. We think this case is clearly distinguishable from the present case and does not aid Risinger. This case concerned an appeal bond, filed in support of the appeal of an interlocutory order appointing a receiver. The supersedeas bond was filed with and approved by the clerk, which allowed the appeal to go forward to the court of civil appeals. Another party moved the trial court to expunge the approval of the bond by the clerk, alleging that the supersedeas bond was not sufficient, and the original appellant sought injunctive relief against the trial judge to prevent such action. The appellate court granted the injunction, holding that any issue as to the sufficiency of the bond concerned the jurisdiction of the appellate court and that the appellate court had sole authority as to its own jurisdiction, not the trial court.[1] This case does not hold that in every instance where a bond is required to be filed with and approved by the clerk of court, the clerk's discretion in such instances is absolute and may not be reviewed in any manner, as Risinger contends.
As noted above, this is an appeal from the trial court's denial of Lamar's and Cap Rock's motions to dissolve the temporary injunction against the holding of the annual meeting and annual elections, an appealable interlocutory order under Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4). See Henke v. Peoples State Bank, 6 S.W.3d 717, 720 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.). It has been held that with regard to orders providing for injunctive relief, compliance with the conditions specified in the Rules of Civil Procedure is mandatory.
In Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (Tex.2000), the issue concerned the absence in the injunctive order of a requirement of Rule 683 that the case be set for trial on the merits. The Texas Supreme Court ruled that an injunctive order not containing such a provision was subject to being declared void and the injunction subject to being dissolved. Id. at 337; see also InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986); Ex parte Lesher, 651 S.W.2d 734, 735-36 (Tex.1983); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956).
The determination of whether to dissolve a temporary injunction lies within the sound discretion of the trial court. On appeal, our review is limited to whether the trial court abused its discretion. In such instances, the burden is on the appellants *806 to demonstrate such abuse of discretion. Henke, 6 S.W.3d at 720.
The Rules of Civil Procedure require "good and sufficient" sureties, and the case law discussed shows that, if challenged, the sureties should be subjected to examination by the potential obligees in order for the court to properly exercise its discretion in determining whether they are good and sufficient sureties. We find that Lamar and Cap Rock met their burden of demonstrating that the trial court abused its discretion in refusing to permit their attorneys to examine the sureties regarding their financial conditions.
The temporary injunction is dissolved, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
NOTES
[1] The present Rules of Appellate Procedure provide for continuing trial court jurisdiction over the amount of the supersedeas bond, with appellate review. See Tex.R.App. P. 24.3, 24.4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578898/ | 281 S.W.3d 648 (2009)
Mary Louise KENNON and Kennon Living Trust, Appellants,
v.
Wanda J. McGRAW, Appellee.
No. 11-07-00278-CV.
Court of Appeals of Texas, Eastland.
March 5, 2009.
*649 Randal Patterson, Atkins, Hollmann, Jones, Peacock, Lewis & Lyon, Odessa, for appellants.
Sharon L. Weathers, Midland, for appellee.
Panel consists of: WRIGHT, C.J., McCALL, J., and, STRANGE, J.
OPINION
RICK STRANGE, Justice.
Wanda J. McGraw sued Mary Louise Kennon and Kennon Living Trust alleging that they wrongfully foreclosed her residence and that they charged her usurious interest. The trial court conducted a bench trial and found in McGraw's favor. We affirm in part and reverse and remand in part.
*650 I. Background Facts
In 1995, McGraw and her husband purchased a residence from the Trust. They signed a promissory note payable to the Trust for $32,000 and a deed of trust. The note bore interest of 9% and was payable in 180 monthly installments due on the first day of the month beginning April 1, 1995. In 1995, the McGraws made all of their payments, but only one timely. The McGraws were divorced in 1996. From that point forward, Wanda McGraw's payments were always late and many were missedalthough she did make an additional $1,015.76 payment in 1998.
Kennon's attorney sent a letter in February 1999 demanding payment of $1,322.47 to satisfy an escrow shortage and $1,622.80 for past-due note payments. McGraw consulted with an attorney. McGraw's attorney responded to the demand letter, denied that there was any default, and contended that the Trust was improperly calculating McGraw's escrow payment. In November 1999, the Trust sent a second demand letter. This letter demanded payment of $5,632.11 for past-due principal, interest, taxes, and insurance. McGraw's attorney again denied any default and contended that McGraw was being charged usurious interest.
The Trust foreclosed the note and, on March 10, 2000, provided McGraw with notice of a trustee's sale to take place on April 4. McGraw's attorney faxed a response on April 3. McGraw alleged that the Trust was charging usurious interest because it was improperly calculating the interest due on past-due payments. The Trust proceeded with the trustee's sale and, in June, attempted to evict McGraw. She filed suit in district court, and the eviction proceedings were abated. Following a bench trial, the trial court found that McGraw had been charged interest of $3,240.50 in excess of the amount allowed by law and awarded McGraw damages of $9,721.50, attorney's fees, and costs.
II. Issues
Kennon and the Trust contend that the trial court erroneously failed to spread the interest over the entire term of the note, that the trial court erred by not giving effect to the note's savings clause, and that the evidence is legally and factually insufficient.
III. Analysis
A. Standard of Review.
A trial court's findings of fact in a bench trial are reviewed for legal and factual sufficiency under the same standards used to review a jury's verdict on jury questions. Girdner v. Rose, 213 S.W.3d 438, 445 (Tex.App.-Eastland 2006, no pet.). In considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the prevailing party and indulge every inference in their favor. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). In reviewing a factual sufficiency challenge, we consider all of the evidence and uphold the finding unless the evidence is too weak to support it or the finding is so against the overwhelming weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). We review the trial court's conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143-44 (Tex.App.-Houston [14th Dist.] 2000, no pet.).
B. Spreading.
The trial court found that from March 1995 through December 1999 Kennon and the Trust charged McGraw interest of $17,845.29 and that this was usurious because the maximum amount of allowable interest was only $13,920. The December date may have been a typographical error *651 because it appears that the court intended to use the time period running through the Trust's acceleration of the note, but the note was accelerated by letter dated March 10, 2000. Regardless, Kennon and the Trust argue that, because of the Spreading Doctrine, it was error to use any period of time shorter than the fifteen-year term of the note and that the trial court should have determined whether $17,845.29 could be legally charged over fifteen years. McGraw answers that the Spreading Doctrine only applies when analyzing a note to determine if it charges usurious interest and that it does not apply here because Kennon did not follow the note's terms when she charged past-due interest.
The Spreading Doctrine was first recognized in Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 1049 (1937). It has since been codified at TEX. FIN.CODE ANN. § 302.101 (Vernon 2006). This statute reads in part:
(a) To determine whether a loan secured in any part by an interest in real property, including a lien, mortgage, or security interest, is usurious, the interest rate is computed by amortizing or spreading, using the actuarial method during the stated term of the loan, all interest at any time contracted for, charged, or received in connection with the loan.
Because of the statute's mandatory language and its broad reference to all interest contracted for, charged, or received, we disagree with McGraw that it only applies to the construction of a written agreement. The doctrine is applicable to this case as well.
The next question is what time period should be utilized. The trial court did not use the entire fifteen-year term because the note was accelerated; however, the supreme court has held that this is immaterial. In Tanner Dev. Co. v. Ferguson, 561 S.W.2d 777, 779 (Tex.1977), the court considered a five-year note that required prepayment of interest at the beginning of the note and then provided for a subsequent period of principal-only payments. The debtor defaulted while still making prepaid interest payments, and the creditor accelerated the note. The court held that, even though the note was accelerated, usury should be determined by using the five-year term. Id. at 786.
Because the trial court did not utilize the entire term of the note when it performed its interest calculation, Kennon and the Trust's first and second issues are sustained. But for the reasons explained below, we do not endorse their proposed method for determining the interest rate charged.
C. Savings Clause.
Kennon and the Trust next argue that the trial court erred as a matter of law by not giving effect to the note's savings clause. They contend that, unless a note is usurious on its face, a savings clause precludes a usury claim. The note provided:
It is further expressly agreed that interest on this note will not be charged in excess of the highest legal rate specified by the Laws of the State of Texas and that future adjustments will be made to avoid the payment of interest in excess of such limits.
The trial court found that, because the Trust accelerated the note and held a trustee's sale, McGraw's future payments could not be adjusted to compensate for overcharges and, thus, that the savings clause did not preclude a usury claim. The court also found that Kennon and the Trust's actions were not the result of any accident or bona fide error.
*652 Savings clauses are favored by the law and will be given effect if reasonably possible. Woodcrest Assocs., Ltd. v. Commonwealth Mortgage Corp., 775 S.W.2d 434, 437-38 (Tex.App.-Dallas 1989, writ den'd). The effect of a savings clause hinges on the construction of the terms of the whole transaction in light of the surrounding circumstances. Id. Usury is a matter of intention, and a savings clause is evidence of an intent not to charge usurious interest. Robert Joseph Phillips Living Trust v. Scurry, 988 S.W.2d 418, 421 (Tex.App.-Eastland 1999, pet. denied). A party may not, however, escape penalty by disclaiming the intention to do what was clearly done. Nevels, 102 S.W.2d at 1050.
Kennon and the Trust's issue raises a legal sufficiency challenge. This requires that we review all the evidence in the light most favorable to the prevailing party, indulging every inference in their favor. City of Keller, 168 S.W.3d at 822. Kennon's daily late interest charge was the amount of interest accruing each day on the total note. Kennon testified that she calculated late interest charges using an amortization schedule the title company provided at closing. That schedule included an equivalent daily interest rate. She multiplied this rate by the number of days a payment was late. This initially resulted in a $7.872 daily late payment charge. As the note balance decreased, she recalculated the daily interest rate. Kennon was, therefore, doubling the interest McGraw was charged each day her payment was late. One court has described this method as "patently erroneous." See Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 715 (Tex.App.-Corpus Christi 1998, pet. denied).
When the Trust accelerated the note, McGraw's counsel specifically brought this issue to Kennon's attention, writing:
After reviewing Ms. Kennon's figures and the terms of the Deed of Trust and Vendor's Lien Note, it is clear Ms. Kennon is incorrectly computing the interest on past due payments. The clear language of the note entitles her only to claim interest on the past due principal and interest. Ms. Kennon is computing her past due interest on the entire unpaid balance.
Previously, McGraw's counsel had twice advised Kennon in writing that Kennon was incorrectly calculating McGraw's payment obligations and once warned her that she was charging usurious interest. Kennon did not alter her demand, proceeded with the trustee's sale, and testified at trial that she made no adjustments because she did not believe it was necessary.
When this evidence is viewed in the light most favorable to McGraw, it supports the trial court's lack of accident or bona fide error finding. Consequently, the trial court did not err as a matter of law by finding that the savings clause did not preclude McGraw's usury claim. Issue Three is overruled.
D. Sufficiency of the Evidence.
Kennon and the Trust next argue that the evidence is legally and factually insufficient to support the trial court's finding that they charged usurious interest. The trial court had the note and heard evidence of McGraw's payments, Kennon's past-due interest calculations, and the Trust's demands. This is some evidence and, thus, legally sufficient to support the trial court's finding. However, it is factually insufficient because neither party offered evidence of the appropriate late charges or past-due interest.
Because McGraw's payments were late, the Trust was entitled to late charges and to interest on unpaid charges. Pentico, 964 S.W.2d at 717-18. TEX. FIN.CODE ANN. § 302.001(d) (Vernon 2006) allows the trust *653 to charge the greater of five percent of the payment or $7.50 for any payment that is at least ten days late. McGraw's monthly payments were $324.56. The Trust, therefore, was entitled to a late charge of $16.23 for each payment received on or after the eleventh of the month due. The note also provides that "all past due principal and interest due under the terms of this note shall bear interest from maturity at the maximum allowable rate." TEX. FIN.CODE ANN. § 302.001(b) (Vernon 2006) sets the maximum rate of interest at 10% a year. The Trust could, therefore, charge 10% interest or 8.8921 cents per day on all late payments.
McGraw called Lawrence Prucka, a CPA, as her expert witness. Prucka agreed that the Trust was entitled to additional interest on past-due payments, but he did not make that calculation. Instead, he took the date of each payment and calculated the accrued interest as of that date. He deducted the accrued interest and applied the remainder to principal. Prucka accused Kennon of charging several hundred percent interest on late payments, but his calculations fail to consider either the legally allowable late charges or the interest accruing on past-due payments and, thus, understate McGraw's liability. Because McGraw provided some evidence of overcharging, Kennon and the Trust's legal sufficiency challenge (Issue Four) is overruled. But because McGraw did not provide the court with sufficient evidence to make the correct calculation, Kennon and the Trust's factual sufficiency challenge (Issue Five) is sustained. This requires that we remand for a partial new trial to determine if the Trust charged usurious interest and, if so, to award the appropriate relief. Because we are affirming the trial court's finding that the savings clause does not preclude a finding of usury, that issue is not included in the new trial.
When conducting the new trial, the court should spread the interest over the entire fifteen-year period of the note. The court should consider not only the interest actually charged but also the interest that would have been charged absent acceleration. See Tanner, 561 S.W.2d at 779 (considering the interest charged as of acceleration and the interest that would have been charged over the remainder of the note); Groseclose v. Rum, 860 S.W.2d 554, 558 (Tex.App.-Dallas 1993, no pet.) (the Spreading Doctrine requires consideration of all interest charged to date along with interest to be charged pursuant to the terms of the note).[1] When calculating the maximum permissible interest, the court should consider the late charge allowed by Section 302.001(d) and the 10% interest on late payments allowed by Section 302.001(b). Finally, the Trust is entitled to 10% on past-due escrow payments. Unlike many mortgages that require the payment of estimated taxes and insurance in advance, the note required McGraw to reimburse the Trust.[2] Thus, McGraw's *654 monthly escrow payments are one-twelfth of the previous year's insurance and tax costs.
IV. Holding
The judgment of the trial court is affirmed in part and reversed in part. That portion of the judgment finding that the savings clause does not preclude a usury claim is affirmed. The remainder of the judgment is reversed, and this case is remanded for a new trial on all issues excluding the savings clause.
NOTES
[1] We do not hold that trial courts have no authority to depart from the express terms of the note when considering future interest. If, for example, the court found that the parties had altered their obligations through a course of conduct, the court would calculate interest using the revised agreement. Here, there are no findings supporting a departure from the note's express provisions.
[2] The note reads:
It is the responsibility of the Kennon Living Trust to prepay the premiums for insurance and to prepay the taxes annually and to advise the makers hereof of these amounts. The total monthly payments due on this note shall be adjusted as necessary to include enough money to reimburse Kennon Living Trust for these funds on an annual basis. Maker's failure to pay these escrowed funds for taxes and insurance shall constitute a default under the Deed of Trust securing this note and shall entitle beneficiary to any rights and/or remedies granted herein to satisfy default. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578922/ | 281 S.W.3d 817 (2009)
Sharon DUTSCHKE; Kenneth Dutschke, Appellants,
v.
JIM RUSSELL REALTORS, INC.; Jim Russell; Joseph Hines; Michael Faust, Personal Representative of the Estate of Fred Faust and Trustee of the Faust Family Trust, Appellees.
No. 2007-CA-001146-MR.
Court of Appeals of Kentucky.
August 1, 2008.
Discretionary Review Denied by Supreme Court May 13, 2009.
*819 Kirk Hoskins, Louisville, KY, for appellant.
Michael F. Lawrence, Louisville, KY, for appellee.
Before: COMBS, Chief Judge; KELLER, Judge; HENRY,[1] Senior Judge.
OPINION
HENRY, Senior Judge.
Sharon Dutschke and Kenneth Dutschke appeal from the dismissal of their claims against the above captioned appellees in a dispute concerning the Dutschkes' purchase of a residence from Fred Faust, deceased. The real estate purchase contract contained an arbitration clause, which the circuit court determined was enforceable. The Dutschkes allege that the underlying contract was a product of fraud, and that to the extent that the Kentucky Uniform Arbitration Act contained in KRS Chapter 417 (KUAA) compels arbitration under such circumstances, the Act is unconstitutional under the jural rights doctrine, the right to a jury trial contained in Section 7 of the Kentucky Constitution, the separation of powers doctrine, and the prohibition against arbitrary power contained in Section 2 of the Kentucky Constitution, Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850 (Ky.2004), notwithstanding. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jim Russell is the owner of a real estate agency, Jim Russell Realtors, Inc., d/b/a Remax Elite Realty Office. Joseph Hines is one of the real estate agents employed at the agency.
In early 2002 Kenneth and Sharon decided to sell their farm in Breckinridge County, Kentucky, and relocate to the Shively area of Jefferson County, where Sharon had grown up.
In the course of searching for a residence in the area the Dutschkes were referred to Joseph Hines. They eventually retained Hines as their buyer's agent to help them search for a home. While looking through a listing magazine at the Remax office one day, Sharon noticed a promising listing for a residence located at 1828 Farnsley Road. The residence was owned by Fred Faust, who had had the dwelling built in 1950. Faust had earlier signed a contract engaging Remax Elite to handle the sale of the residence. As part of the process involved in selling the home, Faust completed a seller's disclosure statement. The parties dispute whether this statement was ever provided to the Dutschkes.[2]
The Dutschkes visited the home, inspected it, and noticed several needed repairs. *820 As part of their negotiations, the Dutschkes prepared a list of needed repairs totaling $13,152.65 to be presented to Faust in an attempt to get him to lower the price. On June 15, 2002, Faust accepted the Dutschkes' offer to purchase the residence for $103,000.00. The Dutschkes did a final walk through on July 14, 2002, and the closing on the property occurred on July 18, 2002.
The Dutschkes' purchase of the property was consummated through the use of a standardized sales and purchase contract prepared by the Greater Louisville Association of Realtors, Inc. Paragraph 17 of the contract provides as follows:
17. BINDING ARBITRATION: All claims or disputes, for a sum greater than the limits of small claims court jurisdiction, of Sellers, Buyers, brokers, or agents or any of them arising out of this contract or the breach thereof or arising out of or relating to the physical condition of the property covered by this purchase agreement (including without limitation, claims of fraud, misrepresentation, warranty and negligence) shall be decided by binding arbitration in accordance with the rules of the real estate industry, then in effect, adopted by the American Arbitration Association unless the parties mutually agree otherwise. Notice of the demand for arbitration shall be filed in writing by registered or certified mail with the other parties to the contract and with a registered arbitrator (a list of which is available at the Greater Louisville Association of Realtors main office) or other arbitrators which the parties may agree upon and shall be made within one (1) year after the dispute has arisen. An actual oral hearing shall be held unless the parties mutually agree otherwise. The Kentucky Real Estate Commission still retains jurisdiction to determine violations of KRS 324.160. Any proceeding pursuant to KRS 324.420(1) to determine damages shall be conducted by an arbitrator pursuant to this clause and not in court. By signing below the agents, on behalf of themselves and their brokers, agree to be bound by this arbitration clause, but are not parties to this contract for any other purpose. The terms of this Paragraph 17 shall survive the closing.
Following the closing, among other problems, the Dutschkes experienced leaks in their basement following heavy rainfall; discovered that the plumbing in the upstairs bathroom was defective resulting in leaking behind the walls; determined that the basement plumbing was not hooked up to the municipal sewer system but, rather, was connected to a septic system; learned for the first time that the home was located in a flood plain; and discovered rotting around the windows.
Faust paid the Dutschkes for the expenses required to repair the basement leaking; however, based upon the perceived extensive lack of disclosure concerning the condition of the dwelling, on August 12, 2003, the Dutschkes filed a "Petition for Declaratory Relief and Civil Complaint" in Jefferson Circuit Court. As relevant here, the Complaint alleged that Remax Elite, Russell, Hines, and Faust had fraudulently induced the Dutschkes to purchase the Farnsley Road residence. The complaint did not, however, allege that the Dutschkes were fraudulently induced to enter into the arbitration agreement. At this time Marks v. Bean, 57 S.W.3d 303 (Ky.App.2001), was the controlling case in situations involving fraud and the enforceability of an arbitration clause. It held that an allegation of fraud in the inducement relating to the underlying contract alone was sufficient to avoid the enforcement of an arbitration clause.
*821 On October 3, 2003, Remax, Russell, and Hines filed a motion to dismiss or, in the alternative, for enforcement of the arbitration clause contained in the purchase and sales agreement.[3] It appears, however, that the motion was never ruled upon. Discovery then proceeded, and a trial date was set for May 17, 2005.
In the meantime, the Supreme Court issued its decision in Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850 (Ky.2004). The decision, overruling Marks v. Bean, supra, held that a party to a contract containing an arbitration clause could not avoid arbitration where the alleged fraud was limited to fraudulent acts inducing the party to enter into the underlying contract alone; rather, avoidance could only be had when the allegations of fraud went to the making of the arbitration clause itself.
On the eve of the scheduled trial, based upon the holding in Louisville Peterbilt, the defendants renewed their motion to dismiss or, in the alternative, arbitrate. On May 18, 2005, the trial court entered an order granting the motion in the alternative. The matter accordingly proceeded to arbitration.
Following a hearing, the Arbitrator issued his Arbitrator's Opinion and Award, which was filed into the circuit court record on October 21, 2005. The Arbitrator substantially agreed with the Dutschkes upon their claims relating to undisclosed defects, but awarded them only $12,691.00 out of the total of $41,600.00 they sought.
On February 21, 2006, the Dutschkes filed a motion to vacate the arbitration award on the basis that the award was grossly inadequate. They also argued that the Arbitrator erred by failing to rescind the contract altogether. The defendants responded, and in the Dutschkes' reply memorandum they raised the constitutional arguments at issue herein. Notice was provided to the Attorney General concerning their constitutional challenges to the KUAA, who on May 22, 2006, filed a notice that he would not intervene in the Dutschkes' challenge to the constitutionality of aspects of the KUAA.
On October 23, 2006, Fred Faust passed away and his estate was substituted as a party to the case.
On May 8, 2007, the trial court entered an order denying the Dutschkes' motion to vacate the arbitration award and, instead, confirming the award. This appeal followed.
DISCUSSION
In Louisville Peterbilt, in overruling Marks v. Bean, the Supreme Court interpreted the "savings clause" contained in KRS 417.050[4] consistent with the U.S. Supreme Court's interpretation of analogous language contained in the Federal Arbitration Act (FAA) as enunciated in Prima Paint Corporation v. Flood & Conklin Manufacturing Company, 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967). This interpretation is referred to as the "separability doctrine," and, in summary, requires courts to separate an otherwise valid arbitration clause from the contract within which it is contained to allow arbitration of all claims not going to the validity of the arbitration clause itself.
*822 In other words, under the holding in Louisville Peterbilt, fraudulent acts inducing someone to enter into the underlying contract is not a basis for avoiding the arbitration clause; rather, to avoid the clause upon the basis of fraud, the fraudulent inducement must relate specifically to the arbitration clause. The underlying notion is that the Arbitrator himself is capable of evaluating and issuing a ruling upon allegations relating to fraud in the inducement vis-à-vis the underlying contract.
Upon examination, it is the above holding in Louisville Peterbilt which underlies the Dutschkes' constitutional challenge. Pursuant to their constitutional theories, they contend that their claim that they were fraudulently induced to enter into the underlying contract itself should suffice to challenge the arbitration clause, which mirrors the holding in Marks v. Bean. Thus, they argue that we should, in effect, abrogate the Supreme Court's holding in Louisville Peterbilt pursuant to their constitutional theories.
Though the Supreme Court did not address the constitutional issues as raised by the Dutschkes in its Louisville Peterbilt decision, we have grave doubts that we may rule in accordance with the Dutschkes' constitutional arguments. "The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court." Rules of the Kentucky Supreme Court (SCR) 1.030(8)(a). "[A]s an intermediate appellate court, this Court is bound by established precedents of the Kentucky Supreme Court." Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky.App. 2000) (citations omitted).
Nevertheless, we will briefly address the Dutschkes' constitutional arguments.
JURAL RIGHTS DOCTRINE
In their brief the Dutschkes purport to challenge the constitutionality of Chapter 417 under the jural rights doctrine. They have headings in their brief reflecting this, and they state "Post [Louisville Peterbilt], KRS 417.050 eliminates the rights of trial by jury in a common law fraud claim, a facial violation of the Dutschkes' jural rights." Appellant's Brief, pg. 16. However, an examination of their arguments under what they identify as their jural rights doctrine headings discloses that it appears they are interchanging the term "jural rights" with the right to a jury trial contained in Section 7 of the Kentucky Constitution. Indeed, they state that the "[a]pplication of jural rights principles begins with Section 7." Appellant's Brief, pg. 15.
We believe the Dutschkes' use of the term "jural rights" in their arguments to be a misnomer. Section 7 is not an aspect of the jural rights doctrine in Kentucky as used in its normal sense. Nevertheless, we will briefly address the constitutionality of Chapter 417 under the jural rights doctrine. We examine the constitutionality of the Act under Section 7which appears to be the actual thrust of the Dutschkes' argumentin the next section of this opinion.
The jural rights doctrine is not expressly set out in the Kentucky Constitution. Rather, the doctrine is derived from a reading of Sections 14,[5] 54,[6] and 241[7] of *823 the Kentucky Constitution. In essence, the doctrine states that the General Assembly has no authority to abolish or restrict a common law right of recovery for personal injury or wrongful death. Bishop v. Manpower, Inc. of Cent. Kentucky, 211 S.W.3d 71 (Ky.App.2006); Williams v. Wilson, 972 S.W.2d 260, 265 (Ky.1998); Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347 (1932). The doctrine has also been articulated as "preclud[ing] any legislation that impairs a right of action in negligence that was recognized at common law prior to the adoption of the 1891 Constitution." McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 73 (Ky.2002); see also Thomas P. Lewis, Jural Rights Under Kentucky's Constitution: Realities Grounded in Myth, 80 Ky.Law J. 953 (1992).
In summary, the jural rights doctrine is limited to application in the areas of negligence, personal injury, or wrongful death. As fraud in the inducement does not fall within any of those categories, we believe the jural rights doctrine to have no application to the issues under consideration.
RIGHT TO JURY TRIAL
The Dutschkes contend that Chapter 417 violates Section 7 of the Kentucky Constitution by denying them their right to a trial by jury upon their claim that they were fraudulently induced into entering the subject real estate contract.
Section 7 of the Kentucky Constitution provides, "The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution." (Emphasis added). Thus, the Section contemplates that there may be other provisions in the Constitution which may make exceptions to the general rule that a citizen is entitled to a trial by jury. One of these exceptions is contained in Section 250 of the Constitution, which provides that "[i]t shall be the duty of the General Assembly to enact such laws as shall be necessary and proper to decide differences by arbitrators, the arbitrators to be appointed by the parties who may choose that summary mode of adjustment."[8]
We believe Section 250 to be dispositive of the issue. The Section specifically provides for a system of arbitration to be enacted by the legislature and, by definition, arbitration does not include a trial by jury. Moreover, Louisville Peterbilt holds that arbitration is a proper forum in which to invoke a claim that the underlying contract is a product of fraud. Accordingly, we disagree with the Dutschkes' contention that the KUAA violates Section 7 of the Kentucky Constitution.
SEPARATION OF POWERS
The Dutschkes contend that Chapter 417 violates the separation of powers doctrine contained in Section 28 of the Kentucky Constitution. Their argument is somewhat difficult to follow, but it appears that they allege that the legislature *824 usurped powers vested in the judicial branch of government by drafting the KUAA in a manner which does not provide for judicial review of whether a party who enters into a contract containing an arbitration clause freely, knowingly, and voluntarily waived his Section 7 right to a jury trial.
The separation of powers doctrine is reflected in the Kentucky Constitution in Sections 27 and 28. The Kentucky Constitution Section 27 states:
The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
Kentucky Constitution Section 28 states:
No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
We first note that, as previously discussed, Section 250 of the Kentucky Constitution specifically vests the legislature with the power to enact necessary and proper laws to establish an arbitration system in Kentucky. It follows that it was not a violation of the separation of powers doctrine for the legislature to enact the KUAA.
However, analogizing to a standard often used in the waiver of constitutional rights in criminal cases, the Dutschkes contend that the standard which should be applied in evaluating the validity of an arbitration clause is "an affirmative demonstration that the contract was freely, knowingly, and voluntarily entered into[.]"
The relevant standard concerning the validity of an arbitration clause has previously been established as follows: "[t]he burden of establishing the existence of an arbitration agreement that conforms to statutory requirements rests with the party seeking to enforce it, but once prima facie evidence thereof has been presented, the statutory presumption of its validity (KRS 417.050) accrues, and the burden of going forward with evidence to rebut the presumption then shifts to the party seeking to avoid the agreement, Marciniak v. Amid, 162 Mich.App. 71, 412 N.W.2d 248 (1987), and this is a heavy burden." Valley Const. Co., Inc. v. Perry Host Management Co., Inc., 796 S.W.2d 365, 368 (Ky. App.1990) (citing Rancho Pescado, Inc. v. Northwestern Mutual Life Ins. Co., 140 Ariz. 174, 680 P.2d 1235 (1984) and Board of Education, Taos Municipal Schools. v. The Architects, Taos, 103 N.M. 462, 709 P.2d 184 (1985)). This standard was reaffirmed in Louisville Peterbilt. Id. at 857.
We are unpersuaded that in order for a party to be bound by an arbitration clause that his acquiescence to the agreement must be proven under the same standards applicable to a defendant's waiver of a constitutional right in a criminal case. In any event, the Supreme Court reaffirmed the above standard in Louisville Peterbilt, and we are bound by its holding upon the issue.
SECTION 2
Finally, the Dutschkes contend that the KUAA violates Section 2 of the Kentucky Constitution in that it fails to provide for meaningful judicial review of an arbitration decision. They cite to the holding in American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky.1964), to the effect that there is an inherent right of appeal *825 from orders of administrative agencies where constitutional rights are involved. Analogizing to this holding, they maintain that "[i]n granting favored status to an alternate system for dispute resolution the legislature must provide for judicial review unless the right is waived."
Section 2 of the Kentucky Constitution provides "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority."
Contrary to the appellant's assertion, KRS Chapter 417 does provide for judicial review. KRS 417.160 provides as follows:
(1) Upon application of a party, the court shall vacate an award where:
(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(c) The arbitrators exceeded their powers;
(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of KRS 417.090, as to prejudice substantially the rights of a party; or
(e) There was no arbitration agreement and the issue was not adversely determined in proceedings under KRS 417.060 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court is not ground for vacating or refusing to confirm the award.
(2) An application under this section shall be made within ninety (90) days after delivery of a copy of the award to the applicant; except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known.
(3) In vacating the award on grounds other than stated in paragraph (a) of subsection (1) of this section, the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with KRS 417.070, or, if the award is vacated on grounds set forth in paragraphs (c) and (d) of subsection (1) of this section, the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with KRS 417.070. The time within which the agreement requires the award to be made is applicable to the rehearing and commences on the date of the order.
(4) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.
Further, KRS 417.170 provides as follows:
(1) Upon application made within ninety (90) days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(b) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.
*826 (2) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
(3) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
Thus, we disagree with the appellants that the KUAA does not provide for judicial review. We believe the level of judicial review provided is consistent with the underlying purposes of arbitration generally, one of which is to avoid the time and expense involved with courtroom litigation; is authorized by Section 250 of the Constitution; and, moreover, is sufficient to comply with the requirements of Section 2 of the Constitution.
CONCLUSION
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
KELLER, Judge, Concurs.
COMBS, Chief Judge, Concurs and Files Separate Opinion.
COMBS, Chief Judge, Concurring:
It is my profound wish that the General Assembly would re-visit the issue of arbitration in Kentucky. I hope that it would defer to the common law, common sense notion that fraud in the inducement to enter into a contract should not be toleratedmuch less rewardedin allowing the fraudulent actor to escape the scrutiny of the courts by recourse to arbitration. Until the General Assembly decrees otherwise, arbitration has effectively usurped and supplanted the constitutional guarantee of access to the courts under grossly unfair circumstances.
In light of Peterbilt, I must concur with the correctly reasoned majority opinion. I do so, however, with deep regret tempered with the hope that this lamentable state of affairs may attract the attention of our legislature.
NOTES
[1] Senior Judge Michael L. Henry, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
[2] The Arbitrator concluded that it was not.
[3] Because the Complaint alleged fraud in the inducement regarding the underlying contract, pursuant to Marks v. Bean, supra., the clause would not have been enforced.
[4] KRS 417.050 provides that "[a] written agreement to submit any existing controversy to arbitration or a provision in written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law for the revocation of any contract." (Emphasis added).
[5] Section 14 provides "All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
[6] Section 54 provides "The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property."
[7] Section 241 provides "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made, the same shall form part of the personal estate of the deceased person."
[8] Similar provisions were contained in Article VI, Section 10, of Kentucky's Second Constitution adopted in 1799, and in Article 8, Section 10, of Kentucky's Third Constitution adopted in 1850. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578907/ | 281 S.W.3d 43 (2005)
In the Matter of R.J.R., a Juvenile.
No. 08-03-00392-CV.
Court of Appeals of Texas, El Paso.
June 9, 2005.
*44 Roy Lynn Scott, Midland, for Appellant.
Cassandra Moholt Cheek, Midland County Courthouse, Midland, for State.
Before Panel No. 2 BARAJAS, C.J., McClURE, and CHEW, JJ.
*45 OPINION
DAVID WELLINGTON CHEW, Justice.
R.J.R., a juvenile, appeals from a disposition order committing him to the Texas Youth Commission. On appeal, he raises six issues: three challenge the trial court's denial of a motion to suppress, two legal sufficiency issues, and a double jeopardy claim. We affirm.
Midland Police Officer Gary Kennedy testified that on June 7, 2002, at approximately 4 a.m., while patrolling a high crime and drug area, he came in contact with the Appellant. He found the Appellant sitting in a 1987 Ford Tempo parked on Lee Street. He asked the Appellant for his name and date of birth. He then asked the Appellant to exit the vehicle because the Appellant was under age and in violation of the city's curfew law. He did a pat down to check for any weapons. He did not find any weapons, but he did notice a bulge in Appellant's pant pocket. Officer Kennedy then asked Appellant's permission to search inside his pockets, and Appellant consented. He testified that the bulge was soft and he could feel a substance inside the bag. Based on his experience, he believed it was contraband. He could also hear that it was a plastic bag. He then pulled out the bag and saw that it contained marijuana. Officer Kennedy then placed the Appellant under arrest.
On October 10, 2002, at approximately 6 a.m., Midland Police Officers Steven McNeill and Margarita Venegas were working undercover, patrolling in an unmarked white Chevrolet Astro van in an attempt to capture auto burglars. They received a call from dispatch that a male wearing dark clothing was prowling in the neighborhood of Crest and Ridgely. The individual was seen peering into the windows of parked cars, and it was reported that he could be armed. When Officers McNeill and Venegas received the call, two other marked vehicles had already been dispatched, but they went ahead and responded to the area as well.
Officer Venegas was driving the unmarked vehicle slowly through the neighborhood when they saw the Appellant wearing dark clothing riding a bicycle. Officer Venegas exited the vehicle and approached the Appellant; she identified herself as a police officer and asked him to stop. Appellant did not stop, but instead continued to pedal faster. Officer McNeill then testified that he stood in front of the bicycle, identified himself as a police officer, and asked Appellant to stop. Appellant did not stop, but rather veered to the left and evaded Officer McNeill. Officer McNeill then pulled the Appellant off his bicycle and the Appellant tried to pull away. Officer McNeill and Officer Venegas testified that they tried to pat down the Appellant, but that he was fighting them, attempting to escape. They finally wrestled him to the ground. Appellant's pockets were bulging with approximately twenty items: a two-way radio, two cell phones, a fart machine, marijuana, an empty plastic bag, a homemade marijuana pipe, a cigarette lighter, a Playboy magazine, and a CD. The officers were able to locate the owners of the cell phones. The owners reported that the cell phones had been stolen from their cars.
Once Appellant was arrested, Detective Richard Faulkenberry of the Midland Police Department interviewed him, and attempted to get a statement. He also ran Appellant's fingerprints to see if there was a match with any auto burglaries in the past recent months. He found three cases with a positive match, which included theft of two firearms.
*46 After further investigation, the Appellant was charged with: (1) theft of a firearm on or about September 19, 2002; (2) theft of a firearm on or about September 19, 2002; (3) burglary of a vehicle on or about September 19, 2002; (4) burglary of a vehicle on or about September 27, 2002; (5) burglary of a vehicle on or about October 4, 2002; (6) evading arrest or detention on or about October 10, 2002; (7) resisting arrest on or about October 10, 2002; (8) possession of a usable quantity of marijuana on or about October 10, 2002; (9) burglary of a vehicle on or about October 10, 2002; (10) burglary of a vehicle on or about October 10, 2002; and (11) possession of marijuana on or about June 7, 2003.
At the beginning of his jury trial, Appellant pled guilty to both vehicle burglaries occurring on or about October 10, 2002. Appellant's counsel then presented a motion to suppress evidence obtained on October 10, 2002. After hearing the testimony of Officer Steven McNeill, the trial overruled Appellant's motion. During the testimony of Officer Kennedy, Appellant's counsel also made an oral motion to suppress the evidence seized on June 7, 2002, which was also overruled by the trial court.
A jury heard the testimony of Appellant's arresting officers: Officer McNeill and Officer Venegas; of Detective Faulkenberry; of Officer Augusto Albo, who responded to a auto burglary on September 27, 2002; and of Officer Elias Hernandez, who responded to the auto burglary on October 4, 2002. There was also testimony from two victims of the auto burglaries. Identification Specialist, for the City of Midland, Karen Hare also testified as to the positive identification of Appellant's fingerprints in three of the cases. Crime Lab Investigator Bob Wheeler also testified that the amount of marijuana found in Appellant's pocket on both June 7 and October 10 was of a usable quantity.
The jury also heard the testimony of the Appellant. He testified that he had in fact broken into some vehicles in October of 2002. He testified that he would go from block to block checking for unlocked vehicles. He would only break into a vehicle if it was unlocked, moving on to the next car if it was locked. First, he would travel one side of the block, and then the other, and then finally move on to the next block, following the same procedure. He further testified that he did this three or four times a week. He would steal small items, such as CDs that would fit in his pant pockets, which he would later sell to his friends. He also testified that on June 7, he did in fact have a usable quantity of marijuana on his person, but that on October 10, the quantity was not a usable amount. He also provided testimony regarding the incident on October 10 and the other burglaries he was charged with.
At the conclusion of the trial, the jury found Appellant guilty on all counts, and assessed a punishment of confinement to the Texas Youth Commission for a period not to exceed the time when he turns twenty-one years of age. Appellant timely filed this appeal.
In Issues One, Two, and Six, Appellant challenges the denial of his motion to suppress.[1] Appellant's motion to suppress *47 was seeking to have the evidence seized on June 7, 2002 and on October 10, 2002 and all information obtained on that date to be suppressed on the grounds that the stop was done without a warrant and without probable cause. In evaluating Appellant's argument, we will apply criminal law. See In the Matter of R.S.C., 940 S.W.2d 750, 751-52 (Tex.App.-El Paso 1997, no writ), stating that delinquency proceedings are quasi-criminal in nature and that juveniles are entitled to many of the constitutional protections that are afforded to adult criminal defendants.
A defendant may waive a prior objection to evidence by offering the same evidence or evidence establishing the same facts as trial. In the Matter of R.S.C., 940 S.W.2d at 752, citing Narvaiz v. State, 840 S.W.2d 415, 430 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S. Ct. 1422, 122 L. Ed. 2d 791 (1993); Maynard v. State, 685 S.W.2d 60, 65 (Tex.Crim.App.1985); Nicholas v. State, 502 S.W.2d 169, 174-75 (Tex. Crim.App.1973). Under the principle known as curative admissibility, the admission of improper evidence cannot be asserted as grounds for reversal on appeal where the defendant, on direct examination, gives testimony establishing the same facts as those to which an objection was raised. See Rodriguez v. State, 919 S.W.2d 136, 138 (Tex.App.-San Antonio 1995, no pet.), citing Thomas v. State, 572 S.W.2d 507, 513 (Tex.Crim.App.1976).
Appellant testified at trial regarding the information and evidence he attempted to suppress with his motion. Appellant testified that he was in fact in possession of the marijuana on the night of June 7, 2002 and October 10, 2002, and that he was in possession of the alleged stolen items on October 10, 2002. In providing such testimony, Appellant established facts consistent with those he tried to suppress. Thus, we hold that Appellant has waived such issues on appeal. See Rodriguez, 919 S.W.2d at 138. Appellants Issues One, Two, and Six are overruled.
In Issue Four, Appellant challenges the legal sufficiency of the evidence sustaining the finding that Appellant resisted arrest. In Issue Five, Appellant challenges the legal sufficiency of the evidence proving he evaded arrest.
We have traditionally applied the civil no evidence standard of review to legal sufficiency challenges of juvenile disposition orders. See In the Matter of A.S., 954 S.W.2d 855, 858 (Tex.App.-El Paso 1997, no pet.). In considering the legal sufficiency, we consider only the evidence and inference tending to support the finding under attack and set aside the judgment only if there is no evidence of probative force to support the findings. In the Matter of A.S., 954 S.W.2d at 861; In the Matter of T.K.E., 5 S.W.3d 782, 785 (Tex. App.-San Antonio 1999, no pet.).
At trial, Officer McNeill testified that on October 10, 2002, he was working the night shift, assigned to the patrol division. At approximately 6 a.m., he received a call indicating that a male subject wearing dark clothing was prowling around the residential neighborhood of Crest and Ridgely. The citizen that made the call alleged that the subject was looking through car windows and could be possible armed with a handgun. The caller did not indicated the subject's age or height. At the time Officer McNeill received the call, two other marked units had been dispatched to the area, but he and his partner were working undercover, so they decided to proceed to the area as well.
*48 Officer Venegas drove slowly around the area looking for an individual matching the description. Officer McNeill then observed a male subject wearing dark clothing-black baggy cargo pants, and a long hooded sweatshirt-riding a bicycle. Officer McNeill's partner, stopped the unmarked vehicle, exited the vehicle and approached the subject, identifying herself as a police officer and requesting that he stop. The subject did not stop, but rather looked at Officer McNeill's partner, his eyes got big, he said "Oh shit", and began to pedal faster on his bicycle.
Officer McNeill then approached the Appellant by getting in front of the bicycle; he identified himself as a Midland Police Officer and ordered Appellant to stop. Rather than stopping, Appellant veered to the left, evading him while still riding his bicycle, forcing Officer McNeill to pull him off the bicycle. Officer McNeill asked Appellant why he was trying to escape, but the Appellant continued to try to pull away. Officer McNeill held the Appellant by his arms, but Appellant continued to pull away, until Officer McNeill put him down on the ground.
Officer Venegas, Officer McNeill's partner on the night in question, testified that as she approached the Appellant, she identified herself as a police officer and ordered the Appellant several times to stop. She testified that she was wearing a raid jacket with writing on the back, which was legible in the dark.[2] She also had on a belt gear, her badge, a flashlight, and a radio. She testified that the Appellant did not stop when she asked him to, but continued riding his bicycle. She testified that when Officer McNeill approach the Appellant, he was fighting her, trying to get away. Appellant would not cooperate with the pat down, but rather kept fighting her by swinging his arms in an attempt to hit her, pulling away, using profanity, and not standing still, but rather pushing away from her and Officer McNeill.
Appellant also testified at the trial. Appellant testified that on the night in question, he saw a white van come up to a stop sign and that he stopped-for at least twenty seconds-to let it pass by, but the van did not move, so he took off on his bike. He did not recognize the van or know who was inside. Then as soon as he took off on his bike, a woman jumped out of the vehicle, but he did not hear her say anything or did not know what she said. Then he heard some noise, but he could not make out what Officer McNeill was saying. Officer McNeill then tackled him off his bike.
Appellant testified that he was thinking "What is going on, man? What is going on?" He testified that when Officer McNeill tackled him, he fell on his knees. He then stood up and asked what was going on, but Officer McNeill threw him on the ground. He testified that he thought he was getting jumped and that he was not swinging at the officers. He was trying to get away, but only because he thought he was getting jumped. He testified that it would have been different had they had on a uniform or a badge, but he testified that they looked like civilians, so he did not know who they were. He did not see any writing on the officer's jackets to indicate to him that they were police officers.
Viewing the evidence in the light most favorable to the trial court's finding, we concluded that the evidence was legally sufficient to support the trial court's finding that Appellant evaded and resisted arrest. See In the Matter of A.S., 954 S.W.2d at 861; In the Matter of T.K.E., 5 *49 S.W.3d at 785. Issues Four and Five are overruled.
In Issue Three, Appellant raises a double jeopardy complaint. Specifically, Appellant argues that theft is a lesser included offense of burglary with the intent to commit theft. The charge contained the following:
(1)
Theft of a Firearm
Our law provides that a person commits an offense if he unlawfully appropriates a firearm without the owner's consent with intent to deprive the owner of the firearm.
September 19, 2002
Now, bearing in mind the instructions and definitions contained herein, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of September, 2002 in Midland County, Texas, the juvenile charged in this case did then and there unlawfully, intentionally and knowingly appropriate, by acquiring and exercising control over a firearm, a H & K rifle, without the effective consent of Bryan Vinson, the owner of said property, with the intent to deprive the owner of the said firearm, then you will find the juvenile charged in this case has engaged in delinquent conduct and so say by your verdict.
...
(2)
Theft of a Firearm
Our law provides that a person commits an offense if he unlawfully appropriates a firearm without the owner's consent with intent to deprive the owner of the firearm.
September 19, 2002
Now, bearing in mind the instructions and definitions contained herein, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of September, 2002 in Midland County, Texas, the juvenile charged in this case did then and there unlawfully, intentionally and knowingly appropriate, by acquiring and exercising control over a firearm, a Browning shotgun, without the effective consent of Bryan Vinson, the owner of said property, with the intent to deprive the owner of the said firearm, then you will find the juvenile charged in this case has engage in delinquent conduct and so say by your verdict.
...
(3)
Burglary of a Vehicle
Our law provides that a person commits the offense of burglary of a vehicle if he, unlawfully, intentionally and knowingly, without the effective consent of the owner, enters a vehicle or any part thereof with intent to commit theft.
September 19, 2002
Now, bearing in mind the instructions and definitions previously set out and contained herein, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of September, 2002 in Midland County, Texas, the juvenile charged in this case did then and there unlawfully, without the effective consent of the owners, Bryan Vinson, break into and enter a vehicle or any part of a vehicle with intent to commit theft, then you will find the juvenile charged in this case has engaged in delinquent conduct and so say by your verdict.
*50 Appellant argues that the two counts for theft of a firearm are lesser included offenses of the count for burglary with the intent to commit theft, and that since he was convicted of all three charges, he was subjected to double jeopardy.
Appellant does not indicated in his brief whether he is raising a federal or state double jeopardy claim, so we assume he is raising both federal and state double jeopardy claims. Both the United State and Texas Constitutions protect individuals from multiple punishments for the same offense. See Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex.Crim.App.1990). Conceptually, the state and federal double jeopardy provisions are identical and the Texas Constitution does not afford any different or greater protections in this regard than does the Fifth Amendment. See Stephens v. State, 806 S.W.2d 812, 814 (Tex.Crim.App.1990); Ex parte Arenivas, 6 S.W.3d 631, 633 (Tex.App.-El Paso 1999, no pet.). Since Appellant does not argue that the Texas double jeopardy clause differs from the Fifth Amendment double jeopardy clause, we will review Appellants double jeopardy as only a federal claim. See Hutchins v. State, 992 S.W.2d 629, 630 (Tex.App.-Austin 1999, pet. ref'd, untimely filed).
The double jeopardy clause of the Fifth Amendment of the U.S. Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. CONST. amend. V. This provision applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 2058, 23 L. Ed. 2d 707 (1969); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1110, 112 S. Ct. 1213, 117 L. Ed. 2d 451 (1992). The double jeopardy clause guarantees against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2265, 65 L. Ed. 2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 718, 89 S. Ct. 2072, 2077, 23 L. Ed. 2d 656 (1969); Iglehart v. State, 837 S.W.2d 122, 126-27 (Tex.Crim. App.1992).
Appellant failed to make a timely request, objection, or motion before the trial court on the issue of double jeopardy. See TEX.R.APP.P. 33.1. A double jeopardy claim is forfeited if it is raised for the first time on appeal unless the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000). We must find that Appellant satisfied both prongs of the test to hold he can raise his complaint for the first time on appeal. Roy v. State, 76 S.W.3d 87, 93 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Appellant argues that because his case involves a lesser included offense, and all three counts were before the trial court, and the charge is now before this Court, that the face of the record establishes double jeopardy. We disagree. We do not find an apparent double jeopardy violation on the face to this record.
The determination whether an offense is a lesser included offense under Article 37.09(1) of the Code of Criminal Procedures must be made on a case-by-case basis. Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App.1995). An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. See TEX.CODE CRIM.PROC.ANN. art. 37.09(1)(Vernon 1981). *51 To prove the offense of theft, the State is required to show (1) a person, (2) unlawfully appropriate property, (3) with intent, (4) to deprive owner of said property. See Tex.Pen.Code Ann. § 31.03(a)(Vernon Supp.2004-05).
To prove the offense of burglary with the intent to commit theft, the State must show (1) a person, (2) without owner's consent, (3) broke into or entered a vehicle or any part of a vehicle, (4) with intent, (5) to commit a theft. See Tex.Pen. Code Ann. § 30.04(a)(Vernon 2003). The burglary with the intent to commit theft offense is complete if the burglarious entry is made with the intent to commit a theft. See Garcia v. State, 571 S.W.2d 896, 899 (Tex.Crim.App.1978). It is not necessary to prove that the crime of theft happened to obtain a conviction for burglary with the intent to commit theft, as Appellant was charged with in this case. See id. at 899. Theft is not a lesser included offense of burglary with the intent to commit theft. See id. For this reason, we find that there was no double jeopardy with regard to the theft and burglary offenses. We therefore hold that Appellant failed to preserve his double jeopardy claim and overrule Issue Three.
For the reasons stated above, we affirm the trial court's judgment.
NOTES
[1] Appellant's brief contains the following heading for Issue Six: "The evidence was legally insufficient to sustain a finding of that Appellant committed the offense of possession of marijuana on October 10, 2002." However, other than providing us with the standard for a legal sufficiency review, Appellant provides no analysis, beyond simply stating the standard of review. In the body of his argument, we understand him to be making a challenge to the denial of his motion to suppress and we will address Issue Six accordingly.
[2] Officer McNeill also testified that his partner was wearing a raid jacket with the words Midland Police Department written in big white letters on the back of the jacket. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578951/ | 12 So. 3d 586 (2009)
Larry W. BROWN, Appellant
v.
STATE of Mississippi, Appellee.
No. 2008-CP-00789-COA.
Court of Appeals of Mississippi.
June 30, 2009.
Larry W. Brown, pro se.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
Before LEE, P.J., GRIFFIS and CARLTON, JJ.
*587 GRIFFIS, J., for the Court.
¶ 1. Larry W. Brown appeals the circuit court's denial of his motion for post-conviction collateral relief. He argues that: (1) the circuit court improperly allowed the State to amend the indictment, and (2) he received ineffective assistance of counsel. We find no error and affirm.
FACTS
¶ 2. Brown was indicted for one count of manufacturing a controlled substance marijuana and one count of possession with intent to sell, transfer, or distribute more than one kilogram of marijuana. On November 17, 2005, Brown entered a guilty plea to both counts. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections for each count, with the two sentences to run concurrently. Five years of each count were suspended, and Brown was placed on five years of post-release supervision.
¶ 3. Thereafter, Brown filed his motion for post-conviction collateral relief. The motion was denied. From this ruling, he appeals.
STANDARD OF REVIEW
¶ 4. A circuit court's denial of post-conviction collateral relief will not be reversed absent a finding that the court's decision was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150(¶ 3) (Miss.Ct. App.2002). However, when reviewing issues of law, this Court's proper standard of review is de novo. Brown v. State, 731 So. 2d 595, 598(¶ 6) (Miss.1999).
ANALYSIS
1. Amended Indictment
¶ 5. Brown argues that the circuit court improperly allowed the State to amend the grand jury indictment against him. Specifically, he contends that the amendment was substantive in nature and should have been determined by the grand jury, not the circuit court. The State responds that the errors corrected by the amendment were merely clerical in nature and did not affect the substance of the charges in the indictment.
¶ 6. Our supreme court has held that "a guilty plea waives any claim to a defective indictment." Harris v. State, 757 So. 2d 195, 197(¶ 9) (Miss.2000) (citing Jefferson v. State, 556 So. 2d 1016, 1019 (Miss.1989)). Brown pleaded guilty to both counts subsequent to the amendment of his indictment. He thereby waived the assignment of error that he now asserts. Such waiver notwithstanding, we find that the amendment of his indictment was valid.
¶ 7. Brown's original indictment was labeled a multi-count indictment under Mississippi Code Annotated section 99-7-2 (Rev.2007). Count I of the original indictment charged that Brown:
unlawfully, willfully, feloniously, knowingly and intentionally, without authority of law, manufacture[d] a controlled substance, to-wit 2,092.7 grams of marihuana, which is a Schedule I controlled substance as provided for by Section 41-29-113(c)(12) of the Mississippi Code of 1972, Annotated, as amended, said amount of marihuana being more than one (1) kilogram, in violation of the provisions of Section 41-29-139(a)(1) of the Mississippi Code of 1972, Annotated, as amended, which offense is punishable by imprisonment not exceeding thirty (30) years and by a fine of not less than One Thousand Dollars ($1,000.00) nor more than One Million Dollars ($1,000,000.00) or both,....
¶ 8. The indictment then listed a second, separate count; however, the second count was erroneously labeled Count I instead of Count II. That count charged that Brown:
*588 unlawfully, willfully, feloniously, knowingly and intentionally, without authority of law, have in his/her possession a certain controlled substance, to-wit 1,183.9 grams of marihuana, which is a Schedule I controlled substance as provided for by Section 41-29-113(c)(12) of the Mississippi Code of 1972, Annotated, as amended, said amount of marihuana being more than one (1) kilogram, with the unlawful and felonious intent to sell, transfer or distribute the said controlled substance, in violation of the provisions of Section 41-29-139(a) of the Mississippi Code of 1972, Annotated, as amended, which offense is punishable by imprisonment not exceeding thirty (30) years and by a fine of not less than One Thousand Dollars ($1,000.00) and not exceeding One Million Dollars ($1,000,000.00) or both,....
¶ 9. Brown filed a motion to dismiss based on certain discrepancies in the indictment. The State filed a motion to amend the indictment. A hearing was held by the circuit court on both motions.
¶ 10. The error contained in the indictment was the statement that marijuana is a Schedule I controlled substance under Mississippi Code Annotated section 41-29-113(c)(12) (Rev.2005). In fact, the correct citation is section 41-29-113(c)(14). The citation used in the indictment refers to the Schedule I controlled substance ibogaine. Thus, in both counts, the indictment referred to the substance as marijuana but cited the statute section referencing ibogaine.
¶ 11. The circuit court allowed the State to amend the indictment to correct the erroneous citation, finding that the language in the indictment was sufficient to place Brown on notice of his charges such that he could prepare his defense. We agree. As the State argues, the corrected citation did not change the substance of the crime charged or affect Brown's defense strategy; thus, the circuit court did not err by allowing the amendment and denying Brown's motion to dismiss.
¶ 12. This very issue was addressed in Cowan v. State, 399 So. 2d 1346, 1351 (Miss.1981), where the supreme court held that it was proper to allow the State to amend an indictment containing the incorrect citation for the charged offense. The citation to the applicable code section was surplusage and unnecessary when the charged offense was certainly and substantially described. Id.
¶ 13. Furthermore, "[a]ll indictments may be amended as to form but not as to the substance of the offense charged." URCCC 7.09. The supreme court has held that:
a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case. The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.
Greenlee v. State, 725 So. 2d 816, 822(¶ 10) (Miss.1998) (internal citations and quotation omitted).
¶ 14. Brown's original indictment clearly stated that the controlled substance at issue was marijuana. At his plea hearing, Brown admitted under oath that he was growing marijuana at his residence. Brown was fully aware that bags of marijuana, marijuana plants, and other items used to grow and package marijuana had been confiscated from his home. We find that the corrected citation did not alter the essential facts of the offense, nor did it *589 prejudice Brown's defense. Accordingly, this issue is without merit.
2. Ineffective Assistance of Counsel
¶ 15. Brown next asserts that he would not have entered a guilty plea but for the errors of his counsel. He claims that he lied to the circuit judge during his plea hearing because his counsel told him that he would receive a sentence of sixty years if he did not plead guilty. He further asserts that his counsel advised him that he would receive probation in exchange for a guilty plea.
¶ 16. To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The burden of proof rests with the defendant to show both prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. 2052. To overcome this presumption, "[t]he defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. In cases involving post-conviction collateral relief, "where a party offers only his affidavit, then his ineffective assistance claim is without merit." Vielee v. State, 653 So. 2d 920, 922 (Miss.1995).
¶ 17. Brown offers nothing more than his own assertions to prove any deficiency on the part of his counsel. In fact, his statements made under oath at his plea hearing wholly contradict the assertions he now brings on appeal. He testified that he was satisfied with the work of his counsel, and his counsel reviewed his plea petition with him that he signed and submitted to the circuit court. Accordingly, this issue is without merit.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578976/ | 12 So. 3d 266 (2009)
D.H., the Mother, in the Interest of J.R., a child, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
No. 1D08-3082.
District Court of Appeal of Florida, First District.
May 19, 2009.
Rehearing Denied June 26, 2009.
*267 Edith E. Sheeks and Octavia Edwards, Assistant Regional Counsels, Office of Regional Conflict Counsel, Tallahassee, for Appellant.
Jennifer S. Paullin, Appellate Counsel for Guardian ad Litem Program, Orlando; and Anthony C. Musto, Special Counsel for Florida Department of Children & Families.
BROWNING, J.
D.H. (Appellant), the mother of three-year-old J.A.R., appeals the circuit court's final order terminating her parental rights and committing the child to placement in the custody of Appellee, the Florida Department of Children and Families (Department), for the purpose of adoption. Appellant seeks a reversal of the termination order and a remand for further proceedings before a different trial judge based on allegations 1) that the trial court erred as a matter of law by denying Appellant's motion to disqualify the judge; 2) that the court abused its discretion by denying a motion to continue the proceedings for 45 days to allow Appellant to have another psychiatric evaluation; and 3) that the evidence completely contradicts the court's conclusion that Appellant did not substantially comply with her case plan despite Department's making reasonable efforts to assist her toward reunification with the child. Because we conclude that the "disqualification" issue is dispositive and the trial court reversibly erred by denying the motion for disqualification, we are constrained to reverse the order terminating Appellant's parental rights and to remand for further proceedings in the circuit court in front of a different judge. Our disposition of the appeal on this ground effectively moots the issue concerning Appellant's lack of time to submit to another psychiatric evaluation and the denial of the motion for continuance.
Appellant herself was adjudicated dependent and was a minor when the child in question was born. The child was adjudicated dependent in 2006 and placed in Department's custody for appropriate foster care placement. The trial court approved a child welfare case plan in 2006 with the goal of reunification. More than one year later, Department initiated proceedings against Appellant pursuant to section 39.806(1), Florida Statutes (2007), which states several grounds for terminating parental rights. Grounds for termination may be shown:
[when] the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.
§ 39.806(1)(c), Fla. Stat. (2007). Department's petition for termination alleged that Appellant's continuing involvement in the parent-child relationship endangered the child's safety and well-being, in that, irrespective of the provision of services, Appellant failed to understand the appropriate parenting skills necessary to care for her child. Department alleged that the evidence would prove that Appellant is incapable of meeting her child's daily needs. Specifically, Department contended that Appellant's intellectual deficits, mixed personality disorder, and parenting skills deficiencies created an unacceptable risk of abuse and/or neglect of her child.
Section 39.806(1)(e)1, Florida Statutes (2007), sets out the following circumstances *268 as another proper ground for termination of parental rights:
When a child has been adjudicated dependent, a case plan has been filed with the court, and:
The child continues to be abused, neglected, or abandoned by the parents. In this case, the failure of the parents to substantially comply for a period of 12 months after an adjudication of the child as a dependent child or the child's placement into shelter care, whichever came first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due either to the lack of financial resources of the parents or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12-month period begins to run only after the child's placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the approval by the court of a case plan with a goal of reunification with the parent, whichever came first....
Department's petition alleged that, notwithstanding the approval of a child welfare case plan for Appellant with the goal of reunification, the child continued to be abused, neglected, or abandoned by Appellant, in that she had failed to comply substantially with the case plan in five material respects. The petition stated that Department would show, using the criteria set forth in section 39.810(1)-(11), Florida Statutes (2007), that it is in the child's manifest best interests for Appellant's parental rights to be terminated and for the child to be permanently committed to Department's custody for subsequent adoption.
On May 1, 2008, the child's father executed a surrender, consent, and waiver of notice for termination of his parental rights pursuant to section 39.0806(1)(a), Florida Statutes (2007). Only Appellant's parental rights are involved in this appeal. The trial court scheduled a pretrial conference for May 13, 2008, and the adjudicatory hearing on the termination petition for May 27, 2008. On May 6, 2008, Appellant's counsel filed a specific discovery request to Department as part of an attempt to locate a copy of Appellant's psychiatric evaluation. At the May 13 pretrial conference, Department's counsel acknowledged the discovery request and admitted that the evaluation could not be located. The attorneys informed the court that Dr. Mandoki, who had performed the evaluation two years earlier, did not retain a copy and had no independent recollection of the evaluation or results. Appellant's counsel considered this missing evaluation to be a significant item of evidence.
On May 14, 2008, counsel for Appellant filed a motion for a 45-day continuance to allow time to arrange an independent, updated psychiatric evaluation of Appellant and to allow the presentation of witnesses at the adjudicatory hearing who could report on Appellant's current psychiatric status. The lawyers were allowed to argue in support of, or against, the motion. Concluding that the Florida Legislature has mandated the expeditious handling of proceedings to establish permanency for children in dependency and that Appellant's counsel's office had not used due diligence and shown good cause, the trial court orally denied the motion for continuance. See § 39.0136(1), (2)(b)1. & (3), Fla. Stat. (2007); R.S. v. Dep't of Children & Families, 956 So. 2d 1242 (Fla. 4th DCA 2007). At that same pretrial conference, the trial judge noted on the record that he knows Appellant, who "has been in the foster care system herself for years," that she has had "very competent legal representation," and *269 that she is "a mother, well known to have psychiatric and psychological deficits." With these comments, the conference concluded.
On May 22, 2008, counsel for Appellant filed a timely, sworn motion to disqualify the trial judge essentially on three main grounds. First, the motion alleged Appellant's belief that she would not get a fair adjudicatory hearing because the judge, having presided repeatedly over Appellant's earlier proceedings, was biased or prejudiced against her based on his knowledge of Appellant's and her child's history in the dependency system. § 38.10, Fla. Stat. (2007) ("Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the appellant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified."). Second, Appellant alleged that the judge's remarks at the pretrial conference suggested that the court had prejudged her mental health status and predetermined the merits of the case before hearing all the evidence, compelling his removal under Florida Rule of Judicial Administration 2.330(d)(1) (requiring a motion for disqualification to show "that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge"). See also § 38.10, Fla. Stat. (2007). Third, the motion alleged that the judge "is a material witness for or against one of the parties to the cause," requiring his disqualification under Florida Rule of Judicial Administration 2.330(d)(2) (requiring the motion to show "that the judge before whom the case is pending ... is a material witness for or against one of the parties to the cause"). See also § 38.02, Fla. Stat. (2007). A "material witness" is one who "gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify." Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934); Rodriguez v. State, 919 So. 2d 1252, 1276 (Fla.2005). In support of this third ground, the motion alleged that, given the denial of the motion for continuance, the trial judge "may be a material witness to establish the existence of a missing psychiatric evaluation performed on the Mother during a previous case involving the Mother before this Court." Further, the motion alleged that Appellant may require the judge's testimony concerning Appellant's prior legal representation and another of Appellant's children.
Whereas the statutes provide the substantive right to move for disqualification, the rules set out the procedural requirements. See Cave v. State, 660 So. 2d 705, 707 (Fla.1995); MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1334 (Fla.1990); Livingston v. State, 441 So. 2d 1083, 1086-87 (Fla.1983). In Douglass v. Douglas, 633 So. 2d 1166 (Fla. 1st DCA 1994), we stated:
Section 38.02 contemplates that the judge will determine the truth of the suggestion to disqualify. This is in contrast to a motion for disqualification for prejudice under section 38.10 where the judge may not pass on the truth of the allegations.
Id. at 1167. Florida Rule of Judicial Administration 2.330(f) circumscribes the trial court's consideration of such motions as follows:
(f) Determination Initial Motion. The judge against whom an initial motion to disqualify under subdivision *270 (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If the motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.
"A verified motion for disqualification must contain an actual factual foundation for the alleged fear of prejudice." Fischer v. Knuck, 497 So. 2d 240, 242 (Fla.1986); see Scholz v. Hauser, 657 So. 2d 950, 951 (Fla. 5th DCA 1995). The facts alleged in the motion must be taken as true by the trial judge when ruling on the motion. See Sleiman v. Sleiman, 975 So. 2d 533, 535 (Fla. 1st DCA 2008). The trial court has a duty to determine whether the factual allegations are "reasonably sufficient to create a well founded fear that the moving party would not receive a fair trial." Kowalski v. Boyles, 557 So. 2d 885, 886 (Fla. 5th DCA 1990); see Rodriguez, 919 So.2d at 1274; MacKenzie, 565 So.2d at 1335; Paletti v. Corbin, 717 So. 2d 1056, 1056 (Fla. 1st DCA 1998) (concluding that allegations of bias in motion for disqualification "were sufficient to establish that a reasonably prudent person would fear that he would not receive a fair and impartial hearing before the judge"). A subjective fear of bias is insufficient to justify granting the motion; rather, the fear must be objective. See Puckett v. State, 591 So. 2d 326, 327 (Fla. 5th DCA 1992); Fischer, 497 So.2d at 242.
It was not until May 27, 2008, the date when the adjudicatory hearing was scheduled for just minutes later that morning, that the trial court filed its order denying the motion for disqualification and provided a copy of the written order to counsel. The court correctly stated that neither prior rulings against a party nor the court's familiarity with the case and evidence from earlier proceedings, by itself, is a legally sufficient ground for disqualification. See Petition of Geisser, 554 F.2d 698, 706-07 (5th Cir.1977) (concluding that trial judge who had accepted accused's guilty plea was not required to disqualify himself as a material witness when the accused later petitioned for a writ of habeas corpus seeking specific enforcement of the plea bargain); Jackson v. State, 599 So. 2d 103, 107 (Fla.1992); Heier v. Fleet, 642 So. 2d 669 (Fla. 4th DCA 1994); K.H. v. Dep't of Health & Rehabilitative Servs., 527 So. 2d 230, 232 (Fla. 1st DCA 1988) (recognizing the well-established principle that "adverse judicial rulings do not constitute sufficient grounds to disqualify a judge" and affirming denial of legally insufficient motion for disqualification alleging that the trial court, in a termination of parental rights proceeding, was prejudiced against movant/mother because the court had presided over numerous proceedings involving movant and had found movant's child to be dependent before directing that permanent commitment proceedings commence); Claughton v. Claughton, 452 So. 2d 1073, 1074 (Fla. 3d DCA 1984); Wilisch v. Wilisch, 335 So. 2d 861, 865-66 (Fla. 3d DCA 1976). Responding directly to the allegations as to why the trial judge may be a material witness at the adjudicatory hearing, the court denied that Appellant has personal knowledge concerning what the judge knows and remembers about the missing psychiatric evaluation and about Appellant's prior legal representation. Immediately before the adjudicatory hearing commenced, Appellant's counsel orally moved to amend the pretrial stipulation to allow the trial judge to be called as a witness for Appellant; the motion was denied without discussion.
*271 We have de novo review of the order denying the motion for disqualification. See Arbelaez v. State, 898 So. 2d 25, 41 (Fla.2005); State v. Ballard, 956 So. 2d 470, 472 (Fla. 2d DCA 2007). "If a judge attempts to refute the factual assertions in a motion for disqualification, he or she is deemed to have taken an adversarial role in the matter, which itself warrants disqualification." Frost v. Ward, 622 So. 2d 597, 598 (Fla. 4th DCA 1993); see Bundy v. Rudd, 366 So. 2d 440, 442 (Fla.1978); Hill v. Feder, 564 So. 2d 609, 609 (Fla. 3d DCA 1990). By attempting to refute the factual allegations as to why the trial court may be biased and the only material witness who could fill in the gaps created by the missing psychiatric evaluation, the judge did more than determine the legal sufficiency of the motion for disqualification, and thereby created the "adversarial position" establishing grounds for him to grant the motion as a matter of law. See Cave, 660 So.2d at 708; MacKenzie, 565 So.2d at 1339; Martin v. State, 804 So. 2d 360, 364 (Fla. 4th DCA 2001); Hill, 564 So.2d at 609; Scholz, 657 So.2d at 951. We reject the suggestion that the circuit judge was merely acknowledging "the status of the record," which occurred in Kowalski, 557 So.2d at 887. Cf. Niebla v. State, 832 So. 2d 887, 888 (Fla. 3d DCA 2002) (finding no basis for disqualifying trial judge who classified defendant as a habitual violent offender and imposed 13 consecutive life terms for multiple felonies, where the court allegedly had prejudged the sentencing phase by asking the prosecutor, at a hearing on defendant's Florida Rule of Criminal Procedure 3.800(b) motion, what was the maximum permissible sentence, and the judge did nothing more than "state the status of the record" in orally denying the motion for disqualification).
Appellant notes an alternative basis for granting the motion. Unquestionably, Appellant's history of mental health deficits and her current mental health status were key components of Department's decision to initiate proceedings to protect the child and to provide services to Appellant to help mitigate and/or eliminate these deficiencies and assist her in complying substantially with the case plan. Department's suggestion that Appellant's mental deficits and psychiatric history "were not at issue in this case" is disingenuous, in that the main controversies at the termination hearing related to the nature and extent of Appellant's mental deficits and the question of whether, through the provision of services by Department, she currently was capable of substantially completing her case plan and functioning as an informed, safe, and effective parent of the child in question. Appellant's counsel's acknowledgment of Appellant's adverse mental health circumstances was the starting point, not the end, of the determination of whether one or more grounds for termination exist. At the pretrial conference, the judge's remarks that Appellant's legal representation had been very competent and that Appellant was well-known to have psychiatric and psychological deficits would have caused a reasonably prudent person to have a well-founded fear that the court was biased or predisposed against Appellant and had formed an opinion about her psychiatric or psychological status (and, by inference, about Appellant's ability to parent the child safely) before the evidence was presented at the adjudicatory hearing. See Ballard, 956 So.2d at 473 (concluding that the disqualification of a circuit judge presiding over a first-degree murder case of a sexagenarian defendant was warranted, where judicial comments at a pretrial status conference regarding the suitability and efficiency of the death penalty for a defendant of senior years could reasonably be construed as *272 showing the court had prejudged the decision regarding an appropriate sentence, and the judge's instructions to have the State re-evaluate its intent to seek the death penalty created the appearance the court would disregard a death recommendation); Holmes v. Goldstein, 650 So. 2d 87 (Fla. 4th DCA 1995).
"[E]very litigant is entitled to nothing less than the cold neutrality of an impartial judge." State v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939); see Seay v. State, 286 So. 2d 532, 544 (Fla.1973); Brown v. State, 885 So. 2d 391, 393 (Fla. 5th DCA 2004). The trial court reversibly erred by denying the motion for disqualification. For these reasons, we are constrained to REVERSE the order terminating parental rights and to REMAND for further proceedings before a different trial judge.
We take this opportunity to address the Guardian Ad Litem's contention that, given the deleterious effect upon children resulting from delays in permanent placement, Appellant should have sought immediate review of the denial of her motion for disqualification by the usual means, a petition for the "extraordinary remedy" of a writ of prohibition. See Dep't of Children & Family Servs. v. J.C., 847 So. 2d 487, 491 (Fla. 3d DCA 2002); Siegel v. State, 861 So. 2d 90, 92 (Fla. 4th DCA 2003); Hill, 564 So.2d at 609; Philip J. Padovano, Florida Appellate Practice § 28.3 at 690 n. 11 ("Prohibition is an appropriate remedy to review the denial of a motion to disqualify the judge."). First, we note that in our decision in K.H., 527 So.2d at 231-32, the appellant/mother challenged the denial of the motion for disqualification in her plenary appeal of the final order terminating her parental rights, and we addressed the merits of the trial court's ruling on the "disqualification" issue before affirming that ruling. Thus, a petition for writ of prohibition is not the exclusive avenue for pursuing relief from the denial of a motion for disqualification. Second, given the exigencies of this case apparently, the trial court delivered the denial order to counsel just minutes before the termination hearing was scheduled to begin we believe that Appellant's decision to proceed with the termination hearing rather than delay the proceedings further by seeking a writ of prohibition, is reasonable under the particular circumstances. We find no procedural bar (nor have the appellees cited one) to our consideration of this issue on plenary appeal. See K.H.
REVERSED and REMANDED for further proceedings in front of a different trial judge.
BENTON, J., concurs; KAHN, J., concurs with opinion.
KAHN, J., concurring with opinion.
I concur in the judgment of the court based upon the narrow principle articulated in the majority opinion that a trial judge may not attempt to refute the factual assertions in a motion for disqualification. I am not persuaded by the judge's remarks about appellant's history. The reality on the ground of dependency courts dictates that many judges will have had protracted prior experience with those unfortunate parents and children who come before the judge. Because this case can be decided on the narrow ground that the trial judge improperly attempted to refute the allegations of the motion, I would go no further. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579000/ | 12 So. 3d 253 (2009)
In the Interest of J.P., a child.
J.P., Petitioner,
v.
Department of Children and Family Services, Guardian Ad Litem Program, and P.S., Respondents.
No. 2D08-5486.
District Court of Appeal of Florida, Second District.
May 8, 2009.
*254 Charles Michael Kelly, Bradenton, for Petitioner.
Jeffrey Dana Gillen, Statewide Appeals Director, and David G. Taylor, Children's Legal Services, West Palm Beach, for Respondent Department of Children and Family Services.
Jennifer S. Paullin, Appellate Counsel, Orlando, for Respondent Guardian ad Litem Program.
Mira Staggers White, Murdock, for Respondent P.S.
WALLACE, Judge.
J.P. (the Father) is the father of the minor child, J.P. The Father petitions this court for a writ of certiorari to review the circuit court order that granted P.S.'s motion to intervene as a party. P.S. (the Maternal Grandmother) is the child's maternal grandmother. Because a grandparent cannot intervene as a party in a dependency proceeding, we grant the petition and quash the circuit court's order.
During the dependency proceeding, the circuit court granted the Maternal Grandmother's motion to intervene as a party. In his petition for certiorari review, the Father argues that the circuit court's order should be quashed because the Maternal Grandmother could intervene as a participant in the dependency proceeding, but not as a party. The Department of Children and Family Services (DCF) correctly concedes error based on J.L. v. G.M., 687 So. 2d 977 (Fla. 4th DCA 1997).
A petition for writ of certiorari is appropriate to review an order granting a grandparent's motion to intervene as a party in a dependency proceeding. Id. at 977. The jurisdictional requirements for certiorari review are met in this case because the circuit court's order may reasonably cause material injury of an irreparable nature. See id. (finding that orders granting a grandparent's motion to intervene as a party would interfere with [the parents'] parental rights, [and] also with the actions deemed necessary by [DCF] to prevent risk to the child while the dependency case is pending). Thus we turn our attention to whether the circuit court departed from the essential requirements of the law.
In dependency proceedings, a party is defined as the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child. 39.01(50), Fla. Stat. (2007); see also Fla. R. Juv. P. 8.210(a). The plain language of the statute does not include grandparents within the definition of a party. Here, as in J.L., the circuit court
departed from the essential requirements of the law by allowing persons who do not fall within the definition of "parties" to intervene. The granting of party status to these relatives was also contrary to Florida's strong public policy against unwarranted interference with *255 the parenting decisions of an intact family unit.
687 So.2d at 977-78.
Accordingly, we grant the Father's petition for writ of certiorari and quash the circuit court's order. On remand, the circuit court may consider whether the Maternal Grandmother should be allowed to intervene as a participant in accordance with section 39.01(49) and Florida Rule of Juvenile Procedure 8.210(b).
Petition granted, order quashed, and case remanded.
VILLANTI, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578991/ | 12 So. 3d 1271 (2009)
Jeffrey M. KING, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-3553.
District Court of Appeal of Florida, Fifth District.
July 10, 2009.
*1272 James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
COBB, W., Senior Judge.
The appellant, Jeffrey Michael King, was convicted of aggravated assault on Jeffrey Lee King in violation of section 784.021(1), Florida Statutes (2007), and of animal cruelty in the death of a dog in violation of section 828.12(2), Florida Statutes (2007).[1] The charges arose as the result of an altercation between JMK and King at the latter's home.
At trial there were few conflicts in the testimony as to the factual events. JMK did not testify. King's version was that he forcefully ejected JMK from his home after an argument. Apparently King's dog, an Akita and German Shepherd mix, went outside of the home at the same time. JMK's teenage son, Kyle, who was staying at King's home with his mother, was also present during the incident. Both King and Kyle testified that the dog had never bitten anyone and did not growl or bark at JMK inside the house. A man named Burke, who had driven JMK to the home, was parked outside in his SUV waiting for him.
Some thirty seconds after King had closed the door behind JMK, he and Kyle heard the dog yelp outside. King opened the front door and the dog, whimpering and dripping blood from a chest wound, came limping back into the house and died within a matter of minutes. None of the witnessesKing, Kyle, or Burkeheard any disturbance prior to the dog's yelp.
After letting the dog back into the house, King went outside and approached Burke's vehicle. JMK was sitting in the passenger side of the SUV with the door closed and the window rolled up. King angrily struck the windshield with his fist and yelled at JMK to get out of the vehicle. The testimony of King and Burke was in conflict as to whether the SUV was stationary or backing up at this point in time. It is undisputed, however, that at that point JMK brandished an open pocket knife with a four or five inch blade and asked King, "[Y]ou want some too." King testified that he was in fear that JMK would exit the vehicle and use the knife on him. JMK then told Burke to leave, and they drove away.
JMK raises three issues on appeal, challenging: (1) the trial court's rejection of his request for a jury instruction on misdemeanor animal cruelty as a necessary lesser included offense of felony animal cruelty; (2) the trial court's refusal to charge the jury on self-defense in respect to the animal cruelty count; and (3) the trial court's denial of his motion for judgment of acquittal as to aggravated assault perpetrated against King.
The first issue involves construction of section 828.12, Florida Statutes, which provides in relevant part:
(1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of *1273 the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.
(2) A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.
§ 828.12(1)-(2), Fla. Stat. (2007). Subsection (1), the misdemeanor provision, criminalizes the unnecessary killing of an animal. Subsection (2), the felony provision, proscribes an intentional act resulting in an animal's cruel death. The Florida Standard Jury Instructions lend no support to appellant's argument. See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-03, 976 So. 2d 1081, 1096 (Fla.2008) (listing no lesser included offenses for felony animal cruelty); Welsh v. State, 850 So. 2d 467, 469 (Fla.2003) (quoting Welsh v. State, 816 So. 2d 175, 176-77 (Fla. 1st DCA 2002)). As pointed out by the State, it is conceivable that an animal could be necessarily killed in a cruel manner; this would violate subsection (2) of the statute (felony) but not subsection (1) of the statute (misdemeanor). See State v. Wimberly, 498 So. 2d 929, 932 (Fla.1986) ("A `necessarily lesser included offense' is, as the name implies, a lesser offense that is always included in the major offense.") Accordingly, we find no merit in the appellant's argument in regard to a lesser included offense.
The second issue raised by the appellant presents more difficulty. We believe the case law supports his argument that he was entitled to a jury instruction on the issue of self-defense in regard to the animal cruelty charge. There was some evidence, albeit marginal, of self-defense. See Sipple v. State, 972 So. 2d 912, 915-16 (Fla. 5th DCA 2007); Wright v. State, 705 So. 2d 102, 104-05 (Fla. 4th DCA 1998); Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA 1972).
JMK did not testify on his own behalf so there was no direct evidence of the physical encounter between him and the dog. The only trial evidence indicating that King's dog bit JMK came in the form of testimony from one Dr. Mammone, who saw puncture marks on JMK's lower left thigh two weeks after the incident. Dr. Mammone opined that the injury was consistent with JMK's statement to him that he had been bitten by a dog. Despite the paucity of evidence in regard to the physical encounter between JMK and the dog, we believe the trial court should have given the requested instruction. A defendant is entitled to a jury instruction on the theory of his defense if there is any evidence in the record to support it. Arthur v. State, 717 So. 2d 193, 194 (Fla. 5th DCA 1998). Therefore, the appellant is entitled to a new trial on the charge of animal cruelty.
In respect to the third issue, we have no difficulty in rejecting JMK's contention that he could not be guilty of aggravated assault because he did not have the apparent ability to carry out his threat to knife King since the two were separated by the door and window of the SUV in which JMK was sitting. JMK's reliance on our opinion in L.C. v. State, 799 So. 2d 330 (Fla. 5th DCA 2001), is unjustified. In that case, the putative victim was separated from the threatening juvenile offender by a locked apartment door and there was no attempt or apparent ability to enter on the part of the defendant. All the victim had to do to avoid danger was simply stay inside behind a locked door and call the police, which she did.
In the instant case, the victim King was outside his home and it was in JMK's control whether to exit the vehicle and *1274 attack King, who was standing within a few feet of the vehicle. The State rightly contends there was sufficient evidence that the victim in this case was reasonably put in fear of imminent violence from the knife-wielding defendant who had just stabbed King's dog. See Willard v. State, 386 So. 2d 869 (Fla. 1st DCA 1980).
We therefore affirm the appellant's conviction for aggravated assault. We reverse his conviction for animal cruelty and remand for retrial of that charge.
AFFIRMED in Part; REVERSED in Part; and REMANDED.
EVANDER and TORPY, JJ., concur.
NOTES
[1] Given the similarity of the names of the defendant below (Jeffrey Michael King) and the putative victim of the aggravated assault (Jeffrey Lee King) we will refer to them respectively as JMK (or appellant) and King. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580285/ | 45 S.W.3d 556 (2000)
Marcia Susan TALLENT
v.
Kenneth Allen CATES.
Court of Appeals of Tennessee, Eastern Section, at Knoxville.
June 27, 2000.
Opinion Denying Rehearing July 13, 2000.
Permission to Appeal Denied February 20, 2001.
*557 Christopher J. Oldham, Knoxville, for appellant, Marcia Susan Tallent.
William A. Mynatt, Jr., Knoxville, for appellee, Kenneth Allen Cates.
Permission to Appeal Denied by Supreme Court February 20, 2001.
OPINION
SWINEY, J., delivered the opinion of the court, in which GODDARD, P.J., and SUSANO, J., joined.
Mother and Father have one child, born June 26, 1978. They never married. *558 Mother filed this URESA Petition to establish paternity and set child support on May 15, 1997, after the child had reached majority. The Juvenile Court ordered Father to pay $35,351 in retroactive child support, to be apportioned between the Mother, the child, and the Tennessee Department of Children's Services. In this appeal, Mother says the award is a downward deviation from the Child Support Guidelines in three respects, and she appeals on that basis, as well as on the Trial Court's method of computation of the amount due and the manner of payment ordered. She also argues that the Trial Court failed to award her post-judgment interest as provided in T.C.A. § 47-14-121. We affirm the Trial Court's Judgment as to the amount of retroactive child support due and remand the case to the Trial Court for the award of post-judgment interest and modification of the payment plan to address the addition of post-judgment interest and achieve payment of this judgment within a reasonable period of time.
Background
Marcia Susan Tallent ("Mother") filed two Petitions seeking a determination of paternity and payment of child support during the minority of her child. She says Kenneth Allen Cates ("Father") was not served with the Petitions because she could not find him. Mother filed this third Petition, styled "Petition for Paternity," under the Uniform Reciprocal Support Enforcement Act ("URESA"), on May 15, 1997. Mother and the child reside in Knox County. Father is a resident of Stanley, North Carolina. By the time this Petition was filed, the child had reached majority, and Mother sought retroactive child support as well as a declaration of paternity.
The case was first heard by a Knox County Juvenile Court Referee on September 15, 1997. By that time, Father's paternity had been established by DNA testing, and at that hearing, the parties stipulated paternity. The child having reached majority, the issues of custody, visitation and current child support were moot. The only issues before the Referee were whether retroactive child support should be awarded, and if so, how much and to whom, and how any retroactive support should be paid. The proof showed that Father made no contributions to the financial support of the child during the child's minority and that Mother received Aid to Families with Dependent Children ("AFDC") for thirty months during that time, with a total of $4,137 in AFDC payments having been made. Mother submitted affidavits reflecting her reconstruction of her household monthly expenses from the child's birth until emancipation. We have no transcript of the hearing and no statement of the evidence, but the record before us does contain the Juvenile Court Referee's detailed findings of fact indicating, among other things, that the child testified that her living expenses were borne by her maternal grandparents during some of her minority and that the rent Mother claimed she owed to those grandparents "was not actually paid." These facts are uncontested on appeal.
The Referee's factual determination of Father's income during the child's minority is contested. The evidence before the Referee as reflected in the Referee's findings of fact was that Father earned $2.65 per hour at the time of the child's birth in 1978 and continued to work for minimum wage until 1982, when he went to work for Piedmont Corporation for $6.25 per hour. The Referee also had evidence that Father was employed by U.S. Air at $10.25 per hour by 1989 and that he earned $25.00 per hour at the time of the hearing. On April 25, 1985, Father's second child was *559 born, and that child has remained in Father's physical custody since birth.
With that evidence, the Referee made a detailed and comprehensive annual calculation for each of the 18 years of the child's minority, including the Mother's monthly income and expenses, the Father's monthly income, and the amount of child support dictated by the Child Support Guidelines. The Referee included in that calculation the amount Mother received from AFDC and amounts known to have been contributed or paid by the maternal grandparents. The Referee then found:
Fairness requires some consideration of the father's second child, chronologically, who was his first child legally. After all, the guidelines presume the custodian provides the same percentage of income for support as that percentage provided by the non-custodian. Guidelines 1240-2-4-.03(2). Equity requires deviation from the guidelines to allow the father here the same presumption, that he expended 21% of his net income to support the child in his household. Thus, the computation of support is according to this formula: monthly net-guidelines support for child in household = adjusted net; adjusted net × 21% = support for child here. This formula results in a deviation from the guidelines sum of $191.00 per month to the amount of $149.50 per month for the period May 1984 through 1988.
Next, the Referee applied this Court's instruction in State ex rel Grant v. Prograis, 979 S.W.2d 594 (Tenn.Ct.App.1997), which discusses the method of calculation in cases such as this:
A special situation is presented where the income of the non-supporting parent was sufficient to provide a higher standard of living than the supporting parent was able to provide. In this situation, it would be unjust to limit the duties of the non-supporting parent to the ability of the supporting parent. It would also be unjust to reimburse the supporting parent for that which was not furnished.
Under these special circumstances ... part of the retroactive support should be awarded to the mother to reimburse her for the support supplied by her in excess of her apportioned duty. If, because the mother was unable to support the child according to the income of the father, the child was deprived of the standard or level to which she was entitled, then the child doubtless suffered a deprivation of lasting effect for which the child should receive compensation.
If, upon remand, the court finds the situation to be as above suggested, then the award of retroactive support should be divided. First, the wife should be reimbursed for the cost of furnishing more support than she had a duty to support. The remainder of the retroactive support should be awarded to the child for whose benefit the proceeding initiated.
State ex rel. Grant v. Prograis, 979 S.W.2d 594, 601 (Tenn.Ct.App.1997). Based on that holding, the Referee found that after 1988, Father's income was substantially higher than Mother's, and therefore his obligation to support the child was greater than Mother's. However, Mother was not entitled to reimbursement for support she did not actually provide. The Referee determined that, under Grant v. Prograis, supra, "the difference between the father's annual child support and the sum owed the mother is the amount the child is entitled to."
From all of this, the Referee determined that the total retroactive support obligation of the Father was $35,351. Of that total, Mother was awarded $27,234; the child was awarded $3,980; and the State of Tennessee was awarded $4,137 to reimburse *560 the AFDC payments. The Referee ordered Father to pay the arrearage at the rate of $300 per month, with Mother receiving $200, the child $50 and the State of Tennessee $50 monthly.
On April 9, 1999, upon Petition of the Mother, the Referee ordered "a re-hearing de novo before the Judge of the Juvenile Court." The record indicates that Father obtained counsel and filed a Notice of Appearance in the Juvenile Court on April 21, 1999. Mother's counsel was permitted to withdraw from representation on June 15, 1999, as "Ethically Mandated by Client's Request." Mother then appeared before the Juvenile Court Judge pro se and Father appeared by counsel on August 16, 1999, for a hearing on Mother's appeal of the Referee's Order. The Juvenile Court Judge found that the Juvenile Court Referee had determined the appropriate amount of retractive child support and was acting within the Court's discretion in setting the amount. Accordingly, the Juvenile Court confirmed the Findings and Recommendations of the Referee by Order of October 6, 1999. Mother then obtained new counsel and filed a Notice of Appeal to this Court on October 14, 1999.
Discussion
In this appeal, Mother raises the following issues, which we quote:
I. Did the Trial Court commit legal error by deviating downward from the mandatory support guidelines in favor of the Respondent?
II. Did the Trial Court commit legal error by failing to base the award of retroactive child support on the actual wages of the Respondent?
III. Did the Trial Court abuse its discretion by allowing the Respondent to pay the judgment for back child support by installment payments spread out over a ten-year period?
IV. Did the Trial [Court] abuse its discretion by failing to assess post-judgment interest against the Respondent as provided in T.C.A. § 47-14-121?
Our review is de novo upon the record, accompanied by a presumption of the correctness of the findings of fact of the Trial Court, unless the preponderance of the evidence is otherwise. Tenn.R.App.P. 13(d); Davis v. Inman, 974 S.W.2d 689, 692 (Tenn.1998). Juvenile Courts have broad discretion to determine the amount of retroactive child support awards as well as the manner in which they are to be paid. State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn.1991). Accordingly, our standard of review is whether the Trial Court abused its discretion. Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn.1999).
Mother first argues that the Trial Court erred "by deviating downward from the mandatory support guidelines in favor of the Respondent." She contends that the Trial Court "arbitrarily decided that the Tennessee Department of Human Services Child Support Guidelines ("Guidelines") were only applicable to setting current child support, and not to be applied to retroactive support." She cites the language of the Guidelines, which states:
[t]here must be a rebuttable presumption in all child support cases that the amount of child support determined by an application of these guidelines is the correct amount to be awarded ... and this rebuttable presumption must be applied to all child support awards even if the order is being sought for a retroactive period before October 13, 1989.
Our Supreme Court recently held:
The legislature has provided for retroactive awards by statute and by the incorporation of the Child Support Guidelines *561 promulgated by the Tennessee Department of Human Services, Child Support Services Division. Retroactive child support is available whether the child is a minor or whether the child has reached the age of majority and brings the claim within [the] time permitted by the statute. Tenn.Code Ann. § 36-2-103(b)(1)(repealed in 1997, corresponding section at Tenn.Code Ann. § 36-2-306). Furthermore, courts are required to apply the Child Support Guidelines as a rebuttable presumption in determining support, and the 1994 guidelines explicitly provide "that the rebuttable presumption must be applied to all child support awards even if the order is being sought for a retroactive period before October 13, 1989."
Berryhill v. Rhodes, 21 S.W.3d 188, 192 (Tenn.2000) (emphasis in original).
Due to the 1994 statutory revisions, the court's discretion in setting the amount of retroactive child support is limited. "While the juvenile court continues to have discretion in making awards of child support, that discretion must be exercised within the strictures of the Child Support Guidelines." Berryhill, supra.
The Juvenile Court Referee in this case did apply the Guidelines but afforded Father a downward deviation occasioned by a factual determination that Father had provided support for another child in his custody from May 1984 through 1988.[1] The Trial Court reduced Father's net income for child support purposes for that period by 21%, and gave the following rationale in its Order:
The guidelines are inadequate, to be charitable, because they do not specifically allow consideration for the father's child, in his custody, who is a pre-existing legal obligation to the support obligation established by this paternity order. Deviation from the guidelines sum is only permitted in cases of extreme financial hardship, if such a child has extraordinary medical expenses. Guidelines 1240-2-4-.04(4). This requirement may be justified in the context of setting current child support, but this limitation should not be applied to retroactive support. The reality is that the father has already spent sums daily over the years supporting the child in his custody. Fairness requires some consideration of the father's second child, chronologically, who was his first child legally. After all, the guidelines presume the custodian provides the same percentage of income for support as that percentage provided by the non-custodian. Guidelines 1240-2-4-.03(2). Equity requires deviation from the guidelines to allow the father here the same presumption, that he expended 21% of his net income to support the child in his household. Thus, the commutation of support is according to this formula: monthly net-guidelines support for child in household = adjusted net; adjusted net × 21% = support for child here. This formula results in a deviation from the guidelines sum of $191.00 per month to the amount of $149.50 per month for the period May 1984 through 1988.
This is not a situation in which the Guidelines may help to dissuade a parent from fathering more children he cannot *562 afford to support by requiring that he support the first child in accordance with the Guidelines without consideration of later-born children. In this case, Father had no known prior child support obligation to this child when his second child was born. The Trial Court carefully considered the equities as between the parties and their actual economic situations for the 54-month period at issue in making this downward deviation. The reduction of $41.50 per month below the Guidelines for 54 months amounts to a total of $2,241. We find the Trial Court exercised its discretion within the strictures of the Child Support Guidelines under these circumstances and provided a written finding as required by Tenn.Comp.R. and Regs. ch. 1240-2-4-.01, -.02 and Berryhill, supra.
Next, Mother raises the issue that the Trial Court erred "by failing to base the award of retroactive child support on the actual wages of the Respondent." She argues that "[t]his Court does not have before it a sufficient information to determine of [sic] the trial court relied on the proper income of the Respondent in setting the child support." As stated, we have no transcript of the hearing before the Referee nor of the hearing before the Juvenile Court Judge. Neither do we have the benefit of a Statement of the Evidence. The scant (22-page) record before us does contain a copy of a handwritten document which appears to have been prepared by the Referee and which itemizes in great detail the monthly income and expenses of Mother, the monthly income of Father, and the presumptive monthly child support amounts for each year based on the Guidelines. The document also contains various notations such as years in which Mother claimed rent expense but did not actually pay rent to her parents, periods of time Mother and daughter lived with grandparents, specific expenses for school, and AFDC payments to Mother for support of the child. This is the only information before this Court concerning Father's income, and it appears to be comprehensive and credible. Rule 24(a), Tenn.R.App.P., requires that the record on appeal shall consist of, among other things, the trial transcript or a statement of the evidence of the Trial Court. Tenn.R.App.P. 24(d) does provide a procedure when no transcript or statement of the evidence is to be filed. However, in the absence of a transcript or statement of the evidence, we must assume that the record, had it been preserved, would have contained sufficient evidence to support the Trial Court's factual findings. Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App.1992).
"In setting retroactive awards, the guidelines provide that the obligor's income for the last two years is presumed to be correct unless rebutted by either party. Tenn.Comp.R. and Regs. ch. 1240-2-4-.04(1)(c)." Berryhill, supra. Since the Trial Court deviated downward from the Guidelines, the question before us is whether or not the evidence preponderates against the Trial Court's determination. The Juvenile Court Referee made a detailed finding, based upon the evidence before him, as to Father's income during the child's minority. There is nothing in the record before us that contradicts this factual determination rebutting the presumption that Father's income for the last two years was the correct amount to be used.
In the absence of the transcript or statement of the evidence, we cannot find from the record before us that the preponderance of the evidence is contrary to the findings of fact of the Trial Court. We are bound by the record before us. The Supreme Court in Berryhill remanded that case to allow the parties to present additional *563 evidence as to certain expense claims and the father's income. From the language of the Berryhill opinion, it appears that either a transcript or statement of the evidence was presented on appeal. The Supreme Court in Berryhill held that based upon the record before it, it was "unclear" whether or not "the ten year average proposed by Ms. Berryhill would be appropriate." In the case before us, with no transcript or statement of the evidence presented, we must presume that the record would have contained sufficient evidence to support the Trial Court's factual findings concerning Father's income. Because of this presumption, the record before us is not "unclear" but instead supports the Trial Court's factual findings. We hold, based on the record, that the Trial Court did not err in awarding retroactive child support in the amount ordered.
Mother next argues that the Trial Court erred "by not assessing post-judgment interest." Father argues that Mother has waived any claim for post-judgment interest because she did not ask for such interest at trial. Interest on judgments in Tennessee is statutorily mandated, and "shall be computed at the effective rate of ten percent per annum." T.C.A. § 47-14-121. The failure of any court to expressly provide such interest in its judgment does not abrogate the statute. Inman v. Inman, 840 S.W.2d 927, 932 (Tenn.Ct.App.1992). The interest accrues from the date of the Trial Court's Judgment. Inman v. Alexander, 871 S.W.2d 153, 154 (Tenn.Ct.App.1993). Accordingly, Mother is entitled to the statutorily mandated 10 % interest per annum.
Finally, Mother complains that the Trial Court erred "by allowing the respondent to pay a judgment for back child support by installments over a ten-year period." The Juvenile Court Order provides:
father presently earns $25.00 per hour. It is found that he can repay the arrearage balance at the rate of $300.00 per month.... Repayment shall be at the rate of $300.00 per month, payable through the Court's registry, and beginning April 15, 1999. Of this sum, the mother shall receive $200.00 per month, the child $50.00 monthly and the State $50.00 monthly.
The amount of retroactive child support awarded to Mother is $27,234. Father's court ordered payments to Mother of $200 monthly, with post-judgment interest accruing at 10% annually, would not cover even the interest, let alone pay down the judgment. We do not think that result is mandated by T.C.A. § 36-5-101(k), as argued by Father,[2] and we cannot countenance such a result. Accordingly, we remand this case to the Trial Court for entry of an Order which addresses the statutorily required post-judgment interest and prescribes a payment plan designed to pay this judgment within a reasonable period of time. For guidance, we direct that Court to our Supreme Court's holding in State ex rel. Coleman v. Clay, 805 S.W.2d at 755, which states:
[T.C.A. §§ 36-2-102 and 36-2-108] give the juvenile court the discretion to order a retroactive support award ..., the amount and method of payment to be determined by the juvenile judge in light of the circumstances of the case and consistent with the standards which normally govern the issuance of child support orders.
*564 "The standards which normally govern the issuance of child support orders" are contained in the Guidelines, and the Guidelines direct:
In cases where initial support is being set, a judgment must be entered to include an amount due for monthly support from the date of the child's birth or date of separation or date of abandonment, whichever is appropriate, until the current support order is entered. This amount must be calculated based upon the guidelines using the average income of the obligor over the past two years and is presumed to be correct unless rebutted by either party. An amount should be included in the order to reduce the arrears judgment on a monthly basis within a reasonable time.
Tenn.Comp.R. & Regs. ch. 1240-2-4-.04(1)(e)(1994). (emphases added). While we do not have before us the kind of "initial support" order contemplated by the regulation, we consider it to be persuasive on (1) the use of the obligor's current income and (2) the goal of repayment within a reasonable time. Accordingly, we direct that the Trial Court shall consider those as factors in setting a payment plan that will cover the post-judgment interest and result in the judgment being satisfied within a reasonable period of time.
Conclusion
The judgment of the Trial Court is affirmed as to the amount of retroactive child support due. The case is remanded to the Trial Court for the award of statutory post-judgment interest and for modification of the payment plan to incorporate post-judgment interest and to provide for payment of the judgment within a reasonable period of time. The costs on appeal are assessed against the parties evenly.
ORDER ON PETITION FOR REHEARING
Plaintiff/Appellant, Marcia Susan Tallent, has filed a Petition for Rehearing, asking for a rehearing as to the downward deviation from the Child Support Guidelines which the Juvenile Court Referee, as affirmed by the Juvenile Court Judge, permitted in this case. In our Opinion, we stated that the downward deviation was $41.50 per month for 54 months, for a total of $2,241. Plaintiff/Appellant says that this amount is correct for the period May 1984 through 1988, but that the downward deviation continued after 1988 at a rate of $63 per month, thus accruing to a total of $7,911, not $2,241. Upon careful review, it appears Plaintiff/Appellant is partly correct, since the Juvenile Referee and the Juvenile Judge, having determined that a downward deviation from the Guidelines of $41.50 per month was appropriate after 1984, then continued that $41.50 downward deviation not for 54 months but until this child reached majority. The fact that this reduction continued until the child reached majority rather than just for 54 months is not material to our decision. In our Opinion, we found the Trial Court did not err in permitting that downward deviation. Father's child support obligation increased after 1988, from $149.50 per month to $239 per month, based on a number of other factors, which the Referee detailed at pages 13 and 15 of the appellate record. Those factors are not related to the father's later-born child. The only downward deviation from the Guidelines we find in the record is the $41.50 per month which we have previously addressed.
On the same downward deviation, Appellant next complains of our statement that Father had no known prior child support obligation to this child when the second child was born. Appellant asks us to find, upon rehearing, that Father's knowledge *565 that he had fathered a child is equivalent to an existing order of support. Appellant cites no authority for this proposition and we find none.
Appellant next complains of our finding that the information in the record is "comprehensive and credible" on the issue of Father's income. While Appellant might prefer a different kind of evidence, the proper forum for securing and producing such evidence in support of her claim for child support was at trial. The Trial Court found that the evidence which was presented as to Father's income was sufficient to make a determination about the amount due. Appellant's Petition for Rehearing presents no new argument on this issue.
Appellant next argues, on the same downward deviation complained of above, that our Opinion is in conflict with the Child Support Guidelines because those regulations state: "Children of the obligor who are not included in a decree of child support shall not be considered for the purposes of reducing the obligor's net income or in calculating the guidelines amount." That regulation provides for an exception, at 1240-2-4-.04(4), in cases of extreme economic hardship. The Referee made a specific finding of fact, adopted by the Juvenile Judge, that in this case, the exception applied. We found that the Trial Court exercised its discretion within the strictures of the Child Support Guidelines and provided a written finding as required by the Guidelines. Again, Appellant presents no new argument in her Petition for Rehearing. The purpose of a Petition to Rehear is not to re-argue the case on points already considered by the Court; but rather, to call to the Court's attention some new and decisive authority which it overlooked. Knox County v. Moncier, 224 Tenn. 361, 455 S.W.2d 153, 157 (1970); Abernathy v. Chambers, 482 S.W.2d 129, 133 (Tenn.1972).
Finally, Appellant complains that the Referee "improperly failed to state the support due before any downward deviations are made as required by Tenn. Comp. R. & Regs. 1240-2-4-.02(7) and fails to state how the best interest of the child are served by the downward deviation." Since Appellant has raised these issues for the first time in her Petition for Rehearing, we decline to consider them. See Zack Cheek Bldrs., Inc. v. McLeod, 597 S.W.2d 888, 892 (Tenn.1980). However, we do note, as discussed in our original Opinion, that the Referee's detailed and comprehensive annual calculation did include the amount of child support dictated by the Child Support Guidelines.
The Appellant's Petition for Rehearing is denied. Costs related to this Petition to Rehear are assessed to Marcia Susan Tallent.
NOTES
[1] While Mother argues that the Juvenile Court deviated downwardly in two other instances, we do not find these alleged "deviations" to be inconsistent with the Guidelines. They are merely the Juvenile Court's method of applying the particular facts to a determination of the child support due in accordance with the Guidelines: (1) Mother's income and expenses differed substantially from Father's during one period; (2) AFDC paid some of the child's support.
[2] T.C.A. § 36-5-101(k) applies in cases where an order of support is in effect and then terminates. In such cases, the arrearage is to be paid in the same monthly amount as the already existing support order. Here, there is no such pre-existing order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/901033/ | 671 N.W.2d 264 (2003)
2003 SD 129
STATE of South Dakota, Plaintiff and Appellee,
v.
Charles CHERNOTIK, Defendant and Appellant.
No. 22304.
Supreme Court of South Dakota.
Considered on Briefs January 13, 2003.
Reassigned May 7, 2003.
Decided October 22, 2003.
*266 Lawrence E. Long, Attorney General, Becky Janssen, Assistant Attorney General, Pierre, for plaintiff and appellee.
Steven R. Smith, Andera & Smith Law Firm, Rapid City, for defendant and appellant.
ZINTER, Justice (on reassignment).
[¶ 1.] Charles Chernotik was convicted of raping his stepbrother, J.C., in the family hot tub at J.C.'s home in Chamberlain. Chernotik appeals claiming error in (1) amending the complaint after the statute of limitations expired, and (2) in introducing other acts evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶ 2.] J.C. was interviewed by the Department of Social Services, the Sheriff's office, and the Chamberlain Police Department on April 24, 2001. That interview occurred two days before J.C.'s twenty-fifth birthday, which was also two days before the statute of limitations was to expire on the crime at issue in this case. In the interview, J.C. disclosed a course of sexual molestation perpetrated upon him by Chernotik. The molestation began when J.C. was approximately five years old and continued until he was sixteen.
[¶ 3.] On April 25, 2001, the day before J.C.'s twenty-fifth birthday and the day before the statute of limitations was to expire, the State filed a complaint against Chernotik. Count III alleged the crime of rape in violation of SDCL 22-22-1. Rape can occur under seven different "circumstances" according to this statute.[1] Count III alleged that this rape occurred by fellatio with J.C. under forcible circumstances as described in subdivision (2) of SDCL 22-22-1. Count III specifically alleged that Chernotik:
Did perform sexual penetration on another through the use of force, coercion or threat of immediate and great bodily harm against the victim, to-wit: did perform fellatio upon J.C., date of birth being April 26, 1976, through the use of threat or intimidation during the calendar year 1995 in Chamberlain, South Dakota, in violation of SDCL 22-22-1(2).
The factual incident underlying Count III involved an act of fellatio with J.C. in his parents' hot tub at their home in Chamberlain. *267 The incident is hereinafter referred to as "the hot tub incident."
[¶ 4.] On May 30, 2001, about a month after the statute of limitations expired, the State filed two amendments to Count III. The first amendment changed the alleged date of the offense from 1995 to "on or between May 1990." The second amendment changed the "circumstances" alleged. It still charged rape in the hot tub incident, but it changed the circumstance to that described in subdivision (5) of SDCL 22-22-1.[2] Rape committed under that circumstance is commonly referred to as statutory rape.
[¶ 5.] On June 4, 2001, the court conducted a preliminary hearing. J.C. testified that he was forced to perform the fellatio on Chernotik in the hot tub incident in November 1986.[3] To conform the charge to J.C.'s testimony concerning this date, the State again amended Count III to allege that the date of the offense was "on or about 1986."
[¶ 6.] Chernotik objected to these amendments and moved to dismiss Count III on the ground that the statute of limitations had expired before the amendments were made. The statute of limitations at issue provided that an action for rape "may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer." SDCL 22-22-1. Although Chernotik was originally charged one day before J.C.'s twenty-fifth birthday, Chernotik contends that the charge was not timely because the amendments were made after the statute of limitations had expired on J.C.'s twenty-fifth birthday.
[¶ 7.] Chernotik also objected to "other acts" evidence involving J.C. and another victim. The other victim, C.O., was J.C.'s sister and Chernotik's stepsister. The acts involving C.O. began in the summer of 1978 when C.O. was seven and Chernotik was twelve. C.O. was awakened during the night to find Chernotik taking off her swimsuit bottom. She disclosed that Chernotik digitally penetrated her, fondled her and himself, put his genitals in her face, and rubbed himself on her. She testified that similar acts occurred for the next seven years. Chernotik was not charged with the offenses against C.O. because the statute of limitations had expired. The trial court allowed the other acts to prove a common plan or scheme, absence of mistake or accident, and proof of motive, intent, opportunity, knowledge, continuing course of conduct and identity.
[¶ 8.] The trial evidence reflected that the hot tub incident occurred in the fall of 1986 when J.C. was ten and Chernotik was nineteen years old. As at the preliminary hearing, J.C. testified that Chernotik undressed and followed J.C. into the hot tub at the family home. Chernotik then stimulated himself and forced J.C.'s mouth on Chernotik's penis. This continued for several minutes until Chernotik ejaculated into J.C.'s mouth, and Chernotik forced J.C. to ingest the semen. The jury found Chernotik guilty of the hot tub incident involving J.C. and not guilty on five other *268 counts involving D.R., Chernotik's stepdaughter.
[¶ 9.] Chernotik raises two issues on appeal:
1. Whether the State could amend the complaint after the statute of limitations expired.
2. Whether the trial court erred in admitting other acts evidence.
DECISION
A Complaint, Amended After the Statute of Limitations Has Expired, May Relate Back.
[¶ 10.] Chernotik concedes that filing of the initial complaint on April 25, 2001, timely "commenced" a rape charge against him. See SDCL 23A-42-4 (stating that a charge is "deemed commenced by the filing of a complaint, information or indictment ..."). The question is whether the amendments of May and June 2001 charged a new offense that was barred by the statute of limitations, or, whether those amendments related back to the time of filing the original complaint. Chernotik argues that the amendments were substantive changes that were substantially different than the original charge. He also argues that original and amended charges were mutually exclusive. He therefore contends that the amendments did not relate back.
[¶ 11.] SDCL 23A-6-19 permits amendments, but does not address the relation back doctrine. It provides in part:
If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.
Id. (emphasis added).
[¶ 12.] Here, the changes in the time and statutory circumstance of the rape arose "out of the same alleged conduct of the defendant," i.e., the hot tub incident. Moreover, the trial court offered Chernotik a continuance of the preliminary hearing. However, that offer was not accepted. Therefore, although Chernotik did not have a new preliminary hearing, he was given that opportunity and declined to exercise that statutory right.
[¶ 13.] Instead of exercising his right to another preliminary hearing, Chernotik argues that the amended complaint was barred by the statute of limitations. The State responds by arguing that the filing of the initial complaint unconditionally tolled the statute of limitations. We do not agree that the filing of the complaint unconditionally tolled the statute of limitations for all amendments. Instead, the statute of limitations is tolled, and amendments relate back to the filing of an initial complaint, if certain conditions are met.
[¶ 14.] Although "relation back" jurisprudence is a question of first impression in this Court, many other jurisdictions have addressed the issue. Those jurisdictions hold that when the government commences a prosecution by filing a timely charging document, the filing of an amendment after the statute of limitations has expired will not divest the court of jurisdiction unless the amendment broadens or substantially amends the original charges. See, e.g., United States v. Schmick, 904 F.2d 936, 940 (5thCir.1990); United States v. Elliott, 849 F.2d 554, 561 (11thCir.1988); United States v. Friedman, 649 F.2d 199, 204 (3dCir.1981); United States v. Grady, 544 F.2d 598, 601-02 (2dCir.1976); State v. *269 Almeda, 211 Conn. 441, 560 A.2d 389, 392 (1989); Benitez v. State, 111 Nev. 1363, 904 P.2d 1036, 1036 (1995). We agree with these authorities.
[¶ 15.] Under this relation back test, we first determine whether these amendments broadened the original charge. SDCL 22-22-1 defines rape as "an act of sexual penetration accomplished with any person under any of [seven] circumstances...."[4]Id. (emphasis added). Subsection (2) (forcible rape), is the circumstance originally pleaded. Under that circumstance, a rape occurs "[t]hrough the use of force, coercion, or threats of immediate and great bodily harm against the victim...." Subsection (5) (statutory rape), is the circumstance alleged in the amendments. Under that circumstance a rape occurs "[i]f the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim...." Forcible rape is a Class 2 felony, punishable by up to twenty-five years imprisonment and a fine of $25,000. However, the amended charge of statutory rape is a Class 3 felony, punishable by up to fifteen years imprisonment and a fine of $15,000. SDCL §§ 22-22-1, 22-6-1. Thus, these amendments did not broaden the original charge to a more serious crime, but rather narrowed it to a less serious crime.[5]
[¶ 16.] Moreover, the incident charged in the amendments is not substantially different than that charged in the original complaint. It is not substantially different because, even though the amendments changed the date and statutory circumstances of the rape, the underlying incident of rape remained the same. In point of fact, the rape (occurring by fellatio in the "hot tub incident" in Chamberlain) as alleged in the original complaint, is the same rape (occurring by fellatio in the "hot tub incident" in Chamberlain) for which Chernotik was convicted. Indeed, there is no dispute that: (1) the underlying allegations supporting the original complaint involved the hot tub incident; (2) the evidence introduced at the preliminary hearing related to that hot *270 tub incident; (3) the amendments related to that hot tub incident; and (4) the jury convicted on that same hot tub incident. Under such circumstances, where there was only one hot tub incident ever at issue in the original complaint and all amendments, there was no broadening or substantial amendment of the original charge. The amendments certainly did not broaden or substantially amend any factual aspect of the incident.[6]
[¶ 17.] Consequently, the amendments failed to legally broaden or substantially amend the original charge under both federal and state authority. Relevant federal authorities point out that notice to the defendant of the activities at issue is the central policy underlying relations back and the limitations doctrines. Schmick, 904 F.2d at 940. Therefore, Schmick holds that a complaint is not broadened or substantially amended as long as the defendant is on notice of the activities at issue, and as long as the amendments are substantially the same in the old and new complaints. Schmick reasons:
Notice to the defendant is the central policy underlying the limitations doctrine. Similarly, notice is the touchstone in deciding whether a superseding indictment substantially changes the original charges. A timely, pending indictment serves this purpose by apprising the defendants "that they will be called to account for their activities and should prepare a defense." If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows that he will be called to account for certain activities and should prepare a defense.
Id. at 941 (emphasis added) (internal citations omitted). Thus, the Schmick holding, modified to include the facts of both Chernotik's and Schmick's cases, would read:
The appellants were on notice that they were accused of planning to obtain unregistered firearms [in Chernotik's case, engaging in an act of fellatio with J.C. in the hot tub]. The original [complaint] generally referred to unregistered firearms [in Chernotik's case, rape by fellation in Chamberlain]; the superseding [complaint] merely further described the unregistered firearms used by the Bandidos [in Chernotik's case, it further described the date and statutory circumstance for the act of fellatio in the hot tub in Chamberlain]. Where the facts alleged have not been changed, although additional underlying details have been alleged, a superseding indictment brought outside the statute of limitations is timely.
Id. (emphasis added) (citing Friedman, 649 F.2d at 204).
*271 [¶ 18.] Other federal authorities also support this conclusion. See Elliott, 849 F.2d at 561 (holding that in a drug smuggling prosecution, even though "additional underlying facts relating to the transportation of marijuana and changes in some time periods and amounts of marijuana [were] involved[, t]he ultimate acts charged [were] the same in both indictments." Therefore, the amendments did not broaden or substantially amend the original charges) (emphasis added); Friedman, 649 F.2d at 204 (holding that although additional underlying details were alleged, the basic facts alleged were not changed, thus the primary purpose of the statute of limitations was met); Grady, 544 F.2d at 602 (concluding that to the extent any change of substance was made at all, the charges were narrowed, not broadened).
[¶ 19.] This focus on notice to the defendant of the incident or activities of the defendant, even if the charges change, is also recognized in state courts.
[The] principal purpose [of the statute of limitations] is to ensure "that a defendant receives notice, within a prescribed time, of the acts with which he is charged, so that he and his lawyers can assemble the relevant evidence [to prepare a defense] before documents are lost [and] memor[ies] fade...." If, therefore, the facts underlying a superseding information substituting a different charge in a continuing prosecution are substantially similar to the facts underlying a timely filed information, the main purpose of the statute of limitations has been fulfilled, i.e., timely notice to the defendant of the factual allegations against which he will be required to defend. If that aim is accomplished, a previously filed information may toll the statute of limitations.
Almeda, 560 A.2d at 392 (emphasis added) (internal citations omitted). Consequently, even though the original information in Almeda charged that defendant with attempted murder, the statute of limitations was tolled for a prosecution for first-degree assault on a substitute information. It was tolled because the factual allegations underlying the substitute information charging Almeda with assault in the shooting of Ricky Wynn were the same as the facts underlying the original information charging Almeda with the attempted murder of Ricky Wynn. The changes related back because Almeda was not called upon to answer for any activities that he had not been required to defend against in his first trial on the original information. Id. See also Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744, 751 (1984) (ruling that "[t]he only question to be considered in determining the sufficiency of the [amended] complaint is whether the accused was sufficiently informed that he might be put on trial for the crime charged in the indictment"); People v. Whitfield, 19 Cal.App.4th 1652, 24 Cal.Rptr.2d 210, 215 (1993) (holding that because amended prostitution offenses "were based on the same conduct as the rapes for which the defendant was being prosecuted, the filing of the information [on rape] tolled the statute of limitations" for the lesser prostitution offenses); State v. Eppens, 30 Wash. App. 119, 633 P.2d 92, 96 (1981) (holding "an amended pleading relates back to the filing date of its predecessor so long as the claim in the pleading `arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading'") (emphasis added).
[¶ 20.] The premise underlying these cases is consistent with our precedent. Generally, the function of a charging document such as a complaint is to "appraise the defendant with reasonable certainty of the charge with which [the defendant] is *272 accused and to allow [the defendant] to plead ... acquittal or conviction as a bar to a subsequent prosecution for the same offense." State v. Anderson, 1996 SD 46, ¶ 12, 546 N.W.2d 395, 399 (citing State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455, 456 (1947), cert denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948)). Here, a rape in the hot tub incident involving J.C. in Chamberlain was the only charge in the initial version of Count III as well as all amendments. Moreover, Chernotik has not alleged that he was misled by the amendments. Indeed, the investigative reports as well as the preliminary hearing confirm that Chernotik was aware that the only allegation in Count III involved the hot tub incident. Therefore, Chernotik was on notice of the incident and activities for which he was convicted. Because Chernotik was not required to answer for any new incident that was not alleged in the original complaint, the relation back doctrine applies.
[¶ 21.] Chernotik, however, argues otherwise because he perceives that there are sufficient differences in the charges to support a finding of a substantially new and different offense.[7] Chernotik argues that the following alleged differences exist: (1) forcible rape and statutory rape are mutually exclusive; (2) only forcible rape allowed a consent defense and only statutory rape allowed an age defense; (3) the date of the original charge left open the possibility of an alibi defense because the victim and defendant lived in different cities at the time the act was originally alleged to have occurred; (4) statutory rape is not a lesser included offense of forcible rape; and (5) statutory rape is a time-sensitive charge because it must occur when the victim is between ten and sixteen years of age.
[¶ 22.] Chernotik's initial assertion of mutual exclusivity is quickly dispatched by the facts of this case. Here, Chernotik's conduct violated both circumstances of statutory and forcible rape because J.C. was young enough to support a charge of statutory rape and he was also forced to engage in the sexual act. Thus, contrary to being mutually exclusive, the facts of this case reflect that Chernotik's conduct concurrently violated both the forcible and the statutory circumstances under which fellatio constitutes rape.
[¶ 23.] Moreover, even if mutual exclusivity was present, it is of no legal consequence because the amended charge of statutory rape was merely a different circumstance under which the offense of rape in SDCL 22-22-1 occurs. Under this type of statute (where rape can occur under a number of circumstances) an amendment charging statutory rape in lieu of an initial charge of forcible rape does not charge a different offense for relation back analysis. It does not because each of the subdivisions of the rape statute merely define a different circumstance under which sexual penetration may constitute the crime of rape. State v. LaMere, 103 Idaho 839, 655 P.2d 46, 49 n. 4 (1992).[8]
*273 [¶ 24.] Chernotik next argues that, under his second and third alleged differences, the changes in date and circumstance alleged may have eliminated potential defenses. However, these defenses were never available because the record reflects that the date originally alleged was simply a mistake. Indeed, there can be no dispute that no rape could have occurred as originally alleged in 1995 because J.C. had moved from Chamberlain in 1992. Moreover, no statutory rape could have occurred in 1995 because J.C. was over 16 years of age. Therefore, it appears that when the state filed the initial complaint, the specific date alleged was simply a mistake. Under those circumstances where the offense could not have occurred on the date first alleged, the amended offense is the same as the first for statute of limitations purposes. People v. Switalski, 394 Ill. 530, 69 N.E.2d 315, 318 (1946). Additionally, it must be remembered that the time of commission of this offense was not material. We have previously held that "[t]he time of the occurrence is not a material element in statutory rape as the elements of that offense are not `time dependent.'" State v. Floody, 481 N.W.2d 242, 247 (S.D.1992) (citations omitted). Consequently, the amendment changing the date relates back. See also Elliott, 849 F.2d at 561. Finally, it must be remembered that to the extent that these amendments may have eliminated "possible defenses," the elimination of a "possible defense" does not by definition broaden or amend "the charge."
[¶ 25.] Chernotik next observes that statutory rape is not a lesser included offense of forcible rape. However, that difference is of no consequence. Simply stated, none of the authorities discussing this issue require that the amendment be a lesser included offense to relate back. To the contrary, even "[t]he potential for imposition of a greater penalty under a superseding indictment does not render such charges broader than those in the original indictment." Id. (citing United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 779 (9thCir.1986), cert denied, 479 U.S. *274 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986)).[9]
[¶ 26.] Chernotik's final alleged difference is his contention that unlike forcible rape, statutory rape is a time sensitive charge because it must occur when the victim is between 10 and 16 years of age. Chernotik points out that J.C. did not fall within that time range in 1995. However, as was previously noted, statutory rape is not a time sensitive charge. See supra ¶ 23. Moreover, Chernotik's acts violated both the forcible and the statutory proscriptions. Therefore, he lost no ability to avoid a rape conviction, and even if he did, the elimination of a defense does not substantially amend the charge. Finally, J.C.'s age at the time of the hot tub incident was fixed, and Chernotik was aware of the statutory rape victim's age. Because there was no dispute over J.C.'s age, such an amendment was not prejudicial. See LaMere, 655 P.2d at 49.
[¶ 27.] In the final analysis, Chernotik was always on notice of the hot tub incident charged in Count III. Although the amendments changed a date and statutory circumstance of the rape, there was only one incident of rape ever at issue. Therefore, the amendments did not broaden or substantially amend the rape charge: if anything, they narrowed it, and the amendments relate back to the timely filing of the initial complaint.
Other Act Evidence
[¶ 28.] The trial court permitted the other act evidence under SDCL 19-12-5 (Rule 404(b)) not to prove character, but as evidence of Chernotik's common scheme or plan, motive and intent, continuing course of conduct, and identity. We review the admission of other act evidence under the abuse of discretion standard. State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820.
[¶ 29.] Here, the other acts evidence involved Chernotik's sexual abuse of his younger family members, C.O. and J.C. That conduct was ongoing over a number of years. The prior acts involving C.O. occurred from 1978 through 1986, while the acts involving J.C. occurred from 1980 through 1992. Thus, the pattern of abuse overlapped. It also appears that: (1) the sexual assaults took place in the family home or camper when the victims were isolated from others; (2) the sexual assaults took place while Chernotik was in a caretaking or authoritative role over his victims; (3) Chernotik used a similar pattern of coercive conduct to maintain the silence of J.C. and C.O.; and, (4) the modus operandi of the abuse was similar. With respect to similarity, the evidence reflects that: Chernotik rubbed his genitalia on the bodies of his victims for purposes of self gratification; he forced J.C. to perform fellatio and put his genitalia in the face of C.O.; he was approximately 10 years older than J.C. and five years older than C.O.; he was often left in charge of his younger siblings; he abused family members; he abused the victims in the family areas; he abused the victims when no one else was present or when everyone else was asleep, he used promises and threats to obtain the victims silence; and he committed the abuse over a lengthy period of time including a six-year period in which three family members were abused.
[¶ 30.] We have strongly encouraged trial courts to avoid the "blunderbuss" approach of simply declaring other acts evidence "admissible to prove any issue *275 including motive, identity, absence of mistake, intent, or plan, without independently applying each theory to the facts." State v. Wright, 1999 SD 50, ¶ 17, n. 6, 593 N.W.2d 792, 800. Here, however, before admitting the evidence, the trial court first identified a number of issues for which the other acts evidence was admissible and then analyzed whether the probative value of that evidence was substantially outweighed by its prejudicial effect. We agree that it was admissible to show Chernotik's identity, motive, intent, common plan or scheme, and continuing course of conduct. We also agree that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Continuing abuse of children involving a similar modus operandi over a lengthy period of time is admissible as other acts evidence. State v. Werner, 482 N.W.2d 286, 290-91 (S.D.1992). Here, Chernotik began a course of sexual abuse against younger family members in 1978 when he was 12 years old and his stepsister was seven years old. While the abuse of the stepsister was ongoing, it also started with J.C. The sexual abuse of both victims then continued for six years and ended only when Chernotik moved from the State. We find no abuse of discretion in admitting this evidence.
[¶ 31.] Affirmed.
[¶ 32.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.
[¶ 33.] SABERS, and MEIERHENRY, Justices, dissent.
SABERS, Justice (dissenting).
[¶ 34.] I dissent for the following reasons:
[¶ 35.] SDCL 22-22-1, the rape statute, provides in part, "... a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer." Defendant concedes that filing the initial complaint "commenced" the charges against him. See also, SDCL 23A-42-4 (providing in part that a charge is deemed commenced "by the filing of a complaint, information or indictment[.]").
[¶ 36.] The day the initial complaint was filed was the last day the State could have criminally charged Defendant for his offenses against J.C. in the hot tub incident. The State amended the complaint on May 24, 2001 and June 4, 2001. Both of the amendments took place after the statute of limitation had expired. Defendant argues that these amendments were substantive changes as the original charge substantially differed from the amended charge and that the charges are mutually exclusive and barred.
[¶ 37.] SDCL 23A-6-19 provides in part:
If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.
(Emphasis supplied.) The State did change the allegations regarding an offense "arising out of the same alleged conduct of the defendant," e.g., the hot tub incident. The court offered a continuance of the preliminary hearing, but that offer was not accepted. The parties briefed the issue and the court heard arguments at a subsequent motion hearing. Defendant repeatedly raised objections based on the statute of limitation through the end of trial. He does not seek to have a new *276 preliminary hearing. Instead, he argues that his conviction should be reversed because the prosecution was untimely. The State responds that the filing of the initial complaint served to toll the statute of limitation, in essence, allowing the amendments to the complaint to "relate back" to the date of the first complaint.
[¶ 38.] Although this is a question of first impression for this Court, other jurisdictions have addressed analogous issues. Many courts have held that where the State commences a prosecution by filing a timely information or indictment, the filing of an amendment after the statute of limitation has expired will not divest the court of jurisdiction unless the amended information broadens or substantially amends the original charges. See e.g., United States v. Schmick, 904 F.2d 936, 940 (5th Cir.1990); United States v. Elliott, 849 F.2d 554, 561 (11th Cir.1988); United States v. Friedman, 649 F.2d 199, 203 (3d Cir.1981); United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976); Benitez v. State, 111 Nev. 1363, 904 P.2d 1036, 1037 (1995); State v. Almeda, 211 Conn. 441, 560 A.2d 389, 392 (1989). I believe that this is the appropriate test.
[¶ 39.] A determination whether the amended complaint broadened or substantially amended the original complaint requires comparison of the facts of the crime originally charged with the facts of the crime supporting the conviction. SDCL 22-22-1 provides, "[r]ape is an act of sexual penetration accomplished with any person under any of the following circumstances[.]" Subsection (2) (forcible rape), the section Defendant was originally charged with, provides, "[t]hrough the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim's presence, accompanied by apparent power of execution[.]" Subsection (5) (statutory rape), the charge supporting the conviction, provides, "[i]f the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim[.]" Subsection (5) is rape in the third degree, a Class 3 felony, whereas subsection (2) is rape in the second degree, a Class 2 felony. Both subsections are subject to the statute of limitation cited above. This amendment did not broaden the original charge to a more serious crime but narrowed it to a less serious crime.
[¶ 40.] Defendant argues that the original and amended charges are substantially different, and based on those differences, the statute of limitation should bar prosecution on the amended charge. Specifically, he argues that the difference between forcible rape (the original charge) and statutory rape (the charge supporting the conviction) are mutually exclusive in that: 1) forcible rape allows for the defense of consent whereas statutory rape does not; 2) the original charge left open the possibility of an alibi defense because the victim and defendant lived in different cities at the time the alleged act occurred; 3) statutory rape cannot be considered a lesser included offense of forcible rape because of its differing elements; and 4) statutory rape is a time-sensitive charge because it must occur between the time the victim is ten and sixteen years old. This analysis of legal factors supports a finding of a substantially new and different offense.
[¶ 41.] SDCL 23A-6-19 may require an analysis from a factual standpoint. SDCL 23A-6-19 permits an amendment to "amend [ ] or change the allegations regarding any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information." Arguably, that is what was done here. However, the fatal defect in this factual analysis is that the *277 statute deals specifically with amending and amending to a new charge but says nothing about permitting an amendment after the statute of limitations expired on a new charge.
[¶ 42.] The State would not be entitled to charge, through an amendment to a complaint, an offense that does not arise out of the same alleged conduct that gave rise to the original information either before or after the statute of limitation expired.
[¶ 43.] Statutes of limitation are created by the Legislature and become the public policy of the State of South Dakota. Statutes of limitation serve two primary purposes; they avoid unfair proceedings against defendants caused by the use of stale evidence and encourage prompt investigation by the government in criminal cases. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627, 632 (1966). Here, neither purpose was fulfilled. Through the amended complaint, the evidence to support the charge was fifteen years old and despite knowledge by the State as of 1992, there was no prompt investigation of the offenses by the government.[10]
[¶ 44.] A criminal statute of limitation acts as a jurisdictional bar to prosecution. This is a limitation on the power of the State to act against an accused. State v. Glover, 25 Wash.App. 58, 604 P.2d 1015, 1016 (1979) (additional citations omitted). SDCL 22-22-1 provides in part that the statute of limitation on a charge of rape will expire seven years after commission of the crime or when the victim turns twenty-five years old, whichever is longer. The South Dakota Legislature has spoken on this issue and criminal statutes of limitation are construed liberally in favor of the Defendant. See e.g., State v. Hirsch, 245 Neb. 31, 43, 511 N.W.2d 69, 78 (1994) (additional citations omitted). Therefore, even though the amended complaint did not broaden the charge, it substantially amended it to the prejudice of the Defendant.
[¶ 45.] We should not accept the State's argument that the mere filing of the criminal complaint tolled the statute of limitation without exception. See e.g., SDCL 23A-8-11 (providing in part that although an order regarding a defect in an indictment or information is not a bar to subsequent prosecution on the same charge, the order will not affect the provisions of "any statute relating to periods of limitation"). When an amendment to a charging document affects the substantive rights of the accused, courts must inquire into the sufficiency of the document. See generally, Schmick, 904 F.2d at 940; Elliott, 849 F.2d at 561; Friedman, 649 F.2d at 203; Grady, 544 F.2d at 601; Almeda, 560 A.2d at 392; Benitez, 904 P.2d at 1037. The changes to this criminal complaint were not mere changes in form. The record reveals that at the time the State filed the original complaint, it was based on the mistaken belief that Defendant committed forcible rape against J.C. in 1995. Changing the date to 1986 and the offense to statutory rape were substantive changes requiring that the Defendant be entitled to a new preliminary hearing according to SDCL 23A-6-19. The fact that he was entitled to a new preliminary hearing gives credence to Defendant's argument that the amended complaint alleged a new and different offense for which the State should have been required to file a new complaint. *278 Had the State filed a new complaint, clearly it would have been barred by the statute of limitation. Thus, the act of amending the original complaint could not operate to extend the statute of limitation and preserve the untimely prosecution on this charge. Defendant was prejudiced by being prosecuted on a crime that was jurisdictionally barred.
[¶ 46.] We have held that the State may amend an indictment when the amendment does not surprise, prejudice, or have an effect on the defendant's substantial rights. State v. Timperley, 1999 SD 75, ¶¶ 8-9, 599 N.W.2d 866, 867-868. Furthermore, a charging document should advise the defendant of the charge with reasonable sufficiency, cite the appropriate statute and subsection and contain the material elements of the offense. See generally, State v. Boutchee, 406 N.W.2d 708 (S.D.1987). The amendment to this complaint does not overcome the barriers erected for the protection of defendants by our laws of criminal procedure as enacted by the South Dakota Legislature. Those barriers operate to ensure that defendants only face timely charges. They should not be circumvented so easily. Because the Defendant was tried and convicted of a crime upon which the statute of limitation expired, his substantial rights were prejudiced. The amendments to the complaint were substantial and the court was divested of jurisdiction over this Defendant as to this charge. The conviction should be reversed.
[¶ 47.] I dissent on Issue 2 also because the other act evidence received under SDCL 19-12-5 (Rule 404(b)) was clearly offered to prove bad character and was substantially outweighed by its prejudicial effect. Once that evidence was offered and received, Defendant had little chance for a fair trial. The majority opinion relies heavily on the claim that this "other act evidence" was offered only as evidence of the Defendant's common scheme or plan, motive and intent, continuing course of conduct and identity. None of these factors were really in issue and are more pretextual than real. I submit that the State will continue to use this "laundry list" as long as the trial courts and this Court accept the same. This practice prevents meaningful review of the issues and permits highly prejudicial evidence to be admitted with no clear showing of its probative value. In light of the judiciary's duty to provide fair criminal trials, this Court should require the State to stop this practice now.
[¶ 48.] To say this laundry list of "bad acts" and its probative value was not substantially outweighed by its prejudicial effect is a real stretch and also prevents meaningful review. The exceptions to SDCL 19-12-5 continue to swallow the rule. For these and the reasons I have stated in my previous writings on this issue, I dissent. See e.g. State v. Wright, 1999 SD 50, 593 N.W.2d 792 (Sabers, J., dissenting); State v. Loftus, 1997 SD 94, 566 N.W.2d 825; State v. Werner, 482 N.W.2d 286 (S.D.1992).
[¶ 49.] MEIERHENRY, Justice, joins this dissent.
NOTES
[1] See infra note 4.
[2] SDCL 22-22-1(5) provides that statutory rape occurs if: "the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim[.]" In November, 1986, J.C. was age 10 and Chernotik was age 19.
[3] J.C. also indicated that the molestation was "a norm" that "escalated with each incident." He stated that he "remember[ed] [Chernotik] having taken my underwear off before, him being naked, stimulating himself in front of me, putting my hand onto his genital area ... putting my head onto his penis ... incidents like that."
[4] SDCL 22-22-1 provides:
Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
(1) If the victim is less than ten years of age; or
(2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim's presence, accompanied by apparent power of execution; or
(3) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or
(4) If the victim is incapable of giving consent because of any intoxicating, narcotic or anesthetic agent or hypnosis; or
(5) If the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim; or
(6) If persons who are not legally married and who are within degrees of consanguinity within which marriages are by the laws of this state declared void pursuant to § 25-1-6, which is also defined as incest; or
(7) If the victim is ten years of age but less than eighteen years of age and is the child of a spouse or former spouse of the perpetrator.
A violation of subdivision (1) of this section is rape in the first degree, which is a Class 1 felony. A violation of subdivision (2), (3), or (4) of this section is rape in the second degree, which is a Class 2 felony. A violation of subdivision (5), (6), or (7) of this section is rape in the third degree, which is a Class 3 felony. Notwithstanding § 23A-42-2 a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.
[5] We do note, however, that the seriousness of the amended crime is not dispositive. See infra ¶ 24.
[6] In determining whether Chernotik's conviction was for the same incident alleged in the initial complaint, it is highly significant that there was only one incident of fellatio that ever allegedly occurred in the family hot tub at their home in Chamberlain. The day before the original complaint was filed, J.C. and other witnesses were interviewed about Chernotik's abuse. Although J.C. described an ongoing pattern of sexual abuse, he only described two specific incidents that became charged conduct in this case. One incident involved an attempted anal penetration, but that count of the complaint (Count IV) was ultimately dismissed. The hot tub incident (Count III) was the only other specific incident mentioned. J.C. indicated in that April 24, 2001 interview that the hot tub incident occurred when he lived in Chamberlain between 1983 and 1986. He remembered the incident because it was the first time Chernotik ejaculated into J.C.'s mouth. Because J.C. did not relate any other specific incidents, there is nothing in the record to suggest that the amendments broadened or substantially changed the incident originally charged.
[7] A "new and different offense" does not necessarily preclude relation back. As previously noted, substantive changes in charges may relate back. See Grady, 544 F.2d at 602; Almeda, 560 A.2d at 392; see also Whitfield, 24 Cal.Rptr.2d at 215.
[8] Section 18-6101 of the Idaho statute is analytically the same as SDCL 22-22-1. The Idaho statute provided:
Rape is an act of sexual intercourse accomplished with a female under either of the following circumstances:
1. Where the female is under the age of eighteen (18) years.
2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.
3. Where she resists but her resistance is overcome by force or violence.
4. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating narcotic, or anaesthetic [sic] substance administered by or with the privity of the accused.
5. Where she is at the time unconscious of the nature of the act, and this is known to the accused.
6. Where she submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.
LaMere, 655 P.2d at 48 n. 1 (emphasis added). Like the Idaho statute, SDCL 22-22-1 provides:
Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
(1) If the victim is less than ten years of age; or
(2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim's presence, accompanied by apparent power of execution; or
(3) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or
(4) If the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis; or
(5) If the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim; or
(6) If persons who are not legally married and who are within degrees of consanguinity within which marriages are by the laws of this state declared void pursuant to § 25-1-6, which is also defined as incest; or
(7) If the victim is ten years of age but less than eighteen years of age and is the child of a spouse or former spouse of the perpetrator....
[9] Under this amended charge, Chernotik was actually subject to a lesser penalty. See supra ¶ 15.
[10] Defendant's alleged misconduct against this victim and C.O. was initially reported by their parents to the Department of Social Services and the State's Attorney in 1993, eight years before the statute of limitation expired and eight years before the State's Attorney eventually took action on the case in April, 2001. | 01-03-2023 | 06-13-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579094/ | 267 Wis.2d 414 (2003)
2003 WI App 206
671 N.W.2d 11
CITIZENS' UTILITY BOARD (CUB), James Hannemann, David Hannemann, Bill and Fern Rowney, Sandy Lyon and Russel Decker, Petitioners,
SAVE OUR UNIQUE LANDS (SOUL) and Wisconsin's Environmental Decade (WED), Appellants,
Thomas and Margaret KREAGER, David and Lisa Graves, Raymond and Helena Jiskra, Marie Krenzelok, Bert Robertson, Marshall Robinson, Edward and Tamara Nichols, Roger and Maria Svoma, Gerald and Sally Bargender, Donald and Gladys Bauman, Bill Bonsall, Lowell Borchardt, Dennis and Sandy Cihlar, Allan and Peggy Cihlar, Bill and Nancy Dittman, Jeff and Tammy Fischer, Phil Hackel, Chester and Irene Hoffman, Henry and Marsha Imhoff, James Knauf, Neal Koepke, Jerry and Julie Kurth, Steve Soczka, Francis Steiber, Joel and Marcia Stencil, Ernie and Evelyn Walters, Lawrence and Joan Wirkus, Dale Pilgrim, Lawrence Svanda, June Svanda, Fred Svanda, Michael and Lynette Weis, Franke and Connie Wirkus, Timothy and Zoe Miller, Paul Meyer, Margaret and Claude Buchberger, Rick Magyar and Cynthia Haag, Intervenors-Appellants,
v.
PUBLIC SERVICE COMMISSION OF WISCONSIN and Wisconsin Public Service Corporation, Respondents-Respondents,
AMERICAN TRANSMISSION COMPANY LLC and ATC Management Inc. (collectively ATC), Municipal Electric Utilities of Wisconsin, Federation of Cooperatives, Dairyland Power Cooperative, Minnesota Power, Wisconsin Paper Council, and Wisconsin Merchants Federation, Respondents.
No. 02-1834,
Court of Appeals of Wisconsin.
Submitted on briefs May 12, 2003.
Decided September 23, 2003.
*417 On behalf of the appellants, the cause was submitted on the briefs of Pamela R. McGillivray, Glenn M. Stoddard and Edward R. Garvey and Garvey & Stoddard, S.C.; and Frank Jablonski and Porter, Jablonski & Associates S.C. of Madison.
*418 On behalf of the respondents-respondents, the cause was submitted on the brief of Robert J. Mussallem, of Public Service Commission of Wisconsin of Madison.
On behalf of respondents, there was a brief by Trevor J. Will, Bartholomew F. Reuter and Foley & Lardner of Milwaukee for Wisconsin Public Service Commission; Deborah A. Amberg, Steven W. Tyacke of Duluth, MN, for Minnesota Power Company; and David J. Hanson, Lauren L. Azar and Michael, Best & Friedrich LLP of Madison for American Transmission Company LLC and ATC Management Inc.
On behalf of respondents, there was a brief by Anita T. Gallucci and Boardman, Suhr, Curry & Field, LLP of Madison for Municipal Electric Utilities of Wisconsin; Warren J. Day of Madison for Wisconsin Federation of Cooperatives; and Rebecca A. Schmidt of Madison for Wisconsin Merchants Federation.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1. HOOVER, P.J.
Save Our Unique Lands (SOUL) and Wisconsin's Environmental Decade (WED) were parties before the Public Service Commission of Wisconsin (PSC), an administrative agency, along with Citizens' Utility Board (CUB) when the PSC approved the placement of the Arrowhead-Weston power line.[1] CUB, SOUL, and WED each petitioned for judicial review of the PSC's decision. Wisconsin Public Service Corporation (WPS) moved to dismiss SOUL's and WED's petitions for improper service. SOUL and WED then filed a conditional motion for intervention in CUB's case, contingent upon the court granting WPS's *419 motion. The court dismissed the two parties' petitions for judicial review and then denied the motion for intervention, calling it an attempt to circumvent the statutory requirements and deeming it untimely. We agree with the trial court's conclusion and therefore affirm the order.
Background
¶ 2. The Arrowhead-Weston power line is a proposed 345 kilovolt high voltage transmission line that would supply electricity to parts of Wisconsin. It would originate in Duluth, Minnesota, and crosses a large part of Wisconsin to terminate near Weston in Marathon County. WPS would own the line. CUB, SOUL, and WED objected to the line before the PSC, citing various environmental and aesthetic concerns. Nonetheless, the PSC approved placement of the line on October 30, 2001.
¶ 3. On November 29, 2001, the last day to file petitions for judicial review, CUB, SOUL, and WED each filed their petitions for review. Each petition was assigned a different case number and, although they were assigned to the same judge for coordination, they were never consolidated.
¶ 4. On January 9, 2002, WPS filed a motion to dismiss SOUL's and WED's petitions for improper service. On January 11, the trial court notified CUB, SOUL, and WED that it would hear any intervention petitions on March 25. On January 17, the trial court sent notice that it would also hear WPS's motion on March 25.
¶ 5. On March 22, SOUL and WED filed a motion to intervene, contingent upon the trial court's dismissal of their petitions for review and for the purpose of *420 resurrecting the seventeen issues in their petitions for review. Sixteen of those issues had not been raised by CUB. WPS objected.
¶ 6. At the March 25 hearing, the trial court granted WPS's motion to dismiss for lack of subject matter jurisdiction. It did not, however, discuss the petitions for intervention but instead adjourned the hearing to accommodate a briefing schedule. On April 8, SOUL and WED filed an amended motion to intervene. On June 5, the court denied SOUL and WED's motion for intervention. It concluded that they failed to comply with the procedural requirements for filing their own petitions for review and the time for joining CUB's petition had passed, resulting in a forfeiture of any right to intervene. The court also concluded that in any event, the petition for intervention was untimely under Wis. STAT. § 227.53(1)(d).[2] SOUL and WED appeal. We affirm the order.[3]
Discussion
[1-3]
¶ 7. We are not asked to review the administrative agency decision underlying this case. Instead, the question is whether the trial court properly denied SOUL and WED's petition for intervention. Whether to allow intervention is a discretionary decision for the trial court. Town of Delevan v. City of Delevan, 160 Wis. 2d *421 403, 415, 466 N.W.2d 227 (Ct. App. 1991). Normally, a trial court considers whether the potential intervenor has standing and whether that intervenor's interests are already adequately represented by another party. Id. However, SOUL and WED allege the trial court misinterpreted the statute in reaching its decision. A discretionary decision based on an error of law is an erroneous exercise of that discretion. State v. Gesch, 167 Wis. 2d 660, 666, 482 N.W.2d 99 (1992).
[4-9]
¶ 8. Construction of a statute is a question of law that we review de novo. State v. Dean, 163 Wis. 2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991). When we interpret a statute, our purpose is to ascertain legislative intent and give it effect. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). The primary source for the statute's construction is the statutory language itself. Dean, 163 Wis. 2d at 510. If the language is unambiguous, we arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. Id. Moreover, although a word or a phrase may seem ambiguous standing alone, the context of the word or phrase may eliminate the ambiguity. State v. Johnson, 171 Wis. 2d 175, 181, 491 N.W.2d 110 (Ct. App. 1992). Under noscitur a sociis, ordinarily the coupling of words denotes an intention that they be understood in the same general sense. Id. That is, a word "is known from its associates." Id. (citation omitted).
¶ 9. Under WIS. STAT. § 227.53(1), any person aggrieved by an administrative agency decision "shall be entitled to judicial review."[4] The petition must be filed and served within thirty days of service of the agency's *422 decision. Wis. STAT. § 227.53(1)(a)2. The petition must *423 be served on all parties to the agency decision, especially when the agency decision specifically lists parties "for purposes of review"; § 227.53(1)(c) prohibits the court from dismissing a proceeding for review solely because of lack of service "unless the petitioner fails to serve a person listed as a party for purposes of review . . . ." These parties to the agency proceedings have the right to participate in the judicial review proceedings. Wis. STAT. § 227.53(1)(d). Participation of other parties is a discretionary decision for the trial court. Id. If a party served with a petition for review wishes to exercise its right to participate in the review, it must serve a notice of appearance stating its position on each allegation in the petition for review as well as an opinion as to whether the agency's decision should affirmed, modified, or vacated. Wis. STAT. § 227.53.
¶ 10. SOUL and WED thus had two statutory options for obtaining judicial review of the PSC's decision approving the Arrowhead-Weston line. First, they had the right to file a petition for review, which each did. However, they failed to comply with the service requirements, depriving the trial court of jurisdiction.[5] Second, SOUL and WED could have filed a notice of appearance in CUB's petition for review. The record is not clear why they did not, although we suspect two reasons: SOUL and WED likely expected to proceed *424 on their own petitions, and CUB's petition raised only one issue compared to SOUL and WED's seventeen.
¶ 11. The trial court concluded first that SOUL and WED were attempting to circumvent their own ineffective petitions for review. SOUL and WED, however, contend they are "Any person petitioning the court to intervene" under Wis. STAT. § 227.53(1)(d) and their petition should have been granted. We disagree.
¶ 12. WISCONSIN STAT. § 227.53(1)(d) starts by granting "the agency and all parties to the proceeding before it" the right to participate in judicial review proceedings filed by other individuals. The next sentence, however, gives the court discretion to allow "other interested persons to intervene" in the judicial review. Because the prior sentence gave parties to the agency proceeding the right to participate in judicial review proceedings, the parties are not part of the group referred to as "other interested persons" and therefore are not entitled to petition for permissive intervention.[6]
[10]
¶ 13. The next sentence states that "Any person petitioning the court to intervene" shall follow a certain procedure for service of the intervention petition. SOUL and WED contended they are "any person." However, the only people allowed to petition for intervention are the "other interested persons." SOUL and WED are not other interested persons with the right to seek intervention. Instead, they are parties who participated in the agency proceeding. Their ability to participate *425 in judicial review proceedings originates from different authority from the intervenors' ability to participate. SOUL and WED are not "any person." They are parties to the administrative proceedings who, through their own actions, invalidated their own participation in the judicial review.
¶ 14. We also acknowledge the trial court's concern with SOUL and WED's attempt to circumvent their procedural errors. The court noted Weina v. Atlantic Mut. Ins. Co., 177 Wis. 2d 341, 501 N.W.2d 465 (Ct. App. 1993), where the question was "whether a person who fails to file a timely notice of appeal may participate in the appeal through intervention or by the filing of a nonparty [amicus] brief." Id. at 347. We answered that question in the negative, concluding that the "jurisdictional time limit for the commencement of an appeal would be circumvented" if we granted the petition for intervention in the appeal or amicus status. Id. We wrote that the petitioners could not "be allowed to do indirectly what they cannot do directly." Id.
¶ 15. Similarly, a petition for judicial review of an administrative agency decision is the functional equivalent of an appeal. SOUL and WED failed to take the steps necessary to participate directly in the review, and now attempt to do so indirectly. The trial court concluded under Weina that such a result would be improper. We agree.
¶ 16. Even if we decided that the court could grant SOUL and WED intervenor status, the court correctly determined that their petition was time-barred. WISCONSIN STAT. § 227.53(1)(d) states, "Any person petitioning the court to intervene shall serve a copy of the petition on each party who appeared before the agency and any additional parties to the judicial review at least 5 days prior to the date set for hearing on the *426 petition." (Emphasis added.) SOUL and WED make two arguments. First, they argue that "the hearing" in the statute refers to the hearing on the judicial review petition, not the intervention petition. Second, they argue that if the hearing means the intervention hearing, their petition was timely because although the original hearing was March 25, it was ultimately adjourned until June 5. Again, we disagree.
¶ 17. Persons wishing to intervene must petition the court. Wis. STAT. § 227.53(1)(d). The court should then hold a hearing on whether to grant intervention because intervention is permissive, not automatic. See id. ("The court may permit other interested persons to intervene."). Although technically the court could simply grant or deny the petition, such a situation would be unusual because it would not give any party an opportunity to present argument for or against intervention. The intervention hearing also must come before the judicial review proceeding or intervention would be moot. Moreover, there is no "hearing" on a petition for judicial review; filing the petition for review triggers the commencement of the action. See Gimenez v. State Med. Exam. Bd., 229 Wis. 2d 312, 317, 600 N.W.2d 28 (Ct. App. 1999). There is no hearing to decide whether to proceed. The hearing on a petition for judicial review is the judicial review itself.
[11]
¶ 18. Moreover, while SOUL and WED point out that elsewhere in Wis. STAT. § 227.53 "the petition" refers to the petition for judicial review, this particular paragraph is dedicated to intervention procedure. We deem this to mean that the default "petition" in the subsection is the intervention petition. The subsection specifically uses "judicial review" only when it is necessary to make a distinction: "Any person petitioning *427 the court to intervene shall serve a copy of the petition on each party who appeared before the agency and any additional parties to the judicial review at least 5 days prior to the date set for hearing on the petition." (Emphasis added.) "Judicial review" serves only to identify the additional parties; the only petition referred to in this subsection is the petition for intervention.
[12]
¶ 19. SOUL and WED alternatively contend their petition for intervention was timely. They served their petition on March 22, three days before the March 25 intervention hearing.[7] However, they contend that the real hearing date was June 5 because the trial court adjourned the March 25 hearing. We disagree. The court adjourned the hearing for briefing, not to extend the timeline for filing intervention motions. The court was not required to allow briefing and could have proceeded to a decision March 25 if it had been so inclined, effectively eliminating SOUL and WED's argument. In any event, SOUL and WED were notified on January 11 that the intervention hearing would be March 25, and by January 17 SOUL and WED knew they faced possible dismissal of their petitions for review. Their March 22 petition for intervention was untimely.
¶ 20. Because SOUL and WED failed to avail themselves of their statutory right to participate in judicial review, they may not now attempt to join the review proceedings through intervention. Even if they *428 were entitled to file for intervention, their motion was untimely. The trial court properly exercised its discretion by denying SOUL and WED's petition to intervene in CUB's judicial review proceeding.
By the Court.Order affirmed.
NOTES
[1] SOUL and WED are the only appellants that submitted a brief.
[2] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[3] The order also denied SOUL and WED's request to file amicus curiae briefs. Because SOUL and WED fail to address this part of the order in their briefs, we deem it abandoned. See Reiman Assocs. v. R/A Adver., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981).
[4] WISCONSIN STAT. § 227.53 states in relevant part:
(1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.52 shall be entitled to judicial review of the decision as provided in this chapter and subject to all of the following procedural requirements:
(a) 1. Proceedings for review shall be instituted by serving a petition . . . upon the agency or one of its officials, and filing the petition in the office of the clerk of the circuit court for the county where the judicial review proceedings are to be held. . . .
2. . . . [P]etitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties . . . .
. . . .
(c) A copy of the petition shall be served personally or by certified mail or, when service is timely admitted in writing, by first class mail, not later than 30 days after the institution of the proceeding, upon each party who appeared before the agency in the proceeding in which the decision sought to be reviewed was made or upon the party's attorney of record. A court may not dismiss the proceeding for review solely because of a failure to serve a copy of the petition upon a party or the party's attorney of record unless the petitioner fails to serve a person listed as a party for purposes of review in the agency's decision under s. 227.47 or the person's attorney of record.
(d) . . . [T]he agency and all parties to the proceeding before it, shall have the right to participate in the proceedings for review. The court may permit other interested persons to intervene. Any person petitioning the court to intervene shall serve a copy of the petition on each party who appeared before the agency and any additional parties to the judicial review at least 5 days prior to the date set for hearing on the petition.
(2) Every person served with the petition for review as provided in this section and who desires to participate in the proceedings for review thereby instituted shall serve upon the petitioner, within 20 days after service of the petition upon such person, a notice of appearance clearly stating the person's position with reference to each material allegation in the petition and to the affirmance, vacation or modification of the order or decision under review.
[5] Normally, a lack of service deprives a court of personal, not subject matter, jurisdiction. However, the trial court concluded that it was deprived of subject matter jurisdiction in case Nos. 01-CV-900 and 01-CV-902. These were the case numbers assigned to SOUL's and WED's petitions for review. Rather than appeal the trial court's decisions in those cases, SOUL and WED instead opted to attempt intervention in CUB's case, No. 01-CV-901. The propriety of the trial court's dismissal of Nos. 01-CV-900 and 01-CV-902 is not before us.
[6] In any event, it seems that parties following the appropriate procedure for filing their own request for review or appearance in another party's petition should not need to attempt intervention.
[7] SOUL and WED argue that because their petitions for review were still active until dismissed on March 25, they should not have been expected to file a motion to intervene five days before the March 25 hearing. This argument is unavailing, however, because following this logic, SOUL and WED would not have filed their March 22 motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579131/ | 671 N.W.2d 173 (2003)
In re Petition for DISCIPLINARY ACTION AGAINST Ernest E. CUTTING, a Minnesota Attorney, Registration No. 20576.
No. A03-926.
Supreme Court of Minnesota.
November 20, 2003.
Kenneth L. Jorgensen, Director, Martin A. Cole, First Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Appellant.
Ernest E. Cutting, Minneapolis, MN, Pro Se.
*174 Heard, considered, and decided by the court en banc.
OPINION
PER CURIAM.
Respondent, Ernest E. Cutting, has been licensed to practice law in Minnesota since October 16, 1968. In a Petition for Disciplinary Action (Petition) filed on July 16, 2003, the Director of the Office of Lawyers Professional Responsibility (Director) alleged that Cutting engaged in a pattern of misconduct involving 14 separate clients by "failing to timely file probate annual reports, affidavits of mailing, and receipts with the probate court and failing to promptly comply with probate orders" in violation of Rules 1.3, 3.4(c), and 8.4(d) of the Minnesota Rules of Professional Conduct (MRPC). In addition, the Petition alleged that Cutting failed to cooperate with the Director's investigation into the misconduct in violation of Minn. R. Prof. Conduct 8.1(a)(3) and Rule 25 of the Rules on Lawyers Professional Responsibility (RLPR).[1] Subsequent to the Petition, Cutting failed to serve or file an answer to the Petition and, by order filed August 7, 2003, this court, pursuant to Rule 13(b), RLPR, deemed the allegations contained in the Petition admitted. The Director recommends that Cutting be indefinitely suspended from the practice of law.
In 1987, Cutting was suspended from the practice of law for 30 days and placed on two years' supervised probation for mismanagement of a guardianship estate and failure to cooperate with the disciplinary proceedings. In re Cutting, 413 N.W.2d 505, 506 (Minn.1987).
Because the allegations contained in the Petition have been deemed admitted, the only issue this court must resolve is the appropriate discipline to be imposed on Cutting. The purpose of lawyer discipline is to protect the courts, the public, and the legal profession, and to guard the proper administration of justice. In re Bishop, 582 N.W.2d 261, 263 (Minn. 1998). This court considers four factors in determining the appropriate discipline: "(1) the nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public, and (4) the harm to the legal profession." In re Muenchrath, 588 N.W.2d 497, 500 (Minn.1999). While this court may turn to cases involving similar misconduct in determining the appropriate discipline, each case is decided on its unique facts and circumstances. In re Brehmer, 642 N.W.2d 431, 433 (Minn. 2002).
Neglect in handling probate matters is considered serious professional misconduct. In re Braseth, 352 N.W.2d 22, 23 (Minn.1984). Typically, this court imposes an "indefinite suspension in cases involving a continued pattern of client neglect when no evidence of mitigating circumstances is present." In re Geiger, 621 N.W.2d 16, 23 (Minn.2001). In Braseth, a lawyer who seriously neglected five estate matters was indefinitely suspended for a minimum of two years. 352 N.W.2d at 23-24. In In re Olson, a lawyer who neglected 15 estates and submitted forged receipts to the court was suspended for six months with the understanding that he would retire thereafter. 442 N.W.2d 782, 783 (Minn.1989). Here, unlike Braseth, Cutting's neglect did not harm his clients financially. Yet, in the matters where Cutting served as the lawyer for a guardian or conservator, his *175 clients were harmed by his neglect in that citations to appear were sent to them and they faced the possibility of further punishment if Cutting continued to neglect his duties. Further, as the Comment to Minn. R. Prof. Conduct 1.3 points out, procrastination may be the most widely resented fault in the profession. Cutting's neglect harms the profession as a whole. Cutting's neglect also led to the waste of judicial resources as the probate court was repeatedly forced to "baby-sit" Cutting to get him to perform his duties.
This court has disciplined lawyers who failed to comply with court orders and failed to appear at hearings. In re Haugen, 373 N.W.2d 600, 600-01 (Minn.1985) (ordering a public reprimand and two years' supervised probation for misconduct that included failing to comply with a discovery order and failing to appear for a hearing); In re Truelson, 427 N.W.2d 674, 674 (Minn.1988) (ordering an indefinite suspension for misconduct that included failing to comply with discovery requests and court orders and failing to cooperate with the disciplinary investigation).
Cutting's misconduct is exacerbated by the fact that he has not cooperated with the Director's investigation into his misconduct. Indeed, the failure to cooperate with the disciplinary process constitutes misconduct warranting discipline independent from the conduct underlying the Petition. In re Engel, 538 N.W.2d 906, 907 (Minn.1995); see also In re Thedens, 557 N.W.2d 344, 349 (Minn.1997) (stating that failing to attend a panel meeting was at least as serious a violation as failing to attend a prehearing meeting and merited a suspension). In Engel, this court noted the importance of cooperating and stated that the lawyer's failure to cooperate "greatly hampered the investigatory efforts and demonstrates respondent's failure to acknowledge either the seriousness of the proceeding or her disregard for her basic obligations as an attorney or a present inability to deal with any consequences for her actions." 538 N.W.2d at 907. The same can be said for Cutting's failure to cooperate. In Engel, this court held that the failure to cooperate warranted an indefinite suspension from the practice of law. Id.
This court also notes that previous misconduct of the same type is considered an aggravating factor when determining the appropriate discipline. In re Bernard, 534 N.W.2d 272, 276-77 (Minn.1995); In re Getty, 452 N.W.2d 694, 698 (Minn.1990). This court has imposed more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined. In re Thedens, 602 N.W.2d 863, 867 (Minn.1999). In fact, this court has held that suspension followed by probation or disbarment is a proper sanction when the misconduct in the second case is a virtual repeat of the earlier misconduct. Getty, 452 N.W.2d at 698. In this case, Cutting was previously disciplined for mismanaging and mishandling an estate and failing to cooperate with the disciplinary process. Cutting, 413 N.W.2d at 505-06. The nature of his current misconduct is similar to that earlier misconduct.
Based on the record before us, we conclude that Cutting has engaged in serious misconduct warranting discipline. Therefore, we order that effective 20 days from the date of this order Edward E. Cutting be indefinitely suspended from the practice of law, pay $900 in costs and disbursements pursuant to Rule 24, RLPR, and comply fully with Rule 26, RLPR. If Cutting seeks reinstatement, he shall also comply fully with Rule 18, RLPR, and, if reinstated, he shall be placed on supervised probation for a period of two years.
*176 APPENDIX
The allegations as set out in the Petition are as follows:
FIRST COUNT
1. On August 1, 2002, Judge Michael T. DeCourcy filed a complaint against respondent.
2. Based upon the subsequent investigation, the Director has determined the following: Respondent serves as Guardian, Conservator or Personal Representative in numerous Ramsey County Probate court matters. Respondent also serves as attorney for the Guardian, Conservator or Personal Representative in other matters.
3. Pursuant to Minnesota Statute[s] § 525.58, respondent in his fiduciary capacities is obligated to annually file Annual Accounts, a Notice of Right to Petition (Notice) and other reports regarding the ward, conservatee or estate.
4. Respondent neglected numerous probate court matters and failed to comply with statutory obligations, as follows:
A. Respondent Serves As Guardian or Conservator
Elaine K. Cooper
5. On July 25, 1990, the probate court issued an order appointing respondent general conservator of the person and estate of Elaine K. Cooper. Respondent failed to timely file the 7th Annual Account on or before August 24, 1998. The probate court notified respondent on September 14 and again on October 19, 1998, that he had failed to timely file the 7th Annual Account, Annual Notice of Rights and Personal Well Being Report.
6. On December 17, 1998, the court issued a citation to respondent to personally appear on January 12, 1999, to show cause why the documents had yet to be filed. Respondent filed the documents on January 12, 1999.
7. Respondent failed to timely file the 8th Annual Account on or before August 24, 1999. On September 13 and again on October 26, 1999, the probate court notified respondent that he had failed to timely file the 8th Annual Account, Annual Notice of Rights and Personal Well Being Report.
8. On December 13, 1999, the court issued a citation to respondent to personally appear on January 26, 2000, to show cause why the annual documents had yet to be filed. Respondent appeared at the January 26, 2000, hearing and filed the documents.
9. Respondent failed to timely file the 9th Annual Account on or before August 24, 2000. On September 11 and October 16 and/or 17, 2000, the probate court notified respondent that he had failed to timely file the 9th Annual Account, Annual Notice of Rights and Personal Well Being Report.
10. On November 30, 2000, the court issued a citation to respondent to personally appear on January 24, 2001, to show cause why the annual documents had yet to be filed. Respondent appeared at the January 24, 2001, hearing and filed the documents.
11. On March 5, 2001, the court held a hearing for the examination of the 8th and 9th Annual Accounts. The accounts were allowed subject to the filing of the Affidavit of Mailing of the Notice Setting the Time and Place for the Examination of the Account.
12. On March 12 and April 17, 2001, the probate court notified respondent that he had failed to timely file the Final Account as Ms. Cooper died on December 23, 2000. Respondent failed to file the documents. The court issued a citation on May *177 25, 2001, to respondent to personally appear on June 27, 2001, and show cause why the Final Account was delinquent. Respondent filed the Final Account on May 31, 2001.
13. On May 31, 2001, the court issued a Notice and Order Fixing the Time and Place of the Hearing as July 9, 2001. On July 9, 2001, the court held a hearing to examine the Final Account. The court granted the final account and discharged respondent as the conservator subject to the filing of receipts for assets. The court directed respondent to file the receipts.
14. On August 13 and October 4, 2001, the probate court sent written requests to respondent to file the receipts for assets. Respondent failed to file the requested receipts. On January 18, 2002, the probate court issued a citation to respondent to personally appear on March 27, 2002, to show cause why the receipts for the assets had yet to be filed.
15. Respondent appeared at the March 27, 2002, hearing before the probate court but failed to file the asset receipts. The court continued the citation hearing to April 30, 2002. The court also set a hearing to surcharge respondent's bond.
16. The April 30, 2002, citation hearing was continued to May 28, 2002, to allow respondent to provide asset receipts or present testimony as to what happened to the assets. On April 30, 2002, the probate court sent a notice of the May 28, 2002, hearing to respondent.
17. Respondent failed to appear at the May 28, 2002, hearing. The court requested a Notice of a Writ of Attachment for respondent and set bail at $100. On June 6, 2002, the Notice of Writ of Attachment was sent to respondent.
18. On June 12, 2002, respondent telephoned the probate court to reschedule the hearing to June 17, 2002. Respondent filed the receipt for the assets and a Petition for Discharge of Conservator at the time of the June 17, 2002, hearing. The court cited respondent for failure to timely file the receipts for the assets. It was determined by the court pursuant to the heirs' receipts for assets that respondent never held any assets of the estate.
19. Respondent was discharged as conservator on November 8, 2002.
Margaret A. Hockert
20. On August 9, 1983, the probate court appointed respondent general conservator of the person and estate of Margaret A. Hockert. Ms. Hockert died on May 23, 2000. Respondent failed to timely file the 17th and Final Accounts on August 9, 2000. On September 18, October 23 and 31, 2000, the probate court issued notices to respondent to file the 17th Annual Account and accompanying documentation.
21. On December 13, 2000, the probate court issued respondent a citation to personally appear on January 24, 2001, to show cause why the documents had yet to be filed. Respondent appeared at the January 24, 2001, hearing and was granted an extension to file the annual reports in one week. Respondent failed to file the reports.
22. On February 15, 2001, the probate court manager wrote to respondent and requested the reports be filed immediately. Respondent was also placed on notice that his pattern of filing late reports was sufficient grounds for filing an ethics complaint. Respondent failed to file the annual reports.
23. On March 21, 2001, the probate court issued respondent a citation to personally appear on April 9, 2001, and show cause why the documents had yet to be filed and why the court should not remove respondent as conservator and find respondent *178 in contempt of court. The citation, which was sent to respondent by certified mail, return receipt requested, was unclaimed by respondent and returned to the probate court.
24. Following the April 9, 2001, hearing respondent was directed to file the annual reports within two weeks. Respondent failed to file the annual reports. On April 13, 2001, the court notified respondent that he had yet to file the annual reports as directed by the court. Respondent was directed to file the documents immediately. Respondent filed the Final Account on May 7, 2001.
25. Pursuant to order filed June 6, 2001, the court allowed the Final Account. Respondent's petition for discharge was not granted but was subject to filing the receipts for assets.
26. On July 10, 2001, the probate court requested respondent to file the receipts for assets for the balance of cash on the Final Account. Respondent was requested to file the receipts on or before August 1, 2001. Respondent failed to file the receipts. On August 13, 2001, the court made a second request for the cash receipts to be filed with the court by September 4, 2001. Respondent again failed to comply with the court's requests.
27. On October 8, 2001, the probate court issued respondent a citation to personally appear on October 24, 2001, to show cause why the receipts for assets had yet to be filed. At the October 24, 2001, hearing respondent failed to file the requested receipts as provide[d] by the court. The court granted a 30-day extension to file the receipts as the life insurance policy had yet to be collected.
28. On January 16 and February 26, 2002, the probate court sent notices to respondent to file the receipts for assets. Respondent failed to comply with the court's requests. On April 8, 2002, the probate court issued respondent a citation to personally appear on April 30, 2002, to show cause why the receipts for assets had not been filed. On April 30, 2002, the citation hearing was continued to May 28, 2002, to allow respondent to file the receipts for assets and present additional testimony.
29. The probate court issued a writ of attachment after respondent failed to appear at the May 28, 2002, citation hearing and continued the matter to June 17, 2002. On June 11, 2002, respondent filed the receipts for assets and a Petition for Discharge of Conservator.
30. At the June 17, 2002, hearing respondent was cited for failure to file the receipts for assets. The probate court also granted respondent's Petition for Discharge.
Scott T. Dewald
31. On January 4, 1990, respondent was appointed general guardian of the person and estate of Scott T. Dewald.
32. Respondent failed to timely file the 12th Annual Account on February 3, [2002]. On February 25 and April 2, 2002, the probate court sent notices requesting respondent file the 12th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court's requests.
33. On May 8, 2002, the court issued a citation to respondent for failure to file the 12th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent was cited and required to personally appear on June 19, 2002, before the probate court to show cause why the documents had not been filed.
34. The court struck the hearing upon receipt as the 12th Annual Account and citation had crossed in the mail.
*179 Betty L. Young
35. On October 25, 1983, respondent was appointed general conservator of the person and estate of Betty L. Young. Respondent failed to timely file the 12th Annual Account on or before November 24, 1995. On November 8 and December 5, 1995, the probate court sent notices to respondent requesting he file the delinquent 12th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply.
36. On February 12, 1996, the probate court issued respondent a citation to personally appear on March 12, 1996, to show cause why the 12th Annual Account and accompanying documents had not been filed. Respondent filed the delinquent annual account on March 7, 1996. Pursuant to court order dated April 16, 1996, the 12th Annual Account was allowed.
37. Respondent failed to timely file the 14th Annual Account on or before November 24, 1997. On December 8, 1997, and January 12, 1998, the probate court sent notices to respondent requesting he file the delinquent 14th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply.
38. On February 25, 1998, the probate court issued a citation to respondent to personally appear on March 24, 1998, to show cause why the 14th Annual Account and accompanying documents had not been filed. The March 24, 1998, citation hearing was continued to April 28, 1998. Respondent filed the delinquent annual account on March 24, 1998. Pursuant to court order dated April 14, 1998, the 14th Annual Account was allowed.
39. Respondent failed to timely file the 16th Annual Account on or before November 24, 1999. On December 6, 1999, and January 11, 2000, the probate court sent notices to respondent requesting he file the delinquent 16th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply.
40. On February 16, 2000, the probate court issued respondent a citation to personally appear on March 22, 2000, to show cause why the 16th Annual Account and accompanying documents had not been filed. Respondent filed the 16th Annual Account on March 1, 2000, and the court struck the March 22, 2000, citation hearing.
41. Respondent failed to timely file the 17th Annual Account. On December 4, 2000, and January 11, 2001, the probate court sent notices to respondent requesting he file the delinquent 17th Annual Account. Respondent failed to comply. On February 16, 2001, the probate court issued respondent a citation to personally appear on March 28, 2001, to show cause why the 17th Annual Account and accompanying documents had not been filed. Respondent filed the 17th Annual Account on March 9, 2001. Respondent was present at the March 28, 2001, citation hearing. Pursuant to court order dated April 24, 2001, the court allowed the 17th Annual Account.
42. Respondent filed to timely file the 18th Annual Account on or before November 24, 2001. On December 10, 2001, and January 15, 2002, the probate court sent notices to respondent requesting he file the delinquent 18th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply.
43. On February 25, 2002, the probate court issued respondent a citation to personally appear on March 27, 2002, to show cause why the 18th Annual Account and accompanying documents had not been *180 filed. Respondent appeared at the March 27, 2002, citation hearing and filed the 18th Annual Account. The 18th Annual Account was allowed pursuant to court order filed May 6, 2002.
Marion H. Carlson
44. On October 9, 1985, respondent was appointed general conservator of the estate of Marion H. Carlson. Respondent failed to timely file the 14th Annual Account on or before November 8, 1999. On November 22 and December 28, 1999, the probate court sent notices to respondent directing him to file the 14th Annual Account, Annual Notice of Rights, [and] Personal Well Being Report. Respondent failed to timely file the documents with the court.
45. On February 8, 2000, the probate court cited respondent and required him to personally appear before the court on March 22, 2000, and show cause why the documents had not been filed. Respondent filed the documents on March 2, 2000. On March 9, 2000, the probate court's citation to respondent, sent by certified mail, was returned by the post office as unclaimed.
46. On April 3, 2000, the 14th Annual Account came on for hearing. The court was unable to review the matter as scheduled due to respondent's failure to file the affidavit of mailing which signifies that he notified interested parties of the [] time and place of the hearing. Thereafter, on April 3, 2000, the court wrote to respondent and requested he file the affidavit of mailing. Respondent filed the affidavit of mailing on April 14, 2000. The court allowed the 14th Annual Account on April 14, 2000.
47. Respondent failed to timely file the 15th Annual Account on November 9, 2000. On November 20 and December 27, 2000, the probate court sent notices to respondent requesting him to file the 15th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to file the documents.
48. On February 12, 2001, the probate court issued a citation to respondent and required him to personally appear before the court on March 28, 2001, to show cause why the documents had not been filed. On March 13, 2001, respondent filed the documents.
49. The 15th Annual Account came on for hearing on April 23, 2001. Respondent failed to submit to the court his conservator time records for the accounting period. On April 23, 2001, the court wrote to respondent and advised him that the conservator's fees were high and directed respondent to submit time records. The April 23, 2001, court hearing was continued to May 21, 2001.
50. On May 21, 2001, the court convened to review the conservator's time records. Respondent had failed to file the time records as previously directed by the court. On May 21, 2001, the court issued a letter to respondent requesting the time records in one week.
51. Respondent failed to submit the time records as required by the court. The court continued the June 5, 2001, hearing to July 3, 2001. On June 5, 2001, the court provided respondent notice that he was required to submit the time records prior to the July 3, 2001, hearing.
52. On July 3, 2001, a hearing was conducted to consider the 15th Annual Account. The court issued an order on July 12, 2001, approving the 15th Annual Account.
Mary Jo Kellner
53. On July 22, 1988, respondent was appointed guardian of the person and estate of Mary Jo Kellner. On September *181 23, 1993, the court issued an order for the examination of the 5th Annual Account to be heard on October 18, 1993. On September 23, 1993, respondent filed the 5th Annual Account with the probate court. On October 18, 1993, the court notified respondent that it had disallowed the 5th Annual Account due to respondent's failure to serve an affidavit of mailing of the Order Fixing Time and Place of Hearing.
54. On August 2, 1994, the court, having never received the affidavit of mailing of the Notice, Personal Well Being Report and Annual Account with categorized vouchers, issued a reminder notice to respondent to file documents by September 2, 1994. Respondent failed to comply with the court's notice.
55. On September 8, 1994, a notice and order to appear was issued to respondent advising him that a citation would be issued for his appearance to show cause why the annual documents had not been filed.
56. Respondent filed the affidavit of mailing for the 5th Annual Account and the 6th Annual Account documents on September 9, 1994. On September 9, 1994, the court issued the Order for Examination of the 5th and 6th Annual Accounts. On November 7, 1994, the court issued two orders allowing the 5th and 6th Annual Accounts respectively.
57. Respondent failed to timely file the 12th Annual Account on or about August 21, 2000. On September 5 and October 9, 2000, the court issued reminder notices to file the 12th Annual Account. On October 10, 2000, the court issued a Notice and order for appearance to show cause why the annual account had not been filed.
58. On November 13, 2000, respondent filed the 12th Annual Account. Respondent failed to file the Affidavit of Service regarding the Notice of Hearing. At the December 18, 2000, hearing, the 12th Annual Account was allowed by the court subject to filing the affidavit of service regarding notice of hearing.
59. On December 18, 2000, the probate court manager wrote respondent a letter advising him that the 12th Annual Account came on for hearing. Due to respondent's failure to file the affidavit of mailing the account would not be allowed. Respondent was further advised that the notice needed to be mailed at least 14 days prior to the hearing. Respondent failed to file the Affidavit of Mailing.
60. On January 22, 2001, the probate court again wrote to respondent requesting the Affidavit of Mailing. Respondent failed to comply with the court's request.
61. A citation was issue[d] to respondent on February 28, 2001, for failure to file the Affidavit of Mailing. Respondent was required to personally appear on April 25, 2001, to show cause why the Affidavit of Mailing had not been filed.
62. Respondent appeared for the April 25, 2001, hearing. Respondent filed the Affidavit of Service on April 30, 2001, over 5 months late.
Joanne Kueppers
63. On May 10, 1995, respondent was appointed general conservator of the person and estate of Joanne Kueppers. Respondent failed to timely file the 4th Annual Account on or before June 9, 1999. On June 21 and July 26, 1999, the probate court issued notices to respondent to file the delinquent 4th Annual Account and accompanying documents. On September 9, 1999, the probate court issued respondent a citation to personally appear on September 29, 1999, to show cause why the 4th Annual Account and accompanying documents had not been filed. Respondent was present at the September 29, 1999, [] citation hearing. The court directed *182 respondent to file the documents in one week. Respondent failed to file the documents until November 24, 1999. Pursuant to order dated February 14, 2000, the 4th Annual Account was allowed.
64. Respondent failed to timely file the 5th Annual Account on or before June 9, 2000. On June 19 and July 24, 2000, the probate court issued notices to respondent to file the delinquent 5th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to timely comply with the court's notices. On August 31, 2000, the probate court issued respondent a citation to personally appear on September 27, 2000, to show cause why the 5th Annual Account and accompanying documents had not been filed. Respondent was present at the September 27, 2000, citation hearing and filed the 5th Annual Account and accompanying documents. Respondent failed to file an Affidavit of Mailing.
65. On October 23, 2000, the Examination of the Account was heard. The probate court allowed the 5th Annual Account subject to respondent's filing the Affidavit of Mailing. The court continued the Examination of the Account to January 22, 2001. Respondent failed to file the Affidavit of Mailing until January 31, 2001. Pursuant to order dated January 31, 2001, the 5th Annual Account was allowed.
Mary Dorothy Kueppers
66. On May 10, 1995, respondent was appointed general conservator of the person and estate of Mary Dorothy Kueppers. Respondent failed to timely file the 4th Annual Account on or before June 9, 1999. On June 21 and July 26, 1999, the probate court issued notices to respondent to file the delinquent 4th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to timely comply with the court's notices. On September 14, 1999, the probate court issued respondent a citation to personally appear on October 27, 1999, to show cause why the 4th Annual Account and accompanying documents had not been filed.
67. Respondent failed to appear at the October 27, 1999, [] citation hearing, nor did he file the 4th Annual Account and accompanying documents. Respondent was notified on October 27, 1999, that the citation hearing was continued to November 24, 1999 and that failure to appear at the November 24, 1999, hearing could result in the issuance of a Writ of Attachment for his arrest.
68. On November 24, 1999, the probate court issued an Order for Writ of Attachment due to respondent's failure to appear at the citation hearing. That same day upon receipt of the Writ of Attachment, respondent filed the 4th Annual Account and accompanying documents. On December 2, 1999, the court issued an Order Quashing the Writ of Attachment.
69. Respondent failed to timely file [the] 5th Annual Account on or before June 9, 2000. On June 19 and July 25, 2000, the probate court issued notices to respondent to file the delinquent 5th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to timely comply with the court's notices. On August 31, 2000, the probate court issued respondent a citation to personally appear on September 27, 2000, to show cause why the 5th Annual Account and accompanying documents had not been filed. Respondent was present at the September 27, 2000, hearing and filed the 5th Annual Account and accompanying documents.
Dorthea B. Lange
70. On July 14, 1987, respondent was appointed general conservator of the person and estate of Dorthea B. Lange. Ms. *183 Lange died on May 3, 2000. Respondent failed to timely file the 13th and Final Annual Accounts on or before August 14, 2000. On August 28 and September 26, 2000, the probate court sent notices to respondent requesting he file the delinquent 13th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply.
71. On November 9, 2000, the probate court issued respondent a citation to personally appear on November 29, 2000, to show cause why the 13th Annual Account and accompanying documents had not been filed. Respondent was present at the November 29, 2000, hearing and filed the 13th and Final Annual Account and accompanying documents.
B. Respondent Serves as Attorney for Guardian or Conservator
Laura J. Medved
72. Adeline Medved (Medved) was appointed conservator of Laura J. Medved on May 30, 1984. Medved retained respondent to represent her. Respondent failed to timely file the 11th Annual Account on June 29, 2002. On July 15 and August 20, 2002, the probate court sent notices to Medved to file the 11th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court's notices.
73. On September 25, 2002, the probate court issued a citation requiring Medved to personally appear on October 23, 2002, to show cause why the documents had yet to be filed. Respondent filed the 11th Annual Account on October 3, 2002. Respondent and Medved appeared at the October 23, 2002, citation hearing and filed the other documents at that time. On November 18, 2002, the court issued an order allowing the 11th Annual Account.
Dawn M. Hassinger
74. On March 28, 1990, the court issued an order appointing Sherry L. Miller (Miller) guardian of Dawn M. Hassinger. Miller retained respondent to represent her. In 1996, respondent failed to timely file the Annual Notice of Rights and Personal Well Being Report. On April 9 and May 20, 1996, the probate court sent reminder notices to Miller requesting the delinquent reports be filed. Respondent failed to file the documents as requested by the court.
75. On July 22, 1996, the probate court issued a citation to Miller to personally appear on August 20, 1996, and show cause why the Annual Notice of Rights and Personal Well Being Report had not been filed. Respondent filed the documents on July 26, 1996.
76. In 1998, respondent failed to timely file the Annual Notice of Rights and Personal Well Being Report. On April 13 and May 19, 1998, the probate court sent reminder notices to Miller to file the Annual Notice of Rights and Personal Well Being Report. Respondent failed to file the documents. On June 30, 1998, the probate court issued a citation to Miller to personally appear [] before the court on July 21, 1998, to show cause why the documents were not filed. Respondent filed the documents on July 6, 1998, and the citation hearing was stricken from the court's calendar.
77. In 2000, respondent failed to file the Annual Notice of Rights and Personal Well Being Report. On April 10 and May 16, 2000, the probate court sent reminder notices to Miller to file the delinquent Personal Well Being Report and Annual Notice of Rights. Respondent failed to file the documents.
78. On June 26, 2000, the probate court issued a citation to Miller to personally *184 appear on July 26, 2000, and show cause why the Annual Notice of Rights and Personal Well Being Report had not been filed. Respondent filed the documents on July 19, 2000. The citation hearing scheduled for July 26, 2000, was stricken from the court's calendar.
79. In 2002, respondent failed to file the Annual Notice of Rights and Personal Well Being Report. On April 8 and May 14, 2002, the probate court sent reminder notices to Miller to file the delinquent Personal Well Being Report and Annual Notice of Rights.
80. On June 19, 2002, the probate court issued a citation to Miller to personally appear on August 28, 2002, and show cause why the Annual Notice of Rights and Personal Well Being Report had not been filed. On August 28, 2002, respondent and Miller personally appeared at the citation hearing and filed the documents at that time.
Beatrice A. Moore
81. On November 4, 1992, Valerie Mihok (Mihok) was appointed general conservator of the person and estate of Beatrice A. Moore. Mihok retained respondent to represent her. Respondent failed to file the 6th Annual Account on or before December 4, 1998. On December 21, 1998, and January 25, 1999, the probate court sent notices to Mihok to file the 6th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court's notices.
82. On March 12, 1999, the probate court issued a citation requiring Mihok to personally appear on March 30, 1999, to show cause why the documents had yet to be filed. Respondent appeared at the March 30, 1999, citation hearing without filing the documents. Respondent filed the documents on April 5, 1999. The court allowed the 6th Annual Account pursuant to order dated May 3, 1999.
83. Respondent failed to file the 8th Annual Account on or before December 4, 2000. On December 18, 2000 and January 23, 2001, the probate court sent notices to Mihok to file the 8th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court's notices. On March 2, 2001, the probate court issued a citation requiring Mihok to personally appear on March 28, 2001, to show cause why the documents had yet to be filed. Respondent filed the 8th Annual Account on March 26, 2001. The court allowed the 8th Annual Account pursuant to order dated May 7, 2001.
Gary Alan Bayne
84. On March 9, 1982, Gordon K. and Marlene F. Bayne (the Baynes) were appointed co-guardians of the person and estate of Gary Alan Bayne. The Baynes retained respondent to represent them. Respondent failed to timely file the 16th Annual Account. On April 13 and May 19, 1998, the probate court sent notices to the Baynes to file the delinquent 16th Annual Account, Notice of Rights, [and] Personal Well Being Report as required by law. Respondent failed to file the documents. On June 30, 1998, the probate court issued a citation to the Baynes requiring them to personally appear before the court on July 21, 1998, and show cause why the documents had yet to be filed.
85. On July 6, 1998, respondent filed the 16th Annual Account and accompanying documents. The July 21, 1998, citation hearing was stricken from the court's calendar. Pursuant to court order dated August 5, 1998, the 16th Annual Account was allowed.
86. Respondent failed to timely file the 18th Annual Account and accompanying *185 documents on or before April 8, 2000. On April 17 and May 23, 2000, the probate court sent notices to the Baynes requesting that the delinquent 18th Annual Account, Notice of Rights and Personal Well Being Report be filed. Respondent failed to file the documents. On July 5, 2000, the probate court issued a citation to the Baynes requiring them to personally appear before the court on August 23, 2000, and show cause why the documents had yet to be filed.
87. On August 21, 2000, respondent filed the 18th Annual Account and accompanying documents. The August 23, 2000, citation hearing was stricken from the court's calendar. The 18th Annual Account was allowed pursuant to court order dated September 20, 2000.
Anthony Jay Condon
88. On January 25, 1989, Everette and Kathleen Condon (the Condons) were appointed co-guardians of the person and estate of Anthony Jay Condon. The Condons retained respondent to represent them.
89. Respondent failed to timely file the 11th Annual Account on or before February 24, 2000. On April 10 and May 16, 2000, the probate court issued notices to the Condons to file the 11th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to file the documents.
90. On June 26, 2000, the probate court issued a citation to the Condons requiring them to appear on July 26, 2000, and show cause why the documents had yet to be filed.
91. On July 18, 2000, respondent filed the 11th Annual Account and accompanying documents. On July 24, 2000, after a telephone call from respondent, the July 26, 2000, citation hearing was stricken from the probate court's calendar. Pursuant to court order dated August 16, 2000, the 11th Annual Account was allowed.
92. Respondent's pattern of failing to timely file probate annual reports, affidavits of mailing and receipts with the probate court, and failing to promptly comply with probate court orders violated Rules 1.3, 3.4(c) and 8.4(d), Minnesota Rules of Professional Conduct (MRPC).
SECOND COUNT
93. On April 23, 2003, charges of unprofessional conduct, notice of pre-hearing and notice of panel assignment were mailed to respondent at his last known address.
94. The notice of pre-hearing meeting informed respondent that a pre-hearing meeting concerning the charges of unprofessional conduct would be held at 10:00 a.m. on May 13, 2003, at the Office of Lawyers Professional Responsibility, 1500 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102. Pursuant to Rules 9(b) and (e), RLPR, an attorney must serve an answer to the charges and appear for [the] pre-hearing meeting.
95. Respondent failed to serve an answer or appear for the pre-hearing meeting or otherwise respond to the charges of unprofessional conduct and notice of pre-hearing meeting.
96. Respondent's conduct in failing to cooperate with required elements of the disciplinary proceedings violated Rule 8.1(a)(3), MRPC, and Rule 25, RLPR.
NOTES
[1] The specific allegations as set out in the Petition can be found in the appendix accompanying this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579054/ | 671 N.W.2d 470 (2003)
IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant,
v.
Thomas P. FRERICHS, Respondent.
No. 03-1030.
Supreme Court of Iowa.
November 13, 2003.
*473 Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
Clemens A. Erdahl, Cedar Rapids, for respondent.
CADY, Justice.
The Iowa Supreme Court Board of Professional Ethics and Conduct charged Thomas P. Frerichs with numerous violations of the Iowa Code of Professional Responsibility for Lawyers stemming from an attorney fee contract in a criminal case and his conduct in representing a client in a business transaction, as well as his dealings with the Board in responding to notice of the complaints. The Grievance Commission of the Supreme Court of Iowa found that Frerichs violated the Code of Professional Responsibility as charged by the Board. It recommended Frerichs receive a public reprimand. On our review, we find Frerichs violated the Code of Professional Responsibility and impose an indefinite suspension of not less than four months.
I. Background Facts and Proceedings.
Thomas Frerichs is a lawyer in Waterloo. He was admitted to the practice of law in Iowa in 1990. He primarily engages in trial work, mostly involving criminal cases and civil rights litigation. He is a legal liaison for the NAACP and handles many cases each year on a pro bono basis. He was privately admonished in 1999 for failing to provide an accounting of a retainer fee from a client.
The evidence presented at the hearing before the Commission centered on the conduct of Frerichs in two separate cases. In one matter, Frerichs entered into a written attorney fee contract with Alice Smith on March 8, 2000. Smith's son had been charged with drug and firearms crimes in two counties, and Smith agreed to pay his legal fees. The contract provided for a minimum fee of $10,000, with a $20,000 retainer. One-half of the retainer was due upon execution of the contract, and the remaining portion of the retainer was due ten days later. The $10,000 minimum fee was deemed earned under the terms of the contract upon execution of the agreement. The contract provided:
The minimum fee is based upon the time, skill involved, the experience, reputation and ability of the lawyers, how this case may impact on other cases that cannot be taken because of time commitments required herein, time limitations imposed by the client or the case itself and other proper factors. It is not the desire of the attorney to impact the Client's absolute right to freely discharge Client's attorney or to in anyway *474 impede client[']s rights to discharge attorney.... Although client will receive credit against the minimum fee based upon rates of $150.00 [per hour] for Thomas P. Frerichs ... a minimum fee will be deemed earned upon execution of this contract.
Smith paid the $20,000 retainer required under the contract, in addition to an earlier retainer of $1500.
Frerichs and his firm performed work in both criminal cases, which were ultimately resolved by plea bargains. The cases were completed in June and August 2000. Smith's son was sentenced to a term of incarceration. Frerichs did not return any portion of the retainers to Smith. He also did not provide an accounting.
Smith died on March 2, 2001. On March 29, a trustee of a living trust Smith had established telephoned Frerichs' office to inquire about the retainer and to request an accounting. Frerichs did not return the telephone call. The trustee made numerous other attempts to contact Frerichs and obtain an accounting during the following months, but was unsuccessful. The trustee eventually hired a lawyer, who wrote Frerichs and demanded he provide an accounting by October 19, 2001. When Frerichs failed to meet the deadline, the attorney prepared a petition for a court-ordered accounting.
On November 14, 2001, prior to the time the petition was filed, Frerichs provided an accounting. He also returned the unearned portion of the retainer of approximately $11,000, with a check written on his office account.
After the trustee filed a complaint with the Board, the Board sent Frerichs a notice of the complaint by restricted certified mail. After Frerichs failed to claim the notice, the Board personally served him with the notice. This notice informed Frerichs he was required to respond to the Board. Frerichs failed to respond to this notice, as well as a second notice that informed him that the failure to respond was a violation of the ethics code.
The evidence concerning the second complaint against Frerichs arose out of his representation of an individual named Kurtis Meredith. In January 2000, Meredith hired Frerichs to set up a not-for-profit corporation. Meredith owned an education consulting business and sought the nonprofit status to enhance the company's eligibility for grants. Meredith delivered a variety of papers to Frerichs to enable him to perform his legal work. Frerichs assured Meredith he could complete the work by June, as Meredith requested.
Frerichs failed to complete the work and was unable to locate and return the papers Meredith had delivered to him when requested. Over a period of several months, Frerichs repeatedly failed to return telephone calls from Meredith and failed to meet with him concerning the status of his legal work. Meredith's business lost revenue due to Frerichs' failure to perform his services in a timely manner.
In December 2000, the Board sent Frerichs notice of a complaint filed by Meredith. Frerichs failed to respond. He eventually filed a response after the Board sent him two additional notices.
Frerichs did not contest the core facts presented at the hearing concerning the two complaints. He testified, however, that he originally placed the second $10,000 retainer from Smith into his trust account and later mistakenly transferred it into his general account. He placed the first $10,000 retainer into his general account because he considered it to be earned when he received it under the contract.
Frerichs further testified that he learned he had cancer in March 2001, resulting *475 in two surgeries and treatment. Frerichs also suffered from depression and anxiety. He has been placed on medication and his prognosis is good.
II. Board Complaint.
The Board charged Frerichs with numerous violations of the rules of professional responsibility. In the first count of the petition, it claimed Frerichs violated Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(4), (5), and (6) (conduct involving dishonesty, deceit, or misrepresentation, conduct prejudicial to the administration of justice, and conduct reflecting adversely on one's fitness to practice law); DR 2-106(A) (charging a clearly excessive fee); DR 9-102(A) (failure to place client funds in a trust account); DR 9-102(B)(3) and (4) (failure to provide accounting and failure to properly return funds to client); and DR 9-103(A) (failure to maintain records to show compliance with DR 9-102). In the second count of the petition, the Board charged Frerichs violated DR 1-102(A)(5) and (6); DR 6-101(A)(3) (neglect of client matter); DR 7-101(A) (failure to seek client's lawful objectives and failure to carry out employment); and DR 9-102(B)(3) and (4). The Board also claimed Frerichs violated DR 1-102(A)(5) and (6) by failing to cooperate with its investigation.
The Commission found the Board established the violations as set forth in the complaint and recommended a public reprimand.
III. Scope of Review.
"We review attorney disciplinary proceedings de novo." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa 2002). "We are not bound by the findings of the Commission, but give them weight." Id.
IV. Violations.
We begin by considering the ethical considerations of a minimum fee contract. We have previously held that it is unethical for a lawyer to enter into a fee contract providing for a nonrefundable advance fee unless the advance fee constitutes a general retainer. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 58 (Iowa 1998). Thus, contracts providing for nonrefundable special retainers and nonrefundable "flat" fees are void as well as unethical. Id.; see Iowa Code of Prof'l Responsibility DR 2-106(A). All advance fee payments other than general retainer fees are refundable, despite contractual language to the contrary, and must be placed in a client trust account. Apland, 577 N.W.2d at 55-56. Furthermore, these fees may not be withdrawn until earned. See id. at 56. A lawyer misappropriates client funds in violation of DR 1-102(A)(3), (4), (5), and (6) when special retainers and flat fees paid in advance are treated as money belonging to the lawyer and not maintained in a trust account until the fee has been earned. See id. at 55-56.
These principles gleaned from Apland tell us that whether Frerichs' conduct surrounding the fee charged in this case was unethical hinges on the nature of the advance fee he received. Thus, we must consider the type of fee at issue in this case.
In Apland, we observed that advance fees could be categorized as general retainers or special retainers. Id. at 54-55. A general retainer is money paid to an attorney in return for making legal services available as needed during a specific period of time. Id. at 54. It is the nature of an option contract that the client may exercise, and provides compensation to the attorney for agreeing to make legal *476 services available and for foregoing the opportunity to be hired by the client's adversary or other potential clients based on a conflict of interest. See id. at 57. Under general contract analysis, the general retainer fee is earned when paid because the payment is given in consideration for the lawyer's availability, not as compensation for other services. See Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retainers Revisited, 72 N.C. L. Rev. 1, 25 (1993). Thus, the attorney is entitled to the money even if no services are actually performed for the client. Apland, 577 N.W.2d at 54. This means the lawyer has no obligation to later refund the money. Moreover, the attorney is entitled to retain the fee even if discharged by the client. Brickman & Cunningham, 72 N.C. L. Rev. at 25.
In contrast, a special retainer is money paid to an attorney in advance of performing a specific service. Apland, 577 N.W.2d at 55. Under this arrangement, the attorney typically withdraws money pursuant to an agreed hourly fee from the advance funds as legal services are rendered. See id. However, the advance funds can also consist of a fixed or flat fee, representing the total compensation for all the work to be done in the case. Id. Nevertheless, the fee advanced under either arrangement is considered to be a special retainer. Id. at 56. As opposed to general retainers, special retainers represent money that still belongs to the client after it is paid to an attorney and must be deposited in a client trust account. Id. at 55-56. Analytically, the advance fee is earned once the service is performed, and is either paid over time or after the service is completed. If the fee arrangement provides for the fee to be drawn from the retainer amount as services are performed, any unearned amount of the retainer must be returned to the client. If the retainer was a fixed or flat fee under the contract, it is still possible the retainer, or a portion of the retainer, would need to be refunded to the client in the event the attorney-client relationship is terminated before the services are rendered.[1] Therefore, under both advance and flat fee arrangements, the special retainer must be placed in a client trust account. Otherwise, the client's right to discharge an attorney at any time would be undermined because clients would be reluctant to exercise the right if an advance fee was nonrefundable. See id. at 57. A nonrefundable retainer would also undermine the fiduciary nature of an attorney-client relationship. Id.; Brickman & Cunningham, 72 N.C. L. Rev. at 8-12.
We recognized in Apland that the distinction between general and special retainers can be less than clear, and some retainers can be in the nature of a hybrid between the two. Apland, 577 N.W.2d at 57. In considering where the line will be drawn and how hybrid arrangements will be treated, we do not rely upon contract terminology, but will scrutinize the agreements with the presumption that the advance fee was a special retainer and was not given for attorney availability that justifies a general retainer. Id.
The contract in this case specifically provided that the $10,000 minimum fee recognized *477 that the attorney may be required to forego taking other cases due to the time commitment required by the case, as well as the time limitations the case would impose on the lawyer. It further provided that the minimum fee was not intended to impede the client's right to terminate the attorney-client relationship at any time.
Although this contract language mentioned factors characteristic of a general retainer, it was clearly insufficient to overcome the presumption of a special retainer. The contract addressed availability, but not in the manner used to justify a general retainer. The stated elements of compensation for the nonrefundable minimum fee in the contract included both the time limitations imposed on the lawyer by the case, as well as how the time commitments of the case would inhibit the ability of the lawyer to accept cases from other clients. However, availability in this context amounted to nothing more than the ethical obligation imposed on all lawyers when they agree to provide legal services to a client. Brickman & Cunningham, 72 N.C. L. Rev. at 24. A lawyer who agrees to perform legal services also necessarily agrees to be available to perform those services. Id. Thus, this type of availability is unrelated to the type of availability of a general retainer and is insufficient to justify a nonrefundable minimum fee. Id. at 24-27. Moreover, informing a client that the imposition of a minimum fee is not intended to alter their client's right to freely discharge the attorney does not lessen the penalty imposed for exercising the right, or alleviate the inconsistency between a nonrefundable advance fee and the trust-based aspect of the absolute right to discharge an attorney. See Apland, 577 N.W.2d at 57.
In practice, we believe it would be very difficult to properly characterize a nonrefundable advance minimum fee to represent a client in a specific case as a general retainer. See Brickman & Cunningham, 72 N.C. L. Rev. at 25-26. As a special retainer, the advance fee must be placed in a client trust account and withdrawn only for completed services. We emphasize that this is an area of the law that is subject to overreaching, and it is critical for lawyers to comply with the rules of ethics and scrupulously maintain the trust and confidence of the attorney-client relationship.
We conclude Frerichs entered into an illegal fee agreement in violation of DR 2-106(A). He also failed to place the advance fee in a trust account and misappropriated client funds in the process in violation of DR 9-102(A) and DR 1-102(A)(4). The evidence also supports a finding that Frerichs failed to account for and properly deliver client funds in violation of DR 9-102(B) and DR 9-103(A). Frerichs violated these disciplinary rules when he stonewalled efforts by the trustee to obtain an accounting.
Regarding the representation of Meredith, we conclude Frerichs neglected client matters and failed to properly safeguard client property in violation of DR 6-101(A)(3), DR 7-101(A), and DR 9-102(B). Such conduct also reflects adversely on the fitness of an attorney to practice law. See DR 1-102(A)(6). Frerichs also compounded matters in both complaints by failing to cooperate with the Board investigation in violation of DR 1-102(A)(5) and (6). We turn to consider the discipline to impose.
V. Discipline.
Our general principles governing attorney discipline have been recited in prior decisions. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 646 N.W.2d 111, 113-14 (Iowa 2002). Along with these considerations, personal circumstances such as depression and health problems are also considered. See *478 Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 295 (Iowa 2002); Comm. on Prof'l Ethics & Conduct v. Robinson, 458 N.W.2d 393, 394 (Iowa 1990). We also give consideration to the recommendations of the Commission. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001). Additionally, we do not overlook an attorney's devoted service to the profession. See Comm. on Prof'l Ethics & Conduct v. Conzett, 476 N.W.2d 43, 45-46 (Iowa 1991). Yet, in the end, the discipline imposed in each case is based on its own facts, viewed in light of our recognized factors and considerations. Bernard, 653 N.W.2d at 376.
The circumstances in this case involve three basic categories of unethical behavior: charging an unethical and illegal fee, neglect, and failure to cooperate with the Board. The neglect embraces trust account violations, failure to complete client work, and failure to safeguard client property. Considering we explained how advance fee payments must be handled two years prior to the time Frerichs entered into the illegal contract, his conduct in charging an illegal fee constitutes a serious breach of professional ethics. See Apland, 577 N.W.2d at 60 (fee violation considered less serious because attorney was without advance court guidance).
Although each case is viewed individually, we recently considered a disciplinary case that bears some resemblance to this case. See Adams, 623 N.W.2d 815. In Adams, we determined that unethical conduct involving neglect of a client matter, failure to deposit a retainer and advances into a trust account, failure to account for client property, and misrepresentations to a client to cover up neglect, warranted a three-month suspension, particularly in light of a prior reprimand, notwithstanding evidence that the attorney was suffering from depression. Id. at 818-19. Although Adams had received a prior reprimand, while Frerichs' prior proceeding resulted in an admonition, both prior actions concerned some of the same conduct involved in the more recent actions. See id. at 819; see also Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 14 (Iowa 2000) (prior private admonition considered in imposing sanctions); Comm. on Prof'l Ethics & Conduct v. Liles, 430 N.W.2d 111, 113 (Iowa 1988) (admonitions are a less severe disposition than reprimands).
In many ways, the ethical violations committed by Frerichs were more serious than those documented in the Adams case. Unlike Adams, the unethical conduct in this case included an illegal or unethical fee arrangement and involved two separate clients who were harmed in two different ways by the conduct. Moreover, Frerichs repeatedly failed to cooperate with the disciplinary process in two separate cases.
In view of all the relevant factors and the aggravating and mitigating circumstances, we conclude that Frerichs should be indefinitely suspended from the practice of law in this state with no possibility for reinstatement for four months. This suspension applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). Upon application for reinstatement Frerichs shall have the burden to prove that he has not practiced law during the period of suspension and that he meets all the requirements of Iowa Court Rule 35.13. Costs of this action shall be taxed to Frerichs pursuant to rule 35.25(1).
LICENSE SUSPENDED.
All justices concur except WIGGINS, J., who takes no part.
NOTES
[1] It is also possible that a portion of a lump sum "flat" fee in a criminal case would need to be refunded as excessive. Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retainers Revisited, 72 N.C. L. Rev. 1, 31-32 n. 121 (1993). Lump sum fee arrangements in criminal cases can not only give rise to the same ethical concerns as nonrefundable advance fees, but can also present other conflicts founded in attorney overreaching and other conduct contrary to effective representation. Id. at 31-32. A criminal defense lawyer must be careful to ensure that the lump sum fee does not suggest self-interest or overreaching. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579065/ | 267 Wis.2d 480 (2003)
2003 WI App 216
671 N.W.2d 366
Cheryl ELLERMAN, Plaintiff-Appellant,
v.
CITY OF MANITOWOC and Blue Cross & Blue Shield United of Wisconsin, Defendants-Respondents.
No. 03-0322.
Court of Appeals of Wisconsin.
Submitted on briefs August 14, 2003.
Decided September 24, 2003.
*482 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ralph J. Sczygelski of Sczygelski Law Firm, LLC of Manitowoc.
On behalf of the defendant-respondent City of Manitowoc, the cause was submitted on the brief of Christopher R. Bandt of Nash, Spindler, Grimstad & McCracken LLP of Manitowoc.
Before Anderson, P.J., Brown and Snyder, JJ.
¶ 1. BROWN, J.
The sole issue in this appeal, an issue of first impression in Wisconsin, is whether a public parking lot is a "highway" within the meaning of WIS. STAT. § 81.15 (2001-02) the limited immunity statute for maintenance of highways.[1] If so, the City of Manitowoc is immunized from liability for injuries Cheryl Ellerman suffered as a result of a slip and fall in a parking lot alleged to be owned, maintained, monitored and repaired by the City. We hold that the term "highway" encompasses a public parking lot and, therefore, the City is entitled to immunity pursuant to § 81.15. Accordingly, we affirm the circuit court's final order granting summary judgment to the City and dismissing Ellerman's complaint.
¶ 2. The facts relevant to this appeal are brief. On April 18, 2002, Ellerman filed a complaint against the City alleging that on March 8, 2001, she slipped and fell on a patch of ice in a parking lot alleged to be owned, maintained, monitored and repaired by the City. As a result of her fall, Ellerman suffered a severely broken *483 ankle that required medical treatment. In its answer, the City denied negligence and argued that WIS. STAT. § 81.15 barred Ellerman's claim.
¶ 3. In her September 2002 deposition, Ellerman testified that on the night of March 8, 2001, she had parked her vehicle and was walking across the parking lot when she fell. Ellerman further testified that it had snowed either the night before or early in the morning of March 8th. Ellerman recalled that it had lightly snowed and there was not any heavy accumulation. She could not recall the last time there was snow accumulation prior to the incident.
¶ 4. Ellerman testified that the parking lot had some icy patches and that she had never seen the ice that she slipped on. She stated that she had fallen on a piece of ice that was approximately the size of a manhole cover. Ellerman testified that she had walked the same route the prior two mornings and did not notice any ice in her walking path. Ellerman did not know how long the ice that she slipped on had been there.
¶ 5. Based on Ellerman's deposition testimony, the City filed a motion for summary judgment, alleging that WIS. STAT. § 81.15 provided it with immunity. In its brief supporting summary judgment, the City argued that "the parking lot in which [Ellerman] slipped and fell is considered a `highway' for the purposes of WIS. STAT. § 81.15" and that "the ice that existed on the parking lot did not exist for a `continuous' period of three weeks." The circuit court agreed and granted summary judgment. Ellerman appeals.
[1-3]
¶ 6. "In reviewing a grant of summary judgment, this court applies the same standards as the trial court. A motion for summary judgment should be granted if *484 there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Thompson v. Threshermen's Mut. Ins. Co., 172 Wis. 2d 275, 280, 493 N.W.2d 734 (Ct. App. 1992). However, "summary judgment is not appropriate if there is a material issue of fact or if different inferences may be drawn from the facts." Kohl v. F.J.A. Christiansen Roofing Co., 95 Wis. 2d 27, 32, 289 N.W.2d 329 (Ct. App. 1980). Whether a governmental entity is entitled to immunity pursuant to WIS. STAT. § 81.15 under summary judgment submissions presents a question of law subject to de novo review. Henderson v. Milwaukee County, 198 Wis. 2d 747, 750, 543 N.W.2d 544 (Ct. App. 1995).
[4]
¶ 7. As we have indicated, Ellerman raises one issue on appeal: whether governmental immunity pursuant to WIS. STAT. § 81.15 applies to municipally maintained parking lots. Section 81.15 provides:
Damages caused by highway defects; liability of town and county. If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city or village .... No action may be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks. (Emphasis added.)
The express language of § 81.15 immunizes the City from liability that otherwise might result from the accumulation of ice on "bridges" or "highways." Case law has extended the definition of "highway" to include roads, streets, bridges, sidewalks, driveway aprons and *485 shoulders of the highway. See Wheeler v. Town of Westport, 30 Wis. 392, 394, 396-97 (1872) (road as a highway); Byington v. City of Merrill, 112 Wis. 211, 215, 88 N.W. 26 (1901) (street as a highway); Leannah v. City of Green Bay, 180 Wis. 84, 85, 89, 192 N.W. 388 (1923) (bridge as a highway); Webster v. Klug & Smith, 81 Wis. 2d 334, 339, 260 N.W.2d 686 (1978) (sidewalk as a highway); Damaschke v. City of Racine, 150 Wis. 2d 279, 280, 283-84, 441 N.W.2d 332 (Ct. App. 1989) (driveway apron as a highway); Morris v. Juneau County, 219 Wis. 2d 543, 546, 579 N.W.2d 690 (1998) (shoulder of the highway included in highway). While these cases certainly provide guidance for interpreting the type of structures for which municipalities are provided immunity under § 81.15, none of the cases specifically address whether the term "highway" encompasses municipally maintained parking lots.
¶ 8. We begin our analysis by setting forth the appropriate definition for the term "highway." In Morris, our supreme court held that the definition of "highway" in WIS. STAT. § 340.01(22) applies to WIS. STAT. § 81.15. Morris, 219 Wis. 2d at 562. Section 340.01 provides the definitions for all words and phrases used in the statutory provisions relating to motor vehicles. Section 340.01(22) defines "highway" as "all public ways and thoroughfares and bridges on the same. It includes the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel." Having set forth the appropriate definition, we now turn to a case in which our supreme court grappled with the application of a similar statutory definition to a private parking lot.
¶ 9. In City of Kenosha v. Phillips, 142 Wis. 2d 549, 557, 560, 419 N.W.2d 236 (1988), an operating while intoxicated case, the supreme court considered a *486 privately owned parking lot to be outside the enforcement capability of the police for the purposes of WIS. STAT. § 346.61 because the lot was not "held out to the public." Section 346.61 provides:
Applicability of sections relating to reckless and drunken driving. In addition to being applicable upon highways [as defined in WIS. STAT. § 340.01(22)], ss. 346.62 to 346.64 are applicable upon all premises held out to the public for use of their motor vehicles .... (Emphasis added.)
In determining whether the lot was "held out to the public," the supreme court stated that the test was whether the person in control of the lot intended it to be available to the public for use of their motor vehicles. Phillips, 142 Wis. 2d at 557. The court then resorted to the RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1562 (2d 3d. 1987) to define "public" as "of, pertaining to, or affecting a population or a community as a whole." Phillips, 142 Wis. 2d at 557. The court concluded that because the privately owned lot was designated for use by employees of the lot owner and the employees constituted a "defined limited portion of the citizenry," rather than the population or community as a whole, the lot was not "held out to the public." Id.
[5]
¶ 10. While we acknowledge that Phillips involves a different statute, we find the case instructive. We can discern no difference between the phrase "held out to the public" and "open to the use of the public." The term "open" as it is used in WIS. STAT. § 340.01(22) is not defined in the statutes and its ordinary meaning as ascertained from a standard dictionary applies. "Open" is defined as "without restrictions as to who may participate." THE RANDOM HOUSE DICTIONARY OF THE ENGLISH *487 LANGUAGE 1356 (2d ed. 1987). As this definition indicates, an area is "open" if it is intended to be freely accessible and available. As Phillips teaches, the word "public" means "of, pertaining to, or affecting a population or a community as a whole." Phillips, 142 Wis. 2d at 557. Accordingly, we are convinced a "highway" is an area that the entire community has free access to travel on. The public parking lot here, unlike the privately owned restricted parking lot at issue in Phillips, is available to the entire community for vehicular travel. Based on this analysis, the City's public parking lot is a "highway" as we have interpreted that term for the purposes of WIS. STAT. § 81.15.
¶ 11. Ellerman contends that we should not rely on WIS. STAT. § 340.01(22), but instead should look to WIS. STAT. § 84.60(1)(b), the statute pertaining to the establishment of bikeways, or WIS. STAT. § 943.01(2)(a), the statute governing crimes against property, for a definition of "highway." We find this argument perplexing given the supreme court's clear mandate in Morris that courts are to use § 340.01(22) to guide their interpretation of WIS. STAT. § 81.15. See Morris, 219 Wis. 2d at 561-62 (observing that reliance on the definition of "highway" in § 340.01(22) was consistent with the court's construction of the term as used in § 81.15 for over 120 years). We therefore reject Ellerman's argument.
¶ 12. Ellerman next argues that even if we apply WIS. STAT. § 340.01(22), the trend in Wisconsin law is to strictly construe WIS. STAT. § 81.15 and therefore we should interpret § 340.01(22) so as to exclude public parking lots. Ellerman appears to assert that strict construction is warranted because our supreme court abolished common law governmental immunity in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 29, 115 N.W.2d *488 618 (1962). Therefore, adherence to Holytz mandates that we not extend the definition of "highway" to include a public parking lot. Ellerman is simply wrong.
[6, 7]
¶ 13. Governmental entities have a nondelegable duty to maintain certain structures traveled on by the public, including highways and their appurtenances. The purpose of WIS. STAT. § 81.15 is to prevent an "unreasonable and unmanageable" burden from being imposed upon municipalities with regard to winter clean up of those structures. See Sanem v. Home Ins. Co., 119 Wis. 2d 530, 540, 350 N.W.2d 89 (1984). In recognition of limited governmental resources and harsh Wisconsin winters, the legislature has provided municipalities with immunity from their nondelegable duty to maintain "highways" and "bridges" for up to three weeks. Thus, § 81.15 is an attempt to strike a balance between the expectations of the public that the government will provide for the upkeep of such structures and the economic infeasibility of requiring municipalities to act as insurers every time snow falls and ice forms.
¶ 14. In keeping with this legislative intent to create a balance between public expectations, the nature of Wisconsin winters and the limited financial resources of governmental entities, as early as 1872, the supreme court determined that WIS. STAT. § 81.15 applied not only to the traveled part of the highway but also to the area "so connected with [the highway] as to affect the safety or convenience of those using the traveled path." Wheeler, 30 Wis. at 403 (emphasis omitted); see also Morris, 219 WIS. 2d at 561. Courts have continued to uphold this public policy over the years by concluding that governmental entities are entitled to immunity pursuant to § 81.15 for sidewalks, *489 Webster, 81 Wis. 2d at 339; shoulders of the highway, Morris, 219 Wis. 2d at 546; and for roadways, Wheeler, 30 Wis. at 394, 396-97.
¶ 15. Parking lots serve dual purposes they are mixed-use facilities, serving both pedestrian and vehicular traffic. A parking lot serves not only as a place to park, but also as a roadway to allow vehicular traffic to drive upon and park. It also serves as a sidewalk in the sense that once the vehicle is parked the individual becomes a pedestrian. The public expects its taxes to be used to upkeep and maintain public parking lots in the same manner as it would expect sidewalks, shoulders of the highway and roadways to be maintained. We are therefore convinced that public policy supports providing governmental entities with the three-week window to complete the task of cleaning up natural accumulations of snow in a public parking lot.
¶ 16. Ellerman also cites to Henderson as evidence of the trend that the court has strictly construed WIS. STAT. § 81.15. Ellerman's interpretation of Henderson is flawed.
¶ 17. The issue in Henderson was whether WIS. STAT. § 81.15 applied to a stairway connecting two sidewalks. Henderson, 198 Wis. 2d at 750-51. There, an inmate sued Milwaukee County as a result of injuries sustained when the inmate fell while going down a concrete stairway connecting sidewalks located on the grounds of the Milwaukee County House of Correction. Id. at 749. The concrete steps were located in between two sidewalks that lead to two buildings on the grounds. Id.
¶ 18. While we acknowledged that WIS. STAT. § 81.15 applied to sidewalks, we concluded that it did not apply to a stairway connecting two sidewalks. Henderson, 198 Wis. 2d at 749-52. We reached this *490 conclusion not because we determined that § 81.15 must be given a narrow construction, as Ellerman would have us believe, but rather because a stairway connecting two sidewalks that are not used "for the purposes of vehicular travel" simply is not in any way connected to a highway or its appurtenances. See Wheeler, 30 Wis. at 403 (concluding that the governmental entity was not responsible for an injury sustained as a result of an obstruction not so connected with the traveled part of a highway "so as to affect the safety or convenience of those using the traveled path"); WIS. STAT. § 340.01(22). A public parking lot, on the other hand, functions as both a roadway and a sidewalk, serving both pedestrian and vehicular traffic. We therefore reject Ellerman's contention that Henderson is in some way relevant. We affirm.
By the Court. Judgment affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/390332/ | 648 F.2d 1039
UNITED STATES of America, Plaintiff-Appellee,v.Humberto ORONA-SANCHEZ, Defendant-Appellant.
No. 80-1829
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Unit A
June 25, 1981.
Herbert E. Cooper, Asst. Federal Public Defender, El Paso, Tex., for defendant-appellant.
LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, POLITZ and TATE, Circuit Judges.
POLITZ, Circuit Judge:
1
This appeal poses the question whether a stop by a roving border patrol met the requirements enunciated in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), and its progeny, and was thus constitutionally permissible. E. g., United States v. Pacheco, 617 F.2d 84 (5th Cir. 1980); United States v. Lamas, 608 F.2d 547 (5th Cir. 1979); United States v. Sarduy, 590 F.2d 1355 (5th Cir. 1979). Brignoni-Ponce teaches that stops by roving border patrols are consistent with Fourth Amendment strictures only if the agents "are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." 422 U.S. at 884, 95 S.Ct. at 2581. Several factors weigh into the determination whether a stop is justified.1 No one factor is controlling; rather, the "totality of the particular circumstances" governs. Id. at 885 n.10, 95 S.Ct. at 2582 n.10.
2
Humberto Orona-Sanchez appeals his convictions, after a bench trial, of two counts of unlawfully transporting aliens into the United States in violation of 8 U.S.C. § 1324(a)(2), and the denial of his motion to suppress evidence seized at the time of his warrantless arrest.
Context Facts
3
On April 15, 1980, Border Patrol Agents Peter Teuber and Hugo Rex, who were assigned to the border patrol station at Las Cruces, New Mexico, were directed to observe traffic for alien smuggling on New Mexico Highway 26. Highway 26 is a paved, two-laned, lightly traveled state roadway which traverses small ranch and farming communities. It extends approximately 60 miles and connects Deming, New Mexico to Hatch, New Mexico, passing through the small community of Nutt, New Mexico. Deming is 35 air miles from the United States-Mexico border; Hatch is 60 air miles from the border; Nutt is 50 air miles from the border and just under 100 road miles from El Paso.
4
The agents had information from their anti-smuggling unit and from the Hatch police department that Highway 26 was being used by smugglers to circumvent the Border Patrol checkpoint located 18 miles west of Las Cruces on Interstate 10, a transcontinental highway running east and west. Interstate 25 runs north from El Paso through Las Cruces and Hatch. Highway 26 runs southwest from Hatch through Nutt to Deming and intersects with I-10 well west of the checkpoint. To avoid the Las Cruces checkpoint, one wishing to travel west from El Paso could proceed north on I-25 to Hatch, then southwest on Highway 26 to Deming, intersecting with I-10 west.
5
Agents Teuber and Rex each had four years' experience as Border Patrol agents. Rex had checkpoint experience which resulted in over 300 alien smuggling cases; Teuber's experience involved over 100 cases. Agent Teuber had no experience patrolling Highway 26 prior to April 8, 1980. Agent Rex had been assigned to Highway 26 patrol for one week. The agents did not know the people who lived in the area nor were they familiar with the vehicles driven by the residents and those who routinely might visit or attend the residents.2
6
Working the 4:00 p. m. to midnight shift on April 8, 1980, Agents Teuber and Rex received instructions to observe traffic on Highway 26 and began their patrol. At approximately 8:30 p. m. they stationed their unit just east of Nutt, a community comprised of a handful of families, on the south side of the road. They parked a few feet off the roadway, perpendicular to the road, behind a clump of mesquite. As an occasional passing vehicle drew abreast of their position, the agents flashed their headlights into the interior of the passing vehicle.
7
Orona-Sanchez approached in his 1975 Ford pickup truck. As the pickup passed, the agents flashed their lights into the cab and observed the vehicle and its passengers. They noticed that: the three occupants had dark hair and appeared to be of Latin origin, they appeared startled by the light, the truck was a 3/4 ton pickup with a camper shell, it appeared to have a heavy load, the windows of the camper were either covered by curtains or painted over and the truck had California license plates. The agents decided to follow the pickup. They then noticed it had wide tread tires and the agents testified the driving became erratic.
8
As the agents passed the pickup, they observed Orona-Sanchez looking straight ahead and they could only see the tops of the heads of the two passengers who had "sort of slouched down." The agents testified that they first determined to overtake an automobile, also with California plates, which was proceeding directly ahead of the pickup, believing it might be the scout car of a "lead car/load car" operation. In doing so they said they started losing sight of the pickup which "slowed down considerably,"3 so the agents decided to stop and re-position their unit alongside the road. By this time they were several miles west of Nutt. As the pickup passed for the second time, only the driver was visible. The agents decided to stop the vehicle for an immigration inspection. After speaking with the driver, they insisted on access to the camper and found several undocumented aliens. Appellant was placed under arrest.
9
At trial the agents testified about their patrol experience, that alien smuggling was frequently done by the use of a pickup with a camper shell, and that in prior cases where campers or vans were used the windows were often painted over or would have curtains blocking the view inside. They also testified that as they drove ahead of the pickup they could tell from the movement of the pickup's headlights that it was being driven erratically, usually within its lane but sometimes crossing the centerline, an indication of a heavy load.
10
The agents conceded on cross-examination that there was nothing unusual about a pickup truck being in the area of Highway 26 around Nutt, heavily loaded, with off-road tires. Neither did they find it surprising that drivers and occupants of vehicles would look startled when lights were suddenly flashed directly into their vehicles. Further, Agent Teuber testified that he had no idea where the vehicle was coming from, negating any suggestion that the agents were aware that the vehicle had come from the border.
11
Border Crossing?
12
When a vehicle is stopped by a roving border patrol, a threshold consideration is whether the vehicle has come from the border. As we noted in Lamas, 608 F.2d at 549:
13
In a number of recent decisions, this Court has stated that a vital element of the Brignoni-Ponce test is whether the agent had 'reason to believe that the vehicle had come from the border.' United States v. Ballard, 600 F.2d 1115, 1119 (5th Cir. 1979); United States v. Rivera, 595 F.2d 1095, 1098 n.4 (5th Cir. 1979); United States v. Lopez, 564 F.2d 710, 712 (5th Cir. 1977); United States v. Escamilla, 560 F.2d 1229, 1231 (5th Cir. 1977); United States v. Woodard, 531 F.2d 741, 743 (5th Cir. 1976); United States v. Martinez, 526 F.2d 954, 955 (5th Cir. 1976); United States v. Del Bosque, 523 F.2d 1251, 1252 (5th Cir. 1975) (per curiam). We have found this element of the Brignoni-Ponce test missing where the stop occurred a substantial distance from the border. See United States v. Lopez, 564 F.2d 710, 712 (5th Cir. 1977) (55 miles from border); United States v. Escamilla, 560 F.2d 1229, 1230 (5th Cir. 1977) (70 miles from border); United States v. Martinez, 526 F.2d 954, 955 (5th Cir. 1976) (50 miles from border); United States v. Del Bosque, 523 F.2d 1251, 1252 (5th Cir. 1975) (per curiam) (60 miles from border).
14
To this list we add Pacheco, supra, where the stop was made 85 miles from the border.
15
This factor alone is not controlling, however, for "absence of a reason to believe the vehicle had come from the border is not dispositive." Pacheco, 617 F.2d at 86. In such an instance, we are constrained to determine whether other "articulable facts reasonably warrant" the requisite suspicion. Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2581; Pacheco, supra. Our examination of the record convinces us that the other facts do not reasonably warrant suspicion of illegal activity. A 3/4 ton pickup is not unusual or unexpected in the area, and no weight is to be given to the fact that it was apparently heavily loaded and had off-road tires. See Lamas, supra. It is not unusual for one in the position of appellant to be startled by lights being flashed suddenly into the interior of his vehicle. It would not be unusual for someone to appear to drive somewhat erratically immediately after being subjected to the "light in the face" intrusion, especially when the offending vehicle then pulls onto the highway and begins to overtake. Nor is there anything vaguely suspicious about the presence of persons who appear to be of Latin origin in New Mexico where over one-third of the population is Hispanic.
16
That the two passengers "hunkered down" was considered relevant but insufficient in Pacheco, even when combined with other observations, citing Lamas. The avoidance of eye contact was also considered of "no weight whatsoever" in Pacheco, 617 F.2d at 87, citing Escamilla, supra, and quoting Lopez, 564 F.2d at 712: "Reasonable suspicion should not turn on ophthalmological reactions."
17
The district judge found this to be a close case and without singling out any one factor, concluded that all circumstances, taken together, added up to sufficient reasonable suspicion. We cannot agree. We are not persuaded that absent any "reason to believe that the vehicle had come from the border," there are sufficient other articulable facts reasonably to warrant suspicion that the vehicle contained undocumented aliens. Each factor considered by the agents is non-remarkable and unsuspicious. Taken together and considered in the crucible of these agents' experiences, we still find them wanting. In so doing we give substantial weight to the fact that these agents were new to the area and were not familiar with the residents, their vehicles or traffic patterns.
18
The motion to suppress should have been sustained. The convictions are REVERSED.
1
Factors to be considered include: (1) characteristics of the area in which the vehicle is encountered; (2) unusual patterns of traffic on the particular road; (3) proximity to the border; (4) information about recent illegal crossings in the area; (5) appearance of the vehicle; (6) number and appearance of the passengers; (7) behavior of the driver; and (8) behavior of the passengers. Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2581-82. The experience of the agents is also a relevant factor. Id. at 885, 95 S.Ct. at 2582; Pacheco, 617 F.2d at 85
2
This lack of familiarity with the people, terrain and vehicles of the area sharply distinguishes this case from the factual situation existing in our recent roving border patrol decision, United States v. Rodriguez-Martinez, 626 F.2d 1232 (5th Cir. 1980), in which we found a stop to be constitutional
3
As to change in speed of the pickup, it was stipulated that if the aliens in question were to testify they would all state that the speed of the pickup did not change immediately prior to the stop and arrest | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1579063/ | 12 So. 3d 756 (2009)
STATE FARM FLORIDA INS. CO.
v.
OFFICE OF INS. REGULATION.
No. 1D09-592.
District Court of Appeal of Florida, First District.
July 20, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579058/ | 12 So. 3d 1105 (2009)
STATE of Louisiana
v.
Robert Elijah Lamar MINCEY, a/k/a Robert Bryant.
No. 09-155.
Court of Appeal of Louisiana, Third Circuit.
June 3, 2009.
John Foster DeRosier, District Attorney 14th Judicial District Court, Carla S. Sigler, Assistant District Attorney 14th Judicial District Court Lake Charles, LA, for Plaintiff/Appellee State of Louisiana.
Mary E. Roper, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant Robert Elijah Lamar Mincey, a/k/a Robert Bryant.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
THIBODEAUX, Chief Judge.
The Defendant, Robert Elijah Lamar Mincey, a/k/a Robert Bryant, was adjudicated to be a second habitual offender[1] and sentenced to serve fifty years at hard labor, without benefit of parole, probation, or suspension of sentence on an underlying manslaughter conviction.[2] On appeal, he *1106 argues that his sentence is excessive. We disagree and affirm.
LAW AND DISCUSSION
Pursuant to La.R.S. 14:31, the underlying manslaughter conviction subjected Defendant to a term of up to forty years. Therefore, as a second habitual offender, La.R.S. 15:529.1(A)(2)(a) subjected him to a term between twenty and eighty years. Thus, his sentence falls in the middle of that range. This court has observed:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So. 2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So. 2d 124, writ denied, 00-0165 (La.6/30/00); 765 So. 2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So. 2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So. 2d 331.
In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So. 2d 57, [58], writ denied, 99-0433 (La.6/25/99), 745 So. 2d 1183, our colleagues on the Fifth Circuit Court of Appeal noted three factors the appellate court should consider in reviewing a judge's sentencing discretion. They are:
1. the nature of the crime,
2. the nature and background of the offender, and
3. the sentence imposed for similar crimes by the same court and other courts.
State v. Telsee, 425 So. 2d 1251 (La.1983); State v. Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So. 2d 1272.
State v. Baker, 06-1218, pp. 7-8 (La.App. 3 Cir. 4/18/07), 956 So. 2d 83, 89, writ denied, 07-320 (La.11/9/07), 967 So. 2d 496, and writ denied, 07-1116 (La.12/7/07), 969 So. 2d 626.
The trial court's comments during sentencing touched on the first two factors cited in Baker and Lisotta:
This Court determined there is a prior felony that it will take into consideration for enhancement purposes.
Under the circumstances for regular Manslaughter, under these circumstances this young man could have been sentenced from zero to 40 years.
With the enhancement on the 529.1, the penalty then escalates to no less than one half, which is 20 years to up to twice, which is up to 80 years.
So that's the territory that this Court is looking for when it comes to sentencing regarding you, Robert.
As to the Dejean family, I can't give you what you want. What you want is your son back, I can't give you your son back. Ms. Bryant, I can't give you your son back either because he's got to pay for what he's done.
*1107 What's really so tragic in this situation is that the person who had the least to do with anything that caused this situation to escalate into somebody being shot is the one that got shot.
He had the least to do with what was going on, walked out and took a bullet to the chest that killed him, by the coroner's estimations, instantly.
The aggravating circumstances this Court has heard and recognizes is that under the circumstances from the shooting that night there was a very real risk of harm to others besides the victim. Under the close quarters that this shooting took place, it's remarkable that somebody else wasn't killed also.
Of course, the very fact that there was a handgun that was used means a dangerous weapon was used to commit this crime.
Other circumstances that this Court takes into consideration is the situation regarding where this young man, Mr. Mincey, almost immediately upon getting to Lake Charles from California arms himself with a weapon and for all intents and purposes, has set up shop to start selling drugs.
Of course, this Court would be remiss in not taking into consideration the things it must take into consideration regarding the nonaggravating circumstances.
The previous felony which he is accused of having committed was not a violent crime, it was a drug crime. Again, recalling the circumstances from the trial, I recognize that this was a situation that Mr. Mincey did not apparently start himself, but allowed to escalate.
He did attempt to retreat at some point by going outside. I think the evidence bears that out. But obviously Mr. Mincey didn't do ultimately what he could have done to have kept this thing from happening, which was totally retreat.
Taking all that into consideration this Court sentences Robert Mincey to 50 years Department of Corrections without benefit of parole, probation, or suspension of sentence.
Regarding the third Baker/Lisotta factor, we note that in State v. Loston, 03-977 (La.App. 1 Cir. 2/23/04), 874 So. 2d 197, 210-11, writ denied, 04-792 (La.9/24/04), 882 So. 2d 1167, the first circuit affirmed a forty-year sentence for a second offender whose underlying offense was manslaughter, and whose criminal history included violent offenses. In State v. Mims, 97-1500 (La.App. 4 Cir. 6/21/00), 769 So. 2d 44, writ denied, 00-2255 (La.6/22/01), 794 So. 2d 781, and writ denied, 00-2270 (La.6/22/01), 794 So. 2d 782, the fourth circuit approved a forty-year sentence for a second felony offender, even though the evidence suggested a co-defendant may have fired the fatal shots, and the defendant's prior conviction was non-violent, because the evidence also indicated the defendant instigated the situation that led to the shooting.[3] In State v. Walker, 99-2868 (La.App. 4 Cir. 10/18/00), 772 So. 2d 218, the fourth circuit upheld a maximum eighty-year sentence for a second habitual offender whose underlying offense was manslaughter, in part because he callously dumped his female victim's nude body in a public street, and he had a history of fighting women. That history was reflected mainly in arrests, rather than convictions. Taken together, these cases indicate that *1108 Defendant's mid-range sentence is not outside the norm of Louisiana jurisprudence.
In light of the sentencing factors stated in Baker and Lisotta, the trial court did not abuse its discretion by sentencing Defendant to fifty years of imprisonment.
Defendant also argues the trial court erred by denying parole. The State concedes this argument is correct, pursuant to La.R.S. 14:31, La.R.S. 15:529.1, and La.R.S. 15:574.4. At the time of the offense, La.R.S. 14:31 and La.R.S. 15:529.1 did not provide for denial of parole. Pursuant to La.R.S. 15:574.4, "parole eligibility is . . . determined by the Department of Corrections." State ex rel. Porter v. State, 04-2080, p. 1 (La.11/28/05), 916 So. 2d 123. However, as the State suggests, this defect can be easily remedied. We delete the portion of the sentencing language that denies parole, and order that the minutes be amended to reflect the change. See, e.g., State v. Dupree, 07-98 (La.App. 3 Cir. 5/30/07), 957 So. 2d 966, State v. Roberts, 06-765 (La.App. 3 Cir. 1/17/07), 947 So. 2d 208, writ denied, 07-362 (La.10/5/07), 964 So. 2d 938, State v. Poirrier, 04-825 (La.App. 3 Cir. 12/1/04); 888 So. 2d 1123.
Regarding "good time" (diminution of sentence), the trial court stated:
Taking all that into consideration this Court sentences Robert Mincey to 50 years Department of Corrections without benefit of parole, probation, or suspension of sentence.
Mr. Mincey, you have two years from the final judgment and finality of this matter to apply for post-conviction relief. It is not subject to diminution for good behavior.
You have already given your date of birth.
The trial court's language was merely advisory,[4] and thus there is no action for this court to take. This court has explained, "[a]ccording to the supreme court, `a trial judge lacks authority under La.R.S. 15:571.3(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is "directed to the Department of Corrections exclusively."' State v. Narcisse, 97-3161, p. 1 (La.6/26/98), 714 So. 2d 698, 699, citing State ex rel. Simmons v. Stalder, 93-1852 (La.1/6/96), 666 So. 2d 661." State v. Benedict, 04-742, p. 3 (La.App. 3 Cir. 11/10/04), 887 So. 2d 649, 652.[5]
For the reasons discussed, the denial of parole eligibility is deleted. However, the sentence is not excessive.
CONCLUSION
We amend the sentence to delete the language denying Defendant eligibility for parole, and direct the district court to record the amendment in the minutes. In all other respects, the sentence is affirmed.
AFFIRMED AS AMENDED.
NOTES
[1] On April 19, 2004, he was convicted of possession of cocaine, a felony, in California.
[2] That conviction is the subject of our opinion in State v. Robert Elijah Lamar Mincey, a/k/a Robert Bryant, 08-1315 (La.App. 3 Cir. 6/3/09), ___ So.2d ___, 2009 WL 1531570.
[3] However, the defendant's sentence was vacated due to an error patent. Mims, 769 So. 2d 44.
[4] The court was required to make such an advisement, pursuant to La.Code Crim.P. art. 894.1(D)(1).
[5] The trial court had authority to deny diminution of sentence under La.Code Crim.P. art. 890.1(B), since the underlying offense, manslaughter, is a crime of violence. However, the court's language, cited above, does not represent an exercise of such authority. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579086/ | 51 S.W.3d 616 (2000)
PELTIER ENTERPRISES, INC. and Bank of America, N.T. & S.A., Bank of America Texas, N.A., BankAmerica Corporation, Appellants,
v.
Jonray A. HILTON and Kelly D. Gibson, Individually, and On Behalf of All Other Persons Similarly Situated, Appellees.
No. 12-00-00053-CV.
Court of Appeals of Texas, Tyler.
December 20, 2000.
Rehearing Overruled February 5, 2001.
*619 Robert Mowery, Ron Adkinson, Thomas Yoxall, Michelle Gomez Hertzog, Lock Purnell Rain & Harrell PC, Dallas, E. Lee Parsley, Locke Purnell Rain & Harrell P.C., Austin, William Carroll, Donohoe, Jameson & Carroll, P.C., Dallas, for appellants.
James Owen, Life, Stark & Owen, P.C., Athens, Jack McGehee, McGehee & Pianelli, L.L.P., Patricia Tulinski, State of Texas Atty. Gen. Consumer Protection, Houston, for appellees.
Panel consisted of WORTHEN, J., HADDEN, J., and RAMEY, Chief Justice, (Retired).
WORTHEN, Justice.
After a trial on the merits of several claims asserted by two class representatives ("Appellees"), the jury found for Bank of America N.T. & S.A., Bank of America Texas, N.A., BankAmerica Corporation (sometimes hereinafter referred to collectively as "the Bank") and Peltier Enterprises, Inc. ("Peltier"). However, the trial court refused to render judgment on the verdict and certified a class action. The Bank and Peltier (sometimes hereinafter referred to as "Appellants") file this interlocutory appeal challenging the class action certification. We reverse and remand for decertification.
BACKGROUND
The underlying suit is based upon allegations of fraudulent concealment and Deceptive Trade Practices Act ("DTPA") violations of unconscionability and failure to disclose against both the Bank and Peltier, and tortious interference with a potential contract against Peltier. The complaints *620 are grounded upon Peltier's (and other unidentified car dealerships') admitted practice of selling a car, providing dealer financing, and "shopping" the paper to financial institutions (such as the Bank), one of which purchases the paper at a discount. In other words, the consumer is offered a particular rate of interest but the financial institution charges a lower rate of interest, with the differential going to the dealer. This payment is called a dealer participation fee, and the consumer is never told about the money that goes to Peltier or about the Bank's lower interest rate.
Peltier and the Bank describe the initial agreement between buyer and seller as a "retail installment transaction," which is specifically allowed by Texas law. TEX. FIN.CODE ANN. § 348.001(7) (Vernon 1998). The bank then purchases the retail installment contract from the seller after the transaction with the buyer is consummated-the bank is not a lender, but a "buyer of the paper." The seller always sells the contract to the bank for some compensation. The car buyer is not a party to this second transaction. Peltier avers that it strictly complies with the Texas Finance Code in regard to its retail installment contracts. It also maintains that the Finance Code anticipates that a retail seller may sell its retail installment contracts to a bank or other third party. TEX.FIN.CODE ANN. § 348.003 (Vernon 1998) Peltier sometimes finds a lending institution to buy its retail installment contracts before entering into the transaction with the consumer, a circumstance which Peltier argues is also specifically permitted by the Finance Code. Id.
The Appellees, on the other hand, contend that Peltier never actually enters into an installment contract with the car buyer, and thus the "dealer participation fee" is really a kickback to the dealership for giving the bank the financing business.
In two issues, the Bank and Peltier complain that the trial court abused its discretion in certifying a class under Rule 42(b)(4) (predominance, superiority, and manageability), and that the trial court abused its discretion by certifying a mandatory injunction class action under Rule 42(b)(1)(A) (inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class).
STANDARD OF REVIEW
An appellate court should reverse a trial court's certification order only if the record shows that the trial court committed a clear abuse of discretion in certifying a class action. E & V Slack, Inc. v. Shell Oil Co., 969 S.W.2d 565, 567 (Tex.App.-Austin 1998, no pet.). An abuse of discretion occurs if the trial court acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). A failure to analyze or apply the law correctly is an abuse of discretion. Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.1996); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). But according to the Texas Supreme Court, an appellate court, in reviewing a certification order, should no longer indulge every presumption in favor of the trial court's ruling, view the evidence in the light most favorable to that ruling, nor err in favor of certification. Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 434-35 (Tex.2000).
Although the ultimate issue at the trial court level is whether Peltier and the Bank have engaged in deceptive and unconscionable actions, the question before us is whether the propriety of their conduct can and should be decided on a class-wide basis. This court "may not consider *621 the substantive merits of the case, and class proponents are not required to prove a prima facie case in order to be certified as a class." Reserve Life Ins. Co. v. Kirkland, 917 S.W.2d 836, 842 (Tex.App.-Houston [14th Dist.] 1996, no writ), rev'd on other grounds, Bernal, 22 S.W.3d at 434. Instead, the certification issue turns on whether the trial court sufficiently defined the putative class pursuant to Rule 42 of the Texas Rules of Civil Procedure.
CLASS CERTIFICATION
Under Rule 42, all class actions must satisfy four requirements: (1) numerosity ("the class is so numerous that joinder of all members is impracticable"); (2) commonality ("there are questions of law or fact common to the class"); (3) typicality ("the claims or defenses of the representative parties are typical of the claims or defenses of the class"); and (4) adequacy of representation ("the representative parties will fairly and adequately protect the interests of the class"). TEX.R.CIV.P. 42(a).
If the Rule 42(a) elements are satisfied, the trial court must then determine if the class action is maintainable. TEX.R.CIV.P. 42(b). The Bank and Peltier do not complain that the Rule 42(a) elements are not met in this case. However, there are four subsections of Rule 42(b), at least one of which must be satisfied before class certification is appropriate. The Bank and Peltier do maintain that none of the Rule 42(b) requirements are satisfied. The trial court certified the class pursuant to Rule 42(b)(1)(A) and 42(b)(4). Rule 42(b)(1)(A) requires a showing that the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class. TEX.R.CIV.P. 42(b)(1)(A). Rule 42(b)(4) requires a showing that the "questions of law or fact common to the members of the class predominate over any questions affecting only individual members ..." and that the "class action is superior to other available methods for the fair and efficient adjudication of the controversy." TEX.R.CIV.P . 42(b)(4) (emphasis added). Matters which are pertinent to the court's finding that the suit is maintainable include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.
Id. (emphasis added)
ANALYSIS
In the instant case, the trial court certified the class action with respect to the claims asserted in Appellees' Petition on behalf of the following class of Plaintiffs:
Subclass A(1). All persons who have made a motor vehicle payment on or after June 12, 1994, pursuant to a Retail Installment Sales Contract, in which BANK OF AMERICA paid a "dealer participation" fee to a motor vehicle dealer in the State of Texas, who are not subject to a claim for deficiency in the amount owed under their Retail Installment Sales Contract.
Subclass A(2). All persons who have made a motor vehicle payment on or after June 12, 1994, pursuant to a Retail Installment Sales Contract, in which BANK OF AMERICA paid a "dealer *622 participation" fee to a motor vehicle dealer in the State of Texas, who are subject to a claim for deficiency in the amount owed under their Retail Installment Sales Contract, and the amount of the alleged deficiency is less than the amount of the "dealer participation" fee.
Subclass B(1). All persons who have made a motor vehicle payment on or after June 12, 1994, pursuant to a Retail Installment Sales Contract, in which BANK OF AMERICA paid "dealer participation" fee to PELTIER ENTERPRISES, INC., who are subject to a claim for deficiency in the amount owed under their Retail Installment Sales Contract, and the amount of the alleged deficiency is equal to or greater than the "dealer participation" fee.
In their first issue, the Bank and Peltier assert that the predominance, superiority, and manageability requirements are not satisfied; thus the trial court's certification of the class constitutes error. Their main contention is that individual issues predominate, such as what Plaintiffs knew about their transactions, whether the information was material to them, which representation they relied upon, what Plaintiffs were told or not told by Peltier, and whether Plaintiffs could obtain alternative financing. Therefore, the court would have to do a case-by-case analysis, which precludes the use of a class action. In their second issue, Appellants maintain that the prosecution of separate actions by or against individual members of the class would not create a risk of inconsistent or varying adjudications which would establish incompatible standards of conduct for the opposing party. Some plaintiffs would win and some would lose, but that is not considered inconsistent or varying adjudications under the law. We will consider each of these arguments in turn.
Predominance
Under Rule 42, "common" questions must predominate over questions affecting only individual class members. TEX.R.CIV.P. 42(b)(4). A common question exists when the answer as to one class member is the same as to all. Spera v. Fleming, Hovenkamp & Grayson, P.C., 4 S.W.3d 805, 810 (Tex.App.-Houston 1999, no pet .). Common questions that do not produce common answers do not satisfy the Rule 42 commonality requirement. Wente v. Georgia Pacific Corp., 712 S.W.2d 253, 257 (Tex.App.-Austin 1986, no writ). The "predominance requirement... is one of the most stringent prerequisites to class certification." Bernal, 22 S.W.3d at 433. Courts determine if common issues predominate by identifying the substantive issues that will control the outcome of the litigation, assessing which issues will predominate, and determining if the predominating issues are, in fact, common to the class. Id. at 434. The test for predominance is not whether common issues outnumber uncommon issues, but whether common or individual issues will be the subject of most of the litigant's and court's efforts. If, after common issues are resolved, presenting and resolving individual issues is likely to be an overwhelming or unmanageable task for a single jury, then common issues do not predominate. Bernal, 22 S.W.3d at 434. Ideally, a judgment in favor of the named plaintiffs should decisively settle the entire controversy, and all that should remain is for other class members to file proofs of claim. Id. It is improper to certify a class without knowing how the claims can and will likely be tried. Id. at 435. Individual scrutiny by the trial court is necessary to ensure that certification does not "restrict a party from presenting viable claims or defenses without that party's consent." Id.
*623 Peltier and the Bank argue that common issues do not predominate over individual issues in the instant case. They take the position that the trial court will be forced to receive evidence at trial from both the plaintiffs and the defendants pertaining to the factual circumstances of each putative class member's loan transaction. We will analyze the elements of each cause of action pleaded to determine if, in fact, this contention has merit.
Appellees' first cause of action is common law fraud. The elements of fraud are (1) that a material representation was made, (2) the representation was false, (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion, (4) the speaker made the representation with the intent that the other party should act upon it, (5) the party acted in reliance on the representation, and (6) the party thereby suffered injury. Formosa Plastics Corp. v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998). Fraudulent concealment, which is also one of Appellees' causes of action, requires proof of the same elements, including a showing of reliance. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex.1997).
We believe that at least two of the above elements require individualized proof: (1) the materiality of the misrepresentation or concealment to that plaintiff; and (2) each individual plaintiff's reliance on that misrepresentation or concealment to his or her detriment. To illustrate this point, we look to the jury trial of the class representatives. During the trial, it was shown that the "dealer participation fee" equaled a 5.9% interest rate spread in one case, while the difference in the second case amounted only to $4.00 per month. It required cross-examination of each plaintiff to determine if the differential was material to him or her. One of the plaintiffs testified that she did not know what interest rate she was given, and that she did not care. Her only concern was the monthly payments. However, there is no presumption that simply because the differential is negligible, it is not material to the retail buyer. Conversely, a court cannot presume that because the differential is substantial, it does matter to the buyer. For example, even the 5.9% differential may not be material to someone who cannot acquire financing elsewhere, and is simply happy to drive away in a new vehicle. It is thus clear that answering the questions of materiality and reliance as to one plaintiff does not answer the same question as to other putative class members. See Spera, 4 S.W.3d at 811 (Tex.App.-Houston 1999, no pet.) ("the causes of action listed above [fraud, intentional and negligent misrepresentation, and others] pose multiple individual issues, such as determining which potential class members relied on any ... misrepresentation... and what duty or duties were variously owed to whom."); see also Castano v. American Tobacco Co., 84 F.3d 734, 745 (5th Cir.1996) ("a fraud class action cannot be certified when individual reliance will be an issue.").
Another cause of action pleaded by Appellees is unconscionability under the DTPA. Unconscionability requires proof of (1) an act or practice that, (2) to a person's detriment, (3) takes advantage of his lack of knowledge, ability, experience, or capacity, (4) to a grossly unfair degree. Tex.Bus. & Com.Code Ann. § 17.45(5) (Vernon Supp.1998). There must be a showing of what the consumer could have or would have done if he had known about the information. For example, if the consumer could not get financing through any other source and still wanted the car, he may *624 have purchased it under the retail installment contract as written even if told of the transaction with the Bank. Or if the difference in payments was very small, the consumer might not have cared at all.[1] Plus, there would need to be some showing of each customer's "knowledge, ability, experience, or capacity." A plaintiff with knowledge about indirect lending or with years of experience in the car-selling business would not be able to show that Peltier did anything that was "unconscionable."
Under DTPA section 17.46(b)(23), Appellees' third cause of action, a plaintiff must show that the defendant failed to disclose facts known at the time of the transaction with the intent to induce the plaintiff into a transaction he would not have entered had the information been disclosed. Tex.Bus. & Com.Code Ann. § 17.46(23) (Vernon Supp.1998). This claim requires individualized proof because reliance is an essential element of this DTPA claim. Tex.Bus. & Com.Code Ann. § 17.50(a)(1)(B) (Vernon Supp.1998) (false, deceptive or misleading act must be "relied on by a consumer to the consumer's detriment"). A class member who could not obtain credit elsewhere is in a different circumstance than one who could. Here, again, the question remains as to what each class member could or would have done if he or she had known of the transaction between Peltier and the Bank. It is not possible that any one individual's evidence on this point could be substituted for another's. See Life Ins. Co. of the Southwest v. Brister, 722 S.W.2d 764, 774 (Tex. App.Fort Worth 1986, no writ) (not all situations involving fraud and misrepresentation claims are appropriate for class treatment because of material variations in representations made and in the kinds or degrees of reliance).
Appellees' final cause of action-tortious interference with prospective business relations-requires proof that a reasonable probability exists that putative class members would have entered a contractual relationship with the Bank, and that Peltier intentionally and maliciously prevented the relationship from occurring with the purpose of harming the putative class members. See Exxon Corp. v. Allsup, 808 S.W.2d 648, 659 (Tex.App.-Corpus Christi 1991, writ denied). Again, individualized proof would be necessary to determine if there was a "reasonable probability" that each putative class member and the Bank would have entered into a contractual relationship but for Peltier's "interference." Also, there is the question of whether Peltier maliciously intended to prevent the relationship from occurring in order to harm each putative class member.
In reviewing the causes of action brought by Appellees against the Bank and Peltier, we conclude that the resolution of individual issues is likely to be an overwhelming and unmanageable task for a single jury. We hold, therefore, that because of the numerous fact issues raised by the pleadings, which can only be determined by questioning each individual plaintiff, the common issues do not predominate over questions affecting only individual class members.
Superiority and Manageability
A class action is superior to other methods of adjudication where any difficulties which might arise in the management of the class are outweighed by the benefits of classwide resolution of common issues. See Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 654 (Tex.App.-Houston *625 [14th Dist.] 1995, writ dism'd w.o.j.). In assessing the superiority of a class action, the court may consider (1) class members' interest in resolving the common issues by class action, (2) the benefit from discovery already commenced, and (3) the trial court's time and effort invested in familiarizing itself with the dispute. See Tex.R.Civ.P. 42(b)(4); Weatherly, 905 S.W.2d at 654.
In the instant case, the overwhelming predominance of individual issues make a class action unmanageable and, therefore, not a superior method of adjudication. In our opinion, the difficulties outweigh the benefits. Because the putative class members' claims all arise out of face-to-face transactions, any single class member's claim is subject to numerous fact-specific defenses, which, if successful, would defeat that class member's claim. Due process requires that Peltier and the Bank be permitted to take appropriate discovery of absent class members and to present evidence at trial reasonably calculated to defeat the class members' claims. See Cimino v. Raymark Indus., Inc., 151 F.3d 297, 311-321 (5th Cir.) (federal appellate court reversed trial court's refusal to allow defendants to contest individual exposure and causation issues in asbestos case). A class structure that would require taking discovery of all 69,000 putative class members, followed by a trial where Peltier and the Bank would present evidence on individual defenses for 69,000 class members, would make the management of the class impossible. As an Alabama court so aptly put it, "There is a seemingly endless permutation of facts which the court will have to examine to determine the validity of each class member's claim." Mack v. GMAC, 169 F.R.D. 671, 678 (M.D.Ala. 1996).[2] We hold, therefore, that class certification in the instant case is inappropriate because a class action is neither a superior method of adjudication, nor would it be manageable by one jury as required by Rule 42(b)(4). Accordingly, we sustain Peltier's and the Bank's first issue.
Inconsistent Adjudications
Under Rule 42(b)(1)(A), when the only risk is that some plaintiffs may win while others may lose on identical facts, the problem of inconsistent or varying adjudications is not raised. St. Louis Southwestern Ry. Co. v. Voluntary Purchasing Groups, Inc., 929 S.W.2d 25, 32 (Tex.App.-Texarkana 1996, no writ). Rather, the rule applies "to situations where inconsistent judgments in separate suits places a defendant in the position of not being able to comply with one judgment without violating the terms of another." Id. In the instant case, a trial court could possibly render one of two orders: enjoin Peltier and the Bank to disclose the dealer participation fee to the retail buyer, or enjoin Peltier and the Bank not to disclose the dealer participation fee to the retail buyer. However, it is inconceivable that any court would order the defendants not to disclose their relationship; therefore, there is no risk of inconsistent adjudications in this case. Accordingly, the trial court abused its discretion in certifying this lawsuit as a class action under Rule 42(b)(1)(A). Therefore, we sustain issue two, and reverse and remand to the trial court for decertification.
NOTES
[1] In the trial on the merits of two of the class representatives' claims, one plaintiff testified that he assumed Peltier was making a profit on the financing, but still continued with his transaction.
[2] In Mack, as here, the plaintiff purchased a motor vehicle in a credit transaction, her contract was assigned to GMAC, and GMAC paid a portion of the interest to the dealer. Ms. Mack alleged that this payment constituted fraud by suppression and sought class certification. The court denied certification because of the predominance of individual issues, including reliance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579126/ | 12 So. 3d 234 (2009)
W.D.
v.
DEPARTMENT OF CHILDREN AND FAMILIES.
No. 3D09-120.
District Court of Appeal of Florida, Third District.
June 10, 2009.
Decision without published opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579163/ | 671 N.W.2d 84 (2003)
256 Mich. App. 656
Alex C. TATE, Plaintiff-Appellant,
v.
CITY OF GRAND RAPIDS, Defendant-Appellee.
Docket No. 236251.
Court of Appeals of Michigan.
Submitted March 4, 2003, at Grand Rapids.
Decided May 29, 2003, at 9:00 a.m.
Released for Publication July 14, 2003.
*85 Robert J. Riley, Grand Rapids, for the plaintiff.
Janice F. Bailey, Assistant City Attorney, Grand Rapids, for the defendant.
Before WHITBECK, C.J., and CAVANAGH and BANDSTRA, JJ.
PER CURIAM.
Plaintiff Alex C. Tate appeals as of right the trial court's grant of summary disposition in defendant city of Grand Rapids' favor on the ground that the governmental tort liability act (GTLA), M.C.L. § 691.1401 et seq., barred plaintiff's claim for injuries sustained when he was bitten by a police dog. We affirm.
On October 1, 1999, police responded to a reported felonious assault at a bowling alley. After being advised by witnesses that two suspects had fled the scene, a police dog was being prepared to track the suspects when plaintiff arrived on the scene. Police officers yelling at plaintiff to "stop" alerted the police dog, which ran toward plaintiff. The police dog's handler repeatedly and loudly ordered the dog to heel and return, but the dog did not obey. Apparently, when plaintiff dropped to his knees and put his arms over his head, the dog proceeded to bite plaintiff on his shoulder. On October 5, 2000, plaintiff asserted this claim, pursuant to the common law and M.C.L. § 287.351, for the dog-bite injuries. The trial court granted defendant's motion for summary disposition on the ground that plaintiff failed to plead a claim avoiding defendant's governmental immunity, M.C.L. § 691.1407(1).
On appeal, plaintiff first argues that the trial court erred in concluding that defendant was immune from liability under M.C.L. § 691.1407(1) because, pursuant to M.C.L. § 287.351, defendant is strictly liable for plaintiff's injuries. We disagree. Decisions on summary disposition motions and questions of statutory interpretation are reviewed de novo. Stanton v. Battle Creek, 466 Mich. 611, 614, 647 N.W.2d 508 (2002).
MCL 287.351, the dog-bite statute, provides:
(1) If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.
This statute has consistently been interpreted as creating "an almost absolute liability" in the dog owner, except in instances of provocation. Nicholes v. Lorenz, 396 Mich. 53, 59-60, 237 N.W.2d 468 (1976); Bradacs v. Jiacobone, 244 Mich.App. 263, 267, 625 N.W.2d 108 (2001); Thelen v. *86 Thelen, 174 Mich.App. 380, 385-386, 435 N.W.2d 495 (1989). Here, it is uncontested that plaintiff did not provoke the attack. However, in the trial court defendant successfully argued that, because it is a governmental agency, defendant was immune from tort liability arising from the discharge of its law enforcement duties, including any liability resulting from plaintiff being bitten by a police dog during the course of an investigation.
Defendant's argument is premised on the GTLA, M.C.L. § 691.1401 et seq., in particular M.C.L. § 691.1407(1), which provides, in part:
Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.
This statute grants broad immunity to governmental agencies, extending immunity "to all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function." Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 156, 615 N.W.2d 702 (2000) (emphasis in original). By the plain language of § 7, only tort claims brought pursuant to one of the five exceptions[1] provided by the GTLA itself, and those that arise from the exercise or discharge of a nongovernmental function, survive the grant of immunity. See Mack v. Detroit, 467 Mich. 186, 201, 649 N.W.2d 47 (2002); Pohutski v. Allen Park, 465 Mich. 675, 689-690, 641 N.W.2d 219 (2002); Nawrocki, supra at 157, 615 N.W.2d 702.
Plaintiff argues that his cause of action is not one of "tort liability" but rather "strict liability" and, thus, is not within the reach of the GTLA. Plaintiff fails to support the alleged dispositive nature of this title distinction with any legal authority. Nevertheless, in our attempt to give effect to the Legislature's intent, we first consider the plain and ordinary meaning of statutory language. See Charboneau v. Beverly Enterprises, Inc., 244 Mich.App. 33, 40, 625 N.W.2d 75 (2000); Ypsilanti Housing Comm. v. O'Day, 240 Mich.App. 621, 624, 618 N.W.2d 18 (2000). The GTLA provides governmental agencies immunity from "tort liability." At issue is whether the dog-bite statute, which imposes "strict liability,"[2] is outside the reach of the "tort liability" provision of the GTLA. We conclude that it is not.
A "tort" is broadly defined as "[a] civil wrong for which a remedy may be obtained," and "tort law" is the branch of law applicable to such claims. See Black's Law Dictionary (7th ed.); Prosser & Keeton, Torts (5th ed.), § 1, pp. 2, 5-6. Just as products liability, and premises liability claims are based on tort law and, thus, may result in tort liability, strict liability is based on tort law and may result in tort liability, i.e., civil liability for wrongful conduct. See id., § 75, pp. 534-538. In this context, the primary characteristic that distinguishes a strict liability claim from other tort-based claims is the principle of fault. Id. In typical tort actions, before liability will be imposed, the plaintiff must establish the defendant's fault, e.g., intentional or negligent conduct. To the contrary, *87 in a strict liability tort action, liability is not fault-basedit is not dependent, for example, on whether negligent, intentional, or accidental conduct caused the harm; rather, civil liability is imposed for the wrongful conduct irrespective of fault. Id.; see, also, Dobbs, Law of Torts, § 342, pp. 941-942. Nevertheless, it is still a tort action seeking to impose tort liability. Consistent with these general concepts, M.C.L. § 287.351 does not itself establish liability for dog bites; rather, it merely replaces the negligence standard applicable to the existing common law tort (liability imposed regarding an animal known to be vicious) with a strict liability standard (liability imposed regardless of such knowledge). See Nicholes, supra at 59, 237 N.W.2d 468.
The GTLA unambiguously grants immunity from all tort liability, i.e., all civil wrongs for which legal responsibility is recognized, regardless of how the legal responsibility is determined, except as otherwise provided in the GTLA. Consequently, plaintiff's argument that his claim is exempt from the GTLA because it is not one of tort liability is without merit. Accordingly, the trial court properly dismissed plaintiff's strict liability claim on the ground that it was barred by governmental immunity.
Plaintiff also argues that the trial court erred in dismissing his claim because, when he was bitten by the police dog, the police department was not "engaged in the exercise or discharge of a governmental function" as required by the GTLA. We disagree.
Pursuant to M.C.L. § 691.1401(f), a "`[g]overnmental function' is an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." Plaintiff argues that, because the police dog bit him against his handler's orders, "the attack had nothing whatsoever to do with the proper exercise of the governmental function of policing." However, "[t]o determine whether a governmental agency is engaged in a governmental function, the focus must be on the general activity, not the specific conduct involved at the time of the tort." Pardon v. Finkel, 213 Mich. App. 643, 649, 540 N.W.2d 774 (1995); see, also, Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 625, 635, 363 N.W.2d 641 (1984). Here, it is undisputed that, at the time of the incident, defendant's police officers were investigating a reported felonious assault, a crime; thus, they were engaged in police activitya governmental functionwithin the contemplation of the GTLA when the incident occurred. Accordingly, the trial court properly held that defendant was entitled to immunity.
Affirmed.
WHITBECK, C.J., (concurring).
I concur in the result reached by the majority. I write separately to express a somewhat different method of analysis, leading to the same result.
I. Basic Facts And Procedural History
As set out in the majority opinion, this case involves plaintiff Alex C. Tate's suit against defendant city of Grand Rapids for injuries he sustained when a police dog, owned by the city through its police department, bit him. As the majority opinion states, it is uncontested that Tate did not provoke the attack by the police dog. Thus, the issue is whether M.C.L. § 287.351 (the dog-bite statute) prevails over M.C.L. § 691.1401 (the governmental tort liability act or the GTLA). The trial court held that the dog-bite statute did not take precedence over the GTLA and granted summary disposition to the city on *88 the basis of the governmental immunity granted by the GTLA.
II. Standard Of Review
We review de novo a trial court's grant of summary disposition to determine whether the moving party was entitled to judgment as a matter of law.[1] Similarly, we review de novo the determination of whether governmental immunity applies under the dog-bite statute as a question of law.[2]
III. A "Necessary Inference"
Tate's arguments in this caseand to some extent the majority opinionfocus on the language of the GTLA in determining which statute takes precedence. In my view, the primary inquiry should be directed at the language of the dog-bite statute. In Ballard v. Ypsilanti Twp,[3] the Michigan Supreme Court held that the GTLA may only be waived or abrogated "`by an express statutory enactment or by necessary inference from a statute.'"[4]
The dog-bite statute contains no reference to the government or its employees; this rules out an express abrogation. Accordingly, the question becomes whether the dog-bite statute by "necessary inference" abrogated the general doctrine of governmental immunity. There is some support for the view that the dog-bite statute abrogates the doctrine of governmental immunity contained in the GTLA in that provocation is the only defense to a claim under the dog-bite statute. Arguably, therefore, this would render the defense of governmental immunity inapplicable. However, the cases that have followed this line of reasoning have done so in the context of parental immunity, not governmental immunity, and they have reached this conclusion, in part, because of the general trend toward abrogating the doctrine of parental immunity.[5]
I also note that the dog-bite statute does not define "owner of the dog" to exclude the government. However, when faced with a somewhat similar situation with respect to the Whistleblowers' Protection Act (WPA), M.C.L. § 15.361 et seq., the Supreme Court held that there was effective abrogation because the WPA governs "employers" and defines "employer" to include the state.[6] Here, the converse is true; the definition of "owner of the dog" does not include the government. Reasoning by reverse analogy, I would, therefore, conclude that there is no "necessary inference" to be drawn from the fact that the definition of "owner of the dog" does not expressly exclude the government.
For these reasons, I see nothing in the dog-bite statute that would lead to the "necessary inference" that it abrogated the general doctrine of governmental immunity contained in the GTLA. Accordingly, I would affirm on this ground.
NOTES
[1] The five statutory exceptions are: the highway exception, M.C.L. § 691.1402; the motor vehicle exception, M.C.L. § 691.1405; the public building exception, M.C.L. § 691.1406; the proprietary function exception, M.C.L. § 691.1413; and the governmental hospital exception, M.C.L. § 691.1407(4). Nawrocki, supra at 156, n. 14, 615 N.W.2d 702.
[2] Michigan courts have considered the dog-bite statute a strict liability statute. See Bradacs, supra at 275, 625 N.W.2d 108; Spikes v. Banks, 231 Mich.App. 341, 352-353, 586 N.W.2d 106 (1998).
[1] Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999).
[2] Baker v. Waste Mgt. of Michigan, Inc., 208 Mich.App. 602, 605, 528 N.W.2d 835 (1995).
[3] Ballard v. Ypsilanti Twp., 457 Mich. 564, 574, 577 N.W.2d 890 (1998).
[4] Id. at 574, 577 N.W.2d 890, quoting Mead v. Pub. Service Comm., 303 Mich. 168, 173, 5 N.W.2d 740 (1942).
[5] See, e.g., Thelen v. Thelen, 174 Mich.App. 380, 386, 435 N.W.2d 495 (1989).
[6] Anzaldua v. Band, 457 Mich. 530, 578 N.W.2d 306 (1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579198/ | 671 N.W.2d 535 (2003)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
David Anthony GUERRA, Defendant-Appellant.
Docket No. 123935, COA No. 223402.
Supreme Court of Michigan.
November 21, 2003.
On order of the Court, the delayed application for leave to appeal the April 8, 2003, judgment of the Court of Appeals is considered and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. However, this order does not constitute approval of either the Genesee Circuit Court's or the Court of Appeals' determination that under MRE 607 defense counsel was not permitted on direct examination to elicit from a witness testimony concerning her plea agreement. Rather, MRE 607 states, "The credibility of a witness may be attacked by any party, including the party calling the witness." Accordingly, defense counsel should have been allowed on direct examination to elicit from the witness testimony concerning her plea agreement because such testimony was relevant to her credibility.
Further, the Court of Appeals panel's discussion of the federal RICO statute, 18 U.S.C. 1961, et seq., and burdens of proof thereunder, have no relevance to MCL *536 750.159(i)(1). Moreover, the panel's inclusion of a discussion of the federal statute, even as purported "legislative history" of our statute, is contrary to our canons of statutory construction. Where, as here, the statute is unambiguous, the appellate court must assume that the legislature intended its plain meaning and the statute must be enforced as written. Stated differently, a court may read nothing into an unambiguous statute that is not within the manifest intent of the legislature as derived from the words of the statute itself. Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent. People v. Phillips, 469 Mich. 390, 666 N.W.2d 657 (2003); Gilbert v. Second Injury Fund, 463 Mich. 866, 616 N.W.2d 161 (2000); People v. Davis, 468 Mich. 77, 658 N.W.2d 800 (2003); Dan De Farms, Inc. v. Sterling Farm Supply, Inc., 465 Mich. 872, 633 N.W.2d 824 (2001); DiBenedetto v. West Shore Hosp., 461 Mich. 394, 605 N.W.2d 300 (2000); Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002); State Farm Fire & Casualty Co. v. Old Republic Ins. Co., 466 Mich. 142, 644 N.W.2d 715 (2002). Consequently, future courts and parties are well-advised to look to the expressly defined terms of our statute rather than to the federal RICO statute for guidance.
MICHAEL F. CAVANAGH, J., would deny leave to appeal without further comment.
WEAVER, J., states:
I concur in the denial because I am not persuaded that the questions presented should be reviewed by this court.
MARILYN J. KELLY, J., concurs and states:
I would deny leave to appeal. Also, I agree that on direct examination defense counsel should have been allowed to elicit from the witness testimony concerning her plea agreement because it was relevant to her credibility. However, I disagree that the Court of Appeals discussion of the federal RICO [1] statute has no relevance in this case. It was appropriate for the panel to apply Michigan's statutory definitions of "enterprise"[2] and "pattern of racketeering activity,"[3] and to consider the federal statute for guidance on how the evidence was relevant. People v. Gonzalez, 256 Mich. App. 212, 219-220, 663 N.W.2d 499 (2003).
NOTES
[1] Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C 1961 et seq.
[2] MCL 750.159f(a).
[3] MCL 750.159f(c). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579208/ | 671 N.W.2d 239 (2003)
12 Neb. App. 283
STATE of Nebraska, Appellee,
v.
Gary A. STUART, Appellant.
No. A-02-1105.
Court of Appeals of Nebraska.
November 18, 2003.
*240 Jeff T. Courtney, of Pfeffer & Courtney, Omaha, for appellant.
Jon Bruning, Attorney General, and Kevin J. Slimp for appellee.
HANNON and INBODY, Judges, and BUCKLEY, District Judge, Retired.
BUCKLEY, District Judge, Retired.
INTRODUCTION
Gary A. Stuart appeals from an order of the district court for Douglas County sustaining the State's motion to dismiss his appeal due to the absence of a trial court record. For the reasons set forth below, we dismiss the appeal for lack of jurisdiction and order the district court to vacate its order and to dismiss Stuart's appeal from the county court for lack of jurisdiction.
BACKGROUND
On February 15, 2001, two complaints were filed in the Douglas County Court charging Stuart with assault in the third degree and disorderly conduct. Following a bench trial in county court, Stuart was found guilty and was convicted of both charges. The trial court sentenced him to 6 months in jail on the assault charge and 90 days in jail on the disorderly conduct charge, with the sentences to run concurrently. On June 18, Stuart requested an appeal bond, and the trial court set bond at $1,000, which Stuart subsequently provided. On June 20, Stuart filed with the Douglas County Court a notice of appeal, praecipe for transcript, and praecipe for bill of exceptions. Along with his notice of appeal, Stuart filed a motion for leave to proceed in forma pauperis and an affidavit in support of the motion.
Stuart was represented by David Tarrell from the Douglas County public defender's office in all proceedings in the county court, including the filing of the appeal documents. However, within a short time after the appeal was filed, Tarrell was informed by Stuart that he had retained attorney Jeff Courtney to represent Stuart on appeal. On July 11, 2001, Tarrell contacted the Douglas County transcription department and told it to stop production of the transcript and the bill of exceptions that had been ordered for Stuart's appeal. Tarrell stopped that production because he did not want the public defender's office to incur the cost associated with having the transcript and bill of exceptions prepared *241 when he was no longer representing Stuart.
Courtney entered an appearance in court on July 11, 2001, as Stuart's new counsel. Courtney also went to the office of the clerk of the Douglas County Court and examined Stuart's court file, which Courtney observed to contain a properly executed notice of appeal, praecipe for transcript, and praecipe for bill of exceptions. Neither Courtney nor Stuart were advised by Tarrell or anyone else that Tarrell had stopped the production of a bill of exceptions in the county court.
It is the Douglas County transcription department's policy to destroy taped recordings of county court criminal hearings and trials after 6 months when an appeal is not on file. The tape of Stuart's county court proceedings has been destroyed, and no bill of exceptions was ever prepared. Therefore, there is no record of the trial court proceedings. On August 23, 2002, the State filed a motion to dismiss Stuart's appeal to the district court based on the absence of a trial court record. The district court sustained the State's motion to dismiss, and Stuart now appeals to this court.
ASSIGNMENT OF ERROR
Stuart assigns that the district court erred in sustaining the State's motion to dismiss his appeal based on the absence of a trial court record.
STANDARD OF REVIEW
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003); State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002).
ANALYSIS
We first address the State's position that the district court should have dismissed Stuart's appeal for lack of jurisdiction. It is not only within the power but it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Breeden v. Nebraska Methodist Hosp., 257 Neb. 371, 598 N.W.2d 441 (1999); State v. Schmidt, 12 Neb.App. 150, 668 N.W.2d 525 (2003). A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision. State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002); State v. Canaday, 263 Neb. 566, 641 N.W.2d 13 (2002).
The State alleges that the district court lacked jurisdiction over Stuart's appeal because Stuart failed to perfect his appeal to the district court. In order to perfect an appeal from the county court, the appealing party must within 30 days of the judgment file with the clerk of the county court a notice of appeal and deposit with the clerk of the county court a docket fee in the amount of the filing fee in district court. Neb.Rev.Stat. § 25-2729(1) (Cum. Supp.2002). Satisfaction of these two requirements "shall perfect the appeal and give the district court jurisdiction of the matter appealed." § 25-2729(2). As an alternative to depositing a docket fee, a person appealing who is unable to pay the required fee may file an application to proceed in forma pauperis, which application shall include an affidavit of poverty. See Neb.Rev.Stat. § 25-2301.01 (Cum. Supp.2002). The record shows that Stuart timely filed a notice of appeal with the county court and an application to proceed in forma pauperis accompanied by an affidavit. However, Stuart did not sign the *242 poverty affidavit. Rather, the affidavit was signed by Stuart's attorney.
The State contends that the attorney's signature, purporting to sign the affidavit on behalf of Stuart, is not sufficient to vest the district court with jurisdiction. The State relies on In re Interest of T.W. et al., 234 Neb. 966, 453 N.W.2d 436 (1990), which held that absent good cause evident in the record, a poverty affidavit signed by an appellant's attorney is not sufficient to vest an appellate court with jurisdiction. At that time, the applicable statute in effect was Neb.Rev.Stat. § 25-2301 (Reissue 1989), which allowed an appeal to proceed without the prepayment of costs "by a person who makes an affidavit that he or she is unable to pay such costs or give security. Such affidavit shall state the nature of the action, defense, or appeal and affiant's belief that he or she is entitled to redress." The court concluded in In re Interest of T.W. et al., supra, that based on § 25-2301, the appellant, and not his or her attorney, must sign the affidavit in support of the motion to proceed in forma pauperis. Further, the Nebraska Supreme Court explained the rationale against allowing an attorney to sign an affidavit on behalf of his client as follows:
The practice of an attorney's filing an affidavit on behalf of his [or her] client asserting the status of that client is not approved, inasmuch as not only does the affidavit become hearsay, but it places that attorney in a position of a witness[,] thus compromising his [or her] role as an advocate.
In re Interest of T.W. et al., 234 Neb. at 967-68, 453 N.W.2d at 437.
Section 25-2301 has been subsequently revised. The current statute, which is found at § 25-2301.01 and became effective August 28, 1999, states in part:
An application to proceed in forma pauperis shall include an affidavit stating that the affiant is unable to pay the fees and costs or give security required to proceed with the case, the nature of the action, defense, or appeal, and the affiant's belief that he or she is entitled to redress.
(Emphasis supplied.) Although the statute requiring an appellant to submit a poverty affidavit when requesting to proceed in forma pauperis has been modified since In re Interest of T.W. et al., supra, the statute has not changed the requirement as to who must sign the affidavit.
In addition, Nebraska Supreme Court cases which have addressed poverty affidavit requirements have not changed the holding in In re Interest of T.W. et al., supra. See, State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001); State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001); State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000). In fact, State v. Dallmann, supra, recognized the holding in In re Interest of T.W. et al., supra, albeit as dictum.
We conclude that Stuart's poverty affidavit, which was signed by Stuart's attorney rather than by Stuart without good cause shown on the record, was not sufficient to vest the district court with jurisdiction. It follows then that because the district court lacked jurisdiction to consider Stuart's appeal, this court likewise lacks jurisdiction over his appeal. When a lower court does not have jurisdiction over the case before it, an appellate court also lacks jurisdiction to review the merits of the claim. Armour v. L.H., 259 Neb. 138, 608 N.W.2d 599 (2000); State v. Schmidt, 12 Neb.App. 150, 668 N.W.2d 525 (2003). Since we do not have jurisdiction, we do not reach Stuart's assignment of error that the district court erred in sustaining *243 the State's motion to dismiss based on the absence of a trial court record.
CONCLUSION
We conclude that Stuart's poverty affidavit was not sufficient to vest the district court with jurisdiction. Because the district court lacked jurisdiction to consider Stuart's appeal, we are also without jurisdiction, and we dismiss Stuart's appeal. We nevertheless have jurisdiction to require the district court to vacate its order and to dismiss the appeal from the county court, which we do.
APPEAL DISMISSED, AND CAUSE REMANDED WITH DIRECTIONS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579226/ | 671 N.W.2d 165 (2003)
258 Mich. App. 402
In re ESTATE OF June Louisa CUMMIN, Deceased.
Edward Murphy, Personal Representative of the Estate of June Louisa Cummin, Deceased, Petitioner-Appellee,
v.
Beth A. Hegyi, Respondent-Appellant.
Docket No. 235495.
Court of Appeals of Michigan.
Submitted March 12, 2003, at Grand Rapids.
Decided September 9, 2003 at 9:15 a.m.
Released for Publication November 10, 2003.
*167 Currie Kendall Polasky Meisel, PLC (by R. Drummond Black), Saginaw, for the petitioner.
Robert T. Rhead, Midland, for the respondent.
Before: SCHUETTE, P.J., and SAWYER and WILDER, JJ.
*166 WILDER, J.
Respondent Beth A. Hegyi appeals by right the probate court's judgment ordering her to pay into the estate of decedent June L. Cummin the funds respondent received from renting and selling real property previously owned by decedent respondent's mother. We reverse and remand.
I. Facts and Proceedings
In June 1992, decedent executed a durable power of attorney that conferred on respondent the authority to "lease, sell, assign, and convey interests in real or personal property of any kind now or hereafter owned by [decedent] on such terms and agreement as said attorney-in-fact may solely and discretionarily determine...." On the same day, decedent executed a will that named respondent as her estate's personal representative and devised the residue of her estate to her children, respondent and petitioner, Edward Murphy. Decedent's will named petitioner as the alternate personal representative.
Around the same time, decedent moved into respondent's home and later moved into a mobile home that she purchased and located next to respondent's residence.
Approximately sixteen months later, decedent moved into a residential care facility because she needed skilled nursing care. Over the next two years, decedent's dementia, from which she suffered intermittently before moving into the residential care facility, progressively worsened to the point that she occasionally failed to recognize members of her family. She lived in the residential care facility until her death on April 28, 1998.
Respondent and her husband testified at the bench over a period of several years, decedent repeatedly instructed respondent to transfer decedent's real estate to herself. According to respondent, decedent gave one of these instructions shortly after decedent transferred a portion of her real estate to decedent's stepdaughter's family. *168 Decedent continued to instruct respondent to transfer the property after she moved into the residential care facility. Decedent requested, however, that when respondent transferred the property, respondent retain a life estate in the property for decedent.
On December 10, 1996, nearly two years after decedent moved into the residential care facility, respondent, acting as decedent's attorney in fact, transferred decedent's real property to herself by quitclaim deed, reserving a life estate in the property for decedent. After respondent executed the quitclaim deed, respondent rented the property and received $3,000 in rental payments. On April 14, 2000, respondent sold the property for $180,000.
Shortly after decedent died, petitioner inquired about receiving his share of the estate. Respondent did not disclose to him at that time that she had transferred the real estate to herself. Later, after petitioner called respondent, respondent informed petitioner that she had transferred the property to herself. On February 25, 2000, petitioner filed a petition for commencement of proceedings in the probate court and requested that he be appointed personal representative of the estate. The probate court appointed him the estate's personal representative on April 27, 2000. On July 19, 2000, petitioner filed a complaint against respondent in which he (1) alleged that respondent converted the estate's assets, (2) demanded an accounting of decedent's assets, and (3) requested that the probate court impose a constructive trust over decedent's real and personal property, including proceeds from the sale or rental of the real property. During opening arguments at the trial, petitioner argued that respondent obtained ownership of the real property by exerting undue influence over decedent.[1]
In its written opinion, the probate court determined that decedent had not been unduly influenced when she executed the power of attorney. The probate court also found that although respondent and her husband credibly testified that decedent wanted respondent to have the property, respondent did not make the transfer until several months after decedent became mentally unsound and respondent engaged in behavior that was inconsistent with merely wanting to fulfill decedent's wishes, such as misleading petitioner concerning the status of the property. Accordingly, the probate court concluded that respondent breached her fiduciary duty, arising from her status as decedent's attorney in fact, to refrain from self-dealing. The probate court held that respondent's transfer of the real property to herself created a constructive trust in favor of the estate and that the estate was entitled to the money respondent received from renting and selling the property. This appeal followed.
II. Standard of Review
This Court reviews for clear error a trial court's factual findings and reviews de novo questions of law, including issues of statutory construction. Thomas v. New Baltimore, 254 Mich.App. 196, 200, 657 N.W.2d 530 (2002), citing Schroeder v. Detroit, 221 Mich.App. 364, 366, 561 N.W.2d 497 (1997).
*169 III. Analysis
Respondent contends that the probate court erred by concluding that, despite decedent's instructions that respondent transfer the property to herself, respondent breached her fiduciary duty by transferring the property.[2] We conclude that the probate court erred in its legal analysis and, because the probate court's findings of fact conflict to the extent that we cannot apply them to the law governing this case, we remand for clarification and application of the law to the facts.
Respondent, as decedent's agent, owed a common-law fiduciary duty to decedent. In re Susser Estate, 254 Mich.App. 232, 235-236, 657 N.W.2d 147 (2002). Common-law agency principles, which generally apply to powers of attorney, permit an agent to personally engage in a transaction with the principal with "`consent of the principal after a full disclosure of the details of the transaction.'" Id. at 234-235, 657 N.W.2d 147, quoting VanderWall v. Midkiff, 166 Mich.App. 668, 677-678, 421 N.W.2d 263 (1988); Persinger v. Holst, 248 Mich.App. 499, 503, 639 N.W.2d 594 (2001), citing VanderWall, supra at 677, 421 N.W.2d 263.
Certain provisions of the Estates and Protected Individuals Code (EPIC), M.C.L. § 700.1101 et seq., and its predecessor, the Revised Probate Code (RPC), M.C.L. § 700.1 et seq., restrict the authority of fiduciaries to personally engage in transactions with the estates that they represent. These limiting provisions, however, do not apply in this case. M.C.L. § 700.1214 of EPIC prohibits self-dealing by fiduciaries, except in limited circumstances that are not present in this case.[3] EPIC was in effect at the time of the proceedings in this case and, therefore, would ordinarily apply. M.C.L. § 700.8101(2)(b). However, because respondent's *170 accrued right as owner of the property would be impaired by invalidating the transaction or imposing a constructive trust, subsection 8101(2)(d) precludes applying § 1214 to invalidate respondent's transfer of the property. See In re Smith Estate, 252 Mich.App. 120, 127-128, 651 N.W.2d 153 (2002).
The RPC also contained a provision prohibiting fiduciaries from "engag[ing] in a transaction ... with the estate which he represents" without written approval of the court. M.C.L. § 700.561. However, the RPC definition of "fiduciary," which governs our interpretation of subsection 561, see M.C.L. § 700.2, does not include an attorney in fact.[4] Accordingly, EPIC and the RPC do not restrict respondent's common-law authority to engage in a transaction with decedent, the principal.
In the instant case, the probate court erred as a matter of law in failing to acknowledge that an agent may engage in self-dealing if the principal consents and has knowledge of the details of the transaction. Additionally, the probate court erred as a matter of law by concluding that the passage of time and the change in decedent's mental status affected respondent's authority to transfer the property. The power of attorney that decedent executed was a durable power of attorney and, therefore, was still valid after decedent became incompetent. M.C.L. §§ 700.5501, 700.5502. Accordingly, if decedent consented to the transaction with knowledge of its details, the timing of the transaction does not prevent its enforcement.[5]
However, we find it necessary to remand this case to the probate court because we cannot discern from the court's findings whether the probate court concluded that decedent freely consented to the transaction. Although the probate court found credible respondent's and her husband's testimony that decedent wanted respondent to have the property, the probate court also found that respondent acted in a manner "incongruous with an individual who was simply attempting to comply with her mother's wishes." Additionally, the probate court's opinion referenced "changes in circumstances" that prohibited enforcing the transaction. We, however, find no evidence on the record that decedent revoked the power of attorney or changed her mind regarding the disposition of the property after instructing respondent to transfer it. Accordingly, we remand this case to the probate court for application of the foregoing legal *171 principles to the facts of this case as the probate court finds them.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
SAWYER, J.
I concur in the result only.
SCHUETTE, P.J. (concurring in part and dissenting in part).
I concur in the majority's decision to reverse and remand this case to the probate court. However, I respectfully dissent regarding the applicability of M.C.L. § 700.8101(2)(d) of the Estates and Protected Individual's Code (EPIC), and this Court's ruling in In re Smith Estate, 252 Mich.App. 120, 651 N.W.2d 153 (2002), to the facts in this case.
The facts of In re Smith Estate involved an evidentiary issue of whether a handwritten document was evidence of testamentary intent of the deceased or simply a desire to make a monetary gift in the future. This Court held that a devise under a will was not a vested or an accrued right. As a result, the Smith decision did not trigger the limiting provisions of M.C.L. § 700.8101(2)(d) regarding the general prohibition against self-dealing as set forth in M.C.L. § 700.1214.
Here, I believe that the prohibition against self-dealing (M.C.L. § 700.1214) is not superseded by the application of M.C.L. § 700.8101(2)(d) because no accrued or vested right exists under the facts and circumstances of this case. See In re Smith Estate, supra.
Therefore, on remand, M.C.L. § 700.8101(2)(d) should not be applied by the probate court during its review, and M.C.L. § 700.1214 should be applied to the facts of this case.
NOTES
[1] Petitioner did not plead undue influence in his complaint, but raised the issue in his motions for summary disposition before asserting it at trial. Respondent requested a directed verdict immediately following petitioner's opening statement because petitioner had not alleged undue influence in his complaint. The probate court denied respondent's motion, finding that although the words "undue influence" were not specifically used, the complaint contained sufficient allegations to inform respondent of petitioner's claims.
[2] Respondent also argues that the probate court improperly permitted petitioner to assert a claim of undue influence and that the probate court improperly denied her second motion for directed verdict, made at the close of petitioner's proofs. The probate court did not abuse its discretion by permitting petitioner to assert a claim of undue influence, in light of its accurate conclusion that respondent was reasonably informed of the claim. See Weymers v. Khera, 454 Mich. 639, 654, 563 N.W.2d 647 (1997), citing Dacon v. Transue, 441 Mich. 315, 328, 490 N.W.2d 369 (1992); Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 658, 213 N.W.2d 134 (1973). Contrary to respondent's assertions, this claim was not newly asserted at trial. Petitioner raised this claim before trial during hearings on three motions for summary disposition, and, during one such hearing, the probate court characterized this case as "an undue influence case." Although respondent argued that the evidence did not support a claim of undue influence, respondent did not object to petitioner's failure to specify undue influence in the complaint.
Ordinarily, we review de novo a trial court's decision concerning a motion for a directed verdict. Wiley v. Henry Ford Cottage Hosp., 257 Mich.App. 488, 491, 668 N.W.2d 402 (2003). However, respondent's argument consists of merely conclusory statements that do not meaningfully analyze this issue. Accordingly, respondent did not sufficiently briefed this issue to merit our review. Id. at 499, 668 N.W.2d 402 (stating that a party may not "leave it to this Court ... to ... unravel or elaborate its argument...."), citing Wilson v. Taylor, 457 Mich. 232, 243, 577 N.W.2d 100 (1998).
[3] M.C.L. § 700.1214 provides:
Unless the governing instrument expressly authorizes such a transaction or investment, unless authorized by the court, or except as provided in section 4405 of the banking code of 1999, ... a fiduciary in the fiduciary's personal capacity shall not engage in a transaction with the estate that the fiduciary represents.... A fiduciary in the fiduciary's personal capacity shall not personally derive a profit from the purchase, sale, or transfer of the estate's property....
[4] M.C.L. § 700.5 stated:
(1) "Fiduciary" includes a conservator, guardian, personal representative, or a successor fiduciary. Fiduciary includes a testamentary trustee until section 598 applies. Fiduciary includes a plenary guardian or partial guardian....
(2) The following are fiduciaries:
(a) Conservator.
(b) Foreign personal representative.
(c) Guardian.
(d) Personal representative including an independent personal representative.
(e) Trustee, to the extent included in subsection (1).
* * *
(4) Whenever the term fiduciary is used in this act, unless otherwise specifically provided, any grant of authority to a fiduciary with respect to property is limited to a fiduciary serving as a personal representative, trustee, or conservator.
[5] Petitioner argues that the transfer was invalid because the durable power of attorney did not authorize respondent to make gifts. Because the probate court's opinion does not address this argument, it was not properly preserved for our review. Fast Air, Inc. v. Knight, 235 Mich.App. 541, 549, 599 N.W.2d 489 (1999). Regardless, this argument lacks merit. Respondent's authority to convey property encompassed the authority to convey property as a gift. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579235/ | 671 N.W.2d 777 (2003)
267 Neb. 55
In re Interest of STEVEN K., a child under 18 years of age.
State of Nebraska, Appellee,
v.
Steven K., Appellant.
In re Interest of Cassandra M., a child under 18 years of age.
State of Nebraska, Appellee,
v.
Cassandra M., Appellant.
Nos. S-02-941, S-02-942.
Supreme Court of Nebraska.
December 5, 2003.
*778 Thomas C. Riley, Douglas County Public Defender, and John J. Jedlicka for appellant Steven K.
Thomas C. Riley, Douglas County Public Defender, and Katie M. Anderson for appellant Cassandra M.
James S. Jansen, Douglas County Attorney, Jennifer L.K. Stevens, Nicole Brundo Goaley, and Matthew R. Kahler for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MILLER-LERMAN, JJ.
HENDRY, C.J.
In these appeals, the Douglas County Separate Juvenile Court denied a juvenile's motion to terminate the court's jurisdiction and a juvenile's petition to dismiss after each juvenile married. The Nebraska Court of Appeals reversed after determining that marriage terminates the minority of a juvenile and, therefore, ends the jurisdiction of the juvenile court. See In re Interest of Steven K., 11 Neb.App. 828, 661 N.W.2d 320 (2003). We granted the State's petition for further review. We dismiss one of the appeals, and in the other, we affirm the judgment of the Court of Appeals.
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002). While it is not a constitutional prerequisite for jurisdiction, the existence of an actual case or controversy is necessary for the exercise of judicial power. Id.
A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive. Id. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation. Id. Thus, this court must first determine whether Steven K.'s appeal is moot.
In case No. S-02-941, the record before us indicates that Steven was born on July 12, 1984, and has since attained the age of 19 years. As a result, regardless of marital status, the jurisdiction of the juvenile court as to Steven has terminated pursuant to Neb.Rev.Stat. §§ 43-245 and 43-247 (Cum. Supp. 2002). As such, we determine the legal issue presented in this appeal is moot and further determine that said issue does not qualify for review under the public interest exception to the mootness doctrine.
In view of the conclusion that this case presents no justiciable issue, the appeal is dismissed.
In case No. S-02-942, having reviewed the briefs and record, and having heard oral arguments, we conclude on further review that the decision of the Court of Appeals concerning Cassandra M. in In re Interest of Steven K., supra, is correct and accordingly affirm the decision of the Court of Appeals.
*779 APPEAL IN NO. S-02-941 DISMISSED.
JUDGMENT IN NO. S-02-942 AFFIRMED.
McCORMACK, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579256/ | 671 N.W.2d 597 (2003)
In the Matter of the Welfare of C.M.A.
No. A03-773.
Court of Appeals of Minnesota.
November 18, 2003.
*598 Mike Hatch, Attorney General, St. Paul, MN; and Alan L. Mitchell, St. Louis County Attorney, Angela K. Shambour, Assistant St. Louis County Attorney, Duluth, MN, for appellant county.
Mark D. Nyvold, St. Paul, MN, for respondent C.M.A.
Considered and decided by MINGE, Presiding Judge, KLAPHAKE, Judge, and PETERSON, Judge.
*599 OPINION
KLAPHAKE, Judge.
The State of Minnesota appeals from an order denying its motion to reconsider a prior order dismissing a delinquency petition charging 15-year-old respondent C.M.A with second-degree burglary under Minn.Stat. § 609.582, subd. 2(a) (2002). The district court determined that the delinquency petition lacked probable cause because respondent's confession was not sufficiently corroborated by independent evidence that the charged offense had been committed, as required by Minn.Stat. § 634.03 (2002).
Because the district court erred in its application of Minn.Stat. § 634.03 and in dismissing the petition for lack of probable cause, we reverse and remand with instructions to reinstate the petition against respondent.
FACTS
On February 11, 2003, at about 3:00 p.m., Roger Rose returned home to find the front door and the sliding glass door to the deck open. When he went inside, he discovered that someone had rummaged through all of the bedrooms. He called his wife, Bonnie Rose, and they contacted the St. Louis County Sheriff's department after ascertaining that approximately $1,500 in cash was missing from the home.
When Deputy Pat Olson arrived, he notice footprints in the snow leading to the deck. The tracks led Olson to believe that the burglar had stood on top of some pipes to look into a bedroom window. The Roses reported that they had a spare key hidden under a deck joist, which apparently had been used to enter the home without force and which was found inside on top of the bed in the master bedroom.
The Roses provided Olson with a list of things missing from the bedrooms, including approximately $1,500 in paper bills and several containers of change and old coins. The family suspected several of one daughter's former friends and gave the names of those suspects to Olson. They mentioned respondent and indicated that she knew the location of the spare key.
Chief Shawn Padden of the Duluth Township Police Department conducted a follow-up investigation and prepared a supplemental report that formed the basis for the delinquency petition. His report indicated that respondent had stayed with the Rose family for a period of time and that she knew the location of the spare key. When Padden checked school records, he discovered that respondent had skipped school on the day of the burglary and that she had been arrested at about 3:00 p.m. that day for shoplifting at a mall. Padden's report also stated: "It is believed the arresting [Duluth Police Department] officer, Kelly Greenwalt, located approximately $300.00 cash on [respondent's] person." Padden's report further noted that other officers had reported that respondent had been associating with a male who owned a white Chevrolet Lumina.
On February 20, Padden visited respondent at her home. Padden "outlined the burglary," and told respondent that she was a suspect. Respondent initially denied any involvement, but eventually admitted that she committed the burglary. Respondent provided the following written confession:
Tuesday February 11[a]t about 1 p.m. I drove my friend[']s white Chevy Lumina out to the house. I pulled up in the driveway and parked then went up to the door and knocked. Nobody was there. I remembered where the key was so I went in the house. I went in the parents room and looked through everything and found money. Then I went downstairs in the basement and *600 found two buckets of change. I went in [one of the daughter's rooms] and found a couple of dollars. I then left and went to the bank with the buckets of change. Then I went up to the Mall and bought a pair of pants, a zip up jacket and a t-shirt. Then got caught stealing and they brought me home. Then when I went home and went downtown. I was just spending money. I spent money at Subway and Sharks. I spent money at Coney Island. I took cabs everywhere. I got a motel room at Motel 6.
Respondent turned several items of clothing over to Padden, which she claimed to have purchased with the stolen money. That evening, respondent's father, who had not been at home when Padden visited, called Padden and reported to him that respondent wanted to move to Arizona to avoid the consequences of her involvement in the burglary.
A delinquency petition was filed and respondent was arrested. At the omnibus hearing, respondent challenged the corroboration of her confession and moved to dismiss for lack of probable cause. The district court excluded the confession from the probable cause determination because "[n]one of the facts or evidence in the police reports is sufficient to corroborate [r]espondent's confession under the requirements of Minn.Stat. § 634.03." Without the confession, the court found no probable cause and dismissed the charges against respondent.
The state filed a motion for reconsideration, which the district court denied. This appeal followed.
ISSUES
1. Is this appeal taken from a nonappealable order?
2. Did the district court err in applying Minn.Stat. § 634.03 (2002) to this probable cause determination and in concluding that respondent's confession could not be considered because it was not corroborated?
ANALYSIS
I.
Respondent initially challenges the state's appeal as taken from a nonappealable pretrial order. The state is generally prohibited from appealing a pretrial order dismissing a juvenile petition for lack of probable cause. Minn. R. Juv. P. 21.04, subd. 1 ("Orders dismissing a petition for lack of probable cause ... are not appealable."). But case law provides an exception to this rule and allows the state to appeal when the lack of probable cause determination presents a legal question. In re Welfare of C.P.W., 601 N.W.2d 204, 207 (Minn.App.1999) (holding that state may appeal from district court's dismissal of juvenile petition for lack of probable cause if based on legal question), review denied (Minn. Nov. 23, 1999).
The rationale for this exception is that when the court's order involves an issue of law, a dismissal for lack of probable cause effectively prevents further prosecution and makes any attempt by the state to reissue the complaint fruitless; the order is thus final and appealable. See State v. Diedrich, 410 N.W.2d 20, 22 (Minn.App. 1987); State v. Aarsvold, 376 N.W.2d 518, 520 (Minn.App.1985), review denied (Minn. Dec. 30, 1985). When the dismissal is based on factual determinations or when the prosecution has additional evidence that it could present, the order is not appealable because the prosecution could later reinstate its case and does not need the right of appeal. Id.
Here, the district court's dismissal of the petition for lack of probable cause is premised on its determination that respondent's confession could not be considered under Minn.Stat. § 634.03 (2002). Because our *601 review of the district court's decision involves a legal question based upon the legal interpretation of this statute, we conclude that the district court's order is appealable.
II.
A probable cause determination is designed to determine if it is fair and reasonable to require the defendant to stand trial. State v. Florence, 306 Minn. 442, 457, 239 N.W.2d 892, 902 (1976). The court must determine whether there is probable cause to believe that an offense has been committed and that the defendant committed that offense. State v. Hookom, 474 N.W.2d 624, 630 (Minn.App. 1991).
"The facts establishing probable cause may be set forth in writing in the charging document or police reports may be attached to the charging document." Minn. R. Juv. P. 6.05, subd. 1. Even though a police report or even a confession might not be admissible at trial, these documents, if reliable, may be considered to establish probable cause. See In re Welfare of E.Y.W., 496 N.W.2d 847, 850 (Minn.App.1993) (when determining whether probable cause has been shown, entire record must be examined, including evidence which would not be admissible at trial, such as police reports and hearsay), review denied (Minn. Apr. 20, 1993).
Minn.Stat. § 634.03 is entitled "Confession, Inadmissible When," and provides:
A confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed; nor can it be given in evidence against the defendant whether made in the course of judicial proceedings or to a private person, when made under the influence of fear produced by threats.
(Emphasis added.) Minnesota cases have stated that the statute serves to discourage coercively acquired confessions and make admissions reliable. In re Welfare of M.D.S., 345 N.W.2d 723, 735 (Minn. 1984); State v. Brant, 436 N.W.2d 468, 470-71 (Minn.App.1989). But the statute also serves the more "modest objective [of] protecting against the risk of conviction for a crime that never occurred." 1 Charles T. McCormick, McCormick on Evidence § 145, at 523 (John W. Strong, et al. eds., 5th ed.1999).
The statute is generally cited when challenging the sufficiency of evidence to support a conviction on appeal. See State v. Koskela, 536 N.W.2d 625, 629 (Minn.1995) (rejecting defendant's claim, on appeal from conviction, that his statements to others were insufficient to sustain his conviction for burglary); M.D.S., 345 N.W.2d at 735 (rejecting defendant's argument on appeal from conviction that state produced insufficient independent evidence of crime so as to corroborate her own inculpatory statement). It may also be used, in an appropriate case, by a trial judge when deciding whether there is sufficient evidence for a case to go to the jury. McCormick on Evidence § 145, at 521.
Minn.Stat. § 634.03 represents a codification of the requirement that the corpus delecti, or the "body of the crime," be established by evidence independent of a confession. State v. Lalli, 338 N.W.2d 419, 420 (Minn.1983). Thus, the statute requires that the corroborating evidence show the harm or injury and that it was occasioned by criminal activity; it need not show that the defendant was the guilty party because the confession itself provides that link. See McCormick on Evidence § 146, at 525-26. The requirement has also been read to require the state to *602 produce "enough evidence to identify [a] defendant and to bolster and substantiate [his or her] own admissions." M.D.S., 345 N.W.2d at 735.
Here, the corpus delecti was undisputedly established by evidence independent of respondent's confession. That evidence consisted of the Roses' report to police on the day of the burglary and the report of the officer who responded to the scene and who confirmed the Roses' statements. This evidence, which was independent of respondent's confession, established that the Roses' home was burglarized on February 11, 2003, prior to 3:00 p.m., that entry was gained by discovery of a hidden spare key, that respondent knew the location of the key, and that approximately $1,500 in bills and change was taken from the bedrooms located throughout the house. The district court thus erred in reading Minn.Stat. § 634.03 to require independent evidence to corroborate the confession and in refusing to consider the confession at the probable cause stage of these proceedings.
We further note that, even without respondent's confession, sufficient evidence appears to have existed to link respondent to the crime so as to establish probable cause. "Probable cause exists if evidence worthy of consideration ... brings the charge ... within a reasonable probability." State v. Flicek, 657 N.W.2d 592, 596 (Minn.App.2003) (quotation omitted). Besides the Roses' report to police and the responding officer's report, the state presented evidence in the form of Padden's follow-up investigation and report, which established that respondent was not in school at the time of the burglary and that she had been arrested at the mall for shoplifting that afternoon, reportedly with approximately $300 in cash on her. Thus, even without respondent's confession, the evidence links respondent to the crime so as to establish probable cause. See Lalli, 338 N.W.2d at 420 (rejecting defendant's claim that, without his confession, there was insufficient evidence to establish that evidence was sufficient for grand jury to indict him).
DECISION
The district court erred in its application of Minn.Stat. § 643.03 to require independent corroboration of respondent's confession; the statute requires corroboration of the corpus delecti independent of the confession. The district court also erred in concluding that, without respondent's confession, probable cause did not exist to charge respondent with burglary. We therefore reverse the district court's dismissal of the delinquency petition and remand for reinstatement of the petition.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918462/ | 730 So.2d 561 (1998)
Daryl L. NAYLOR, a/k/a Daryl Love Naylor
v.
STATE of Mississippi.
No. 97-KA-00686-SCT
Supreme Court of Mississippi.
December 3, 1998.
Rehearing Denied February 25, 1999.
*562 Donald W. Boykin, Jackson, Attorney for Appellant.
Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.
Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.
PITTMAN, Presiding Justice, for the Court:
¶ 1. Daryl Naylor was indicted along with Jeff Jones on August 6, 1996, for the possession of cocaine with intent to distribute in violation of Miss.Code Ann. § 41-29-139 (1993). The indictment was amended before trial enhancing the penalty under Miss.Code Ann. § 41-29-152 (Supp.1994), which provides for a possible double penalty for violators of Miss.Code Ann. § 41-29-139 (1993) who are in possession of a firearm at the time of the arrest. Naylor and Jones were tried together starting on March 20, 1997 in the Circuit Court of the First Judicial District of Hinds County, and the jury returned a guilty verdict. Naylor was sentenced on May 5, 1997 to a term of fifteen (15) years, with ten (10) years suspended and three (3) years of supervised probation.
¶ 2. Naylor filed a Motion for j.n.o.v. or in the alternative a new trial on May 6, 1997, which was denied by the trial court. Naylor timely filed his Notice of Appeal to this Court seeking a new trial or in the alternative a reversal and rendering of his conviction. He alleges the following errors for this Court's consideration:
I. THE VERDICT OF THE JURY WAS UNSUPPORTED BY AND CONTRARY TO THE EVIDENCE, AND THE COURT SHOULD HAVE GRANTED NAYLOR'S PEREMPTORY INSTRUCTION AND MOTIONS FOR DIRECTED VERDICT.
II. THE TRIAL COURT ERRONEOUSLY DENIED NAYLOR'S "TWOTHEORY" INSTRUCTION.
III. THE COURT SHOULD HAVE GRANTED NAYLOR'S CHALLENGES FOR CAUSE OF VENIRE MEMBERS, BOONE, EVERETT, WHITE, WILSON, AND HAYNES.
IV. THE TRIAL COURT ERRED BY REQUIRING NAYLOR AND JONES TO AGREE UPON SIX PEREMPTORY CHALLENGES.
V. THE TRIAL COURT SHOULD HAVE GRANTED JURY INSTRUCTION DN-6.
VI. THE TRIAL COURT SHOULD HAVE SUSTAINED NAYLOR'S MOTION OBJECTING TO REFERENCE TO DRUG PARAPHERNALIA DURING THE PROSECUTION'S OPENING STATEMENT.
VII. THE TRIAL COURT ERRED IN DENYING NAYLOR'S OBJECTION TO IMPROPER CLOSING ARGUMENTS BY THE ASSISTANT DISTRICT ATTORNEY.
STATEMENT OF THE FACTS
¶ 3. The State called Detective Steven E. Wilson of the Jackson-Hinds County Drug Enforcement Unit as its first witness. At the time of trial, Wilson had been employed with the Jackson Police Department for fourteen years, and had been working narcotics for approximately twelve of the fourteen.
¶ 4. On September 19, 1995, Detective Wilson and seven other officers served a search warrant at 2311 Woodlawn Street. Before arriving at the house, it was decided that four officers would approach the front of the house, while the other four attempted to enter from the back. This type of entry helps to ensure the element of surprise, preventing the occupants from arming themselves or destroying contraband.
*563 ¶ 5. On his approach to the house, Detective Wilson noticed that someone was peering out the front window through a slightly parted curtain. When that person saw the police, the curtain closed very quickly.
¶ 6. Detective Wilson, and three other officers proceeded to the rear of the house, and entered. As soon as he entered the house, Detective Wilson heard a toilet flushing. From his past experience, Detective Wilson assumed contraband was being destroyed. Detective Wilson found and entered the bathroom. When he entered, Naylor was jumping into the bathtub behind the partially open shower curtain and Jones was kneeling in front of the toilet. Jones was shaking a plastic bag into the toilet with his right hand, while frantically flushing the toilet with his left. Detective Wilson identified himself as a police officer, and attempted to pull Jones away from the toilet. Detective Wilson's hand slipped from Jones's shoulder, and Jones continued to try to flush the toilet and shake the bag.
¶ 7. Detective Wilson finally pushed Jones away from the toilet, and Jones jumped into the bathtub with Naylor. Jones dropped the plastic bag out of a small window located inside the bathtub area. Detective Wilson called for help, and Detective Nations entered the bathroom and helped Detective Wilson secure Jones and Naylor. Detective Wilson then instructed Sergeant Renfroe to go outside and retrieve the plastic bag that Jones had thrown out of the bathroom window.
¶ 8. Sergeant Renfroe did recover the plastic bag, and Detective Wilson identified it as the same bag that Jones had been shaking into the toilet. Detective Wilson testified that the plastic bag appeared to contain crack cocaine which had gotten wet.
¶ 9. After securing Jones and Naylor in the bathroom, Detective Wilson discovered that three other individuals had been secured by the officers who had entered the front entrance of the house. The individuals were a female, Tamika Wilson, and two males, Charles Bergess and Bill Howard.
¶ 10. The officers then conducted a search of the premises. Three loaded firearms were recovered from the bedroom. Unused ammunition for each of the guns was also recovered. In addition to the weapons, the officers also recovered a wallet from the bedroom closet which contained Naylor's identification. Detective Wilson recovered the driver's license, social security card, and birth certificate of Charles Bergess from the bedroom dresser.
¶ 11. On redirect, Detective Wilson testified that pocket scales were also recovered from the house. The scales recovered are common paraphernalia that narcotics users and dealers carry.
¶ 12. Sergeant Steve Renfroe had worked for the Jackson Police Department for twenty years, with six of those years spent in the narcotics unit. Sergeant Renfroe usually maintains the inventory of all evidence collected when a search warrant is served. Sergeant Renfroe was present when the search warrant in this case was served. He recounted the events of that search in the same manner as Detective Wilson.
¶ 13. Sergeant Renfroe identified the plastic bag containing white rocks that he recovered outside the bathroom window. Additionally, Sergeant Renfroe identified two walkie-talkies that were recovered from the top drawer of the bedroom dresser. Two other walkie-talkies were recovered from the middle drawer of the same dresser. Sergeant Renfroe testified that walkie-talkies are commonly used by sophisticated narcotics traffickers as a communication between the lookout and the narcotics vendors.
¶ 14. Sergeant Renfroe testified that the hand-held scales were recovered from atop the refrigerator in the kitchen. According to Sergeant Renfroe, hand-held scales are the most basic and essential tool used by narcotics sellers, and he had found them in almost every drug case he had worked.
¶ 15. Sergeant Renfroe also testified concerning identification found belonging to Jones. He identified a Capitol Cablevision bill addressed to Jones at 2311 Woodlawn Street. Finally, Sergeant Renfroe identified a metal detector recovered from the living room, which is commonly used by sophisticated *564 drug dealers to screen buyers for weapons or wires.
¶ 16. Detective Richard Nations, who also participated in the search of the premises, further corroborated the testimony of Detective Wilson and Sergeant Renfroe. Additionally, Detective Nations testified that he recovered $748.00 in cash from the pocket of Naylor. Detective Nations stated that it is common to find large sums of cash when serving warrants such as this. Detective Nations also recovered $85.00 in cash and Jones's identification from a pair of blue jeans in the bedroom.
¶ 17. John Dial, with the Jackson Police Department's crime lab, analyzed the substance in the plastic bag recovered by the officers, and determined that it was in fact cocaine. The plastic bag contained 9.4 grams or approximately one-third of an ounce.
¶ 18. The State then rested its case, and Naylor moved for a directed verdict. Naylor argued that no evidence had been presented by the State showing that he had either actual or constructive possession of the cocaine.
¶ 19. As for the defense case, Naylor's attorney, Donald Boykin, called Vicki Griffin. She testified that she is Naylor's aunt. The day before Naylor was arrested, Griffin gave him $750.00 to hold for her. She had gotten the money from her credit union and intended to buy Christmas gifts with it. She gave the money to Naylor because she had a bad habit of playing bingo and going to casinos. Griffin also testified that Naylor lived with his girlfriend, Tamika Wilson, and their two children, as well as Griffin's brother at 2203 Peace Street.
¶ 20. Jeff Jones testified on his own behalf and explained why he owned certain pieces of evidence confiscated during the search. Jones stated that he owned the scales because he had used them to weigh jewelry and other items at his previous job in a pawn shop. Jones identified the metal detector as belonging to a friend of his who used to work for Wackenhut, and who had been staying at Jones's house. Jones also identified the recovered shotgun as belonging to him. He had purchased it from a pawn shop on Terry Road for his protection a couple of months before he was arrested, and it had never been shot. He testified that the gun entered into evidence did not appear the same as his gun before it was taken from his house. Jones also identified the walkie-talkies recovered in the house. He stated that he bought them at Radio Shack and that they were not used in drug trafficking. He just bought them for fun.
¶ 21. Jones testified that on the day of the raid, at around 12:30 p.m., he was about to take a bath. Naylor and his girlfriend, Tamika Wilson stopped by Jones's house, and Jones asked Naylor to give him a haircut. While Naylor was cutting Jones's hair with a pair of hair clippers, the officers entered the bathroom. Jones testified that Naylor was never in the bathtub. He said the water in the bathtub was running, that he was dressed in his underwear, and that Naylor was fully clothed.
¶ 22. On cross-examination, Jones denied that he ever had the plastic bag containing cocaine and that he was trying to flush it down the toilet. ¶ 23. The defense rested after Jones's testimony. Naylor then renewed his motion for a directed verdict. The court heard arguments concerning jury instructions, closing arguments were had, and the case was submitted to the jury for its deliberation. The jury returned a verdict of guilty for both Naylor and Jones.
DISCUSSION OF THE ISSUES
I. THE VERDICT OF THE JURY WAS UNSUPPORTED BY AND CONTRARY TO THE EVIDENCE, AND THE COURT SHOULD HAVE GRANTED NAYLOR'S PEREMPTORY INSTRUCTION AND MOTIONS FOR DIRECTED VERDICT.
¶ 24. Naylor argues that the trial court erred in not granting him a directed verdict or a peremptory instruction. A motion for directed verdict challenges the legal sufficiency of the evidence offered to that point of the trial to sustain a guilty verdict. Following the denial of his motion for a directed verdict, Naylor offered evidence in *565 his defense, when his attorney called his aunt, Vicki Griffin, to testify. As a result, Naylor has waived his challenge to the sufficiency of the State's evidence. Stringer v. State, 557 So.2d 796, 797 (Miss.1990).
¶ 25. However, as this Court stated in Stringer, Naylor "`... has [not] waived his right to challenge the weight or sufficiency of the evidence to sustain the judgment against him.'" Stringer v. State, 557 So.2d at 797 (quoting Clements v. Young, 481 So.2d 263, 268 (Miss.1985)). Therefore, this Court considers all of the evidence offered in determining its sufficiency.
When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidencenot just that supporting the case for the prosecutionin the light most consistent with the verdict. We give prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.
McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)(citing Gavin v. State, 473 So.2d 952, 956 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984)).
¶ 26. The issues to be decided by this Court are whether the State proved that Naylor had possession of the cocaine and if so whether he had the intent to distribute it. The threshold issue is the question of possession. Naylor contends that the State did not prove that he was either in actual or constructive possession of the cocaine beyond a reasonable doubt.
¶ 27. Because Naylor was not caught in actual possession of the cocaine, but was only located in the bathroom next to Jones who had actual possession, the State was required to prove that Naylor had constructive possession. In Jones v. State, 693 So.2d 375, 376 (Miss.1997), this Court discussed the theory of constructive possession stating that:
Since Jones was not caught in actual possession, the rules concerning constructive possession come into play, as stated by this Court in Pool v. State, 483 So.2d 331, 336-37 (Miss.1986);
The theory of constructive possession has been explained, in Curry v. State, 249 So.2d 414 (Miss.1971), as follows:
[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject due to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Id. at 416.
The theory was further defined in Hamburg v. State, 248 So.2d 430 (Miss.1971), that "one who is the owner in possession of the premises ... is presumed to be in constructive possession of the articles found in or on the property possessed." Id. at 432. This presumption is rebuttable, however, and does not relieve the State of its burden to prove guilt beyond a reasonable doubt. Id. Thus, "[w]here the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband." Powell v. State, 355 So.2d 1378, 1379 (Miss.1978). See also Keys v. State, 478 So.2d 266, 268 (Miss.1985).
¶ 28. In Jones, supra, this Court found that the evidence of constructive possession was insufficient where Jones was a passenger in a *566 car in which marijuana was found. This Court found that his presence in the car was the only evidence connecting him to the marijuana. Therefore, the Court reversed and rendered his conviction because the trial court erred in not granting Jones's motion for a directed verdict. Id. at 377.
¶ 29. In Berry v. State, 652 So.2d 745, 751 (Miss.1995), this Court reversed and rendered Berry's conviction for possession of cocaine where the only evidence connecting him to the cocaine was that he rode in the car in which the cocaine was located and placed the cocaine in the glove compartment at the request of the driver of the car. This Court found the facts insufficient to prove that Berry had exercised any control over the drugs such that he was in constructive possession of them.
¶ 30. In Ferrell v. State, 649 So.2d 831 (Miss.1995), this Court again reversed and rendered a conviction for possession of crack cocaine where the State provided insufficient evidence that Ferrell, who was not the owner of the car in which the drugs were found, possessed the contraband. The Court noted that Ferrell did have dominion and control over the car, but that because he was not the owner of the car, "the State was required to establish additional incriminating circumstances in order to prove constructive possession." Ferrell, 649 So.2d at 835. Further, the Court stated:
By definition, the State must show additional circumstances that are actually incriminating in order to establish constructive possession. The circumstances cited in this case in no way appear incriminating. No drug paraphernalia was found in the car, Ferrell was not on drugs at the time he was arrested, and his fingerprints were not found on the matchbox. He was merely seated in the car next to what by all accounts appeared to be an ordinary matchbox ...
Id.
¶ 31. This Court again confronted the issue of constructive possession in Miller v. State, 634 So.2d 127 (Miss.1994). In that case, the Court found the evidence sufficient to convict Miller of possession of cocaine. The facts showed that Miller was arrested by a patrol officer on two outstanding warrants. Upon doing a pat-down for weapons, the officer handcuffed Miller and placed him in the patrol car. The officer had felt no weapons but had felt what he thought was a matchbox, some keys, and some coins. At the police station, Miller was searched, and the officer found no matchbox. He returned to his patrol car, and found under the seat a matchbox containing twelve rocks of crack cocaine. Id. at 128. The arresting officer testified that standard operating procedure required him to search his patrol car when he came on duty. He had also searched his car after he had taken the one other arrestee of the day into custody prior to Miller. He testified that his patrol car was locked while he took Miller into the station. This Court found that the proof, as established primarily by the arresting officer's testimony, was sufficient because the proof showed that Miller was the only person who had recently been in the area where the drugs were found and who had the opportunity to leave them there. Id. at 130.
¶ 32. In the case sub judice, the only evidence linking Naylor to the cocaine is that he was in close proximity to it when he was found in the bathroom. The State did not prove that he lived at the house where the drugs were found, therefore the State was required to provide some competent evidence that connected Naylor to the cocaine. The only other evidence admitted against Naylor was that his wallet was found in a closet which contained his identification, and he was in possession of $748.00 in cash. Under Mississippi law, this evidence was insufficient to prove that Naylor possessed cocaine. If Naylor did not have constructive possession of the cocaine, then he could not have had the intent to distribute the cocaine. Therefore, we must reverse and render this case and Naylor must be discharged.
¶ 33. All remaining issues presented for our review are moot and will not be discussed.
CONCLUSION
¶ 34. This case is reversed and rendered because the State failed to prove that Naylor *567 had constructive possession of the cocaine at issue. Therefore, the jury's verdict should not stand.
¶ 35. REVERSED AND RENDERED; APPELLANT DISCHARGED.
PRATHER, C.J., SULLIVAN, P.J., and BANKS, McRAE, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.
WALLER, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918474/ | 730 So.2d 123 (1998)
Daniel D. LYLES
v.
ALABAMA STATE DOCKS TERMINAL RAILWAY.
1971280.
Supreme Court of Alabama.
December 18, 1998.
Rehearing Denied March 12, 1999.
*124 J. Harry Blalock, Birmingham, for appellant.
Charles L. Miller, Jr., Mobile, for appellee.
KENNEDY, Justice.
Daniel Lyles appeals from a summary judgment entered in favor of the defendant, the Alabama State Docks Terminal Railway ("Railway").
A summary judgment is properly entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala.R.Civ.P. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmoving party to produce substantial evidence supporting its position and creating a genuine issue of material fact. § 12-21-12, Ala.Code 1975. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant.
On February 28, 1996, Lyles was injured while working as a switchman for the Railway. At the time of the accident, Lyles was working on a crew that included him, the conductor, and the engineer. The crew was operating a train with 105 empty boxcars, and they were moving it to a storage track so that a "bad" boxcar, located in the middle of the train, could be removed and placed on a different track.
Lyles was riding on a boxcar at the end of the train. His job was to notify the other crewmembers by radio to let them know when the train was near the end of the storage track. Lyles's radio was not working properly, so the yardmaster was relaying Lyles's information to the engineer at the front of the train, which was over a mile away. The train was traveling between five and eight miles per hour. The train suddenly stopped and Lyles was thrown against a ladder and then was thrown off the train. Hitting the ladder caused an injury to his chest, and being thrown off the train caused an injury to his back. The fall rendered him briefly unconscious. When he regained consciousness, he told the yardmaster, by radio, that he had been injured. The yardmaster took Lyles to an infirmary, where he was treated for a contusion of the chest wall. Lyles also suffered pain in his lower back from the accident.
Lyles sued the Railway under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51. He claimed that the sudden stop had been due to negligent maintenance of the braking system or negligence on the part of the engineer. Lyles also claimed that this negligence violated the Safety Appliance Act ("SAA"), § 45 U.S.C. § 1. Additionally, Lyles argued that at the time of the accident his radio was not working properly and that the faulty radio had contributed to cause his injuries.
Congress enacted FELA in 1906 to establish "a tort remedy for railroad workers injured on the job." Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 812 (7th Cir. 1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987). It was enacted in response to the special needs of railroad workers, Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 329, 78 S.Ct. 758, 761-62, 2 L.Ed.2d 799 (1958), and it is liberally construed for their protection.
In a FELA action the question of what constitutes negligence is governed by federal law and it does not vary according to variations in state law. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). To prevail in a FELA action, the plaintiff must prove the traditional common-law elements of negligence: duty, breach of duty, foreseeability, and causation. Adams v. CSX Transp., Inc., 899 F.2d 536 (6th Cir. 1990).
*125 "The purpose of the SAA is to promote the safe movement of trains over mainline tracks by requiring the installation of brakes that will effectively control the movement of those trains. United States v. Seaboard Air Line R.R., 361 U.S. 78, 80 S.Ct. 12, 4 L.Ed.2d 25 (1959); United States v. Chicago, B. & Q. R.R., 237 U.S. 410, 35 S.Ct. 634, 59 L.Ed. 1023 (1915); Grogg v. Missouri Pacific R.R., 841 F.2d 210 (8th Cir.1988); Erskine v. Consolidated Rail Corp., 814 F.2d 266 (6th Cir.1987). To achieve that purpose, the provisions of the SAA require railroads to install air brakes on their trains; they also regulate the inspection, maintenance, and repair of those brakes. 45 U.S.C. §§ 1-16.
"The United States Supreme Court has held that the SAA should be liberally construed to allow railroad employees to recover if their injury is caused or contributed to by defective or insufficient braking equipment. Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1949); Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284 (1923). Issues of negligence, contributory negligence, and due care are irrelevant in SAA cases, O'Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949), and an employee is not precluded from recovery simply because his injury was not one that the SAA sought to prevent."
Orchelle v. CSX Transp., Inc., 574 So.2d 749, 753 (Ala.1990).
Lyles presented evidence indicating that when the engineer was applying the brakes, the train went into "emergency" and stopped suddenly. (C.R.121.) The engineer was told to slow the train, but was not told to stop it or to place it in "emergency." (C.R.99.) The train has a brake lever that the engineer uses to slow the train; if it is pushed all the way down, the train's brakes go into "emergency" and stop the train abruptly. (C.R. 121.) A train is not supposed to stop suddenly or go into "emergency" unless the engineer is told to place the lever into the emergency position. (C.R.101.) When a train goes into "emergency," the engineer no longer has control over the train. ( C.R. 120.) The conductor, who was also a train engineer, stated that a train's brakes can also go into "emergency" if there is an obstacle or "trash" in the air brake line. (C.R.105-07.) The conductor stated that he has known of trains going into "emergency" only a few times in the 16 years he has worked on railroads. (C.R. 106.) One could reasonably infer, based on the evidence presented, either that the engineer pushed the brake lever into "emergency" or that a defect in the brake line caused the train to go into "emergency."
Viewing the facts most favorably to Lyles, as we are required to view them, we conclude that the factfinder could determine that the engineer negligently placed the air brake lever into the "emergency" position and thereby caused the train to go into "emergency"a situation that would create liability under the FELAor could determine that a defect, i.e., "trash," in the air brake line allowed all the air to be released and thereby caused the train to go into "emergency"a situation that would create liability under the SAA.
Accordingly, the trial court erred in entering the summary judgment. That judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
ALMON, SHORES, and COOK, JJ., concur.
HOUSTON, SEE, and LYONS, JJ., concur in the result.
HOOPER, C.J., and MADDOX, J., dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579156/ | 12 So. 3d 179 (2007)
EX PARTE PAGE B. WALLEY (IN RE: LAURA JOHNSON-PRICE v. BILL FULLER, ETC., ET AL.)
No. 2060654.
Court of Civil Appeals of Alabama.
May 1, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Mand. pet. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579213/ | 51 S.W.3d 719 (2001)
John Thomas PARKER, Appellant,
v.
The STATE of Texas, Appellee.
No. 06-00-00043-CR.
Court of Appeals of Texas, Texarkana.
Submitted March 13, 2001.
Decided May 29, 2001.
*721 Sydney Young, Paris, for appellant.
Gary L. Waite, Assistant County Atty.-Appellate Section, Paris, for appellee.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
GRANT, Justice.
John Parker appeals from his conviction by a jury for the offense of aggravated robbery. The jury found that he had used a deadly weapon during the robbery and assessed his punishment at life imprisonment.
Parker contends on appeal that the trial court erred by admitting testimony of law officers about a statement he made at lunch break during the trial. He also contends that the court erred by allowing the State to make an argument to the jury at the end of the first day, that Tex.Code Crim. Proc. Ann. art. 37.07 (Vernon 1981 & Supp.2001) is unconstitutional, and that his confession was improperly admitted into evidence.
On September 1, 1999, the home of Loretta and Aud Brow was burglarized. During the burglary, Loretta was beaten with a stick and injured. The next day, Parker and Kenneth Enlow (who was tried along with Parker and who also has an appeal before this court) pawned a VCR and Stihl saw that were taken in the burglary. Parker was arrested and made a statement admitting his involvement in this and other *722 crimes. Parker was charged with multiple crimes, but the State elected to proceed only on this charge.
Parker first contends that the court erred by allowing the State to introduce evidence about a comment he made to two officers of the Lamar County Sheriff's Department during a lunch break during the first day of the trial. He argues that the admission of the evidence about this statement violated his constitutional protections and the requisite presumption of innocence.
The record shows that David Sehl, with the sheriff's department, was called by the State. Sehl testified that he was in charge of taking the defendant to lunch. Counsel objected and approached the bench. The court overruled his objection and stated that he would later allow counsel to make a bill so that the substance of his objections would be part of the record. Sehl was allowed to continue, and he testified that Parker made an unsolicited statement to him and another deputy. The State had just presented evidence about the injuries to the alleged victim. Parker asked the officers if he could tell them something, and although they told him that it was "probably not a good idea," he said, "well, I just want somebody to know that I really didn't mean to hurt that lady as much as she was hurt."
Parker argues that the testimony violated the "very heart" of the presumption of innocence under the Fourteenth Amendment to the United States Constitution.[1] He bases his argument on the showing that he was in the custody of the officers was similar to a situation where a defendant is forced to be tried in prison clothes. This brought dramatically to the jury's attention Parker's status as a jail inmate and could have affected the jury's ability to presume him innocent until proven guilty.
The impact of requiring a defendant to wear prison clothing during his trial is an issue that has been much discussed. In the lead case, Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 1692-94, 48 L. Ed. 2d 126, 130-32 (1976), the Court discussed the potential effects of presenting an accused before a jury in prison garb for the length of a trial and the unfairness of the reality that the practice operated usually against only those who could not afford to post bail before trial. In any trial, obviously, the jury is aware that the accused was arrested by police and charged with a crime. The Court discussed the presumption of innocence in this context as being undermined by a factor (the prison clothing) that might undermine the fairness of the fact-finding process. The Court recognized that the clothing was likely to be a continuing influence throughout the trial and that it was not a requirement furthering any essential state policy. Thus, the Court concluded that if the defendant sought to appear in civilian clothes, he should be permitted to do so.
That analysis does not control this situation; however, it was apparent from the officer's testimony that Parker was still under the control of law enforcement personnel. Unlike Estelle, the fact of Parker's incarceration was not constantly before the jury in a manner which could not be avoided. The questioning of the officer did not elicit any facts about Parker's incarceration, but only that the officer had been in charge of taking Parker to lunch at the sheriff's office and that while he was *723 doing so, Parker made the inculpatory statement. Although we agree that courts should be careful not to bring before the jury anything which would inform the jurors that the accused is in custody, in this situation Parker brought the situation on himself. We do not find the limited commentary by the officer to be of such a nature as to impinge on Parker's rights.
Parker next contends that the trial court erred by allowing the State to make a summation argument to the jury at the end of the first day of testimony, before the State had closed its case and before the jury charge was given, in violation of U.S. Const. amend. XIV, Tex. Const. art. I, § 19, and Tex.Code Crim. Proc. Ann. arts. 36.01, 36.14 (Vernon Supp.2001), art. 36.16 (Vernon Supp.2001). In this case, the court offered both parties the chance to summarize the evidence heard that day and their predictions about what the next day might bring. The State accordingly summarized its evidence about the beating, the thefts, the lunch-hour confession, and his expectation that he would show that one stolen item was found at Parker's house and that another one had been pawned by Parker. The State also engaged in an argument explaining its view-point on the evidence and how it provided uncontrovertible proof of guilt. Parker's counsel chose not to make any argument.
The course of trial and jury argument is set out by Tex.Code Crim. Proc. Ann. arts. 36.01, 36.14, and 36.16. There is no provision for interim argument or summaries to be given by counsel.
Preservation of error
In this appeal, however, only a portion of the argument set out above has been preserved for appellate review. Counsel did not object to the court's announced procedure of allowing the parties to summarize the evidence at the end of the day. Thus, the use of the procedure itself is not properly before this court for review at this time.
Counsel did preserve his complaint that the factual "summary" was improperly allowed to become instead a persuasive argument to the jury, and that contention is before this court for review.
The waived argument
Parker argues that in this case the defense could not have intelligently summarized the evidence because the State had not at that point elected on which of the multiple charges and theories it would seek a conviction. Defense counsel therefore could not make an adequate decision as to such a summary, simply because counsel could not know where the State was going with its case. As a result, the State was able to encourage the jury to consider the evidence in its favor while at the same time the accused was unable to present his position. Counsel also argues that such a premature summary was inappropriate, pointing out that the jurors are instructed not to discuss the case even among themselves until all of the evidence is presented.[2]
This aspect of the argument on appeal has been waived, and although we emphatically do not approve this procedure, we may not address this contention on its merits.
The preserved argument
In the remaining core of his argument, Parker's counsel contends that the argument made over his objection as a *724 part of that "summary" constitutes reversible error.
The State takes the position in a brief argument that what actually occurred, by the direction of the court, was not argument, but merely a factual summary of the day's evidence. What actually occurred was somewhat more than a simple summary of the day's activities. The State also set out its view of the evidence and what it believed the evidence proved in respect to some of the charged offenses. Defense counsel objected at one point complaining that the State was instead making an argument. In denying the objection, the trial court stated that it was the State's view of the evidence. When a party describes the evidence and then applies its own spin on that evidence to show that it surely proved guilt, that can constitute argument.
Neither party has cited a case on point, and we have found none. The statutory underpinning (Tex.Code Crim. Proc. Ann. art. 36.01 (Vernon Supp.2001), art. 36.07 (Vernon 1981)) provides the only venue in which jury arguments are permissible. The statute restricts argument to a particular portion of the trial. The fact that the statute does not explicitly say that jury argument cannot be made at other times is not dispositive. Where explicit directions are given, there is no need to also explicitly condemn any other mode of operation. Failure to follow statutory direction is error.
Harm analysis
We now must decide what type of harm analysis should be applied. Having determined that the court erred by permitting the prosecutor to make a preliminary jury argument at an improper point in the proceeding, we must determine whether the error warrants reversal.
Counsel argues that it is unconstitutional because it infringes on Parker's right to be presumed innocent until proven guilty after all of the evidence has been presented. This argument assumes that the early presentation to the jury impinged on the presumption of innocence.[3] Tex.Code Crim. Proc. Ann. art. 2.03(b) (Vernon 1977) sets out the duty of all officers of the court to ensure a fair trial and not to impair the presumption of innocence.
The purpose of closing argument has been described as "to facilitate the jury in properly analyzing the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence." Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.] 1980); Monkhouse v. State, 861 S.W.2d 473, 478 (Tex.App.-Texarkana 1993, no pet.).
To allow the state to present a jury argument in mid-trial impinges on that presumption, because the state argues in favor of guilt before the presentation of all the evidence. This is an act that is contrary to every other stricture concerning the presentation to and consideration of evidence by the jury.
The statutes setting out the order of trial have constitutional implications. Under the facts of the present case, allowing the State to make a jury argument prior to the presentation of all the evidence implicates constitutional concerns about the presumption of innocence and should not be allowed. Accordingly, we conclude that *725 we should analyze this error under Tex. R.App. P. 44.2(a) for harmless error.
Harm analysis: application
We must therefore apply Rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to Parker's conviction or punishment. See Tex.R.App. P. 44.2(a).
In this case, Parker admitted his guilt in a written statement that was before the jury and also admitted his guilt in his unsolicited statement to the officers of the sheriff's department. Parker's co-defendant, Enlow, testified that Parker beat the woman and that they stole the items. In light of this state of the facts, we do not believe that the erroneous procedure or the summary of evidence harmed Parker in this particular case.
The contention of harmful error is overruled.
Article 37.07
Parker next contends that Article 37.07, § 3(a), which allows a trial court to admit any evidence that the court "deems relevant to sentencing" during the punishment stage of the trial, is unconstitutional because it violates the separation of powers under the State Constitution and due process of law under the Federal Constitution. Parker specifically argues that it is unconstitutional because the statute gives the court almost unbridled discretion to determine what evidence will be admissible at sentencing regardless of the Rules of Evidence.
The separation of powers provision of the Texas Constitution may be violated in two ways: (1) when one branch of government assumes, or is delegated, to whatever degree, a power that is more "properly attached" to another branch, and (2) when one branch unduly interferes with another branch such that the other branch cannot effectively exercise its constitutionally assigned powers. See State v. Williams, 938 S.W.2d 456, 458 (Tex.Crim. App.1997). Parker's challenge to the application of Article 37.07, § 3(a) relies on the latter situation. He argues that by eliminating all restrictions on the judge during the sentencing phase, the Legislature has improperly taken away the court's power to act as the rule maker (as in the Rules of Evidence) and taken that power on itself by eliminating the rules in this context.
The Texas Constitution expressly grants the judicial branch authority over judicial administration.[4] Tex. Const. art. V, § 31; *726 Armadillo Bail Bonds v. State, 802 S.W.2d 237, 240 (Tex.Crim.App.1990). Under the circumstances, Article 37.07, § 3(a) violates Article V, § 31 only if the Legislature, in the exercise of its constitutional authority, has so interfered with the judicial branch as to prevent the effective exercise of the latter branch's constitutionally assigned powers. Armadillo Bail Bonds, 802 S.W.2d at 239.
Furthermore, Article 37.07, as enacted by the Legislature, allows each individual sentencing court to dictate what evidence may be presented at the punishment phase of a trial. Any matter the court deems relevant to sentencing is admissible. Tex.Code Crim. Proc. Ann. art. 37.07. This does not take authority away from the judicial branch, but rather gives it to the individual trial courts. See Enlow v. State, No. 06-00-00101-CR, 2001 WL 256330, at *5 (Tex.App.-Texarkana Mar. 16, 2001, no pet. h.).
The judicial branch embraces the power to hear evidence, to decide the issues of fact raised by the pleadings, to decide the relevant questions of law, to render a final judgment on the facts and the law, and to execute the final judgment or sentence. Armadillo Bail Bonds, 802 S.W.2d at 239-40; Kelley v. State, 676 S.W.2d 104, 107 (Tex.Crim.App.1984). Article 37.07, § 3(a) does not interfere with any of these core judicial powers, but merely prescribes the procedure by which Article 37.07 is to be implemented. We find no violation of separation of powers.
Parker also contends that Article 37.07, § 3(a) denies him due course of law. He does not specify any particular way in which it does so and has provided no argument specific to this contention. The only argument made is that by eliminating the use of the Rules of Evidence (save only for relevance), the Legislature has tried to suspend "due course and due process for criminal defendants in punishment hearings, as there is no legislative or court guidance and no procedure for ensuring the punishment hearing is conducted fairly and without undue prejudice."
The Legislature did set up standards to be followed, albeit very loose standards requiring only that the evidence be relevant. Parker has received due process, but not through the application of the same evidentiary rules used during the guilt/innocence phase of trial. Due process has not been violated by the relaxing of evidentiary rules at the punishment phase of the trial.
Parker next contends that the court erred by admitting his confession in the absence of adequate and timely Miranda warnings.[5] He also argues the provisions of Article 38.22 were not met. Parker contends that the court erred because there was no evidence that while in custody and under interrogation, he was warned before the time that he made his written statement. Specifically, he contends that the officers did not read his Miranda rights to him at the beginning of his interrogation, but only when, after several hours, he agreed to make a formal statement.
*727 A trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.App.1997). We are also to afford such deference to a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. We may review de novo those questions not turning on credibility and demeanor. Id.
Detective Jeff Springer testified that he orally informed Parker, using a written form, about his right to remain silent when he initially began interviewing Parker. Further, the written form which he used is part of the record, and was initialed and signed by Parker and witnessed at 3:38 p.m. on the day of his arrest and at the time the interrogation began. There is no evidence to the contrary. This is evidence from which the court could conclude in its fact-finding capacity would support a conclusion that Parker was aware of his rights under Miranda and chose to waive those rights. This contention of error is overruled.
The judgment is affirmed.
NOTES
[1] The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." Similarly, Tex. Const. art. I, § 19 provides that "[n]o citizen of this State shall be deprived of life, liberty, [or] property" except by the "due course of the law of the land."
[2] In general support for his position, counsel directs the court to Herring v. New York, 422 U.S. 853, 858-59, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975), in which the Court acknowledged that it is only after the evidence is presented that counsel for the parties are in a position to present their respective versions of the case as a whole.
[3] The Fourteenth Amendment to the United States Constitution protects an accused's right to a fair trial, and the presumption of innocence is a basic component of the right to a fair trial. See Tex.Code Crim. Proc.Ann. art. 38.03 (Vernon Supp.2001); Randle v. State, 826 S.W.2d 943, 944-45 (Tex.Crim.App. 1992) (per curiam).
[4] In Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Crim.App.1990), the court has an excellent discussion of the separation of power as it pertains to the judiciary. The court ultimately determined that the statute under review unduly interfered with the judiciary's effective exercise of its constitutionally assigned powers. The case specifically cites Article V, § 1 of the Texas Constitution and states, "The Texas Constitution explicitly vests the judicial power of the state in the courts." See id. at 239; see also Tex. Const. art. V, § 1. The court does state that the Legislature has ultimate authority over judicial "administration," citing Meshell v. State, 739 S.W.2d 246, 255 (Tex.Crim.App.1987). The Meshell opinion draws its conclusion from the language in Tex. Const. art. V, § 25, repealed by Act of May 27, 1986, 69th Leg., R.S., SJR 14, § 9, 1985 Tex. Gen. Laws 3355, 3359, which at that time stated, "The Supreme Court shall have the power to make and establish rules of procedure not inconsistent with the laws of the State for the government of said court and the other courts of this State to expedite the dispatch of business therein." Meshell, 739 S.W.2d at 255, quoting Tex. Const. art. V, § 25, repealed by Act of May 27, 1986, 69th Leg., R.S., SJR 14, § 9, 1985 Tex. Gen. Laws 3355, 3359. This language was repealed by the voters of November 5, 1985.
The present language that appears in the Texas Constitution in Article V, § 31 Court Administration, Rule Making Authority, provides in subsection (a) that the Texas Supreme Court promulgate the rules of administration not inconsistent with the laws of the state; in subsection (b) the Texas Constitution provides that the Texas Supreme Court shall promulgate the Rules of Civil Procedure not inconsistent with the laws of the state; and in subsection (c), the Legislature may designate to the Texas Supreme Court or the Texas Court of Criminal Appeals the power to promulgate other rules as prescribed by law or the Texas Constitution subject to limitations and procedures as may be provided by law.
[5] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579230/ | 12 So. 3d 332 (2009)
In re Richard J. GARRETT.
No. 2008-B-2513.
Supreme Court of Louisiana.
May 5, 2009.
Rehearing Denied June 19, 2009.
*333 Charles Bennett Plattsmier, Bernadine Johnson, Baton Rouge, for applicant.
Hulse & Wanek, Stuart Glen Richeson, Randall Leland Kleinman, Richard J. Garrett, New Orleans, for respondent.
Wanda Lynn Theriot and Jeffrey Walter Bennett, for amicus curiae, Marcia D. Jordan.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Richard J. Garrett, an attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
Respondent is a solo practitioner handling primarily plaintiff's personal injury cases. In July 1999, respondent hired Marcia Jordan to work in his office as a legal assistant. At the time he employed Ms. Jordan, respondent knew that she had graduated from law school in 1996 and passed the Louisiana bar examination, but had not been admitted to the practice of law.[1]
After hiring Ms. Jordan, respondent separated his client's files into so-called "Garrett files," those for which he retains primary responsibility, and "Jordan" or "J files," those for which Ms. Jordan maintains primary day-to-day responsibility. Pursuant to the employment agreement between respondent and Ms. Jordan, her compensation differs depending on whether she is working on a "Garrett file" or a "J file." The agreement provides:
8. The terms of payment for the services of Jordan for Garrett are as follows:
a. On Garrett's files where he has chosen to do all of the work to conclusion himself [the "Garrett files"], he may assign hourly work in those files to Jordan. Jordan may bill Garrett for any tasks that he assigns to Jordan in those files and be paid for those tasks at the end of each work week.
b. The tasks assigned by Garrett to Jordan in # 8(a) may include preparing drafts of interrogatories, *334 scheduling recorded statements and performing legal research.
c. Garrett will assign files to Jordan to handle to a conclusion under his supervision.
d. On files which Garrett assigns to Jordan [the "J files"] to perform any of the tasks listed above in # 6,[[2]] Jordan will provide Garrett with the total number of hours worked each week at the end of each week.
e. On those cases referred to in # 8(c), Jordan will be paid out of Garrett's net income from the cases referred to in #8(c) when each such case is negotiated to a final disposition.
f. Garrett will apply up to 1/3 of his net income for each of those cases referred to in #8(c) against the total number of hours worked to date.
g. Jordan's hourly rate of pay will be $40 per hour.
Applying these terms to the practices of the parties, for tasks that she is asked to perform on one of the "Garrett files," Ms. Jordan bills respondent an hourly fee of $40. For example, if Ms. Jordan spends three hours drafting discovery responses for a "Garrett file," she gives respondent an invoice for $120. For this type of work, Ms. Jordan collects a check at the end of each week, drawn on respondent's operating account. The sum paid to Ms. Jordan is attributed to the particular "Garrett file" on which she worked and reduces the amount respondent receives as attorney's fees when the case ultimately settles.
By contrast, Ms. Jordan is not paid for the work she does on her "J files" until the cases are settled. Ms. Jordan keeps a running tally of the number of hours that she works on "J file" cases. When a "J file" case finally settles, respondent compensates Ms. Jordan for her time by paying her up to one-third of the contingency fee he receives on the case. If the one-third amount is not sufficient to cover all of the hours Ms. Jordan has accumulated, then the remaining hours "roll over" until the next "J file" settles.
Respondent and the ODC stipulated that from 1999 until some time in 2004, the payments made to Ms. Jordan on the "J files" came from respondent's client trust account. Respondent admitted this practice constituted fee sharing but asserted that his violation was inadvertent. The payments to Ms. Jordan on the "J files" are now made from respondent's operating account.
DISCIPLINARY PROCEEDINGS
In June 2006, the ODC filed one count of formal charges against respondent, alleging that he facilitated Ms. Jordan's unauthorized practice of law, in violation of Rule 5.5(a) of the Rules of Professional Conduct, and improperly shared legal fees with a nonlawyer, in violation of Rule 5.4(a).
Respondent answered the formal charges and denied any misconduct. He contended that he maintained ultimate responsibility for all files in his office, regardless of whether the files were designated as "Garrett files" or "J files."[3] Respondent contended that Ms. Jordan *335 had no property interest in the "J files," did not enter into separate agreements with the clients under her own name, and was limited concerning the activities she was able to perform because she was not a licensed attorney. Respondent also denied that he deferred to Ms. Jordan's judgment concerning the evaluation of the client's claims, permitted her to negotiate with insurance adjusters, or authorized her to negotiate personal injury settlements. With regard to Ms. Jordan's compensation, respondent denied that Ms. Jordan received a contingency fee, asserting that "the value of her services was always measured by the hour. The limitation to one-third of Mr. Garrett's fee was made merely as a convenience to Mr. Garrett so that he would not incur additional overhead expense." Respondent continued:
While Mr. Garrett acknowledges that the up-to-one-third of his fee payment to Ms. Jordan upon settlement was made out of his own fee, he also maintains that he was unfortunately ignorant concerning the possibility that he might be creating ethical issues by doing so. When he was made aware that an interpretation of the ethical precepts may preclude him from paying Ms. Jordan on "Jordan files" from the fee he earned, he ceased doing so. She is now paid strictly out of an Operational Account. It is notable that no client was ever prejudiced in this respect, and that Ms. Jordan's compensation was always ultimately measured on an hourly basis on all cases. [Emphasis in original.]
Formal Hearing
Most of the documentary evidence introduced at the hearing was obtained by the ODC in the course of its investigation of Ms. Jordan's bar admission proceeding. In that matter, the ODC took sworn statements from Ms. Jordan, from respondent, and from respondent's wife, Anne Garrett, who is the bookkeeper and office manager for her husband's law firm. These three witnesses also testified at the hearing before the commissioner in Ms. Jordan's bar admission proceeding. The transcripts of all of the sworn statements, and of the hearing before the commissioner, were introduced into evidence at respondent's formal charge hearing.
Regarding the "J files," Ms. Jordan testified during her sworn statement that she takes calls from prospective clients (typically individuals who have been involved in an automobile accident) when respondent is unavailable. Ms. Jordan interviews the caller and then prepares a written memo for respondent relating the details of the matter. Respondent reviews the memo and decides whether to accept the case. If he does accept the case, respondent signs a letter of representation which is sent to the insurer and schedules a meeting with the new client to sign the medical release forms and a contingent fee agreement. The client's file is then assigned to Ms. Jordan and is designated a "J file." Ms. Jordan testified that of the 250 or so files respondent's firm opens each year, approximately 90 of these are assigned to her as "J files."
Ms. Jordan testified that she always works under respondent's supervision, but she has the primary day-to-day responsibility for handling the "J" files. She orders the accident report, maintains contact with the clients, responds to inquiries from third parties for additional information concerning the case, and does legal research. She drafts correspondence, pleadings, and discovery for respondent to review and sign. Ms. Jordan also participates in the taking of recorded statements *336 of the client by an insurance adjuster.[4]
When the client is released from treatment by his medical provider, Ms. Jordan begins the process of drafting the settlement proposal. She obtains the client's medical reports, wage loss information, and the like, does a quantum study, and then drafts a settlement demand letter to the insurance company. Ms. Jordan gives the letter with the attached documentation to respondent for his review and signature, then sends it to the insurance adjuster. Respondent and Ms. Jordan frequently disagree when it comes to the quantum analysis; asked whether he defers to Ms. Jordan's judgment in that regard, respondent agreed that he does.[5]
Ms. Jordan testified that she generally speaks with the insurance adjuster about the settlement of a client's case; however, the adjuster always knows that Ms. Jordan is not a lawyer. She explained that respondent establishes a minimum settlement amount for each case and notes that information on the inside of the client's file. When the adjuster calls to discuss settlement, Ms. Jordan rejects the insurer's offer if it is below the minimum amount and makes a counteroffer. Ms. Jordan testified that ultimately she will accept "anything over the minimal amount," but "there is no authority to accept less than that." Ms. Jordan admitted that respondent has given her the authority to handle the settlement negotiations with the adjuster "so long as the discussion stays within the range of the low and the high," with the caveat that respondent has to approve the final settlement amount before she can formally accept it on the client's behalf.
After the case is settled, respondent's secretary prepares a settlement disbursement statement and gives it to respondent along with the release and the settlement check. Respondent discusses the breakdown of the settlement with the client by phone, then makes an appointment for the client to come into the office to meet with Ms. Jordan and sign the settlement documents.[6] Ms. Jordan reviews the settlement documents with the client, provides copies of the documents, obtains the client's endorsement on the settlement check, and then gives the client a post-dated check for his share of the settlement.
Regarding Ms. Jordan's compensation on the "J files," she offered the following explanation in her March 2005 sworn statement:
. . . Mrs. Garrett has a tablet in the front [of the file] and I'll say, you know, "This week I worked `X' amount of *337 hours on this, `X' amount of hours on that" and I'll keep it up in front of the file so that, at the end, once the file settles, I have all these hours that I've worked that I've not been compensated for. Once the case has settled, then, once she's the bookkeeper. She does the disbursement sheets on it. After I've put everything through, when she's sending out checks to the doctors, when she's sending out checks to whoever, then she'll take a third of Richard's fee and apply it to the hours that are owed. Now, I can never say that it was supposed to work out where, let's say that, they didn't owe me that much money, they wouldn't apply the one-third fee. You know, if the one-third fee was like $500 but they didn't owe me $500 worth the work, then, she would only pay me what was owed, but that's never the case. I mean, because I work seven days a week. You know, I'm there all hours of the night so I always have an overage so it, in reality, comes out where each one of the "J" files that I work on, one third of the fee is given to me, which is applied to what work is done. [Emphasis added.]
At the hearing before the commissioner in November 2005, Ms. Jordan gave a slightly different version of the process:
Well, the way it works out is at the end of every week, I have to give Mrs. Garrett an accounting of how many hours I worked on "J" files for that week. So she keeps a catalog in the front of the office that will say, "The week ending November 7th, Marcia has worked 45 hours." Any time that a "J" file settles, up to one-third of the fee will be attributed to any hours that I'm owed. But it's not necessarily the entire one-third fee. . . . well, that's theoretically. In reality at this point, the amount of hours that I am owed, it turns out that one-third of the fee of the "J" files will be, essentially, given to me, because I have all these hours that have gone not paid. [Emphasis added.]
Respondent's testimony was similar:
Q. . . . she keeps track of her hours on those, but she does not submit that to you on a weekly basis?
A. Correct.
Q. She's only going to get paid when that case settles?
A. Correct.
Q. Okay, and if the case settles, as I understand it, up to a third of whatever fee that you're entitled to is designated as the funds from which her pay will come?
A. Correct. Well
Q. And to the extent that her hours exceed one third of the fee, it's capped at one third?
A. Correct.
Q. Okay. What happens to those extra hours; let's say she worked an additional hour but didn't have enough one third of the fee wasn't enough to fully compensate her?
A. She gets paid at a later time, out of other cases.
Q. So there is a rolling tally, so to speak?
A. Correct.
Q. All right, so, obviously, in reality, the better the settlement value of the case, the more funds there are to perhaps compensate her for her time?
A. That's correct. Yes. [Emphasis added.]
WITNESS TESTIMONY
Ms. Jordan, respondent, and Mrs. Garrett testified in person before the hearing committee at the hearing on the formal charges. Respondent confirmed that he *338 agreed with the testimony of his wife and Ms. Jordan in all respects.
Ms. Jordan largely reiterated her prior testimony regarding her compensation. She noted that the "J files" are "where I actually make my money." Ms. Jordan testified:
I will hand in let's say this week I work 60 hours. Next week I work 40 hours. I hand in the hours. I get paid for those hours that I hand in for being at the office whenever a Jordan file settles. What happens with that, when a Jordan file settled, Mr. Garrett gets his fees. Out of his fee, one-third of his fee would then come to me to cover the hours I worked in the office.
Ms. Jordan conceded this arrangement has been lucrative for her. She testified that in 2004, she made $102,000. In 2005, the year prior to the disciplinary hearing, her compensation rose to $168,000.
Concerning the settlement of the "J files," Ms. Jordan testified that respondent is responsible for setting "the final number," which she then puts into a settlement demand letter to the insurance company. Respondent also sets a settlement range for the case and notes that information on the inside of the client's file. Ms. Jordan testified that if an insurance adjuster calls when respondent is not available, she tells the adjuster that she will relay the settlement offer to respondent. Asked whether she has ever accepted settlement offers that were in the pre-approved range without consulting with respondent, Ms. Jordan replied, "No."
Notably, this testimony was inconsistent with the testimony Ms. Jordan gave during her bar admission proceeding regarding her authority to negotiate with insurance adjusters, in which she stated that she was authorized to handle settlement negotiations independently "so long as the discussion stays within the range of the low and the high." Questioned about this inconsistency at the hearing, Ms. Jordan retreated from her earlier sworn statements:
A. . . . I think that the way I described it at that time, it was perceived that I was actually given the authority to negotiate with insurance adjusters without [respondent] knowing what was going on. That would be the only thing I want to clarify.
* * *
Q. . . . Maybe you misspoke in that statement?
A. I think that after I read the statement I think that I did not explain that very well.
Q. Okay. So now you're saying what?
A. Well, now I just want everyone to know Mr. Garrett has to be involved in every step of a settlement proceeding or settlement negotiations with an insurance adjuster.
On cross-examination, Ms. Jordan testified that she is paid on the "J file" system for working in the office, regardless of whether that work is legal work on the file or not. For example, if Ms. Jordan is updating the firm's library, or going to court to file a pleading, she counts those hours just like she counts the hours that she works on a "J file," i.e., these hours are accumulated and she is paid when a "J file" settles, up to one-third of the sum respondent receives as his attorney's fee. Once again, this testimony differed in some respects from the testimony Ms. Jordan gave during her bar admission proceeding, in which she testified that she kept track of her hours and charged them to each particular "J file" on which she worked (the March 2005 sworn statement) or, alternatively, that she kept track of how many hours she worked on "J files" *339 for a given week (the November 2005 hearing before the commissioner).
Hearing Committee Report
With regard to the alleged violation of Rule 5.5(a), the ODC contends that respondent allowed Ms. Jordan to handle personal injury cases and negotiate settlements, thereby facilitating the unauthorized practice of law. Considering the hearing testimony of Ms. Jordan, Mrs. Garrett, and respondent, the hearing committee found that respondent was at all times supervised in her work by respondent and that she essentially acted only as an assistant or paralegal in the handling of the files. Further, and again based upon the hearing testimony, the committee found that Ms. Jordan did not ever present herself as an attorney, either to clients or other parties. Ms. Jordan prepared pleadings and correspondence which were at all times reviewed, and in some instances modified, and signed by respondent. In the hearing testimony, Ms. Jordan stated that she relayed messages regarding settlements but was at no time left to negotiate settlements on her own for any files, including those designated internally as the "J files." However, the committee noted this testimony conflicted to some degree with Ms. Jordan's testimony in the bar admission proceeding in which she testified that she discussed "high and low" ranges with respondent, and that she had on occasion settled a case with the adjuster if the offer fell within the range.
In addition, while the issue was not addressed at respondent's hearing by either party, the committee pointed out Ms. Jordan's testimony during the bar admission proceeding concerning her attendance at recorded statements. Ms. Jordan testified that she attended probably half of the recorded statements taken of respondent's clients. If the statement was taken over the telephone, it was only Ms. Jordan and the client in the room, and she did not ask questions or object to questions which she thought were inappropriate or unfair; rather, she would stop the statement to get respondent. The committee noted that in that respect, Ms. Jordan was left to make the determination as to what was objectionable or inappropriate.
Based on these factual findings, the committee concluded that respondent "made substantial effort to avoid the appearance that Ms. Jordan was acting as an attorney, with his supervision of files and the apparent adherence to the practice that all letters and pleadings were signed by him. However, with regard to the settlement negotiations and the recorded statements of his clients, Mr. Garrett appears to have delegated a great deal of discretion to Ms. Jordan in the handling of the Jordan files in these areas, which should be reserved to licensed attorneys."
With regard to the alleged violation of Rule 5.4(a), the ODC contends that the compensation arrangement between respondent and Ms. Jordan created a pool of funds for payment of her hourly wages which would constitute fee splitting with a nonlawyer. Considering the hearing testimony of Ms. Jordan, Mrs. Garrett, and respondent, the committee found that with the exception of the preparation of settlement statements, for which Ms. Jordan was paid a flat fee, all other services which she performed for respondent were based upon an hourly rate. All three witnesses were consistent in their hearing testimony, as well as in the sworn statements and in the commissioner's hearing, as to the description of the distinction between the "J files" and the "Garrett files." With regard to the "J files," Ms. Jordan was paid based upon an hourly rate, but the timing of the payments was in conjunction with the resolution of other "J files" and she was paid out of and limited to a one-third portion of *340 respondent's fee or net income from those files. Ms. Jordan's compensation is not dependent upon the success of a particular "J file" and if there is no fee income derived for some reason, she is nevertheless guaranteed eventual payment of her hourly compensation from other "J files."
Ms. Jordan testified at the commissioner's hearing that because of the significant number of hours she has generated in the "J file" cases, there is always an overage or running balance that is owed to her. She admitted that the practical effect of this is that she is paid one-third of every attorney's fee generated on a "J file" case, not necessarily because of the work which she performs on that file but because of the running balance and the one-third cap.
Because of the issues which were presented in Ms. Jordan's bar admission proceeding, Ms. Jordan is now paid her hourly compensation from respondent's operating account, rather than his client trust account, as had previously occurred.
Based on these factual findings, the committee concluded that notwithstanding respondent's apparent efforts "to avoid a violation of Rule 5.4(a), the practical effect of the running totals due Ms. Jordan is that, although the funds are not earmarked, the result is a de facto sharing of fees because the cap limits the amount paid to her for the accrued hourly time charges which results in her payment being tied to the fee generated on each Jordan case."
In reviewing the prior decisions of this court, the committee considered In re: Comish, 04-1453 (La.12/13/04), 889 So. 2d 236, in which the court explained the supervision which lawyers must exercise over their paralegals and other nonlawyer assistants. In Comish, the court found that the respondent violated the Rules of Professional Conduct by giving his paralegal a free hand to correspond with insurance adjusters and negotiate settlements. However, the committee found Comish is distinguishable from the instant case because it involved much more egregious conduct than respondent's. In Comish, the insurance adjuster was under the mistaken impression that the paralegal was an attorney, an impression which neither Comish nor the paralegal did anything to correct. There is no evidence of a similar mistaken identity in this present case; conversely, Ms. Jordan testified that the insurance adjuster knew he was dealing with a paralegal, rather than an attorney. Moreover, in Comish, the "free hand" given to the paralegal also included the authority to meet with clients, handle legal fees, and render legal opinions. While Ms. Jordan actively met with clients and was praised by respondent as being beneficial to the attorney-client relationship, both parties asserted that she did not discuss fees with clients.
Turning to the case law dealing with an attorney's delegation of representation at a sworn statement, the committee considered In re: Williams, 02-2698 (La.4/9/03), 842 So. 2d 353. In Williams, the court found that the non-attorney engaged in the practice of law by participating in the sworn statements of two clients. Notably, the non-attorney indicated that he was an attorney and advised the clients how to answer questions posed by counsel for the insurance company. In the present matter, Ms. Jordan testified that in a "good many instances" she is the only individual present with the client during the sworn statement. She asserted, however, that she does not ask questions during the process, but simply takes notes. She further stated that she does not object to questions that she deems inappropriate or unfair. The committee found these facts distinguish this matter from Williams, in that Ms. Jordan is not holding herself out as an *341 attorney during the sworn statements. However, Ms. Jordan also testified that if she finds a question inappropriate or unfair, she stops the process to ask respondent his opinion. Referring to her role at the recorded statement, respondent testified that "she is my eyes and ears." The committee suggested this behavior may be "suspect," as respondent has essentially delegated to Ms. Jordan the authority to use her judgment to determine whether a question is objectionable, in which case she will find respondent. Conversely, if in Ms. Jordan's judgment there is no objection, there is no one present to object on behalf of the client.
The committee noted that there does not appear to be a bright-line rule for what constitutes fee sharing. In In re: Watley, 01-1775 (La.12/7/01), 802 So. 2d 593, the court found the respondents guilty of violating Rule 5.4(a) by entering into a fee sharing contract with a non-attorney. Specifically, the parties created an arrangement whereby the respondents' law firm agreed to pay a paralegal service 40% of the attorney's fees earned on personal injury cases and 60% of the fees earned on cases referred by the paralegal service. The court found the agreement to constitute intentional fee sharing, illustrated by the fact that the firm attempted to hide the arrangement through misleading invoices. Although the court found no indication of direct harm to a client, it cautioned that the arrangement had the potential to cause harm "because once non-lawyers were given a financial interest in respondents' legal fees, there was a possibility they could interfere with respondents' independent judgment in the case." The court concluded this potential harm to clients and to the legal profession warranted discipline.
For respondent's misconduct, but considering that there was no evidence of harm to any of his clients, the committee recommended that he be publicly reprimanded.
Respondent filed a brief with the disciplinary board objecting to the hearing committee's findings and recommended sanction.[7] In its brief to the board, the ODC asserted that the baseline sanction for respondent's misconduct is disbarment.
Disciplinary Board Recommendation
The disciplinary board found there was no clear and convincing evidence that respondent facilitated Ms. Jordan's unauthorized practice of law by allowing her to participate in client statements or in settlement negotiations. The only evidence of such comes from the documentary evidence submitted at the hearing as exhibits. As to client statements, the board noted that the ODC did not inquire during its questioning of respondent what involvement Ms. Jordan had in taking recorded statements of his clients. Likewise, no testimony was elicited about whether respondent directed Ms. Jordan to exercise her judgment to determine if insurance adjusters were posing objectionable questions, or whether she ever exercised such judgment and respondent thereafter failed to instruct her not to judge whether questions were objectionable. Additionally, although the burden of proof calls for evidence that is clear and convincing, the board found the record devoid of any specific line of questioning by an insurance adjuster from which it could be ascertained what, if any, professional judgment may have been required. The board also *342 found no evidence of Ms. Jordan making a judgment call about a client's statement, which respondent knew or should have known to be a misjudgment, but for which he later failed to rectify the consequences. Accordingly, the board not only found the documented testimony ambiguous as to whether Ms. Jordan was exercising the judgment properly exercised only by a lawyer, but also found that the inquiries posed to Ms. Jordan during the commissioner's hearing cannot satisfy the need for clear and convincing evidence to impute complicity upon respondent for any transgression(s) by Ms. Jordan. Instead, the board concluded that from all that appears in the record, in many instances when an adjuster wanted to take a client's recorded statement in person or over the phone, respondent made the professional decision to allow his client to give an unsworn statement to the adjuster outside the presence of a lawyer, with Ms. Jordan present to take notes. Finding this is a permissible exercise of professional judgment under the Rules of Professional Conduct, the board determined the hearing committee "manifestly erred by concluding that Respondent had assisted Ms. Jordan in the unauthorized practice of law."[8]
The board likewise rejected the committee's finding that respondent assisted Ms. Jordan in the unauthorized practice of law relating to her involvement in settling cases. The board found the committee's conclusion is based only upon its observation that "`high and low' ranges were discussed between Ms. Jordan and Mr. Garrett" and that Ms. Jordan conveyed acceptance to the adjuster "if the offer fell within the range." The board commented that when "[v]iewed at an elemental level, these observations cannot support the legal conclusion that Ms. Jordan `settled a case.' Likewise, these observations do not compel the legal conclusion that Respondent failed to meet his ethical obligations as an attorney." The board found the hearing testimony reflects that respondent maintained a direct relationship with his clients, and that he supervised Ms. Jordan's involvement in negotiations. Because respondent maintained ultimate control as to what was an acceptable settlement value, and obtained client consent to compromise the case, respondent maintained complete professional responsibility for the end result. The board determined this is consistent with the requirements set forth by the court in In re: Sledge, 03-1148 (La.10/21/03), 859 So. 2d 671,[9] and accordingly, found the hearing committee erred as a matter of law in finding that Ms. Jordan's involvement in settlement negotiations equates to respondent's failure to meet his ethical obligations.
Turning to the issue of respondent's pay arrangement with Ms. Jordan, and whether such constituted an impermissible sharing of his fees, the board recounted the testimony reflecting that under the written agreement between the parties, and in practice, respondent was liable for all hours Ms. Jordan worked, even for work that was not directly related to any given case, such as office work. This was so *343 whether or not respondent and his client recovered on any given case. Under respondent's written agreement with Ms. Jordan, she was not an employee, but a contractor. Because she was not regarded as an employee, there was apparently no requirement to pay her with the regularity required of an employee. Instead, one effect of the written independent contractor agreement was that Ms. Jordan acquiesced to waiting for some of her compensation until the cases on which she had significantly assisted actually bore fruit.
The board concluded that under these facts, there was not clear and convincing evidence that respondent improperly shared his attorney's fees with a nonlawyer. The board conceded, however, that there were periods of time in which respondent had relatively large numbers of hours for which he owed Ms. Jordan, and that he never became wholly current in paying her for the period of time examined during the hearing. Nevertheless, the board concluded that Ms. Jordan does not share respondent's risk of loss, because her compensation is not contingent upon any particular case(s). Consequently, respondent is not engaged in fee sharing with Ms. Jordan.
Based on this reasoning, the board recommended that the formal charges against respondent be dismissed.
Three board members dissented, noting that when the "J files" settled, Ms. Jordan was paid one-third of the legal fees directly from respondent's client trust account. This practice continued until formal charges were instituted. Thereafter, the only change in the arrangement was that Ms. Jordan was paid from respondent's operating account. The dissenting board members observed that this arrangement "may have started innocently, but it quickly became a fee sharing arrangement as Ms. Jordan took full advantage of the opportunity to devote as much time as necessary to insure that she would always be paid one third of the legal fee on as many of the `J' files as possible, because `Jordan files are where I actually make my money.'" The year before her hearing testimony, Ms. Jordan's compensation had risen to $168,000. While such sizeable annual earnings by a legal assistant might not prove up a case of fee sharing, the dissenting board members noted that in the context of all the other evidence, "it removes all reasonable doubt in a case subject to a lower standard of proof, i.e., clear and convincing evidence." Therefore, the board majority erred in finding there was no fee sharing between respondent and Ms. Jordan. Moreover, respondent's continuation of his fee sharing practices after formal charges were instituted against him underscores that his conduct was knowing and intentional.
The dissenting board members agreed with the ODC that the baseline sanction for respondent's misconduct is disbarment under the ABA's Standards for Imposing Lawyer Sanctions. However, in view of the mitigating factors present, most notably respondent's unblemished legal career of 54 years, the dissenting board members would recommend the imposition of a two-year suspension, with all but one year and one day deferred, subject to the condition that "Ms. Jordan's continued employment and method of payment with Respondent's firm be addressed in the readmission process."
The ODC appealed the board's ruling to this court. We ordered the parties to submit briefs addressing the issue of whether the record supports the disciplinary board's report. After reviewing the briefs filed by the parties, we ordered the case docketed for oral argument.
*344 DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So. 2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So. 2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So. 2d 150.
We find the record, taken as a whole, supports the conclusion that respondent facilitated Ms. Jordan's unauthorized practice of law by allowing her to negotiate personal injury settlements on behalf of his clients and in representing clients during recorded statements taken by insurance companies. In this regard, it is significant to note that Ms. Jordan's testimony has changed markedly from one proceeding to the next concerning the extent of her participation in these activities. In her most recent hearing testimony, Ms. Jordan indicated that she worked strictly under respondent's supervision and did not have any independent contact with insurance adjusters. However, a review of Ms. Jordan's earlier testimony suggests that she clearly testified that she was authorized by respondent to handle settlement negotiations independently so long as she stayed within a pre-determined "high and low" range, and that she frequently participated in the taking of recorded client statements.
In rejecting the hearing committee's finding that respondent facilitated the unauthorized practice of law, the board concluded that Ms. Jordan's testimony was "inherently ambiguous" and could not constitute clear and convincing evidence of misconduct. However, the fact that Ms. Jordan has presented several different versions of events does not lead to the conclusion that her testimony may not be considered. Rather, the hearing committee, which was presented with both versions of the testimony, made a factual finding that Ms. Jordan's earlier testimony in her bar admission proceeding (in which she admitted to attending recorded statements and settling cases if the offer fell within a range selected by respondent) was more credible. Considering the record as a whole, we cannot say this factual finding is clearly wrong. Moreover, we have previously held that these tasks constitute the practice of law and may not be performed by a nonlawyer. See Comish, supra; see also Rule 5.5 of the Rules of Professional Conduct, which specifically defines the "practice of law" to include "appearing as a representative of the client at a deposition or other discovery matter" and "negotiating or transacting any matter for or on behalf of a client with third parties." Accordingly, respondent has facilitated the unauthorized practice of law by his assistant, Ms. Jordan, in violation of Rule 5.5(a).
Respondent has also committed misconduct by sharing his legal fees with Ms. Jordan. Ms. Jordan and respondent describe her compensation arrangement as "complex" and "convoluted," but we find it simple: under their agreement, respondent and Ms. Jordan share a predetermined percentage of his legal fees as compensation for her work on the "J files." Such an arrangement clearly violates the letter and spirit of Rule 5.4(a) of the Rules *345 of Professional Conduct, which provides that a lawyer "shall not share legal fees with a nonlawyer" except under limited circumstances not relevant to this case. Furthermore, respondent admitted that he engaged in impermissible fee sharing with Ms. Jordan for a period of at least five years. It is interesting to note that the board's reasoning rejecting the ODC's allegation of fee sharing leads to the conclusion that respondent never engaged in fee sharing, a fact which is contrary to respondent's own admission that he did engage in fee sharing until the bar admission proceeding was brought against Ms. Jordan.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So. 2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La.1984).
The baseline sanction for the facilitation of the unauthorized practice of law by a nonlawyer is disbarment. See Sledge, supra; In re: Brown, 01-2863 (La.3/22/02), 813 So. 2d 325; Louisiana State Bar Ass'n v. Edwins, 540 So. 2d 294 (La.1989). In cases involving fee sharing with a nonlawyer, we have imposed a suspension of one year and one day. In re: Watley, 01-1775 (La.12/7/01), 802 So. 2d 593. For respondent's misconduct involving both facilitation of the unauthorized practice of law and fee sharing, the overall baseline sanction is disbarment.
As aggravating factors, we recognize a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. In mitigation, we find respondent has no prior disciplinary record.
Having considered these factors in light of the record in its entirety, we decline to deviate from the baseline sanction of disbarment. As Ms. Jordan has become more proficient in the practice of law, respondent has abdicated his responsibilities to his clients. We observed in Sledge that such conduct falls far below that expected of lawyers in this state and is an affront to those lawyers who strive to provide competent and ethical representation to their clients. Therefore, respondent must be disbarred.
DECREE
Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Richard J. Garrett, Louisiana Bar Roll number 5946, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[1] In 1999, we denied Ms. Jordan's application for admission to the bar, finding she had not satisfied her burden of proving her good moral character. In re: Jordan, 97-1564 (La.2/12/99), 730 So. 2d 873 ("Jordan I"). In 2000, Ms. Jordan filed a second application for admission, which we denied because she made no showing of facts relating to her character and fitness to practice law that changed after the denial of her application in Jordan I. In re: Jordan, 00-3006 (La.12/15/00), 775 So. 2d 1065 ("Jordan II"). In 2004, Ms. Jordan filed a third application for admission ("Jordan II"). Finding she had demonstrated a change in circumstances, we appointed a commissioner to take evidence in the matter. The commissioner ultimately recommended to this court that the application be denied because Ms. Jordan had engaged in the unauthorized practice of law while employed by respondent and participated in a fee-sharing arrangement prohibited by the Rules of Professional Conduct. We held the commissioner's recommendation under advisement awaiting the outcome of the instant proceeding. In a separate opinion rendered this day in In re: Jordan, 04-0542 (La.5/5/09), 12 So. 3d 346, 2009 WL 1385932, we now deny Ms. Jordan's application for admission to the practice of law.
[2] These tasks include, for example, meeting with clients, preparing drafts of letters, ordering copies of police reports and medical records, setting up doctor's appointments, preparing settlement packages, "relay[ing] settlement figure counter-offers to an adjuster with Garrett's permission," preparing discovery, performing legal research, and the like.
[3] Respondent suggested the division of the files was "merely a convenience."
[4] Ms. Jordan stated that she sits with the client and takes notes during these statements but does not ask any questions or make objections. During her sworn statement, Ms. Jordan testified that respondent is generally not present at the time the client statement is taken, and in fact, he may not even be in the office. However, Ms. Jordan retreated from this testimony at the hearing before the commissioner, during which she claimed that she never does client statements if respondent is not in the office.
[5] During the character and fitness hearing, Mrs. Garrett commented that Ms. Jordan and respondent are "very competitive" with each other. Asked what Mrs. Garrett might have meant by her comment, Ms. Jordan explained that she is better at evaluating the worth of a case than is respondent, whom she believes "low balls" settlement demands. Ms. Jordan proudly testified that she usually obtains better settlements on the "J files" than respondent does on the "Garrett files."
[6] Mrs. Garrett explained that Ms. Jordan processes all client settlements (for which she is paid a separate flat fee of $50 each) because she is very good at making sure that the clients don't talk respondent into reducing his attorney's fees. Mrs. Garrett described her husband as a "pussycat" in that regard.
[7] Respondent subsequently withdrew his objection to the public reprimand recommended by the hearing committee.
[8] The board expressly noted that this finding does not imply that it had reached any conclusion as to whether Ms. Jordan herself has any culpability for her actions, as that issue is not before the board.
[9] Sledge involved an attorney whose nonlawyer employees were involved in negotiating settlements for clients. While the court did not draw a bright line limiting the extent of nonlawyer involvement, the court did articulate minimum factors which must be present for the attorney's delegation of responsibility to the nonlawyer to be proper: maintaining a direct relationship with the client, supervising the delegated work, and having complete professional responsibility for the work product. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579243/ | 12 So. 3d 728 (2009)
Lovorice Quindale ANDREWS
v.
STATE of Alabama.
CR-07-1402.
Court of Criminal Appeals of Alabama.
January 16, 2009.
William J. Moore, Sr., Enterprise, for appellant.
Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
WELCH, Judge.
Lovorice Quindale Andrews was indicted on two counts of robbery in the first degree, *729 violations of § 13A-8-41, Ala.Code 1975. After initially entering not-guilty pleas to both charges, Andrews entered into an agreement with the Coffee County District Attorney's Office as to one of the robbery counts, pursuant to which he would plead guilty to one count of first-degree assault, a violation of § 13A-6-20, Ala.Code 1975. The plea agreement stated that, in the assault case, the prosecutor would recommend that Andrews receive a sentence of five years in prison, the sentence would be split, and Andrews would serve two years. The balance of the sentence was to be suspended for four years. (C. 127.) The record does not indicate that any plea agreement was made as to the other robbery count, or that the district attorney's office agreed to make a sentence recommendation as to that count.
On February 5, 2008, the trial court entered an administrative order regarding plea day for the April 2, 2008, criminal jury term of court. The order was applicable to all criminal defendants who expected to enter a plea before that term of court. In the order, the trial court stated in no uncertain terms that it would "not accept Settlement Agreements." (C. 170.) The order continued, "[t]he court will consider signed Settlement Agreements only as recommendations. The State and Defendant may negotiate the charge(s)." (C. 170, emphasis in original.)
On March 6, 2008, the trial court conducted a plea hearing in accordance with the requirements of Rule 14.4, Ala. R.Crim. P., including informing Andrews of the sentencing range for both robbery and assault. During the hearing, the trial court had the following exchange with Andrews:
"THE COURT: Has anybody made you any promises other than that recommended settlement agreement in the one case that the charge is reduced?
"THE DEFENDANT: No, sir.
"THE COURT: Now, do you understand that I have the final say so of your sentence regardless of these settlement agreements and that I'm not bound to follow these recommended settlement agreements? And so, therefore, I'm at this point in time letting you know that you can withdraw your guilty pleas. Do you wish to withdraw your guilty pleas with me telling you that I'm not bound to follow these settlement agreements?
"THE DEFENDANT: No, sir."
(R. 11.)
After the plea hearing, the trial court determined that Andrews was voluntarily, knowingly, and intelligently entering guilty pleas to both the robbery and assault charges and accepted those pleas.
On March 24, 2008, a sentencing hearing was held. The victim in the assault case testified as to the extent of his injuries and asked that Andrews receive a "substantial sentence." (R. 18.) After hearing the testimony and arguments of the attorneys for both parties, the trial court sentenced Andrews to 15 years' imprisonment in the assault case and to 50 years' imprisonment in the robbery case.
After sentencing, Andrews moved to withdraw his guilty pleas. The trial court denied the motion. Andrews appealed.
I.
Andrews contends that the trial court abused its discretion in denying his motion to withdraw his guilty pleas because, Andrews says, the court indicated in its own administrative order that it would consider applicable sentencing guidelines. He argues that the court's failure to impose the sentencing guidelines amounts to a "broken promise." (Andrews's brief at p. 12.)
Andrews acknowledges that the Alabama Sentencing Reform Act of 2003, *730 § 12-25-30 et seq., Ala.Code 1975, specifically provides that "[f]ailure to follow any or all of the provisions of this section [use of voluntary sentencing standards], or failure to follow any or all of the provisions of this section in the prescribed manner, shall not be reviewable on appeal or the basis of any other post-conviction relief." § 12-25-35(f), Ala.Code 1975.
In Ducker v. State, 986 So. 2d 1224, 1226 (Ala.Crim.App.2007), this court held that, although it appeared from the record that the trial court "failed to consider the voluntary sentencing standards, [that] failure did not provide a legal basis for setting aside Ducker's conviction or resentencing him."
Nonetheless, Andrews asserts that the basis for his appeal is not that the trial court failed to apply the guidelines, but that it broke the promise made in the administrative order that it would consider the guidelines. Andrews's argument is not supported by the record.
In its order dated 16 April, 2008, the trial court clarified its initial sentencing order to reflect that it had in fact considered the sentencing guidelines but had chosen not to follow them in this case. (C. 167.) The trial court adhered to its administrative order; thus, to the extent any "promise" was made in the order, such promise was not breached. This issue is without merit.
II.
Andrews also contends that the trial court abused its discretion in not allowing him to withdraw the guilty plea entered in the assault case after it refused to follow the agreement reached between Andrews and the State.
Rule 14.4(e), Ala. R.Crim. P., provides that "[t]he court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice." "`[W]hether to allow a defendant to withdraw his guilty plea rests within the sound discretion of the trial court, and this Court will not overrule that decision on appeal absent an abuse of discretion.' Thacker v. State, 703 So. 2d 1023, 1026 (Ala.Crim.App. 1997)." White v. State, 4 So. 3d 1208, 1213 (Ala.Crim.App.2008).
"`"[T]he trial court is not bound to accept an agreement between the defense and prosecution." Ex parte Yarber, 437 So. 2d 1330, 1336 (Ala. 1983). However, "`[w]hen the trial judge decides not to carry out an agreement reached between the prosecutor and defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on motion promptly made.'" Bland v. State, 565 So. 2d 1240, 1243 (Ala. Crim.App.1990), quoting Ex parte Otinger, 493 So. 2d 1362, 1364 (Ala. 1986).'
"Bagley v. State, 681 So. 2d 262, 265 (Ala.Crim.App.1995)."
Johnson v. State, 886 So. 2d 900, 902 (Ala. Crim.App.2003).
However, the appellate courts have also recognized that under certain circumstances, the trial court's refusal to sentence a defendant in accordance with the terms of a plea agreement requires that the defendant be offered the opportunity to withdraw his plea.
In Ex parte Otinger, 493 So. 2d 1362, 1363-64 (Ala.1986), the Supreme Court explained as follows:
"`"Our holding today is not to be considered as binding the trial court to the agreement struck between the prosecutor and defense counsel. What we do hold is that if the trial court decides not to carry out the agreement reached between the prosecutor and counsel for the accused, *731 the accused must be afforded the opportunity to withdraw this guilty plea on motion promptly made, as was done in this case."'
"See Shepard v. State, 347 So. 2d 1017 (Ala.Crim.App.1977) (recognizing rule); Waldrop v. State, 54 Ala.App. 163, 306 So. 2d 29, cert. denied, 293 Ala. 777, 306 So. 2d 33 (¶ 1974); Blow v. State, 49 Ala. App. 623, 274 So. 2d 652 (1973). See also Gill v. State, 380 So. 2d 1008 (Ala.Crim. App.1980)."
In Calloway v. State, 860 So. 2d 900 (Ala. Crim.App.2003) (opinion on return to remand and on second application for rehearing), this Court held as follows:
"`Rule 14.3(c)(2)(iv), Ala. R.Crim. P., provides that if a trial court rejects a plea agreement, it must "[a]fford the defendant the opportunity to withdraw the defendant's offer to plead guilty.' `The law is clear: if a trial court refuses to abide by the terms of a plea agreement, it must grant the defendant's timely motion to withdraw the plea.' Taylor v. State, 677 So. 2d 1284, 1285 (Ala.Crim.App.1996). See also Ex parte Otinger, 493 So. 2d 1362 (Ala.1986); Nelson v. State, 866 So. 2d 594 (Ala.Crim. App.2002); Moore v. State, 719 So. 2d 269 (Ala.Crim.App.1998); Clark v. State, 655 So. 2d 50 (Ala.Crim.App.1995); and Brown v. State, 495 So. 2d 729 (Ala.Crim. App.1986). The reasoning behind this is that `when a plea rests in any significant degree on a promise or agreement of the prosecutor ... so that it can be said to be part of the inducement or consideration, such promise or agreement must be fulfilled.' Ex parte Otinger, 493 So.2d at 1364, citing Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (emphasis omitted [in Calloway])."
Andrews relies upon Waters v. State, 963 So. 2d 693, 696-97 (Ala.Crim.App.2006), in support of his contention that his motion to withdraw his guilty plea in the assault case was due to be granted.
In Waters, this court held that the trial court abused its discretion when it refused to grant Waters's request to withdraw his guilty plea when the trial court did not sentence Waters pursuant to the terms of a plea agreement reached between the State and Waters.
In reversing the judgment of the trial court in Waters, this court explained:
"`"[I]f there is a plea agreement between a defendant and the State and a breach thereof which is made known to the trial court, and if the trial court does not sentence the defendant pursuant to the terms of the plea agreement (or as alleged in the instant case, that the State makes a sentence recommendation contrary to the plea agreement), then the defendant must be given an opportunity, upon proper, timely, and specific motion, to withdraw his guilty plea. At that point, the trial court must review the circumstances surrounding the making of the plea agreement and determine whether ... a breach occurred. Further, it must decide if the guilty plea rested in any significant degree upon the agreement of the State, so that such can be said to be part of the inducement or consideration and, thus, must be fulfilled. The trial court may hold a hearing and receive testimony to determine the above. Once it makes its findings, the trial court then determines the appropriate remedy, if any. Santobello v. New York, 404 U.S. 257 [92 S. Ct. 495, 30 L. Ed. 2d 427] ... (1971); See [Ex parte] Yarber[, 437 So. 2d 1330 (Ala.1983)]." *732 "`Orr v. State, 435 So. 2d 182, 184 (Ala.Crim.App.1983). See also Ex parte Otinger, 493 So. 2d 1362 (Ala. 1986); Blackwell v. State, 556 So. 2d 1091 (Ala.Crim.App.1988); English v. State, 56 Ala.App. 704, 325 So. 2d 211 (Ala.Crim.App.1975), cert. denied, 295 Ala. 401, 325 So. 2d 216 (1976).'
"In this case, the trial court informed the appellant that he could withdraw his guilty plea during the hearing on May 9, 2006. However, at that time, the appellant did not have complete information upon which to base his decision because he did not know if the State would be able to prove that he had three prior felony convictions and did not know if the trial court would sentence him in accordance with the plea agreement. Once the State proved the three prior felony convictions and the trial court indicated that it was not going to sentence him in accordance with the plea agreement during the sentence hearing on June 28, 2006, the appellant had the necessary information upon which to base his decision.
"At that time, the trial court should have afforded him the opportunity to withdraw his guilty plea."
Waters v. State, 963 So. 2d 693, 696-97 (Ala.Crim.App.2006).
As to the rejection of a plea agreement by a trial court, Rule 14.3, Ala. R.Crim. P., provides, in pertinent part:
"(b) Disclosure of Plea Agreement. If a plea agreement has been reached by the parties, the court shall require the disclosure of the agreement in open court prior to the time a plea is offered. Thereupon, the court may accept or reject the agreement or may defer its decision as to acceptance or rejection until receipt of a presentence report.
"(c) Acceptance or Rejection of Plea Agreements.
"....
"(2) If the court rejects the plea agreement, the court shall:
"(i) So inform the parties;
"(ii) Advise the defendant and the prosecutor personally in open court that the court is not bound by the plea agreement;
"(iii) Advise the defendant that if the defendant pleads guilty, the disposition of the case may be either more or less favorable to the defendant than that contemplated by the plea agreement;
"(iv) Afford the defendant the opportunity to withdraw the defendant's offer to plead guilty;
"(v) Afford the prosecutor the opportunity to change his recommendations; and
"(vi) Afford the parties the opportunity to submit further plea agreements."
In this case, although the trial court had informed Andrews that it was not bound by the agreement between him and the prosecution, it did not expressly indicate to him whether it would accept or reject the agreement until the sentencing hearing. As was the case in Waters, at the time Andrews entered his plea, he did not have complete information upon which to base his decision because he did not know if the trial court would sentence him in accordance with the plea agreement. It was not until the actual sentencing hearing that Andrews knew that the trial court had rejected the prosecutor's recommended sentence. And, again, as was the case in Waters, it was at that time that the trial court should have afforded Andrews the opportunity to withdraw his plea.
*733 Accordingly, the trial court abused its discretion in denying Andrews's motion to withdraw his plea of guilty to the assault charge. The judgment of the trial court is affirmed as to the robbery charge, reversed as to the assault charge, and the cause is remanded to the trial court for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
BASCHAB, P.J., and McMILLAN, SHAW, and WISE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581159/ | 147 N.W.2d 921 (1967)
181 Neb. 299
Mary R. CUNNINGHAM et al., Appellant, Cross-Appellees,
v.
Otho L. STICE and Virginia M. Stice,* First State Bank of White Cloud, Kansas, a Corporation et al., Appellees, *Cross-Appellants.
No. 36371.
Supreme Court of Nebraska.
January 27, 1967.
*922 Bayard T. Clark, Falls City, Herman Ginsburg, Lincoln, for appellants.
Archibald J. Weaver, Wiltse, Wiltse & Lantzy, Falls City, for appellees.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH and McCOWN, JJ., and LYNCH, District Judge.
CARTER, Justice.
The plaintiffs brought this action to determine the north line of their property which they contend is the south quarter line of Sections 4 and 5, Township 1 North, Range 18 East of the 6th P. M., in Richardson County, Nebraska. The defendants Stice are the owners of the land immediately north of plaintiffs' lands in Section 4 and the defendants Burton are the owners of the land immediately north of plaintiffs' lands in Section 5. The issue in the case is the location of the common boundary line between the plaintiffs on the one hand and the defendants Stice and Burton on the other. The plaintiffs contend that the boundary line is the south quarter line in Sections 4 and 5 according to the United States government survey as shown by exhibit 3 in the record. The defendants contend that the boundary line is the south quarter line in Sections 4 and 5 according to the Relf survey as determined and filed in the county surveyor's office in Richardson County on May 21, 1913. The trial court found that the fence constructed by S. W. Cunningham on the line of the Relf survey was the correct line under the evidence and it quieted the title to the lands of the respective parties north and south of the fence constructed on the Relf survey line.
The plaintiffs are the daughters of S. W. Cunningham from whom they inherited the lands to which they now assert ownership. In 1913, S. W. Cunningham caused J. Frank Relf to make a survey for the purpose of establishing the north line of his land. Thereafter he established a fence on the line established by Relf. In 1958, a new fence was built by the defendant landowners on the approximate line of the old fence. In January 1965, plaintiffs employed Willis L. Brown to make a survey establishing the north line of their lands. In so doing, he found original corners and established the line in accordance with the original government survey which is some distance north of the fence erected on the line established by Relf. It is the land between the lines established by Brown and Relf that is in dispute in this litigation.
The point of beginning of both surveys was the south quarter corner on the west *923 line of Section 5. From this point east, the first half mile is described as high ground farmlands. The land then drops down over the Missouri River bluffs to bottom lands which extend to the west bank of the present location of the Missouri River. These bottom lands were covered with timber and brush until some clearing thereof has been done in recent years. In 1938, the course of the Missouri River was changed by the U. S. Army Corps of Engineers so that it now runs approximately along the east line of Section 5, the Burton Land lying immediately to the west thereof. The Stice land lies to the east of the Missouri River and extends to the chute where the Missouri River formerly ran. The Stice land is bottom land as hereinbefore described.
Frank Norris, the county surveyor of Richardson County, completed a retracing of the Relf survey which was completed the day before the commencement of the trial. The records of his office do not show a survey plat. His retracement was based on Relf's field notes on file in the office. In making the retracement survey, no stakes were found, but two limestone corner markers were found which he assumed were set by Relf in his 1913 survey. Norris testified that he accepted the two limestone markers and projected the line east across the present channel of the Missouri River to the old chute of the Missouri River. The evidence of old fences were found on the ground which were south of his line. Norris states that the fence on the Burton land for a distance of 600 to 800 feet was 7 feet south of the south quarter line which he reestablished, at which point it became contiguous with the survey line. A quarter of a mile east of the west line of Section 5, the fence was about 2 feet south of the surveyed line. In going on east down the hill the survey line was followed but at the base of the hill the corner was 6 feet south. The conclusion of Norris is that the new fence is "pretty much" on the east and west line of the Relf surveyed line.
It is evident that the Relf survey does not coincide with the survey of Brown based on the government corners which he found. The reason for the difference is not too important under the circumstances of this case. The evidence shows that S. W. Cunningham caused the Relf survey to be made about 1913 for the purpose of determining the line on which to build the original line fence. He built the fence on the line so established and the parties have treated it as the south quarter line in Sections 4 and 5 since and until the present litigation arose. S. W. Cunningham kept this fence in repair until 1950, after which it was allowed to deteriorate.
There is evidence in the record regarding the location of a well on Section 5 and its distance from the original fence. Plaintiffs and others testify that the well was about 35 feet north of the original fence line. The evidence shows that it is now about 90 feet north of the new fence built on the line of the old one. There is evidence by a former owner that he moved this well 15 or 20 feet north in order to obtain an adequate supply of water. While this evidence does not account for the difference of 40 feet in the estimated distance, it raises a question of credibility which the trial court was in the better position to determine.
The Burton land was owned by Richard Majerus from 1950 to 1959. He found the original fence along the south boundary. Majerus sold the land to Joseph Strecker in 1959. Strecker established the original south fence as a boundary at the time of his purchase. He did not repair the fence during his ownership of the land nor was it moved up to the time he sold the land to Burton. Burton rebuilt the fence in the winter of 1964-1965 on the line or a little north of the line of the old fence.
The Stice land was bottom land lying between the Missouri River as it was located after 1938 and its old riverbed. It was inaccessible except by boat for many years and until the old riverbed filled in. *924 He claims beyond the line of the old fence, much of which was washed out in the flood of 1952. Stice began clearing the land after his purchase of it and built a new fence south of the line of the Relf survey as retraced by Norris.
Plaintiffs testify that the fence began at the south quarter corner in the west line of Section 5 and went straight east to the Missouri River, which line was 35 feet south of the well previously described. The evidence shows that S. W. Cunningham caused Relf to survey his north line for the very purpose of determining where to build his north line fence. He built his fence on that line and for more than 50 years it was generally considered as the boundary between the lands of plaintiffs and defendants. The evidence of old fencing on the line of the Relf survey sustains a finding that the new fence was substantially on the line of the Relf survey. There is evidence of occupancy and use of the lands by the parties to the old fence, although the evidence of physical use is fragmentary due to the nature of the land. But it seems important in a consideration of the case that plaintiffs' father, S. W. Cunningham, caused the Relf survey to be made, that he built and maintained a fence thereon for many years, and that all parties to the litigation considered the Relf survey line to be the boundary line except the plaintiffs who claim under the original government survey. With the establishment of the Relf survey line and the evidence of the building of the original and new fences on that line, it appears conclusive to us that it has become the boundary line between the plaintiffs' lands and those of the defendants.
In a case very similar on its facts, this court said: "Where one, by mistake as to the boundary line, constructs upon and takes possession of land of another, claiming it as his own to a definite and certain boundary by an actual, open, exclusive, and continuous possession thereof under such claim for 10 years or more, he acquires title thereto by adverse possession." Converse v. Kenyon, 178 Neb. 151, 132 N.W.2d 334. See, also, Mentzer v. Dolen, 178 Neb. 42, 131 N.W.2d 671; Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331.
The sufficiency of the possession in an action of this kind depends upon the character of the land and the use that can reasonably be made of it. The possession is sufficient if the land is used continuously for the purpose to which it is adapted because of its nature and character. The acts of dominion over land of the title owner, to be effective against him, must be so open, exclusive, and continuous as to put an ordinarily prudent person on notice that his lands are in the adverse possession of another. Converse v. Kenyon, supra. The evidence in this case shows that the possession was continuous and for the purpose for which adapted for a period in excess of 10 years. This meets the requirements as to proof in such cases. Mentzer v. Dolen, supra.
The defendants Stice have crossappealed. These defendants contend that they obtained title to lands south of the Relf survey line in Section 4 by adverse possession prior to 1938, after which year the land became inaccessible because of the change in the riverbed of the Missouri River. The evidence does not adequately show the adverse possession of the lands south of the Relf survey line extended east to permit the tacking of their alleged adverse possession to that of these defendants. It is quite evident that the former owners claimed only to the boundary line fixed by the Relf survey and the evidence does not show a hostile possession of lands south of that line.
The trial court having come to these same conclusions, the judgment of the district court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579234/ | 51 S.W.3d 168 (2001)
Denise DAVIS, Appellant,
v.
The MISSOURI GAMING COMPANY d/b/a Argosy Riverside Casino, Respondent.
No. WD 58768.
Missouri Court of Appeals, Western District.
May 15, 2001.
Motion for Rehearing and/or Transfer Denied July 3, 2001.
Application for Transfer Denied August 21, 2001.
*170 Bruce C. Jackson, Jr., Kansas City, for appellant.
Robert W. Tormohlen, Kansas City, for respondent.
Before JOSEPH M. ELLIS, Presiding Judge, HAROLD L. LOWENSTEIN, and PATRICIA BRECKENRIDGE, Judges.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 3, 2001.
ELLIS, Presiding Judge.
Denise Davis appeals the trial court's grant of summary judgment to the Missouri Gaming Company d/b/a Argosy Riverside Casino (Argosy Casino). Davis was employed by the Argosy Casino in June 1994, as a pit manager[1] aboard its gaming casino, the Argosy IV Riverboat (Argosy IV). On June 20, 1996, while participating in a United States Coast Guard fire drill on board the Argosy IV, Davis was injured when an automatic water-tight door began to close. As Davis was walking through the doorway, a metal floor piece in the doorway flipped up creating a hole in the floor into which she fell.[2] Davis suffered several abrasions on her shin as well as injuries to her left foot, left leg, left knee, and her nervous system.
In September 1996, Davis filed a claim with the Missouri Division of Workers' Compensation. Argosy Casino filed a response to Davis' claim for workers' compensation arguing that the Merchant Marine Act, 46 U.S.C. § 688 (Supp.2000) ("the Jones Act"), preempted any workers' compensation claim. Immediately following her injury, Argosy IV filed an accident report with the Coast Guard[3] and began paying Davis $15.00 per day in "maintenance" during the period of her total disability in accordance with provisions of the Jones Act. In addition to maintenance, Davis received supplemental pay from Argosy Casino, which was available pursuant to a special program established by Argosy Casino for its Jones Act employees injured in the course of their employment.[4]
*171 On January 15, 1998, Davis filed an action against Argosy Casino pursuant to the Jones Act and general maritime law seeking damages for personal injury, past and future disability, past and future loss of income, and past and future pain and suffering. On January 20, 1999, Argosy Casino filed a Motion for Summary Judgment, arguing that Davis' claim under the Jones Act was improper and the only remedy available to her was through Workers' Compensation Law. The trial court denied Argosy Casino's motion on March 25, 1999. On November 8, 1999, Davis filed a Motion for Partial Summary Judgment arguing she was entitled to judgment as a matter of law on the issue of Jones Act jurisdiction and the classification of the Argosy IV as a Jones Act "vessel". On May 22, 2000, the trial court entered a Judgment denying Davis' Motion for Partial Summary Judgment, and, upon reconsideration, granting Argosy's original Motion for Summary Judgment. In its judgment, the court found that the Jones Act did not apply and Davis' exclusive remedy was under the Missouri Workers' Compensation Law. Davis appeals this determination.
Our review of an appeal from a summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will review the record in the light most favorable to the party against whom summary judgment was entered and take the facts set forth in the movant's motion as true unless they are contradicted by the non-movant's response to the summary judgment motion. Id. Summary judgment is proper when the movant can establish that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Id. at 377. "[A] `genuine issue' exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. at 382. However, summary judgment is "`an extreme and drastic remedy and great care should be exercised in utilizing the procedure.'" Id. at 377 (quoting Cooper v. Finke, 376 S.W.2d 225, 229 (Mo.1964)).
Davis presents three points on appeal, all of which essentially claim that the trial court erred in granting summary judgment because genuine issues of material fact exist regarding the status of the Argosy IV as a vessel in navigation on the date Davis was injured. She argues in those three points that an issue of Jones Act jurisdiction was created when: (1) Argosy Casino initially treated her claim as a Jones Act claim and denied Workers' Compensation, (2) at the time of her injuries, the Argosy IV was a fully operational riverboat floating on the Missouri River, and (3) her injuries occurred during a Coast Guard drill, and her injuries were caused by equipment used specifically on vessels in navigation.
The Jones Act is a federal remedy originally constructed to award seamen damages for bodily injury caused by the negligence of any officers, agents, or employees of the carrier. Wiora v. Harrah's Illinois Corp., 68 F. Supp. 2d 988, 995-96 (N.D.Ill. 1999); See also, McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 342, 111 S. Ct. 807, 810, 112 L. Ed. 2d 866 (1991). The Jones Act provides in pertinent part as follows: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by *172 jury...." 46 U.S.C. § 688(a). In accordance with the plain language of the statute, in order to qualify for Jones Act jurisdiction, a person must be (1) a seaman, (2) who was injured, (3) in the course of her employment. This Court previously determined that in order "[t]o be covered by the Jones Act, a claimant must prove that she was injured `in the course of her employment' as a `member of a crew of any vessel.'" Greer v. Continental Gaming Co., 5 S.W.3d 559, 560 (Mo.App. W.D.1999)(quoting 33 U.S.C. § 902(3)(G)). "The test for seaman status under the Jones Act is whether the claimant has an employment-related connection to a vessel in navigation." Id. at 562 (emphasis in original); See also, McDermott, 498 U.S. at 355, 111 S.Ct. at 817 ("The key to seaman status is employment-related connection to a vessel in navigation."); Johnson v. Continental Grain Co., 58 F.3d 1232, 1235-36 (8th Cir.1995). The critical issue before this court on appeal is whether the Argosy IV was a "vessel in navigation" in 1996 when Davis was injured.
The United States Supreme Court found in Chandris, Inc. v. Latsis, 515 U.S. 347, 373, 115 S. Ct. 2172, 2192, 132 L. Ed. 2d 314 (1995), that "whether a vessel is or is not `in navigation' for Jones Act purposes is a fact-intensive question that is normally for the jury and not the court to decide." "Removing the issue from the jury's consideration is only appropriate where the facts and the law will reasonably support only one conclusion...." Id.; See also, Greer, 5 S.W.3d at 562 ("the issue of whether a vessel is in navigation is a question that can be withdrawn from jury consideration only when the facts and the law reasonably support only one conclusion." (citing Chandris, 515 U.S. at 373, 115 S.Ct. at 2192.)). The Jones Act provides an expansive remedy for seamen, and the policy behind that remedy mandates that even marginal claims are properly left for a jury's determination. Tonnesen v. Yonkers Contracting Co., Inc., 82 F.3d 30, 33 (2nd Cir.1996).
The facts and circumstances specific to the Argosy IV are as follows. In 1994, the Argosy IV was built in Mobile, Alabama, as a fully functioning riverboat. After being certified by the United States Coast Guard in September 1994, the Argosy IV sailed up the Mississippi and Missouri Rivers from Mobile, Alabama, to Riverside, Missouri, under its own power and with its own crew. From September 1994 through July 1995, the Argosy IV carried crew and passengers on the Missouri River, when not proscribed by weather or river conditions, making twelve cruises per day. The Missouri Gaming Commission gave the Argosy IV approval and permission to stop cruising the Missouri River on gaming excursions on July 12, 1995.
In January 1996, the Argosy IV was placed in a man-made lagoon adjacent to the Missouri River. Argosy Casino attempted to maintain a seven-foot deep channel from the lagoon to the Missouri River to allow tugboats to enter or the Argosy IV to leave the lagoon.[5] Because of the channel connecting the lagoon to the Missouri River, the Argosy IV was floating on water from the Missouri River, and it was subject to the rise and fall of the River levels. While in the lagoon, the Argosy IV was connected to a barge by *173 using six one-inch steel mooring cables.[6] The barge holds a tower that supports a passenger ramp between the land and the barge, and another passenger ramp from the tower to the casino. The Argosy IV was also connected to several land-based utilities consisting of telephone lines, sewer lines, waterlines, and four electrical shore power plugs.[7] On April 12, 1996, the Missouri Gaming Commission entered a final order authorizing the Argosy IV to be operated as a "continuously docked excursion gambling boat...." But the order did not prohibit the Argosy IV from cruising.[8]
In order to maintain its Coast Guard certification, the Argosy IV was required to maintain a marine crew, life saving and safety materials, comply with Coast Guard regulations, and remain subject to quarterly Coast Guard inspections. The boat was in the process of being inspected when Davis was injured. At the inspection on June 20, 1996, the Argosy IV was manned and maintained by a full-time marine crew, consisting of a senior captain, captains, engineers, mates and deckhands. The Argosy IV was equipped with three main propulsion engines driving "Z" drive units and one paddle wheel, two bow thrusters, three ship service generators, an emergency diesel generator, 1,800 life preservers, 6 ring buoys and two rescue boats. During the inspection, the Coast Guard conducted operational tests on power units, fire and bilge pumps, bilge alarms, water-tight doors, steering, radar, VHF radio, fathometer, fire screen doors, propulsion plant, ship's service generator, emergency lighting, whistle/bell, navigation lights and the fire/smoke detection system.
On May 11, 1998, some two years after Davis was injured, Argosy Casino notified the United States Coast Guard of its intent to surrender its Certificate of Inspection for the Argosy IV and requested that the Coast Guard approve the mooring arrangement of the Argosy IV. On May 29, 1998, the Coast Guard notified Argosy Casino that it determined that the Argosy IV was permanently moored as defined by Coast Guard policy. As part of the permanent mooring process, a Coast Guard inspection was conducted in August 1998. When inspected on that date, the required crew aboard the Argosy IV consisted of one master, one licensed mate, one chief engineer, one engineer technician, six deck hands and six deck/security personnel. At the time of this inspection, the Argosy IV was equipped with 1,800 life preservers, six ring buoys and two rescue boats. In November 1998, the Argosy IV was decertified by the Coast Guard for the first time since it was built in September 1994.
Respondent argues that the Argosy IV was merely a work platform, not a vessel for Jones Act purposes. Alternatively, it argues that because the Argosy IV was moored to a barge and was no longer cruising the Missouri River at the *174 time of Davis' injury, it was withdrawn from navigation. We must first address the argument that the Argosy IV is not a vessel, but a work platform. The Fifth Circuit, in Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir.1995), outlined some common characteristics of work platforms (the Bernard/Gremillion work-platform attributes): (1) the structure was constructed to be used primarily as a work platform, (2) the structure was moored or otherwise secured at the time of the accident, and (3) although the structure was capable of movement, any transportation function performed by the structure was merely incidental to its primary purpose of serving as a work platform. Id. at 569.[9] "The greater the structure's resemblance to conventional seafaring craft, the greater the odds of securing vessel status." Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir.1990). In light of the bias favoring traditional craft, courts "look to whether a given structure maintains or possesses (1) navigational aids, (2) lifeboats and other life-saving equipment, (3) a raked bow, (4) bilge pumps, (5) crew quarters, and (6) registration with the Coast Guard as a vessel." Id. We will also consider the intention of the owner to move the structure on a regular basis and the length of time that the structure has remained stationary. Id.
The Argosy IV was not constructed primarily as a work platform. Instead, the Argosy IV was designed to cruise the Missouri River, in fact, it made twelve cruises per day, weather permitting. While the Argosy IV was moored to a barge, there is no indication in the record how long the Argosy IV had been moored to the barge prior to Davis' injuries. The Argosy IV was designed to transport passengers up and down the Missouri River, thus, we cannot say that the transportation function of the structure was merely incidental to its primary purpose. Moreover, the Argosy IV resembled a conventional seafaring craft with its navigational aids, life-saving equipment, bilge pumps, and Coast Guard registration and license.
Respondent argues that after the Argosy IV was moored, Argosy Casino had no intention of removing the riverboat from the manmade lagoon. Thomas Paschall, the Senior Chief Engineer of the Argosy IV, stated in his deposition that "Argosy has no plans to remove the riverboat from the manmade lagoon and it is moored in such lagoon indefinitely."
We note first that Argosy Casino's intention to permanently moor the Argosy IV is not determinative of whether Argosy IV remains a vessel in navigation. But assuming arguendo that it did, Argosy Casino's evidence of intent is contradicted by its actions. Argosy Casino treated Davis' claim as a Jones Act claim from the moment she was injured by paying her maintenance and supplemental pay created for Jones Act employees; Argosy Casino maintained a full marine crew and Coast Guard certification until November 1998; Argosy Casino did not request "permanently moored" status from the Coast *175 Guard until May 1998, approximately two years after Davis' injury; and Argosy Casino continued to dredge the channel from the Missouri River to the lagoon to a depth sufficient to allow the Argosy IV to leave the lagoon or other vessels to enter the lagoon. All of these facts create an issue as to the Argosy Casino's intention or belief that the Argosy IV was permanently moored at the time of Davis' injury.
Examples of casinos determined to be work platforms instead of vessels include the Shreveport Rose, a riverboat casino equipped with a pilothouse and a radar unit, but no galley or crew quarters, which was towed to Shreveport, Louisiana, and immediately moored in a coffer cell on the Red River. McAdow v. Promus Cos., Inc., 926 F. Supp. 93, 94 (W.D.La.1996). The Shreveport Rose never transported passengers or cargo across navigable waters, nor was it intended for such use, and a crane barge was needed to lift the gate of the coffer cell in order to move the casino. Id. at 95-96.
The Lady of the Isle, a riverboat casino equipped with navigational equipment, radar, bilge pumps, a propulsion system, ballasts tanks, lifeboats, independent utilities, fire detection and PA systems, sailed up the Red River and into a containment pond in Bossier City, Louisiana, where it remained. Chase v. Louisiana Riverboat Gaming, P'ship, 709 So. 2d 904, 906-07 (La.App. 2nd Cir.1998). After being placed in the containment pond, a steel wall was set in place, reinforced by four steel buttresses and twenty-five tons of rock, which sealed the pond off from the Red River and protected the casino from the rise and fall of the Red River. Id. at 906. The casino was moored to shore and attached to an entrance ramp on one end and a land-based edifice on the other. Id. The Second Circuit Court of Appeals of Louisiana determined that the Lady of the Isle was removed from navigation and was a work platform after emphasizing the following characteristics of the craft: its sole purpose was to operate a gaming establishment; it was specifically built for casino operations; it was enclosed in a containment pond; it was insulated from the changes in the River; it would take extensive work to remove the casino from its containment pond; and it had never been used to transport cargo or passengers across navigable waters. Id. at 910.
And finally, the Grand Casinos, a shore-side casino constructed partially out of navigable barges, was determined to be a work platform in spite of the fact that it had been towed previously over navigable waters and towed again to avoid damage by Hurricane Andrew in 1992. King v. Grand Casinos of Mississippi, Inc.-Gulfport, 697 So. 2d 439, 440 (Miss.1997). The King Court relied on Ketzel v. Mississippi Riverboat Amusement, Ltd., 867 F. Supp. 1260 (S.D.Miss.1994), for the proposition that:
The mere fact that a structure is floating or "capable of movement across navigable waters" does not grant "vessel" statutes (sic). (citations omitted). A structure, by virtue of its flotation, is therefore not exposed to the hazards of the sea sufficient to grant "seaman" status.... That a floating structure may be moved periodically because of the dangers of inclement weather is not sufficient to convert its status to a vessel.
King, 697 So.2d at 441 (quoting Ketzel, 867 F.Supp. at 1267).
After comparing the facts and circumstances surrounding the Argosy IV with those surrounding other riverboat casinos that were considered work platforms in foreign jurisdictions, we are not convinced that the evidence in the case at hand supports only one conclusion: that the Argosy IV was a work platform. *176 While the Argosy IV is similar to many of the riverboat casinos analyzed in other opinions, there are also substantial differences among the crafts. The Argosy IV transported passengers up and down the Missouri River for approximately a year and a half instead of being immediately moored upon its arrival in Riverside, Missouri. Although the Argosy IV was moored sometime in 1996, it was still subject to the rise and fall of the Missouri River, it would take minimal effort to disconnect the Argosy IV from the shore and begin cruising again, and Argosy Casino continued dredging the canal that connected the lagoon to the main channel of the River in an effort to maintain a passageway for the Argosy IV to leave the lagoon if so desired.
We next turn to Respondent's other argument that the Argosy IV was withdrawn from navigation at the time of Davis' injuries. "The withdrawn-from-navigation idea ... distinguish[es] craft (sic) or structures that meet the general dictionary definition of `vessel' from those that meet Jones Act or general maritime law vessel status at a given time, such as when a craft or structure has been `laid up for the winter.'" Pavone, 52 F.3d at 569 (citing Desper v. Starved Rock Ferry Co., 342 U.S. 187, 191, 72 S. Ct. 216, 218, 96 L. Ed. 205 (1952) (quoting Hawn v. American S.S. Co., 107 F.2d 999, 1000 (2nd Cir. 1939))). If a craft or structure has been withdrawn from navigation, it usually relinquishes its vessel status under the Jones Act. Id. "In general, the term `vessel in navigation' is a broad term that encompasses many vessels that do not literally navigate the high seas." Kathriner v. UNISEA, Inc., 975 F.2d 657, 659 (9th Cir. 1992). "Generally, floating structures are not classified as vessels in navigation if they are incapable of independent movement over water, are permanently moored to land, have no transportation function of any kind, and have no ability to navigate." Id. at 660. But, the fact that the riverboat casino was not actually cruising at the very moment an injury occurs does not take the case out of the Jones Act jurisdiction. Greer, 5 S.W.3d at 563. "`[A] vessel does not cease to be a vessel when [it] is not voyaging, but is at anchor, berthed, or at dockside' ... even when the vessel is undergoing repairs." Chandris, 515 U.S. at 373-74, 115 S.Ct. at 2192 (internal quotations and citations omitted). "`[A] vessel is in navigation, although moored to a dock, if it remains in readiness for another voyage.'" 515 U.S. at 374, 115 S.Ct. at 2192 (quoting 2 M. Norris, Law of Seamen § 30.13, p. 364 (4th ed.1985)).
In Greer, this Court determined that a riverboat casino that was moored to a dock for four months was a vessel "in navigation" for Jones Act purposes. 5 S.W.3d at 564. The facts and circumstances surrounding the riverboat casino involved in Greer are as follows:
During the four months that the riverboat casino was not cruising, its moorings were changed from nylon rope to large steel cables, and extra rope lines were added. The vessel was moved closer to the docking barge and a 135-foot long shear barge was placed diagonally at the casino's bow to fend off any danger of ice on the river. A catwalk was installed on which the sewer, water and electric lines were remounted because they no longer had to be repeatedly disconnected for cruising. Electric heat lines were installed in an attempt to keep the sewer and water lines from freezing. It would have taken approximately one-half of a day to move the riverboat from its moorings, as compared to 10 minutes prior to that time.
*177 * * *
[T]he riverboat had been in navigation before it was docked due to weather conditions. It had been built as a river vessel, commissioned, inspected and licensed as a river vessel and had sailed the Missouri River with a captain, crew and passengers. However, it was not cruising during the four-month period in the winter, but was scheduled to recommence when the water level of the river was raised.... Once that water condition was remedied, the vessel did return to cruising the Missouri River. The vessel was directly on the river as opposed to being a "moor boat."
During the period that the riverboat casino was not sailing the ship, it maintained a crew consisting of a captain, an engineer, two deckhands and two security officers ... which met the Coast Guard licensing requirements. The crew continued to undergo mandated training for maritime disasters.... The gaming customers were considered passengers.... During the period that the boat was moored to the dock, there was no change in the safety equipment included on the vessel, which was required to be on board by the licensing agencies. Furthermore, during that period, the riverboat casino continued to be a commissioned vessel, licensed by the U.S. Coast Guard and the Missouri Gaming Commission. It was never decommissioned. In fact, the Gaming Commission gave the riverboat casino permission to moor the vessel to the dock.
Id. at 561-62, 563.
There are numerous similarities between the riverboat casino in Greer and the Argosy IV. They both were built as river vessels and cruised the Missouri River carrying passengers. Both maintained their Coast Guard licensing, safety equipment, and crew while moored. Both riverboats were given permission by the Missouri Gaming Commission to moor to the shore and both did so. Both boats hooked up to land based utilities and continued entertaining passengers after being moored. We note that there are some differences between the riverboat casino in Greer and the Argosy IV, namely that the riverboat in Greer began cruising the Missouri River again after being moored for four months, while the Argosy IV was moored for five months and then did not cruise again. But we note that Argosy Casino did not apply for permanent mooring status until 1998, two years after Davis' accident. Moreover, the Gaming Commission order did not preclude Argosy IV from cruising but rather merely authorized it to conduct its gambling operations while the boat was continuously docked. While there are some differences between the two cases, when we consider the state of both ships at the time the accidents in the respective injuries occurred, their situations were very similar.
Respondent relies heavily upon the United States Supreme Court's decision in Chandris, and the Fifth Circuit's decision in Pavone, to support its contentions that the Argosy IV was withdrawn from navigation. In Pavone, the United States Court of Appeals for the Fifth Circuit determined that the Biloxi Bell was both removed from navigation and was a work platform at the time in question. 52 F.3d at 570. The Court found that when the facts surrounding the Biloxi Belle were "compared to the functional and nautical characteristics and mooring statuses of the various craft that in earlier cases were held as a matter of law to be nonvessels for Jones Act purposes, there can be little doubt that indefinitely moored, shore-side, floating casinos, such as the BILOXI BELL, must be added to that list." Id. The Court in Pavone recognized that the *178 "vessel in navigation" inquiry was a fact specific inquiry and it qualified its finding by comparing the nautical and functional characteristics of the Biloxi Belle to those of previous cases and by inserting the phrase, "such as the Biloxi Belle" into its finding. Id. Accordingly, Pavone can and should be distinguished on its facts when compared to the case at hand. The Biloxi Belle, like the Argosy IV, possessed bilge pumps, was moored to shore, was connected to numerous land-based utilities, could be disconnected from land with minimal effort, and was authorized to travel on United States waterways. Id. at 564. But, unlike the Argosy IV, the Biloxi Belle had no engine, no captain, no navigational aids, no crewquarters, no lifesaving equipment, no working steering mechanism, and it was not constructed to be, nor has it ever been, used as a seagoing vessel to transport passengers, cargo or equipment across navigable waters. Id. The Biloxi Belle had a pilot house, ring buoys, and a motorized paddle wheel, all for purely visual effects,[10] and in order to move, it had to be towed because it could not move about on its own. Id. at 563-64. Moreover, all the workers on the Biloxi Belle were employed solely in connection with the casino operation. Id. at 564-65.
We are not the first court to distinguish Pavone on its facts. In Wiora v. Harrah's Illinois Corp., 68 F. Supp. 2d 988 (N.D.Ill. 1999), the Court found numerous similarities between the Biloxi Belle and the M/V Northern Star, the riverboat casino at issue in Wiora, but, because the M/V Northern Star traveled to Illinois on its own power, and had an engine, a captain, lifesaving equipment, crew quarters and full-time marine operations department employees, the Court found that the only reasonable conclusion was that the M/V Northern Star did qualify as a vessel in navigation. Id. at 992-93. Based on this information, it appears as if the Argosy IV is more akin to the M/V Northern Star than to the Biloxi Belle.
Chandris involved a vessel that was placed in dry-dock for a six-month refurbishment. 515 U.S. at 351, 115 S.Ct. at 2181. Generally, the question before the Supreme Court in Chandris was whether the modifications made to the vessel were extensive enough to remove the vessel from navigation, for Jones Act purposes, as a matter of law. 515 U.S. at 374-75, 115 S.Ct. at 2193. In its opinion, the Court made a distinction between vessels which are undergoing minor repairs and those which are having major overhauls or renovations, finding that vessels undergoing major overhauls or renovations are not in navigation, while vessels undergoing repairs or spending relatively short periods of time in dry-dock are still considered "in navigation." Id. While Chandris is not factually similar to the case at hand because the Argosy IV was not undergoing any repairs while it was moored, the Court in Chandris found that the issue of whether the vessel remained "in navigation" while in dry-dock should have been submitted to the jury. 515 U.S. at 376, 115 S.Ct. at 2193.
We agree with the United States Supreme Court that the issue of whether the Argosy IV remained in navigation was an issue that should have been submitted to the jury. See, Id. Because a jury could reasonably conclude that the Argosy IV was a "vessel in navigation," Davis has raised disputed issues of material fact that preclude summary judgment. The issue of whether a vessel is in navigation is a very *179 fact-specific analysis, and in light of the unique fact situation surrounding the Argosy IV, we cannot follow the determinations made by other jurisdictions, that were confronted with different fact patterns, and declare that the Argosy IV was not a "vessel in navigation" as a matter of law. We find that there are two plausible and contradictory accounts of the essential facts surrounding the Argosy IV's status as a "vessel in navigation"; thus, the trial court erred in granting summary judgment and taking away from the jury the issue of whether the Argosy IV was a "vessel in navigation" and subject to Jones Act jurisdiction.
The trial court's grant of summary judgment is reversed and the cause is remanded for proceedings consistent with this opinion.
All concur.
NOTES
[1] A pit manager oversees the game tables. In addition to overseeing the game tables, Davis was responsible for crowd control during emergency drills.
[2] The hole in the floor was the same length as the opening of the doorway, approximately four or five feet long, it was approximately six to eight inches wide and eighteen inches deep.
[3] The accident report was titled, "Report of Marine Accident, Injury or Death."
[4] The supplemental pay was a fully discretionary program adopted by Argosy Casino in order to supplement the maintenance payment received by Jones Act employees. The amount of supplemental pay varied on a sliding scale: for up to three months after the injury, the supplement together with the maintenance would total 67% of that employee's gross salary; every three months, the percentage of gross salary decreased until it bottomed out at 40% of gross income after twelve months.
[5] The Argosy IV has not been removed from its manmade lagoon, nor has it sailed down the Missouri River since January 1996. If the channel remained seven feet deep at all times, it was possible to move the Argosy IV from the lagoon to the Missouri River, however, if the depth of the water was less than seven feet, the boat could not be moved out of the lagoon.
[6] The record is unclear as to when the Argosy IV was first moored to the barge; however, the deposition of Thomas Paschall, chief engineer of the Argosy IV, revealed that in June 1996, when Davis suffered her injury, it would take approximately thirty minutes to disconnect the Argosy IV from the steel mooring cables.
[7] The deposition of Paschall revealed that in June 1996, it would have taken seconds to disconnect the Argosy IV from the telephone lines, approximately fifteen to twenty minutes to disconnect the land-based electrical power, approximately five to ten minutes to disconnect the land-based sewer and water connections.
[8] The exact words used by the Missouri Gaming Commission were in pertinent part as follows: "IT IS ORDERED that `Missouri Gaming Company shall be authorized to operate a continuously docked excursion gambling boat under authority of its previously issued licenses and permits....'"
[9] While the Fifth Circuit takes an almost historical approach in analyzing whether a structure is a work platform by looking at the original purpose for which the structure was constructed, the Court expanded the definition in Ducrepont v. Baton Rouge Marine Enters., Inc., 877 F.2d 393 (5th Cir.1989), by recognizing that a structure could be a work-platform even if it was not originally constructed to be a work-platform, as long as it was primarily used as a work platform at the time in question and met the other work-platform factors. The Second Circuit found the first factor of the test to be the present purpose of the floating structure instead of its original purpose. See Tonnesen v. Yonkers Contracting Co., Inc., 82 F.3d 30, 36 (1996).
[10] The paddle wheel rested permanently above the water level and served no propulsion function. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579237/ | 51 S.W.3d 904 (2001)
CRAWFORD COUNTY CONCERNED CITIZENS, Appellant,
v.
MISSOURI DEPARTMENT OF NATURAL RESOURCES and David Schorr, Respondents.
No. WD 58558.
Missouri Court of Appeals, Western District.
August 7, 2001.
*905 Ronald E. Jenkins, Kenneth L. Coyne, St. Louis, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Timothy P. Duggan, Assistant Atty. Gen., Jefferson City, for Respondents.
Before EDWIN H. SMITH, P.J., and SMART and HOWARD, JJ.
EDWIN H. SMITH, P.J.
Crawford County Concerned Citizens, a Missouri not-for-profit corporation in good standing, appeals the judgment of the circuit court upholding the issuance of a permit by the Missouri Department of Natural Resources (the Department), pursuant to § 260.205,[1] to Prairie Valley Disposal, Inc. (Prairie Valley), a Missouri corporation in good standing, and Swinger Trucking, Inc. (Swinger),[2] authorizing the construction of a solid waste disposal area, the Prairie Valley Landfill (the landfill), in Crawford County, Missouri.[3] Although the appellant's first amended petition for declaratory judgment and injunctive relief did not attack the issuance of the permit, the circuit court, in its judgment, found that: "[t]his case involves judicial review of the issuance of a landfill construction permit by the Department of Natural Resources," and treated it as a non-contested administrative proceeding, under *906 § 536.150, RSMo 2000. There is no dispute on appeal as to the trial court's treatment of the case.
The appellant raises two points on appeal. In Point I, it claims that the circuit court erred in upholding the Department's decision to issue the construction permit for the landfill because the court incorrectly declared and applied the law. In Point II, it claims that the circuit court erred in upholding the Department's decision to issue the construction permit for the landfill because the court's decision was not supported by substantial and competent evidence, and was against the weight of the evidence.
We dismiss for failure to comply with Rule 84.04.[4]
Facts
On July 31, 1997, Prairie Valley, as an operator, and Swinger, as an owner, applied to the Department for a permit to construct the landfill on land located approximately three miles north of Interstate 44, along State Highway 19, in Crawford County, Missouri. Prior to submitting its application, Prairie Valley and Swinger, pursuant to § 260.205 and 10 CSR 80-2.015, applied for and received from the Division of Geology and Land Survey (DGLS) of the Department: (1) preliminary approval of the landfill site in late 1995 or early 1996; and (2) approval in February 1997 of their "detailed site investigation and characterization report."[5] In reviewing and ultimately approving the applicant's report, the DGLS applied state regulations, which did not go into effect until July 30, 1997.
On August 1, 1997, the appellant, a Missouri not-for-profit corporation, comprised of residents of Crawford County, some of whom resided next to the landfill site, and "existing for the dedicated purpose of promoting, preserving and protecting the environment" in and around Crawford County, filed a petition in the circuit court of Cole County for declaratory judgment and injunctive relief against the Department and its acting director, David Schorr. The appellant claimed that, in approving the applicants' detailed site investigation and characterization report in February 1997, the Department applied state regulations which were not in effect at the time. It asked the court for a declaration as to the validity and application of the state regulations and also asked it to enjoin the Department from reviewing the applicants' application for a construction permit.
On September 4, 1997, the respondents filed a motion and suggestions in support *907 thereof to dismiss the appellant's petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. On January 6, 1998, the appellant filed its suggestions in opposition to the respondents' motion to dismiss.
On October 16, 1998, after receiving written public comments and conducting a public hearing on the subject of the construction of the landfill, the Department approved the applicants' application and issued Construction Permit No. 105502 to Swinger.[6] Thereafter, on May 5, 1999, the appellant filed its first amended petition for declaratory judgment and injunctive relief. Despite the fact that the construction permit had already been issued, the appellant, for some unexplained reason, did not request the trial court to review the issuance of the permit, but rather sought:
a declaration regarding the validity and application of 10 C.S.R. 80 et seq. and challenging the actions of [the Department] and David Schorr ... with respect to the proposed [landfill], in granting preliminary site approval, approving the ... Detailed Site Investigation, and in allowing [Prairie Valley] to prepare and submit a construction permit application for the proposed [landfill], in violation of the applicable statutes, rules, regulations, and accepted scientific principles existing for the permitting of a site as a solid waste disposal area.
And, even though the construction permit had already been issued, the appellant also sought to enjoin the Department from issuing it. Despite this apparent confusion in the appellant's pleadings, the case was heard on September 2 and 3, and was treated as one for judicial review, pursuant to § 536.150, RSMo 2000, of the Department's issuance of the construction permit.
At trial, both parties presented expert testimony as to the suitability of the site for the landfill. After hearing evidence, the trial court took the case under advisement, giving the parties an opportunity to submit post-trial briefs. On November 30, 1999, the trial court entered its judgment "dismissing" the appellant's petition. On December 29, 1999, the appellant filed a motion to modify and/or amend the trial court's judgment, which the court denied on March 27, 2000.
This appeal follows.
I.
In Point I, the appellant claims that "[t]he circuit court erred in upholding [the Department's] decision to issue a permit to applicant because the circuit court incorrectly declared and applied the law by applying state regulations that were not in effect." Because the appellant's point relied on and its argument thereon do not sufficiently comply with Rule 84.04, setting forth the briefing requirements on appeal, the appellant's claim of error in this point is not properly preserved for our review.
Rule 84.04(d)(1) provides:
Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant's claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
*908 The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."
Thus, the rule requires that each point relied on:
(1) identify the trial court's ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant's claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo.App.2000) (citation omitted). The purpose of the rule is "to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review." Id.
While the appellant in its point relied on does identify the ruling it is challenging and in general terms the legal reasons for the claim of reversible error, it fails to sufficiently "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error," as required by Rule 84.04(d)(1)(C). Thus, it is nothing more than an abstract statement of law, which fails to satisfy the requirements of the rule as to a proper point relied on. Rule 84.04(d)(4). A point relied on which does not state why the legal reasons support the claim of reversible error, but instead sets out an abstract statement of law, is deficient and preserves nothing for appeal. Rule 84.04(d)(4); Jennewein v. Puricelli, 988 S.W.2d 643, 644 (Mo.App.1999) (citation omitted).
It is well-settled that:
[c]ompliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made. Deficient points relied on force the appellate court to search the argument portion of the brief or the record itself to determine and clarify the appellant's assertions, thereby wasting judicial resources, and, worse yet, creating the danger that the appellate court will interpret the appellant's contention differently than the appellant intended or [its] opponent understood.
Myrick v. E. Broad., Inc., 970 S.W.2d 885, 886 (Mo.App.1998) (citations omitted). It is not our duty to scour the record on appeal in order to ascertain the appellant's claim of error. Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 545 (Mo.App.1999).
The appellant's argument of its point relied on also violates Rule 84.04(d)(5) in that it cites no legal authorities upon which its argument rests and offers no explanation as to why none were available. Rule 84.04(d)(5) provides, in pertinent part: "[i]mmediately following each `Point Relied On,' the appellant ... shall include a list of cases ... or other authority upon which that party principally relies." Because the appellant cites no authorities and offers no explanation as to why none were available, we consider its point waived or abandoned on appeal. Olson v. Christian County, 952 S.W.2d 736, 741-42 (Mo.App.1997) (citations omitted).
II.
In Point II, the appellant claims that "[t]he circuit court erred in upholding [the Department's] decision to issue a permit to applicant because the circuit court's decision was not supported by substantial evidence and was against the weight of the *909 evidence presented at trial in that [the respondent's] approval of applicant's application was arbitrary and capricious." Like the appellant's first point relied on, Point II also fails to comply with Rule 84.04(d)(1). Although the appellant does identify the ruling it is challenging, and the legal reasons for the claim of reversible error, it again fails to "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error," as required by Rule 84.04(d)(1)(C). Instead, the appellant merely states that the respondent's "approval of applicant's application was arbitrary and capricious," which is nothing more than an abstract statement of the law, which does not comply with Rule 84.04(d) as to a proper point relied on. Rule 84.04(d)(4); Jennewein, 988 S.W.2d at 644.
As discussed, supra, compliance with Rule 84.04 is mandatory in order to ensure that a reviewing court does not become an advocate for a party on appeal by scouring the record for facts which would substantiate a deficient point relied on. Hall, 10 S.W.3d at 544-45. Here, if we attempt to interpret the appellant's point as stated, we will be forced to act as an advocate for it, which we cannot do. Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 218 (Mo.App.1999) (citations omitted). Thus, the appellant's point relied on in Point II preserves nothing for appellate review. Hall, 10 S.W.3d at 544.
Conclusion
The appellant's appeal is dismissed for failure to substantially comply with Rule 84.04. Franklin, 32 S.W.3d at 804.
SMART and HOWARD, JJ., concur.
NOTES
[1] All statutory references are to RSMo Supp. 1995, unless otherwise indicated.
[2] The record does not reflect its corporate status.
[3] Although the record would clearly indicate that the trial court entered a judgment on the merits, after hearing evidence, rather than expressly upholding the Department's issuance of the permit, the court, in finding for the Department, "dismissed" the appellant's petition for declaratory judgment and injunctive relief.
[4] All rule references are to the Missouri Rules of Civil Procedure (2001), unless otherwise indicated.
[5] Section 260.205 of Missouri's Solid Waste Management Law provides, in pertinent part:
1. ... On and after January 1, 1996, it shall be unlawful for any person to construct a solid waste processing facility or solid waste disposal area without first obtaining a construction permit from the department pursuant to this section....
2. On and after January 1, 1996, no person or operator may apply for or obtain a permit to construct a solid waste disposal area unless the person has requested the department to conduct a preliminary site investigation and obtained preliminary approval from the department....
3. On and after January 1, 1996, no person may apply for or obtain a permit to construct a solid waste disposal area unless the person has submitted to the department a plan for conducting a detailed surface and subsurface geologic and hydrologic investigation and has obtained geologic and hydrologic site approval from the department ....
(Emphasis added.) 10 CSR 80-2.015, promulgated by the Department, "describes the steps required to characterize the geologic and hydrologic conditions at a proposed solid waste disposal area prior to submittal of a construction permit application."
[6] Although the application for the construction permit indicated that Prairie Valley was applying as an "operator" and Swinger as an "owner" of the landfill, the letter issued by the Department approving the construction permit stated that the construction permit would be "issued to Swinger Trucking, Inc." The letter did not make any reference to Prairie Valley. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579246/ | 12 So. 3d 415 (2009)
SUCCESSION OF Kathryn LAMBERT.
No. CA 08-1550.
Court of Appeal of Louisiana, Third Circuit.
May 6, 2009.
John Edward Fitz-Gerald, Attorney at Law, Lake Charles, LA, for Appellee, Michael Glenn Lambert.
C.R. Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Appellant, Julie Boudreaux.
Jeffrey Howerton Thomas, Thomas Law Firm, Natchitoches, LA, for Appellee, Jerry Glenn Lambert.
William Alan Pesnell, The Pesnell Law Firm, Shreveport, LA, for Appellee, Jerry Glenn Lambert.
Michael Glenn Lambert, Montalba, TX, In Proper Person.
Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
GREMILLION, Judge.
Julie Lambert Boudreaux, daughter of the deceased Kathryn Lucille Andrews Lambert, appeals the trial court's judgment in favor of her father, Jerry Lambert, finding that Julie was not entitled to receive a 1/4 share of retirement funds upon Jerry's remarriage. For the following reasons, we affirm.
*416 FACTUAL AND PROCEDURAL BACKGROUND
Kathryn died May 1, 1994, leaving behind a Last Will and Testament which provided:
At my death, I leave all of the property I die possessed of to my two children, Julie Ann Boudreaux and Michael Glenn Lambert, in the proportions of an undivided one-half (½) interest to each, subject to the statutory usufruct which I hereby confirm in favor of my husband, Jerry Glenn Lambert, to last until his death or remarriage.
Since her death, litigation concerning Jerry's IRA, which was community property, has been ongoing. A judgment of possession recognized Julie and her brother as naked owners of their mother's one-half interest in the IRA account. Following Jerry's remarriage in 1997, his children demanded their one-half interest in the account. Jerry responded by seeking to have the IRA account removed from the list of community assets. The trial court found that the IRA account was community property and that La.R.S. 9:1426 applied to it to create a continuing usufruct in favor of Jerry.
In an unpublished opinion rendered in November 2007, we affirmed the finding of the trial court that the IRA account was community property, but remanded the case for a determination of whether the IRA was in pay status at the time of Kathryn's death.[1] We stated, "the legal usufruct created by La.R.S. 9:1426 would unquestionably exist if a recurring payment was being made from the Main Stay IRA at the time of Kathryn's death." Following a hearing in April 2008, the trial court found that the IRA was in a pay status prior to Kathryn's death and that the legal usufruct provided by La.R.S. 9:1426 applied to the IRA and "to all funds and proceeds from that account."
Julie now appeals and asserts as error the trial court's failure to address the applicability of La.R.S. 9:1426 to "lump sum payments" or "mandatory withdrawals" as required by federal law.
DISCUSSION
Appellate review of a question of law is simply a decision as to whether the trial court's decision is legally correct or incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So. 2d 699. If the trial court's decision was based on its erroneous application of law, its decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So. 2d 1067 (La.1983). When an appellate court finds that a reversible error of law was made in the lower court, it must redetermine the facts de novo from the entire record and render a judgment on the merits. Lasha v. Olin Corp., 625 So. 2d 1002 (La.1993).
Louisiana Revised Statute 9:1426 discusses a surviving spouse's usufruct of a retirement plan (emphasis added):
A.(1) If a recurring payment is being made from a public or private pension or retirement plan, an annuity policy or plan, an individual retirement account, a Keogh plan, a simplified employee plan, or any other similar retirement plan, to one partner or to both partners of a marriage, and the payment constitutes community property, and one spouse dies, the surviving spouse shall enjoy a legal usufruct over any portion of the continuing recurring payment which was the deceased spouse's share of their *417 community property, provided the source of the benefit is due to payments made by or on behalf of the survivor.
(2) This usufruct shall exist despite any provision to the contrary contained in a testament of the deceased spouse.
B. The usufruct granted by this Section shall be treated as a legal usufruct and is not an impingement upon the legitime and a naked owner shall not have a right to demand security.
The issues in this case are whether La. R.S. 9:1426 applies to a "lump sum periodic payment" or to a "mandatory withdrawal" as required by federal law.[2] Julie argues that the usufruct attaches to "the periodic payments but not to the principle." Julie goes on to state:
There is nothing in this statutory provision which allows [Jerry] to withdraw either voluntarily or by any mandatory provision of federal tax law without having to pay over to [Julie] her 25% share of the principle of the retirement funds.
It is respectfully submitted that the judgment of the trial court be modified to require [Jerry] to pay over to [Julie] 25% of the principle of any periodic or mandatory withdrawals from retirement funds required by federal law.
This issue appears to be res novo in Louisiana law and one that is not addressed by La.R.S. 9:1426. However, in examining the purpose behind La.R.S. 9:1426, we find that the legislature intended to protect the surviving spouse's usufruct of community retirement funds until his death in priority over the claims of naked ownership of the heirs' portion of the funds. The article does not distinguish between types of payments, only calling them "recurring payments." It does not distinguish between recurring payments comprised of principle versus interest, or a combination of both, although we note that the usufruct applies to any portion of the continuing "recurring payments." The overall policy of protecting a surviving spouse's ability to provide for himself during retirement appears to outweigh the heirs' right to the community portion. Spaht and Moreno, 16 La.Civ. L. Treatise, Matrimonial Regimes § 3.44 (3 ed.) recently addressed some of the issues surrounding IRA accounts in relation to La.R.S. 9:1426 (emphasis added) (footnotes omitted):[3]
A narrow Louisiana statute adopted in 1990 protects the covered spouse who is collecting IRA or other pension benefits when the other spouse dies. It was originally added to the Louisiana Civil Code as Article 890, redesignated as La. Civ.Code art. 890.1 and provided that the covered spouse will continue to receive the cash flow coming from the IRA until death even if the heirs of the deceased spouse might have claims to part of the asset under community property principles. In 1997, Article 890.1 was redesignated as La.R.S. 9:1426.
R.S. 9:1426 applies to "a public or private pension or retirement plan, an annuity policy or plan, an individual retirement account, a Keogh plan, simplified employee plan, or any other similar retirement plan." If a spouse dies while the surviving spouse is receiving "a recurring payment" from the plan, the survivor enjoys a legal usufruct over the continuing recurring payment which was the deceased spouse's share of their *418 community if the source of the benefit is traced to payments made by or on behalf of the survivor. The usufruct is mandatory and applies even if a testament provides otherwise.
Although R.S. 9:1426 calls this a "legal usufruct," it is not provided that the usufruct terminates upon remarriage, as Civil Code Article 890 provides with respect to the regular legal usufruct of the surviving spouse. As a legal usufruct, it would be free of the normal requirements of security, but R.S. 9:1426 goes further and so specifies in the third paragraph. It also provides that such a usufruct is not an impingement on the legitime of forced heirs.
The basic policy behind R.S. 9:1426 protecting the rights of the living spouse to a retirement benefit at the expense of the heirs of the deceased spouse would seem to apply also in the case of a death of the other spouse before regular distributions are begun. However, R.S. 9:1426 strictly construed seems to apply if the "recurring payment is being made... and one spouse dies." As suggested in the next section, the underlying policy seems broader, and the provision might well be construed to apply more broadly by analogy.
Since the right of the living spouse is a usufruct of money that would otherwise go to the heirs, the usufructuary has the right to spend those funds. In so doing, the usufructuary incurs the obligation to compensate the naked owners for those sums at the termination of the usufruct, which would normally be upon the death of the usufructuary.
Spaht and Moreno go on to discuss the case where recurring payments have not yet begun when the spouse dies. In addressing the issue of principle versus interest and forcing a surviving spouse to distribute a "lump sum" amount to the naked owners upon the death of a spouse, these authors note the unresolved complexities created by the statute, but suggest that public policy in favor of the surviving spouse outweighs the naked owners' rights (emphasis added):
This apparent conclusion under the general law and R.S. 9:1426 is obviously a messy, complicated one. For example, the continuing IRA payment could be partly return of principal and partly investment income. The latter would presumably be a fruit owned by the usufructuary and the former would have to be accounted for to the naked owners at the termination of the usufruct over the recurring benefit.
In any event, the IRA fund could well be considered as any other community asset in the absence of special rules, and there appear to be no special state law rules to govern the situation other than Article 890 by its terms and R.S. 9:1426 by analogy. Perhaps the trust law might be invoked, with the result that the heir's interest is not in the underlying IRA assets but in the beneficial rights under the trust. And, like life insurance ownership by the non-covered spouse, it is a right that is virtually worthless. Also, it could be a disastrous tax situation if a state court in such a situation would order half the account paid to the heirs. This would probably be a distribution of the IRA subject to taxation and penalty, to be paid by the initial contracting spouse.
Despite its complexity, however, this approach does balance the rights of the parties so as to give substantial protection to the surviving spouse's interests and does fulfill the policy of providing retirement income to spouses no longer able to work, rather than benefitting what would normally be the next generation.
*419 ....
It would diminish [the surviving spouse's] interests to give half of [his IRA fund] up to the heirs of the deceased. Even under state policies, where a statutory usufruct would allow the survivor to enjoy the benefits of the fund until death or remarriage, there is a similar policy which may militate against recognition of the heirs' claims.
Id.
Spaht & Moreno suggest that the public policy in favor of the surviving spouse is so strong, that a fortiori, La.R.S. 9:1426 would probably apply even if recurring payments had not yet begun. Thus, any mandatory federal withdrawals are "recurring payments" within the meaning of the statute. The law provides us with nothing to restrict a broad reading of La. R.S. 9:1426. Accordingly, we find that federally mandated withdrawals fall within its ambit. Accordingly, we affirm the trial court's finding that any mandatory federal withdrawals of principle and/or interest are "recurring payments" subject to Jerry's usufruct.
The situation of voluntary lump sum withdrawals presents a more difficult issue. Although it is clear that the policy is to protect the retirement funds of the surviving spouse, one can envision a situation in which the surviving spouse withdraws a large portion of the funds pursuant to his legal usufruct and disposes of all of the money leaving nothing to reimburse the naked owner at his death. However, there is no present issue regarding lump sum withdrawals and this court does not issue advisory opinions. Accordingly, we leave this issue for another day.
CONCLUSION
The judgment of the trial court finding that Jerry's IRA account was in pay status, and that his usufruct applies to recurring payments from his IRA account, is affirmed. Additionally, we find that federally mandated withdrawals are "recurring payments" within the meaning of La.R.S. 9:1426. All costs of this appeal are assessed against Julie Lambert Boudreaux.
AFFIRMED.
PETERS, J., dissents and assigns written reasons.
PETERS, J., dissenting.
I respectfully disagree with the majority both in its determination that any future federally-mandated withdrawal of principal or interest is subject to Jerry Lambert's usufruct and in its conclusion that the issue of voluntary lump-sum withdrawals from the retirement plan is not now before us. I would hold that the usufruct mandated by La.R.S. 9:1426 applies only to recurring payments being made at the time Kathryn Lambert died, not to future federally-mandated increased or additional withdrawals of principal or interest nor to voluntary lump-sum withdrawals by Mr. Lambert.
The salient facts in this case were set forth in this court's prior unpublished opinion, Succession of Kathryn Andrews Lambert, 07-630, pp. 1-2 (La.App. 3 Cir. 11/7/07):
Jerry and Kathryn Lambert were married and had two children, Julie and Michael. During the marriage, Jerry worked at Texaco and accumulated a substantial retirement pension. There is no dispute that the pension was a community asset. In June of 1989, Jerry and Kathryn elected to receive a lump sum payment of $320,851.76 from the pension in lieu of an annuity. This money was rolled over into an IRA with Main Stay mutual funds. The record is devoid of any evidence as to the pay status of the IRA at that time. In 1992, *420 Kathryn executed a last will and testament, leaving all her property to Julie and Michael, subject to a usufruct in favor of Jerry until his death or remarriage. Kathryn died in May of 1994. At the time of Kathryn's death, the IRA had a value of $560,229.11.
After her death, but prior to the opening of Kathryn's succession, Jerry rolled the Main Stay funds over to yet another IRA, run by Edward D. Jones. When the succession of Kathryn Lambert was opened in April of 1995, the detailed descriptive list included the account as community property. A subsequent judgment of possession recognized Julie and Michael as naked owners of Kathryn's one-half interest in the account, subject to the usufruct defined by Kathryn's will.
Jerry remarried in 1997, prompting Julie and Michael to demand their mother's one-half interest in the account. Jerry responded by seeking to re-open the succession and have the IRA removed from the list of community assets. After much legal wrangling, the trial court ultimately decided that the IRA was derived from community funds and was, therefore, a community asset to be included in the succession. However, he found that La.R.S. 9:1426 applied, creating a legal usufruct in favor of Jerry to run until his death, despite the terms of Kathryn's will. From this decision, all parties appeal.
In the prior decision, this court affirmed the trial court's decision in part, but held that there was insufficient evidence in the record to determine whether recurring payments were being received from the Main Stay IRA during Mrs. Lambert's life and remanded the case, instructing the trial court to supplement the record on that narrow issue. In doing so, this court noted that "the legal usufruct created by La.R.S. 9:1426 would unquestionably exist if a recurring payment was being made from the Main Stay IRA at the time of Kathryn's [Mrs. Lambert's] death." Id. at p. 4 (emphasis added).
On remand, the trial court factually concluded that at the time of Mrs. Lambert's death, the Main Stay IRA was making distributions of $3,497.06 per month and, thus, was "in pay status." Based on this conclusion, it entered a judgment that "the legal usufruct of La.R.S. 9:1426 attaches to all funds and proceeds from that account [the Main Stay IRA]." The trial court's factual finding that the IRA was "in pay status" at Mrs. Lambert's death is not the issue before us. Instead, we are called upon to determine the extent, if any, that Mr. Lambert's usufruct applies to future additional or increased distributions that are mandated by federal rules, as well as any attempt by Mr. Lambert to receive lump-sum payments of either the principal or accumulated interest. The trial court's judgment applies the usufruct to both. The majority agrees with the trial court on the first issue, but declines to address the second.
The majority finds that any future distributions caused by federally-mandated withdrawal rules would be subject to the usufruct established by La.R.S. 9:1426. In reaching this conclusion, the majority relies solely on the discussion of La.R.S. 9:1426 in Spaht and Moreno, 16 La.Civ.L.Treatise, Matrimonial Regimes § 3.44 (3 ed.).
I do not find that this authority stands for the proposition espoused by the majority. At best, it recognizes that the specific language of the statute does not address all the situations involving pension plans that may arise at the death of a spouse. While acknowledging that the basic policy behind La.R.S. 9:1426 is "protecting the rights of the living spouse to a retirement *421 benefit at the expense of the heirs of the deceased spouse," the authors attempt to expand its application based on suggestions that "the underlying policy seems broader, and the provision might well be construed to apply more broadly by analogy." Id. (emphasis added). The conclusion of the authors is not, as the majority suggests, that La.R.S. 9:1426 is applicable to all situations of pension distribution, but that the approach suggested by the authors would fulfill an unstated legislative policy. In fact, the authors even suggest that La.R.S. 9:1426 "would seem to apply also in the case of a death of the other spouse before regular distributions are begun." Id. (emphasis added).
In interpreting a statute, we must start with the mandate that "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La.Civ.Code art. 9 (emphasis added). Louisiana Revised Statutes 9:1426 is clear and unambiguous and its strict application will lead to no absurd consequences. The usufruct provided to the surviving spouse is triggered by a recurring payment that is already being made at the time of the other spouse's death, and the usufruct over the amount being paid at that time is maintained as a legal usufruct. This language satisfies the basic policy behind the statute that the retirement benefit being enjoyed by the surviving spouse at the time of the death of the other spouse is protected at the expense of the heirs. As I read the statute, the legislature obviously concluded that this specific language was sufficient to protect the surviving spouse. That is to say, if a couple is receiving a retirement benefit that is sufficient for their needs, one can assume that it will be sufficient for the survivor's needs. To extend the usufruct to any increases, mandated or otherwise, or any lump sum withdrawals would defeat the ownership rights of the legal heirs. The authors of the Treatise, and in following their logic, the majority in this matter, attempt to substitute their own policy conclusions for the clear letter of the law.
Given the clear language of the statute, I would not extend Mr. Lambert's usufruct to any distributions over and above the monthly amount being paid at the time of Mrs. Lambert's death. At the same time, I would address Ms. Boudreaux's argument that the trial court erred in not holding that Mr. Lambert's usufruct does not extend to any lump sum payments, and would rule in her favor for the reasons previously stated. The majority declines to address this issue, finding that "there is no present issue regarding lump sum withdrawals." However, the trial court's judgment is not limited to recurring payments; it attaches the usufruct to "all funds and proceeds" from the Main Stay IRA, which would include any lump-sum withdrawals from that account. If this court refuses to address that issue, then in the future the issue of lump-sum withdrawals would be res judicata. Thus, a decision from this court addressing the issue of lump-sum withdrawals is not an advisory opinion.
Accordingly, I would reverse the trial court's judgment in part and amend it to hold that the legal usufruct of La.R.S. 9:1426 attaches only to the recurring payments of $3,497.06 per month that were being made at the time of Kathryn Lambert's death.
NOTES
[1] Succession of Kathryn Andrews Lambert, 07-630 (La.App. 3 Cir. 11/07/2007) (an unpublished opinion).
[2] In order to avoid tax liabilities, federal law requires minimum mandatory distributions from a traditional IRA after the age of 70½.
[3] We note that throughout the discussion in the article La.R.S. 9:1426 is mistakenly referred to as La.R.S. 9:1246. We have taken the liberty to correct the typographical error throughout the quoted material. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581011/ | 33 Wis.2d 324 (1967)
FARWELL, Respondent,
v.
FARWELL, Appellant.
Supreme Court of Wisconsin.
November 30, 1966.
January 3, 1967.
*326 For the appellant there were briefs and oral argument by Robert Dewa of Madison.
For the respondent there was a brief by Lawton & Cates, and oral argument by George E. Aumock, all of Madison.
HANLEY, J.
Two issues are raised on this appeal. They are:
1. Is the plaintiff wife a fit and proper person to have custody of the minor children of the parties?
*327 2. Did the trial court abuse its discretion by awarding $500 per month for the support of the minor children?
A preliminary question is raised by plaintiff Roberta Farwell who, relying on Auto Acceptance & Loan Corp. v. Taus (1965), 28 Wis. (2d) 496, 137 N. W. (2d) 452, challenges the right of defendant Gail Farwell to relief on this appeal as plaintiff contends defendant failed to move for a review of the judgment pursuant to sec. 269.46 (3), Stats.
In cases involving jury trials a party is precluded on appeal from raising as a matter of right an alleged error of the trial court which has not been raised in the trial court. Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380.
In the recent case of Fringer v. Venema (1965), 26 Wis. (2d) 366, 132 N. W. (2d) 565, 133 N. W. (2d) 809, this court left open the question of whether the same rule was applicable to trials before the court.
The Auto Acceptance & Loan Corp. Case, supra, is distinguishable on its facts. There appellant pursuant to sec. 269.46 (3), Stats., did move for review of the judgment but did not raise any issue with respect to interest. The court held this precluded appellant from raising the issue for the first time on appeal. In the case at bar the defendant did not bring a motion to review, and all issues would be appealable as a matter of right. Also, the questions raised in this case involved alleged abuse of discretion; and review pursuant to sec. 269.46 (3) would serve no purpose.
We conclude that in this case defendant-appellant was not required to bring a motion for review as a prerequisite to this appeal.
1. Custody.
The trial court has wide discretion in determining custody matters, and its decision will not be upset unless there is evidence of a clear abuse of discretion. Wendland *328 v. Wendland (1965), 29 Wis. (2d) 145, 138 N. W. (2d) 185; Belisle v. Belisle (1965), 27 Wis. (2d) 317, 321, 134 N. W. (2d) 491.
In Heffernan v. Heffernan (1965), 27 Wis. (2d) 307, 314, 134 N. W. (2d) 439, this court stated reasons for the heavy reliance on trial court findings as follows:
". . . The trial court had as guides, imperfect as they may be, the appearance and demeanor of the witnesses in response to questions, the nature, reasonableness and probability of the testimony, their attitude and demeanor toward the court, officers of the court, the other party and witnesses, and other incidents and observations that tend to lend or detract credibility and weight in determining the truth of the matter."
Defendant-appellant Gail Farwell contends the trial court abused its discretion when it awarded Roberta Farwell custody of their two children. The contention is based on the allegation that Roberta Farwell is an unfit mother.
The defendant-appellant argues that outside activities take so much of her time that she is unable to spend the proper amount of time with her children and that late hours, often past midnight, are a factor to be considered. Apparently the trial court did not give much weight to this argument in view of the fact the testimony disclosed the keeping of late hours occurred when Roberta Farwell was actively engaged in a national political campaign.
Other testimony relied upon by the defendant-appellant was that of Mr. and Mrs. Robert Bourne. Mrs. Bourne, a professional guidance counselor, testified that there was a general disorderliness to the Farwell home. She described the disorderliness as decaying garbage, cat excrement, and dirty clothes. She also testified the baby had a diaper rash and the children had bad eating habits.
Mr. Bourne, also a guidance expert, testified that Roberta Farwell's permissiveness was detrimental to the normal growth of the children. There is some further *329 testimony in the record with reference to Roberta Farwell's emotional makeup. The witness concluded that she exhibited "a neurotic evasion of growth."
The record discloses that Mr. and Mrs. Bourne were colleagues of Gail Farwell, Mr. Bourne having received his Ph.D. under Gail Farwell.
In regard to Roberta Farwell's fitness, several experts testified that in their opinion she was a fit person to have custody of her children. Cynthia Hettinger, a Dane county caseworker, testified that there was no evidence of neglect and there was evidence of a conscientious concern about her children. Mrs. Michie, a neighbor, testified that Roberta Farwell is a concerned mother, that she fed her children properly, disciplined them, gave them love, and concluded that she was a competent, fit and normal mother. Dr. Leigh Roberts, a psychiatrist, testified that on the basis of limited observation and discussion he found Mrs. Farwell mentally and emotionally stable. Father Robert Shaw testified that both Gail and Roberta were fit parents. The evidence submitted by Gail Farwell is not of the type or amount necessary to support a finding that Roberta Farwell is unfit to have the custody of the children. This court in Larson v. Larson (1966), 30 Wis. (2d) 291, 299, 140 N. W. (2d) 230, said:
"The finding of unfitness of a parent to have custody of his or her child, especially a young mother, is drastic and severe and should be supported by substantial evidence. . . ."
Also, in Belisle v. Belisle, supra, this court said at page 322:
". . . other things being equal, preference will ordinarily be given to the mother if she is not unfit. . . ."
The words "fit" and "proper" in most cases have been interpreted as meaning moral fitness. Seelandt v. Seelandt (1964), 24 Wis. (2d) 73, 81, 128 N. W. (2d) 66. *330 Defendant-appellant attempts to use Seelandt, supra, in support of his contention of unfitness. In that case the mother was held to be unfit because she was emotionally unstable. Also, the facts in that case established clearly that the mother was highly neurotic and that her behavior had a very undesirable effect on her daughter. There was also evidence in that case of frigidity and hostility in the mother-daughter relationship. These are not the facts in the instant case.
The trial court's finding that Roberta Farwell is a competent and fit person to have custody of the minor children is not against the great weight and clear preponderance of the evidence.
2. Child Support.
As in custody, awarding child support payments is a discretionary matter. Hansen v. Hansen (1951), 259 Wis. 485, 49 N. W. (2d) 434.
Again, the court's decision will not be disturbed unless against the great weight and clear preponderance of the evidence. Bliffert v. Bliffert (1961), 14 Wis. (2d) 316, 111 N. W. (2d) 188.
Despite the fact that these matters are discretionary, the trial court must keep in mind that alimony and child support are two different categories of support.
Alimony is a substitute for marital support, providing for the maintenance of the wife. See 24 Am. Jur. (2d), Divorce and Separation, p. 640, sec. 514.
Alimony cannot be awarded to the wife in the guise of child support. See Brenger v. Brenger (1910), 142 Wis. 26, 32, 125 N. W. 109.
In Weihert v. Weihert (1953), 265 Wis. 438, 61 N. W. (2d) 890, the trial court made a full and final property division in lieu of all alimony and then included a sum for the wife's sustenance in an award of $150 per month for child support. This court reversed, stating:
*331 "Apparently, however, the court attempted to establish a difference between alimony and support money for the wife, and, recognizing that the maintenance of a home and her presence there were necessary to properly care for the children, attempted to provide for her support and maintenance in the award of support money rather than by way of alimony. This it cannot do.
"As stated in 17 Am. Jur., Divorce and Separation, pp. 405, 406, sec. 496:
"`Alimony, which signifies literally nourishment or sustenance, is the allowance which a husband may be compelled to pay to his wife for her maintenance when she is living apart from him or has been divorcedan allowance for support and maintenance. . . . A monthly allowance ordered by a decree of divorce to be paid by the husband to the wife for the support of herself and minor child is none the less alimony because of the imposition on the wife of the duty to support the child.'"
In the instant action, the trial court indicated in its memorandum decision, in its findings of fact, and in its judgment, that the property settlement was to be "a full, final and complete division of the property and estate of the said parties and in lieu of all alimony, . . ." The judgment then made an award of $500 per month "for the support and maintenance of the minor children of the parties." In so doing, the trial court adopted the figure submitted by the respondent as a combination of her own personal expenses and living expenses, as revealed by the only testimony in the record pertaining to this award. (Emphasis supplied.)
Exhibit No. 1, the itemized list of living expenses, demonstrates that the award for support is excessive and that it includes expenditures which comprised Roberta Farwell's own personal expenses. This is the situation found in Weihert, supra, which resulted in a reversal of the trial court's order. We believe the trial court's award of $500 per month for the support and maintenance of the children is excessive. We conclude that $350 per month is a reasonable figure for the support of the two *332 minor children under the present circumstances. In future years when the circumstances change, it will be possible for Roberta Farwell to petition the trial court for any necessary adjustment pursuant to sec. 247.25, Stats.
By the Court.That part of the judgment fixing the amount of support for the minor children is modified by reducing the support payments to $350 per month, and the judgment as so modified is affirmed.
WILKIE, J. (dissenting in part).
I would affirm. The trial court did not abuse its discretion in setting child support at $500 per month. The defendant receives a salary of $16,000 on a nine-month basis. He has been employed during the summer and other income brings his yearly total to $20,000. To disturb the trial court's decision and set child support at $4,200 annually instead of $6,000 may well force the plaintiff to seek permanent employment. A mother's direct care of her children is a precious asset; driving her to employment will seriously undermine her ability to give her children her full care and will make necessary other costly arrangements for care of the children while she is away. The father has a duty and a capacity to care for the children and can afford to pay $6,000 for the discharge of this responsibility. In its discretion the trial court so decided and I cannot find any abuse of discretion in that decision.
I am authorized to state that Mr. Justice HEFFERNAN joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579250/ | 267 Wis.2d 444 (2003)
2003 WI App 212
671 N.W.2d 361
Christopher J. KELLER and Amy Keller, Plaintiffs-Appellants,
v.
James R. KRAFT and City of Milwaukee, Defendants-Respondents.
No. 02-3377.
Court of Appeals of Wisconsin.
Oral argument August 5, 2003.
Decided September 23, 2003.
*445 On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Brian J. Henderson of Henderson & Levihn of Milwaukee. There was oral argument by Brian J. Henderson.
*446 On behalf of the defendants-respondents, the cause was submitted on the briefs of Grant F. Langley, city attorney by Michael G. Tobin, assistant city attorney of Milwaukee. There was oral argument by Michael G. Tobin.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
¶ 1. WEDEMEYER, P.J.
Christopher J. and Amy Keller appeal from a judgment dismissing their complaint against James R. Kraft and the City of Milwaukee. The Kellers contend that their claim falls into the third exception within the worker's compensation statute, WIS. STAT. § 102.03(2) (2001-02),[1] thus permitting recovery for injuries suffered as a result of an automobile accident between co-employees. They assert the trial court erred in concluding that their claim was barred by the exclusive remedy provisions of the worker's compensation law. Because the facts of this case trigger the third co-employee exception within § 102.03(2), the trial court erred in ruling that the Kellers' complaint was barred by the exclusive remedy provisions of the worker's compensation law. We reverse and remand for further proceedings.
I. BACKGROUND
¶ 2. On August 31, 2000, Christopher Keller was driving his personal automobile while on duty as a firefighter with the Milwaukee Fire Department. Keller was en route to a grocery store to purchase supplies for a meal at the firehouse. At the same time, Kraft, who was on duty as a Milwaukee Police officer, was driving a Milwaukee Police Department vehicle. At or near the *447 intersection of West Wells Street and James Lovell Street, the two vehicles collided, allegedly as the result of Kraft's negligence. Keller's vehicle was totaled and he suffered personal injuries as a result of the accident. It is undisputed that Keller received worker's compensation benefits from the City of Milwaukee.
¶ 3. On June 7, 2002, the Kellers filed a summons and complaint against Kraft and the City to seek compensation for personal injuries. Kraft and the City filed an answer alleging, among other things, that the worker's compensation law was the exclusive remedy for any injuries resulting from this accident. Kraft and the City filed a motion for summary judgment on that basis. The trial court granted the motion and dismissed the complaint. The Kellers now appeal.
II. DISCUSSION
[1-3]
¶ 4. The issue in this case involves the interpretation of the worker's compensation statute and the third exception provided within Wis. STAT. § 102.03(2), relating to suits between co-employees. Accordingly, our review is de novo. See Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 26, 251 Wis. 2d 171, 641 N.W.2d 158. In interpreting statutes, our goal is to ascertain the intent of the legislature, and "[t]he first step in any statutory analysis is to look at the language of the statute." Hutson v. State of Wis. Personnel Comm'n, 2003 WI 97, ¶ 49, 263 Wis. 2d 612, 665 N.W.2d 212 (citation omitted). The court must give effect to the plain, ordinary and accepted meaning of that language. Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶ 22, 241 Wis. 2d 605, 623 N.W.2d 94. In order to ascertain legislative intent, we may also examine "the scope, history, context, subject matter, and object of the *448 statute." Garibay v. Circuit Court, 2002 WI App 164, ¶ 6, 256 Wis. 2d 438, 647 N.W.2d 455.
¶ 5. The language of the statutes at issue in this case provides:
Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the worker's compensation insurance carrier. This section does not limit the right of an employee to bring action against any coemployee for an assault intended to cause bodily harm, or against a coemployee for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance.
WIS. STAT. § 102.03(2) (emphasis added). In applying the plain language of the statute, we conclude that the statute is unambiguous. The dispute centers on the emphasized language, which we refer to as the third co-employee exception to the exclusive remedy provisions of the worker's compensation law.
¶ 6. It is the Kellers' contention that the third exception removes this claim from the general rule that an employee who receives worker's compensation is precluded from bringing suit against a co-employee. The Kellers contend that the language is clear: the exclusive remedy does not apply to co-employee suits when a local ordinance provides that the employer will indemnify the co-employee from any judgments. Here, the Kellers point out that a local ordinance exists, which will indemnify Kraft for any liability he incurs as a result of any personal injury arising from this case. The ordinance specifically provides:
*449 3-23. Liability When Sued in Official Capacity. No officer of any city, no matter how organized, shall be required to file an undertaking, or any other bond required on appeal in any court when such party has been sued in his official capacity, except in actions of quo warranto or any other kind of action involving directly the title to his office, nor shall any city officer be liable for any costs or damages, but cost or damages, if any, shall be awarded against the city.
Section 3-23 of the Milwaukee City Charter. The Kellers contend that this ordinance will indemnify Kraft against any judgment and, therefore, the third exception for co-employees under the worker's compensation statute applies, permitting their suit.
¶ 7. Kraft and the City argue that the exception does not apply, and that the suit is barred by the exclusive remedy provisions of the worker's compensation law. They contend that the local ordinance was enacted solely to reflect the public employee indemnification requirement of WIS. STAT. § 895.46.[2] They argue that the ordinance does not operate to waive the worker's compensation exclusive remedy provision, and that the purpose of the ordinance is to protect City of *450 Milwaukee officers from lawsuits, not to encourage fellow employees to sue each other. The trial court agreed with the defendants that the Kellers' lawsuit was barred by the exclusive remedy provisions of the worker's compensation law.
¶ 8. Our review demonstrates that the trial court erred in reaching such a conclusion. In reaching that holding, we review the history of the worker's compensation law and the exception involved in this matter. See State v. Peters, 2003 WI 88, ¶ 34, 263 Wis. 2d 475, 664 N.W.2d 171 (Abrahamson, C.J., concurring) (noting that even when statutory language is clear, we may engage in "a comprehensive view toward discerning legislative intent.")
¶ 9. Prior to 1978, Wis. STAT. § 102.03(2) did not preclude suits against co-employees. Rather, the section only precluded employees from suing their employer or worker's compensation carrier: "Where such conditions exist the right to the recovery of compensation pursuant to this chapter shall be the exclusive remedy against the employer and the worker's compensation insurance carrier." On January 1, 1978, the statute was amended to read as it appears todaybarring suits between co-employees unless one of the three exceptions applies.
¶ 10. Before the enactment of the 1978 statute, there was substantial discussion concerning the co-employee exception amendment. The Worker's Compensation Advisory Council addressed the amendment repeatedly.[3] The minutes from the council's November 1, 1976 meeting provide in pertinent part:
*451 John Lawton appeared as attorney for AFSCME in opposition to the proposed co-employe exemption from suit. He stated that as far as the union he represented was concerned they had lobbied hard and had obtained through legislation and agreement provisions under which the employing governmental unit would pay any judgment recovered against an employe operating in the scope of his employment. He stated the feeling of the union that to amend the law so that one employe could not sue another would amount to an unfair labor practice.
¶ 11. The council minutes from the December 13, 1976 meeting state:
Discussion was held on the proposed co-employe exclusion. Mr. Grenell inquired about the possibility of drafting a provision that would limit the co-employe liability but permit recovery against a fellow employe in the event that there were auto or other insurance.
¶ 12. The January 12, 1977 council minutes indicate:
Gordon Gronnert, Risk Manager for the State of Wisconsin, made a presentation concerning co-employe exemptions and coverage of employes under current insurance policies. Written copies of this statement were distributed to members of the Advisory Council along with copies of the typical co-employe exemptions in liability policies. Mr. Gronnert stated his position in favor of an amendment that would restrict the right to sue fellow employes. He stated that the Legislative Council had endorsed a proposed amendment to Wisconsin *452 Statutes s. 895.46 to eliminate liability on the part of state and other employers for payment of judgments on tort claims where the suit was between fellow employes of the same employer and worker's compensation benefits were payable.
¶ 13. An explanation of a proposed Worker's Compensation Advisory Council bill notes:
A proposed amendment also permits suits against a co-employe where there is liability of a governmental unit to pay judgments against employes under the provisions of Wisconsin Statutes 895.46 or under collective bargaining agreement or ordinance. Public employe unions felt strongly that in many cases they had earned the right to have the judgments paid under collective bargaining agreements and should not be deprived of the benefit of their bargain. The Worker's Compensation Advisory Council was also aware of the fact that the Legislative Council has introduced a bill which would eliminate the liability of the government unit to pay judgments against a co-employe where the person suing was entitled to benefits under the Worker's Compensation Act. The Worker's Compensation Advisory Council felt that this was a policy matter for determination by the Legislature with which it should not interfere.
¶ 14. Finally, of pivotal importance was a proposed amendment to Wis. STAT. § 895.46(1), 1977 A.B. 378, which would have eliminated the indemnification requirement when worker's compensation benefits have been received:
The state or political subdivision shall not be required to pay the judgment against the officer or employe if the acts complained of were committed against a coemploye and the state or political subdivision is liable for benefits to the coemploye under ch. 102. *453 Significantly, this proposed bill failed passage and never became law.
[4]
¶ 15. Tracking the history of the amendment and issues related to it is helpful in ascertaining the meaning of the third co-employee exception to the exclusive remedy provisions of the worker's compensation law. Having reviewed the plain language, together with the aforementioned documents, we conclude that the third exception at issue here is unambiguous. An employee who receives worker's compensation benefits may also file suit against a co-employee when a governmental unit is obligated to pay judgments against that employee pursuant to a collective bargaining agreement or a local ordinance.
¶ 16. This was an exception subject to a substantial amount of discussion, including indications from employees who wanted to retain the benefit of what had been bargained for in collective bargaining agreements. Union employees believed that taking away the right to sue a co-employee who causes injury would amount to an unfair labor practice.
[5] ¶ 17. The City suggests that interpreting the statute in this way would be inconsistent with the theory of the worker's compensation act, which assures a smaller but more certain recovery than what might be available in a tort action. We are not convinced. The legislature determined that individuals injured by co-employees in certain circumstances should not be limited to worker's compensation benefits. We are bound to apply the plain language of the statute enacted by the legislature.
*454 [6]
¶ 18. As applied to this case, the Kellers are correct in asserting that their co-employee claim is not barred by the exclusive remedy provisions of the worker's compensation law. Rather, the facts here fall squarely into the third co-employee exception, which permits a suit against co-employee Kraft because section 3-23 of the Milwaukee City Charter is an ordinance providing for payment of any judgment against Kraft. Accordingly, the trial court erred in dismissing the Kellers' summons and complaint. We reverse the judgment and remand for further proceedings.
By the Court.Judgment reversed and cause remanded.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] WISCONSIN STAT. § 895.46 provides, in part:
State and political subdivisions thereof to pay judgments taken against officers. (1) (a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be covered by this section while acting within the scope of their agency.
[3] The Worker's Compensation Advisory Council consists of five representative of labor, five of industry, and three nonvoting representatives of insurance carriers and a representative from the Department of Workforce Development. The council also has liaison representatives from the medical community. In 1976, the council began deliberations related to revisions of the worker's compensation law. It met on 19 separate occasions and considered more than 70 proposals for changes in the pre-1978 statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579265/ | 671 N.W.2d 591 (2003)
STATE of Minnesota, Respondent,
v.
Archie B. BLOOFLAT, Appellant.
No. C0-02-2095.
Court of Appeals of Minnesota.
November 18, 2003.
*592 Mike Hatch, Attorney General, St. Paul, and Joseph Sylvan Mayers, Sauk Rapids, for respondent.
Jeffrey Stephen Sheridan, Eagan, for appellant.
Considered and decided by TOUSSAINT, Chief Judge; KLAPHAKE, Judge and HALBROOKS, Judge.
OPINION
TOUSSAINT, Chief Judge.
On appeal from his convictions of driving after cancellation and aggravated driving under the influence (DWI), appellant-defendant *593 argues that imposing mandatory consecutive sentences for a crime and its lesser-included offense is unconstitutional because it creates sentences of more than one year without the right to a twelve-person jury trial. After reviewing the statutes at issue, we hold that driving after cancellation is not a lesser-included offense of aggravated DWI. But because we hold that the statute mandating consecutive sentences exceeding one year for gross misdemeanors violates Article I, section 6 of the Minnesota Constitution, we reverse and remand.
FACTS
The facts of the present case are not disputed. On April 15, 2000, appellant Archie B. Blooflat was arrested and subsequently charged with five alcohol-related gross misdemeanor driving offenses, including aggravated driving under the influence under Minn.Stat. §§ 169.129, 169.123 (Supp.1999)[1]; driving under the influence under Minn.Stat. § 169.121 (Supp.1999); and gross misdemeanor driving after cancellation under Minn.Stat. § 171.24, subd. 5 (Supp.1999). At the time of arrest, Blooflat's driving record indicated that he had already been convicted of similar alcohol-related driving offenses on five previous occasions.
At trial, the district court informed Blooflat that, because of his prior alcohol-related offenses, he faced consecutive sentences if convicted of aggravated DWI and any other gross misdemeanor for which he was charged. The statute empowering the court to impose the sentences at that time read, in relevant part:
When a court is sentencing an offender for a violation of section ... 169.129 [aggravated DWI] and a violation of [section 171.24 (driving without a valid license) or section 169.121 (driving while intoxicated)], and the offender has five or more prior impaired driving conditions, five or more prior license revocations, or a combination of the two based on separate instances, within the person's lifetime, the court shall sentence the offender to serve consecutive sentences for the offenses, notwithstanding the fact that the offenses arose out of the same course of conduct.
Minn.Stat. § 609.035, subd. 2(g) (Supp. 1999).
Having been charged with violating Minn.Stat. §§ 169.129, 169.121, and 171.24, and having five previous impaired-driving convictions, Blooflat faced mandatory consecutive sentences and the possibility of two years incarceration. He therefore moved for a twelve-person jury. The district court denied the motion, noting that the maximum sentence for each count was one year, and that he was not therefore entitled to a twelve-person jury. A six-person jury, presented both with the arresting officer's testimony and with Blooflat's driving record, subsequently found Blooflat guilty on all five counts.
The district court sentenced Blooflat to one year for aggravated DWI, and a consecutive sentence of one year for driving after cancellation. Blooflat now appeals.
ISSUES
I. Does Minn.Stat. § 609.035, subd. 2(g) (Supp.1999) have an unconstitutional effect by mandating consecutive sentences for two included offenses?
II. Is Minn.Stat. § 609.035, subd. 2(g) (Supp.1999) unconstitutional because *594 it subjects non-felony defendants to felony-like sentences, while only providing six-person juries?
III. Were errors at trial sufficient to warrant reversal of Blooflat's conviction?
ANALYSIS
The constitutionality of a statute presents a question of law that this court reviews de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998), review denied (Minn. Feb. 24, 1999). "In evaluating constitutional challenges, the interpretation of statutes is a question of law." State v. Manning, 532 N.W.2d 244, 247 (Minn.App.1995), review denied (Minn. July 20, 1995). A statute will be presumed constitutional unless the party challenging the statute proves beyond a reasonable doubt that the statute is unconstitutional. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989).
I.
Blooflat challenges Minn.Stat. § 609.035, subd. 2(g) (Supp.1999), arguing that by mandating consecutive sentences for included offenses, the legislature has effectively re-created a sentencing scheme that the Minnesota Supreme Court declared unconstitutional in Baker v. State, 590 N.W.2d 636 (Minn.1999). While we disagree with Blooflat's basic interpretation of Minnesota law, we do find Baker authoritative.
In Baker, the supreme court examined a legislatively-created class of crime known as "enhanced gross misdemeanors," which permitted a court to impose two-year sentences without providing the twelve-member jury required for felonies. 590 N.W.2d at 637. The supreme court struck down the legislation, finding it deprived defendants facing more than one year incarceration in other words, defendants facing a felony sentenceof their constitutional right to a twelve-person jury. Id. at 638.
Blooflat argues that section 609.035 has the same unconstitutional effect as an enhanced gross misdemeanor because it simply "piggy-backs" the sentences of sections 171.24 and 169.129, regardless of the fact that the crimes are "included offenses" and arose out of the same course of conduct. He argues, therefore, that the statute necessarily penalizes him with the same felony-like jail term the supreme court rejected in Baker. See Minn. Const. art I, § 6.
This court has not previously addressed whether Minn.Stat. § 171.24 is, in fact, a lesser-included offense of Minn.Stat. § 169.129. According to statute, in relevant part, an "included offense" may be either a "lesser degree of the same crime," or a "crime necessarily proved if the crime charged were proved." Minn.Stat. § 609.04, subd. (1), (4) (2002).
Blooflat contends that section 171.24, subdivision 5 is a "lesser degree" of section 169.129 because both offenses share the element of driving after an alcohol-related license cancellation. Although these offenses may often be proven with the same facts, Blooflat ignores the historical purpose and scope of the two laws. Historically, driving after cancellation, revocation, or suspension under section 171.24 was a misdemeanor offense, designed to punish those who drove without a valid drivers license. See Minn.Stat. § 171.24 (1941). Early incarnations of the section made no distinction between alcohol-related cancellation and non-alcohol-related revocation or suspension. Id.[2] Aggravated DWI under *595 section 169.129, however, has always been associated solely with alcohol-related driving offenses, and was created to enhance the penalty of driving under the influence. See 1978 Minn. Laws ch. 727, § 9. It is therefore improbable that the legislature intended the crime of driving after cancellation to be a "lesser degree" of aggravated driving under the influence.
Nor can one crime be "necessarily proved" if the other crime were proved. Although both offenses may be partially proven when the defendant is operating a motor vehicle while his license is cancelled, section 171.24 additionally requires that "the person has been given notice of or reasonably should know of the cancellation." Minn.Stat. § 171.24, subd. 5(2) (Supp.1999). Section 169.129, on the other hand, is silent as to notice, but requires that the defendant be under the influence of alcohol while he or she is operating the motor vehicle. Minn.Stat. § 169.129, subd. 1 (Supp.1999). As such, each crime has separate elements that must be proven in order to be convicted, and either can be proven without necessarily proving the other.
Because section 171.24, subdivision 5 is not a "lesser degree" of section 169.129, and is not necessarily proven when section 169.129 is proven, the two offenses are not "included" as defined by statute. We cannot, therefore, agree with Blooflat's assertion that "piggy-backing" consecutive sentences for these offenses, in and of itself, is unconstitutional.
II.
We now turn to the broader question of whether section 609.035 deprives defendants of their constitutional rights by mandating consecutive sentences exceeding one year for a single behavioral incident, without providing the twelve-person jury required for felonies. In considering this question, we are both guided and limited by the same history that led to the supreme court's holding in Baker.
For more than a century, all Minnesota juries consisted of twelve people, even though the constitution was silent on the matter. Baker, 590 N.W.2d at 638. In 1988, however, Minnesota voters adopted a constitutional amendment requiring twelve-person juries "[i]n all prosecutions defined by law as felonies," but only six-person juries in all other criminal prosecutions. Minn. Const. art. I, § 6. The effect of this amendment was notable, because guaranteeing twelve-person juries only in felony cases suddenly gave the definition of felony constitutional significance. Baker, 590 N.W.2d at 638.
The Baker court, after recounting and analyzing the development of felonies in Minnesota, determined that felonies had traditionally been defined as any crime subjecting the accused to more than one year imprisonment. Id. at 639. And with the constitutional implications created by the 1988 amendment, the court held that the legislature could not manipulate this historical definition "in a manner which impinges on an accused's constitutional rights, including the right to a twelve-person jury." Id. at 638. The court therefore concluded that the "enhanced gross misdemeanor" legislation, which reclassified and redefined criminal conduct in a manner allowing two-year sentences for offenses not defined as felonies, could not pass constitutional muster. Id.
Although we recognize that section 609.035 is unlike the statutes in Baker in that it does not reclassify or redefine any of the crimes delineated within it, we find *596 the constitutional ramifications just as serious. By mandating consecutive sentences, the legislature effectively created two-year sentences for a single behavioral incident while continuing to label the crimes gross misdemeanors, so as to deny defendants their constitutional right to a twelve-person jury. This, as Baker notes, is expressly forbidden. Id. at 638.
Further, without a felony classification, we are unable to "graft" a twelve-person jury requirement onto the statute. As the supreme court observed, "voters did not constitutionally guarantee a defendant accused of a crime other than a felony the right to a twelve-person jury." Id. at 640. Were we to uphold the statute by reading such a requirement into it, we would essentially be holding that violating the statute constitutes a felony, "as only individuals accused of felonies have a right to a twelve-person jury." Id. We cannot ignore the legislature's clear language, which labeled the crimes listed in Minn.Stat. § 609.035, subd. 2(g) as gross misdemeanors, simply to uphold the statutes. Id. Thus, while we are mindful of our power to declare a statute unconstitutional "only when absolutely necessary," In re Haggerty, 448 N.W.2d 363, at 364 (Minn.1989), we hold that the legislature overstepped its constitutional authority in enacting Minn. Stat. § 609.035, subd. 2(g). We must therefore reverse Blooflat's sentence, and remand to the district court for re-sentencing.
III.
Although we reverse Blooflat's sentence, there is no basis to reverse his convictions. Blooflat asserts that the state failed to produce sufficient evidence to prove beyond a reasonable doubt (a) that his license status was cancelled as inimical to public safety, as required for conviction under Minn.Stat. § 169.129; and (b) that he had a "prior impaired driving conviction" within five years preceding the incident in the present case, as required for his conviction under Minn.Stat. § 169.121. To the contrary, Blooflat's driving record, in evidence at trial, clearly indicates both his driver's license status and a 1998 conviction for aggravated DWI. Additionally, Blooflat's arresting officer testified that Blooflat's license at the time of his arrest was canceled as inimical to public safety, a term that was later explained to the jury. Viewed in the light most favorable to conviction, a jury could reasonably accept this evidence as truthful, and disbelieve any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). As such, we find no reason to disturb the convictions.
Blooflat also raises several arguments concerning the propriety of the district court's jury instructions. Since he failed to object to the jury instructions at trial, we decline to address his arguments here. State v. Cross, 577 N.W.2d 721, 724 (Minn.1998).
DECISION
Minn.Stat. § 171.24, subd. 5 (Supp. 1999) is not a lesser-included offense of Minn.Stat. § 169.129 (Supp.1999); a defendant may be convicted of both offenses, even if the offenses arose out of the same course of conduct. Nonetheless, we conclude Minn.Stat. § 609.035, subd. 2(g) (Supp.1999) is unconstitutional because, by mandating consecutive sentences, it deprives defendants facing more than one year incarceration of their constitutional right to a twelve-person jury.
Reversed and remanded.
NOTES
[1] All references to statutes refer to the laws in effect at the time of Blooflat's arrest. Chapter 169 was significantly modified in 2000, recodifying all alcohol-related driving offenses to the newly-created Chapter 169A.2000 Minn. Laws ch. 478.
[2] Section 171.24 remained virtually unchanged until a 1993 legislative amendment, which enhanced the crime of driving after cancellation as inimical to public safety to gross misdemeanor status. 1993 Minn. Laws ch. 347, § 16. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579277/ | 267 Wis.2d 467 (2003)
2003 WI App 222
671 N.W.2d 18
STATE of Wisconsin, Plaintiff-Respondent,
v.
John A. JIPSON, Defendant-Appellant.
No. 03-0866-CR.
Court of Appeals of Wisconsin.
Submitted on briefs September 9, 2003.
Decided September 23, 2003.
*469 On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shunette T. Campbell, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1. CANE, C.J.
John Jipson appeals the circuit court's denial of his postconviction motion for plea withdrawal and resentencing. Jipson argues he did not know the State had to prove as an element of seconddegree *470 sexual assault of a child that he had sexual contact for purposes of sexual degradation, humiliation, arousal, or gratification. Accordingly, he claims his plea was not entered knowingly, voluntarily, and intelligently and therefore is entitled to withdraw it. See State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986). We agree and reverse the trial court's order.
BACKGROUND
¶ 2. On July 5, 2001, Jipson was charged with one count of repeated sexual assault of a child, contrary to WIS. STAT. § 948.025(1),[1] subject to an enhanced penalty under § 948.025(2m) because he was responsible for the welfare of the victim. As part of a plea agreement, Jipson pled no contest to a single count of second-degree sexual assault of a child, by sexual contact, contrary to WIS. STAT. § 948.02(2).[2] Section 948.02(2) defines second-degree sexual assault of a child as having "sexual contact ... with a person who has not attained the age of 16." Sexual contact is defined as "Intentional touching by the complainant or defendant ... for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant." WIS. STAT. § 948.01(5).
¶ 3. On the plea questionnaire/waiver of rights form, Jipson's attorney listed the elements of the offense *471 as "Had sexual contact, w/person under age 16, knowing contact." The attorney testified he used the term "knowing contact" on the plea questionnaire to indicate that whatever contact occurred between Jipson and the victim was not inadvertent or accidental. The attorney never explained to Jipson that the State had to prove Jipson had intentional sexual contact for the purpose of his sexual gratification or any other purpose listed in WIS. STAT. § 948.01(5). During the plea colloquy, the trial court never discussed with Jipson the specific elements of the offense. Jipson nevertheless pled no contest and was sentenced to the maximum penalty of thirty years' imprisonment, twenty years' initial confinement followed by ten years' extended supervision.
¶ 4. Jipson filed a postconviction motion for relief seeking withdrawal of his plea. Jipson claimed he did not understand the State had to prove the sexual contact was intentionally done for purposes of sexual degradation, humiliation, gratification, or arousal. In the alternative, Jipson asked for sentence modification.
¶ 5. The trial court denied Jipson's motion on both grounds. Regarding the alleged defective no contest plea, the court acknowledged it failed to discuss with Jipson the specific elements of the offense. Nevertheless, the court concluded Jipson's plea was knowing and found his testimony to the contrary incredible. In support of its conclusion, the court found: Jipson was a forty-three-year-old man with a high school diploma plus some college education; he was not rushed into pleading no contest to the offense because the plea hearing occurred weeks after Jipson's preliminary hearing; his attorney went through the plea questionnaire/waiver of rights form with him section by section; his attorney explained the elements of the crime in common language and phrases that he though Jipson *472 would understand; and that it had not been shown the term "sexual gratification" must be used in the explanation as an element of the offense. Jipson appeals.
DISCUSSION
[1-3]
¶ 6. Whether a plea was entered knowingly, voluntarily and intelligently is a question of constitutional fact. State v. Trochinski, 2002 WI 56, ¶ 253 Wis. 2d 38, 644 N.W.2d 891. We review independently Jipson's plea, benefiting from the analysis of the circuit court. Id. Findings of historical or evidentiary facts will not be upset unless they are clearly erroneous. Id.
[4]
¶ 7. When challenging a guilty or no contest plea, the defendant has the initial burden to produce a prima facie case comprised of the following two parts. First, the defendant must show the trial court accepted the defendant's guilty plea without conforming to WIS. STAT. § 971.08 or other mandatory procedures.[3] Second, the defendant must merely allege he or she did not know or understand the information that should have been provided at the plea hearing. Bangert, 131 Wis. 2d at 268-69. If the defendant satisfies this test, the burden of persuasion then shifts to the State to show by clear and convincing evidence that the defendant's plea was *473 somehow otherwise knowingly, voluntarily, and intelligently made, despite any shortcomings at the plea hearing. Id. at 274.
[5]
¶ 8. Jipson contends he established a prima facie case because the plea colloquy did not conform to WIS. STAT. § 971.08 and he was otherwise unaware the State had to prove sexual gratification as an element of second-degree sexual assault of a child. We agree.
[6]
¶ 9. WISCONSIN STAT. § 971.08(1) requires the trial court to determine a plea "is made voluntarily with understanding of the nature of the charge." To understand the nature of the charge, the defendant must be aware of all the essential elements of the crime. State v. Nichelson, 220 Wis. 2d 214, 218, 582 N.W.2d 460 (Ct. App. 1998). While it is true the purpose of the sexual contact is not an element of the crime listed under WIS. STAT. § 948.02(2), but rather is a definition of the element "sexual contact" found in WIS. STAT. § 948.01(5), the courts have nevertheless crafted this to be an element of the offense. Id. at 220-21.[4] In State v. Bollig, *474 2000 WI 6, ¶ 50, 232 Wis. 2d 561, 605 N.W.2d 199, the supreme court stated:
The essential elements of a charge of attempted sexual contact with a child under the age of thirteen include that the defendant attempted: 1) to have sexual contact with the victim; 2) the victim had not attained the age of thirteen at the time of the alleged contact; and 3) the alleged contact was for the purpose of defendant's sexual gratification or the victim's humiliation.
Thus, Jipson must be aware of this element before he can knowingly plead to the offense. Because the record revealed that neither the court nor Jipson's attorney explained to him this essential element, and because Jipson alleges he was not otherwise aware this was an element, he has made a prima facie showing under Bangert.
¶ 10. The State argues there is no requirement that the defendant understand the exact legal terms of each element, but rather need only understand the nature of the charge and have a general awareness of the elements. Trochinski, 253 Wis. 2d 38, ¶¶ 29-30. But in Trochinski, the supreme court clearly stated the defendant knew all the elements of the charged offense because they were listed in the plea questionnaire/waiver of rights form and mentioned during the plea colloquy. Id., ¶ 23. On this ground the Trochinski court distinguished Nichelson, where the defendant did not know the State had to prove as an element of the crime that the purpose of the sexual contact was for his own sexual gratification. In the end, *475 Trochinski stands for the limited proposition that the circuit court does not have to "ensure the defendant specifically understands how the State must prove each element." Id., ¶ 22. Thus, Trochinski is not applicable because here there was a total failure to inform Jipson of an essential element.
[7]
¶ 11. The second step in the Bangert analysis shifts the burden to the State to prove by clear and convincing evidence that, notwithstanding deficiencies at the plea hearing, the defendant's plea was otherwise knowingly, intelligently and voluntarily made. Bangert, 131 Wis. 2d at 274. However, no matter how incredible the defendant's prima facie case is, the State must present affirmative evidence to rebut it. See Nichelson, 220 Wis. 2d at 224-25. The State is not limited to what transpired at or before the plea hearing to meet this standard, but rather can scour the entire record for affirmative evidence. See id.
[8]
¶ 12. To prove Jipson's plea was knowingly made, the State offers Jipson's and his attorney's testimony at the postconviction hearing. With respect to Jipson's attorney, when asked why he wrote the elements on the plea questionnaire/wavier of rights form as "Had sexual contact, w/person under age 16, knowing contact," he testified he meant:
That it wasn't an accidental type of thing, because the information that I had was there could have been, at least on one occasion, there could have been an accidental, at least the way he described to me, an accidental touching of something. That's why when I put down the knowing, the intentional thing, it is to *476 indicate that it is not an inadvertent or accidental type of thing. I mean, that it was done for the purpose of causing the contact.
The State claims this proves Jipson's attorney conveyed to Jipson, and Jipson must have understood, that he was not being charged for accidentally touching the victim, or touching the victim for some purpose other than for sexual gratification. The State concludes this proves by clear and convincing evidence Jipson's plea was knowingly made. We disagree.
¶ 13. This testimony not only shows that Jipson was not specifically informed of the essential element that the sexual contact had to be for purposes of sexual degradation, humiliation, arousal, or gratification, it actually misstates the requisite mental element of the crime. The State does not have to prove the defendant "knowingly" touched the victim, or that it was merely done for the purpose of causing contact. Rather, the State has to prove there was "intentional touching ... for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant." WIS. STAT. § 948.01(5)(a).
¶ 14. This is not a distinction without a difference. WISCONSIN STAT. § 939.23(2) defines "know" as "requir[ing] only that the actor believes that the specified fact exists." Section 939.23(3) defines "intentionally" as
Mean[ing] that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition ... the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally." *477 Whether one believes something exists or will happen is a different level of criminal intent as compared to whether it is one's conscious objective, that is, one's purpose, to do something. As a result, "knowing" contact and "intentional" contact are two very different things. For this reason, the testimony of Jipson's attorney does not provide clear and convincing evidence that Jipson's plea was knowingly made.
¶ 15. The State also uses Jipson's testimony at the postconviction hearing to prove he otherwise made a knowing plea of no contest to the charged offense. The relevant testimony is as follows:
Q: You knew [the charge] involved sexual intercourse?
A: That's what [the victim] was claiming.
....
Q: You told [the pre-sentence investigator] that your behavior with [the victim] was highly inappropriate?
A: I don't think I ever used the word highly. I may have used inappropriate.
....
Q: Other than for sexual gratification, would there have been any reason for you to have intentionally had contact, physical contact, with [the victim's] breasts or vagina?
A: Not that I'm aware of.
....
Q: Even by your own admission, you had fondled her, and by your own admission, you and she were present in one another's company with little or no clothing, and you had an erect penis, is that correct?
*478 A: I stated that.
Q: And you're saying that doesn't indicate sexual attraction?
A: I don't know.
The State claims this proves by clear and convincing evidence Jipson understood the intent element of the crime. He knew he was not charged with accidentally touching the girl, and that Jipson admitted he had physical contact with the victim's intimate parts. We are not persuaded.
¶ 16. Jipson's answers, while incriminating, have no bearing on the focus here. That is, the answers do not establish Jipson knew the State had to prove the purpose of the sexual contact was an element of the crime. The critical inquiry is whether Jipson otherwise knew at the time of entering his plea all of the essential elements of the offense so that it can be said he knowingly pled guilty to the crime. His testimony does not establish this.
¶ 17. In conclusion, the State has failed to meet its burden. It has not shown any affirmative evidence that proves clearly and convincingly that Jipson's plea was knowingly, intelligently, and voluntarily made. See Bangert, 131 Wis. 2d at 274. Accordingly, Jipson is entitled to withdraw his plea. The circuit court order is reversed and the matter is remanded to the circuit court for further proceedings.[5]
*479 By the Court. Order reversed and cause remanded.
NOTES
[1] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] The fourth amendment information stated:
Count I: SECOND DEGREE SEXUAL ASSAULT OF A CHILD
Have sexual contact with a person who had not yet attained the age of 16 years, contrary to Wisconsin Statute 948.02(2). This is a Class BC Felony which carries with it a fine not to exceed $10,000.00 or imprisonment not to exceed 30 years, or both.
[3] WISCONSIN STAT. § 971.08(1) states in pertinent part: "Before the court accepts a plea of guilty or no contest, it shall do all of the following: (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted."
[4] State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), involved a defective guilty plea to first-degree sexual assault of a child. The court held the defendant made a prima facie case that his plea did not conform to WIS. STAT. § 971.08 because he did not know the State had to prove as an element of the offense that sexual contact was for his own sexual gratification. Id. at 220. The court reasoned that a defendant must understand the nature of the constitutional rights he or she is waiving before they can be waived. Included in these rights is the requirement that the State prove each element of the crime beyond a reasonable doubt. To waive this right, the defendant must know and understand all of the essential elements of the crime. The court concluded, with little explanation because the State agreed, that sexual gratification is an element of sexual assault. See id. at 220, 225.
[5] Because we hold Jipson is entitled to withdraw his plea, we do not address whether the circuit court placed undue emphasis on his status as a foster parent in imposing his sentence or whether imposition of the maximum possible sentence is unduly harsh and excessive under the facts of the case. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) ("As one sufficient ground for support of the judgment has been declared, there is no need to discuss the others urged."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581842/ | 469 F.Supp. 167 (1979)
UNITED STATES of America, Plaintiff,
v.
Carolyn J. KING, Defendant.
Civ. A. No. 78-627.
United States District Court, D. South Carolina, Orangeburg Division.
April 3, 1979.
*168 Wistar Stuckey, Columbia, S. C., J. Roger Edgar, Robert L. Ashbaugh, G. Ridgley Loux, U. S. Dept. of Justice, Civ. Div., Washington, D. C., Anthony Cloud DiGioia, Trial Atty., Civ. Div., Dept. of Justice, Washington, D. C., for plaintiff.
Jerry M. Screen, Columbia, S. C., for defendant.
ORDER
SIMONS, District Judge.
This action was tried before the court at Aiken, South Carolina, on March 21 and 22, 1979, without a jury.
FINDINGS OF FACT
1. This is an action brought by the United States to recover amounts paid to the defendant, Carolyn J. King, in violation of *169 her fiduciary duties as agent of the plaintiff.
2. During the time relevant to this suit, the defendant was a member of the Foreign Service and was a Consular Officer of the United States Department of State, an agency and instrumentality of plaintiff.
3. From approximately August 20, 1973, to October 1, 1974, the defendant served as a vice-consular officer at the United States Consulate in Port-au-Prince, Haiti. At that post, one of her principal job assignments was to review the applications of individuals seeking non-immigrant visas for entry into the United States. Although she was at all times subject to the statutes, regulations, policy directives, training and instructions of the State Department, nevertheless, great trust was reposed in the defendant by the United States. The defendant had very broad discretion in determining whether to grant or reject applications for non-immigrant visas.
4. Sometime after the defendant's arrival in Haiti, she met Max Auguste, a Haitian national. The defendant and Auguste subsequently entered into a scheme to sell non-immigrant visas to Haitian nationals by accepting payments in return for defendant's use of her official position to approve such applications. This scheme operated from shortly after the first of January 1974, until the end of May, 1974.
5. Pursuant to the scheme, Max Auguste contacted another Haitian national, Nady Francois, now deceased. Francois agreed to participate, and he enlisted two other Haitians, Lenoir Philistin and Carlos Lahens, as recruiters of prospective Haitians willing to pay bribes to obtain visas to the United States. Auguste, Francois, Philistin, Lahens and King each received a portion of the bribes paid by the visa applicants. The defendant received $500 for every visa application granted pursuant to the arrangement.
6. In order to distinguish visa applications subject to the bribery scheme from the many other applications processed by the Consulate, the defendant and the other participants employed the following code words: "none", "Soonest", and "Trèstôt." One of the three code words was written on the application forms by Max Auguste shortly before presentation to the non-immigrant visa section of the Consulate, where the defendant was employed.
7. On learning of the scheme, State Department investigators reviewed the non-immigrant visa records at the Consulate in Haiti. They searched the files of all non-immigrant visas granted during the defendant's assignment to the Consulate. One hundred and sixty visas said to have a code word were found as a result of this search. All had been approved during the period in which the scheme operated. In the files of applications which were rejected during the operation of the scheme, only one visa containing a code word was found by the State Department investigators. This is consistent with the testimony of Auguste.
The applications that had been granted and which contained the code words numbered in excess of 140. They were reviewed by Teresa Ann Kleinkauf, who had been a coworker of the defendant at the Consulate, and by Samuel Karp, who has served as Consul in charge of the Visa Branch at various American Embassies. As to those applications, testimony established that, under the standards applicable to non-immigrant visas, there was substantial reason to doubt the eligibility for entry into the United States of most of the applicants whose visas had been granted pursuant to the scheme. This evidence is further illuminated by the testimony of Auguste who testified to having paid Defendant King in excess of $70,000, which, at $500 per visa, would indicate that at least 140 visa applications were processed and approved by the defendant pursuant to the bribery scheme.
8. The defendant has previously been tried and convicted in this court of criminal charges that establish the existence of the same scheme described above. Specifically, these criminal charges were as follows: (1) A conspiracy count in violation of 18 U.S.C. § 371; (2) a substantive count in violation of 22 U.S.C. § 1199; and (3) twenty-one substantive counts in violation of 18 U.S.C. *170 § 201(c)(1). This prior conviction under 18 U.S.C. § 201(c)(1) also establishes defendant's receipt of $10,500 for approving 21 of the non-immigrant visas at issue here.
9. The preponderance of the evidence establishes that the defendant breached her fiduciary duty to the plaintiff by exploiting her position of public trust for secret and personal profit. The plaintiff introduced 160 non-immigrant visa applications from the period in question. Six of these were withdrawn at trial because they bore no examiner's initials. Four more were not identified by Max Auguste as having been coded by him. Of the remaining 150, the court's own examination reveals that three do not bear the defendant's initials. See plaintiff's exhibits 30, 116, and 127. Three more do not clearly bear one of the three code words. See plaintiff's exhibits 110, 111, and 112. This leaves 144 non-immigrant visa applications from the relevant time period which bear the defendant's initials and one of the three code words. Consequently, this court finds that the defendant accepted bribes of $500 each in exchange for approving 144 non-immigrant visa applications.
10. The court finds that the defendant received at least $72,000 in violation of her fiduciary duty to plaintiff and that said sum or the proceeds of said payments is properly due and owing to the United States. Therefore, the court finds that the defendant is liable to the United States in the amount of $72,000, and that the United States is entitled to the imposition of a constructive trust upon said payments and all their proceeds wheresoever and howsoever held.
11. The evidence further establishes that the defendant sent frequent sums of money, in cash or by check, to her mother, Willie Mae King, and that these payments increased substantially after the inception of the bribery scheme. The defendant, the defendant's mother, and the defendant's sister, Janie B. White, purchased a four-apartment dwelling at 5 Bristol Drive, Brunswick, Georgia, for approximately $45,000, of which approximately $12,000 was paid in cash or money orders. Neither Mrs. King nor Mrs. White was able to satisfactorily explain the source of the funds they allegedly contributed, and the court concludes that these sums were in fact obtained from the defendant. Moreover, the evidence establishes that while the property at 5 Bristol Drive was listed in the name of Willie May King, the defendant retained control over the property and its rental income. From the foregoing, the court concludes that the property at 5 Bristol Drive and its proceeds were obtained by the defendant as a result of her acceptance of bribes for the sale of non-immigrant visas.
CONCLUSIONS OF LAW
1. This civil action was instituted by the United States as plaintiff pursuant to 28 U.S.C. § 1345 (1976), and consequently this court has subject matter jurisdiction to determine the controversy.
2. The defendant has been properly served with process and is subject to this court's jurisdiction.
3. The defendant, as a Foreign Service Officer of the Department of State, was an agent of the plaintiff. As such, she occupied a position of public trust and owed a fiduciary duty to the plaintiff United States.
4. The secret acceptance of payments from those over whom a public official exercises his or her official position, influence and authority creates a conflict of interest and a breach of fiduciary duty, and renders said official liable to his Government. See United States v. Carter, 217 U.S. 286, 30 S.Ct. 515, 54 L.Ed. 769 (1910); United States v. Drisko, 303 F.Supp. 858 (E.D.Va.1969). The evidence establishes that the defendant did not fully disclose her adverse interest to her principal, the plaintiff. Consequently, absent full disclosure, there was not, nor could there be, any ratification of defendant's acts by her principal. Therefore, by secretly placing her interests in conflict with those of her principal, the defendant breached her fiduciary duty, making her liable to plaintiff United States.
*171 5. Whether or not a principal proves actual loss from a disloyal agent's breach of a fiduciary duty, the principal is entitled, as a matter of law, to recover the amount of the secret payments, their value or their proceeds, that said agent has received. See Carter, 217 U.S. at 305-06, 30 S.Ct. 515. The relief appropriate in such a situation includes the imposition of a constructive trust. Hunter v. Shell Oil Co., 198 F.2d 485, 489 (5th Cir. 1952). Accordingly, plaintiff is entitled to a judgment in its favor and against the defendant in the amount of $72,000, and to have a constructive trust imposed for its benefit upon the bribe monies and their proceeds, wheresoever and howsoever held.
6. Plaintiff is entitled to the imposition of a constructive trust upon all proceeds of the sale of the property located at 5 Bristol Drive, Brunswick, Georgia, including any disbursements previously made to the defendant, the defendant's mother, Willie Mae King, or the defendant's sister, Janie B. White, and including any payments due in the future derived from said sale.
AND IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579244/ | 51 S.W.3d 676 (2001)
Marsha MILLER, Appellant,
v.
The HOUSTON INDEPENDENT SCHOOL DISTRICT and The Texas Commissioner of Education, Appellees.
No. 01-99-01437-CV.
Court of Appeals of Texas, Houston (1st Dist.).
March 2, 2001.
Rehearing Overruled April 3, 2001.
*678 Joseph Leo Lanza, Houston, for appellant.
Andy Ramzel, Houston, George Warner, Austin, for appellee.
Panel consists of COHEN, JENNINGS, and DUGGAN,[*] JJ.
OPINION
COHEN, Justice.
The Houston Independent School District (HISD) fired Marsha Miller because she did not go to work for three months. An independent hearing examiner recommended Miller not be terminated; the HISD school board rejected the examiner's recommendation and terminated Miller's contract; the Commissioner of Education upheld the board's decision; and the trial court affirmed the Commissioner's decision. We affirm.
I. Background[1]
Miller had been a teacher or guidance counselor under a continuing contract[2] with HISD for 28 years, never missing work for 16 years before this dispute. In July 1997, HISD transferred Miller from Lamar High School to Stephen F. Austin High School. Miller's daughter was then experiencing severe psychological problems, including repeatedly cutting herself. At an August 13 meeting, Miller advised the Central District Superintendent, Raymond Reiner, that she could not work at Stephen F. Austin because the increased drive time there would reduce her time for and make her less able to cope with her daughter. Reiner nonetheless verbally and in writing instructed Miller to report to Stephen F. Austin. At least two other HISD representatives gave Miller the same directive.
*679 For just under three months starting August 12, Miller did not report to Stephen F. Austin. However, she once advised its office by phone that she could not work there, and she called HISD's central office daily to report her absence. On September 10, Dr. Rod Paige, HISD's superintendent, sent Miller's attorney a letter stating, "You may want to instruct Ms. Miller to report to Austin High School. Her failure to follow the previous directive may have serious consequences...." By letters dated August 21, September 25, and October 9, Stephen F. Austin's principal, Jose Trevino, ordered Miller to work or serious consequences would result; however, the hearing examiner found that HISD did not prove Miller received these.
On September 19, Miller and her attorney discussed the transfer with the HISD ombudsman, and on September 22, Miller began the official grievance process (hereinafter "the transfer protest"). Dr. Margaret Stroud heard the transfer protest on October 31, although the examiner found it should have been heard October 2. Trevino recommended firing Miller on October 17, after the date the examiner found the transfer protest should have been heard, but before it was actually heard. On November 5, Dr. Stroud upheld the transfer and ordered Miller to Stephen F. Austin. Miller complied and began work there three days later.[3]
On December 15, the board notified Miller it intended to discharge her for "repeated failure to comply with official directives and established school board policy" and "repeated and continuing neglect of duties," which her contract defined as lawful cause for discharge. See also Tex. Educ.Code Ann. §§ 21.156(a) (Vernon 2996). The basis was Miller's not reporting for work at Stephen F. Austin for three months, much of which overlapped the transfer protest. No one told Miller that she would be discharged if she did not report to Stephen F. Austin, but several HISD employees told Miller she could face disciplinary action, and Miller knew discharge was a form of disciplinary action. Miller requested a hearing on her discharge before an independent hearing examiner, John Donovan ("the discharge protest"). The examiner concluded that HISD had not shown lawful cause for discharge and recommended that Miller be reinstated without back-pay for her three-month absence. The board adopted some of the examiner's fact findings, rejected or modified others, rejected or modified some of his legal conclusions, renamed some fact findings as legal conclusions and then modified them, renamed part of his recommendation as a fact finding and accepted it, rejected the rest of his recommendation to reinstate Miller, and terminated Miller's contract. Miller appealed to the Commissioner, who upheld the board's order after modifying it slightly. The trial judge affirmed the Commissioner's order.
II. Statutory Scheme to Contest Discharge
Before a teacher under a continuing contract can be discharged, the board must notify her in writing of the proposed discharge and the grounds for it. Tex.Educ. Code Ann. § 21.158 (Vernon 1996). The teacher may elect for a protest hearing before an independent hearing examiner. Id. §§ 21.159(a)-(b), 21.251-.253 (Vernon 1996). This hearing is evidentiary and resembles trial to the court. Id. § 21.255.256(c)(e) (Vernon 1996) (examiner may issue *680 subpoenas, administer oaths, rule on evidentiary issues, and allow depositions; rules of evidence apply; teacher may have counsel, present evidence, and cross-examine witnesses; hearing is conducted as trial without jury); see also Gibson v. Tatum Indep. Sch. Dist., No. 040-R2-1099, p. 2 (Comm'r Educ.1999) (board's notification of proposed discharge is treated as pleading, to which special exceptions may be made). The examiner issues a written recommendation that contains fact findings and legal conclusions and that may include a proposal for granting relief. Tex.Educ. Code Ann. § 21.257(a) (Vernon 1996).
At a non-evidentiary hearing, the board then considers the examiner's recommendation. Id. § 21.258(a)-(b) (Vernon 1996). The board must render a decision that includes fact findings and legal conclusions and that may include a grant of relief. Id. § 21.259(a) (Vernon 1996). The board may adopt, reject, or change the hearing examiner's legal conclusions or relief proposal, the only requirement being to give a written reason and legal basis for each one that is changed or rejected. Id. § 21.259(b), (d) (Vernon 1996). In contrast, the board may reject or change the examiner's fact findings only if they are not supported by substantial evidence. Id. § 21.259(c) (Vernon 1996). As with legal conclusions, the board must give a written reason and legal basis for each fact finding that is changed or rejected. Id. § 21.259(d).
The board's decision may be appealed to the Commissioner, who, with certain exceptions not applicable here, must consider the appeal only on the record from the examiner's and board's hearings. Id. § 21.301(c) (Vernon 1996). If a board that terminated a teacher's continuing contract modified the examiner's fact findings, the Commissioner must accept the board's decision unless it is arbitrary, capricious, or unlawful or the examiner's original fact findings are not supported by substantial evidence. Id. § 21.303(b)(2) (Vernon 1996); 19 Tex.Admin.Code § 157.1071(g) (2000). The Commissioner's decision must include fact findings and legal conclusions, which may be adopted by reference from the local record. Tex.Educ.Code Ann. § 21.304(a) (Vernon 1996).
A court may not reverse the Commissioner's decision unless it was not supported by substantial evidence or unless its legal conclusions are erroneous. Id. § 21.307(f) (Vernon 1996). The court may not take new evidence. Id. § 21.307(e) (Vernon 1996).
III. Standard of Review
Miller had the burden in court to demonstrate lack of substantial evidence. Firemen's & Policemen's Civ. Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984); Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307, 311 (Tex. App.-Houston [1st Dist.] 2000, no pet.). Substantial evidence means more than a mere scintilla; thus, the evidence may preponderate against the agency's decision, yet still amount to substantial evidence. Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999). The test is whether reasonable minds could have reached the same conclusion as the Commissioner. Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988); Farris, 27 S.W.3d at 311. Whether substantial evidence exists to support an agency's determination is a question of law. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000).
The Commissioner's reasoning for his decision is immaterial if his conclusion is correct. Texas Employment Comm'n v. Hays, 360 S.W.2d 525, 527 (Tex.1962). "Construction of a statute by *681 the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute." Dodd v. Meno, 870 S.W.2d 4, 7 (Tex.1994). Although this statute is remedial and should be construed broadly, "we are not inclined to reverse the Commissioner's reasonable determination in an area where he possesses considerable authority and expertise." Id.
IV. Discussion
A. HISD's Preliminary Arguments
In its first reply point, HISD argues Miller has waived review because her issues focus on whether the board's or examiner's findings are supported by substantial evidence, when we should apply the test only to the Commissioner's findings. We disagree because, however she describes it, Miller is clearly attacking the Commissioner's decision upholding her discharge and the modified fact findings and legal conclusions on which that decision rests. See Tex.R.App.P. 38.9 (briefing rules to be construed liberally).
On the merits, HISD claims we must look for substantial evidence supporting the Commissioner's findings that are adverse to Miller, rather than for that supporting the examiner's findings that were favorable to Miller. This is so because, HISD argues, if a board changes an examiner's fact finding to say the opposite after determiningrightly or wronglythat substantial evidence does not support that finding, and if the Commissioner then adopts the board's new fact finding, we may then apply the substantial evidence test only to that new fact finding in the Commissioner's order. That is, we must completely ignore any contrary fact findings from lower administrative levels when reviewing the evidence. We do not agree entirely.
It is true that we review the Commissioner's decision. See Tex.Educ.Code Ann. § 21.303(b)(2). But what did the Commissioner review and what did he decide? Here, the Commissioner "adopted and incorporated for all purposes" the board's decision, "as modified herein." He had to accept the board's decision unless it was arbitrary, capricious, or unlawful or the examiner's original fact findings were not supported by substantial evidence. See id. § 21.303(b)(2); 19 Tex.Admin.Code § 157.1071(g). That is, although the Commissioner reviews the board's decision, he measures the evidence against the examiner's fact findings, not the board's, to see if substantial evidence supports them and thus to determine if the board erred in determining otherwise.
Whether substantial evidence exists is a question of law. Davis, 34 S.W.3d at 566. We review the Commissioner's legal conclusions to determine whether they are erroneous. Tex.Educ.Code Ann. § 21.303(b)(2) (review is for whether legal conclusions were erroneous or whether substantial evidence supported decision). Therefore, when we review the Commissioner's "decision," we are reviewing his legal conclusion that the board correctly found substantial evidence did not support the examiner's fact findings. See id. This can be done only by reviewing the examiner's fact findings. As a policy matter, we note the examiner's hearing is akin to a trial and his fact findings from that "trial" are subject to limited review. Thus, it makes sense to consider those original fact findings in determining whether the Commissioner correctly decided the case.
Moses v. Fort Worth Independent School District, on which HISD relies, is not to the contrary. 977 S.W.2d 851 (Tex. App.-Fort Worth 1998, no pet.). The Moses court was merely reciting section *682 21.303(b)(2)'s language. Moses, 977 S.W.2d at 854. The court then went on to hold that "[b]ecause there was not a complete local record [filed with the Commissioner], and specifically no testimony at all, there was not substantial evidence to support the school board's decision.... We hold that the Commissioner was correct in his decision to reverse the school board's decision. There is substantial evidence to support the Commissioner's conclusion that the education code creates a mandatory filing deadline,[4] that Fort Worth ISD did not meet this deadline, and that without the local record there was not substantial evidence to support the school board's decision." Id. at 855 (emphasis added). Moses supports our holding.
We overrule HISD's argument.
B. Waiver
In issue seven, Miller claims the Commissioner erroneously ignored unnumbered fact findings in the discussion section of the examiner's order that were supported by substantial evidence.
The pertinent part of the examiner's discussion criticized HISD because (1) its policies and procedures were not "so readily clear and established"; (2) the directives its officials gave Miller were "somewhat confusing, if not conflicting"; and (3) communication within HISD about Miller was poor. Neither the board nor the Commissioner adopted these recitations as numbered fact findings.[5] Miller waived this complaint by not raising it either at the administrative level or in the trial court. Balkum v. Texas Dept. of Pub. Safety, 33 S.W.3d 263, 267-68 (Tex.App.-El Paso 2000, no pet.); Texas Dep't of Pub. Safety v. Guajardo, 970 S.W.2d 602, 606 (Tex. App.-Houston [14th Dist.] 1998, no pet.); Reyes v. Roma Indep. Sch. Dist., Docket No. 083-R2-199, p. 5 (Comm'r Educ.2000); see also Tex.R.App.P. 33.1.
We overrule issue seven.
C. The Board's Alleged Addition of a Fact Finding
In issue six, Miller claims the Commissioner erred in upholding the board's modification of the examiner's recommendation. The examiner's recommendation originally read as follows:
Based upon the above findings of fact and conclusions of law, in my capacity as hearing examiner, I recommend the reversal of HISD's decision to terminate Ms. Miller's contract and Ms. Miller be reinstated, however without pay for the period of approximately three months she did not report to work during her grievance process, unless Ms. Miller chooses to use vacation or sick pay benefits to replace wages lost during this period.
The board rejected everything but the following phrase and then adopted that phrase as a fact finding: "for the period of approximately three months, she did not report to work during her grievance process." The Commissioner adopted the board's finding.
Appellant complains only that the board had no authority to add a dispositive fact finding like this.[6]See Davis, *683 34 S.W.3d at 564-65, 566 (holding board may not add fact findings to those examiner makes). A fact finding found anywhere in the administrative decision under review will be considered a fact finding, even if mislabeled as something else. Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099, pp. 7, 8 (Comm'r Educ.1999). This phrase from the examiner's recommendation was a fact finding, wherever placed and however labeled. Therefore, we hold the board did not add a fact finding. Moreover, a board may always rely on the undisputed evidence. Davis, 34 S.W.3d at 565, 567. No one disputes Miller did not work for almost three months. Therefore, the board could rely on this fact to support its conclusion that good cause existed to discharge Miller. See id.
Accordingly, we overrule issue six.
D. Substantial Evidence to Support Certain Numbered Fact Findings
In issues one through five, Miller argues the Commissioner erred in upholding the board's rejection or modification of five of the examiner's fact findings for lack of substantial evidence.
1. The Examiner's Fact Finding 52
In issue five, Miller claims the Commissioner erred in upholding the board's rejection of the examiner's fact finding 52:
Ms. Miller relied upon the instructions and directions of the representatives of HISD in filing her grievance and attempting to alleviate the difficulty in having to travel the extra time to Austin High School.
To the extent this finding means Miller relied on HISD representatives' instructions in filing and prosecuting the transfer protest, we hold that it is irrelevant and its rejection, even if error, is harmless. See Tex.R.App.P. 33.1. To the extent this finding means Miller relied on HISD representatives' instructions that she could stay home pending the transfer protest's resolution, we hold the Commissioner correctly determined that substantial evidence does not support it.
Miller's teaching contract required her to work as assigned and defined good cause for discharge as the grounds alleged by HISD here. Several HISD representatives undisputedly told Miller to report to Stephen F. Austin. Miller admitted without contradiction that no one at HISD ever told her that the transfer protest relieved her of reporting to Stephen F. Austin. Reiner also testified without contradiction that he never told Miller this. This is conclusive evidence that Miller did not rely on any HISD representative's "instructions and directions" to stay at home during this time.
Accordingly, we hold the Commissioner correctly upheld the board's determination that fact finding 52 lacked substantial evidence.
We overrule issue five.
2. The Examiner's Fact Finding 10
In issue one, Miller claims the Commissioner erred in upholding the board's rulings on the examiner's fact finding 10, which read, "It is also possible for an employee to be assigned to their [sic] *684 home while undergoing the Grievance Process." The board made two alternative rulings: it (1) rejected this fact finding as not supported by substantial evidence and, alternatively, (2) redesignated the finding as a legal conclusion that the board then changed to read, "An employee may not be reassigned to his or her home pending the outcome of a dispute under the Dispute Resolution Process." The Commissioner upheld the board's rejection of this fact finding on the ground that it was not supported by substantial evidence.
Whether it is one of law or fact, this finding is merely one regarding HISD's general policy. It has nothing to do with whether Miller was ever assigned to her home, and the evidence conclusively establishes she was not. Therefore, this change did not harm Miller.
We overrule issue one.
3. The Examiner's Fact Finding 48
In issue four, Miller claims the Commissioner erred in upholding the board's modification of the examiner's fact finding 48, which had read, "Ms. Miller substantially performed under the Grievance Process and complied with the instructions or directives give [sic] as set forth in Dr. Paige's September 10, 1997 letter." The board changed the finding to read, "Ms. Miller substantially performed under the Grievance Process but failed to comply with the instructions or directives given as set forth in Dr. Paige's September 10, 1997 letter." Dr. Paige's letter read in pertinent part as follows, "At this time, you may want to instruct Ms. Miller to report to Austin High School. Her failure to follow the previous directive may have serious consequences. If Ms. Miller is concerned about the assignment, she should follow the district policy for dispute resolution. Please contact the office of Professional Standards at XXX-XXX-XXXX for procedural information."
To the extent this finding's original wording meant Miller followed Dr. Paige's suggestion to pursue the transfer protest, we hold it is irrelevant and its modification is thus harmless. See Tex.R.App.P. 33.1. To the extent the original wording meant Miller complied with Dr. Paige's directive to report to Stephen F. Austin during the transfer protest, we hold the Commissioner correctly determined that substantial evidence does not support it. The evidence conclusively establishes Miller did not report to Stephen F. Austin for another two months after this letter.
We overrule issue four.
4. The Remaining Disputed Fact Findings
The changes made to the remaining fact findings Miller challenges in issues two and three are irrelevant because they do not concern the reason Miller was discharged; rather, they concern only the instigation of the transfer protest. Moreover, any error was harmless because (1) it was undisputed Miller did not report to work for three months and (2) this is the sole reason she was discharged.
We overrule issues two and three.
E. Fact Findings Redesignated as Legal Conclusions
In issue 10, Miller claims the Commissioner erroneously upheld the board's redesignation of the following fact finding as a legal conclusion:
In the event that an employee is dissatisfied with the decision of the immediate supervisor (Level I), the employee may appeal to the next vertical line supervisor in a Level II hearing which is required to be held within ten (10) days.
After deeming this finding a legal conclusion, the board modified it as follows:
*685 In the event that an employee is dissatisfied with the decision of the immediate supervisor (Level I), the employee may appeal to the next vertical line supervisor in a Level II hearing which is [sic] should be held within ten (10) days. If the Level II conference is not held within the allotted timeline the employee may immediately appeal the concern/dispute to the next level.
The Commissioner upheld both the redesignation and the modification.
We hold any error was harmless. The only way this finding could be material is in support of Miller's argument that, had the Level II hearing before Dr. Stroud been held within 10 days, as Miller claims this HISD procedure requires, Dr. Stroud would have ordered Miller to work, and Miller would have reported to work, before the date Principal Trevino recommended Miller's termination. However, this does not change the undisputed fact that Miller did not report to work for 51 days before the date she claims Dr. Stroud should have heard the transfer protest. That is, the board's change to this finding does not affect these 51 days Miller was absent. Therefore, any error had no effect on the Commissioner's conclusion to uphold Miller's discharge.
Accordingly, we overrule issue 10.
In issue eleven, Miller claims the Commissioner erroneously upheld the board's redesignation of the following fact finding as a legal conclusion, which the board then rejected:
There is no written policy instruction or direction within the HISD Grievance Process that states that an employee must have to physically report for work while grieving an involuntary transfer during the Grievance Process.
The Commissioner upheld the board's decision.
Whether it is one of law or fact, this finding is merely one regarding HISD's general policy. It has nothing to do with whether Miller was ordered to work pending her grievance, and the undisputed evidence conclusively establishes Miller was ordered to work and that no one ever assigned her to her home then. Therefore, this change, if error, was harmless. See Tex.R.App.P. 33.1.
Accordingly, we overrule issue 11.
F. Changes to the Examiner's Legal Conclusions
In issues eight and nine, Miller claims the Commissioner erred in upholding the board's rejection or modification of the examiner's legal conclusions two and three. Each conclusion had stated that HISD failed to prove lawful cause for discharge (the board changed one conclusion to state that HISD had proved this). The Commissioner determined these conclusions were actually ultimate fact findings, to be measured under the substantial evidence test.[7] He then upheld their rejection or modification because, under the board's amended fact findings that the Commissioner had already upheld, substantial evidence did not support the examiner's original findings. The Commissioner ultimately ruled that Miller's failure to report to work for three months constituted good cause for termination and that her discharge was thus not arbitrary, capricious, or unlawful.
*686 Miller first complains of the board's reviewing conclusions two and three de novo instead of for substantial evidence because they were ultimate fact findings, not legal conclusions. However, the Commissioner agreed with Miller on this. Thus, the complaint is moot. Miller next argues that the Commissioner erred in concluding substantial evidence did not support these ultimate fact findings. Given that we have already upheld the finding that Miller did not report for work for three months despite being ordered to do so and that the undisputed evidence conclusively showed that no one ever told Miller her transfer protest relieved her of working, we hold the Commissioner did not err. See Cox v. Andrews Indep. Sch. Dist., Docket No. 092-R2-199, pp. 3-5 (Comm'r Educ.1999) (concluding good cause existed to terminate teacher's term contract when teacher intentionally skipped one day of school after her supervisor refused to grant her leave, when teacher "knew that termination was a real possibility"; teacher materially breached her contract because "showing up for work goes to the heart of the contractual agreement").
We overrule issues eight and nine.
We affirm the judgment.
NOTES
[*] The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.
[1] These background facts come from the hearing examiner's fact findings that were adopted in full and from undisputed facts on which the parties rely.
[2] One employed under a continuing contract may be discharged only for cause. See Tex. Educ.Code Ann. § 21.154(4) (Vernon 1996).
[3] Miller appealed Dr. Stroud's decision to the board, which upheld it. Miller does not contest that result in this appeal.
[4] This is actually a legal conclusion, subject to an "erroneous" test, rather than to a test for "substantial evidence ."
[5] The board rejected the remainder of the examiner's discussion section, which defined "neglect" and then found Miller's actions did not meet that definition. Miller does not attack that decision under this issue.
[6] Miller's issue is phrased as a challenge both to the added fact finding and to the rejection of the remainder of the examiner's recommendation, but she does not discuss the latter. Accordingly, she has waived review of the latter challenge. See Tex.R.App.P. 38.1(h); Lane Bank Equip. Co. v. Smith S. Equip. Co., 981 S.W.2d 302, 305 (Tex.App.-Houston [1st Dist.] 1998), aff'd on other grounds, 10 S.W.3d 308 (2000). Moreover, the only requirement for a school board to reject a hearing examiner's recommendation is to give a written reason and legal basis. Tex.Educ.Code Ann. § 21.259(b), (d) (Vernon 1996). The board did so.
[7] See, e.g., Ball v. Kerrville Indep. Sch. Dist., 504 S.W.2d 791, 798 (Tex.Civ.App.-San Antonio 1973, writ ref'd n.r.e.) (holding whether good cause exists for terminating teacher's contract is a fact finding); accord Gibson v. Tatum Indep. Sch. Dist., No. 040-R2-1099, p. 8 (Comm'r Educ.1999) (same). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581156/ | 5 Mich. App. 666 (1967)
147 N.W.2d 710
HUGHES
v.
WHITE.
Docket No. 1,327.
Michigan Court of Appeals.
Decided January 24, 1967.
Cassese & Batchelder (Joseph A. Cassese, of counsel), for plaintiff.
Harold L. White, for garnishee defendant.
LESINSKI, C.J.
Garnishee defendant White appeals a judgment of the common pleas court for *668 plaintiff Hughes, executor of the estate of Andrew Thornton, deceased. The judgment below ordered the garnishee defendant, a licensed real-estate broker, to pay one-half of the amount received as down payment from the principal defendant, Sawyer, defaulting purchaser of land, to the plaintiff vendor of the property.
The plaintiff executor and the principal defendant entered into a preliminary agreement for the sale of the real estate in question on December 26, 1963. The principal defendant gave the garnishee defendant a $500 deposit, to be retained under the terms of the agreement.[1] The plaintiff's brief states that the principal defendant engaged in delaying tactics to postpone the closing. The garnishee defendant does not dispute this allegation, but asserts that plaintiff was unable to furnish marketable title. Plaintiff further alleges that after waiting additional time, he notified the principal defendant and the garnishee defendant that he considered the agreement breached and the deposit forfeited; and that, in the absence of a response to this communication, he made a demand upon the garnishee defendant for one-half of the deposit. Plaintiff alleges that when the garnishee defendant refused to comply with this request, that plaintiff filed a complaint with the corporation and securities commission. It is undisputed that a hearing before a deputy commissioner took place on December 30, 1964; however, there is a conflict over the events which transpired on that occasion. The plaintiff contends that the *669 deputy commissioner stated that he did not have jurisdiction to order one-half of the deposit turned over to the plaintiff because CLS 1961, § 451.213(j) (1) (Stat Ann 1964 Rev § 19.803[j][1]),[2] required a judicial determination of the buyer's default before the deposit could be forfeited. Plaintiff further alleges that the deputy commissioner warned the garnishee defendant to retain the deposit until this determination had been made, and garnishee defendant denies that this warning was given.
On February 9, 1965, plaintiff began an action against the principal defendant which resulted in a default judgment for plaintiff. Garnishee defendant contends that prior to the plaintiff's institution of the action just discussed, that he (garnishee defendant) returned the $500 to the principal defendant and received a receipt therefor which the court below refused to receive into evidence. After the judgment against the principal defendant became final, the plaintiff instituted garnishment proceedings on April 14, 1965; said proceedings form the subject matter for this appeal. The trial testimony discloses that garnishee defendant was served on April 16, 1965, and on April 22, 1965, filed a written disclosure wherein he denied that he had any property owing to the principal defendant. It is his assertion that the entire down payment had been *670 returned prior to the institution of the initial action.
At trial, the lower court refused to permit the introduction of the receipt offered in evidence by garnishee defendant as discussed above and also refused this defendant's proffered evidence of a letter from the principal defendant's attorney demanding repayment of the $500 deposit and a title commitment policy. The nonjury proceedings resulted in a judgment, on August 13, 1965, for the plaintiff. The court based its decision on the statute previously cited. The court held that its provisions were mandatory, and that a real-estate broker cannot turn over money received as a down payment unless "the deal goes through, or if it doesn't go through by agreement of the parties," and that if a broker pursues another course, liability attaches to his action, regardless of good faith.
This Court must here determine whether, based on CLS 1961, § 451.213 (Stat Ann 1964 Rev § 19.803), upon a judicial determination of the buyer's default, the plaintiff seller could maintain a garnishment action against the defendant broker for one-half of the down payment paid to said broker by the defaulting buyer.
It is clear that the garnishee defendant, as a licensed real-estate broker, is subject to the statutes regulating real-estate brokers and can be found in violation thereof by the commission under the procedures set forth therein. A reading of the agreement which is the subject matter of this controversy also reveals that the contract was entered into in accordance with the rules of the commission; the agreement was signed by the garnishee defendant real-estate broker; and the statute cited above may be considered to be incorporated by reference into this contractual undertaking. Upon proof of the *671 contract, and absent any valid defenses, the plaintiff here could presumably maintain an action for breach of contract, or for breach of fiduciary duty of an agent against the garnishee defendant.
However, the plaintiff did not choose to bring an action under either of these theories. Instead, the plaintiff sought to garnishee the defendant.
It is undisputed that the buyer made a $500 deposit. It was previously determined that the buyer defaulted. Under the terms of the contract, the deposit then became the property of the broker and the seller. In order to bring a garnishment action in common pleas court,[3] the plaintiff (seller) must allege a belief that the garnishee defendant (broker) has property belonging to the principal defendant (buyer) or that the garnishee defendant (broker) is indebted to the principal defendant (buyer).[4] Under the terms of the contract, this money no longer belonged to the buyer, nor was the broker indebted to the buyer. There was, therefore, no factual basis for a garnishment action; and it follows that we must reverse the resulting judgment for plaintiff. Nothing in CLS 1961, § 451.213, supra, compels a contrary result.
Under this decision there is no need to review alleged errors relative to the lower court's rulings on the admissibility of proffered evidence, as said rulings were predicated on a garnishment action.
*672 Nothing contained herein should be construed to deny plaintiff the opportunity to prove his claim against the garnishee defendant under appropriate proceedings.
Reversed. Costs to appellant.
J.H. GILLIS and HOLBROOK, JJ., concurred.
NOTES
[1] The agreement provided that the deposit was to be held by the broker under Rule 5 of the Michigan corporation and securities commission rules and regulations and applied to the purchase price if the sale was consummated, or at the seller's option, delivered to him (seller) on the acceptance of the offer. (See: 1954 AC, § R 451.305.)
The agreement also provided that if the deposit money was forfeited for nonperformance of the purchaser, the broker was entitled to one-half of the deposit.
[2] This statute gives the commission the authority to investigate the actions of any real-estate broker, and to suspend or revoke any license issued pursuant to the Michigan statute where the licensee is deemed guilty of any of the acts specified therein. The portion pertinent to the controversy, referred to in the text above, states:
"(j) Failing to deposit in a custodial trust or escrow account all moneys belonging to others coming into the hands of the licensee in compliance with the following requirements:
"(1) All deposits or other moneys accepted by every person, co-partnership, corporation or association holding a real estate broker's license under the provisions of this act must be retained by such real estate broker pending consummation or termination of the transaction involved, and shall be accounted for in the full amount thereof at the time of the consummation or termination."
[3] The garnishment provisions of CLS 1961, § 600.7501 et seq. (Stat Ann 1962 Rev § 27A.7501 et seq.), prevail in common pleas court, according to CL 1948, § 728.14 (Stat Ann 1965 Cum Supp § 27.3664), as amended by PA 1962, No 40.
[4] CLS 1961, § 600.7501, supra, reads in part:
"In any action commenced before a justice of the peace, founded upon contract, or upon judgment or decree, or after the rendition of judgment in any case if the plaintiff, his agent or attorney shall make and file with such justice an affidavit stating that he has good reasons to believe, and does believe, that any person, naming him, his property, money or effects in his hands, or under his control belonging to the defendant or any or either of the defendants in such suit, judgment or decree, or that such person is indebted to such defendant or any or either of the defendants * * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581150/ | 378 Mich. 613 (1967)
147 N.W.2d 65
SQUIRES
v.
KALAMAZOO COUNTY ROAD COMMISSIONERS.
Docket No. 51,597.
Supreme Court of Michigan.
Decided January 4, 1967.
*614 Eugene Field and Lloyd D. Yenner, for plaintiff Squires.
Troff, Lilly, Bonow, Piatt & File, for defendant.
PER CURIAM:
Plaintiffs sued defendant for damages arising out of an automotive collision. Their essential allegation, summarized by counsel, is that the defendant board of county road commissioners "negligently and carelessly caused the intersection of Ravine road and B avenue and the approaches thereto from the south and the west to be in a dangerous and unsafe condition," which condition caused the collision. The following portion of defendant's answer poses the question plaintiff Gerald L. Squires and plaintiff Cecilia J. Brower (formerly Squires) would review: *615 "that the plaintiff and/or his agents, attorneys and Cecilia Squires, whose married name is Cecilia J. Brower, have made a claim for injuries sustained by the said Cecilia J. Squires, now Brower, as a result of the negligence and liability of Lewis J. Folk, and that a determination has been made determining that the said Lewis J. Folk was guilty of negligence which was a proximate cause of her injuries, and that said plaintiff, Gerald Squires and/or Cecilia J. Squires, now Brower, have been paid as a result of said claim the sum of $10,000, and that said plaintiffs, having participated in said determination, are bound thereby."
The named plaintiffs moved to strike the above from defendant's answer. The motion was denied in circuit. Leave to appeal was denied by the Court of Appeals. The two movants apply to this Court for leave to appeal.
The issue submitted by the application arose out of so-called uninsured motorist coverage. The opinion of the circuit judge proceeds:
"Under the terms of the policy, plaintiffs Squires filed a claim against its [their] insurance carrier (State Farm), and after an arbitration hearing plaintiffs Squires were awarded $10,000. Under the terms of the policy of insurance, State Farm is entitled to $10,000 of the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of plaintiffs Squires against any person or organization legally responsible for the bodily injury because of which the $10,000 payment was made by State Farm."
In lieu of leave and on motion of the Court (see GCR 1963, 853.2[4]) the Court of Appeals is directed to enter an order vacating the circuit court's order of June 23, 1966, and granting movants' motion to strike all of the quoted portion of defendant's said answer. This Court holds that the right to damages *616 for wrongs, such as plaintiffs Gerald L. Squires and Cecilia J. Brower allege against the defendant Board of Road Commissioners, is not to be diminished by the fact that they, plaintiffs Gerald L. Squires and Cecilia J. Brower, either or both, have been wholly or partly indemnified by insurance effected and paid for by plaintiff Gerald L. Squires. See Justice COOLEY'S reasoning in Perrott v. Shearer, 17 Mich. 48 and Motts v. Michigan Cab Co., 274 Mich. 437, Royer v. Eskovitz, 358 Mich. 279 (2 A.L.R. 3d 286) and Canning v. Hannaford, 373 Mich. 41.
T.M. KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, O'HARA, and ADAMS, JJ., concurred.
BRENNAN, J., took no part in the decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736207/ | 519 So. 2d 127 (1988)
Edwin H. POOLE, et ux.
v.
PHYSICIANS & SURGEONS HOSPITAL, et al.
No. 88-C-0007.
Supreme Court of Louisiana.
February 5, 1988.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579263/ | 12 So. 3d 427 (2009)
Robin ALLEY, Plaintiff-Appellee
v.
PERINI/O & G INDUSTRIES, Defendants-Appellants.
No. 44,268-WCA.
Court of Appeal of Louisiana, Second Circuit.
May 13, 2009.
*429 Robin Alley, pro se.
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, by Robert A. Dunkelman, Shreveport, for Appellants, Perini O & G Industries, Farmington Casualty Co.
Before BROWN, STEWART and LOLLEY, JJ.
LOLLEY, J.
Defendant, Perini/O & G Industries, appeals a judgment from the Office of Workers' Compensation, District 1-W, Parish of Caddo, State of Louisiana, which found in favor of claimant, Robin Alley. For the following reasons, we reverse in part and affirm in part.
FACTS
This matter arises out of an accident which occurred on May 18, 1994, when claimant, Robin Alley, worked at the construction company Perini/O & G Industries ("Perini"). While working with others to lift a cross tie, Alley felt a pulling sensation and immediate back pain. Perini stipulated that there was an accident ("Perini accident") and that Alley was hurt. Alley filed this lawsuit in 2005 when Perini ceased paying benefits after having paid them for 520 weeks (10 years). After having two separate attorneys withdraw resulting in several delays, Alley proceeded to trial as a pro se litigant on October 8, 2007. At trial, the issue to be determined was which, if any, of Alley's continuing medical conditions were causally connected to the Perini accident.
After the trial, the Workers' Compensation Judge ("WCJ") found that Alley was not entitled to permanent or total disability benefits under the Workers' Compensation Act, medical treatment regarding her heart condition or her left shoulder injury, or home health care. However, the WCJ did find that Alley was entitled to medical benefits and treatment for the following conditions: chronic pain; incontinence; depressive disorder; dental condition; dry mouth and dry eyes; neck pain; back pain; headache; radiating leg pain and nerve damage from her back injury; pain management; hernia; effects from use of prescription medications; and, removal of the ANS unit. The WCJ also found that Alley was entitled to her choice of pain physician; medicals including mileage benefits for the above listed conditions; and, that defendant must repay Medicare/Medicaid. *430 In addition, defendant was charged with penalties for delay of Alley's treatment. The WCJ also found that Alley did not violate La. R.S. 23:1208. This appeal by Perini ensued.
LAW AND DISCUSSION
On appeal, Perini argues that the WCJ was manifestly erroneous in finding that Alley was entitled to medical benefits, mileage, choice in pain physician, and Medicare/Medicaid repayment for the conditions listed above. In addition, Perini appeals the WCJ's finding that Alley did not violate La. R.S. 23:1208.
Workers' compensation benefits are available for claimants who suffer personal injury by accident arising out of and in the course of employment. La. R.S. 23:1031(A). Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.07/01/97), 696 So. 2d 551. In order for the employee to recover, he must establish a causal link between the work-related accident and his injury. Albert v. Trans-Met, Inc., 38,261 (La.App. 2d Cir.06/23/04), 877 So. 2d 183; Qualls v. Stone Container Corporation, 29,794 (La. App. 2d Cir.09/24/97), 699 So. 2d 1137, writ denied, 1997-2929 (La.02/06/98), 709 So. 2d 736. The claimant does not necessarily have to establish the exact cause of his disability or injury, but he must demonstrate by a preponderance of the evidence that the accident had a causal connection with it. Buxton v. Sunland Construction, 34,995 (La.App. 2d Cir.08/22/01), 793 So. 2d 526.
If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry the burden of proof. Lubom v. L.J. Earnest, Inc., 579 So. 2d 1174 (La.App. 2d Cir.1991). The issue of disability within the framework of the workers' compensation law is not solely a medical determination. The totality of the evidence, lay and medical, resolves the issue. The fact finder is free to accept or reject the opinion of a physician or medical expert depending upon that expert's qualifications, credibility and testimony. Anthony v. BE & K Construction, 32,729 (La.App. 2d Cir.05/10/00), 760 So. 2d 608, writ denied, XXXX-XXXX (La.09/15/00), 768 So. 2d 1280.
Medical Evidence
At trial, Alley complained of a myriad of medical conditions that she attributes to the Perini accident. Alley's medical history is lengthy as it covers over 14 years of treatment, both for physical and mental issues. The evidence supports the claim that Alley suffered from a hernia and mild ligamentous strain in her back soon after the Perini accident. Perini, at trial, agreed with this assessment but not to the other conditions that Alley complains of.
Back Injury
Alley's back problems are complicated. For one thing, we note that Alley had a pre-existing back injury which required a total of four surgeries in 1984 and 1985 around the L4 and L5 region of the spine. This predated her employment with Perini. After reviewing the medical evidence, the most informative documents are the medical reports regarding Alley's treatment immediately after the Perini accident. Her first physician, Dr. Don Burt, attended to her right after the accident and opined that Alley did "show some tightness of the low back at the time; however, she had normal strength, normal reflexes, normal sensation, normal sciatic stretch tests, and normal electromyographic studies involving *431 the lower extremities." In short, he "judged her recent injury to be entirely muscular in nature." Alley decided to obtain a second opinion.
Dr. Christopher Burda, a rheumatologist, diagnosed her with a "mild ligamentous strain" and she was sent to physical therapy. In July 1994, Alley came back to Dr. Burda with new complaints, i.e., neck pain. Dr. Burda referred her to Dr. James Zum Brunnen, an orthopaedic surgeon, for further examination. She underwent an MRI of the lumbar spine on September 30, 1994, which showed scarring around the L4 and L5 area where her previous operations were performed; however the examinations did not show any neck-related or new back injuries. In 1995, Dr. Zum Brunnen's notes indicated that she is showing some "general improvement." In fact, Dr. Zum Brunnen gave her permission to ride her "gentle" horse. One month later, Dr. Zum Brunnen reported that she "move[d] about readily." On May 8, 1995, Alley was in a car accident and came to Dr. Zum Brunnen complaining for the first time of thoracic and shoulder pain, and tenderness in the right cervical area, in addition to some lumbar pain.
Psychological Issues
Alley came back to Dr. Zum Brunnen with psychological issues 6 months after the Perini accident. Dr. Zum Brunnen referred her for a psychological consult. The report from this consult indicated that Alley "shows extremely poor health habits in comparison to her peers. Continuation of a similar lifestyle will compromise her health over a lifetime." Eventually Dr. Charles Armistead, a psychiatrist, saw her in March 1995 and his report indicated that Alley felt she had been "phobic for years." Dr. Armistead stated that he did not know the exact extent of her medical problems but noted Alley's primary complaint was a work situation and issues with sexual harassment while at Perini. She was diagnosed as having chronic anxiety with phobic features and chronic depression.
In 2001, she reported having family problems and this worried her significantly. In 2003, a report indicated that she had not had her Zoloft in weeks and the nausea and vomiting may have resulted from her anxiety and depression. Also in 2003, another examiner, Dr. Jonathan Cole, found that there are "psychological factors creating or exacerbation [sic] the patient's pain presentation.... She is overly focused on her health at this time and she can be passive/aggressive and get back at other people indirectly when she feels she has been wronged."
Pain Management and Other Conditions
Over the next 10 years, Alley moved twice for personal reasons, first to South Carolina and then Kentucky. She continued to see various doctors including many pain management specialists. In South Carolina at the Carolina Spine Institute, Dr. Leonard Forrest opined that her neck issues "are considered to be soft-tissue related only." In 1998, Dr. Forrest believed that the treatment had reached "maximum medical improvement" after a series of epidural injections in the L4, L5 region of her back. Alley eventually switched doctors, and started seeing Dr. Mark Netherton who suggested the use of Racz catheter procedure and completed this operation in September 1998. When this procedure did not prove to be effective, Dr. Netherton suggested that the last thing they could try that would be helpful but "not make her 100%" was to implant a dorsal column stimulator for pain control ("ANS unit"). In 2001, she received the ANS unit.
In Kentucky, Dr. Harold Rutledge treated Alley at the Central Kentucky Pain *432 Professionals, PLLC. He reported in his medical record:
I attempted to clarify exactly where she was complaining of new pain in the right lower extremity. I asked specifically if she could describe the pain in the front, side, back of the upper left and whether it extended below the knee into the foot, etc. She seemed not to be able to do this and three minutes or so later, I still was unclear exactly where she was experiencing pain in her right leg.
Alley also saw Dr. Mark Delomas in Kentucky, and he performed another operation, a bilateral lumbar facet injection with fluoroscopy.
The record also indicates that over the past 13 years she has complained of various symptoms and "new" medical issues developed including incontinence, upper extremity weakness and numbness, leg pain, gum disease as a result of her prescribed medications, ANS unit malfunction, and fibromyalgia.
Causal Connection
After a thorough review of the evidence we cannot find a causal connection of the various conditions to the Perini accident. First we note that Alley's psychological evaluations all allude to a "sexual harassment" incident that occurred on the job presumably while at Perini yet nothing is mentioned about the actual on-the-job accident. The reports also indicate that her psychological issues manifest themselves as somatic health issues including chronic pain. This was evident early on when the first psychological "consult indicated that, somatic complaints have characterized the past year." The same diagnosis has been made over the last decade regarding her psychological state and we cannot, by a preponderance of the evidence, attribute her various psychological issues to the accident.
Further, we cannot determine the various medicines and treatment that have multiplied over the years to be related to the Perini accident. We find the car accident Alley had in 1995 to be of great significance and a superseding incident. The record indicates that Alley was doing better before her motor vehicle accident. Several of the complaints Alley had at trial could be directly linked to the motor vehicle incident. In addition, several reports over the last decade consistently attribute her back pain to the scarring from the previous surgeries and not to the Perini accident. In May 1996, Dr. Zum Brunnen noted that he does "not advise surgical treatment." This same analysis was made five years later when Alley went to the Carolina Spine Institute. A doctor there stated that she would not be a candidate for back surgery.
Accordingly, we analyze each of the conditions that the WCJ found were a consequence of her work-related injury.
Chronic Pain: The record does not disclose whether the chronic pain is due to the previous surgeries, the motor vehicle accident, natural aging, or psychological issues manifesting themselves as somatic conditions. Because we have determined that issues with the hernia have been resolved, and the current general pain cannot be causally related to the "mild ligamentous strain" from 14 years ago, we find the WCJ was manifestly erroneous in awarding medical benefits for chronic pain.
Incontinence: Her medical records vary as to whether she suffered from bowel or bladder dysfunction. In 1999, the first time incontinence is mentioned, Alley explained that this occurred after one of her epidural injections. However in 2000, one report indicates she does not suffer from incontinence. There is also some indication that this could be a result of a rectal fistula that was repaired in 1991. *433 Dr. Rutledge was unable to determine a connection between her medications for her back problems and the incontinence. Dr. Steven Swift, a South Carolina doctor treating Alley for incontinence, indicated that he could not determine the exact cause and that it is a "relatively impossible task." Therefore we find the WCJ was manifestly erroneous in its finding.
Depressive Disorder: As we noted above, there were several accounts of Alley's anxiety over her perceived "sexual harassment" at work which is not the subject of this lawsuit. When she did mention her back pain during these consults she reported being afraid of future surgeries and talked about her previous back surgeries. There has been no indication that future back surgery is necessary.
Treatment for side effects from her prescription medications: Since we cannot determine the duration of use and which medications were legitimately used to manage her mild ligamentous strain 14 years ago if any we cannot find that all side effects are covered as a result of the Perini accident.
Dental condition, dry mouth and dry eyes: These conditions are side-effects from her medication intake. Nothing in the record specifically connects pain medication to her mild ligamentous strain or hernia. As such, the WCJ erred in finding these to be a derivative of the Perini accident.
Neck: After the Perini accident, several tests showed no evidence of neck-related injuries. In 1998, she reported her neck symptoms were minor. We cannot find supporting evidence relating the pain to the Perini accident. In addition, there have been several superseding incidents that could have caused the neck pain, e.g., car accident, psychological issues, etc. Therefore, we find that the WCJ erred in its findings.
Back: All reports indicate that the pain Alley continues to experience is related to scarring from the initial surgeries predating her employment at Perini. Therefore we disagree with the WCJ that this condition is related to the Perini accident.
Leg Pain/Nerve Damage: Here, Alley fails to causally connect this condition to the Perini accident. Several MRIs of the lumbar spine show the scarring from the previous surgeries as a possible reason for this condition. We also mention that the treating physicians had a hard time identifying the issue to begin with. Again, the evidence does not support the WCJ's findings.
Headaches: First indication of headaches, according to the record, were in 2004. There is no evidence what the cause or relationship is to the various medical conditions and procedures Alley has had. Therefore we find the WCJ erred in finding this treatment is related to the Perini accident.
Pain Management: The findings have been consistent among the pain management doctors that the treatments are not helpful for Alley. Dr. Rutledge opined that Alley has an expectation regarding treatment that was "unrealistic." He further stated that:
It appears to me that Alley has had good treatment in at least two very good pain clinics. Despite their efforts, she continues to report her pain level at 10+. It is unlikely that further aggressive therapy will make any significant difference.... I am of the opinion that Ms. Alley's report of the current pain condition is unreliable and report of response to therapy is at best difficult to assess.
*434 In addition to its ineffectiveness, we cannot find a causal connection between the need for pain management and the Perini accident. We find the WCJ was manifestly erroneous in awarding this treatment.
Hernia: Alley, in her brief, admits that her hernia had been "fixed" and the record does not indicate any further issues related to the hernia.
ANS unit: The unit was placed for back and leg pain that cannot be causally linked to Perini accident. Nevertheless, several doctors did not feel that anything should be done. In 2004, Dr. Delomas stated that he "could find nothing wrong with it and would not be doing surgery on the unit again. He further advised her to returned to clinic where she had it put in to see if they had any options for her...." We cannot find the removal of the unit is either necessary or causally related to the Perini accident.
Other findings: In light of our reversal of medical treatment of all the above listed medical conditions, we also reverse the WCJ's grant of choice of pain management physician. Furthermore, we reverse the order for payments of medical bills and mileage expenses related to the conditions and the reimbursement to Medicare/Medicaid. The WCJ was manifestly erroneous in assessing penalties for the delay in approval of treatment of incontinence and the removal of the ANS unit as these claims were reasonably controverted. See La. R.S. 23:1201(F)(2).
While we sympathize with Alley's ongoing afflictions, after a thorough review of the voluminous medical evidence, we fail to find a causal connection between the Perini accident and the array of ailments with two exceptions, neither of which require further treatment: the hernia and mild ligamentous strain of the back. Alley's medical evidence leaves the question open to speculation or conjecture regarding the source of her disabilities, and therefore she failed to carry the burden of proof.
Fraud charge
Perini argues that Alley committed fraud when she allegedly "made false statements" to obtain an adjustable therapeutic bed. Specifically, Perini argues that she manipulated Dr. Delomas into writing a prescription claiming she had already received approval from the insurance company. Louisiana R.S. 23:1208 provides in pertinent part:
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation[.]
E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter[.]
Alley argues that there was a misunderstanding and points out that she never received the bed. We do not believe Alley intentionally tried to defraud the workers' compensation insurance, and find that the WCJ was not plainly wrong in finding that there was no violation of La. R.S. 23:1208.
CONCLUSION
In light of our findings, we note that Robin Alley has had a windfall of benefits after having numerous medical procedures, prescriptions, and doctors paid for by the worker's compensation insurance for 10 years. While we do not dispute that Robin Alley suffers from physical pain we cannot find a continued causal connection to the Perini accident.
We affirm the WCJ's finding that Alley was not entitled to permanent or total disability benefits under the Workers' *435 Compensation Act, medical treatment regarding her heart condition or her left shoulder injury, or home health care. We also affirm the WCJ's finding that Alley did not violate La. R.S. 23:1208. In all other respects, the judgment is reversed. Costs are to be assessed equally among the parties.
AFFIRMED IN PART; REVERSED IN PART; RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579668/ | 324 N.W.2d 396 (1982)
212 Neb. 578
Rona ALBERS, Appellee,
v.
OVERLAND NATIONAL BANK, a national banking association, Appellant.
No. 82-146.
Supreme Court of Nebraska.
September 17, 1982.
*397 Denzel R. Busick of Luebs, Dowding, Beltzer, Leininger & Smith, Grand Island, for appellant.
John A. Wagoner, Grand Island, for appellee.
Submitted without oral argument.
Before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
PER CURIAM.
The plaintiff, Rona Albers, commenced this action to obtain a declaratory judgment that a hypothecation agreement to the defendant, Overland National Bank, was invalid. The hypothecation agreement pledged 250 shares of Triad stock owned by the plaintiff as security for any indebtedness of Oscar G. Mueller, the plaintiff's father, to the bank. Both parties filed motions for summary judgment. The trial court sustained the plaintiff's motion and ordered the bank to return the stock certificate, which was the subject of the pledge, to the plaintiff. The defendant bank has appealed.
On August 31, 1979, the plaintiff signed a security agreement, a hypothecation agreement, and an assignment of certificate No. 13 for 250 shares of stock in the Triad Fastener Corporation, a closely-held corporation, to the defendant.
The plaintiff signed these papers at the request of her father to supply additional collateral to secure his loan at the bank. The plaintiff did not receive a copy of the loan agreements nor any document informing her of her liability in the event of her father's default. The evidence is in conflict as to whether the bank delivered copies of the loan agreements to Mueller for the plaintiff.
The loan to Mueller, which was approximately $79,000, related to his business ventures. It was to be paid in monthly installments and the note bore interest at the rate of 12 percent per annum.
After Mueller defaulted on the loan, the bank gave notice that it would enforce its rights under the agreements. This action was commenced to determine the rights of the parties in the stock. The trial court found that Neb.Rev.Stat. § 45-183 (Cum. Supp.1980) applied to the transaction and, because the bank had failed to comply with the statute, the bank had no rights in the stock.
The principal issue upon the appeal is whether § 45-183 applies to the transaction. The section is a part of the Consumer Credit Act, sometimes referred to as the "Installment Loan Act" or "Small Loan Act," and provides as follows: "(1) No natural person, other than the spouse of the borrower, is obligated as a cosigner, comaker, guarantor, endorser, surety, or similar party with respect to a loan, unless before or contemporaneously with signing any separate *398 agreement of loan or any writing setting forth the terms of the borrower's agreement, the person receives a separate written notice that contains a completed identification of the loan he or she may have to pay and reasonably informs him or her of his or her obligation with respect to it.
"(2) Such notice shall be in the form prescribed by the Department of Banking and Finance.
"(3) A person entitled to notice under this section shall also be given a copy of any writing setting forth the terms of the borrower's agreement and of any separate agreement of obligation signed by the person entitled to the notice."
The plaintiff had no personal liability so far as her father's indebtedness was concerned. She was not a cosigner, comaker, guarantor, endorser, or surety on his loan. It would seem that she was not a "similar party" within the meaning of the statute because all of the classifications set out in the statute refer to parties who would be personally liable for the indebtedness.
The more fundamental question is whether the statute has any application to a business loan such as that made to Mueller by the bank.
Section 45-183 was enacted in 1979 as a part of L.B. 87, which revised the Nebraska Consumer Credit Act. The committee statement of intent read as follows: "LB 87 revises the Nebraska Consumer Credit Act as well as adds a number of consumer protective devices for small loans. Specific requirements for notice, curing default, deficiency judgments and revolving credit are in the bill." (Emphasis supplied.) The legislative history supports the conclusion that § 45-183 is a part of the Consumer Credit Act. See, also, Neb.Rev.Stat. § 45-117 (Cum.Supp.1980), which makes reference to § 45-183 as one of the terms and conditions under which a licensee pursuant to the act can make loans.
In Gruenemeier v. Commonwealth Co., 178 Neb. 66, 70, 131 N.W.2d 713, 716 (1964), the act's purpose was described as follows:
"[T]he Installment Loan Act, sections 45-114 to 45-158, R.R.S. 1943, comprehensively regulates and limits all loans made by such a licensee to small borrowers."
The plaintiff relies on cases such as State ex rel. Beck v. Associates Discount Corp., 168 Neb. 298, 96 N.W.2d 55 (1959), which hold that the inhibitory provisions of the Installment Loan Act apply to all persons whether they are licensees or nonlicensees. The rule, of course, has no application if the loan in question is not subject to the act.
In Pattavina v. Pignotti, 177 Neb. 217, 128 N.W.2d 817 (1964), we recognized that the Installment Loan Act had no application to traditional loans made by nonlicensees, although payable in installments. We said at 220-21, 128 N.W.2d at 819: "It was never intended, as we view it, to include within the act persons who were not required to obtain a license, who made loans in the traditional manner at 9 percent per annum or less, such as amortized real estate loans, bank-term loans, interfamily loans, and others, simply because they were payable in installments. The general purpose of the act was to provide a means for charging interest in excess of 9 percent per annum, to regulate licensees engaging in the lending business under the act, and to provide penalties for violations of the act. A nonlicensee, by the holding of this court, who made an installment loan in excess of 9 percent per annum, is subjected to the penalties of the act, but not to the regulations imposed on a licensed business. To hold otherwise would place numerous types of amortized and installment loans in jeopardy, although made at interest rates at less than 9 percent per annum. This is not an evil contemplated to be corrected; in fact, it is no evil at all. The problem being dealt with is the permitting of rates of interest in excess of 9 percent per annum, in specified cases, ostensibly where the risk is great and the expense prohibitive. We can come to no other conclusion than that the act was never intended to include the traditional form of making loans by nonlicensees at a rate of interest not exceeding 9 percent per *399 annum." (Emphasis supplied.) The reference to the 9 percent interest ceiling is, of course, no longer applicable in view of the many changes which have been made in the interest statutes.
In Seldin v. Northland Mortgage Co., 189 Neb. 175, 202 N.W.2d 174 (1972), we noted that it may be a question of fact as to whether a particular transaction is subject to the Installment Loan Act. We said there that the term "every loan contract" in the Installment Loan Act means every installment loan contract within the meaning and purpose of the act.
The Installment Loan Act contemplates a "small loan" where the risk is great and the expense under conventional interest rates prohibitive. The act was never intended to apply to nonlicensees who make loans in the traditional manner at conventional rates. We think it is clear, as a matter of law, that the defendant bank's loan to Mueller was not a "small loan" or "installment loan" within the meaning and purpose of the Nebraska Consumer Credit Act. Section 45-183 was not applicable to the transaction and the defendant was not required to comply with its requirements.
It is unnecessary to consider the other contentions of the parties.
The judgment of the District Court is reversed and the cause remanded for further proceedings.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579273/ | 12 So. 3d 555 (2009)
Myron POLLARD, Appellant
v.
STATE of Mississippi, Appellee.
No. 2008-CA-00678-COA.
Court of Appeals of Mississippi.
June 23, 2009.
*556 Cheryl Ann Webster, Clarksdale, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before KING, C.J., BARNES and ISHEE, JJ.
BARNES, J., for the Court.
¶ 1. Myron Pollard appeals an order by the Coahoma County Circuit Court denying, for lack of jurisdiction, his "Motion to Set Aside Involuntary Guilty Plea and Subsequent Sentencing Judgment and Motion Demanding Trial." Finding that the circuit court did, indeed, lack jurisdiction, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. On May 29, 2007, Pollard was charged in two separate indictments Cause No. 2007-042 and Cause No. 2007-043. Cause No. 2007-042, which is at issue in this appeal, charged Pollard with possession of codeine (a Schedule V controlled substance) and possession of marijuana. Cause No. 2007-043 charged Pollard with two countspossession of cocaine and possession of marijuana.[1] Following a plea-qualification hearing on July 13, 2007, Pollard pleaded guilty to all four counts. His plea was "open" and not based upon any recommendation by the district attorney. The circuit court entered an order accepting Pollard's guilty pleas on July 16, 2007, but deferred sentencing pending a presentence investigation report as Pollard had applied for participation in the drug court.[2] However, Pollard's application to the drug court was rejected. At the sentencing hearing on August 20, 2007, the court orally sentenced Pollard to fifteen years in the custody of the Mississippi Department of Corrections and imposed a $5,000 fine for possession of codeine and a $250 fine for possession of marijuana in Cause No. 2007-042. Pollard was also *557 sentenced to fifteen years in the custody of the Mississippi Department of Corrections, along with a $5,000 fine for possession of cocaine and a $250 fine for possession of marijuana in Cause No. 2007-043, with the sentence to run concurrently with the sentence imposed in Cause No. 2007-042. The sentencing orders were entered on August 30, 2007.
¶ 3. On September 6, 2007, Pollard filed a motion to set aside his guilty plea and sentence for Cause No. 2007-042 (possession of codeine and possession of marijuana) claiming that his guilty plea was given involuntarily and demanding a jury trial.[3] At a hearing on March 12, 2008, the circuit judge denied Pollard's motion based on a lack of jurisdiction. The court stated:
[T]he Court is of the opinion that it is without jurisdiction to hear the present motion. The term of court in which the Defendant entered his plea has since expired, and the Court did not retain jurisdiction over this matter past sentencing. The only avenue available to the Defendant at this time is through the uniform post-conviction collateral relief act.
However, Pollard rejected the circuit judge's invitation at the hearing to treat the motion as one filed under the Mississippi Uniform Post-Conviction Collateral Relief Act, indicating that he would prefer to appeal the court's denial of his motion to set aside his guilty plea. We now consider Pollard's appeal.
WHETHER THE CIRCUIT COURT HAD JURISDICTION TO CONSIDER POLLARD'S MOTION TO SET ASIDE HIS GUILTY PLEA.
¶ 4. Pollard asserts that the circuit court should have considered his motion based on Rule 10.05 of the Uniform Rules of Circuit and County Court, which provides that a motion for a new trial should be filed within ten days of the entry of judgment. We find Pollard's argument unpersuasive. A motion to withdraw or set aside a guilty plea is not equivalent to a motion for a new trial. Since there is no trial held upon an entry of a guilty plea, Rule 10.05 does not apply in cases where the defendant pleaded guilty. Leverette v. State, 812 So. 2d 241, 244(¶ 9) (Miss.Ct.App. 2002).
¶ 5. Pollard also relies on Presley v. State, 792 So. 2d 950, 953(¶ 10) (Miss.2001), for the proposition that a motion for withdrawal of a guilty plea may be made after sentencing. However, this is only done in order to "correct [a] manifest injustice[,]" and it is at the discretion of the trial court. Id. Additionally, although a trial court may, pursuant to Mississippi Code Annotated section 11-1-16 (Rev.2002), "consider a pending motion after a term [of court] has ended[,]" this statute is not applicable here. See Presley, 792 So.2d at 953(¶ 13). The term of court ended on August 17, 2007. Thus, Pollard's motion, which was filed on September 6, 2007, was not filed until after the term of court had expired and after the sentencing order was entered on August 30, 2007. Accordingly, the circuit court had no authority to consider Pollard's motion.
¶ 6. Without addressing the merits of Pollard's case and leaving him free to pursue any remedy available under the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated sections 99-39-1 to -29 (Rev.2007), we affirm the circuit court's denial of Pollard's motion to set aside his guilty plea.
*558 ¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
NOTES
[1] Cause No. 2007-043 is also before this Court on a separate appeal in Case No. 2008-CA-00679-COA.
[2] See generally Miss.Code Ann. § 9-23-1 (Supp.2008) (Alyce Griffin Clarke Drug Court Act).
[3] Pollard claims that he was informed of the rejection of his application to the drug court only minutes before his sentencing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579278/ | 516 F. Supp. 2d 653 (2007)
The ENVIRONMENTAL CONSERVATION ORGANIZATION, Plaintiff
v.
The CITY OF DALLAS, Defendant.
No. 3-03-CV-2951-BD.
United States District Court, N.D. Texas, Dallas Division.
April 26, 2007.
*654 *655 F. Leighton Durham, III, Kirk L. Pittard, Durham & Pittard, Frederick William Addison, Munsch Hardt Kopf & Harr, Kirsten M. Castaneda, Locke Liddell & Sapp, Dallas, TX, Jan R. Thurman, Law Offices of Jan R. Thurman, Arlington, TX, for Plaintiff.
David E. Howe, Thomas P Perkins, Jr, Dallas City Attorney's Office, James D. Payne, Jean M. Flores,. Michael C. Christman, Guida Slavich & Flores, Dallas, TX, for Defendant.
MEMORANDUM OPINION AND ORDER
JEFF KAPLAN, United States Magistrate Judge.
Defendant the City of Dallas ("the City") has filed a motion for summary judgment in this citizen enforcement action brought under section 505 of the Federal Water Pollution Control Act, also known as the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq. For the reasons stated herein, the motion is granted.
I.
The City operates a municipal separate storm sewer system ("MS4") that collects and discharges storm water into the Trinity River and its tributaries. (See Def. MSJ App. at 279). In March 1997, the City obtained a storm water discharge permit from the United States Environmental Protection Agency ("EPA"). (Id. at 39). As required by the permit, the City created and implemented a comprehensive storm water pollution and management program ("SWMP") designed to reduce the discharge of pollutants into the MS4. (Id. at 71-272). The permit became effective on May 1, 1997 and expired at midnight on April 30, 2002. (Id. at 39). A renewal permit was issued on February 22, 2006 and remains in effect today. (Id. at 279).[1]
On December 9, 2003, The Environmental Conservation Organization ("ECO"), a Texas non-profit environmental watch group, sued the City in federal district court for CWA violations ("the ECO Litigation"). Succinctly stated, ECO alleges that the City has all but ignored its obligations under the SWMP by failing to develop and implement an effective program to monitor and reduce the discharge of pollutants into the MS4. (See Plf. Orig. Compl. at 8, ¶¶ 29-34).[2] A list of more than 150 specific violations of Sections 4.1-4.20 of the SWMP is included as an attachment to ECO's complaint. (Id., Attch. A).
On February 6, 2004, the EPA issued a Compliance Order citing the City for multiple violations of its SWMP, including *656 many of the violations made the basis of the ECO Litigation. (Def. MSJ App. at 610-52). Among the violations identified in the Compliance Order are:
SWMP
Task or
Subtask No. Description of Alleged Violation
4.8.1 Failure to complete the following required
4.8.2 individual tasks as scheduled to reduce to
the maximum extent practicable, pollutants
discharged from the MS4 associated
with the application of pesticides, herbicides,
and fertilizer, which include controls
such as educational activities, permits, and
certifications for applications in public
right-of-ways and at municipal facilities.
Individual Task Completion Date
Task 1 Years 1-5 (1998-2002)
Task 2 Years 1-5 (1998-2002)
4.10.2 Failure to complete the following required
4.10.3 individual tasks as scheduled to conduct
4.10.4 ongoing field screening activities.
4.10.6
4.10.9 Individual Task Completion Date
Task 2 Years 1-2 (1998-1999)
Task 3 Years 1-5 (1998-2002)
Task 4 Years 1-5 (1998-2002)
Task 6 Years 1-2 (1998-1999)
Task 9 Years 1-5 (1998-2002)
4.12.1.1 Failure to complete the following required
4.12.1.2 individual tasks as scheduled to prevent,
4.12.1.3 contain, and respond to spills that may
4.12.1.4 discharge and flow into the MS4.
4.12,1.5
4.12.1.6 Individual Task Completion Date
4.12.1.7 Task 1
4.12.1.8 Subtask 1 Years 2-5 (1999-2002)
4.12.1.9 Subtask 2 Years 2-5 (1999-2002)
4.12.3.1 Subtask 3 Years 2-5 (1999-2002)
4.12.3.2 Subtask 4 Years 2-5 (1999-2002)
Subtask 5 Years 2-6 (1999-2002)
Subtask 6 Years 2-5 (1999-2002)
Subtask 7 Years 2-5 (1999-2002)
Subtask 8 Years 2-5 (1999-2002)
Subtask 9 Years 2-5 (1999-2002)
Task 3
Subtask 1 Year 3 (2000)
Subtask 2 Years 3-5 (2000-2002)
4.14.3.2 Failure to complete the following required
4.14.3.3 individual tasks as scheduled to implement
educational activities, public information
activities, and other activities to facilitate
the proper management and disposal of
used oil and toxic materials.
Individual Task Completion Date
Task 3
Subtask 2 Years 1-S (1998-2002)
Subtask 3 Years 1-5 (1998-2002)
4.15.2 Failure to complete the following required
individual tasks as scheduled with regard
to programs and/or controls which are currently
implemented to limit infiltration of
seepage from the municipal sanitary sewers
to the 5154.
Individual Task
Task 2
Failure to monitor and test for the presence
of wastewater I/I and overflows and
direct detected problem areas to the Water
Utilities Department for identification
and correction under the NPDES Permit
No. TX0047830, as specified in the revised
SWMP.
4.19.5 Failure to complete the following required
4.19.6 individual tasks, as scheduled, to mitigate
the adverse environmental impact of storm
water runoff by developing Best Management
Practice (BW) requirements.
Individual Task Completion Date
Task 5 Years 1-5 (1998-2002)
Task 6 Years 1-5 (1998-2002)
(Id. at 631, ¶ 57 & 640-46). Following protracted negotiations, the City and the EPA settled their differences and entered into a Consent Decree which resolves, inter alia, "the violations alleged in the Compliance Order through the date of lodging." (Id. at 356, ¶ 71). Under the terms of the settlement, the City agreed to pay $800,000 in civil penalties, to undertake two supplemental environmental projects at a cost of at least $1.2 million, to establish an environmental management system, to adhere to minimum staffing and inspection requirements, and to pay stipulated penalties for future violations of the CWA. (Id. at 744-50, 755). On May 10, 2006, the United States of America, joined by the State of Texas, filed suit to obtain judicial approval of their settlement with the City and entry of the Consent Decree ("the EPA Litigation"). Although ECO did not oppose entry of the Consent Decree, it did complain to the EPA and Texas authorities that the terms of the settlement were inadequate in various respects. (Id. at 657-60). On August 28, 2006, the court determined that the. Consent Decree was fair, reasonable, and consistent with the purposes of the CWA, and entered the decree as its final judgment in the EPA Litigation. (See id. at 774).
The City now moves for summary judgment in the ECO Litigation on the ground *657 that the Consent Decree is res judicata of all claims asserted in that case.[3] The issues have been fully briefed by the parties and the motion is ripe for determination.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Where, as here, a party seeks summary judgment on an affirmative defense, the movant must establish "beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (emphasis in original). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir.1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir.1993).
A.
The rule of res judicata, or claim preclusion, "bars the litigation of claims that either have been litigated or should have been raised in an earlier suit." Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005), cert. denied, ___ U.S. ___, 126 S. Ct. 1662, 164 L. Ed. 2d 397 (2006). The test for res judicata has four elements: (1) the parties in the subsequent action are identical to, or in privity with, the parties in the prior action; (2) the judgment in the prior case was rendered by a court of competent jurisdiction; (3) there has been a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. Id.; see also Ellis v. Amex Life Insurance Co., 211 F.3d 935, 937 (5th Cir, 2000). Although the Fifth Circuit has never considered whether res judicata applies to a citizen enforcement action under the CWA, those courts that have considered the issue have concluded that the principles of res judicata apply to citizens suits, like the one brought by ECO, where the government subsequently files suit and obtains a judgment based on the same violations alleged in the earlier-filed citizen enforcement action. See, e.g. Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage Dist., 382 F.3d 743, 752 (7th Cir.2004), cert. denied, 544 U.S. 913, 125 S. Ct. 1593, 161 L. Ed. 2d 293 (2005); Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 774 (9th Cir.1994); Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 933 F.2d 124 (2d Cir.1991); United States v. City of Green Forest, 921 F.2d 1394, 1403-05 (8th Cir.), cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991).
B.
ECO first argues that a citizen suit cannot be dismissed on res judicata grounds where the government fails to initiate an enforcement proceeding within 60 days of receiving notice of the alleged CWA violation. In support of this argument, ECO relies on the federal statute authorizing citizen enforcement actions, 33 § 1365, which provides, in pertinent part:
*658 Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf
against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation[.]
33 U.S.C. § 1365(a)(1). Subsection (b) prohibits the filing of a citizen suit:
prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order[.]
Id. § 1365(b)(1)(A). According to ECO, Congress imposed this 60-day notice requirement "as the way to balance the potential tensions between allowing citizens to sue and preferring the government to do so." (Plf. MSJ Resp. Br. at 3). Because the government did not act within the 60-day waiting period, ECO believes that it may continue to prosecute its citizen suit, notwithstanding the subsequent enforcement action filed by the government which has been resolved by entry of a consent decree.
The court cannot accept ECO's broad reading of section 1365. Neither the statute itself nor the cases cited by ECO in its summary judgment response address the preclusive effect of a consent decree entered in a government enforcement action that was filed after the citizen suit was initiated. Section 1365, by its terms, specifies the jurisdictional prerequisites for filing a citizen enforcement action under the CWA. Similarly, the cases cited by ECO deal with standing, statutory preclusion, and mootness. None of those cases even mention, much less discuss, the res judicata implications of a consent decree entered in a government enforcement action. See Altamaha Riverkeepers v. City of Cochran, 162 F. Supp. 2d 1368, 1373 (M.D.Ga. 2001); Public Interest Research Group of New Jersey, Inc. v. Elf Atochem North America, Inc., 817 F. Supp. 1164, 1171-73 (D.N.J.1993); Natural Resources Defense Council, Inc. v. Loewengart & Co., 776 F. Supp. 996, 1000 (M.D.Pa.1991).[4] The court is unaware of any authority which would prevent application of the well-settled principles of res judicata to citizen suits brought under the CWA.
C.
Having determined that the City may assert a res judicata defense, the elements of the defense must be examined. ECO tacitly concedes the second and third elements that the Consent Decree was rendered by a court of competent jurisdiction and constitutes a final judgment on the merits. Instead, EGO argues that: (1) the privity requirement is not met because the government did not "diligently pursue" its case; and (2) the Consent Decree does not resolve all of the claims raised in the citizen suit. (Plf. MSJ Resp. Br. at 22-25). Assuming that diligent prosecution is required.[5] government prosecutions under the CWA are heavily presumed to be "diligent." *659 See, e.g. Friends of Milwaukee's Rivers, 382 F.3d at 760; Karr v. Hefner, 475 F.3d 1192, 1197-98 (10th Cir.2007); Citizens Legal Environmental Action Network v. Premium Standard Farms, Inc., No. 97-6073-C-SJ, 2000 WL 220464 at *12 (W.D.Mo. Feb.23, 2000) (citing cases); Williams Pipe Line Co. v. Bayer Corp., 964 F.Supp, 1300, 1324 (S.D.Iowa 1997). Indeed, the court in Premium Standard Farms noted that absent unique circumstances, "a consent order should be viewed as sufficient in itself to satisfy the requirement of diligent prosecution." Premium Standard Farms, 2000 WL 220464 at *18, quoting Sierra Club v. SCM Corp., 572 F. Supp. 828, 831 n. 3 (W.D.N.Y.1983). The court concludes, as a matter of law, that the EPA and the State of Texas diligently prosecuted their enforcement action against the City as evidenced by the comprehensive relief obtained in the Consent Decree.
In order to determine whether the ECO Litigation and the EPA Litigation involve the same claims or causes of action, the court uses a "transactional test." As the Fifth Circuit explained:
Under the transactional test, a prior judgment's preclusive effect extends to all rights of the plaintiff with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose. What grouping of facts constitutes a "transaction" or a "series of transactions" must be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. If a party can only win the suit by convincing the court that the prior judgment was in error, the second suit is barred.
Test Masters, 428 F.3d at 571 (internal citations omitted). The critical issue is whether the two suits are based on the "same nucleus of operative facts." Id.; see also Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir.2004). ECO argues that the complaint in the EPA Litigation does not mention sections 4.8, 4.10, 4.12, 4.14, 4.15, or 4.19 of the SWMP. While this may be true, ECO ignores the fact that the Consent Decree expressly resolves "the violations alleged in the Compliance Order through the date of lodging." (Def. MSJ App. at 356, ¶ 74). The Compliance Order, which is attached as an appendix to the Consent Decree, specifically addresses violations of sections 4.8, 4.10, 4.12, 4.14, 4.15, and 4.19. (Id. at 640-44, 646). In addition, the City has submitted a detailed summary explaining how the Consent Decree resolves each and every violation alleged in the ECO Litigation. (Id., 781427).[6] Consequently, ECO *660 is precluded from litigating the same claims in a citizen suit. See Premium Standard Farms, 2000 WL 220464 at *7, citing 18A Wright, Miller & Cooper, Federal Practice and Procedure, § 4443 at 386-87 (1981) and Larken, Inc., v. Wray, 189 F.3d 729, 733 n. 9 (8th Cir.1999).
CONCLUSION
The City's motion for summary judgment [Doc. # 101] is granted on its affirmative defense of res judicata. The court will dismiss all remaining claims in this action by separate judgment filed today.
SO ORDERED.
NOTES
[1] In October 2001, the City applied for a renewal storm water discharge permit. However, a new permit was not issued until February 22, 2006. (Def. MSJ App. at 279). In the interim, the City continued to operate its municipal separate storm water system under the expired permit as allowed by federal law. See 40 C.F.R. § 122.6.
[2] ECO also accused the City of regularly discharging pollutant-laden water from its various facilities without a National. Pollutant Discharge Elimination System ("NPDES") permit or a Texas Pollutant Discharge Elimination System ("TPDES") permit, in violation of such permits, or at levels far exceeding any discharge permitted under state and federal law. (See Plf. Orig. Compl. at 5-7, ¶¶ 20-28). Those claims were dismissed without prejudice for failure to provide adequate notice in accordance with 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.3. The Environmental Conservation Organization v. The City of Dallas, No. 3-03-CV-2951-BD, 2005 WL 1771289 (N.D.Tex. Jul.26, 2005).
[3] The City also argues that the claims alleged by ECO in its complaint, which are based on violations of a permit that expired in 2002, are moot. Because the City is entitled to summary judgment on its res judicata defense, the court need not address this alternative ground for dismissal.
[4] The court notes that in two of those cases, Natural Resource Defense Council and Altamaha Riverkeepers, res judicata would not apply in any event because the consent decree had not yet been entered by the court and was not a final judgment.
[5] The Seventh Circuit is the only appellate court to suggest that "diligent prosecution" is a necessary element of privity. See Friends of Milwaukee's Rivers, 382 F.3d at 760 (notwithstanding the heavy presumption in favor of diligent prosecution by the government, the court must examine whether the consent decree was "capable of requiring compliance with the Act and [was] in good faith calculated to do so"). Other courts have expressly held that the "diligent prosecution" requirement only limits the ability of a citizen to file suit after "the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order." See 33 U.S.C. § 1365(b)(1)(B). "Diligent prosecution" does not appear to be a factor in determining whether res judicata precludes a citizen from continuing to prosecute an earlier-filed enforcement action after entry of a consent decree in a subsequent case brought by the government. See Ellis v. Gallatin Steel Co., 390 F.3d 461, 473 (6th Cir.2004); City of Green Forest, 921 F.2d at 1403-04.
[6] In its complaint, ECO alleges that the City violated Subtask 4.10.1 of the SWMP by "fail[ing] to institute' a citizen report telephone number" and Subtask 4.14.4 by "fail[ing] to initiate [a] public information campaign for HHW issues." (See Plf. Orig. Compl., Attch. A at 13, 15). Neither the Compliance Order nor the complaint filed in the EPA Litigation specifically refer to these subtasks. However, as the City explains in its summary, Subtask 4.10.2, which requires the City to institute a citizen observer program, includes the creation of a citizen report telephone number. (See Def. MSJ App. at 812). Subtask 4.10.2 is referenced in the Compliance Order. (Id. at 641). The City also points out that the SWMP does not include a Subtask 4.14.4, nor is there any corresponding requirement that matches ECO's description. (See id. at 817). ECO offers no evidence to the contrary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579549/ | 671 N.W.2d 56 (2003)
256 Mich. App. 603
Daniel P. McMANAMON, Plaintiff-Appellant,
v.
CHARTER TOWNSHIP OF REDFORD, Defendant-Appellee, and
Kevin Kelley and Miles R. Handy, II, Defendants.
Docket No. 235816.
Court of Appeals of Michigan.
Submitted November 12, 2002, at Detroit.
Decided May 27, 2003, at 9:00 a.m.
Released for Publication July 14, 2003.
*57 Gary T. Miotke, Allen Park, for the plaintiff.
Cummings, McClorey, Davis & Acho, P.L.C. (by Joseph Nimako), Livonia, for the defendant.
Before: O'CONNELL, P.J., and WHITE and B.B. MacKENZIE [*], JJ.
WHITE, J.
Plaintiff appeals as of right the circuit court's dismissal of his claim under the Employee Right to Know Act (ERKA), M.C.L. § 423.501 et seq. We reverse and remand for further proceedings.
The question is whether in an action to compel compliance under § 11 of ERKA, M.C.L. § 423.511, an employee must first obtain an order compelling compliance and suffer a violation of that order before the employee can recover damages for a violation of the act. Defendant so argues, and the circuit court agreed. We conclude that the act does not condition a recovery of damages for violation of the act on the employer's first violating an order of compliance, and therefore reverse and remand for further proceedings.
I
Plaintiff is a former employee of defendant Charter Township of Redford (defendant). Former defendant Kevin Kelley was, at all times pertinent, the township supervisor.[1] Plaintiff began employment with defendant township in 1980, and worked in the parks and recreation department for about seventeen years. In 1996, plaintiff accepted the position of manager of an indoor ice arena. In late June 1997, former defendant Kelley suspended plaintiff and later terminated his employment. Around the same time, plaintiff and two other township employees were charged with misdemeanor embezzlement. Following a jury trial in district court, plaintiff was acquitted in September 1997. In June and September 1997, Kelley provided information regarding plaintiff's employment to the Redford Observer.
On June 29, 1999, plaintiff filed the instant suit in the Wayne Circuit Court, alleging violation of ERKA for failure to provide the requisite notice upon disclosing employment information to a third party, false light publicity by the individual (former) defendants, disclosure of embarrassing facts by defendant township and (former) defendant Kelley, and defamation *58 by the individual (former) defendants.[2]
Before discovery was complete, defendants filed their first motion for summary disposition under MCR 2.116(C)(7), (8), and (10). The hearing was adjourned several times, apparently to allow plaintiff to conduct uncompleted discovery. Plaintiff deposed the individual defendants and then responded to defendants' motion and also sought partial summary disposition of the ERKA claim, under MCR 2.116(I)(2). The circuit court dismissed all plaintiff's claims except the ERKA claim. The circuit court issued no opinion, but noted on the praecipe/order that defendants' motion was granted with regard to all claims except the ERKA claim, and on a separate praecipe/order that defendants's motion was denied without prejudice and "adopt defendant's brief and oral argument as the basis of my decision."
The individual defendants brought or renewed motions to dismiss in October 2000, and the circuit court dismissed defendant Kelley, in his individual capacity only, and defendant Handy.
At issue in this appeal is defendant's second motion for summary disposition, brought solely under MCR 2.116(C)(8).[3] Defendant's second motion for summary disposition argued that ERKA's plain language requires a plaintiff to file an action to compel compliance with the act before he can be entitled to damages, costs, or reasonable attorney fees. Defendant argued that to meet the act's prerequisites, plaintiff had to file an action to compel compliance, and prevail in such an action by obtaining an order to compel compliance. Defendant argued that because plaintiff had done neither, plaintiff had failed to state a claim and defendant was entitled to summary disposition.
Plaintiff's response to defendant's motion argued that his complaint was one to compel compliance in that it sought more than damages, i.e., equitable relief, costs, interest, and attorney fees, and that plaintiff "wants this Court to grant him an injunction barring future violations of the ERKA." Plaintiff argued that given the clear language of § 11, an employee can be awarded damages for a violation of ERKA.
Defendant's reply brief asserted that an action for equitable relief is not an action to compel compliance under the act, plaintiff could not prevail in an action for injunctive relief because the alleged harm had already occurred, and plaintiff "clearly has adequate remedy of law which is evidenced by his request for damages."
Following an extensive hearing, the court took the matter under advisement. Several weeks later the court granted defendant's motion. No opinion was issued; the court handwrote on the praecipe/order "adopt defendants [sic] brief and oral argument as the basis for my decision."
Plaintiff filed a motion for rehearing or reconsideration, arguing that the circuit court "erred by adopting the Defendants' briefs and oral argument as the basis for its decision." Plaintiff alleged:
(a) This Court should have granted Plaintiff leave to amend his Complaint pursuant to MCR 2.116(I(5)) in order to retitle it "Amended Complaint and Action to Compel Compliance" if the Court *59 had adopted the portion of the Defendants' argument that Plaintiff's pleading had to be titled an "action to compel compliance."
(b) This Court has misframed [sic] the statutory interpretation as being a case where there is a right given under M.C.L. § 423.506 but no remedy given under M.C.L. § 423.511 when in actuality the real issue is when are damages or any other remedy available as remedies under M.C.L. § 423.511.
(c) By adopting the Defendants' reasoning, this Court has failed to consider and to articulate when an employee can bring an action and can recover damages under M.C.L. § 423.511 because the Defendants never articulated when an employee can bring an action and can recover damages under M.C.L. § 423.511.
The circuit court denied plaintiff's motion for reconsideration, writing on the praecipe/order "No palpable error." This appeal ensued.
II
ERKA was enacted in 1978 and took effect on January 1, 1979. Section 6 of the act provides in pertinent part:
(1) An employer or former employer shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, to a party who is not a part of the employer's organization, or to a party who is not a part of a labor organization representing the employee, without written notice as provided in this section.
(2) The written notice to the employee shall be by first-class mail to the employee's last known address, and shall be mailed on or before the day the information is divulged from the personnel record.
(3) This section shall not apply if any of the following occur:
(a) The employee has specifically waived written notice as part of a written, signed employment application with another employer.
(b) The disclosure is ordered in a legal action or arbitration to a party in that legal action or arbitration.
(c) Information is requested by a government agency as a result of a claim or complaint by an employee. [MCL 423.506.]
Section 11 provides:
If an employer violates this act, an employee may commence an action in the circuit court to compel compliance with this act. The circuit court for the county in which the complainant resides, the circuit court for the county in which the complainant is employed, or the circuit court for the county in which the complainant is employed, or the circuit court for the county in which the personnel record is maintained shall have jurisdiction to issue the order. Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award an employee prevailing in an action pursuant to this act the following damages:
(a) For a violation of this act, actual damages plus costs.
(b) For a wilful and knowing violation of this act, $200.00 plus costs, reasonable attorney's fees, and actual damages. [MCL 423.511.]
Plaintiff argues that the court erred in granting defendant's motion for summary disposition because § 11 of ERKA granted plaintiff a remedy based on a substantive violation of the act. Plaintiff relies on the language of § 11, asserting that it provides a clear damages remedy, and also argues that, if this Court *60 were to conclude that § 11 is ambiguous, it must be construed in plaintiff's favor because ERKA is a remedial statute, and remedial statutes are to be liberally construed in favor of the persons the Legislature intended to benefit, i.e., individual employees.
Defendant argues that under ERKA there are two requirements for an award of damages, a court-ordered compliance with the act and a failure to comply with the court's order. Defendant argues that "the employer must first have failed to comply with an order of the court before Plaintiff would be entitled to an award of damages." Defendant also relies on the language of § 11 in advancing this construction.
This Court reviews de novo the circuit court's grant of summary disposition. Beaty v. Hertzberg & Golden, P.C., 456 Mich. 247, 253, 571 N.W.2d 716 (1997). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Patterson v. Kleiman, 447 Mich. 429, 432, 526 N.W.2d 879 (1994). All factual allegations and any reasonable inferences therefrom are accepted as true and construed in the light most favorable to the party opposing the motion. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Id.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp. v. Ann Arbor, 247 Mich.App. 410, 415, 636 N.W.2d 787 (2001). The first criterion in determining intent is the specific language of the statute. In re MCI Telecom Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). The Legislature is presumed to have intended the meaning it plainly expressed. Pohutski v. Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). If reasonable minds can differ with regard to the meaning of a statute, judicial construction is appropriate. Adrian School Dist. v. Michigan Pub. School Employees Retirement Sys., 458 Mich. 326, 332, 582 N.W.2d 767 (1998). The court must consider the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994).
The Legislature's intent with respect to the issue in questionwhether damages are available only after violation of an order compelling complianceis not clear beyond peradventure. On the one hand, the statute does not clearly state that an employee may commence an action for damages, and speaks of "an action ... to compel compliance," resulting in an order. On the other hand, the statute clearly contemplates the award of damages "[f]or a violation of this act."
We conclude that § 11 contemplates that upon an employer's violation of the act, an employee may commence an action entitled "action to compel compliance." The appropriate circuit court has jurisdiction to enter an order to compel compliance. Failure to comply with such an order may be punished as contempt. In addition to entering an order compelling *61 compliance, the court shall award an employee prevailing in the action to compel compliance (i.e., an employee establishing that the employer violated the act) damages for a violation of the act.
Under defendant's construction, the employee commences the action to compel compliance, and the circuit court may issue an order compelling compliance.[4] If the court enters such an order and it is violated, the court may hold the employer in contempt and, in addition, award the damages provided in subsections 11(a) and (b). This construction of the act links the damages to the violation of the order. Such a construction of § 11 is inconsistent with the language of the section and the act itself. The damages language of § 11 states that "the court shall award an employee prevailing in an action pursuant to this act the following damages." It refers to "an employee prevailing in an action pursuant to this act" rather than "an employee who secures an order of compliance that has been violated," or "an employee who prevails in a motion for contempt." Additionally, § 11 provides for damages "[f]or a violation of this act," rather than "damages for a violation of an order compelling compliance." Further, the act makes a distinction between "a violation of this act" and "a wilful and knowing violation of this act...." Such a distinction seems inconsistent with defendant's construction in which damages can be awarded only after the employer has already violated the court's order of compliance.
The nature of ERKA is that it subsumes situations involving both past violations and continued violations of the act. The act contemplates that employers may refuse to allow employees to review their personnel records. The act contemplates that employees who have reviewed their personnel files may challenge the accuracy of reports contained therein and seek to have them expunged. The act contemplates that employees must be notified of the release of disciplinary information to third parties.[5] Under defendant's construction of the statute, once an employer releases disciplinary information to third parties without notice to the employee, an employee is restricted to filing an action to compel compliance, is not entitled to an order compelling compliance unless there is reasonable cause to anticipate another disclosure and resultant harm, and may not recover damages unless an order is obtained by the employee and violated by the employer, i.e., until there is another violation. Such a construction renders the actual statutory reference to damages "[f]or a violation of this act" (as opposed to defendant's construction of the actual language as meaning "for violation of an order compelling compliance") virtually nugatory.
In the instant case, while plaintiff sought both compliance and damages, he did not denominate his claim as an action to compel compliance. It is clear, however, that plaintiff's claim was not dismissed for a simple failure to properly title the action, but on the basis of a determination that plaintiff could not recover damages where he had not first obtained an order that had *62 then been violated. The dissent asserts that the majority expands the right to commence an action for compliance to include an independent action for injunctive relief and damages. We do not so hold. Plaintiff is obliged to commence an action to compel compliance, and, in such an action, may seek compliance and damages for a violation of the act. The compliance relief sought is injunctive in nature, but is an order to comply with the act, and the damages relief is as provided by the act. The dissent concludes that because "the plain language of plaintiff's complaint simply does not constitute an action to compel compliance," statutory construction is neither necessary nor permitted. Post at ____. However, as noted above, plaintiff's complaint was dismissed on the basis of defendant's argument that plaintiff could not seek damages without first obtaining an order compelling compliance and suffering a violation of that order. We conclude that in order to determine the propriety of defendant's argument that a preexisting order is required under the statute, one must engage in statutory construction, and we conclude that the act does not require a violation of a preexisting order. Lastly, although the dissent expresses concern regarding the types of damages available, we do not here address what may be included in the term "actual damages," as distinguished from costs and attorney fees, because that issue is not before us.
We reverse the determination that an order of compliance must be obtained and violated before a plaintiff may bring an action to compel compliance under M.C.L. § 423.511 and remand for further proceedings. Plaintiff shall be permitted to file a properly titled complaint on remand.[6]
III
Plaintiff also argues that he was entitled to summary disposition under MCR 2.116(I)(2), because he established that defendant violated § 6 of ERKA inasmuch as the township and Kelley were employers within the meaning of the act, plaintiff was an employee under the act, and the township and Kelley had a duty pursuant to M.C.L. § 423.506(1) not to disclose disciplinary information concerning plaintiff without sending written notice to plaintiff, but failed to provide notice to plaintiff. The circuit court gave no reasons for its denial of plaintiff's request for summary disposition, but did so without prejudice. However, plaintiff's entitlement to summary disposition implicates issues raised in defendant's initial motion for summary disposition, but not addressed by the circuit court which denied the motion without prejudice with regard to the ERKA count. Under these circumstances, the court did not err in denying plaintiff's motion for summary disposition without prejudice. Except with regard to the issue decided herein, both sides may renew their motions for summary disposition on remand.
We reverse the grant of summary disposition to defendant under MCR 2.116(C)(8), and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
B.B. MacKENZIE, J., concurred.
*63 O'CONNELL, P.J., (dissenting).
I respectfully dissent from the majority's opinion in this matter. In my view, the majority has improperly created a new cause of action under the Employee Right to Know Act (ERKA),[1] M.C.L. § 423.501 et seq. I would affirm the trial court's decision granting defendant Charter Township of Redford's motion for summary disposition.
The rules of statutory construction are well established:
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the Legislature's intent. If the plain and ordinary meaning of a statute is clear, judicial construction is neither necessary nor permitted. We may not speculate regarding the probable intent of the Legislature beyond the words expressed in the statute. When reasonable minds may differ with respect to the meaning of a statute, the courts must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. [Silver Creek Drain Dist. v. Extrusions Div., Inc., 245 Mich.App. 556, 562-563, 630 N.W.2d 347 (2001), lv. gtd. 466 Mich. 860, 644 N.W.2d 761 (2002) (citations omitted).]
ERKA provides in pertinent part:
If an employer violates this act, an employee may commence an action in the circuit court to compel compliance with this act.... Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award an employee prevailing in an action pursuant to this act the following damages:
(a) For a violation of this act, actual damages plus costs.
(b) For a wilful and knowing violation of this act, $200.00 plus costs, reasonable attorney's fees, and actual damages. [MCL 423.511.]
According to the plain language of the act, see Silver Creek Drain Dist, supra, the only cause of action that initially can be filed under the act is an action "to compel compliance with this act." MCL 423.511. Because plaintiff did not commence an action "to compel compliance with this act," his cause of action was properly dismissed for failure to state a claim on which relief could be granted. See MCR 2.116(C)(8). Specifically, plaintiff filed an action merely for "violation" of the act and requested injunctive relief, the latter of which is not contemplated by the act. See M.C.L. § 423.511. The majority finds an ambiguity in the statute and construes it in favor of plaintiff. However, the plain language of plaintiff's complaint simply does not constitute an action to compel compliance, see MCR 2.116(C)(8). Thus, statutory "construction is neither necessary nor permitted" in this case. Silver Creek Drain Dist, supra.
Because plaintiff failed to correctly plead his case and did not amend his complaint,[2] the trial court had no choice but to dismiss it. MCR 2.116(B)(1), and (C)(8). I believe that the procedural mechanism required by ERKA is important to assure *64 exhaustion of remedies, to give the defendant a chance to comply with the act, and to allow valid claims for damages to be brought to circuit court. Therefore, the majority has improperly created a new cause of action under ERKA.[3]
I would affirm the trial court's decision.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
[1] Former defendant Miles R. Handy, II, was a member of defendant township's board of trustees.
[2] Plaintiff previously had brought an action in federal district court, alleging state and federal claims. The court dismissed the state claims without prejudice.
[3] Although this appeal is of a ruling under MCR 2.116(C)(8), the ruling was not made early on in the case. Rather, it was on defendant's second summary-disposition motion, brought after discovery closed, witness lists were exchanged, plaintiff's other claims were dismissed, the case was mediated, and a final pretrial order was filed.
[4] Defendant has asserted that in deciding whether to issue such an order, the court must determine whether another violation is likely, and whether injunctive relief is warranted.
[5] The notice must be given by first-class mail and mailed on or before the day the information is divulged. Clearly, the notice was not intended to allow the employee to prevent the disclosure, because it would be insufficient for that purpose. Rather, the notice is intended to provide the employee with notice of the disclosure so that the employee can counter such reports with which there is disagreement.
[6] Defendant asserts alternative bases for affirmance on appeal. These issues were raised in defendant's first motion for summary disposition that, with regard to ERKA, was denied without prejudice. These issues were not raised in the second motion for summary disposition pursuant to which the court dismissed the ERKA count. Thus, the court never reached these arguments below and we decline to address them on appeal. Defendant may renew these arguments on remand.
[1] ERKA only allows for an action to "compel compliance with this act." MCL 423.511. The majority expands this right to include an independent action for injunctive relief and damages. While the act allows for an award of damages, it does so only in concert with an action to compel compliance.
[2] Plaintiff did not move to amend his complaint and merely argued that the trial court should have allowed amendment before ruling on defendant's motion for summary disposition. This is an insufficient request to amend a pleading. See MCR 2.118.
[3] I see ERKA as similar to the Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq. Under the FOIA, one cannot maintain an independent action for damages, but must sue for compliance with the act and may recover attorney fees, costs, and damages expended in pursuing the compliance action. See, e.g., M.C.L. § 15.240. In my opinion, ERKA, like the FOIA, allows an action for compliance with the recovery of only those fees, costs, and damages incurred in procuring compliance. Compare M.C.L. § 423.511. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579289/ | 267 Wis.2d 708 (2003)
2003 WI App 214
671 N.W.2d 395
Randy HOULE and Rhonda Houle, individually, and their minor son, Dustin Houle, by and through them as Guardians, Plaintiffs-Respondents,
v.
SCHOOL DISTRICT OF ASHLAND, BCI Burke Company, LLC, EMC/Employers Mutual Company, Travelers Property Casualty and Student Assurance Services, Inc., Defendants,
BAD RIVER BAND OF LAKE SUPERIOR TRIBE OF CHIPPEWA INDIANS, Defendant-Appellant.
No. 03-0020.
Court of Appeals of Wisconsin.
Submitted on briefs September 9, 2003.
Decided September 30, 2003.
*711 On behalf of the defendant-appellant, the cause was submitted on the brief of Erick J. Arnold and Bad River Band of Lake Superior Tribe of Chippewa Indians of Odanah.
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of David J. Malban of Duluth, MN.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1. HOOVER, P.J.
The Bad River Band of Lake Superior Tribe of Chippewa Indians appeals an order determining that the Rimes made whole doctrine applies to prevent its recovery of health care costs paid on behalf of tribe member Dustin Houle. See Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982). Bad River contends that federal law authorizes recovery and abrogates Rimes and, in any event, the costs were not paid pursuant to an insurance contract. Because the federal law on which Bad River relies does not expressly abrogate the common law, we conclude that Rimes applies to this case and accordingly affirm the order on that basis.
Background
¶ 2. The facts are undisputed. In 1996, Bad River Band member Dustin Houle fell on a public school playground during recess. Among other injuries, he fractured his skull and lost hearing in one ear. He sued the school district and the manufacturer, distributor, and installer of the playground equipment from which he fell. Bad River was included in the suit because of a *712 potential subrogation interest after it paid approximately $9,000 toward Dustin's medical expenses.
¶ 3. Congress enacted legislation known as the Indian Health Care Improvement Act. 25 U.S.C. §§ 1601 through 1683 (1994).[1] The Act creates the Indian Health Service (IHS), an agency within the Department of Health and Human Services. 25 U.S.C. § 1661. Individual tribes may assume control from IHS to locally administer health services and programs in their communities. Bad River has opted for this local control and operates its own Contract Health Service office. Bad River made payments under the auspices of this legislation.
¶ 4. Dustin settled for $120,000 total recovery from the other defendants, then asked for a Rimes hearing to determine whether Bad River was entitled to payment on its subrogation claim. Following a finding that Dustin had not been made whole, the trial court interpreted certain provisions of the Act to conclude that Bad River was not entitled to subrogation because Dustin was not actually required to pay for his medical treatment. Bad River appeals.
Discussion
[1-3]
¶ 5. Bad River claims that federal law grants it a subrogation right against Contract Health Service patients and that Bad River may exercise this right regardless whether the patient has been made whole. Whether a party's subrogation rights limit a plaintiff's right to recovery is a question of law we review de novo. See Koffman v. Leichtfuss, 2001 WI 111, ¶ 20, 246 Wis. *713 2d 31, 630 N.W.2d 201. The application of the made whole doctrine to undisputed facts is also a question of law, Ruckel v. Gassner, 2002 WI 67, ¶ 13, 253 Wis. 2d 280, 646 N.W.2d 11, as is application of a statute to a set of facts. United Methodist Church v. Culver, 2000 WI App 132, ¶ 26, 237 Wis. 2d 343, 614 N.W.2d 523.
¶ 6. Subrogation is broadly defined as the substitution of one person in the place of another with reference to a legal right or claim. See 73 AM. JUR. 2D Subrogation § 1 (2002); BLACK'S LAW DICTIONARY 1440 (7th ed. 1999). Here, for example, Bad River sought to be substituted for Dustin as the entity with the right to collect $9,000 from the defendants.
[4, 5]
¶ 7. The subrogation doctrine is based on equitable principles. Schulte v. Frazin, 176 Wis. 2d 622, 628, 500 N.W.2d 305 (1993). "Equity does not lend itself to the application of black letter rules." Id. (citation omitted). "To resolve the issue in this case we must apply equitable principles to the facts." Id. (citation omitted).
[6-10]
¶ 8. There are three main types of subrogation: conventional, legal/equitable, and statutory. American Ins. Co. v. City of Milwaukee, 51 Wis. 2d 346, 351, 187 N.W.2d 142 (1971); see 73 AM. JUR. 2D Subrogation § 3 (2002). Conventional subrogation is based in contract, such as an insurance policy. See 73 AM. JUR. 2D Subrogation § 4 (2002); American Ins., 51 Wis. 2d at 351. Legal subrogation, also known as equitable subrogation, derives from the doctrine of preventing unjust enrichment and it applies when a person other than a mere volunteer pays a debt that in equity and good conscience, another should pay. Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 620, 547 N.W.2d 578 (1996). It is not *714 dependent on contract or privity, and we allow it when injustice would follow its denial. Id. Statutory subrogation, as its name suggests, arises from a legislative act that vests a right of subrogation with a party or class of parties. See 73 AM. JUR. 2D Subrogation § 3 (2002).
¶ 9. Bad River does not specifically argue that it has any one specific type of subrogation right, although it does point out that there is no insurance contract here, thus excluding conventional subrogation as the basis for its claim. Bad River appears to imply a statutory subrogation right based on 25 U.S.C. § 1621e.[2] This section states in relevant part:
(a) Right of recovery
Except as provided in subsection (f) of this section, the United States, an Indian tribe, or a tribal organization shall have the right to recover reasonable expenses incurred . . . in providing health services . . . to any individual to the same extent that such individual, or any nongovernmental provider of such services, would be eligible to receive reimbursement or indemnification for such expenses if
(1) such services had been provided by a nongovernmental provider, and
(2) such individual had been required to pay such expenses and did pay such expenses.
¶ 10. It is 25 U.S.C. § 1682, though, that literally conveys a right of subrogation to Indian Health Services.[3]*715 Alternatively, there may be an equitable right to subrogation because the federal rules essentially function to place Bad River in a position similar to that of an insurer when it pays for members' health care. Either theory is sufficient to allow us to assume Bad River has a subrogation right, although we question its interpretation and application of 25 U.S.C. § 1621e.
[11]
¶ 11. Even assuming Bad River has a subrogation right, subrogation is not always available as a remedy. Sometimes its application is precluded by the anti-subrogation rule, also known as the made whole doctrine and codified in Wisconsin as the Rimes doctrine. Under Rimes, one who claims subrogation rights is barred from recovery unless and until the injured party is made whole. Rimes, 106 Wis. 2d at 272.
[12]
¶ 12. While Rimes dealt with an automobile insurance company's subrogation rights, Rimes is not limited to its facts. Rimes noted that its predecessor, Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977), observed that conventional and equitable subrogation have the same effect and accordingly both are subject to the equitable rules regarding subrogation. Rimes, 106 Wis. 2d at 270-71. The purpose of subrogation is to prevent double recovery, and this is true regardless how the subrogation arises.
*716 [13, 14]
¶ 13. Rimes is a common law doctrine, and the common law may be abrogated by statute. Waukesha County v. Johnson, 107 Wis. 2d 155, 162, 320 N.W.2d 1 (Ct. App. 1982). A statute does not abrogate or alter the common law unless it is so clearly expressed as to leave no doubt of the legislature's intent. Id.
¶ 14. Bad River essentially argues that Rimes has been abrogated by 25 U.S.C. §§ 1621e. 1682 and 42 C.F.R. § 36.61[4] and cites two lines of cases to support that argument.[5] The cases Bad River cites, however, deal with WIS. STAT. § 49.65 and the federal ERISA rules.[6] In both cases, we concluded that legislative language specifically abrogated Rimes.[7] Merely drawing parallels here is inadequate; Bad River fails to demonstrate how any of the regulations it cites serve to abrogate Rimes.
¶ 15. Absent clearly expressed legislative intent, the mere grant of a subrogation right such as in 25 U.S.C. § 1682 is insufficient to abrogate the application of Rimes. Indeed, such a statute functions like a subrogation clause in an insurance policy. In Ruckel, our supreme court held such a clause in a policy does not prevent application of the made whole doctrine, even when it contains specific language elevating the *717 insured's subrogation right over the insured's right to be made whole. See Ruckel, 253 Wis. 2d 280, ¶ 41. The court concluded that such clauses are inequitable because they do not serve to prevent double recovery or unjust enrichment. Instead, the insurance company had no right to recover payments it made unless the insured was made whole. Id., ¶ 40. Similarly, here 25 U.S.C. § 1682 does not specifically abrogate Rimes and therefore, like an insurance clause, simply authorizes subrogation after an IHS client has been made whole.
¶ 16. Bad River acknowledges that IHS's goal is to provide gratuitous health care to Indians. Requiring Dustin and his parents to pay Bad River when they have not fully recouped their own losses would be contrary to both this goal and equity as stated in Rimes.
By the Court.Order affirmed.
NOTES
[1] All to the references to the United States Code are to the 1994 version unless otherwise noted.
[2] We note that in Yukon-Kuskokwim Health Corp. v. Trust Ins. Plan, 884 F. Supp. 1360 (D. Alaska 1994), the court examined the legislative history of this section and determined it was created to allow collection against recalcitrant private insurers that refused to pay insureds eligible for federal funds, even though the insureds had paid premiums. Id. at 1365-66.
[3] 25 U.S.C. § 1682 reads in relevant part: "Indian Health Service may seek subrogation of claims including but not limited to . . . personal injury . . . the proceeds of which shall be credited to the funds established by sections 401 and 402 of the Indian Health Care Improvement Act." This is the only section that expressly grants a right to seek subrogation, and we note that the right is granted only to IHS. Individual tribes and their organizations are not mentioned as they are in § 1621e.
[4] 42 C.F.R. § 36.61 (1996) states that IHS is the payor of last resort for persons eligible under the Indian Health Care regulations. This section was renumbered 42 C.F.R. § 136.61 (2003).
[5] See, e.g., Coplien v. DHSS, 119 Wis. 2d 52, 349 N.W.2d 92 (Ct. App. 1984) (WIS. STAT. § 49.65); Ramsey Cty. Med. Ctr. v. Breault, 189 Wis. 2d 269, 525 N.W.2d 321 (Ct. App. 1994) (ERISA).
[6] The Employee Retirement Income Security Act of 1974.
[7] See Coplien, 119 Wis. 2d at 57; Ramsey Cty. Med. Ctr., 189 Wis. 2d at 277-78. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579300/ | 671 N.W.2d 554 (2003)
258 Mich. App. 274
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
James F. GRACE, Defendant-Appellee.
Docket No. 240049.
Court of Appeals of Michigan.
Submitted August 6, 2003, at Detroit.
Decided August 28, 2003, at 9:05 a.m.
Released for Publication October 29, 2003.
*555 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the people.
Rita F. Young, Detroit, for the defendant.
Before: DONOFRIO, P.J., and BANDSTRA and O'CONNELL, JJ.
PER CURIAM.
The prosecution appeals as of right the dismissal with prejudice of a fourth-degree criminal sexual conduct charge, MCL 750.520e(1)(b), against defendant. The trial court dismissed the case with prejudice after the jury had been sworn but before any testimony had been heard because the complainant and two of the witnesses did not return to court after the lunch break. We reverse and remand for reinstatement of the charge.
*556 This case arose after defendant's first trial was dismissed without prejudice before jury selection because one of the prosecution's primary witnesses was unavailable for trial. During the second trial, the complaining witness and two other supporting witnesses failed to return to court after the lunch break. The prosecutor told the court that she had no witnesses present and later clarified that she had one witnessa police officerwho the prosecutor stated could "testify not to very much." The prosecutor did not call the officer to the stand because she said the defense had objected to the officer's testimony as "out of order" before the complainant testified. The prosecutor then asked for an adjournment, which was denied. After the trial court gave the prosecutor five minutes to inquire regarding the whereabouts of the three missing witnesses and the prosecutor did not locate them, the court granted defendant's motion to dismiss with prejudice. The witnesses returned shortly thereafter; according to the prosecutor, the complainant witness was late because of a long line at the courthouse security checkpoint. However, the prosecutor's motion to reinstate the charge was denied. The prosecutor's motion for rehearing was heard about two weeks later, and it too was denied.
The prosecution's only issue on appeal is that the trial court erred in not reinstating the charge after dismissing the case with prejudice. The prosecution contends that double jeopardy principles do not preclude retrial in this case. We agree.
I
We consider the first question in this case to be whether the trial court abused its discretion in denying the prosecution's motion for an adjournment. See, e.g., People v. Jackson, 467 Mich. 272, 273, 650 N.W.2d 665 (2002) (where the trial court denied the prosecution's motion for a continuance brought because a subpoenaed witness failed to appear at trial, the court abused its discretion in dismissing the case without prejudice on the defendant's motion).[1] MCR 2.503(C)(2) explains the standard for good cause for an adjournment in the following instance:
An adjournment may be granted on the ground of unavailability of a witness or evidence only if the court finds that the evidence is material and that diligent efforts have been made to produce the witness or evidence.
See also Jackson, supra at 276-277, 650 N.W.2d 665.
The trial court explained its reasons in denying the prosecution's request for an adjournment in this case by emphasizing that the prosecution had no significant witnesses to present in court and that seventeen minutes had passed since the witnesses were supposed to arrive, although the court noted that the length of the delay did not matter. The court also indicated that the prosecutor had left the courtroom twice to attempt to locate the witnesses.
We hold that the trial court abused its discretion in denying the motion for an adjournment. This was a case involving fourth-degree criminal sexual conduct; it "`promote[s] the cause of justice'" to grant an adjournment in this case. Id. at 276, 650 N.W.2d 665, quoting MCR *557 2.503(D)(1). The trial court erroneously stated that the prosecutor did not ask for more time to locate the witnesses. Actually, the transcript shows that the prosecutor did make the request along with a motion to adjourn. The trial court also erroneously stated that the prosecutor did not have any witnesses to call. Rather, the transcript shows that the prosecutor did tell the court before moving for an adjournment that she had a police officer present to call, although the prosecutor indicated that the officer was not a primary witness in the case and the prosecutor did not in fact call the officer. Further, the court denied the motion for an adjournment and dismissed the case after a mere seventeen-minute wait for the witnesses. The testimony of the missing witnesses was material and the prosecutor had duly attempted to locate them, factors that permit an adjournment. See MCR 2.503(C)(2). The trial court "had no reason to expect that [the witnesses'] cooperation would not continue." Jackson, supra at 279, 650 N.W.2d 665.
Moreover, the witnesses arrived shortly after the dismissal was granted, and the prosecutor stated that the witnesses were delayed by a long line at the security checkpoint in the courthouse. However, the court refused to reinstate the charge. Under these circumstances, we hold that it was an abuse of discretion for the trial court not to give the prosecutor more time to find her witnesses, not to allow the one prosecution witness present to testify, not to call a recess, or not to grant the motion to adjourn. See id. at 276, 650 N.W.2d 665.
II
The next question is whether the trial court erred in denying the prosecution's request to reinstate the charge following dismissal of the case. Whether the charge can be properly reinstated against defendant raises a double jeopardy question. See People v. Herron, 464 Mich. 593, 599, 628 N.W.2d 528 (2001). We hold that the trial court erred in failing to reinstate the charge against defendant. The retrial of defendant in this case would not violate double jeopardy principles.
Generally, a double jeopardy claim presents a question of law that is reviewed de novo. Herron, supra. Under the Double Jeopardy Clause of the Michigan Constitution and United States Constitution, an accused may not be put in jeopardy twice for the same offense. Const 1963, art 1, § 15; US Const, Am V; People v. Lett, 466 Mich. 206, 213, 644 N.W.2d 743 (2002) (holding that manifest necessity existed to declare a mistrial, allowing retrial without violating double jeopardy). "The Double Jeopardy Clause of the Fifth Amendment protects against two general governmental abuses: (1) multiple prosecutions for the same offense after an acquittal or conviction; and (2) multiple punishments for the same offense."[2]Herron, supra at 599, 628 N.W.2d 528.
Jeopardy attaches when a jury is selected and sworn and the Double Jeopardy Clause therefore protects a defendant's interest in avoiding multiple prosecutions even when no prior determination of guilt or innocence has been made. Lett, supra at 215, 644 N.W.2d 743.[3] "However, the general rule permitting the prosecution only one opportunity to obtain a conviction must in some instances be *558 subordinated to the public's interest in fair trials designed to end in just judgments." Id. (internal quotation omitted); see also People v. Anderson, 409 Mich. 474, 485, 295 N.W.2d 482 (1980). If a trial is concluded prematurely, "a retrial for that offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of a manifest necessity." People v. Mehall, 454 Mich. 1, 4, 557 N.W.2d 110 (1997) (emphasis added); see also People v. Echavarria, 233 Mich. App. 356, 365, 592 N.W.2d 737 (1999) (the defendant's consent to a mistrial does not bar a retrial under double jeopardy principles).
The trial court's dismissal of this case during the trial was effectively a mistrial. While the trial court in the present case did not expressly use the term "mistrial," the law treats the discharge of a jury and dismissal of the case during trial as the declaration of a mistrial. See Black's Law Dictionary (7th ed) (The definition of a "mistrial" is: "1. A trial that the judge brings to an end, without a determination on the merits...."); see also, e.g., People v. Holtzman, 234 Mich.App. 166, 193, 593 N.W.2d 617 (1999) (the trial court's grant of the defendant's motion to dismiss with prejudice is referred to as a mistrial).
A mistrial does not always bar a retrial, and a retrial is permitted for reasons including manifest necessity and the defendant's consent to the mistrial.[4] See Lett, supra at 215, 644 N.W.2d 743 (noting the public's interest in fair trials designed to end in just judgments), 222 n 15; see also Mehall, supra. A retrial is permissible because mistrials are usually granted on procedural grounds, not on the merits. If a trial ends in a determination on the meritsfor example, by the grant of a directed verdict or following a conviction or acquittala retrial is not permitted. See Herron, supra at 599, 628 N.W.2d 528 ("Double Jeopardy ... protects against... multiple prosecutions for the same offense after an acquittal or conviction....") (emphasis omitted). In this case, there has not yet been an acquittal, conviction, or other determination on the merits.
Here, defendant sought and obtained a dismissal, which is effectively the same as consenting to a mistrial.[5] See Black's Law Dictionary (7th ed); Holtzman, supra. A defendant may not request a dismissal of the case on a ground other than the merits of the case and then argue that the result is error. See United States v. Scott, 437 U.S. 82, 98-99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (appeal from a Michigan federal court order). As a result, defendant's granted motion to dismiss served as defendant's consent to a mistrial, permitting a retrial under double jeopardy principles. See Echavarria, supra; see also Lett, supra at 222 n. 15, 644 N.W.2d 743 (noting without deciding that there is some support for finding implied consent to the discharge of the jury in cases where the defendant forfeits objection, making it unnecessary to determine whether the declaration of a mistrial was supported by manifest necessity). Therefore, because defendant consented to the mistrial by explicitly moving for it, the trial court erred in denying the prosecution's request to reinstate the charge following dismissal of *559 the case. See also Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986) (on reconsideration the trial court properly reinstated the charges against the defendant where the charges had been dismissed on the defendant's motion after the jury was empaneled).[6]
III
The trial court's orders denying the adjournment and denying the prosecution's motion to reinstate the charge are reversed, and this case is remanded for reinstatement of the charge against defendant. We do not retain jurisdiction.
NOTES
[1] We note that in Jackson, supra, our Supreme Court did not discuss double jeopardy issues and the case involved only one trial. We also note that a continuance and an adjournment are essentially the same procedural mechanism. See MCR 2.503, staff comment (the term "continuance" was uniformly replaced by the term "adjournment"); Black's Law Dictionary (7th ed) (the definitions of adjournment and continuance are almost identical).
[2] The present case only involves the first type of double jeopardymultiple prosecutions.
[3] Because the jury was not yet selected in defendant's first trial before the case was dismissed, jeopardy did not "attach" during the first trial.
[4] The issue of manifest necessity to declare a mistrial is not relevant in this case. See Lett, supra at 212-213, 215-216, 644 N.W.2d 743.
[5] Defendant's affirmative action in moving for dismissal is "consent" to the dismissal. Cf. People v. Carines, 460 Mich. 750, 763 n. 7, 597 N.W.2d 130 (1999) (defining "waiver" and "forfeiture" as "the intentional relinquishment or abandonment of a known right" and "the failure to make the timely assertion of a right," respectively) (quotation omitted).
[6] Although we are wary of allowing the prosecution to reinstate the charge against defendant for a third time, the sheer number of prosecutions is of no consequence to the double jeopardy doctrine. For example, in People v. Sierb, 456 Mich. 519, 533-534, 581 N.W.2d 219 (1998), our Supreme Court held that a trial against the defendant could commence for a third time without violating state or federal due process guarantees. In that case, the jury had deadlocked twice, resulting in mistrials, before the third institution of charges against the defendant. Id. at 521, 581 N.W.2d 219. Moreover, as we previously stated above in footnote 2, jeopardy did not attach during defendant's first trial because the jury had not yet been selected and sworn before the case was dismissed without prejudice. Thus, the present case is not one of "triple jeopardy." Rather, the present defendant's trial involving the witnesses who were delayed during the lunch break and the future trial are all that are at issue for purposes of our double jeopardy analysis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579312/ | 12 So.3d 589 (2009)
Richard C. LENOIR, Sandra Shakelford and Miles Randall Ezell, Appellants
v.
William "Bill" ANDERSON and William Yawn, Jr., Appellees.
No. 2008-CA-00148-COA.
Court of Appeals of Mississippi.
June 30, 2009.
*590 Robin L. Roberts, Paul Bryant Caston, Hattiesburg, attorneys for appellants.
Lee Turner, Matthew W. O'Quain, attorneys for appellees.
Before MYERS, P.J., IRVING and ROBERTS, JJ.
ROBERTS, J., for the Court.
¶ 1. This appeal arises from a property dispute over the boundaries of the Bounds Family Cemetery located in Lamar County, *591 Mississippi. Richard Lenoir, Sandra Shakelford, and Miles Ezell (Miles), (collectively the Plaintiffs) heirs of Ephraim Bounds, brought suit in the Chancery Court of Lamar County to determine the rights of the parties to approximately 1.8 acres of land. The chancery court found that the entire 1.8 acres were to be burdened for use as a cemetery and entered a judgment in favor of the Defendants, William Anderson and William Yawn. The Plaintiffs filed multiple post-trial motions seeking either a new trial or amendment of the judgment. All post-trial motions were denied, and the Plaintiffs now appeal. Finding no error in the chancellor's decision, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Bounds acquired approximately forty acres of land in Lamar County from his brother, who had inherited the land from their father in 1882. Sometime after the conveyance, for a period of ten to fifteen years, Bounds lived in Texas and Louisiana, but he later returned home to Mississippi. Shakelford, Bounds's granddaughter, testified that prior to returning to Mississippi to live, Bounds had buried his mother-in-law, Sarah Mason, behind his Mississippi home. By the time Bounds returned to Mississippi to remain, there were several other grave sites as well, so, at that time, he decided to move his home to another location. Later, a fence was erected around the area where the graves were located. The site where those early graves were located is the same .51 acre where the Bounds Family Cemetery is located today. At the time of trial, there were about 80 grave sites within the cemetery. Around 1914, Bounds designated approximately one acre for a family cemetery and one acre for a family school; the two acres are not contiguous but are in close proximity to each other. According to Shakelford's testimony, Bounds memorialized his benevolent intentions in a will. The school never fully came to fruition, and it was abandoned after the family began utilizing public education. The land designated for the school has remained unproductive ever since. Regrettably, a copy of the will or other document, such as a deed, specifically stating Bounds's intentions for future use, should the property cease to be used for its intended purposes, was not presented at trial, nor was it included in the record. However, other deeds recognizing the family cemetery were presented at trial.[1] Since the cemetery, encompassing .51 acre, has been continually used for the Bounds family, as well as friends of the Bounds family, the remaining 1.3 acres are at the heart of this dispute.
¶ 3. In 1938, Bounds conveyed an undivided half interest of the forty acres to his wife, and the land ultimately vested in this generation of heirs. After acquiring an interest in the property, Doris Bounds Ezell, Bounds's youngest child and the mother of Miles, paid the taxes on the 1.8 acres.[2] However, after her death, her estate *592 and sons, David and Miles, failed to pay the property taxes on the 1.8 acres, and Miles was contacted by the Lamar County Tax Collector, Mr. Patterson,[3] who informed him that the property was about to be sold for the unpaid taxes. Patterson told Miles that "[t]he only way [to] ... ensure that nobody [bought] it from the family [was] to make it a historical cemetery." Patterson presented the matter to the Lamar County Board of Supervisors (Board of Supervisors), and the property was indeed designated as a historical cemetery. The entire 1.8 acres were designated as a historical cemetery; the property was then excluded from the county's tax rolls; and the owners have benefitted from the tax exempt status since 1991. Miles testified that he did not attend the Board of Supervisors' meeting, and that he was not told about the designation and tax exempt status until after the meeting. Still, neither he, nor any other plaintiff, ever made any objection to the property's designation as a historical cemetery.
¶ 4. Thereafter, David, Miles's brother, conveyed his interest in the cemetery property to Anderson and Yawn through a cemetery warranty deed. Anderson testified that some of his ancestors were buried in the cemetery, and he and his family had helped maintain the cemetery since 1959. In 1994, Miles, Anderson, and Yawn raised money and constructed a new chain link fence around the cemetery because the original wooden fence had fallen into disrepair. Anderson testified that, at the time the new fence was erected, he wanted to extend the fenced area because it was common knowledge within the community that Bounds had left the entire 1.8 acres for cemetery use. Miles was hesitant and stated, "let's just extend it out ... on all four sides and let the next generation[] deal with it." Despite Miles's hesitancy, family tensions have caused this generation to deal with the matter.
¶ 5. When David conveyed his interest in the property to Anderson and Yawn, the intent was for them to continue to maintain the cemetery and provide additional burial space for family members of persons already buried there. Contending that the cemetery was not to extend past the original fenced area, the Plaintiffs brought suit in the Chancery Court of Lamar County to determine the rights of the parties to the entire 1.8 acres. After considering the actions of the Bounds family, their friends and neighbors, and the families of all of those buried in the Bounds Family Cemetery, the chancellor determined that a preponderance of the evidence established that the entire 1.8 acres were burdened with a limitation of use for cemetery purposes and should remain available for such purposes in the future. Aggrieved by the chancellor's decision, the Plaintiffs now appeal.
STANDARD OF REVIEW
¶ 6. "[This] Court employs a limited standard of review on appeals from chancery court." Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997) (citation omitted). "[T]his Court will accept the chancellor's finding[s] of fact as long as the evidence in the record reasonably supports those findings." In re Estate of Chambers v. Jackson, 711 So.2d 878, 880(¶ 8) (Miss.1998) *593 (citation omitted). "That means we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied." Lee Hawkins Realty, Inc. v. Moss, 724 So.2d 1116, 1118(¶ 8) (Miss.Ct.App. 1998). However, "[w]hen presented with a question of law ... we conduct a de novo review." In re Will of Carney v. Carney, 758 So.2d 1017, 1019(¶ 8) (Miss.2000).
DISCUSSION
¶ 7. The Plaintiffs raise the following issues on appeal: (1) whether the chancery court erred in its decision to use extrinsic evidence and mere conjecture to construe an unambiguous deed, (2) whether the chancery court erred in treating the Board of Supervisors' property tax exemption of cemetery property as a grant of land, and (3) whether the chancery court's opinion failed to adequately adjudicate the rights of the parties in regard to the location of the cemetery. As they may be consolidated, we will address Issues I and II together.
I. THE TRIAL COURT'S USE OF EXTRINSIC EVIDENCE
¶ 8. Bounds's will of 1914 was not presented at trial, nor was it included in the record. Also, the warranty deed to Marguerite simply stated that "less than two acres were for cemetery purposes." As a result, there was, and is, no way to discern what Bounds's intentions were without considering extrinsic evidence. The law is clear about the construction of deeds or contracts. The supreme court has stated the following:
The rules for the construction of deeds or contracts are designed to ascertain and to follow the actual or probable intention of the parties and are [as follows]: When the language of the deed or contract is clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all of its parts as written. When, however, the language falls short of the qualities above mentioned and resort must be had to extrinsic aid, the court will look to the subject matter embraced therein, to the particular situation of the parties who made the instrument, and to the general situation touching the subject matter, that is to say, to all the conditions surrounding the parties at the time of the execution of the instrument, and to what, as may be fairly assumed, they had in contemplation in respect to all such said surrounding conditions, giving weight also to the future developments thereinabout which were reasonably to be anticipated or expected by them; and when the parties have for some time proceeded with or under the deed or contract, a large measure, and sometimes a controlling measure, of regard will be given to the practical construction which the parties themselves have given it, this on the common sense proposition that actions generally speak even louder than words.
Farragut v. Massey, 612 So.2d 325, 329 (Miss.1992) (emphasis added) (citation omitted). With this in mind, we look to case law to determine if the chancellor acted within his discretion when he determined that the entire 1.8 acres should be used for benevolent, or eleemosynary, purposes rather than allowing the land to revert to the Plaintiffs.
¶ 9. In Nicholson v. Myres, 170 Miss. 441, 448, 154 So. 282, 283 (1934), a case in which land was left to the City of Natchez for use as a cemetery, the supreme court stated that "[the] failure of the city to use the land as a cemetery did not cause it to revert to the grantor or his heirs; that the *594 title to land sold and conveyed for a designated use will not revert to the grantor or his heirs upon being put to another or different use, in the absence of express terms in the deed providing for reversion." (Emphasis added).[4] It is an old and established principle in property law that a possibility of a reverter to the grantor or his heirs must be expressly stated in the instrument. The supreme court stated a century ago that "[i]n order that a condition subsequent may be created, the breach of which will cause the land conveyed to revert to the grantor, it must clearly appear that such was the grantor's intention." Soria v. Harrison County, 96 Miss. 109, 114, 50 So. 443, 444 (1909) (citation omitted). The Soria court found that in the absence of technical words such as "provided, so long as, until, [and] etc." that a condition subsequent was not created. Id. The court went on to state that "[n]o right of re-entry was reserved by the grantor on any contingency.... [Therefore,] [t]he authorities show that the recital of the consideration and a statement of the purpose for which the land is to be used are wholly insufficient to create a conditional estate." Id. at 115, 50 So. at 444.
¶ 10. In another analogous case, in which land was given for use as a courthouse and prison but it was no longer being used for those purposes, the United States Supreme Court stated, "if we disregard the absence of technical terms or provisions importing a condition or limitation, and examine the deed with a view of eliciting the clear intention of the parties, we are driven to the conclusion that it was the intention of the grantors to convey their entire estate in the land." Stuart v. Easton, 170 U.S. 383, 398, 18 S.Ct. 650, 42 L.Ed. 1078 (1898). In other words, the court will try to determine the intent of the person who made the devise, and if there is no express language in the instrument for the property to revert back to the grantor or his/her heirs when the property is no longer used for the stated/intended purpose, it will be concluded that the grantor intended to convey his entire interest in the property. See Tinnin v. First United Bank, 502 So.2d 659, 663 (Miss.1987). Furthermore, the court may look to parol or extrinsic evidence if the grantor's intentions are not clear from the four corners of the document. Id. at 670. Since the Plaintiffs did not produce the will or evidence that Bounds's intentions were to retain a reversion in the land, the chancellor was well within his discretion to rely on parol or extrinsic evidence and deny the Plaintiffs' request that the 1.3 acres, which was not being used for a school, be divided among the heirs or partitioned and sold.
¶ 11. The Plaintiffs rely on the case of Stuart v. Smith, 344 So.2d 127 (Miss.1977), for their contention that the cemetery should be confined to the .51 acre. They argue that Stuart instructs that "the dimensions... [of] the actual burial ground [should] govern." We disagree. The Stuart case addressed a dispute over the use of a quarter of an acre surrounding a cemetery of antiquity. Id. at 128. In Stuart, the grantor conveyed land by a warranty deed that contained the following language: "Excepting and reserving therefrom one quarter of an acre in square form surrounding the present graveyard with necessary rights to and from said graveyard at any and all times for the use of the heirs of M.C. Stuart, deceased." Id.
¶ 12. Although the deed in Stuart, as in the instant case, did not contain a legal description of metes and bounds, the court adopted the perimeter of the cemetery *595 depicted on a drawn map. Id. Also, resistivity tests were done by an archeologist and a civil engineer to ascertain where the actual grave sites were located. Id. at 129. The court determined that the cemetery should be confined to what it was at the time of the conveyance, and that the grantor had intended to maintain an easement for the graveyard. Id. at 130. In other words, the court maintained the easement around the cemetery. We do not find that Stuart contradicts the chancery court's holding in the instant case, as the Stuart court simply tried to discern the grantor's intentions and then continued the intended charitable use. Stuart differs from the instant case in the following ways.
¶ 13. First, unlike the parties in Stuart, the parties in the instant case have not presented a deed from which the court can consider whether any similar excepting and reserving language exists, or whether any other language supports an argument for or against the restriction or expansion of the .51 acre. Second, in Stuart, the quarter-acre at issue, which surrounded the perimeter of the cemetery, was specifically addressed in the deed and related to that cemetery. Here the issue concerns land that was originally intended for a separate charitable use. And third, at the point when litigation ensued, the cemetery in Stuart had not been used for new burials for over sixty years; the Bounds Family Cemetery has been in continuous use, with new grave sites added within the past couple of years.
¶ 14. The holding in Stuart supports the principle that deeds are to be construed according to their plain language if they are unambiguous, and the chancellor may look to parol or extrinsic evidence when they are not. The Stuart court also acknowledged that the descendants or intended beneficiaries of a cemetery should have reasonable use of and access to an established cemetery, and the court addressed the judicially recognized custom of "people ... bury[ing] their relatives together or in the same cemetery as far as reasonably possible." Id. at 129 (quoting Morgan v. Collins Sch. House, 160 Miss. 321, 133 So. 675 (1931)). In the instant case, the deed to Marguerite indicates that Bounds family members have acknowledged that the 1.8 acres were to be used as a cemetery for at least forty-three years, and both the Plaintiffs and the Defendants testified they have family members buried in the cemetery. These facts bolster the chancellor's decision to expand the boundaries to encompass the unused 1.3 acres.
¶ 15. The instant case does not deal with a gift to an established charity or trust. However, given that Shakelford testified that Bounds's intentions were for the entire two acres to be used for charitable purposes, we find the doctrine of equitable approximation and/or the cy pres doctrine provides cogent support for the chancellor's ruling.[5] The supreme court has addressed the problem that arises when the intended purpose for a gift is no longer feasible and stated, "the duty of the court is to carry out the grantor's intentions.... [And if the original charitable gift or use fails] the property will not revert back to the settlor or his heirs...." Miss. Children's Home Soc'y v. Jackson, *596 230 Miss. 546, 555, 93 So.2d 483, 487 (1957). The court went on to say that the "[c]y pres [doctrine or the doctrine of approximation] will not be applied where the settlor has made an express provision for an alternative disposition of his property, if the charity as he planned it proves impossible, inexpedient, or impractical." Id. at 556, 93 So.2d at 487. However, in the absence of an express provision, the doctrine of approximation is a basic part of equity jurisdiction. It is a rule of judicial construction designed to carry out the intention of the donor, and it is applicable to devises. See Carter v. Berry, 243 Miss. 321, 375, 140 So.2d 843, 854 (1962) (citation omitted).
¶ 16. When addressing the abandoned school property, the chancellor stated, "it also might be surmised that [Bounds] wanted, or would have wanted, that land intended for one of his eleemosynary purposes could remain available for the other." Looking at established case law and the evidence presented in the record, we find that the chancellor did not abuse his discretion, nor was he manifestly wrong when he arrived at the conclusion that the 1.3 acres should continue to be used for charitable purposes. Furthermore, we find that the chancellor was well within his discretion when he considered the Plaintiffs' acquiescence to the Board of Supervisors' designation of the property as a tax exempt historical cemetery. Although not completely applicable to the instant case, the chancellor was not too far afield when he touched upon the equitable doctrine of estoppel.
¶ 17. The supreme court has stated, "[t]he principle on which the doctrine of estoppel by conduct rests is that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. When silence becomes a fraud, it will operate as an estoppel." Staton v. Bryant, 55 Miss. 261, 272 (1877). We do not state that the Plaintiffs' actions were fraudulent. However, it does not escape us that, although they now maintain that the 1.3 acres for the school were never to be used for a cemetery and should be divided among them, they allowed the Board of Supervisors to designate the entire 1.8 acres as a historical cemetery to protect them from possibly losing the property in a tax sale. They also allowed the Board of Supervisors to shield them from taxes on the property for approximately sixteen years. The Board of Supervisors' minutes were public record, and as stated, at least one of the Plaintiffs knew that the entire 1.8 acres were designated as a cemetery. As the supreme court has observed, "acquiesce[nce] by ... silence ... amount[s] to a tacit agreement...." York v. Haire, 236 Miss. 711, 715, 112 So.2d 245, 246 (1959). The Plaintiffs' silence resonates with the sound of agreement.
¶ 18. This view was furthered by the United States Supreme Court in New Jersey v. New York, 523 U.S. 767, 786, 118 S.Ct. 1726, 140 L.Ed.2d 993 (1998). The Supreme Court acknowledged that "[t]he doctrine of prescription and acquiescence `is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, ... [is] his intention to relinquish it.'" Id. (citation omitted). The Plaintiffs were content to remain silent and relinquish the responsibilities of ownership for sixteen years in order to maintain the status quo. Therefore, we support the chancellor's finding that the Plaintiffs' silence indicates agreement with the designation of the entire 1.8 acres as a historical cemetery.
¶ 19. The Plaintiffs complain that no petition was made by them to the *597 Board of Supervisors to designate the entire 1.8 acres as a cemetery, and they argue that the Board of Supervisors "expropriate[d] private property to establish a private cemetery." We find that argument is without merit. Mississippi Code Annotated section 41-43-1(2) (Rev.2005) states the following: "The Board of Supervisors of any county is authorized and empowered, upon petition and request to do so, to establish or designate the location of any private family cemetery to be located in the county." The Defendants correctly argue that the statute at issue does require a petition and request, but it is silent on how the petition must be made.
¶ 20. The record reveals that the Plaintiffs are, at least, in part responsible for the property's designation as a historical family cemetery. In an effort to keep the property from being sold in a tax sale because of unpaid property taxes, Patterson approached the Board of Supervisors on the Plaintiffs' behalf and procured forgiveness of the tax debt owed, as well as relief from future taxes. By his own testimony, Miles admitted that he was told before the meeting that the only way Patterson could ensure that the family property was not sold was to have it designated as a family cemetery. Although he may not have personally gone before the Board of Supervisors, Miles knew what Patterson's intentions were. Accordingly, the Plaintiffs' argument that a petition was not adequately made to the Board of Supervisors fails. The Board of Supervisors did not act independently of the Bounds family; it acted upon their petition and request via Patterson. This issue is without merit.
II. ADJUDICATION OF THE RIGHTS OF THE PARTIES IN REGARD TO THE LOCATION OF THE CEMETERY
¶ 21. On appeal, the Plaintiffs argue that the chancellor should have declared the rights of the parties and who could use the cemetery. In other words they asked, "who has the right to be buried where?" At the same time the Plaintiffs filed their complaint, they filed a motion for a temporary restraining order requesting that the Defendants be prohibited from "burying, causing to be buried, or giving others permission to be buried on the land conveyed in that Cemetery Warranty Deed...." Their complaint also requested that the "court determin[e] the ownership interest and boundaries of the property known as the Bounds Family Cemetery ... [as well as the] ownership interest of the remaining property...." But, in their pleading, the Plaintiffs did not ask the court to determine who "has the right to be buried where?"
¶ 22. "One of the most fundamental and long-established rules of law in Mississippi is that the [appellate court] will not review matters on appeal that were not raised at the trial court level." Shaw v. Shaw, 603 So.2d 287, 292 (Miss.1992) (citation omitted). At the beginning of the trial, the parties stipulated that ownership of the property was as follows: Miles, one-sixth interest; Shakelford, one-third interest; Lenoir, one-third interest; Anderson, one-twelfth interest; and Yawn, one-twelfth interest. The court acknowledged the Plaintiffs' contention that the deed to Anderson and Yawn was not valid. However, the court refused to address it finding that only the parties to the document could litigate the matter, and the grantor, David, was not present. Since the ownership of the property had been addressed, the only remaining issues for the court to determine were the boundaries of the cemetery and whether the 1.3 acres outside of the recognized Bounds Family Cemetery *598 could be used as a cemetery; not who had the right to be buried where. Therefore, the issue of whom can be buried in the cemetery and where they may be buried is not properly before this Court.
¶ 23. In the absence of a deed or will from Bounds, the chancellor was correct in looking to extrinsic evidence to determine Bounds's intentions concerning the future use of the property. Also, in the absence of proof that Bounds intended to maintain a reversion, the chancellor correctly surmised that the 1.3 acres originally intended for a school should continue to be used for eleemosynary purposes. We find that the chancellor's findings of fact and decree were based upon substantial evidence and sound legal principles. This issue is without merit.
¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.
NOTES
[1] The record includes a warranty deed conveying property to Marguerite Bounds Lenoir (Marguerite) in 1966, which, after giving the legal description of the property, stated a limitation that "less than 2 acres [were] for cemetery purposes." Also, there is the cemetery warranty deed from David Ezell (David) to Anderson and Yawn. It includes the same legal description, minus the stated limitation of two acres for cemetery use. The absence of the stated use on the deed to Anderson and Yawn does not defeat the parties' intentions of how the property should be used. It was, after all, a "cemetery" warranty deed.
[2] The record reflects the following passage quoted from the Lamar County Board of Supervisor's minutes:
Doris Bounds was deeded a parcel of land... which included the subject parcel, and[,] at the that time[,] and is now known as the Bounds Cemetery. Subsequently, Doris Bounds married and became Doris Ezell and died in 1987, and the estate of Doris Ezell was probated and the property divided among the two sons, Miles Ezell and David Ezell.... The subject property, 1.8 acres, was excluded from the probate, as it had been a cemetery for approximately 100 years.
[3] The record does not reflect the first name of Mr. Patterson.
[4] See, Thornton v. Natchez, 88 Miss. 1, 17, 41 So. 498, 500 (1906).
[5] When dealing with charitable gifts that are no longer feasible, the court may apply the cy pres doctrine. "This is an equitable doctrine under which a court reforms a written instrument with a gift to a charity as closely to the donor's intention as possible, so that the gift does not fail." Black's Law Dictionary 173 (3rd pocket ed.2006). Likewise, when dealing with a trust, the court will apply the doctrine of approximation, which "authorizes a court to vary the details of a trust's administration to preserve the trust and to carry out the donor's intentions." Black's Law Dictionary 221 (3rd pocket ed.2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645143/ | 40 So.3d 927 (2010)
Larry LINDSEY, Jr., Appellant,
v.
DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, o/b/o Amanda M. MAGEE, Appellee.
No. 2D10-29.
District Court of Appeal of Florida, Second District.
August 6, 2010.
Jacqueline L. Jorgensen of Tampa for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
CASANUEVA, Chief Judge.
Larry Lindsey Jr. appeals from a final administrative support order and an income deduction order entered by the Department of Revenue, Child Support Enforcement Program, on behalf of Amanda M. Magee. Mr. Lindsey contends that the agency improperly calculated the amount of retroactive child support he owes. In lieu of filing an answer brief, the Department forthrightly concedes error.
Accordingly, we reverse the final administrative support order and remand for recalculation of retroactive child support. Based upon the reversal of the support order, the income deduction order is also reversed and remanded so that any necessary adjustments can be taken into account in setting Mr. Lindsey's monthly contribution toward the arrearage.
*928 Reversed and remanded for further proceedings.
WHATLEY and DAVIS, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579319/ | 12 So. 3d 227 (2009)
CASTLEBERRY
v.
STATE.
No. 2D08-1785.
District Court of Appeal of Florida, Second District.
June 3, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579290/ | 12 So. 3d 482 (2009)
STATE of Louisiana, Appellee,
v.
Tamario TAYLOR, Appellant.
No. 44,205-KA.
Court of Appeal of Louisiana, Second Circuit.
May 13, 2009.
James Edward Beal, Louisiana Appellate Project, for Appellant.
J. Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sherburne Sentell, III, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
Before PEATROSS, DREW and LOLLEY, JJ.
LOLLEY, J.
The defendant, Tamario Taylor, was charged with three counts of Distribution of Cocaine, a violation of La. R.S. 40:967(A). Pursuant to a plea bargain, he pled guilty to two charges of Distribution of Cocaine, with a sentence cap of 20 years, the sentences to run concurrently. He subsequently received concurrent 15-year sentences. After a motion for reconsideration of sentence was denied, Taylor filed the instant appeal; his single assignment of error alleges excessiveness of sentence. Because a sentence imposed within an agreed range cannot be appealed as excessive, Taylor's conviction and sentence are affirmed.
*483 FACTS
On October 4, 2007, Taylor was charged by bill of information with three counts of knowingly and intentionally distributing cocaine, a violation of La. R.S. 40:967(A). On February 20, 2008, he entered a guilty plea pursuant to a plea bargain. At the beginning of the guilty plea hearing, the state announced the terms of the plea bargain that included Taylor's pleading guilty to only two counts of distribution of cocaine, with a presentence investigation, and a sentencing cap of 20 years for each court with the sentences to run concurrently. Taylor then was asked if he intended to plead guilty as stated under the agreement, and he responded in the affirmative.
After Taylor was sworn and indicated his satisfaction with his legal representation, the court informed him that distribution of cocaine carries a term of imprisonment at hard labor for not less than 2, nor more than 30 years, with the first 2 years of the sentence being without benefit of parole, probation, or suspension of sentence, and that a fine also could be imposed of not more than $50,000.00. Taylor acknowledged the possible sentence as well as the fact that by pleading guilty he would be subject to enhanced sentences for future felonies under the habitual offender laws.
The trial court then informed Taylor of his right to a jury trial, his right to confrontation, his right to remain silent, and his right to appeal if found guilty; the trial court further informed Taylor that by pleading guilty, Taylor would be giving up all these rights, and Taylor acknowledged his understanding. After hearing a recitation of the factual basis for each count of distribution of cocaine, Taylor acknowledged the correctness of the recitation. When he then was asked how he pled on the two counts, he responded, "Guilty." The court accepted the guilty pleas and ordered a presentence investigation.
On June 2, 2008, Taylor appeared at his sentencing hearing. After hearing a statement from Taylor, the trial court reviewed his criminal history, including 1999 convictions for second degree battery and purse snatching, and a 2001 plea to illegal use of a weapon. The court also noted Taylor's family and educational history and the seriousness of the offense, and found not only that there were no grounds to excuse the criminal activity, but also that Taylor's criminal conduct was the result of circumstances likely to recur. The court then sentenced Taylor on each count to 15 years at hard labor, 2 years of which was to be served without benefit of probation, parole, or suspension of sentence; the court ordered the sentences to run concurrently with credit for time served. Taylor's subsequent motion for reconsideration of sentence was denied, and he then appealed, assigning as error only excessiveness of sentence.
DISCUSSION
While Taylor and the state have made their respective arguments on appeal concerning whether or not the sentence is excessive, the threshold question should be whether a sentence imposed within an agreed range can properly be appealed as excessive.
Article I, Section 19, of the Louisiana Constitution provides for the right of judicial review and specifically states that this right may be intelligently waived. If a defendant can completely waive the right to judicial review, then it follows that a defendant can intelligently waive the right to review of his sentence for excessiveness. Furthermore, La. C. Cr. P. art. 881.2(A)(2) provides, "The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was *484 set forth in the record at the time of the plea."
These statutory provisions essentially amount to a waiver of a portion of the right to judicial review, and that waiver is both constitutional under Article I, Section 19, and logical for the following reasons. When a defendant pleads guilty in conformity with a plea agreement that either provides a specific term of imprisonment, or sets a specific sentencing cap, the defendant is acknowledging his agreement to the specific term of imprisonment or to the specific cap, and his agreement must be considered informed and intelligent in this respect.
Additionally, his agreement on the sentence, as part of a voluntary plea bargain that mutually benefits the defendant and the state, should be binding; a defendant who has intelligently agreed to specific sentencing terms should not be allowed to attack those terms later on appeal. Accordingly, a plea agreement, set forth in the record at the time of the plea, that imposes either a specific sentence or a sentencing cap, logically constitutes an implicit waiver of the right to seek review of a sentence imposed in conformity with the plea agreement.
In State v. Young, XXXX-XXXX, 680 So. 2d 1171 (La.10/15/96), the Louisiana Supreme Court resolved a conflict among the circuits concerning whether the prohibition on appealing a sentence that was the result of a plea bargain applied both to plea agreements involving sentencing caps and to specific sentences. The court held that the legislature clearly intended La. C. Cr. P. art. 881.2(A)(2) to apply to plea agreements involving both specific sentences and sentencing caps. The Young court noted that the defendant had voluntarily and with the assistance of counsel decided to enter into a plea agreement so that he would not be subjected to a term of imprisonment longer than a total of 30 years for all of the charges against him. The defendant was sentenced to a term of imprisonment which was less than the sentencing cap he pled guilty under; therefore, the court found that La. C. Cr. P. art. 881.2(A)(2) precluded the defendant from appealing his sentence imposed in conformity with a plea agreement that was set forth in the record at the time of his plea.
This court has repeatedly stated that where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved; however, we also have stated that when the right to appeal has been mentioned by the trial court during the plea colloquy, even though there is an agreed sentence or sentencing cap, the defendant's sentence may be reviewed. State v. Fizer, 43,271 (La.App.2d Cir.06/04/08), 986 So. 2d 243; State v. Martin, 43,243 (La.App.2d Cir.06/04/08), 985 So. 2d 1253.
In the instant case, Taylor did not reserve the right to review the sentence during the plea colloquy, and the trial court, rather than telling the defendant he could appeal, told him that by pleading guilty he would give up certain rights, including the right to appeal. Thus, under these circumstances, we hold that La. C. Cr. P. art. 881.2(A)(2) precludes Taylor from appealing his sentence imposed in conformity with a plea agreement that was set forth in the record at the time of his plea.
Finally, in the past this court, in an abundance of caution, often has reviewed excessiveness claims even after stating that a sentence imposed within an agreed range cannot be appealed as excessive. However, we conclude that this practice is *485 not in the interest of sound judicial administration, because it encourages meritless appeals, like this one, that challenge only the alleged excessiveness of a sentence imposed pursuant to and in conformity with a sentencing cap voluntarily and intelligently agreed to by the defendant. Such appeals waste judicial resources. Counsel representing defendants who have no other issues are hereby cautioned against filing such appeals.
CONCLUSION
For the foregoing reasons, Tamario Taylor's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918504/ | 730 So.2d 1098 (1998)
Thomas A. TRAXLER
v.
Martha TRAXLER.
No. 96-CA-01419-SCT.
Supreme Court of Mississippi.
December 31, 1998.
*1099 F. Andrew Howell, Jackson, Attorney for Appellant.
Olen C. Bryant, Jr., Hazlehurst, Attorney for Appellee.
Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.
SMITH, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. Thomas and Martha Traxler were married on July 31, 1971 in Mississippi. Two children, Casey Anne Traxler and Ty A. Traxler, were born of this marriage. The parties were separated in March of 1995. The oldest child, Casey, was twenty-one years old at the time of trial and is emancipated. Ty is enrolled in college at Copiah Lincoln Community College on a full athletic scholarship which includes an endowment of $1,000.00 per semester over and above standard college costs and expenses.
¶ 2. The parties jointly purchased a home located at 119 Mathis Road, Crystal Springs, Mississippi seventeen years ago, which at the time of trial had an approximate mortgage balance of $51,709.00 with estimated equity in the amount of $33,290.00. The parties have no interest in any other real property.
¶ 3. Thomas earns approximately $56,400.00 annually from his employment at the Federal Small Business Administration where he has worked for approximately 18 years. He has an adjusted gross monthly income of approximately $3150.00. At the time of trial, the balance of his retirement account was $46,000.00, which he is eligible to receive upon retirement. He is exempt from Social Security retirement benefits due to his Civil Service Retirement System employment status.
¶ 4. Martha earns approximately $34,679.00 per year from her employment as a school counselor at Copiah County Schools. She has an adjusted gross monthly income of approximately $2023.00. At the time of trial, *1100 the balance of her retirement account was $19000.00. Martha has contributed into Social Security during her years of employment and will be eligible for benefits upon her retirement. Martha has been continuously employed throughout the marriage.
¶ 5. The parties have accumulated household furnishings and personal property throughout the twenty-five years of marriage. There is dispute as to the actual value of the household furnishings and some personal property.
¶ 6. Thomas maintained two whole life insurance policies that were purchased during the marriage with marital assets. There is a Kansas City Life Insurance policy which contained a cash value of $2,049.00, and Lamar Life Insurance policy with a cash value of $3,495.00. However, due to loans, their net cash value was $1,817.00 at the time of trial. In dispute as a marital asset is a $50,000.00 Southern Farm Bureau Life Insurance policy, owned by Thomas, but purchased for the benefit of his mother, Ms. Annette Traxler, for estate purposes during the marriage. The approximate cash value of the policy, $25,000.00, and the ownership was returned to Annette Traxler prior to trial. Thomas and Martha testified that the policy was obtained for estate purposes. There is dispute as to how the premiums of the policy were paid.
¶ 7. During the marriage, Thomas managed four single family rental units owned by his mother that earned the family extra income. The amount of the income was estimated to be $300.00 per month. After the separation of the parties, Thomas moved to Brandon, Mississippi into a one bedroom apartment. Subsequently, Annette began managing the rental units and retaining any profits.
¶ 8. Martha Traxler initiated this action by filing a Complaint on July 21, 1995, for Divorce in the Chancery Court of Copiah County, Mississippi pursuant to Miss.Code Ann. Section 93-5-1 (Supp 1997). Martha requested the custody of the minor child, child support and maintenance, title to the marital home, periodic and lump sum alimony, payment of marital debt, and attorney fees. Thomas Traxler filed an Answer and Counter Complaint for Divorce on September 7, 1995 alleging habitual cruelty and inhuman treatment and requesting an equitable division of the marital property and attorney fees, pursuant to Miss.Code Ann. Section 93-5-2 (Supp 1997).
¶ 9. On July 23, 1996, the question of monthly child support and maintenance as well as the division of marital property and attorney fees were submitted via a signed Consent Agreement pursuant to Miss.Code Ann. Section 93-5-2(3) (Supp 1997).
¶ 10. After a full hearing in open court and the parties submission of their respective Findings of Fact and Conclusions of Law, the Chancellor made the following ruling:
1) Martha would receive $750.00 in monthly periodic alimony, all equity ($33,000.00) in the marital home and the parties would divide all personal property contained in the house via an auction process unless otherwise agreed. Additionally, Martha would receive title to the home and child support for the remaining un-emancipated child in the amount of $225.00 per month, when the child remained with her for more than any 30 day period. The parties would divide health care cost not covered by insurance and reasonable and necessary college expenses for the child with Thomas paying 61% and Martha 39% of said costs.
2) The Court found both parties to have some ability to pay attorney fees and the total fees were combined and Thomas was ordered to pay 61% and Martha 39%.
3) The Court found the oldest child, Casey Traxler, emancipated due to her age with no future obligation of support but allowed her to obtain possession of the U.S. savings bonds, which were purchased during the marriage, valued at $2000.00. Thomas was ordered to hold the remaining bonds in Ty Traxler's name in trust, in the amount of $11,000.00, for educational purposes.
4) A life insurance policy through Southern Farm Bureau, purchased during the marriage for the benefit of Thomas's mother, Annette Traxler was found not to be a marital asset. A $5000.00 loan from Annette Traxler to Martha and Thomas Traxler was *1101 found not to be an enforceable debt in these proceedings.
¶ 11. Thomas Traxler filed a Motion for Reconsideration on November 12, 1996, and after a hearing on the Motion, the Court denied the relief requested in an order entered November 27, 1996. A Notice of Appeal was filed by the Appellant on December 27, 1996. Appellee thereafter filed a Notice of Cross Appeal on January 9, 1997. Aggrieved by the decision of the lower court, Thomas appeals and raises the following issues:
I. WHETHER THE LOWER COURT ERRED WHEN IT CONSIDERED ALL RETIREMENT BENEFITS ACCUMULATED BY EACH PARTY AS MARITAL ASSETS, AND THEREFORE SUBJECT TO EQUITABLE DISTRIBUTION.
II. WHETHER THE LOWER COURT ERRED WHEN IT ATTEMPTED TO CONSIDER ALL RETIREMENT BENEFITS AS MARITAL ASSETS, BUT FAILED TO CONSIDER MARTHA TRAXLER'S SOCIAL SECURITY FOR PURPOSES OF EQUITABLE DISTRIBUTION.
III. WHETHER RENTAL INCOME RECEIVED BY THOMAS TRAXLER DURING THE MARRIAGE BUT DISPENSED WITH PRIOR TO DIVORCE JUDGMENT, SHOULD HAVE BEEN INCLUDED AS A MARITAL ASSET FOR PURPOSE OF EQUITABLE DISTRIBUTION AND AWARDING PERIODIC ALIMONY.
IV. WHETHER AN AWARD OF $750.00 PER MONTH PERIODIC ALIMONY AWARD WAS EXCESSIVE.
V. WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN ORDERING THOMAS TRAXLER TO PAY 61% OF COMBINED ATTORNEY'S FEES WITHOUT PROOF OF HER INABILITY TO PAY.
¶ 12. Martha Traxler raises on cross-appeal the following issue:
I. WHETHER A LIFE INSURANCE POLICY CASH VALUE OWNED BY THOMAS TRAXLER IS A MARITAL ASSET.
STANDARD OF REVIEW
¶ 13. The court's standard of review in domestic relations matters is limited. We will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997).
LEGAL ANALYSIS
I. WHETHER THE LOWER COURT ERRED WHEN IT CONSIDERED RETIREMENT BENEFITS ACCUMULATED BY EACH PARTY AS MARITAL ASSETS, AND THEREFORE SUBJECT TO EQUITABLE DISTRIBUTION.
and
II. WHETHER THE LOWER COURT ERRED WHEN IT ATTEMPTED TO CONSIDER ALL RETIREMENT BENEFITS AS MARITAL ASSETS, BUT FAILED TO CONSIDER MARTHA TRAXLER'S SOCIAL SECURITY FOR PURPOSES OF EQUITABLE DISTRIBUTION.
¶ 14. Thomas contends that if he is required to rely on his federal retirement without the benefit of social security he will be unable to maintain a decent standard of living under the terms of the divorce judgment which would not be an equitable distribution. Thomas Traxler's retirement benefit is his federal retirement account consisting of a balance of $46,000 at the time of trial. This amount reflects what he has contributed over eighteen years of employment.
¶ 15. In his brief, Thomas cites Savelle v. Savelle, 650 So.2d 476 (Miss.1995) for the proposition that one spouse has no vested right in the other's pension or retirement benefits.
¶ 16. Mississippi applies the doctrine of equitable distribution when deciding issues of marital assets. Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994). Marital property is defined as, "any and all property *1102 acquired or accumulated during the marriage". Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to equitable distribution by the chancellor. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994).
¶ 17. Thomas and Martha were married for 25 years. Thomas has worked for the U.S. Small Business Administration for the last 18 of those 25 years. Thomas' retirement was accumulated during the marriage. Retirement accumulated during the marriage is therefore subject to equitable distribution. Rennie v. Rennie, No. 97-CA-00100-SCT. July 23, 1998.
¶ 18. Chancellor Patterson employed the following guidelines set in Ferguson, 639 So.2d at 928, to effect an equitable division of marital property:
1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and
8. Any other factor which in equity should be considered.
¶ 19. It should be noted that although the chancellor followed the guidelines and included Thomas' retirement as a marital asset, he adjudicated him to be the owner of his retirement free and clear of Martha.
¶ 20. Accordingly, the chancellor's decision to include Thomas' retirement as a marital asset and subject it to equitable distribution is affirmed.
¶ 21. Thomas also contends that the chancellor's failure to consider Martha's Social Security benefits was not an equitable distribution. He argues that since Martha has retirement plus the fact that she is eligible for Social Security benefits then that should have been included with the marital assets. "One objective of equitable distribution of property is a fair division based upon the facts of the case." Reddell v. Reddell, 696 So.2d 287 (Miss.1997); Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). In a determination of the division of marital property, both spouses' contributions during the marriage should be thoroughly evaluated by the chancellor. Chamblee v. Chamblee, 637 So.2d 850, 865 (Miss.1994 ).
¶ 22. In response, Appellee argues that Social Security can in no way be considered a "vested" benefit to the extent that it becomes a marital asset.
¶ 23. Martha has Social Security taken from her monthly income which enables her to be eligible for it upon retirement. She is not receiving the benefits now, nor can it be determined that she will actually receive them in the future. As stated above marital property is "any and all property *1103 acquired or accumulated during the marriage". In his judgment, the chancellor listed all assets and debts with a known dollar figure but failed to discuss the Social Security although it is presently being deducted from Martha's wages. Although this is an error, it should be considered harmless because the overall distribution was equitable. The decision of the lower court is affirmed.
III. WHETHER THE LOWER COURT ERRED WHEN IT MADE A FINING OF FACT BASED ON SPECULATION THAT THOMAS TRAXLER WOULD RECEIVE SUPPLEMENTAL INCOME IN THE FUTURE AS A BASIS FOR AWARDING PERIODIC ALIMONY AND EQUITABLE DISTRIBUTION.
¶ 24. The supplemental income that is in question is the rental income that Thomas collected from managing rental property owned by his mother, Annette Traxler. Beginning in 1972, Thomas took over management and administration of the rental property. During those years, the proceeds were used to supplement the needs of the household. Thomas ceased management of the property after the divorce suit was filed.
¶ 25. The chancellor, in his decision, stated that the rental income that Annette Traxler was giving to Thomas was a gift and nonmarital property, but these funds were deposited in the joint account, thus converting non-marital to marital property. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994).
¶ 26. Thomas alleges that it was reversible error for the chancellor to find purely on speculation and conjecture that subsequent to this litigation, the rental income would again be received based on his relationship with his mother.
¶ 27. Thomas testified that he relinquished management because of his move to Brandon. However, no evidence was offered to show that his mother demanded return of the management responsibilities. The chancellor took into consideration the fact that this was extra money that contributed to the parties standard of living and that it is not beyond belief that the money will be restored to him when this matter is finalized. Although there are no facts to show that he will resume management, there is evidence that he managed it for twenty-two years.
¶ 28. Thomas further argues that even if the court were to consider this income, Martha did not contribute toward its procurement and she is due no equitable division. Watts v. Watts, 466 So.2d 889, 891 (Miss. 1985). This argument has no merit in that evidence shows that Martha helped clean, manage and collect the rent over the twentytwo years.
¶ 29. Assets originally categorized as non-marital assets may be converted to marital assets by being used for family purposes or commingled with marital assets. Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995). The chancellor had the most fundamental fairness in mind because each party walked away with an even split. The decision to include rental income is affirmed.
IV. WHETHER THE AWARD OF $750.00 PER MONTH PERIODIC ALIMONY WAS EXCESSIVE CONSIDERING MARTHA RECEIVED TOTAL EQUITY IN THE MARITAL HOME, CHILD SUPPORT AND LIMITED MARITAL LIABILITIES.
¶ 30. Whether or not to award alimony and the amount of alimony is largely within the discretion of the chancellor. A decision by the chancellor will not be disturbed unless it is found to be against the overwhelming weight of the evidence or manifestly in error. Parsons v. Parsons, 678 So.2d 701, 703 (Miss.1996); Creekmore v. Creekmore, 651 So.2d 513, 517 (Miss.1995 ).
¶ 31. The following factors are to be considered by the chancellor in arriving at findings and entering judgment for alimony:
1. Income and expenses of the parties;
2. The health and earning capacity of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require *1104 that one or both of the parties either pay, or personally provide child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party;
12. Any other factor deemed by the court to be "just and equitable" in connection with setting spousal support.
Parsons, 678 So.2d at 703; Ethridge v. Ethridge, 648 So.2d 1143, 1146 (Miss.1995); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).
¶ 32. Thomas, at age 47, receives an annual salary of $56,000.00 and monthly gross of $4700.00. He generally receives an annual cost of living increase of one and one half to two percent, which will increase his annual and monthly gross. His disposable income is $3150.00. Thomas' monthly living expenses, per his financial statement, total $1288.00 and his monthly obligations total $1000.00. The monthly obligations were considered to be short term debts. Thomas has $46,000.00 in retirement, $25,000.00 in personal property assets, and a cash value of $1817.00 on two life insurance policies. He is in good health.
¶ 33. Martha's assets were found to be $46,364.00 which includes her retirement of $19,000.00. The chancellor combined the total of marital assets and came up with a figure of $121,622.00. He then split the assets 50/50.
¶ 34. Thomas alleges that the award was excessive considering that Martha received total equity in the marital home, will collect child support and has limited marital liabilities. Although she has the equity in the home, she has to assume all of the mortgage payments of $655.00 per month. The chancellor ordered Thomas to pay an amount of $225.00 child support for any thirty day period that the minor child will be in the home. This decision was made considering the fact that Ty Traxler will be entering college and will be away from the home the majority of the school year. Thomas fails in showing that he is left with a majority of the marital liabilities since all assets and joint liabilities were split evenly. The chancellor's decision was supported by credible evidence offered by both parties and is therefore affirmed.
V. WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN ORDERING THOMAS TO PARTIALLY PAY MARTHA'S ATTORNEY'S FEES WITHOUT PROOF OF HER INABILITY TO PAY.
¶ 35. "Like other matters, awarding attorney's fees is entrusted to the chancellor's broad discretion." Boykin v. Boykin, 565 So.2d 1109, 1116 (Miss.1990); Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988); Holleman v. Holleman, 527 So.2d 90, 95 (Miss.1988).
¶ 36. Thomas alleges that the chancellor abused his discretion when awarding Martha partial attorney fees without a showing of an inability to pay. Martha demonstrated her inability to pay fees in that she borrowed the money to pay the portion of the fees that had been paid. However it should be noted that the amount he was ordered to pay, $2268.00, was offset by the amount Martha had to pay Thomas to equalize the distribution of marital assets. The chancellor used sound discretion when awarding Martha partial payment of attorney fees and is therefore affirmed.
¶ 37. On cross-appeal Martha raises the single issue:
VI. WHETHER A LIFE INSURANCE POLICY OWNED BY THOMAS DURING THE MARRIAGE IS A MARITAL ASSET.
¶ 38. The Appellee contends that the chancellor incorrectly determined that the $26,500.00 cash value in a life insurance policy was not a marital asset. Martha argues that the premiums were paid out of the joint checking account.
¶ 39. The life insurance policy was purchased by Annette Traxler for the benefit of Thomas for estate purposes. Annette Traxler testified that the premiums were deposited *1105 into Thomas' checking account by her and subsequently paid out of that account. However, no other evidence was provided to show from which account the premiums were paid. The Court finds that this issue is to be remanded to the lower court for a determination as to from which account the premiums were paid.
CONCLUSION
¶ 40. This Court affirms all decisions of the lower court in including retirement benefits as a marital asset; including rental income as a marital asset for equitable distribution; the awarding of $750.00 per month periodic alimony; and the awarding of partial attorney's fees. However, the issue of the cash value of the life insurance policy is remanded to determine from which account the premiums were paid.
¶ 41. AFFIRMED IN PART; REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
PRATHER, C.J., PITTMAN, P.J., and JAMES L. ROBERTS, Jr., MILLS and WALLER, JJ., concur.
McRAE, J., dissents with separate written opinion joined by SULLIVAN, P.J., and BANKS, J.
McRAE, Justice, dissenting:
¶ 42. The Court holds that the Chancellor erred by failing to include Martha's Social Security benefits in the equitable distribution hotchpot. But, the Court subsequently and unreasonably deems such error harmless as it affirms the Chancellor's distribution. The Court further errs by stating the Chancellor split the assets 50-50 and by forcing Thomas to pay a portion of Martha's attorney's fees. Hence, I dissent.
¶ 43. The majority cites Rennie v. Rennie, 718 So.2d 1091, 1095(Miss.1998), as it states, "[r]etirement accumulated during the marriage is therefore subject to equitable distribution." Yet, despite its temporal wisdom, the majority proceeds to eschew its own statement. Indeed, the majority deems harmless the Chancellor's failure to include Martha's 25 years of Social Security benefits in the equitable distribution equation. The majority maintains such a perspective despite its own plain language and despite this Court's statement in Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997) (citing Chamblee v. Chamblee, 637 So.2d 850, 865 (Miss.1994)): "[o]ur holding in Chamblee requires that, in a determination of the division of marital property, both spouses contributions during the marriage be thoroughly evaluated by the chancellor." See Id.
¶ 44. Because federal retirement is in lieu of social security and because federal retirement is being considered, it is my view that social security must also be considered in deciding the issue of equitable distribution in this case.
¶ 45. The "evident error" is not harmless because equitable distribution is unrealized not all of the marital assets were considered. Martha's contribution appeared to be less than it was, which proved detrimental to Thomas because it appeared as if Martha commanded more assets and relative "support" than was actually so. Martha benefitted from the error. Despite Martha's claims to the contrary, her Social Security investment from years as a school counselor is vested, because she has paid in a sum of funds from which benefit amounts are calculable. Hence, the Social Security funds are distributable assets which the Chancellor erroneously failed to consider. Further, the Court says the Chancellor "split the assets 50/50." Yet, how can such be so since the Social Security funds were not considered? It cannot.
¶ 46. As to the assignment of attorney's fees, Thomas was forced to pay a percentage of Martha's fees despite the fact Martha failed to show an inability to pay. While the Court finds that Martha demonstrated an inability to pay in that she borrowed funds to pay that which she did, the Court is conclusory because such evidence is far from determinative of an overall inability to pay. Perhaps Martha simply did not have sufficient cash flow at the time as she awaited her next pay check, or perhaps Martha had the funds but borrowed because she preferred not to reduce her current level of such funds. The *1106 point is clear-how are we to know from a simple act of borrowing that Martha was unable to pay the whole of her attorney's fees? We are not so able.
¶ 47. The Court continues its justification of the Chancellor's decision by stating that Martha offset Thomas's payment of attorney's fees with her payment to equalize the distribution of marital assets. Yet, such is a non-justification because Martha was required to pay the distribution equalization regardless of whether she had attorney's fees. By allowing Martha to only pay the full amount of the equalization while reducing her obligation for her attorney's fees, Thomas again is harmed while Martha benefits. Yet, the Court certifies the Chancellor's action. Given insufficient showing from which to rationally deem Martha unable to pay her attorney's fees, reason and equity dictate that each party should pay that party's own attorney's fees. See Cheatham v. Cheatham, 537 So.2d 435 (Miss.1988).
¶ 48. As aforementioned, the majority manifestly errs in not reversing to include Martha's vested Social Security benefits, in declaring the Chancellor's split of assets to have been equal, and in not reversing to have each party pay its own attorney's fee. Accordingly, I dissent.
SULLIVAN, P.J., and BANKS, J., join this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579546/ | 267 Wis. 2d 31 (2003)
2003 WI 142
671 N.W.2d 279
Kelly BROWN, Plaintiff-Appellant,[]
v.
LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent,
SCHULTZ SAV-O-RACINE and Reliance Insurance Company, Defendants-Respondents-Petitioners.
No. 02-1429.
Supreme Court of Wisconsin.
Oral argument October 7, 2003.
Decided November 18, 2003.
*37 For the defendants-respondents-petitioners there were briefs by Michael C. Frohman and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Michael C. Frohman.
For the plaintiff-appellant there was a brief by John A. Becker and Becker, French & DeMatthew, Racine, and oral argument by John A. Becker.
For the defendant-respondent there was a brief (in the court of appeals) by Lowell E. Nass, assistant attorney general, and James E. Doyle, attorney general.
*38 ¶ 1. SHIRLEY S. ABRAHAMSON, C.J.
This is a review of a published decision of the court of appeals.[1] The circuit court affirmed the order of the Labor and Industry Review Commission (LIRC), which held that Reliance Insurance Company, the insurer, did not act in bad faith when it suspended temporary total disability benefit payments to Kelly Brown, the employee, prior to the termination of his healing period. See Wis. Stat. § 102.18(1)(bp) (2001-2002)[2] (establishing penalty in an award for bad faith); Wis. Admin. Code § DWD 80.70(2) (Nov. 2002) (defining bad faith).
¶ 2. The court of appeals reversed the order of the circuit court, concluding that LIRC misapplied the law of bad faith to the facts of the case. The court of appeals concluded that the insurer failed to properly investigate and develop the facts necessary to evaluate the employee's claim and, as a result, the insurer acted in bad faith when it terminated the employee's benefits.[3] The court of appeals remanded the cause to the circuit court for remand to LIRC for a determination of the amount of the penalty award.
¶ 3. The issue before us is whether LIRC's conclusions of lawthat the employee's claim for benefits was fairly debatable and that the insurer's suspension of benefits did not constitute bad faith under Wis. Stat. § 102.18(1)(bp) and Wis. Admin. Code § DWD 80.70(2) should be affirmed.
*39 ¶ 4. We conclude that this court must give great weight deference to LIRC's conclusions of law and that LIRC's conclusions of law are reasonable. Accordingly, we affirm LIRC's order dismissing the employee's application for bad faith and reverse the decision of the court of appeals.
I
¶ 5. For the purposes of this review, we provide an abbreviated version of the undisputed facts that are relevant to deciding the issues presented. Additional facts appear later in the opinion relating specifically to the issue of bad faith.
¶ 6. The employee worked as a meat cutter at a grocery store and suffered a compensable back injury in March 1993. The employee re-injured his back in April 1995. After the second injury, the employee could not return to work. The insurer initially paid the employee temporary total disability from April 6, 1995 through January 26, 1996, but it suspended payment after investigating allegations that the employee was working and not reporting offset income earned from an external source.
¶ 7. The employee challenged the termination of his benefits and requested a worker's compensation hearing on the issue. In November 1996, a hearing was held before an administrative law judge and benefits were reinstated for the remainder of the employee's healing period because the insurer failed to prove that the employee received any income that would have offset disability payments received during the stipulated disability period. Thus the employee won his case for continuation of benefits, and the insurer lost. The issue of whether the employee should receive benefits is *40 not before us. The issue before us is whether the employee is entitled to additional penalty payments on the ground that the insurer acted in bad faith.
¶ 8. After winning his claim for continuation of benefits, the employee filed a claim for a penalty award pursuant to Wis. Stat. § 102.18(1)(bp), alleging that the insurer acted in bad faith when it terminated his temporary total disability benefits. After a hearing in March 2001, the administrative law judge concluded that although there may have been better ways to go about suspending the employee's benefits in January 1996, the insurer's actions did not constitute bad faith. The employee appealed the administrative law judge's findings and order to LIRC. LIRC affirmed and adopted as its own, with one modification, the findings and order of the administrative law judge.
¶ 9. The employee then appealed to the circuit court. The circuit court concluded that the insurer had a reasonable basis to suspend the employee's benefits because the merits of the suspension were debatable.
II
¶ 10. Our analysis in this case centers around the standard of review. The court of appeals correctly explained that a determination of bad faith under Wis. Stat. § 102.18(1)(bp) and Wis. Admin. Code § DWD 80.70(2) presents a mixed question of fact and law.[4] The parties' conduct presents a question of fact.[5] Courts will *41 sustain LIRC's factual determinations so long as they are supported by credible and substantial evidence.[6]
¶ 11. The interpretation of a statute presents a question of law.[7] The application of a statutory standard to a fact situation is ordinarily a question of law for the courts.[8] The conclusion that an insurer's conduct *42 constitutes bad faith is drawn from the underlying findings of fact, and we label it a legal conclusion.[9]
¶ 12. Nevertheless, labeling an issue as a question of law does not mean that a court may disregard an agency's determination. As the court of appeals correctly stated, an important principle of administrative law is that, in recognition of the expertise and experience of an agency, a court will in certain circumstances defer to the agency's interpretation and application of a statute. Whether a court independently interprets a statute or independently applies the law to the facts or defers in some way to an agency's conclusions of law depends on the particular agency action being reviewed.
¶ 13. Over time, we have developed a three-level approach to an agency's conclusions of law: a court gives an agency's conclusion of law no deference (the court makes a de novo determination of the question of law); a court gives an agency's conclusion of law due weight deference; or a court gives an agency's conclusion of law great weight deference.[10] The appropriate level of scrutiny a court should use in reviewing an agency's decision on questions of law depends on the comparative institutional capabilities and qualifications of the court and the agency to make a legal determination on a particular issue.[11]
*43 ¶ 14. No deference is due an agency's conclusion of law when an issue before the agency is one of first impression or when an agency's position on an issue provides no real guidance.[12] When no deference is given to an administrative agency, a court engages in its own independent determination of the questions of law presented, benefiting from the analysis of the agency and the courts that have reviewed the agency action.
¶ 15. Due weight deference is appropriate when an agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than a court to interpret and apply a statute.[13] Under the due weight deference standard "a court need not defer to an agency's interpretation which, while reasonable, is not the interpretation which the court considers best and most reasonable."[14]
¶ 16. Great weight deference is appropriate when: (1) an agency is charged with administration of the particular statute at issue; (2) its interpretation is one of long standing; (3) it employed its expertise or specialized knowledge in arriving at its interpretation; and (4) its interpretation will provide uniformity and consistency in the application of the statute.[15] In other words, when a legal question calls for value and policy judgments that require the expertise and experience of *44 an agency, the agency's decision, although not controlling, is given great weight deference.[16]
¶ 17. We agree with the court of appeals that LIRC's conclusions of law in the present case, although not controlling, are entitled to great weight deference. The legislature delegated the responsibility to administer the Wisconsin's Worker's Compensation Act to the Department of Work force Development (DWD) and to LIRC.[17] The legislature's rationale was that LIRC would develop the specialized knowledge, expertise, and *45 experience to make consistent policy judgments about bad faith claims when it heard disability compensation claims.
¶ 18. LIRC has developed extensive experience interpreting penalty provisions contained in the Worker's Compensation Act.[18] The legislature enacted Wis. Stat. § 102.18(1)(bp) in 1981 and authorized DWD to adopt a rule governing bad faith. LIRC adopted such a rule through the rulemaking process. Moreover, LIRC has many years of experience applying the law of bad faith and determining appropriate penalties for bad faith consistent with the statutes, administrative code, and case law.[19] In sum, through the DWD's rule making *46 process and through LIRC's cases, LIRC has developed specialized experience, expertise, and knowledge concerning bad faith and employed its expertise in the present case, and deferring to LIRC's interpretation and application of the statute provides uniformity and consistency. We therefore conclude, as did the court of appeals, that LIRC applied that experience, expertise, and knowledge in the present case, and that LIRC"s legal conclusions are entitled to great weight deference.[20]
¶ 19. When an agency's conclusions of law are entitled to great weight deference, a court will refrain from substituting its view of the law for that of an agency charged with administration of the law and will sustain the agency's conclusions of law if they are reasonable.[21] Thus a court should sustain an agency's conclusion of law even if an alternative view of the law *47 is just as reasonable or even more reasonable.[22] An agency's conclusion of law is unreasonable and may be reversed by a reviewing court if it directly contravenes the words of the statute or the federal or state constitution, if it is clearly contrary to the legislative intent, history, or purpose of the statute, or if it is without rational basis.[23]
¶ 20. We turn now to examining LIRC's interpretation of the bad faith statute and its application of bad faith law to the facts of the present case.
III
¶ 21. Wisconsin Stat. § 102.18(1)(bp) provides, in relevant part, that the Department of Workforce Development (DWD) may include a penalty in an award to an employee if the department determines that an employer's or insurance carrier's suspension or termination of payments resulted from bad faith. The statute authorizes the department to award an amount that it considers just, not to exceed the lesser of 200% of the total compensation due or $15,000. The statute further authorizes the DWD to define, by rule, actions which demonstrate bad faith.[24]
*48 ¶ 22. The DWD adopted such a rule. Wisconsin Admin. Code § DWD 80.70(2) defines actions constituting bad faith. An insurance company that, after having commenced payments under § DWD 80.70(2), unreasonably suspends or terminates the payments without credible evidence demonstrating that the claim for the payments is fairly debatable shall be deemed to have acted in bad faith.[25]
¶ 23. The court of appeals concluded in Kimberly-Clark[26] that Anderson v. Continental Insurance Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978), recognizing the tort of bad faith, applies to bad faith claims under Wis. Stat. § 102.18(1)(bp) and the accompanying administrative *49 code provision, Wis. Admin. Code § DWD 80.70(2).[27] The Anderson case adopted a two-part test for bad faith. To demonstrate bad faith, a claimant must show that the insurer had no reasonable basis for denying benefits and knew or recklessly disregarded that there was no reasonable basis for denying benefits.
¶ 24. The claimant, here the employee, must first show that the insurance company did not have a reasonable basis to suspend payment on the claim. In other words, the insurer did not possess information that would lead a reasonable insurer to conclude that an employee's claim is fairly debatable and that there-fore payment need not be made on the claim.[28] The "fairly debatable" test is an objective test. It asks whether a reasonable insurer under similar circumstances would have denied, suspended, or delayed payment on the claim.[29]
¶ 25. The test for determining that an insurer has a reasonable basis to suspend payment on the claim is whether the insurer properly investigated the claim and whether the results of the investigation were *50 subject to a reasonable evaluation and review.[30] The reasonable or unreasonable character of the insurer's conduct is gauged by examining the circumstances existing when the insurer made its decision to deny benefits.[31]
¶ 26. The second element the claimant must show to demonstrate bad faith is that the insurer knew or recklessly disregarded that there was no reasonable basis for denying benefits. The Anderson court explained that the nature of the tort of bad faith is intentional and that implicit in the two-part test is "our conclusion that the knowledge of the lack of a reasonable basis may be inferred and imputed to an insurance company where there is a reckless disregard of a lack of a reasonable basis for denial or a reckless indifference to facts or to proofs, submitted by the insured."[32] The focus for determining whether an insurer is liable for bad faith is the sufficiency or strength of its reasoning.
¶ 27. The state of mind required for a bad faith penalty may be better understood upon examination of Wis. Stat. § 102.22(1), which imposes a penalty for inexcusable neglect. As the court of appeals explained in North American Mechanical v. LIRC, 157 Wis. 2d 801, 808-809, 460 N.W.2d 835 (Ct. App. 1990), chapter 102 contemplates three types of conduct resulting in a delay in payments: (1) excusable neglect; 920 Inexcusable neglect; and (3) bad faith delay. The legislature apparently contemplated that some delay could be *51 excusable. When the delay is inexcusable, the delayed payments shall be increased by 10% under § 102.22(1).
[24, 25]
¶ 28. The potential 200% penalty provided in Wis. Stat. § 102.18(1)(bp) is reserved for cases of bad faith. Not all inexcusable delays rise to the level of bad faith. "[A] finding of the `knowledge' element of the Anderson test is a prerequisite to imposition of `bad faith' penalties under sec. 102.18(1)(bp), Stats."[33]
[26]
¶ 29. If an insurance company exercises ordinary care in investigating the facts and law and reasonably concludes that the claim is fairly debatable, the company's actions will not constitute bad faith.[34]
¶ 30. We now turn to whether LIRC's conclusions of law that the employee's claim for benefits was fairly debatable and that the insurer's suspension of benefits did not constitute bad faith within Wis. Stat. § 102.18(1)(bp) and Wis. Admin. Code § DWD 80.70(2) were reasonable and should be affirmed.
IV
[27]
¶ 31. The sole question before us is whether LIRC's conclusion of law that the insurer did not act in bad faith is a reasonable interpretation and application *52 of Wis. Stat. § 102.18(1)(bp), the administrative code, and the case law. We reiterate that the issue we address is not whether the employee was entitled to temporary total disability benefits. That issue has already been decided in the employee's favor; the employee's benefits were reinstated.
¶ 32. LIRC reviewed the evidence submitted to the administrative law judge and adopted the findings of fact (with one exception),[35] the conclusions of law, and the order of the administrative law judge as its own. LIRC concluded that the employer had a reasonable basis for believing the employee was engaged in wage-earning services.
¶ 33. The administrative law judge addressed the various pieces of information received at the hearing and concluded that the employer had not suspended benefits in bad faith. The administrative law judge considered important the fact that the insurer received information from three independent sources indicating that the employee was working in insurance sales.
¶ 34. The insurer's first source of information was the state. The Wisconsin Worker's Compensation Division received an anonymous tip on its fraud hotline that the employee was defrauding the insurer by failing to report external income. The insurer initiated an investigation to verify the veracity of the anonymous tip.
*53 ¶ 35. The insurer's second source of information was the employee's supervisor. The insurer communicated with the employee's supervisor, who reported that the employee was selling insurance and was not planning to return to his former occupation.
¶ 36. The third source of information was an investigation firm. The insurer hired the firm to watch the employee. The firm provided surveillance on the employee on four separate occasions. The surveillance showed the employee wearing a business suit while entering a building during working hours. The administrative law judge concluded that this information "could be interpreted as selling insurance." The evidence disclosed that the employee had been licensed to sell insurance in Wisconsin since 1994. The evidence also disclosed that the employee did not have a business telephone number.
¶ 37. Apparently the administrative law judge allowed the insurer to infer that when someone was working he was probably earning money. The assumption that the employee was earning money was reinforced by the fact that the employee was in his third year of insurance sales.
¶ 38. The insurer waited until after it had acquired this informationthree months after the initial contact with the fraud investigation unitbefore suspending benefit payments. The insurer did not, however, seek wage or earnings information from the employee until after it suspended benefits. The court of appeals criticized the insurer and LIRC for this failure, remarking that an insurer cannot shoot first and ask questions later.
¶ 39. The administrative law judge noted that the legislature placed a fraud provision in the worker's compensation act to prevent fraud on the system and *54 stated that "if fraud is involved, and the temporary disability money is paid under mistake of fact, there is no way of getting it back from the person who committed the fraud." Thus, reasoned the administrative law judge, employers, insurers, and LIRC have an important interest in suspending benefits before the costs of the fraud become too great. The administrative law judge thus considered the purposes of the law in reaching his decision. The employee contends that the administrative law judge did not adequately consider another purpose of the worker's compensation law, namely to assure payments to an injured employee. Here the employee had no other source of income and suffered undue hardship to the point of foreclosure and bankruptcy.
¶ 40. From the totality of this information, the administrative law judge concluded that "although there may have been better ways to go about suspending benefits in January 1996," the evidence was sufficient to conclude that the actions of the insurer did not constitute bad faith.
¶ 41. The employee objects to the validity of the individual pieces of pre-suspension evidence on the grounds that each is either weak, based on third-hand hearsay, or, in the case of his insurance license, a perfectly legitimate second job pursuant to Wis. Stat. § 102.43(c)(b).
¶ 42. The insurer cannot seriously debate the employee's criticisms. The claims adjuster admitted at the hearing that there was not much in the video tape surveillance or in the surveillance report.
¶ 43. Weak evidence notwithstanding, both parties make strong arguments. The employee argues that the insurer did not exercise sufficient diligence in its investigation, while the insurer queries what more it *55 could reasonably have done under the circumstances of this case. The insurer contends that the court of appeals unreasonably placed a requirement on the insurer to obtain actual evidence of business profits before suspending benefits in the face of evidence of incomeproducing work activity. According to the insurer, this requirement is particularly onerous because insurers do not have authority to require production of documents disclosing such information prior to an evidentiary hearing. The employee recognizes that an insurer does not have the right to compel production of documents before a hearing, but argues that an insurer does have the right (and obligation) to request information. Because an employee might not tell the truth does not, asserts the employee, excuse an insurer from asking for earnings information.
¶ 44. This case presented a close call for the administrative law judge and LIRC. Were this court reviewing the order of LIRC de novo, the result might very well be different.
¶ 45. But we are not reviewing the order of LIRC de novo. Ultimately, we must reverse the decision of the court of appeals because, after enunciating the great weight deference standard as the appropriate standard of review applicable in this case, the court of appeals failed, we conclude, to pay credence to it.
¶ 46. The court of appeals concluded that the insurer's limited investigation did not provide it with any information that could have possibly led it to conclude that it need not make payment on the employee's claim.[36] The court of appeals' decision can be read to create a new requirement of insurers that does not exist in the statute or administrative code, namely *56 that an insurer must either communicate with an employee directly to obtain wage and earnings information or must obtain such information elsewhere before it can suspend benefits.
¶ 47. LIRC has not adopted, as far as we can discover, the court of appeals' criterion for gauging whether an investigation or development of the facts is reasonable. In the present case LIRC explicitly concluded that the insurer "does not have to have exact income information in order to make an exact offset before it can withhold payment of TTD [temporary total disability]. The question is whether the [insurer] had a reasonable basis for believing the [employee] was engaged in wage earnings services. The commission finds after reviewing the record that the [insurer] did have a reasonable basis for such a belief." LIRC apparently interprets the statute and administrative code on a case-by-case basis in order to determine whether a claim is fairly debatable under the statute, administrative code, and case law.
¶ 48. The court of appeals acknowledges in its decision that an agency's interpretation and application of a statute and administrative code are reasonable if they accord with the language of the statute, the legislative intent, the legislative history, the federal or state constitution, and the purpose of the statute, and "are consistent with the judicial analysis of the statute."[37] The court of appeals did not assert that LIRC's case-by-case interpretation and application of the statute and administrative code, or its order in the present case, violated the language of the statute, the legislative intent, the legislative history, or the federal or state constitution.
*57 ¶ 49. The court of appeals concluded that LIRC's interpretation and application of the statute and administrative code "are inconsistent with [the court of appeals'] own interpretation and application of the term `fairly debatable' as set forth in Kimberly-Clark and directly contravene the basic purpose behind the Worker's Compensation Act [which is to give prompt relief to injured employees entitled to compensation]."[38]
¶ 50. We disagree with the court of appeals. LIRC did apply the term "fairly debatable" as set forth in Kimberly-Clark and Anderson and did consider the purposes behind the Worker's Compensation Act. The court of appeals and LIRC just disagree about the weight to be given to the evidence presented and to the purposes of the Act.
¶ 51. We cannot say that, had we been in its position, we would have reached the same conclusions as LIRC. We can say, however, that LIRC's conclusions are reasonable, although different conclusions might be more reasonable. We acknowledge that the investigation came up with somebut not a great deal of evidence, and it is arguable that the insurer may have been premature in suspending benefits when it did. Inherent in the great weight deference standard is the concept that LIRC is well positioned to make judgments about bad faith so it may develop and apply consistent policies and standards. Courts are bound to give LIRC flexibility to do so. We therefore conclude that LIRC's *58 conclusions of law and order were reasonable and that the court of appeals did not show proper deference to LIRC.
¶ 52. That said, insurers, employers, and LIRC should not infer from this opinion that suspending an employee's benefits after a brief, inconclusive investigation is an acceptable means of avoiding a bad faith penalty. The court recognizes that employees are often financially dependent upon worker's compensation benefits and a reasonable investigation under the circumstances is needed before suspension of benefits occurs. The insurer's actions in the present case may have been reasonable in LIRC's opinion, but the insurer's actions press very near the limit of what the great weight deference level of review will bear.
¶ 53. For the reasons set forth, we reverse the decision of the court of appeals.
By the Court. The decision of the court of appeals is reversed.
NOTES
[] Motion for Reconsideration denied 2-26-04.
[1] Brown v. LIRC, 2003 WI App 56, 260 Wis. 2d 788, 659 N.W.2d 918.
[2] All references to the Wisconsin statutes are to the 2001-02 version unless otherwise indicated.
[3] Brown, 260 Wis. 2d 788, ¶ 1.
[4] Nottelson v. DILHR, 94 Wis. 2d 106, 115, 287 N.W.2d 763 (1980).
[5] Nottelson, 94 Wis. 2d at 114-15; Applied Plastics, Inc. v. LIRC, 121 Wis. 2d 271, 276, 359 N.W.2d 168 (Ct. App. 1984).
[6] Wisconsin Stat. § 102.23(6) provides as follows:
If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.
This court set forth the standard of review for LIRC's orders as follows:
Factual findings of LIRC are conclusive as long as they are supported by credible and substantial evidence and LIRC did not act fraudulently or in a manner which exceeds its powers. A court may overturn a decision made by LIRC if it was fraudulently obtained or made while LIRC was acting outside the scope of its powers. A LIRC order or award may also be set aside if it is unsupported by LIRC's findings of fact, or depends upon "any material and controverted finding of fact that is not supported by credible and substantial evidence." However, "the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact."
Wis. Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 786, 595 N.W.2d 23 (1999) (citations omitted).
[7] Nottelson, 94 Wis. 2d at 114-15; Applied Plastics, 121 Wis. 2d at 276.
[8] Nottelson, 94 Wis. 2d at 115; Applied Plastics, 121 Wis. 2d at 276.
[9] Nottelson, 94 Wis. 2d at 114-15.
[10] UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996); see also Jicha v. DILHR, 169 Wis. 2d 284, 290, 485 N.W.2d 256 (1992).
[11] State ex rel. Parker v. Sulivan, 184 Wis. 2d 668, 699, 517 N.W.2d 449 (1994) (quoted with approval in UFE Inc., 201 Wis. 2d at 284).
[12] UFE Inc., 201 Wis. 2d at 285.
[13] Id. at 286.
[14] Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660 n.4, 539 N.W.2d 98 (1995).
[15] Id. at 660; Lisney v. LIRC, 171 Wis. 2d 499, 505, 493 N.W.2d 14 (1992).
[16] Harnischfeger Corp., 196 Wis. 2d at 659; Nottelson, 94 Wis. 2d at 117; Kimberly-Clark Corp v. LIRC, 138 Wis. 2d 58, 64, 405 N.W.2d 684 (Ct. App. 1987).
[17] See Wis. Stat. §§ 102.14(1) (delegating enforcement of Chapter 102 to the DWD), 102.18(3) providing that a party in interest may petition LIRC to review the decision of an examiner). See also Hagen v. LIRC, 210 Wis. 2d 12, 19, 563 N.W.2d 454 (1997) ("[T]he Department of work force Development (DWD) is charged under Wis. Stat. § 102.14(1) with administering Chapter 102, and both the DWD and LIRC are charged with interpreting the statute and making factual findings when determining a claimant's entitlement to worker's compensation benefits."). Courts have frequently held that LIRC's decisions about chapter 102 are entitled to great deference. See, e.g., Hagen, 210 Wis. 2d at 24-25 (LIRC's interpretation of § 102.52(1) is entitled to great weight deference); United Wis. Ins. Co. v. LIRC, 229 Wis. 2d 416, 600 N.W.2d 186 (Ct. App. 1999) (the court will defer to LIRC's interpretation if it is intertwined with value and policy determinations inherent in the agency's decision-making function); Dowering v. LIRC, 187 Wis. 2d 472, 523 N.W.2d 142 (Ct. App. 1994) (the court gives great deference to LIRC's application and interpretation of a labor statute).
[18] Beverly Enters., Inc. v. LIRC, 2002 WI App 23, ¶ 20, 250 Wis. 2d 246, 640 N.W.2d 518 (LIRC's determination of bad faith is entitled to great weight deference; LIRC has had a substantial number of cases to develop considerable experience).
[19] The court of appeals in Kimberly Clark, 138 Wis. 2d at 64, concluded that LIRC did not have the expertise or body of precedent necessary to address the interplay of Wis. Stat. § 102.18(1)(bp) and Wis. Admin. Code § DWD 80.70(2) at the time that case was decided. See also N. Am. Mech. v. LIRC, 157 Wis. 2d 801, 806, 460 N.W.2d 835 (Ct. App. 1990).
Nevertheless, we conclude, as did the court of appeals in the present case, that since these cases, LIRC has had ample time to develop the requisite expertise and precedent necessary to address this question. See, e.g., Greenwood v. Woodbridge Corp., No. 19990046119 (September 10, 2002) (available at http://www .dwd.state.wi.us/lirc/wcdecsns/686.htm) (finding no bad faith on part of insurer suspending benefits); Baysinger v. Ludwig Siding, No. 1996031413 (June 30, 1998) (available at http: //www. dwd. state. wi.us/lirc/wcdecsns/231. htm) (finding bad faith on part of insurer suspending benefits); Smith v. Longview Fibre Co., No. 1990024253 (October 29, 1998) (available at http: //www.dwd.state.wi.us/lirc/wcdecsns/259.htm) (same); Starkl v. JC Penney Milwaukee Catalog, No. 90065879 (June 13, 1996) (same) (available at http://www.dwd.state.wi.us/lirc/wcdecsns /7%2D20%5Fsta.htm); Meyer v. Milliken Millwork Inc., No. 93023332 (February 27, 1998) (available at http://www.dwd.state .wi.us/lirc/wcdecsns/1995.htm) (same). See also LIRC cases cited in Beverly Enters., 250 Wis. 2d 246,91 20 n.9. A search on LIRC's Web page for worker's compensation decisions indicates that there are a total of 43 catalogued decisions by the LIRC interpreting the phrase "bad faith."
[20] West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 11, 13-14, 357 N.W.2d 534 (1984).
[21] Harnischfeger Corp., 196 Wis. 2d at 661; Lisney, 171 Wis. 2d at 506; see also Honthaners Rests., Inc. v. LIRC, 2000 WI App 271, ¶ 13, 240 Wis. 2d 234, 621 N.W.2d 660; Eaton Corp. v. LIRC, 122 Wis. 2d 704, 708, 364 N.W.2d 172, 174 (Ct. App. 1985).
[22] UFE Inc., 201 Wis. 2d at 287; Harnischfeger Corp., 196 Wis. 2d at 660.
[23] Harnischfeger Corp., 196 Wis. 2d at 662; Barron Elec. Coop. v. Pub. Serv. Comm'n, 212 Wis. 2d 752, 766, 569 N.W.2d 726 (Ct. App. 1997).
[24] Wisconsin Stat. § 102.18(1)(bp) provides as follows:
FINDINGS, ORDERS AND AWARDS. The department may include a penalty in an award to an employee if it determines that the employer's or insurance carrier's suspension of, termination of or failure to make payments or failure to report injury resulted from malice or bad faith. This penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. The department may award an amount which it considers just, not to exceed the lesser of 200% of total compensation due or $15,000. The department may assess the penalty against the employer, the insurance carrier or both. Neither the employer nor the insurance carrier is libel to reimburse the other for the penalty amount. The department may, by rule, define actions which demonstrate malice or bad faith. against an employer or insurance carrier for malice or bad faith. The department may award an amount which it considers just, not to exceed the lesser of 200% of total compensation due or $15,000. The department may assess the penalty against the employer, the insurance carrier or both. Neither the employer nor the insurance carrierr is liable to reimburse the other for the penalty amount. The department may, by rule, define actions which demonstrate malice or bad faith.
[25] Wisconsin Admin. Code § DWD 80.70(2) provides as follows:
MALICE OR BAD FAITH: An insurance company or self-insured employer who, without credible evidence which demonstrates that the claim for the payments is fairly debatable, unreasonably fails to make payment of compensation or reasonable and necessary medical expenses, or after having commenced those payments, unreasonably suspends or terminates them, shall be deemed to have acted with malice or in bad faith.
This chapter of the administrative code was renumbered from § IND to § DWD 80 as of July 1996.
[26] Kimberly-Clark, 138 Wis. 2d at 65.
[27] Coleman v. American Universal Insurance Co., 86 Wis. 2d 615, 273 N.W.2d 220 (1979), held that the exclusive remedy provision within the worker's compensation law does not bar a tort action for bad faith claims. The legislature enacted Wis. Stat. § 102.18(1)(bp) in response to Coleman. See § 14. ch. 92, Laws of 1981; Kimberly-Clark, 138 Wis. 2d at 62-63.
[28] Anderson v. Cont'l Ins. Co., 85 Wis. 2d 675, 692, 271 N.W.2d 368 (1978); Kimberly-Clark, 138 Wis. 2d at 64. See also Trinity Evangelical Lutheran Church v. Tower Ins. Co., 2003 WI 46, ¶ 33, 261 Wis. 2d 333, 661 N.W.2d 789.
[29] Anderson, 85 Wis. 2d at 692; Kimberly-Clark, 138 Wis. 2d at 65.
[30] Kimberly-Clark, 138 Wis. 2d at 65. See also Trinity, 261 Wis. 2d 333, ¶ 33.
[31] Kimberly-Clark, 138 Wis. 2d at 65-66.
[32] Anderson, 85 Wis. 2d at 693. See also Trinity, 261 Wis. 2d 333, ¶ 38.
[33] N. Am. Mech., 157 Wis. 2d at 808-09.
[34] Anderson, 85 Wis. 2d at 693. See John W. Thornton & Milton S. Blaut, Bad Faith and Insurers: Compensatory and Punitive Damages, 12 Forum 699, 719 (1977) ("An insurer should have the right to litigate a claim when it feels there is a question of law or fact which needs to be decided before it in good faith is required to pay the claimant.").
[35] LIRC removed an incorrect finding of fact of the administrative law judge. The administrative law judge found that "[t]hey determined the applicant had a business phone number and appeared to be selling insurance while he was supposed to be temporarily totally disabled." LIRC replaced this finding with the following: "The report noted that the applicant had been an independent insurance agent since October 1994 selling products for a number of companies. The applicant had an agent license number with the state."
[36] Brown v. LIRC, 260 Wis. 2d 788, ¶ 17.
[37] Id., ¶ 19.
[38] Id., ¶¶ 18-19.
The court of appeals also held that the insurer knew it had no information upon which to suspend payment of benefits, the second prong of the bad faith test laid out in Anderson, 85 Wis. 2d at 691. See Brown, 260 Wis. 2d 788, ¶ 17. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545118/ | 23 F.2d 897 (1928)
TALCOTT
v.
UNITED STATES.
No. 5144.
Circuit Court of Appeals, Ninth Circuit.
January 30, 1928.
Rehearing Denied March 5, 1928.
*898 Goldman & Altman, of San Francisco, Cal., and McClymonds & Wells, of Oakland, Cal., for plaintiff in error.
Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal. (C. M. Charest, General Counsel, and F. W. Dewart, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for the United States.
Robert T. Devlin, William H. Devlin, and Devlin & Devlin, all of Sacramento, Cal., and Edward J. McCutchen, Warren Olney, Jr., J. M. Mannon, Jr., Perry Evans, Carey Van Fleet, and Morrison, Hohfeld, Foerster, Shuman & Clark, all of San Francisco, Cal., amici curiæ.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
GILBERT, Circuit Judge (after stating the facts as above).
The main question here presented is whether, under the Revenue Act of 1918 (Comp. St. §§ 6371¼a, 6336 1/8a, et seq.) the one-half interest of the surviving wife in the community property of her deceased husband and herself, where both were domiciled in California, is subject to the federal estate tax. That question was before this court in Wardell v. Blum (C. C. A.) 276 F. 226, and it was there held that the one-half interest of a wife in the community property which on the death of her husband she held under the laws of California was not subject to the tax. A petition to the Supreme Court for certiorari was denied. 258 U.S. 617, 42 S. Ct. 371, 66 L. Ed. 793. In the present case the court below was of the opinion that the decision in Wardell v. Blum was impliedly overruled by the decision in United States v. Robbins, 269 U.S. 315, 46 S. Ct. 184, 70 L. Ed. 285, and its foundation was overturned in Stewart v. Stewart, 199 Cal. 318, 249 P. 197. The first of those cases arose, not under the estate tax provision of the Federal Revenue Act, but under the provision which imposes an income tax. We turn first to that case to ascertain what was the purport and scope of the decision so far as it affects the questions here involved. In the opinion in that case no reference was made to our decision in Wardell v. Blum, although it was brought to the court's attention by the briefs of both the parties. Nor did the court define the nature of the wife's estate in the community property further than to advert to the decisions of the Supreme Court of California and observe that the settled opinion, "at least with reference to the time before the later statutes," was "that the wife had a mere expectancy while living with her husband." Decision was not based, however, upon that view of the wife's estate, and in the syllabus it is recited that the ruling was made "without deciding whether the wife's interest is *899 `a mere expectancy,' or something more." The court took the view that, even if it was "wrong as to the law of California," the income of the community property was subject as a whole to an income tax which was properly assessable against the husband. This was held in view of the husband's power over the community property and his right to the disposition of the same and the income therefrom, and the fact that the property, while liable for the payment of his debts, was not liable for those of his wife, under section 167 of the Civil Code of California. In other words, the substance of the decision is that the taxation of the income of community property under the Revenue Act does not depend upon the title to the property from which it is derived but upon the ownership and power of the husband over it and his right to dispose of the same, restricted only by a prohibition against gifts without his wife's consent, as defined in the decisions of the courts of California. From that view of the nature of the husband's right to the income the conclusion necessarily followed that the wife who receives no income is not taxable for income and would have no property out of which to pay an income tax. The denial of the writ of certiorari in Wardell v. Blum was not equivalent to an affirmance of the judgment. Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U.S. 251, 258, 36 S. Ct. 269, 60 L. Ed. 629.
In Stewart v. Stewart the Supreme Court of California, upon an exhaustive review of its own prior decisions and the statutes concerning the rights of husband and wife in community property in that state, said: "We wish to say in conclusion that we are in accord with the intimations from time to time reflected by this court in the long line of its past decisions to the effect that the interest of the wife in the property of the community during the continuance of the marriage relation, while it has not yet reached the status of a vested interest therein, is and has always been from a time reaching back into the" time of the "Spanish and Mexican originals of our community property laws, a much more definite and present interest than is that of an ordinary heir. She has, by virtue of the share which in her own sphere she has contributed toward the acquisition and conservation of such properties, rights therein which have been always safeguarded against the fraudulent or inconsiderate acts of her husband with relation thereto and for the assertion and safeguarding of which she has been given access to appropriate judicial remedies, both before and after the time when her said rights and interests would ripen and become vested through the death of the husband or other severance of the marriage relation, whenever such rights and ultimate interests were affected by or threatened with such forms of invasion." In the course of the opinion, the court said that the decision in Roberts v. Wehmeyer, 191 Cal. 601, 614, 218 P. 22, "correctly disposes" of the case of Wardell v. Blum.
In Roberts v. Wehmeyer, the court had expressed its agreement with the decision in Wardell v. Blum, so far as it was based on "an interpretation of the Inheritance Tax Act of 1917 [St. 1917, p. 880], to the effect that the part of the community property passing to the wife should not be subject to such tax," but went on to say that, "in so far as it relies on Arnett v. Reade, supra, as indicating that a wife has at all times had an interest or estate in the community property, we are constrained to disagree with it." In brief, the court in the Stewart Case approved the decision of this court in Wardell v. Blum only so far as it dealt with the state inheritance tax law of California of 1917. It disagreed with it so far as it placed reliance upon Arnett v. Reade, 220 U.S. 311, 320, 31 S. Ct. 425, 55 L. Ed. 477, as authority for the proposition that a wife has at all times had an interest or estate in the community property, a decision which was based upon the law of New Mexico.
The construction placed upon community property rights in California, together with the approval of Wardell v. Blum, as thus expressed in the Stewart Case, involves two propositions: First, that the interest of the wife in the community property in that state is "a much more definite and present interest than that of an ordinary heir," but yet not a vested interest; and second, that such an estate is not, in the opinion of that court, subject to the state inheritance tax. The decision as to the first proposition is binding upon us. As to the second, it is not material to the present discussion.
We have therefore to inquire whether the interest in the community property so defined is upon the death of the husband taxable within the terms of the Revenue Act of 1918. That act imposes a tax "upon the transfer of the net estate of every decedent." Section 402 (Comp. St. § 6336¾c) provides that the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all his property, real or personal, tangible or intangible. Section 402(b) provides: "To the extent *900 of any interest therein of the surviving spouse, existing at the time of the decedent's death as dower, courtesy, or by virtue of a statute creating an estate in lieu of dower or courtesy." Section 402(d) makes a distinction in favor of joint tenants and tenants by the entirety and relieves from the tax such portion of the property as may be shown to have originally belonged to the survivor and never to have belonged to the decedent. Was there in this case a transfer of an estate to the surviving wife and was her interest in the community property an estate in lieu of dower? As to the latter question it was said in Beard v. Knox, 5 Cal. 252, 256, 63 Am. Dec. 125, "Our statute has done away with the common law of right of dower, and substituted in place a half interest in the common property." That decision does not have the effect so to define the interest of the wife in the community property that it necessarily is subject to an estate tax under section 402(b), provided it can be ascertained that the interest so substituted for dower is of such greater present interest in the estate than a dower right would be, that upon the death of the husband it is not transferred to the wife. The ground on which in the Stewart Case it was found that the interest of the wife in the community property was a much more definite and present interest than that of an ordinary heir seems to have been the fact that she contributed toward the acquisition and conservation of it, and that by access to the courts during coverture her right to safeguard her interest against the fraudulent or inconsiderate acts of her husband had been recognized. But the fact that the wife contributed to the acquisition and conservation of the community property and during coverture is given access to the courts for the protection of her interest, does not in itself materially distinguish her interest from an inchoate right of dower, for it is generally held that, while the inchoate right of dower is contingent, it is nevertheless a subsisting, separate, and distinct interest (Class v. Strack, 85 N. J. Eq. 319, 96 A. 405; Jewett v. Feldheiser, 68 Ohio St. 523, 67 N.E. 1072), and that the estate of the tenant in dower does not descend to her, but that she takes by purchase and her seisin is deemed a continuance of the seisin of her husband (16 C. J. 493, 593; Powell v. Monson & Brimfield Mfg. Co., 3 Mason, 347, Fed. Cas. No. 11356; Golder v. Golder, 95 Me. 259, 49 A. 1050; Reese v. Stires, 87 N. J. Eq. 32, 103 A. 679; Barton v. Wilson, 116 Ark. 400, 172 S.W. 1032), and that during coverture she may maintain a separate action for its protection (9 Rawle C. L. 531; Buzick v. Buzick, 44 Iowa, 259, 24 Am. Rep. 740; Petty v. Petty, 4 B. Mon. [Ky.] 215, 49 Am. Dec. 501; Brown v. Brown, 82 N. J. Eq. 40, 88 A. 186; Fitcher v. Griffiths, 216 Mass. 174, 103 N.E. 471).
Section 1402 of the Civil Code of California provides: "Upon the death of the husband, one half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his descendants." The interest of the surviving wife is there placed in the same category with the interest of the heirs and the use of the word "goes" would seem to contemplate a transfer, both as to the wife and as to the heirs. In Estate of Moffitt, 153 Cal. 359, 95 P. 653, 1025, 20 L. R. A. (N. S.) 207, a case which arose under the California inheritance tax statute of 1905 (St. 1905, p. 341) which provided that "all property which shall pass, by will or by the intestate laws of this state, from any person who may die seized or possessed of the same * * * shall be and is subject to a tax hereinafter provided for," the question presented was whether the surviving wife's share of the community property was subject to the tax. In answering it, the court quoted with approval the following from Packard v. Arellanes, 17 Cal. 525: "So long as the community exists, her interest is a mere expectancy, and possesses none of the attributes of an estate, either at law, or in equity" and held that the community interest of the wife was subject to the provisions of said inheritance tax law. And in the Stewart Case the court, referring to the act of 1905 as interpreted in the Estate of Moffitt, and to the amendment of the act in the year 1917, which provided that for the purpose of the act "the one-half of the community property which goes to the surviving wife * * * shall not be deemed to pass to her as heir to her husband, but shall, for the purpose of this act, be deemed to go, pass, or be transferred to her for valuable and adequate consideration and her said one-half of the community [property] shall not be subject to the provisions of this act," said that it was not the purpose of the act of 1917 to change the otherwise general and long-established rule of property except in its application to the particular and limited purpose of said inheritance tax law. Said the court: "All that the Legislature by these amendments did do or attempt to do was to cast about the interest of the wife in both the real and personal property of the community *901 during the continued existence of the marriage relation added safeguards and protection against the fraudulent or inconsiderate acts of the husband in the exercise of his control and dominion over these properties of the nature of those already provided for in earlier statutes and especially in and by the 1891 amendment [St. 1891, p. 425] to section 172 of the Civil Code. * * * We are therefore clearly of the opinion that the amendments to the Civil Code, adopted in 1917 [St. 1917, p. 829] did not operate to change such rule to the extent of creating in the wife a present vested interest in the property of the community during the continuance of the marriage relation."
In brief, the status of the wife's interest in community property, as defined in Re Estate of Moffitt, remains the law of California, and is unaffected by the fact that in 1917, by an act of the Legislature, the wife's estate on the death of her husband was relieved from the burden of the state inheritance tax. We see no escape from the conclusion that the interest of the surviving wife, as it is finally determined by the Supreme Court of California, is of a nature that renders it subject to taxation under the plain terms of the Federal Revenue Act.
It is contended that recovery upon the defendant's counterclaim is barred by the statute of limitations, and reference is made to the Revenue Act of 1926, which provides (44 Stat. 114 [26 USCA § 105]) that all revenue taxes, with certain exceptions, shall be assessed within four years after such taxes become due "and no proceedings in court without assessment for the collection of such taxes shall be begun after the expiration of five years after such taxes become due." But here the counterclaim is not a proceeding for the collection of taxes. It is a demand for the repayment to the government of moneys which had been illegally and by mistake paid by an officer of the United States.
In United States v. Nashville & C. Ry. Co., 118 U.S. 120, 125, 6 S. Ct. 1006, 1008 (30 L. Ed. 81), the court said: "It is settled beyond doubt or controversy upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations, unless Congress has clearly manifested its intention that they should be so bound."
In Wisconsin Central R. Co. v. United States, 164 U.S. 190, 210, 17 S. Ct. 45, 51 (41 L. Ed. 399), it was said: "The question is not presented as between the government and its officer, or between the officer and the recipient of such payments, but as between the government and the recipient, and is then a question whether the latter can be allowed to retain the fruits of actions not authorized by law, resulting from an erroneous conclusion by the agent of the government as to the legal effect of the particular statutory law under or in reference to which he is proceeding."
Among other cases in line with the foregoing are Grand Trunk Western Ry. Co. v. United States, 252 U.S. 112, 40 S. Ct. 309, 64 L. Ed. 484, and Sutton v. United States, 256 U.S. 575, 41 S. Ct. 563, 65 L. Ed. 1099, 19 A. L. R. 403. They establish the principle that it is immaterial whether payments which are thus sought to be recovered were made under mistake of law or mistake of fact, that the only question is whether they were paid without legal authority or legal liability therefor, and that the repayment to a taxpayer of a sum paid for taxes is not a final determination of his right to receive the same, that the government may recover as for money had and received all payments illegally paid by a public officer, and that the decisions of executive officers in making such payments are not judicial and are not binding on a court. United States v. Burchard, 125 U.S. 176, 8 S. Ct. 832, 31 L. Ed. 662.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918518/ | 101 B.R. 50 (1989)
In re BAY METRO GLASS CO., INC., Debtor.
Bankruptcy No. 84-01873.
United States Bankruptcy Court, E.D. Wisconsin.
June 16, 1989.
John A. Muraski, Green Bay, Wis., for Kellogg-Citizens Nat. Bank.
Leon E. Jensen, Appleton, Wis., trustee.
John W. Volletz, Green Bay, Wis., for debtor.
DECISION
DALE E. IHLENFELDT, Bankruptcy Judge.
The equitable doctrine of marshaling rests upon the principle that a creditor having *51 two funds to satisfy a debt may not by the application of them to a demand, defeat another creditor, who may resort to only one of the funds. Meyer v. U.S., 375 U.S. 233, 236, 84 S.Ct. 318, 320, 11 L.Ed.2d 293 (1963). In this case, the trustee filed a motion asking that the Kellogg-Citizens National Bank be required to "marshall its security" and thereby make assets of the bankruptcy estate, otherwise subject to the bank's security interest, available for unsecured creditors. The facts are not in dispute.
Having filed a petition under chapter 11, the debtor corporation had a plan confirmed by order dated January 24, 1985. The debtor was unable to complete the plan, and on September 11, 1987, the case was converted to a case under chapter 7.
Paragraph 9 of the plan provided:
Debtor shall provide to the Associated Kellogg Bank a perfected general security agreement covering the inventory, equipment and accounts receivable which the Debtor acquires or possesses subsequent to the filing of the petition in this matter on May 9, 1984; in addition, the individual corporate directors shall provide Associated Kellogg Bank with perfected third mortgages on their individual homesteads securing their personal guarantees to the Associated Kellogg Bank.[1]
The corporate officers had already provided the bank with a continuing written guarantee of the corporate debts, and on March 13, 1985, three of the officers and their spouses gave the bank $20,000 mortgages on their homes. The three mortgages, totaling $60,000, collateralized the officers' guarantee of three corporate notes on which the total balance now owing to the bank (not including attorney fees) is approximately $70,000. The trustee contends that the bank should look to these three mortgages before using the property of the bankruptcy estate to satisfy its claim.[2]
By agreement, the bank has liquidated the debtor's hard collateral and some receivables. It has accumulated $15,000, of which some $4,000 must be applied to a separate automobile note, and has a settlement offer of $6,200 on another receivable, leaving around $17,200 available to apply against the corporate debt.
Each mortgage, in a typewritten insertion, provides:
This mortgage is given pursuant to a confirmed plan of reorganization of Bay Metro Glass Co., Inc. in the U.S. Bankruptcy Court for the Eastern District of Wisconsin, Case No. 84-01873, and is given to secure that certain existing unlimited and continuing personal guaranty executed by the undersigned mortgagor [named] on February 15, 1983, wherein and whereby he guaranteed and continues to guarantee the payment to Kellogg-Citizens National Bank of the indebtedness of Bay Metro Glass Co., Inc. owing then and thereafter, and now and hereafter, to said Bank.
State and federal courts in Wisconsin have applied the equitable doctrine of marshaling. In re Multiple Services Industries, Inc., 18 B.R. 635 (Bankr.E.D.Wis. 1982); Moser Paper Co. v. North Shore Pub. Co., 83 Wis.2d 852, 266 N.W.2d 411 (1978). In Moser Paper, at 861, 862, 266 N.W.2d 411, the court said, "As a general rule before a court of equity will marshal assets and securities between two creditors, it must appear that (1) they are creditors of the same debtor, (2) that there are two funds belonging to that debtor, and (3) that one of them alone has the right to resort to both funds. [citing authorities] Thus, even though one creditor is secured by the debtor's surety while a second creditor is not, equity will not in the ordinary case compel the secured creditor to exhaust his remedy against the surety before proceeding against the principal debtor. 135 A.L.R. 738 (1941)."
*52 The funds sought to be marshaled in the Moser Paper case were the property of different debtors, and the trial court accordingly held that the doctrine of marshaling should not be applied. This ruling was reversed on appeal. Noting that the sureties on the corporate note had "pledged their residences to secure not only their note and their performance as sureties but the debtor North Shore's original $100,000 debt," the court said, "This distinction makes the rule stated in the above-cited annotation inapplicable. The cases contained in the annotation are cases where the surety has simply guaranteed the debtor's obligation. They stand for the proposition that, even though the surety is liable at law to pay the principal's debt, equity administers a more exact justice and will not normally permit the surety's property to be made to satisfy the principal debt when the principal's property will suffice." (at p. 862, 266 N.W.2d 411)
In the case at bar as in Moser Paper, the funds sought to be marshaled are the property of different debtors. Unlike Moser Paper, the collateral sought to be marshaled in this case secures only the guarantees it does not secure the corporate debt to the bank. Accordingly, the doctrine of marshaling cannot be applied, and the trustee's motion must be denied.
NOTES
[1] Paragraph 10 of the plan provided that the corporate officers should each lend the debtor $10,000 and receive a junior security interest in the corporate assets.
[2] A separate earlier note of the bank was similarly guaranteed by a corporate officer with his guarantee collateralized by a $15,000 certificate of deposit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918568/ | 730 So.2d 101 (1998)
Susan SOILEAU, Appellant,
v.
MISSISSIPPI COAST COLISEUM COMMISSION, Appellee.
No. 97-CA-01409 COA
Court of Appeals of Mississippi.
December 18, 1998.
*102 John B. Perry, Attorney for Appellant.
Stephen Peresich, Kaara L. Liskow, Biloxi, Attorney for Appellee.
BEFORE McMILLIN, P.J., COLEMAN, AND SOUTHWICK, JJ.
*103 SOUTHWICK, J., for the Court:
¶ 1. Susan Soileau, joined by her husband, Michael Soileau, brought suit for injuries she sustained while attending a concert at the Mississippi Coast Coliseum. The circuit judge dismissed the complaint due to the Soileaus' failure to comply with the notice provisions of the Mississippi Tort Claims Act. The Soileaus appeal arguing that this was error. We disagree and affirm.
FACTS
¶ 2. On October 14, 1995, Susan and Michael Soileau were attending a Bob Dylan concert held at the Mississippi Coast Coliseum. While making her way to the refreshment area, Susan tripped over an uncovered electrical cable which was lying unsecured on the floor. She fell and injured her left knee. The Soileaus sought medical attention from the emergency medical technician on duty at the Coliseum and filled out an incident report which described the accident. This incident report was signed by the Coliseum's chief executive director, Bill Holmes. Susan was also interviewed by counsel for the Coliseum, who prepared a narrative based on Susan's account. The Soileaus then left the concert in order to have Susan's knee x-rayed at an emergency room.
¶ 3. Three months later, on January 16, 1996, the Soileaus' attorney mailed a letter addressed to the "Mississippi Coast Coliseum" advising of his representation of the Soileaus and requesting that the letter be forwarded to the Coliseum's insurance carrier. Between January and September of 1996, the Soileaus' attorney corresponded with the attorney for the Coliseum and the Coliseum's insurance adjuster. On September 12, 1996, the Soileaus submitted copies of Susan's medical records and bills to the adjuster, demanding $20,885 in settlement of the claim.
¶ 4. After efforts to settle the claim failed, the Soileaus filed suit on November 1, 1996, against the Mississippi Coast Coliseum Commission and the concert promoter, Leas Campbell Presents. The complaint was later amended to dismiss Michael Soileau's loss of consortium claim. In their answer, the Coliseum and Leas Campbell Presents argued that the Soileaus had failed to comply with the notice provisions of the Mississippi Tort Claims Act. The Act mandates that notice of a claim against a governmental entity be given to its chief executive officer at least ninety days prior to the filing of a lawsuit. The Coliseum filed a motion for summary judgment on September 5, 1997, arguing that the Soileaus had failed to give the requisite notice to Bill Holmes, the chief executive officer of the Coliseum. The Soileaus responded by arguing that the chief executive officer had notice, which was given through the incident report prepared by the Coliseum and the correspondence exchanged between their attorney, the Coliseum's attorney, and the Coliseum's insurance adjuster.
¶ 5. Following a hearing held on September 22, 1997, the circuit judge granted the Coliseum's motion for summary judgment. The court found that the statute was jurisdictional, and as a result of the Soileaus' failure to comply with its notice provisions, the court had no jurisdiction over their claim. A final judgment dismissing Susan Soileau's claim was entered on October 15, 1997. This appeal does not concern any liability of the promoter, Leas Campbell Presents.
DISCUSSION
Compliance with Section 11-46-11
¶ 6. Soileau claims that the initial incident report, coupled with the correspondence between her attorney, the Coliseum's attorney, and the Coliseum's insurance adjuster constitutes compliance with the notice provisions of the Mississippi Tort Claims Act. The argument is that through a variety of documents the Coliseum had all the notice required by the Act.
¶ 7. Before discussing each element of notice, we will examine the purpose of the notice provisions. It is to give the chief executive officer of a governmental entity formal, advance notice of planned litigation against it. City of Jackson v. Lumpkin, 697 So.2d 1179, 1181 (Miss.1997). "Notice provisions encourage settlement of claims prior to entering litigation, therefore conserving valuable governmental resources. Further, notice *104 to the governmental entity encourages corrective actions, where necessary, prior to litigation, therefore benefitting public health and welfare." Vortice v. Fordice, 711 So.2d 894, 896 (Miss.1998).
¶ 8. The statute states this:
(1) ... ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity....
(2) The notice of claim required by subsection (1) of this section shall be in writing, delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.
Miss.Code Ann. § 11-46-11 (Supp.1998).
¶ 9. The statute has separate requirements of form, relevant information, mode of delivery, and recipient. We will examine each.
¶ 10. 1. Form. The statutory language implies a single document. We draw that inference from the fact that "notice" is to be mailed or delivered 90 days before suit, which would appear to be one delivery or mailing at that time. Every "notice of claim" is to contain certain things, again implying that there is one notice. If the governmental entity is going to know that the final step of the pre-litigation process is being invoked, the notice of that would best gather together in one delivery all the components that are required. That is not to say that one delivery could not include a central document with attachments.
¶ 11. Even if a claimant could comply with the Act by submitting several documents that when joined comprise a single "notice of claim," we do not find that the documents can be delivered over a several month period during prelitigation communications. The notice is the announcement that suit is imminent if agreement is not reached. Diffused, even somewhat confused notice staggered over months of contacts does not provide the certain notice required under the statute.
¶ 12. Finally as to form, we hold that the notice by a claimant must in fact be sent by the claimant. The incident report prepared by the Coliseum itself, even if based on an interview with the claimants, is not the notice which the Act contemplates. An incident report prepared by the Coliseum as part of its standard procedure for dealing with injuries sustained on the premises, does not provide "notice" that a lawsuit is imminent. An interview with the claimant conducted by a news reporter, printed in the local newspaper, and read by the chief executive officer, would provide equivalent notice as was given here and would be similarly divorced from the formal notice procedure required by the statute. Aside from the Coliseum's own report, Soileau can point to nothing which provides the requisite information.
¶ 13. 2. Required Information. In order to comply with the Act, certain information must be contained in the notice of claim. It must contain "a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice." Miss.Code Ann. § 11-46-11 (Supp.1998).
¶ 14. Soileau claims that the incident report, along with the correspondence regarding the accident, sufficiently provides this information. We have already discussed why the incident report prepared on the night of the accident cannot substitute for the formal notice that is supposed to be given by the claimant on the eve of suit. Moreover, no single document or single delivery of documents and attachments contains the necessary information. The extent of injuries and the amount of money damages is not in the incident report, and arguably these were indeterminable *105 at that early stage. Soileau maintains that her settlement letter of September 12, 1996, with her medical records and bills attached, provided this information in a timely fashion.
¶ 15. Although the Act does not expressly prohibit supplementing the information provided, it does require that all of the information be provided the chief executive officer ninety days before the filing of a lawsuit. Only over time was most of the information provided the Coliseum, if enough different documents that did not refer to each other were examined.
¶ 16. It is also unlikely that the submission of medical bills and records alone suffices even if it had been timely. Merely submitting medical bills does not constitute a notice of claim required by the Act. City of Jackson v. Lumpkin, 697 So.2d 1179, 1182 (Miss.1997).
¶ 17. 3. Mode of delivery and recipient. Even if Soileau had filed the proper notice of claim containing the requisite information, she failed to follow the proper procedure set out in the Act. In order to sue a governmental entity for personal injury, "ninety (90) days prior to maintaining an action thereon, [any] such person shall file a notice of claim with the chief executive officer of the governmental entity...." Miss.Code Ann. § 11-46-11 (Supp.1998 ). Moreover, this notice shall be "in writing and delivered in person or by registered or certified U.S. mail." Id.
¶ 18. Soileau claims that she complied with this provision, citing the fact that the incident report was reviewed and signed soon after the incident by the Coliseum's chief executive officer, Bill Holmes. She further contends that because he reviewed and signed it, the report must have been delivered to him in person.
¶ 19. Our previous example of the newspaper report of the accident, which hypothetically could be based on personal statements of the claimant, is again relevant. Compliance with the obligation to deliver or send by registered mail the notice of claim is not shown by proof that the chief executive officer learned of the claim through other means.
¶ 20. The formality of the notice is explicit in the statute. The formality can be seen as serving a purpose in addition just to providing specific information to a specific individual, information that the individual may have received from other sources. Like a complaint that starts the litigation itself, the notice brings together in one document (with attachments if necessary), delivered under the procedures and to the person set out in the rules, the outline of the facts and the claim for specific damages. The pre-suit notice of claim is an alert to the chief executive office of the last opportunity to resolve the dispute without litigation. A legislative decision was made to require the notice. The judicial decision has been to enforce it as written. We do, and the notice here failed to meet the requirements. As has often been noted, the result can be harsh and may be here. Carpenter v. Dawson, 701 So.2d 806, 808 (Miss.1997). What has not been remarked, but may be equally true if less provable, is that the notice may help resolve disputes in a more effective manner than if the notice requirement did not exist.
¶ 21. The concurring opinion goes even further than noting that harsh results can occur. It states that the notice provision has "consistently been used to snare unaware claimants whose claims are investigated toward settlement until the statute of limitations has run." There is no evidence in this case that the Coliseum ensnared Soileau. It appears that the Coliseum worked with the claimant and her attorney in a proper manner, though not reminding counsel of the notice provision any more than potential defendants normally remind claimants of other procedural deadlines.
Statute of limitations
¶ 22. As a result of Soileau's failure to file a proper notice of claim, her suit is timebarred. Under Miss.Code Ann. § 11-46-11, "[a]ll actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the ... conduct on which the liability phase of the action is based ... provided, however, that the filing of a notice of claim ... shall serve to toll the statute of limitations for a period of *106 ninety-five (95) days." Miss.Code Ann. § 11-46-11 (Supp.1998). Soileau's injury occurred on October 14, 1995, and she filed suit over one year later, on November 1, 1996. The limitations period was not tolled for ninety-five days due to her lack of compliance with the Act. As a result, her claim is barred by the statute of limitations.
¶ 23. The grant of summary judgment in favor of the Coliseum was proper.
¶ 24. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF SUMMARY JUDGMENT IN FAVOR OF THE APPELLEE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.
McMILLIN AND THOMAS, P.JJ., COLEMAN, HERRING, HINKEBEIN, AND KING, JJ., CONCUR.
PAYNE, J., CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY DIAZ, J.
BRIDGES, C.J., DISSENTS WITHOUT WRITTEN OPINION.
PAYNE, J., CONCURRING,
¶ 25. For the same reasons stated in my concurring opinion in Watts v. Lafayette County Sch. Dist., 97-CA-01089, ___ So.2d ___, 1998 WL 850107 (Miss.App.1998), I join in this decision with great reservation. This remedial legislation has consistently been used to snare unaware claimants whose claims are investigated toward settlement until the statute of limitations has run. The Mississippi Supreme Court's demand of such a literal and punitive interpretation of this statute constitutes, in my opinion, "gotcha jurisprudence."
DIAZ, J., JOINS THIS SEPARATE WRITTEN OPINION. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918574/ | 730 So.2d 245 (1999)
Sidney E. ETHEREDGE, Jr.
v.
Tammy K. ETHEREDGE.
2971346.
Court of Civil Appeals of Alabama.
March 12, 1999.
*246 Lawrence J. Hallett, Jr., Mobile, for appellant.
Tammy K. Etheredge, pro se.
YATES, Judge.
The trial court divorced the parties on May 27, 1994. Pursuant to an agreement of the parties incorporated into the final judgment of divorce, the court, among other things, awarded the mother custody of the parties' minor child, with visitation to the father; ordered the father to pay $487 per month in child support; ordered the mother to provide hospitalization insurance and ordered the father to pay all the child's medical bills, including any doctor, dental, or drug bills not covered by insurance, as well as any deductibles; and ordered that should the parties agree on private education for the child the costs of tuition, books, and uniforms shall be shared equally between the parties.
On January 12, 1998, the father petitioned the court, seeking a modification of the visitation schedule. On March 2, 1998, the mother answered the father's petition and cross-petitioned for a rule nisi, asking the court, among other things, to hold the father in contempt for his refusal to pay certain medical expenses. On that same day, the mother petitioned the court, seeking a modification of the father's child support obligation *247 and alleging a material change in circumstances. The mother also alleged that the father had been ordered to pay one-half of the child's private school tuition, pursuant to the divorce judgment; that the tuition is due on the first day of each month; and that the father has refused to pay the tuition on the first of each month. The mother sought an order from the court requiring the father to pay the child's tuition on the first of each month. On March 19, 1998, the mother amended her cross-petition for a rule nisi, asking the court, among other things, to hold the father in contempt for his refusal to pay one-half of the child's private school tuition.
Following a proceeding at which ore tenus evidence was presented, the court, on August 27, 1998, entered an order increasing the father's support obligation to $629 per month, and making that increase retroactive to March 1998; requiring the father to reimburse the mother $78.28 for medical expenses she had incurred; awarding the mother $1,455 for part of the costs of privateschool tuition she had paid; and denying the mother's additional request for private-school tuition. The father appeals.
The father contends that the court erred in failing to comply with Rule 32, Ala. R. Jud. Admin., because all of the necessary forms required by the child support guidelines were not filed. Application of the child support guidelines is mandatory in child-support actions filed on or after October 9, 1989. State ex rel. Dep't of Human Resources v. Hogg, 689 So.2d 131 (Ala.Civ.App.1996). In Martin v. Martin, 637 So.2d 901, 902 (Ala. Civ.App.1994), this court stated:
"We hold, therefore, that the word `shall' in Rule 32(E), Ala. R. Jud. Admin., mandates the filing of a standardized Child Support Guidelines Form and a Child Support Obligation Income Statement/Affidavit Form.... We further hold that stipulated cases, i.e., where the parties have agreed upon a child support amount in compliance with the guidelines, are the only exceptions to the requirement of filing a child support guideline form and income affidavit forms."
Additionally, compliance with Rule 32(E) is mandatory, even though a trial court finds that application of the guidelines would be unjust or inequitable. Id. The trial court in this case deviated from the guidelines and stated in its order that its award of $629 per month was $75 per month more than the guidelines mandated. When Rule 32(E) has not been complied with and child support is made an issue on appeal, this court may reverse the judgment of the trial court and remand the case for further proceedings. Id.
The record indicates that both parties completed and filed a CS-42 Child Support Guidelines Form with the court. The forms indicate that the parties disagreed as to each other's monthly income and the amount of child support that should be paid. The record also contains the mother's properly completed CS-41 Child Support Obligation Income Statement/Affidavit Form; however, there is no CS-41 form filed by the father in the record. Further, the trial court did not complete a CS-42 Child Support Guideline Form. "[T]he parties must complete and file accurate Child Support Obligation Income Statement/Affidavit Forms and the trial court must also file a fully completed and signed Child Support Guidelines Form." Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala.Civ.App.1998). On remand, the trial court is directed to complete and file a CS-42 Child Support Guideline Form. See State ex rel. Dunnavant v. Dunnavant, 668 So.2d 851 (Ala.Civ.App.1995). The father must file a completed and signed CS-41 Child Support Obligation Income Statement/Affidavit Form reflecting his circumstances at the time the child support calculation is made. We note that should the court on remand determine that application of the guidelines would be manifestly unjust or inequitable, and deviate from those guidelines in setting a support obligation, it must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. Hogg, supra. Because further proceedings are required with regard to the issue of child support, we will not address the father's other arguments concerning child support.
The father next contends that the court erred in ordering him to reimburse the mother for a portion of private-school tuition *248 she paid. The parties' agreement, incorporated into the final divorce judgment, stated, in part: "That in the event the parties agree on private school for the minor child, the tuition, books, and uniform costs shall be equally divided between the parties." The mother testified that the parties had agreed at the time of their divorce that the child would continue to attend the private school where he was enrolled and that they would share the expenses. She testified that the father had paid one-half of the registration fees and uniform costs for the '94-'95 and '95-'96 school years, but that he had not paid one-half of the tuition for those years. The mother said that the father had paid an equal share of registration fees, uniforms costs, and tuition for the '96-'97 school year, and for the '97-'98 school year through February 1998. She stated that he had stopped paying tuition in February 1998, after she filed harassment charges against him. The mother testified that the father never requested that the child be taken out of private school. In fact, the evidence indicates that the father had asked the mother to consider sending the child to a different private school because he said that the school he was recommending was "on the verge of offering him employment and part of the compensation package was payment of the child's tuition.
The father testified that he had not agreed to send the child to a private school and that he had paid one-half of the tuition only after the mother threatened to seek additional child support. The father testified that he did not want the child attending private school because he "disagreed philosophically" with the idea of private schools and because he did not want to pay for private school. It is well settled that a trial court's judgment, when based on ore tenus evidence, is presumed correct and will not be disturbed on appeal unless that judgment is plainly and palpably wrong. Helms v. Helms, 624 So.2d 633 (Ala.Civ.App.1993). The court found that the father had agreed to assist with the child's private-school education and ordered him to pay the mother $1,455, which represented the amount of tuition the father had failed to pay. The court heard disputed evidence with regard to whether the parties had agreed on a private-school education for the child; we cannot say that the court erred in reaching its determination.
The father next argues that court erred in ordering him to reimburse the mother $78.28 in medical expenses. The father fails to cite any supporting authority for his argument. Rule 28(a)(5), Ala. R.App. P., requires that an argument "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." We, therefore, will not address this issue. See Martin, supra.
The father's request for an attorney fee on appeal is denied.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.
ROBERTSON, P.J., and MONROE, CRAWLEY, and THOMPSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579381/ | 671 N.W.2d 720 (2003)
STATE of Iowa, Appellee,
v.
Hubert Gene EVANS, Appellant.
No. 02-0668.
Supreme Court of Iowa.
November 13, 2003.
*722 Raymond M. Tinnian, Bjorklund Law Firm, LLC, Coralville, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Robert Bradfield, Assistant County Attorney, for appellee.
STREIT, Justice.
A man claiming to have a foot fetish appeals his convictions for stalking and two counts of harassment. He alleges there is insufficient evidence to support the convictions, his first amendment rights were violated, extreme prejudice demanded a change of venue, and his sentence was unreasonable. After reviewing the record, we reject these arguments and affirm the district court on all counts.
I. Background and Facts
The evidence, as viewed most favorably to the state, reveals the following facts. Hubert Gene Evans has a foot fetish. He is also, it appears, a published photographer.[1] While a nursing student at Scott County Community College in the late 1990s, Evans asked Rebecca Arnold if she would let him photograph her feet. Evans told Arnold he took pictures for a magazine in New York and had helped other women become "big models." Arnold declined Evans' offer.
In 1998, Evans called Arnold at her house, and left a message with Arnold's father. Evans called a second time. Arnold's father told him not to call her again.
In 2000, Arnold saw Evans in a drug store parking lot. As Arnold made her way from her car to the store, Evans asked her if he could take pictures of her feet. He told her he would like her "legs bare and apart." A nervous and repulsed Arnold again declined Evans' offer, and went into the store.
On August 7, 2001, Evans called Arnold's house and left his phone number and a message with Arnold's mother. In the message, Evans said he had a surprise for Arnold. Arnold did not return Evans' phone call. Worried Evans would discover where she lived, Arnold called the police the next day. At a later date, this incident resulted in a charge of harassment, of which a jury found Evans not guilty.
On August 31, 2001, Evans went to Arnold's house. Evans asked Arnold if she would be willing to play a dominant female role in a new pictorial he was producing about Dred Scott. Arnold told Evans she thought it was weird. Evans replied, "Well, I do weird things because I'm a weird guy." Evans offered Arnold $100 simply to read his script. Arnold repeatedly said she wasn't interested. After Evans left, Arnold called the police. This encounter, too, would later result in another harassment charge against Evans. On this count, a jury found him guilty.
After this incident, Arnold saw Evans' phone number on her caller identification screen four or five times.
On September 21, 2001, Arnold went to a car wash. While standing at a change *723 machine, Evans approached her. Evans told her he noticed she had gotten a new car. As she fled the car wash, Arnold, attempting to mislead Evans, told him the car wasn't hers. Arnold left without getting her change or washing her car. That evening, Evans called Arnold at home. Arnold "told him [she] wasn't interested" and immediately hung up.
On September 25, 2001, Evans and a friend went to Arnold's house. A frightened Arnold asked her mother to answer the door and to tell Evans she wasn't home. Evans told Arnold's mother to let Arnold know he had dropped by and wanted to take photographs of her. As Evans left, Arnold's mother noticed Evans was wearing "red strap high heels" and had painted his toenails red. Eventually, the State charged Evans with a third count of harassment for this second incident at Arnold's home, and a jury again found him guilty.
On October 12, 2001, Arnold saw a woman standing outside her front door. When Arnold opened the door, Evans, who apparently had been bent over in front of the woman, "pop[ped] up" and asked Arnold for a drink of water. Arnold cussed at Evans, told him to "get off my property," and slammed the door shut. Arnold called the police. She then went to her window in order to try to catch Evans' license plate. Evans smiled and waved at Arnold. This incident did not result in a harassment charge, but was used to prove Evans stalked Arnold.
Evans was arrested for all these incidents and tried by jury for first-offense stalking (Count I) and three counts of first-degree harassment (Counts II-IV). See Iowa Code §§ 708.11, 708.7 (2001). Whereas the stalking charge drew upon the entire course of the defendant's conduct which culminated with Evans' appearance at Arnold's house on October 12, the three harassment charges were focused upon three discrete incidents, as indicated above: 1) on August 7, 2001, when Evans left a message for Arnold indicating he had a "surprise" for her (Count II); 2) on August 31, 2001, when Evans asked Arnold to read his "script" (Count III); and 3) on September 25, 2001, when Evans went to Arnold's house in high heels and with painted toenails (Count IV). The harassment charges were elevated to the first-degree because Evans had previously been convicted of harassment four times. See id. § 708.7(2) (enhancing harassment charge to the first-degree where defendant has three or more convictions for harassment within the previous ten years).
A jury convicted Evans of stalking and two counts of first-degree harassment. The jury acquitted Evans of Count II. The judge sentenced Evans to a term not to exceed two years of prison for each conviction, to be served consecutively. He also ordered Evans to pay $3000 in fines.
On appeal, Evans claims there is insufficient evidence to support the convictions, his first amendment rights were violated, extreme prejudice demanded a change of venue, and his sentence was unreasonable. We now consider each of these claims, in turn.
II. The Merits
A. Insufficiency of Evidence & Free Speech Claim
Evans claims the district court erred in denying his motion for a judgment of acquittal, because there was insufficient evidence to support his convictions for stalking and harassment. In tandem with this argument, Evans contends he could not have committed harassment because his actions were protected by his right to free speech. See U.S. Const. amend. I. We recently considered and rejected a similar *724 claim in another case involving Evans. See State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).
As a threshold matter, in this case we refuse to consider Evans' constitutional claim, because Evans did not preserve error. Reviewing the record, we find Evans did not raise this issue in the district court. "Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal." State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). We now consider Evans' claim there was insufficient evidence presented at trial to support his convictions for harassment and stalking.
We review insufficiency claims for errors at law. State v. Sanborn, 564 N.W.2d 813, 816 (Iowa 1997) (quoting State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996)). We view the evidence in the light most favorable to the State, and will not disturb a jury verdict unless we find the evidence supporting the conviction was not substantial. Id. "Evidence is substantial if it could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." Id.
1. Harassment
Evans was convicted of two counts of first-degree harassment in violation of Iowa Code sections 708.7(2) and 708.7(1)(b). In order to address Evans' sufficiency challenge, we review Iowa Code section 708.7(1)(b), which states, in relevant part:
A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person....
Iowa Code § 708.7(1)(b). Evans claims that, as a published photographer, his sole purpose in contacting Arnold was to take her picture. Moreover, the defendant maintains he never threatened Arnold; he points out we have yet to sustain a conviction for harassment in the absence of a showing of a threat on the part of the defendant, and therefore ought not to do so here.
We are satisfied a reasonable jury could find the defendant guilty on the charges of harassment beyond a reasonable doubt. Threatening the victim is not a necessary element of our harassment statute. To conclude otherwise would ignore the disjunctive language of section 708.7(1)(b), which forbids a person from "personally and without legitimate purpose... [having] personal contact with another person, with the intent to threaten, intimidate, or alarm that other person." Iowa Code § 708.7(1)(b) (emphasis added); see State v. Anderson, 636 N.W.2d 26, 37 (Iowa 2001) ("We avoid interpreting a statute to render any part of it superfluous.").
There is substantial evidence in the record Evans intended to alarm, if not intimidate, Arnold. Our court has not previously had occasion to define "alarm" for the purposes of Iowa Code section 708.7(1)(b). "In the absence of a legislative definition of a term or a particular meaning in the law, we give words their ordinary meaning." State v. White, 563 N.W.2d 615, 617 (Iowa 1997). To ascertain the ordinary meaning of a word, we may consult the dictionary. Id. The dictionary defines "alarm" as to "cause (someone) to feel frightened, disturbed, or in danger...." The New Oxford American Dictionary 36 (2001).
Evans correctly points out harassment is a specific intent crime. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). Intent is "seldom capable of direct proof," however, and "a trier of fact may *725 infer intent from the normal consequences of one's actions." Evans, 672 N.W.2d at 331 (citing State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998); State v. Farnum, 554 N.W.2d 716, 720 (Iowa Ct.App.1996)).
Given the prior history between the two parties, we believe the evidence was sufficient to permit a reasonable jury to find the defendant acted with the intent to alarm or intimidate Arnold in the two incidents for which he was convicted of harassment. By August 31, when Evans showed up at Arnold's home uninvited and asked Arnold if she would be willing to play a dominant female role in a new pictorial he was producing about Dred Scott, Arnold had repeatedly rebuffed Evans' offers. By September 25, Evans had made several more unsuccessful attempts to persuade Arnold to pose for him, including the incident at the car wash where Arnold hurriedly ran away from Evans without washing her car or picking up her change. It should not have been unexpected on Evans' part that his conduct would alarm Arnold.
In the context of the history between these two parties, we think a reasonable jury could find, at the very least, Evans intended to alarm Arnold when he showed up at her front door asking to take her picture on August 31. This behavior would easily cause Arnold to feel frightened, disturbed, or in danger; such is the natural consequence of Evans' acts, from which the requisite intent for harassment may be inferred. See Evans, 672 N.W.2d at 331 (citing Chang, 587 N.W.2d at 462; Farnum, 554 N.W.2d at 720). This inference becomes even stronger by the September 25 incident, in light of the additional unsuccessful attempts which occurred in the interim and the fact Evans appeared wearing red, strappy high heels with matching toenails. There is ample evidence here of a ratcheting up of bizarre and alarming behavior. For both incidents, a rational jury could conclude Evans intended to alarm Arnold.
2. Stalking
Evans also claims there was insufficient evidence presented at trial to sustain his conviction for stalking Arnold. Evans contends Arnold never explicitly told him to leave her alone before October 12; rather, he alleges, Arnold only told him she wasn't interested, which, according to Evans, means something entirely different. Moreover, Evans points out there is no evidence the police told Evans to leave Arnold alone nor any allegation Evans violated a protective order. And lastly, absent any threats on his part, Evans maintains there is no evidence a reasonable person would fear bodily injury or death because of his behavior. Again, we must reject Evans' claims.
Iowa's stalking statute states:
A person commits stalking when all of the following occur:
a. The person purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a member of the specific person's immediate family.
b. The person has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to, or the death of, that specific person or a member of that specific person's immediate family by the course of conduct.
c. The person's course of conduct induces fear in the specific person of bodily injury to, or the death of, the specific person or a member of the specific person's immediate family.
Iowa Code § 708.11(2). Proof of all three elements, beyond a reasonable doubt, is *726 necessary to sustain a conviction under Iowa's stalking statute. Id.; see State v. Limbrecht, 600 N.W.2d 316, 318 (Iowa 1999).
We think a reasonable jury could find the prosecution met its burden on all three elements of Iowa Code section 708.11(2) in the present case. Although the defendant never threatened Arnold, making a threat is not an element of our stalking statute. See Limbrecht, 600 N.W.2d at 319 ("Instead of targeting a `credible threat,' the statute criminalizes a `course of conduct' that may or may not include threats."). Nor is it necessary the defendant receive official notice from the police his behavior is causing the victim fear. Given the persistent, repeated, and sexual nature of Evans' questioning, including his unexpected arrivals at Arnold's home, we think a rational jury could find Evans guilty of stalking Arnold.
We think the record clearly shows Evans purposefully engaged in a course of conduct directed at Arnold which would cause a reasonable person to fear bodily injury, and Evans knew Arnold would be placed in such fear. The record discloses a course of conduct in which Arnold repeatedly said she was not interested in Evans' disturbing offers. On two occasions, she fled from Evans. Importantly, Evans' behavior escalated over time, culminating in two uninvited visits to Arnold's home, even though Arnold did not tell Evans where she lived. On the first visit, Evans wore red strappy heels with painted toenails to match; on the second, he hid in front of his companion and jumped out when Arnold answered the door. Given Evans' repeated and ever-escalating attempts to photograph Arnold, her steadfast refusals, and the bizarre sexual nature of Evans' proposals, a rational jury could find a reasonable person would fear injury. Moreover, there is sufficient evidence Evans knew Arnold would have such fears. Nor is there any question Arnold, in fact, feared Evans would injure her. Arnold testified at trial she now takes a different route to work, parks her car in a secure lot, and is afraid to answer the door or even the telephone.
B. Venue
Evans also claims the district court erred in failing to move the trial to another county. Our review of a denial of a motion for a change of venue is de novo. State v. Siemer, 454 N.W.2d 857, 860 (Iowa 1990). We will reverse only upon a showing the district court abused its discretion in failing to move the trial. Id.
Our rules of criminal procedure allow a court to order a change of venue
[i]f the court is satisfied from a motion for a change of venue and the evidence introduced in support of the motion that such degree of prejudice exists in the county in which the trial is to be held that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county....
Iowa R.Crim. P. 2.11(10). Before we will reverse an order denying a motion to change venue, the defendant must show, in the absence of proof of actual prejudice on the part of the jury, that the "publicity attending the trial ... is so pervasive that prejudice must be presumed." Siemer, 454 N.W.2d at 860-61 (citing State v. Spargo, 364 N.W.2d 203, 207 (1985)). There is no evidence of actual prejudice in the record. In order to determine whether publicity is presumptively prejudicial, we consider several factors: "the nature, tone, and accuracy of the articles; their timing in relation to the trial; and the impact of the publicity on the jurors as revealed through voir dire." Id. (citing State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988)).
*727 Evans contends the salacious details of the case made it "absurd to think that any segment of the community would not eventually hear something prejudicial to [Evans] ..." The record does not support Evans' belief that his case was the epicenter of public attention. Although Evans alludes to other inflammatory media coverage, in the record we have only one newspaper article presented for our review. As in Siemer, the nature and tone of the record was "predominately factual and no more sensational than the crimes alleged." Siemer, 454 N.W.2d at 861. Importantly, in the present case we have no record of voir dire. From the facts presented in the record, we cannot presume prejudice; we have no way of knowing the impact of publicity on the jurors. After reviewing this record, we cannot say the district court abused its discretion in failing to move Evans' trial.
C. Sentencing
The district court sentenced Evans to serve, consecutively, the maximum two-year indeterminate sentence for each of his three convictions. The sentencing judge also mandated Evans' sentences run consecutively with his sentences for similar behavior in two other cases. See, e.g., Evans, 672 N.W.2d at 331-32. Evans claims the sentences in the present case are clearly unreasonable, because, in part, his behavior could have been much worse, and yet no harsher penalty could have been imposed.
The Iowa Rules of Criminal Procedure require the district court to "state on the record its reason for selecting the particular sentence [it imposes]." Iowa R.Crim. P. 2.23(3)(d). Where a consecutive sentence is imposed, the sentencing judge must give a reason for doing so. Evans, 672 N.W.2d at 331-32 (citing State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000)). "Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action." Id. Appellate review of a sentencing decision is for an abuse of discretion. Id. (citing State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999)).
The sentencing judge gave several reasons for his decision. The judge recognized Evans' recidivism, his lack of remorse, and the effect of his behavior upon others. The judge determined Evans "just do[esn't] seem to get it, that this is about scaring people." We agree. Evans' behavior is an ongoing problem. The record shows he has a lengthy history of contact with law enforcement, including four convictions for harassment. The judge also took into account the effects of Evans' actions upon Arnold, noting Evans "made it a point to figure out where it was she lived." We do not think the district court abused its discretion in rendering its sentence, and reject all of Evans' contentions to the contrary.
III. Conclusion
We affirm the district court on all counts. Because the defendant failed to preserve error on his constitutional claim, we do not consider whether his convictions of harassment violated his right to free speech. We find there is sufficient evidence to support Evans' convictions for harassment and stalking. The record does not show the district court erred in denying Evans' motion to change venue. Lastly, we conclude the sentence imposed by the district court was reasonable.
AFFIRMED.
All justices concur except WIGGINS, J., who takes no part.
NOTES
[1] Evans testified his photographs were last printed in Leg Sex in 2000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579395/ | 671 N.W.2d 186 (2003)
SCOTTSDALE INSURANCE COMPANY, Plaintiff (C8-02-1924), Respondent (C0-02-2114),
v.
TRANSPORT LEASING/CONTRACT, INC., et al., Defendants and Third Party Plaintiffs, Respondents (C8-02-1924), Appellants (C0-02-2114),
RLI Insurance Company, Defendant and Third Party Plaintiff (C8-02-1924), Respondent (C0-02-2114),
v.
Insurance Brokers Service, Inc., Third Party Defendant, Summit Global Partners, Inc., of Illinois, Inc., et al., Appellants (C8-02-1924), Third Party Defendant (C0-02-2114).
Nos. C8-02-1924, C0-02-2114.
Court of Appeals of Minnesota.
July 22, 2003.
*187 Mark J. Ayotte, Matthew A. Slaven, Briggs and Morgan, P.A., St. Paul, MN; and Steven A. Pletcher, Scopelitis, Garvin, Light & Hanson, P.C., Indianapolis, IN, for appellants Transport Leasing/Contract Inc., ATS, Inc. and ATS, Inc. of Georgia.
Todd A. Wind, Crystal M. Ovsak, Fredrikson & Byron, P.A., Minneapolis, MN, for appellants Summit Global Partners, Inc. and Michael P. Lopeman.
Thomas P. Kane, Sean R. Simpson, Hinshaw & Culbertson, Minneapolis, MN, for respondent Scottsdale Insurance Company.
Joel M. Muscoplat, Gislason, Martin & Varpness, P.A., Minneapolis, MN; and *188 William T. Corbett, Jr., admitted pro hac vice, Drinker, Biddle & Shanley LLP, Florham Park, NJ, for respondent RLI Insurance Company.
Considered and decided by TOUSSAINT, Chief Judge, STONEBURNER, Judge, and MINGE, Judge.
OPINION
MINGE, Judge.
This action was initiated by respondent Scottsdale Insurance Company to determine its liability for claims against appellant, insured, Transport Leasing Company and its subsidiaries (TLC) under the nonowned auto endorsement to a liability insurance policy and was expanded by third-party actions initiated by TLC. The district court found that the insurance policies with the endorsements issued by the respondent insurance companies covered accidents of truck drivers employed by TLC and leased to trucking firms, but entered partial summary judgment rescinding the insurers' liability for such leased drivers. TLC challenges the summary judgment determination of rescission. Respondent insurers appeal denial of summary judgment of their alternative claim that the nonowned auto endorsement does not cover the damages arising out of accidents of these leased truck-driver employees of TLC. Appellants' insurance agency and insurance agent challenge the refusal of the district court to enter summary judgment relieving them of liability to TLC for failure to obtain insurance for accidents of leased truck drivers. This court granted discretionary review.
Because we conclude that the nonowned auto endorsement to the insurance policies does not cover accidents of TLC's leased truck-driver employees and because we do not reach the issue of rescission, we reverse the determination that there was coverage and affirm on different grounds the grant of summary judgment in favor of the insurers. Because we agree with the district court that the claims of TLC against the insurance agency and the insurance agent are not suitable for summary judgment, we affirm the denial of summary judgment to those appellants.
FACTS
TLC is the parent company of ATS, Inc. and ATS, Inc. of Georgia, and we will refer to the collective companies as TLC. TLC employs truck drivers and loans those drivers to various trucking firms, usually as full-time employees. In many cases these drivers had been regular employees of the trucking firm prior to the TLC arrangement. TLC describes its business as "employee leasing."
Through the employee leasing arrangement, TLC provides the trucking companies with services including handling the drivers' payroll, payroll taxes, worker's compensation insurance, and upon request, health insurance plans, 401(k) programs, and disability benefits. Also upon request, TLC monitors driver compliance with physical examination requirements and the driver's license status of each employee. By serving as the employer, TLC allows trucking firms to contract out these portions of the employers' responsibilities. Otherwise, the trucking firms fully control all aspects of the leased drivers' work activity.
Prior to 1997, TLC intentionally did not carry any liability insurance coverage on any of the leased truck drivers. Instead, TLC relied upon indemnification agreements and lease requirements that TLC be named as an additional insured on the insurance policies of the trucking firms. TLC believed that because it did not control the day-to-day activities of the leased *189 truck drivers, it would not be held vicariously liable for their acts.
In February 1997, an investor in TLC asked an insurance broker, Aon Corporation, to evaluate TLC's insurance coverage, to identify insurance risks, and to recommend needed coverage. Aon expressed concern that TLC was potentially exposed to a huge risk if a trucking customer carried insufficient liability insurance or allowed insurance to lapse. Aon recommended that TLC purchase a full liability policy covering the leased drivers and submitted a bid to TLC for such a policy with a yearly cost of $25,000.
TLC requested that appellant insurance agent Michael Lopeman and appellant Summit Global Partners (Summit), the firm for which Lopeman worked, obtain liability insurance coverage for TLC. Lopeman had been working with TLC on insurance matters since 1994. Lopeman testified in his deposition that because of his experience with several transportation businesses, he was knowledgeable about transportation insurance. Lopeman did not acquire the liability coverage directly. Instead, he submitted coverage requests to a wholesale insurance broker, Insurance Brokerage Services (IBS), and IBS in turn submitted the information to appellants Scottsdale Insurance Company and RLI Insurance Company. Scottsdale wrote basic coverage with $1 million limits and RLI wrote $25 million commercial umbrella coverage. Included in the application for coverage were the following:
A letter from Lopeman describing TLC as "an employee leasing company headquartered in Minnesota * * * [that] specializes in leasing small groups of drivers to existing larger trucking companies."
A business vehicle insurance application form requesting nonowned liability coverage and listing Minnesota and Indiana as business locations with the size of their offices even though TLC had drivers in 48 states.
A profit and loss statement listing driver wages at over $27.1 million as of June 30, 1996 (the 1998 renewal application listed payroll at $46.5 million).
A statement that TLC had 1,900 employees and a payroll of $46.5 million on the 1997 RLI application form.
The underwriter at Scottsdale testified in his deposition that he did not consider the financial information, payroll information, description of TLC's business, or the business vehicle form when evaluating the request for coverage. He testified that he "never imagined" that TLC's leased truck drivers would be covered by the nonowned vehicle endorsement and that he based the underwriting on the reported square footage of TLC's office, assuming the endorsement was for office-employee exposure. Based on this assessment of risk, Scottsdale/RLI quoted a premium of $300 for the nonowned auto endorsement. Because Aon had quoted a premium of $25,000, TLC questioned Lopeman about the difference in the two bids. On February 3, 1997, Lopeman sent the following memo to TLC:
The program we proposed includes a quote for Non Owned Auto with a $1,000,000 limit. For this quote, we provided the insurance company with information on how your business operates. In other words, the auto exposure is insured by your clients and your clients agree under contract that they will hold you harmless and indemnify you for any loss. Therefore, the insurance company sees the exposure as TLC's actual office employees and has priced the coverage accordingly.
Based on what I've heard regarding the other quote you received for an auto policy, I don't believe the underwriter fully understands the exposure of TLC.
*190 The TLC officer in charge of insurance testified in his deposition that he had approximately ten conversations with Lopeman regarding nonowned auto coverage. He stated that Lopeman told him that TLC would have liability coverage related to the trucks operated by their customers under the nonowned auto policy and the general liability policy. The TLC officer also testified that TLC requested the insurance coverage for the truck drivers because "it was mandated as a result of * * * [the] transaction with [the investor in TLC]" and that he trusted Lopeman's judgment.
Lopeman testified that he could not recall what generated his February 3, 1997 memo to TLC. He testified that he remembered TLC asking for coverage for the office employees, but he did not remember TLC asking for coverage for the leased truck-driver employees. Lopeman did not deny that TLC asked for coverage for the leased truck-driver employees; he testified only that he did not recall such a request. The initial proposals from Lopeman were for a coverage period of December 31, 1996 to December 31, 1997. TLC purchased the Scottsdale/RLI liability coverage with the nonowned auto endorsement through Lopeman and Summit. TLC asserts that it understood this endorsement would cover its leased truck-driver employees.
On October 27, 1997, TLC requested that Aon again analyze TLC's insurance coverage. Included in the second request was a list of "the types of insurances, the issuing companies, the policy dates, and the dollar amount of the coverages" currently held by TLC. On December 3, 1997, TLC provided Aon with copies of TLC's general liability policy provided by Scottsdale and excess liability provided by RLI. In the December 3, 1997 letter, TLC stated
the TLC Companies would like you to see to it that the appropriate people at AON and/or AIG critically analyze and review our entire insurance portfolio for cost, adequacy of coverages, existence of any gaps or overlaps in coverages, effectiveness of our umbrella policy in supplementing the coverages afforded by our other policies (where appropriate), etc.
After the review is completed, we would request that you prepare a detailed letter in which you give us advice and suggestions on changing our insurance portfolio to make absolutely certain from an insurance point of viewthat all of the TLC Companies' interests and assets are properly and adequately protected.
The TLC official then arranged a conference call between a TLC executive and Aon for February 13, 1998. A TLC fax setting up the meeting stated
[Aon's agent] stressed that he is particularly concerned with the probable lack of coverage under the "Hired Auto and Non-Owned Auto Liability" endorsement on our Scottsdale General Liability policy. He stated that the extent of the coverage is not entirely clear, but that the low premium, combined with the murky language, leads him to suspect we may have some real exposure if one of our employees were to drive someone else's vehicle and have an accident. He cited as a nightmare scenario an accident where one of our leased drivers in a truck plows into a school bus. [Aon's agent] described the potential liability there as possibly "wiping out the company."
Some time after that, TLC posed the hypothetical truck crashing into the school bus scenario to Lopeman and questioned Lopeman about the coverage available for that scenario. TLC did not ask Lopeman *191 to analyze its coverage, nor was Lopeman told that Aon was analyzing TLC's coverage. Lopeman's faxed response on March 12, 1998 was as follows:
With regard to coverage in the event (example) an employee leased by TLC to a trucking company is driving a company truck and hits a school bus causing serious injury to the children and TLC is brought into the suit by the claimants:
1. As the underwriter knew the number of employees and the fact that TLC is in the employee leasing business and
2. the policy does not have a specific exclusion for leased employees
the policy would provide coverage to TLC, but would not provide any coverage to the owner of the truck.
Also on March 12, 1998, Mary Lovell, another agent at Summit and an assistant to Lopeman, sent a memo to TLC regarding the hired/nonowned vehicle coverage versus contingent vehicle coverage. The memo stated:
I have received confirmation from the underwriter that TLC would have coverage in the event that one of your employees uses their own personal automobile in connection with their employment whether or not the employee had auto liability coverage. The coverage is provided under non-owned auto liability as described below:
Nonowned Auto is autos you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes autos owned by your employees or partners or members of their households but only while used in your business.
Hired Autos picks up the autos you do lease, hire, rent or borrow, but does not include vehicles borrowed from any of your employees.
As you can see, both coverages are required as they cover different situations.
The insurance policies defined "auto" to include trucks and other vehicles. Lovell stated in her deposition that she did not recall any conversations with TLC personnel about endorsements providing hired and nonowned auto coverage. Summit asserts that Lovell's memo was in response to another scenario posed by Lopeman. In this scenario, an office employee would be in an accident while using a personal auto for company errands. According to Summit, TLC was particularly interested in knowing what would happen if the driver had no insurance.
Despite Aon's concerns, TLC stated that it relied on and trusted Lopeman's opinion that truck drivers were covered and did not purchase any additional coverage in late 1997 or early 1998. Aon stated that in its opinion, TLC's liability exposure was the "contingent automobile risk." In response, TLC disagreed and indicated to Aon's official that he had limited understanding of the risk. The Aon official also stated that the reason for TLC's view of their insurance needs was that
it was [TLC's] understanding that the clients that they were leasing employees to were statutorily obligated to maintain automobile insurance. On that basis [TLC] had no worries on that issue.
The initial policies from Scottsdale and RLI ran from February 20, 1997 to February 20, 1998, and they were renewed in February 1998. On April 23, 1998, Summit sent TLC's chief financial officer two supplemental questionnaires from Scottsdale; the questionnaires covered the endorsements providing hired vehicle and nonowned vehicle coverage. The questions on the forms addressed why hired and nonowned coverage was requested, how many autos were to be scheduled on the policies, the estimated annual mileage *192 usage, and the maximum distance the non-owned auto was to be driven.
Because TLC did not return the forms to Summit, Summit sent them again on June 11, 1998. On June 18, 1998, TLC's CFO signed the questionnaires, and they were faxed to Summit. The answers on the questionnaires indicated that the coverage was for employee vehicles used in employee errands for a maximum distance of 1.5 miles. According to the CFO, he did not fill out the forms, but neither he nor anyone else at TLC could determine who completed them. The CFO had no responsibilities for insurance issues at TLC; the person who did have the responsibility had no knowledge of the forms and did not know why the forms were sent to TLC. Neither Lopeman nor Lovell participated in filling out the questionnaires or recalled reviewing them once they were sent back by TLC. Summit simply forwarded the questionnaires to Scottsdale.
The precipitating event for this consolidated appeal was a fatal truck/auto accident on May 27, 1999, in Tennessee. The driver of the truck, Roger Dale Walker, was an employee of ATS, Inc. of Georgia, which is a subsidiary of TLC. He was leased to Mercer Trucking in Georgia. The accident resulted in the deaths of four people. The jury in the resulting personal injury case found that TLC was vicariously liable for Walker's conduct. Judgment was entered jointly and severally against TLC's subsidiary and Mercer Trucking in the amount of $24.5 million, including $15 million in punitive damages.[1]
TLC notified Scottsdale of Walker's accident. Scottsdale denied coverage stating
[t]he accident arose out of an * * * accident in which an employee leased to Mercer Trucking was operating a vehicle owned by Mercer Trucking for a purpose benefiting Mercer Trucking. As he was operating a nonowned vehicle for the use of Mercer Trucking as opposed to your business, there is no coverage for this loss under this policy. At this time, under these circumstances, Scottsdale Insurance Company must respectfully disclaim coverage for this claim. We will not participate in the indemnification of this matter.
The coverage was also denied by RLI under the umbrella policy. In a second letter to TLC, Scottsdale again denied coverage for Walker's accident, stating that TLC's business was employee leasing and that TLC was not in the business of transporting goods. Scottsdale also asserted that it was entitled to rescind coverage "based on [TLC's] material misrepresentations in its application for Nonowned Auto coverage." Scottsdale agreed to provide TLC with a defense on the claim but reserved the right to withdraw from the defense.
Scottsdale commenced this action against TLC and RLI requesting declaratory relief and rescission of the nonowned vehicle endorsement. At issue is whether the policy with the endorsement for nonowned vehicle liability provided coverage and if so, whether TLC misrepresented material facts enabling Scottsdale to rescind the endorsement. RLI was joined as a party due to its issuance of the $25 million "following form" umbrella liability policy to TLC. TLC counterclaimed for a *193 declaration that it was entitled to the coverage that Scottsdale and RLI disavowed. TLC filed third-party claims against appellants Summit, Lopeman, and IBS on the basis that if TLC were denied coverage under the Scottsdale and RLI policies, then Summit, Lopeman and/or IBS negligently breached their duties as agents to procure the insurance coverage TLC sought.
Following the filing of the cross-motions for summary judgment, the district court partially granted Scottsdale and RLI's motion. The district court effectively denied TLC's cross-motions for summary judgment against Scottsdale and RLI. Although the district court held that the nonowned vehicle endorsement, by its plain language, covered TLC's liability for trucking accidents, it went on to conclude that Scottsdale was nevertheless entitled to rescind the endorsement and deny coverage to TLC due to the answers on the supplemental questionnaires. Since the RLI coverage was for liability in excess of the Scottsdale limits, it fared the same as Scottsdale. As a result, TLC was left without coverage from either Scottsdale or RLI. The district court did not reach the breach of contract or the policy reformation claims asserted by Scottsdale or the other claims advanced by RLI. The district court granted IBS summary judgment dismissing it from the litigation and denied Summit and Lopeman's summary judgment motion that they be dismissed. This appeal followed.
ISSUES
I. Did the district court err by determining that the nonowned vehicle endorsement to the Scottsdale policy covered accidents of TLC's leased truck drivers?
II. Did the district court err by granting Scottsdale/RLI's motion for summary judgment on its claim for rescission of the nonowned auto endorsement?
III. Did the district court err by denying the motion of Summit and Lopeman for summary judgment relieving them from liability to TLC?
ANALYSIS
These consolidated appeals all originate from either a grant or a denial of summary judgment by the district court. This court asks two questions on an appeal from summary judgment: "(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). A district court can grant a motion for summary judgment
when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citations omitted).
I.
The first issue is whether the district court erred by determining that the nonowned vehicle endorsement to the Scottsdale/RLI policy insured TLC for accidents of its leased truck drivers. The district court found that coverage for nonowned vehicles was included in the nonowned auto endorsement, which stated
[t]he insurance provided under COVERAGE A (Section 1) applies to "bodily injury" ... arising out of the use of any *194 "nonowned auto" in your business by any person other than you.
(Emphasis added.) A nonowned auto was defined in the endorsement as "any `auto' you do not own, lease, hire, rent, or borrow which is used in connection with your business." Autos are any motor vehicle, including trucks.
We are asked to determine whether the district court erred by determining that the trucks driven by TLC's leased employees were used "in the business" of TLC. Interpretation of an insurance policy is a question of law for the court to decide by looking at the language of the policy. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn.1978). In making this determination, language is to be given its plain and ordinary meaning. General Mills, Inc. v. Gold Medal Ins. Co., 622 N.W.2d 147, 151 (Minn.App.2001), review denied (Minn. Apr. 17, 2001). If the court does find an ambiguity within the policy, the court is to construe that ambiguity in favor of providing coverage to the insured. See SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 316 (Minn.1995) (noting that ambiguities regarding an insurance company's duty to defend are resolved in favor of the insured).
TLC is known as an employee leasing company. Its primary customers are trucking companies. Its business includes leasing back to trucking companies employees who were initially hired by the trucking company as well as signing up new hires and leasing them to trucking firms that had preselected these drivers. In the Tennessee accident involving Mercer Trucking, Mercer, like other TLC customers, was in the business of moving freight. As part of that business, Mercer has the exclusive ownership of the trucks, the control and direction of the driver, and control over the freight hauled. See Beddingfield, ___ So.2d at ___, 2003 WL 1950005, at *1 (stating that [TLC]'s leasing contract is "essentially one of form instead of substance" because the contract between TLC and Mercer does not alter the employees' job responsibilities; Mercer still retains primary responsibility for hiring and firing the drivers). Thus, TLC is in the business of leasing employees, and Mercer is in the business of operating trucks to haul freight.
It is possible that both TLC and Mercer could be in the business of operating trucks to haul freight if both companies played some role in the day-to-day business or the control of the drivers. In a joint operation, we would expect to see TLC play an active role in deciding whether a driver should be hired or fired and in supervising that driver; or some presence in the trucking company's operation; or some control over the trucks themselves; or some contact with customers; or some sharing of revenue. Here, none of these conditions exist. The drivers are not operating as part of any blended business.
Although they do not directly bear on the clarity of coverage under the language of the policy, two other considerations bear mention. First, the coverage in the endorsement cost only $300 but had aggregate policy limits of $26 million. TLC wished to cover almost 2,000 truck drivers operating in almost every state in the union. Scottsdale thought it was only covering occasional trips by a few office employees in their own cars for TLC's own business. As Aon told TLC, there was reason to doubt it had coverage. TLC never brought this question up with Scottsdale. The questionnaires that were initially and subsequently completed by RLI indicate that TLC's office locations in Minnesota and Indiana were the material insured locales. This supports the Scottsdale/RLI view.
*195 Second, this coverage was special, supplemental insurance being purchased by a sophisticated business through an insurance brokerage firm. A special policy endorsement was being obtained. Although the endorsement may have been standard language, it was not necessarily nonnegotiable. This is not a contract of adhesion or a consumer policy where the customer has little ability to decipher a complex contract.
Based on the language in the endorsement and the undisputed facts in this case, we conclude that the district court erred by holding that the leased truck drivers were driving in the business of TLC within the meaning of the nonowner auto endorsement and that the Scottsdale/RLI policies covered accidents of those drivers. The plain language of the nonowned auto endorsement limits coverage to TLC's business of employee leasing. TLC is not in the business of hauling freight or operating trucks. Accordingly, we reverse the district court's finding of coverage.
We note that in the underlying negligence litigation, the Alabama Supreme Court held that under the loaned-servant doctrine, TLC was not vicariously liable for the truck driver's negligent and reckless actions. Beddingfield, ___ So.2d at ___, 2003 WL 1950005, at *4. That court noted that
the important question is not whether or not [the employee] remains the servant of the general employer as to matters generally, but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other.
Id. (quotations omitted) (emphasis added). According to the Alabama Supreme Court, the driver was acting in the business of the trucking company, not TLC. This is consistent with our conclusion that there is not coverage.
II.
The second issue is whether the district court erred by granting Scottsdale's motion for summary judgment for rescission. Because we find that TLC's leased drivers were not covered under the vehicle endorsement, we do not address this issue.
III.
The third issue is whether the district court erred by denying summary judgment in favor of Summit and Lopeman. Resolution of this issue rests on the determination of three questions: (1) was there a special relationship between TLC and Summit/Lopeman; (2) did TLC specifically request that Summit/Lopeman obtain insurance coverage for the leased truck drivers, and if so did Summit/Lopeman follow TLC's instructions for the leased employees; and (3) did Summit/Lopeman know, or should they have known, that the supplemental questionnaires were inaccurate or incomplete.
Special Relationship
To determine whether there is a special relationship or special circumstances existing between Summit/Lopeman and TLC, the court must first determine if there is a legal duty running from Summit/Lopeman to TLC. Whether a legal duty exists is a question of law for the court. Johnson v. Urie, 405 N.W.2d 887, 891 n. 5 (Minn.1987). But, to determine if there is a legal duty, the court must look at the factual circumstances of the case. Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 n. 1 (Minn.1989). If the facts are disputed, the finder of fact is to resolve the disputed facts before the court can determine if a duty exists. Id. (citing Urie, 405 N.W.2d at 891 n. 5).
The legal duty of an insurance agent is to exercise the skill and care that *196 a reasonably prudent insurance agent would exercise under similar circumstances. Gabrielson, 443 N.W.2d at 543. Unless there is a special circumstance or relationship, the agent's duty is to act in good faith and to simply follow the instructions of the insured. See id. (noting that "[a]bsent an agreement to the contrary, an agent has no duty beyond what he or she has specifically undertaken to perform for the clients"). But, if there is a special circumstance or relationship or a long-term relationship, the agent knows or should know that the insured is relying on the agent's judgment. Gabrielson, 443 N.W.2d at 543-44. Such a relationship exists when the insured asks the agent to examine the insured's exposure and advise the insured on the potential exposure.
Lopeman had worked with TLC prior to Aon evaluating TLC's insurance coverage. Whether this particular ongoing relationship was sufficient to result in a determination that a special relationship existed is a factual question. If a special relationship did exist, its significance is also a question for the trier of fact. Although TLC did not delegate any decision-making authority to Summit/Lopeman, TLC may have relied on Lopeman's advice when Aon questioned whether the Scottsdale endorsement provided the recommended coverage. See Beauty Craft Supply & Equip. Co. v. State Farm Fire & Cas. Ins. Co., 479 N.W.2d 99, 101 (Minn.App.1992) (finding no special relationship without a delegation of decision-making authority and a lack of sophistication on the part of the insured), review denied (Minn. Mar. 19, 1992). TLC's officer responsible for insurance decisions stated that he relied on Lopeman and that he believed Lopeman understood more than "any other broker in the country" about their business and the type of insurance coverage they needed. By his own admission, Lopeman strove to convey to his customers that his specialty was transportation companies.
On the other hand, TLC asked for an analysis of its insurance needs from Aon and supplied Aon with a list of its current coverage, including liability limits. This same question was not posed to Summit/Lopeman; Summit/Lopeman was never asked to make a detailed analysis of TLC's insurance needs; and Aon's reports were not provided to Summit/Lopeman. This may indicate TLC's lack of reliance on Summit/Lopeman. We agree with the district court that whether there was a special relationship is question of fact to be determined by the trier of fact.
Following Instructions
There is conflicting evidence concerning whether TLC instructed Lopeman to secure coverage for the 1,900 drivers. If Lopeman did receive that instruction, and if he knew or should have known that the endorsement did not provide that coverage, then there is a basis for finding that Lopeman failed to follow TLC's instructions regarding the coverage.
There are additional factors for consideration by the finder of fact. TLC claims that its officers spoke with Lopeman at least ten times about the coverage, that Lopeman assured TLC that the endorsement would cover the leased drivers, and that the communications from Lopeman to TLC reassured it of coverage. For example, Lopeman sent a fax transmission explaining that the nonowned vehicle endorsement was priced so low because "the insurance company sees the exposure as TLC's actual office employees and has priced the coverage accordingly." Finally, when Lopeman was specifically asked about TLC's liability if a truck hit a school bus (an example previously supplied by Aon), Lopeman stated that the policy would provide coverage for TLC. We agree with the district court that whether *197 Lopeman followed instructions is a question for the finder of fact and that summary judgment was appropriately denied.
Incomplete/Inaccurate Questionnaire
Some states suggest that an insurance agent "does not have [a duty] to assist an applicant in completing [an insurance] application." Golden Rule Ins. Corp. v. Greenfield, 786 F.Supp. 914, 916 (D.Colo. 1992); see also Jackson v. Hartford Life & Annuity Ins. Co., 201 F.Supp.2d 506, 511 n. 3 (D.Md.2002) ("Law does not impose a duty on an insurance agent to investigate or verify the answers to an application's questions."). But an agent does have a duty to exercise the skill and care that a reasonably prudent insurance agent would exercise under similar circumstances. Gabrielson, 443 N.W.2d at 543. Although whether a general duty exists to provide such assistance is a question of law that is not clear in Minnesota, the facts developed at trial will be important in making that determination in this case. Until the record is fully developed in this regard and findings of fact are made, we cannot address that question. Whether Lopeman had a duty to know about the questionnaire, direct the questionnaire to the appropriate person at TLC, review the questionnaire when it was returned to Summit, or discuss TLC's answers with TLC before forwarding the form to Scottsdale are all questions for the finder of fact. We agree with the district court that given these questions, denial of summary judgment was proper.
IV.
Although Scottsdale and RLI have argued for reformation of the insurance policy, we do not reach this issue because of our determination that TLC's leased drivers were not covered under the vehicle endorsement.
DECISION
Because TLC's leased truck drivers do not drive trucks in furtherance of TLC's business, we reverse the district court's determination that the nonowned auto endorsement in Scottsdale's policy provided liability coverage for TLC's leased truck drivers. Because there are material facts to be considered as to whether Summit/Lopeman had a special relationship with TLC, followed TLC's instructions in the acquisition of coverage, or knew or should have known that the supplemental questionnaires were inaccurate or incomplete, we affirm the district court's denial of summary judgment on these issues.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] The Alabama Supreme Court recently reversed the finding that TLC or its subsidiary was liable. ATS, Inc. v. Beddingfield, ___ So.2d ___, 2003 WL 1950005 (Ala. Apr. 25, 2003). The appeal before this court continues both because substantial attorneys fees have been incurred in the Beddingfield case and because other accidents have occurred. One other claim has been made against TLC, and others may be made in the future. Therefore, the issues raised in the appeal are not moot. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/843405/ | 728 N.W.2d 423 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Brian Kelly WHITE, Defendant-Appellant.
Docket No. 132665. COA No. 272042.
Supreme Court of Michigan.
March 26, 2007.
On order of the Court, the application for leave to appeal the October 18, 2006 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579345/ | 12 So. 3d 850 (2009)
ALTAMONTE SPRINGS IMAGING, L.C., etc., Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Appellees.
Nos. 3D08-652, 3D07-3009.
District Court of Appeal of Florida, Third District.
June 3, 2009.
*852 Todd E. Copeland and Robert J. Crohan Jr., Orlando, for appellant.
Carlton Fields and Benjamine Reid and Paul L. Nettleton and Cristina Alonso, Miami; Sacher, Zelman, Hartman, Paul, Beiley & Rolnick and Alan H. Rolnick, Miami, for appellees.
Before ROTHENBERG, LAGOA and SALTER, JJ.
SALTER, J.
Altamonte Springs Imaging, L.C., an intervenor below, appeals a final circuit court consent judgment certifying a class, approving a settlement agreement, and awarding fees to the class representative and its attorneys. The lawsuit is based on the alleged failure of State Farm Mutual Automobile Insurance Company to correctly compute and pay the amounts due medical providers for magnetic resonance imaging services under section 627.736(5)(b)5, Florida Statutes (2001). We affirm the final judgment in all respects.
I. CPI, MRI, PIP, and Commonality
The legislature enacted section 627.736(5)(b)5 in 2001 to provide consumer price index (CPI) adjustments for magnetic resonance imaging (MRI) reimbursements in personal injury protection (PIP) claims. Although the statutory language was refined over the next few years,[1] a number of PIP insurers and MRI providers sparred over the manner in which the CPI adjustments should be computed and paid. Some insurers, including State Farm, apparently did not pay the adjustments for certain years because of the alleged interpretive issues.
To place the issue in perspective, allowed amounts for MRI services are typically between $1,000 and $2,000, and the average CPI adjustments (increases) per year have been between 3% and 5%. There are thousands of these claims for PIP reimbursement in Florida each year. If an insurer failed or refused to pay the correctly-adjusted amount and the MRI provider later prevailed in a county court action to obtain the adjustment often an amount between $20 and $200 the Florida Insurance Code fee-shifting provision[2]*853 mandated an award of attorney's fees and costs to the MRI provider.
It is difficult to imagine a group of claims better suited for class adjudication. The claims are brought by a particular group under a particular statute, and the judicial economy obtained in a class action resolving thousands of such claims is obvious. An economic analysis regarding the efficiency of thousands of county court cases involving single claims averaging $100 and transactional costs (legal fees alone, and putting aside the costs incurred by the State's judicial branch) of ten to a hundred times that, does not require extended number-crunching.
II. The Class Action and Proposed Settlement
Appellee and class plaintiff below, Open MRI of Miami-Dade, Ltd., commenced a circuit court action in 2004 on behalf of itself and other MRI providers allegedly denied the correct CPI adjustments by appellee-defendant State Farm. Following various motions and class-related discovery, Open MRI and State Farm entered into a proposed class action settlement agreement and sought court approval to notify over 14,600 putative class members regarding the proposed terms. The court entered a preliminary order[3] regarding the proposed settlement and conditionally certifying the three classes proposed by the parties: a settlement class (all providers that billed State Farm for MRI services and were paid, but without the CPI adjustment), a declaratory judgment class (a mandatory class including all class members), and a money damages class (all members who have not opted out and share in the settlement funds). The preliminary order also scheduled a fairness hearing for a date well after the period allowed for mailings and other contacts with putative class members.
III. ASI's Intervention and Objections
ASI provides MRI services in central Florida and has previously obtained several judgments against State Farm for CPI adjustment claims under section 627.736(5)(b)5.[4] In response to the notice and preliminary order regarding the proposed class action settlement, ASI moved to intervene. That motion was granted, and ASI submitted an opposition to the proposed settlement.
ASI ultimately represented that it had approximately 380 claims against State Farm that would be included in the class and the settlement, and it objected to class certification and approval of the settlement on a broad assortment of grounds. Procedurally, ASI claimed that it had been denied adequate notice of the settlement terms and an adequate opportunity to obtain certain discovery. Regarding class certification, ASI argued that the interests of the class members were too divergent to satisfy the commonality, typicality, and adequacy requirements imposed by Florida Rule of Civil Procedure 1.220(a). Regarding the proposed settlement, ASI asserted that the declaratory relief provision essentially an injunction precluding class members from filing any suit in Florida seeking any computation of the statutory CPI adjustment *854 other than as set forth in the settlement agreement would preclude ASI and other claimants from exercising "opt out" rights and their rights under existing judgments. ASI also objected to the amount to be paid the class representative ($10,000) and to the attorneys for Open MRI and the class ($485,000). These objections were rejected by the trial court, and we review those findings under the abuse of discretion standard of review. Allstate Indem. Co. v. De La Rosa, 800 So. 2d 245 (Fla. 3d DCA 2001) (findings supporting certification of a class under Rule 1.220); Ramos v. Philip Morris Cos., 743 So. 2d 24 (Fla. 3d DCA 1999) (findings supporting settlement of the class member claims). We apply heightened scrutiny to the simultaneous certification of the class and class settlement, however, to assure that absent class members are adequately protected. Grosso v. Fidelity Nat'l Title Ins. Co., 983 So. 2d 1165, 1170-71 (Fla. 3d DCA 2008).
A. Adequate Notice; Discovery
ASI filed its objections to the proposed settlement on October 23, 2007, over three months before the fairness hearing. Although it alleged in the objections that it had not directly received a copy of the preliminary order and class notice, there is no doubt that ASI received the notice package (including the Order Preliminarily Approving Settlement Agreement and Conditionally Certifying Classes for Settlement) sufficiently in advance of October 22, 2007, (the date of service of its objections), to permit its counsel to prepare a detailed twenty-page memorandum of law summarizing ASI's objections. The trial court did not abuse its discretion in determining that ASI had adequate notice of the terms and effect of the proposed class certification and settlement.
ASI's request for production of documents, served only three days before the fairness hearing, did not address the putative class members' identities or claims. Rather, ASI sought three categories of documents: (1) any settlement or confidentiality documents other than the proposed class settlement agreement, (2) communications with legal counsel regarding any negotiations or settlements other than the proposed class settlement agreement, and (3) copies of checks paid by State Farm to "any and all legal counsel or their clients who objected to the class action, intervened in the class action, appealed any portion of the class action and/or opted out of the class action." State Farm objected to the request on numerous grounds, and ASI provided no evidence to suggest collusion or "buy offs" of any objectors or their counsel as a predicate for such discovery.
The trial court correctly declined to postpone the fairness hearing to permit ASI's last-minute discovery to proceed. ASI made no further showing that any such discovery would bear on the Rule 1.220 factors or an assessment of the fairness of the settlement as to ASI. ASI had over three months from its receipt of the notice package within which to seek discovery regarding the proposed attorney's and class representative fees, the adequacy of Open MRI as a representative, and other details regarding the class and settlement.
B. Certification of the Class
As previously noted, ASI's objections to class certification based on the requirements of Rule 1.220(a) were not well taken. The putative class members' claims were concededly numerous. They arose from a common statutory provision and were asserted by a single type of medical service provider (MRI providers) against a single PIP insurer. Open MRI's *855 claim was a typical claim asserted by a putative class member. Open MRI showed that it could fairly and adequately represent the class,[5] and that its counsel were experienced and capable. Under Rule 1.220(a), its federal counterpart, and too many state and federal cases to warrant further citations, Open MRI and State Farm established that the class action lawsuit was a textbook case for certification.
ASI's objections to certification based on Rule 1.220(b) were more nuanced, but were also unfounded. Once the requirements of Rule 1.220(a) are satisfied, Rule 1.220(b)(1)(A) permits a class claim to be certified if the prosecution of the claim against individual members of the class would create a risk of "inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class." In this case, different county courts had used different computations for the statutory CPI adjustment.
One problem occurred with the application of the 2001 and 2003 versions of section 627.736(5)(b)5. Neither the index nor the date for the annual adjustment was clearly stated. These details were provided in the amendment effective October 1, 2003. Ch.2003-411, § 8, at 3837, Laws of Fla. The lack of clarity before the amendment allowed for varying interpretations regarding the exact method and timing for CPI adjustments.
There is an additional issue that can be referred to as the "compounding" issue. ASI takes the position, as the Fourth District Court of Appeal has held in Progressive Auto Pro Insurance Co. v. One Stop Medical, Inc., 985 So. 2d 10 (Fla. 4th DCA 2008), that the annual increases are to be compounded:
[T]he CPI adjustment for each year should compound so that one multiplies the base charge by each year's adjustment. For example, if 2001 had a 5% inflation rate and 2002 a 6% rate, the correct formula for a 2003 MRI would be a base charge × 1.05 × 1.06, and so on, unless or until the legislature resets the base year.
Id. at 15 n. 1. The statutory provision can just as easily be applied, however, as the Open MRI-State Farm settlement applies it. Under the settlement, the base amount is adjusted annually, but without compounding. In the example and methodology in the Progressive Auto footnote, the 2003 rate would be 11.3% above the base year (2001) rate, while the Open MRI-State Farm settlement agreement rate for 2003 would be 11.0% above that rate. The difference occurs because of the compounding effect of multiplying each year's increase cumulatively rather than simply adding the annual increase to the rate established for the preceding year.
There is another difference. The CPI figures published by the Bureau of Labor Statistics that are to be used in these adjustments are rounded to the nearest tenth, but the percentage increases can be computed to four or more decimal places, or they can be rounded up or down to a lesser number of decimal places. The Open MRI-State Farm class settlement method uniformly rounded the annual percentage up to the nearest one-tenth of one percent. An annual increase of 5.001% would be rounded up to 5.1%, for example.
*856 The need for mandatory declaratory relief regarding the statutory adjustment method was also established in conformance with Rule 1.220(b)(2). State Farm was shown to have refused to apply a method applicable to the entire class. The opt-out provision in the settlement allows a claimant to seek various categories of money damages (attorney's fees and costs, postal costs, penalties, and bad faith claims based on "unfair trade practices," pursuant to section 627.736(11), Florida Statutes (2007), for example), but the predominant feature of the settlement is a uniform interpretation of the CPI adjustment as directed by the legislature.
The lack of uniformity otherwise confounding a PIP insurer such as State Farm is seen in the variety of computational outcomes evidenced in the county court judgments throughout the State and in the record; in the interpretation applied by the Fourth District in the Progressive Auto case; and in the different types of claims (temporally, based on the statute's evolution) identified by the Second District Court of Appeal in Atlanta Casualty Co. v. Open MRI of Pinellas, Inc., 911 So. 2d 135 (Fla. 2d DCA 2005). The goal of "no fault" insurance was to reduce litigation, not to spread it virally throughout the State.
C. Fairness of the Settlement
ASI's primary objection to the fairness of the proposed settlement was that it would obtain less money as a result of the statutory CPI adjustments imposed by the settlement than ASI (or other putative class members) would obtain in stand-alone single-claim county court lawsuits. The arithmetic demonstrates that this claim is unfounded.
Using a hypothetical MRI reimbursable amount of $1,000 and actual CPI Medical Care figures from the Consumer Price Index for all Urban Consumers in the South Region (as determined and published by the Bureau of Labor Statistics of the U.S. Department of Labor) for June 30, 2001, through June 30, 2005, for comparison purposes, the settlement agreement adjustments would be:
June 30, 2001[6] 265.4 Base ($1,000.00 payable)
June 30, 2002 276.2 4.1% ($1,041.00 payable)
June 30, 2003 287.3 8.3% ($1,083.00 payable)
June 30, 2004 299.8 13.0% ($1,130.00 payable)
June 30, 2005 311.8 17.5% ($1,175.00 payable).
Computing the amounts payable using the cumulative and compounding adjustments as urged by ASI, and as applied by the Fourth District in Progressive Auto, would produce these figures:
June 30, 2001 265.4 Base ($1,000.00 payable)
June 30, 2002 276.2 4.0693% ($1,040.69 payable)
June 30, 2003 287.3 4.0188% ($1,082.51 payable)
June 30, 2004 299.8 4.3509% ($1,129.61 payable)
June 30, 2005 311.8 4.0027% ($1,174.82 payable)
From these figures it can be seen that the difference between the two methodologies is extremely small, and that the settlement's procedure for "rounding up" to the nearest one-tenth of one percent counterbalances the compounding feature of the alternative urged by ASI. The class settlement also provides for statutory prejudgment interest to be added to any adjustment amounts from the due date to the date of payment.
Further, the opt-out provisions permit an MRI provider to decline the settlement terms as to any remedy other than the CPI adjustment computation itself. Claims for attorney's fees under prior or existing judgments, claims alleging bad faith under section 624.155,[7] and any other *857 claims, are thus preserved. The only mandatory aspect of the settlement involves the statutory CPI adjustment. Because the computational method rounds up the applicable percentage and is otherwise fair, and because the opt-out provision preserves all other remedies to the claimants, the trial court did not abuse its discretion in finding that the settlement as a whole is fair.
D. Class Representative Payment and Attorney's Fees
Importantly, the payments to Open MRI as class representative ($10,000) and to the attorneys for the plaintiffs ($485,000) were paid by State Farm and not from the sums recoverable by class members. While the trial court and this court must review the fees for reasonableness, it is highly significant that the class members bear no part of that particular burden. An adversary, State Farm, has made its own preliminary assessment of reasonableness.
The trial court correctly found that a payment of $10,000 to Open MRI as representative plaintiff was reasonable. The position as fiduciary for the class is less an honor than a headache. The representative plaintiff is identified as a class litigant in public records (potentially affecting credit reports and disclosures for financing), is subject to fiduciary duties to the class, may be deposed and required to produce records, and must meet with counsel and appear in court, for example.
The attorney's fees were supported by a reviewing attorney's affidavit, an affidavit from an attorney with each of the two firms providing legal support to the plaintiff, and summaries of hours and hourly rates. Following the disclosure of the anticipated range of legal fees in the motion for certification and to approve settlement in 2007, ASI intervened but did not serve requests for production of the supporting daily time entries or seek to depose the attorneys who performed the work.
An objector's protestations that such daily time records were not filed does not establish that the affiants perjured themselves or that the fees are disproportionate to the benefits obtained. ASI's protestations are particularly hollow in light of the legal fees that could be incurred if over 14,600 separate county court actions, each with a small sum in controversy but a reasonable legal fee for the prevailing claimant, were to proceed as an alternative to class disposition. In any event, the trial court correctly considered and applied the factors applicable to an award of attorney's fees in such cases under Kuhnlein v. Department of Revenue, 662 So. 2d 309 (Fla. 1995).
IV. Conclusion
In its effort to allow MRI providers reasonable annual inflationary adjustments based on changes in the CPI, the legislature inadvertently spawned competing interpretations and the potential for thousands of micro-lawsuits in which attorneys would recover far more than the adjustments payable to the MRI providers. The Open MRI-State Farm class action provided a vehicle for the efficient and statewide resolution of such claims against one of the largest PIP insurers. The trial court correctly certified the class, considered and approved the settlement, and approved an award of attorney's fees and costs paid by the settling insurer (and not from the sums payable to class members). The provision for opt-outs allowed class member claimants, including ASI, to recover their CPI adjustments as computed in a fair interpretation of the controlling statute *858 and to seek any other penalties, fees, or other amounts available by law.
Affirmed.
NOTES
[1] The original version of the provision specified an adjustment to a formula based on the Medicare Part B allowed MRI reimbursement amount to compensate for any increase in the "medical Consumer Price Index for Florida," and did not identify a base month for annual adjustments. Later amendments clarified that the CPI adjustment would occur for 12-month periods ending June 30 of each year and that the pertinent index figures would be the "Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor."
[2] § 627.428, Fla. Stat. (2007).
[3] The appellant, Altamonte Springs Imaging (ASI), appealed this preliminary order as well as the final judgment. That appeal, our Case No. 3D07-3009, was consolidated with ASI's appeal from the final judgment.
[4] Three such judgments submitted by ASI were entered by the county courts in Orange and Osceola Counties, and were for recoveries of $27.48 each, plus prejudgment interest. ASI and its counsel did not disclose the amount of any attorney's fees and costs recovered in those three lawsuits.
[5] Although ASI argued that Open MRI has an inherent conflict of interest vis-á-vis claimants who have already obtained judgments on their claims, that argument proceeds on the mistaken assumption that any such "judgment creditor claimants" will take less from the class settlement than from a judgment. No such showing has been made.
[6] These are the base and adjustment dates used for reimbursement amounts during the year beginning the next August 1 and through July 31 of the following year.
[7] This is a category of claim mentioned by ASI, and we express no opinion one way or the other regarding the viability or sufficiency of such a claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579337/ | 12 So. 3d 720 (2007)
Armond Joseph JACKSON
v.
STATE of Alabama.
CR-06-0169.
Court of Criminal Appeals of Alabama.
December 21, 2007.
*721 Armond Joseph Jackson, pro se.
Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
WELCH, Judge.
Armond Joseph Jackson appeals from the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief. Jackson stated in his petition that in 1983 he pleaded guilty to capital murder and was sentenced to life imprisonment without the possibility of parole. He further stated in his petition that this Court affirmed his conviction and sentence on direct appeal on April 24, 1984. See Jackson v. State, 452 So. 2d 895 (Ala. Crim.App.1984).
Jackson filed the present Rule 32 petition on September 1, 2006. In his petition, Jackson alleged: (1) that the indictment failed to show the concurrence of at least 12 grand jurors; (2) that the petit jurors were not sworn; (3) that the venire was not sworn; (4) that he was denied his right to be present at a critical stage of the trial (initial voir dire); and (5) that the trial court failed to define reasonable doubt to the jury in its jury instructions. Without requiring a response from the State, the circuit court issued an order summarily denying Jackson's petition on the basis that Jackson's challenge to the indictment was a nonjurisdictional claim that was barred by the limitations period in Rule 32.2(c), Ala.R.Crim.P., and that the remaining claims were nonjurisdictional claims that had been raised and addressed in Jackson's prior petition and thus were barred by the prohibition against successive petitions in Rule 32.2(b), Ala. R.Crim.P.
I.
With regard to claim (1), as set out above, we note simply that the exhibits Jackson attached to his Rule 32 petition clearly establish that the foreperson of the grand jury signed the indictment against Jackson. It is well settled that the signature of the grand jury foreman signifies the concurrence of 12 or more grand jurors. See, e.g., Birdsong v. State, 929 So. 2d 1027 (Ala.Crim.App.2005). Therefore, summary denial of his petition as to this claim was proper.
II.
With regard to claims (4) and (5), as set out above, summary denial was also proper. As presented in the petition, these claims do not allege jurisdictional transgressions. See Boyd v. State, 913 So. 2d 1113 (Ala.Crim.App.2003) (a challenge to a trial court's jury instructions on reasonable doubt is subject to the procedural bars in Rule 32.2); Rule 9.1(b), Ala. R.Crim. P. (right to be present is waivable); Robitaille v. State, 971 So. 2d 43 (Ala. Crim.App.2005) (personal jurisdiction may be waived); D.W.L. v. State, 821 So. 2d 246 (Ala.Crim.App.2001) (absence from jury selection concerns personal jurisdiction and is therefore waivable; it does not impinge on the jurisdiction of the trial court over the subject-matter of the case). *722 Claims that can be waived are not jurisdictional and therefore are subject to the procedural bars in Rule 32.2, Ala. R.Crim. P. See, e.g., Strickland v. State, 771 So. 2d 1123, 1125 (Ala.Crim.App.1999). Accordingly, as the circuit court found, they are subject to the prohibition against successive petitions as provided in Rule 32.2(b), Ala.R.Crim.P. Therefore, summary denial of these claims was proper.
III.
Finally, with regard to claims (2) and (3), as set out above, i.e., that the petit jurors were not sworn and that the venire was not sworn, the circuit court found these claims to be successive. The State contends that this finding is correct, averring that these claims, as well as claims (4) and (5), are "verbatim copies of the arguments contained in his previous Rule 32 petition." (State's brief at p. 6.)
In Brooks v. State, 845 So. 2d 849 (Ala. Crim.App.2002), this Court stated:
"It is well settled that `[t]he failure to administer the oath to the jury renders the jury's verdict a nullity,' Dyson v. State, 722 So. 2d 782, 785 (Ala.Crim.App. 1997), and that `if the jury or any member thereof was not sworn, it was not the verdict of a jury.' Fowler v. State, 261 Ala. 262, 263, 74 So. 2d 512, 513 (1954). See also Hines v. State, 238 Ala. 575, 192 So. 423 (1939); Melton v. State, 45 Ala. 56 (1871); and Hill v. State, 582 So. 2d 1165 (Ala.Crim.App.1991). However, in Ex parte Deramus, 721 So. 2d 242 (Ala.1998), the Alabama Supreme Court recognized that there is a difference in a situation in which no oath is given to jurors at all and a situation in which there is merely a defect in the oath. In Deramus, the jury venire was administered an oath before voir dire examination, but the petit jury was not administered an additional oath after it was empaneled. The Alabama Supreme Court characterized this as a defective-oath situation, not a no-oath-at-all situation, and recognized that `"any defect in the administration of the oath"' is reversible error only if `"some objection was taken ... during the progress of the trial, based on [that] defect,"' 721 So.2d at 244, quoting § 12-16-173, Ala. Code 1975. Because the appellant had not objected to the defect during trial, the Court held that the appellant's claim that his conviction was void because the petit jury had not been sworn had been waived. Similarly, this Court has held that claims that the venire was not sworn before voir dire examination are waivable, thus implicitly recognizing that such situations are also defective-oath situations and not no-oath-at-all situations. See, e.g., Fortner v. State, 825 So. 2d 876 (Ala.Crim.App.2001); Bryant v. State, 739 So. 2d 1138 (Ala.Crim.App. 1998); and Sumlin v. State, 710 So. 2d 941 (Ala.Crim.App.1998). Because only nonjurisdictional issues can be waived, see, e.g., Mitchell v. State, 777 So. 2d 312 (Ala.Crim.App.2000), it is clear that any claim based on a defect in an oath is nonjurisdictional and, therefore, is subject to the procedural bars in Rule 32.2. On the other hand, a claim that no oath was administered at alli.e., the jury venire and the petit jury were not swornwould be a jurisdictional issue because, as noted above, a verdict rendered by jurors who have never been sworn is a nullity."
Brooks v. State, 845 So.2d at 850-51 (footnotes omitted).
In the present petition, claim (2) (that the petit jury was unsworn) and (3) (that the jury venire was unsworn), together present a jurisdictional question, i.e., that no oath was administered at all.
*723 In the previous petition, on which the circuit court relied to find the present claims successive, Jackson argued only that the venire was unsworn. (Supp. C.R. 9-10.) See also this Court's no-opinion affirmance of the denial of that petition. Jackson v. State (No. CR-02-0866, August 22, 2003), 886 So. 2d 183 (Ala.Crim.App. 2003) (table) (holding that Jackson's claim was not jurisdictional because he argued only that the venire was not sworn). The Alabama Supreme Court recently held that, "[a]lthough our cases have previously stated that jurisdictional claims cannot be precluded as `successive,' that exception to Rule 32.2(b) applies only to jurisdictional claims not previously raised and adjudicated on the merits." Ex parte Trawick, 972 So. 2d 782, 784 (Ala.2007). Because the jurisdictional transgression alleged in the present petition was not raised in the prior Rule 32 petition, the prohibition against successive petitions contained in Rule 32.2(b) is not applicable. Thus, the State's assertions on appeal are not well taken, and the circuit court erred in summarily denying Jackson's claim in the present petition on that procedural ground.
As is noted above, the circuit court summarily denied Jackson's petition without requiring a response from the State; the sole basis for the denial of those claims was that the claims were successive. Here, Jackson's claims (2) and (3) are not refuted by the record before this Court. Therefore, we must remand this case for further proceedings. On remand the circuit court may require the State to respond specifically to Jackson's claims (2) and (3) from his petition. The circuit court may, at its discretion if it determines it appropriate or necessary, conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R.Crim.P. The return to remand shall include the circuit court's written findings of fact and, if applicable, the State's response and/or a transcript of the evidentiary hearing. The circuit court shall take all necessary action to see that the clerk of the circuit court makes due return to this court at the earliest possible time and within 63 days of the release of this opinion.
REMANDED WITH DIRECTIONS.[*]
BASCHAB, P.J., and McMILLAN and WISE, JJ., concur. SHAW, J., concurs in the result.
NOTES
[*] Note from the reporter of decisions: On March 28, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579393/ | 12 So. 3d 128 (2008)
ALABAMA DEPARTMENT OF REVENUE
v.
Edna HARRIS.
2070628.
Court of Civil Appeals of Alabama.
December 31, 2008.
Duncan R. Crow, asst. counsel, Department of Revenue, and asst. atty. gen., for appellant.
Walter H. Honeycutt, Mobile, for appellee.
THOMAS, Judge.
The Alabama Department of Revenue ("DOR") appeals from a summary judgment entered by the Mobile Circuit Court in favor of Edna Harris. That judgment overturned a ruling by an administrative law judge ("ALJ") upholding DOR's revocation *129 of Harris's certificate of title to a vehicle. We vacate the circuit court's judgment because that court had no subject-matter jurisdiction.
On July 14, 2006, DOR, in compliance with the first sentence of § 40-2A-8(a), Ala.Code 1975, notified Harris that it was revoking the certificate of title to her vehicle, a 1999 Lexus ES 300 automobile. Pursuant to the third sentence of § 40-2A-8(a), Harris appealed to DOR's Administrative Law Division. On September 27, 2007, an ALJ upheld DOR's revocation of the certificate of title. On October 9, 2007, Harris filed a notice of appeal from the ALJ's ruling to the Mobile Circuit Court.
In the circuit court, Harris and DOR filed cross-motions for a summary judgment, as well as supporting briefs. On February 27, 2008, the circuit court granted Harris's motion and entered a summary judgment in her favor, ordering DOR to issue Harris a valid certificate of title to the vehicle. On April 4, 2008, DOR timely appealed to this court.
On appeal, DOR argues that the circuit court was without subject-matter jurisdiction to entertain Harris's appeal because Harris had failed to perfect the appeal in compliance with § 40-2A-9(g)(1), Ala.Code 1975. That section provides, in pertinent part:
"(g) Appeals to circuit court.
"(1)a. Either the taxpayer or the department may appeal to circuit court from a final order issued by the administrative law judge by filing a notice of appeal with the Administrative Law Division and with the circuit court within 30 days from the date of entry of the final order. Any appeal by the department shall be filed with the circuit court of the county in which the taxpayer resides or has a principal place of business in Alabama. If the taxpayer neither resides in Alabama nor has a principal place of business in Alabama, the appeal may be made to the Circuit Court of Montgomery County, Alabama. Any appeal by the taxpayer may be taken to the Circuit Court of Montgomery County, Alabama, or to the circuit court of the county in which the taxpayer resides or has a principal place of business in Alabama.
". . . .
"c.1. . . . [T]he circuit court shall dismiss any appeal that is not timely filed with the Administrative Law Division and the circuit court as herein provided. . . ."
(Emphasis added.) Section 40-2A-9(g)(1)a. requires a party who wishes to appeal a final order by an ALJ to file a notice of appeal with both the circuit court and DOR's Administrative Law Division within 30 days of the entry of the final order. Section 40-2A-9(g)(1)c.1 requires the circuit court to "`dismiss any appeal that is not timely filed with the Administrative Law Division and the circuit court.'" Alabama Dep't of Revenue v. Morton, 892 So. 2d 940, 942-43 (Ala.Civ. App.2004). The record contains no indication that Harris filed a notice of appeal with DOR's Administrative Law Division.
In Morton, this court held:
"Because the taxpayers "failed to comply with the requirements of § 40-2A-9(g)(1), the trial court lacked jurisdiction over [their] appeal, and its judgment is void." State Dep't of Revenue v. Garner, 812 So. 2d 380, 385 (Ala.Civ. App.2001). A void judgment will not support an appeal, and we therefore dismiss the Department's appeal; however, we instruct the Barbour Circuit Court to vacate its judgment in favor of the taxpayers. See id. (citing State Dep't of Revenue v. Zegarelli, 676 So. 2d 354, 356 *130 (Ala.Civ.App.1996)). Our conclusion obviates the need to consider the parties' arguments regarding the substantive correctness of the trial court's judgment, including its interpretation of § 40-2A-7, Ala.Code 1975, as allowing taxpayers to seek refunds more than three years after the filing of a tax return."
892 So.2d at 943. Similarly, in the present case, we dismiss DOR's appeal and instruct the circuit court to vacate its judgment in favor of Harris.
APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579386/ | 12 So. 3d 565 (2009)
Marco J. BORNE; and the Estate of Eldridge Dupree, Deceased, by and through his Personal Representative, Nichole Dupree; and the Wrongful Death Beneficiaries of Eldridge Dupree, Deceased, Appellants
v.
DUNLOP TIRE CORPORATION, INC., Appellee.
No. 2008-CA-00078-COA.
Court of Appeals of Mississippi.
June 30, 2009.
*566 Mark D. Lumpkin, James R. Reeves, Biloxi, attorneys for appellants.
Jerry L. Saporito, Leann W. Nealey, Jackson, attorneys for appellee.
Before LEE, P.J., IRVING and BARNES, JJ.
BARNES, J., for the Court.
¶ 1. Marco J. Borne and the Estate of Eldridge Dupree ("Plaintiffs") appeal the judgment of the Circuit Court of Rankin County, which granted summary judgment in favor of Defendant Dunlop Tire Corporation, Inc. ("Dunlop"). Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 2. This lawsuit originates from a single vehicle rollover accident early in the evening of February 14, 1998, on Interstate 59 in Pearl River County, Mississippi. Borne *567 was driving a 1992 Ford Explorer with two passengers: co-plaintiff, Eldridge Dupree, and another individual. Both passengers were ejected from the vehicle; Borne was not. As a result of the accident, Dupree died, and Borne sustained severe injuries, including the subsequent amputation of his leg. Plaintiffs alleged that the right rear tire of the Explorer malfunctioned, along with unspecified defects in the Ford Explorer, causing the vehicle to go out of control and roll over.
¶ 3. In September 2001, Plaintiffs filed a self-styled "personal injury and wrongful death action" against several defendants, including Dunlop, as the manufacturer of the allegedly defective tire.[1] Plaintiffs' claims include negligence, strict liability, and breach of warranty. Plaintiffs presented a Dunlop RV Radial Rover tire, which they claimed was the right rear tire that was mounted on the Explorer and malfunctioned, causing the accident.
¶ 4. During the course of discovery, in July 2004, Dunlop filed a motion for a protective order to limit Plaintiffs' discovery requests. In its motion, Dunlop argued that it should not be required to go through extensive research and investigation when Plaintiffs had not shown that the tire they presented as the subject tire of the February 1998 accident was actually attached to the Ford Explorer at the time of the accident. Dunlop's counsel explained at the hearing on the protective order that neither the Explorer nor any of the other tires were preserved after the accident. The only item presented to the Defendants as a remaining component of the accident was the subject tire. Dunlop contended that all of the evidence gathered at that point showed the alleged subject accident tire was not the tire mounted on Borne's Explorer when the accident occurred. In January 2005, the trial court ruled that the parties were allowed limited discovery on information regarding the manufacturing, wholesale, and retail dates of the tire presented by Plaintiffs as the accident tire.[2]
¶ 5. In June 2005, after the trial court ruled on Dunlop's protective order, Plaintiffs filed a "supplementation" to their opposition to Dunlop's motion for a protective order: the affidavit of Jay C. Zainey, whose firm originally investigated the accident and who, since the lawsuit was filed, was appointed as a United States District Court Judge for the Eastern District of Louisiana. Plaintiffs provided the affidavit in an attempt to show that the chain of custody of the subject tire had not been breached. The affidavit stated in pertinent part:
*568 As best as I recall, on March 9, 1998, State Farm Fire & Auto Insurance Company verified that it had possession of the vehicle and that the tires were still on the vehicle. My records indicated that on April 8, 1998, my firm requested the tire from State Farm Fire & Auto Insurance Company. Soon thereafter, my employee, Wayne Parker, traveled to Long Beach, Mississippi where he retrieved the subject tire. As best as I recall, in May 1998, the subject tire was sent to a consultant. At sometime thereafter, it was returned to my possession. The tire was subsequently placed in storage at the U-Haul Storage Facility ... in New Orleans, Louisiana. It remained in this storage facility until it was turned over to the custody of the attorney, Mark Lumpkin, in November, 2001.
¶ 6. After additional discovery had concluded, on October 11, 2007, Dunlop filed a motion for summary judgment on the tire-identification issue. Dunlop alleged "nothing has changed" since the protective order Plaintiffs still had not proven that the subject Dunlop RV Radial Rover tire was mounted on Borne's Explorer at the time of the accident. Dunlop also addressed the validity of Jay Zainey's affidavit, stating that it was invalid as it was not based on the affiant's personal knowledge. Thus, Dunlop argued Jay Zainey's affidavit should not be considered probative evidence.
¶ 7. In moving for summary judgment, Dunlop presented the following undisputed facts which Plaintiffs did not contest: Borne purchased his 1992 Ford Explorer in January 1996; Borne purchased three new Dunlop RV Radial Rover tires and had them mounted on his Explorer on November 24, 1997; and the rollover accident occurred almost three months after Borne had bought these new tires.
¶ 8. Dunlop supported its motion for summary judgment with the affidavit of Thomas Johnson, a tire performance manager for Goodyear Dunlop Tires North America, Ltd., who had inspected the subject tire and reviewed the police photographs taken at the accident scene. Johnson noted that, according to his review of the police photographs taken at the scene of the accident, the left front tire was not a Dunlop tire. Johnson stated he inspected the single tire presented by Plaintiffs as the right rear tire and found it to have excessive tread wear, measuring 4/32nds of an inch groove depth down to 2/32nds and 0/32nds inches at the serial side shoulder.[3] He also stated that the subject tire had some tread missing and the rest of the tread was "worn excessively." Photographs of the subject tire submitted by Plaintiffs confirm these observations.[4] Additionally, Borne had testified in his deposition that he had driven the Explorer between 3,000 and 4,000 miles with the subject tire mounted on the Explorer, from the time of purchasing the three tires on November 24, 1997, and the date of the accident on February 14, 1998, which coincided with the monthly mileage calculated by the vehicle's odometer reading during this time. Johnson opined that if the tire had been purchased new in November 1997, as indicated by Borne, it was impossible for the tread to be as worn as the *569 subject tire, after only a few months' use and 3,000 to 4,000 miles' wear. Therefore, Johnson concluded that the tire presented for inspection could not have been on the vehicle at the time of the accident.
¶ 9. In further support of its motion, Dunlop attached the deposition testimony of Joseph Johnson, a Mississippi State Trooper who was called to the scene of the accident. He testified that his accident report reflects that the right rear tire blew out; he did not observe any tread separation at the scene of the accident, which Plaintiffs contended caused the accident.
¶ 10. On December 10, 2007, a hearing was held on Dunlop's motion for summary judgment, at which time Dunlop moved to strike Jay Zainey's affidavit. At the hearing, counsel for Dunlop also argued that the subject tire, allegedly sold to Borne as a new tire in November 1997, was manufactured in 1994. The trial court found Jay Zainey's affidavit was "not sufficient" to meet the requirements of Mississippi Rule of Civil Procedure 56(e)[5] and granted Dunlop's motion for summary judgment because Plaintiffs had not established that the subject tire was actually on the vehicle at the time of the accident. Plaintiffs timely appealed, raising two issues: the supposed striking of Jay Zainey's affidavit at the motion hearing and the appropriateness of summary judgment.
STANDARD OF REVIEW
¶ 11. This Court reviews a trial court's grant of summary judgment de novo. Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So. 2d 129, 130(¶ 5) (Miss.2003) (citing O'Neal Steel, Inc. v. Millette, 797 So. 2d 869, 872(¶ 8) (Miss. 2001)). In conducting its review, this Court looks "at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits." Id. (citing Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 847(¶ 5) (Miss.2001)). This evidence will be viewed in the light most favorable to the nonmoving party. Id. (citing Leslie v. City of Biloxi, 758 So. 2d 430, 431(¶ 5) (Miss.2000)). Summary judgment is appropriate if "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c).
ANALYSIS OF THE ISSUES
1. Jay Zainey's Affidavit
¶ 12. Plaintiffs relied on the affidavit of Jay Zainey, who originally represented Borne, to rebut Dunlop's motion for summary judgment. Through the affidavit, Plaintiffs attempted to establish a chain of custody regarding the subject tire. Plaintiffs argue that the trial judge erroneously struck the affidavit at the hearing on Dunlop's motion for summary judgment. Plaintiffs contend that since no formal motion to strike the affidavit was filed by Dunlop, they were not provided an opportunity to respond, which they argue was improper. Finally, Plaintiffs state the affidavit was substantively sufficient under Rule 56(e).
¶ 13. It is undisputed that Dunlop did not file a motion to strike Jay Zainey's affidavit with the court; instead, it made the motion for the first time at the hearing, arguing that the affidavit was facially and substantively insufficient pursuant to Rule 56(e); the affidavit was not based on the personal knowledge of Jay Zainey; and it did not create a genuine issue of *570 material fact. Plaintiffs' counsel promptly objected. In reviewing the hearing transcript, however, we note the trial judge did not actually strike the affidavit. Instead, the trial judge stated that the affidavit was "not sufficient" to meet the requirements of Rule 56(e), thereby implying that he did, in fact, consider the affidavit in assessing whether Plaintiffs met their burden of proof in rebutting Dunlop's motion for summary judgment. Jay Zainey's affidavit contained a double layer of hearsay. "[M]ost, if not all, affidavits are hearsay, but they are nevertheless properly considered on summary judgment motions as long as they are based on personal knowledge and set forth facts such as would be admissible in evidence." Stewart v. SE. Foods, Inc., 688 So. 2d 733, 734 (Miss.1996) (citing M.R.C.P. 56(e)). Here, however, Jay Zainey's information about the subject tire is not based on his own personal knowledge, but on that of State Farm and his firm's employee who retrieved the tire from State Farm. Jay Zainey's affidavit is carefully worded not to overstate his position.
¶ 14. Because the affidavit was not stricken, we find this issue without merit. In the following issue, we shall discuss the affidavit's substantive deficiencies pursuant to Rule 56(e).
2. Summary Judgment
¶ 15. Borne contends that there is a genuine issue of material fact regarding whether the subject tire in Borne's possession was, in fact, the tire on his Explorer at the time of the accident. He argues that the trial court impermissibly weighed the evidence and resolved the ultimate issues of the case by granting summary judgment based on its own observations and assessment of the evidence. We disagree.
¶ 16. The law of summary judgment is well established. Summary judgment is warranted if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416 (Miss.1988) (citing Galloway v. The Travelers Insurance Co., 515 So. 2d 678, 683 (Miss.1987)). Therefore, to survive summary judgment, the party opposing the motion must "rebut by producing significant probative evidence showing that there are indeed genuine issues for trial." Price v. Purdue Pharma Co., 920 So. 2d 479, 485(¶ 16) (Miss.2006) (quoting McMichael v. Nu-Way Steel and Supply, Inc., 563 So. 2d 1371, 1375 (Miss.1990)). "[A]n adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial." Id. at 483-84(¶ 10). Furthermore, each element of each claim must be based on more than a scintilla of evidence; it must be "evidence upon which a fair-minded jury could return a favorable verdict." Luvene v. Waldrup, 903 So. 2d 745, 748(¶ 10) (Miss.2005) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss.1996)).
¶ 17. In their complaint, Plaintiffs claim the subject tire was defective and caused the accident which resulted in the death of Dupree and serious injury to Borne. Therefore, an essential element of each of Plaintiffs' legal claims against Dunlop is that this specific Dunlop RV Radial Rover tire was the tire on the vehicle at the time of the accident. Dunlop, in moving for summary judgment, presented evidence to the effect that the subject tire could not have been on the vehicle at the time of the accident. The burden of proof then shifted to Borne to rebut Dunlop's *571 contentions and submit "significant, probative evidence" showing there was a triable issue of fact as to whether the subject tire was mounted on the right rear of the Explorer at the time of the accident. Plaintiffs, however, failed to present such proof and instead relied wholly upon Jay Zainey's affidavit.
¶ 18. Dunlop concluded that the subject tire's tread depth, based on Plaintiffs' factual time line, established that the subject tire was not on the vehicle at the time of the accident, and our de novo review of the record confirms this conclusion. According to Borne's discovery responses and deposition, he purchased three new Dunlop replacement tires on November 24, 1997, and had them mounted on his Explorer. The accident at issue occurred nearly three months later on February 14, 1998. Borne testified in his deposition that he traveled between 3,000 and 4,000 miles with the new Dunlop tires during this approximate three-month period. The Explorer's odometer readings corroborated Borne's mileage estimation. He testified that he never looked at his tires; so he did not know how worn they were. The evidence shows that the Dunlop subject tire was manufactured during the thirty-third week of 1994. Dunlop's tire performance manager, Thomas Johnson, physically examined the subject tire which revealed excessive tread wear. Johnson was of the opinion that it was physically impossible for a new tire after only 3,000 to 4,000 miles of usage to exhibit the tread wear he measured. Therefore, he concluded the subject tire could not have been on Borne's Explorer at the time of the accident.
¶ 19. Further, photographs of the subject tire presented by Plaintiffs show a significant amount of tread missing, which is indicative of tread separation, not a blowout. Contrastingly, Trooper Joseph Johnson, who was on the scene investigating the accident, testified in his deposition that his personal inspection of the tire at the scene revealed nothing more than a blowout, not tread separation. Trooper Johnson testified he would have noted any tread separation in his report if he had noticed any at the scene.
¶ 20. Plaintiffs argue that since Dunlop's motion for summary judgment was based solely on whether the subject tire was on the Explorer during the accident, not the ultimate issue of whether the tire was defective, this is the only issue before the Court. We agree. However, Plaintiffs further contend that Jay Zainey's affidavit creates a genuine issue of material fact about the chain of the tire's custody from the time of the accident until it was turned over to Borne's current attorney. We disagree.
¶ 21. In his affidavit, Jay Zainey stated, "[a]s best as I recall, on March 9, 1998, State Farm Fire & Auto Insurance Company verified that it had possession of the vehicle and that the tires were still on the vehicle." The next month, Jay Zainey's firm requested the tire, and a firm employee traveled to Long Beach, Mississippi to retrieve it. Then, in May 1998, Jay Zainey again stated, "[a]s best as I recall," the subject tire was sent to a consultant, returned to his possession, placed in storage in New Orleans, Louisiana and handed over to Plaintiffs' current counsel. The trial judge found Jay Zainey' affidavit insufficient under Rule 56(e) because it was not based on Jay Zainey's personal knowledge.
¶ 22. We find the trial judge properly found Jay Zainey's affidavit insufficient. Jay Zainey's affidavit does not set forth specific facts showing there is a genuine issue for trial; it merely contains multiple levels of hearsay statements concerning the chain of custody of the tire. There is no testimony from the actual individuals *572 who may have handled the tire; instead, Jay Zainey recounts what he heard happened to the tire. While most affidavits are hearsay, the supreme court has stated that such affidavits may be considered on summary judgment motions where they are "based on personal knowledge and set forth facts such as would be admissible in evidence." Levens v. Campbell, 733 So. 2d 753, 758(¶ 13) (Miss.1999) (citing Stewart, 688 So.2d at 734). Here, there is no personal knowledge expressed by Jay Zainey about the subject tire. The affidavit neither indicates that Jay Zainey actually saw or examined the subject tire nor that Jay Zainey even specifically linked his statements to the specific Dunlop RV Radial Rover tire presented by Plaintiffs in this case. Accordingly, the affidavit is substantively insufficient in linking statements about the subject tire to the tire on the Explorer at the time of the accident.
¶ 23. While Plaintiffs' ultimate issue is whether the tire is defective, the first hurdle for all of Plaintiffs' claims is to establish that the subject tire they presented was actually the tire on the vehicle at the time of the accident. This they did not do. There is no admissible evidence linking the tire presented in discovery to the accident at issue; there is only the affidavit of a single witness with no personal knowledge repeating hearsay and double hearsay.[6] It appears from the facts of this case, that State Farm had exclusive control over the tire at issue, and someone who had personal knowledge of the storage of the tire would have to testify that the tire, which was turned over to Parker, an employee of Jay Zainey's firm, was in fact the tire that was on the vehicle at the time of the accident. This was not done. Plaintiffs were aware that the authenticity of the subject tire was at issue since July 2004, yet they never presented an affidavit of anyone with personal knowledge of its chain of custody.
¶ 24. After careful examination of the record, we find Plaintiffs failed to meet their burden of linking the subject tire to the tire that was on the Explorer at the time of the accident. Plaintiffs failed to provide specific, significant, probative evidence to rebut Dunlop's contentions and to establish a genuine issue for trial "upon which a fair-minded jury could return a favorable verdict." See Luvene, 903 So.2d at 748(¶ 10). Therefore, we affirm the trial court's grant of summary judgment in favor of Dunlop.
¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
NOTES
[1] Borne also sued Bridgestone/Firestone, Inc., as the retailer of the allegedly defective tire; Ford Motor Company as the manufacturer of the allegedly defective Ford Explorer; and Interstate Ford, as the retailer of the vehicle. Ford Motor Company and Interstate Ford settled with Plaintiffs and were dismissed from the case. Plaintiffs voluntarily dismissed Bridgestone/Firestone, Inc., after it filed a motion for summary judgment on the ground that it did not sell Dunlop tires at the time relevant to this case. Therefore, this appeal involves only Defendant Dunlop, as all of the other original defendants are no longer a part of this action.
Plaintiffs initially filed the action in the Hinds County Circuit Court; however, venue was changed to the Rankin County Circuit Court, from which this appeal was taken.
[2] Borne testified he paid cash for the tires, but he could not produce a receipt for them. As previously mentioned, Plaintiffs voluntarily dismissed their suit against the alleged retailer, Bridgestone/Firestone, Inc., after the retailer established that it did not sell Dunlop tires at the time Borne contends he purchased the Dunlop tire. The subject tire had no individualized serial number for tracking it from the manufacturer to the retailer; counsel for Dunlop explained that this is not unusual.
[3] Johnson stated that a tread is considered worn out when any groove reaches 2/32nds of an inch of tread remaining or less. The tread depth on a new tire of this type is 16/32nds of an inch.
[4] In these photographs, as Dunlop's counsel argued at the summary judgment hearing, the subject tire is "completely void of tread, worn out, [containing a] flat surface, bald, and also [there is] a big part of the tire where the tread is entirely missing."
[5] Rule 56(e) requires supporting and opposing affidavits to be made on personal knowledge, setting forth facts that would be admissible in evidence, and "show affirmatively that the affiant is competent to testify to the matter stated therein."
[6] Implicitly, Jay Zainey's affidavit is based either upon what State Farm "verified" to him or what his employee, Wayne Parker, told him upon his return with the tire. Each hearsay part of the statement must qualify under an exception for hearsay to be admissible. M.R.E. 805 cmt. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580654/ | 45 S.W.3d 101 (2001)
Robert Lynn GONZALEZ, Appellant,
v.
The STATE of Texas.
No. 1378-00.
Court of Criminal Appeals of Texas.
May 16, 2001.
*102 David Cunningham, Houston, for appellant.
William J. Delmore, III, Asst. DA, Houston, Matthew Paul, State's Atty., Austin, for the State.
OPINION
MEYERS, J., delivered the unanimous opinion of the Court.
Appellant was convicted of murder and sentenced to life imprisonment. The Court of Appeals affirmed. Gonzalez v. State, 21 S.W.3d 595 (Tex.App.-Houston [1st Dist.] 2000). We granted appellant's petition for discretionary review to address whether the Court of Appeals erred in its holding on a conflict of laws question.
In appellant's trial for murder, the State called Pastor Steven Folgheraiter who testified, over objection, that during a counseling session with appellant in California, appellant told him he had done something "really bad." Folgheraiter warned appellant that he could not keep secret anything involving a victim, but appellant went on to confess to killing the victim without provocation.[1]*103 Appellant argued the communication was privileged under Texas Rule of Evidence 505, but the trial court allowed it by applying section 1032 of the California Evidence Code. The Court of Appeals upheld the trial court's ruling, applying the "most significant relationship test" and concluding that California law should control admissibility of the privileged communication because the communication took place in California. Id. at 597 (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984), Tompkins v. State, 774 S.W.2d 195 (Tex.Crim.App.1987) and Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex.1995)).
Appellant claims the Court of Appeals' opinion conflicts with Davidson v. State, 25 S.W.3d 183 (Tex.Crim.App.2000). He also argues the Court of Appeals erroneously determined that California was the state with the most significant relationship. Finally, he claims that even if California is the state with the most significant relationship, a recognized exception to that rule warrants the application of Texas law in this case. The State argues that under well-accepted conflict of laws principles, the existence of a privilege for a particular communication is dependent upon the law of the State where the conversation occurred.
We note at the outset that both Texas and California recognize a clergy-penitent privilege, to greater and lesser degrees.[2] While the State argues that the statements at issue were not "confidential" under the laws of either state, we need not decide this issue. The only question before us is whether the Court of Appeals erred in applying the California rule instead of the Texas rule.
According to the Restatement (Second) of Conflict of Laws, the general rule as to conflict of laws concerning admissibility of evidence is that the law of the forum applies. Restatement (Second) of Conflict of Laws § 138 (1971); Davidson, supra. The Restatement recognizes three exceptions to thisprivileged communications, parol evidence, and the statute of frauds. Id. (local law of forum determines admissibility of evidence except as stated in § 139 (privileged communications), § 140 (parol evidence) and § 141 (statute of frauds)). In the case of privileged communications, admissibility depends upon which state had the "most significant relationship" with the communication:
*104 (1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
(2) Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.
Restatement (Second) of Conflict of Laws § 139 (1971). The rule is consistent with the Restatement's overriding policy of favoring admissibility.[3] Under subpart (1) of the rule, admitting the evidence in the forum if it is not privileged in the law of the state with the most significant relationship will not infringe on any interests of the state with the most significant relationship:
There can be little reason why the forum should exclude evidence that is not privileged under the local law of the state which has the most significant relationship with the communication, even though this evidence is privileged under the local law of the forum. Admitting such evidence cannot defeat the expectations of the parties since, if they relied on any law at all, they would have relied on the local law of the state of most significant relationship. This state has a substantial interest in determining whether evidence of the communication should be privileged. If this state has not chosen to make certain evidence privileged, its interests obviously will not be infringed if this evidence is admitted in the forum. Admission of this evidence, if relevant, will usually be in the best interests of the forum since such admission will assist the forum in arriving at the true facts and thus in making a correct disposition of the case.
Id. § 139 cmt. c (Supp.1988). Under subpart (2), where the communication would not be privileged in the forum but would be privileged in the state with the most significant relationship, the forum's interest in reaching correct results in its domestic litigation strongly favors disclosure of all evidence that is not privileged under its own laws.[4]Id. § 139 cmt. d (Supp. 1988).
We have previously relied upon the Restatement of Conflict of Laws for guidance on choice of law questions. Davidson, supra. Specifically with respect to choice-of-law questions involving privileged communications, the Texas Supreme Court applies the "most significant relationship" test as set forth in the Restatement (Second) provision pertaining to privileged *105 communications.[5]Leggat, 904 S.W.2d at 647 (although § 138 of Restatement provides that law of forum governs general admissibility of evidence, § 139, which governs privileged communications, directs court to identify state with most significant relationship with communication). We agree with our sister court that the choice-of-laws rule for privileged communications set out in the Restatement (Second) is a reasonable one.
Appellant argues that the "most significant relationship" test should not control here because the rules at issue are procedural and evidentiary in nature, rather than rules pertaining to substantive rights. Appellant says this case is just like Davidson, which held that the law of the forum was applicable to evidentiary and procedural rules.[6] But privileges, unlike other rules of evidence, and unlike rules of procedure, are peculiar in their purpose of preserving a substantive right:
Unlike other rules of evidence, privileges are not designed primarily to exclude unreliable evidence. In fact, privileges expressly subordinate the goal of truth-seeking to other societal interests [protected by the privilege].
Ludwig v. State, 931 S.W.2d 239, 242 (Tex. Crim.App.1996). The societal value in preserving the relationship at issue in the privilege is viewed as weightier than the societal interests at issue in the context of revealing the confidences of such relationship in a trial.[7]See id. at 242 n. 10 ("The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails" quoting Wolfle v. United States, 291 U.S. 7, 14, 54 S. Ct. 279, 78 L. Ed. 617 (1934)). Accordingly, the Restatement (Second) recognizes that privileges are an exception to the *106 general rule of the forum, otherwise applicable to most other rules of evidence, as privileges are more akin to rules pertaining to substantive rights.[8] Restatement (Second) of Conflict of Laws § 138 (1971). We agree with this view. Cf. Ludwig, supra; Leggat, supra.
Appellant's next argument is that the Court of Appeals erred in concluding that, because the communication took place in California, then California was the state with the most significant relationship with the communication. Gonzalez, 21 S.W.3d at 597. The comments to the Restatement (Second) of Conflict of Laws provide that the state where the communication took place is generally the state with the most significant relationship. Restatement (Second) of Conflict of Laws § 139 cmt. e (Supp.1988). Further, where the parties had no previous relationship, the state where the communication took place will be the state of the most significant relationship. Id. Although appellant committed the offense in Texas and the communication concerned the commission of that offense, Folgheraiter had no apparent ties to Texas. There is no evidence that appellant and Folgheraiter had any prior relationship outside of the state of California.[9] Appellant confided in Folgheraiter in his capacity as a clergyman serving in the state of California, where appellant was then living. Appellant had no reason to think that his communication would somehow be affected by the laws of Texas. Folgheraiter himself had no intentions of keeping a communication confidential if it involved a victim, and had warned appellant of this position. The Court of Appeals did not err in holding California to be the state with the most significant relationship with the communication.[10]
Finally, appellant argues that even if California has the most significant relationship with the communication, Texas law should nonetheless control because admission of the questioned communication would be contrary to the strong public policy of Texas.[11] Appellant acknowledges *107 that a clergyman's privilege was not formally recognized by Texas courts until 1967, but says that an unofficial privilege was allowed by the trial courts. Appellant further argues that the legislature's recent rejection of any limitation on the trial court's authority to compel disclosure is evidence of Texas' strong public policy position regarding the privilege.
The privilege was first recognized by the Texas legislature in 1967 when it was codified as article 3715a of the Revised Civil Statutes. Act of June 12, 1967, 60th Leg. ch. 485 § 1, 1967 Tex. Gen. Laws 1005. Under this provision, the privilege could be wholly put aside and disclosure compelled if the trial court determined disclosure "was necessary to a proper administration of justice." Id. While appellant correctly points out, based on the lack of reported cases on the statutory privilege, that disclosure was probably rarely, if ever, compelled, the provision nonetheless reflected public policy to provide less than an unlimited privilege. Article 3715a was repealed for civil cases with the passage of Texas Rule of Civil Evidence 505, effective September 1, 1983, and for criminal cases with the enactment of Texas Rule of Criminal Evidence 505, effective September 1, 1986, both of which were supplanted by Texas Rules of Evidence 505 in 1998. The privilege, on its face under Rule 505, appears to be absolute and without exception, but there is some indication that disclosure may be compelled in two situations. Steven Goode, Olin Guy Wellborn III, M. Michael Sharlot, Texas Practice Guide to The Texas Rules of Evidence: Civil and Criminal § 505.1 at 399 (2nd Ed.1993). The Texas Family Code provides that, with the exception of the attorney-client privilege, evidence will not be excluded on the ground of a privileged communication in proceedings regarding abuse and neglect of a child.[12]Id. (referring to Texas Family Code § 34.04). A clergyman may also be deemed to have waived any privilege and may be compelled to disclose a confidential communication if he testifies as a character witness for the confidant. Id. at 399-400 (referring to Texas Rule of Evidence 511). Despite Rule 505's facially absolute language, we decline to view the privilege as so deeply-rooted in the state's jurisprudential history that application of another state's version of the privilege, under the facts of this case, would be abhorrent to this State's public policy.
For the reasons stated above, we hold that the Court of Appeals did not err in its application of the "most significant relationship" test to the conflict of laws question presented in this case. The judgment of the Court of Appeals is affirmed.
NOTES
[1] In his statement to police, appellant admitted killing the victim, but stated that the victim had attempted to rape appellant's girlfriend and appellant had acted in her defense. The girlfriend testified that appellant's statement was untrue. She said appellant attacked the victim without provocation.
[2] Texas Rule of Evidence 505, Communications to Members of the Clergy, provides in part that "[a] person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual advisor." Tex.R. Evid. 505(b). A communication is "confidential" under the rule "if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication." Tex.R. Evid. 505(a)(2).
California Evidence Code § 1032 provides in part that "a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication." Cal. Evid.Code § 1033. A "penitential communication" is "a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a clergyman, who in the course or practice of his church, denomination, or organization, is authorized or accustomed to hear such communication and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret." Cal. Evid.Code § 1032.
[3] In essence, if the communication would not be privileged under either the law of the forum or the law of the state with the most significant relationship, then it is admissible (unless its admission would be contrary to strong public policy or there is some special reason why the forum's policy of favoring admission should not be followed).
[4] The forum should nonetheless consider a number of factors in deciding whether there is some reason why its policy of favoring admission should not control:
Among the factors that the forum will consider in determining whether or not to admit the evidence are (1) the number and nature of the contacts that the state of the forum has with the parties and with the transaction involved, (2) the relative materiality of the evidence that is sought to be excluded, (3) the kind of privilege involved and (4) fairness to the parties.
Id. § 139 cmt. d (Supp.1988).
[5] The Texas Supreme Court had previously held that "all conflicts cases sounding in tort will be governed by the `most significant relationship' as enunciated in Sections 6 and 145 of the Restatement (Second) of Conflicts." Gutierrez v. Collins 583 S.W.2d 312, 318 (Tex. 1979).
[6] In Davidson, the defendant made inculpatory oral statements to federal agents while in custody in Montana. The statements were not admissible under Code of Criminal Procedure article 38.22, because they had not been recorded electronically; the statements were in compliance with federal and Montana laws. Relying on the Restatement (Second) of Conflict of Laws, section 138, we noted that a basic tenet of choice-of-laws resolution is that the law of the forum in which the judicial proceeding is held determines the admissibility of evidence. Davidson, 25 S.W.3d at 185. Because article 38.22, by its plain language, set out conditions which must be satisfied before a statement made during custodial interrogation would be admissible in evidence, we held such rule to be evidentiary in nature. The general rule that the law of the forum applies to questions of admissibility of evidence was thus applicable to the defendant's statement in Davidson.
[7] Rules of privilege are not evidentiary in their focus, but are established for the purpose of protecting certain relationships and encouraging open and free-flow of communication between persons in such relationships. Cf. Carmona v. State, 941 S.W.2d 949, 953 (Tex.Crim.App.1997)("attorney-client privilege is designed for the benefit of the client by guaranteeing to the client the confidentiality necessary to promote forthright communications between the lawyer and the client"); Ludwig, supra (marital communications privilege based on belief in "sanctity of privacy in marriage, the desirability of free communication between spouses, and the concept that the preservation and maintenance of marital relations requires that husband and wife be permitted to talk confidentially without fear of having their communications disclosed to others, even in court," quoting McFall & Little, Privileges Under Texas Law: A Dying Breed?, 31 S.Tex.L.Rev. 471, 478 (1990)).
[8] A "substantive right" has been defined as "[a] right to the equal enjoyment of fundamental rights, privileges and immunities," Black's Law Dictionary at 745 (5th ed.1983), or "a right that can be protected or enforced by law." Black's Law Dictionary at 1324 (7th ed.1999). A "procedural right" is viewed as a "right that helps in the protection or enforcement of a substantive right." Id. at 1323. A "privilege" is defined in part as "[a] particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens." Black's Law Dictionary at 1197 (6th ed.1990).
[9] Folgheraiter testified that he had been appellant's youth pastor when appellant was growing up, and had known appellant for about ten years, but did not testify as to where he had been living during those years. Folgheraiter testified he had been employed at his current church in California for about four years. Appellant's mother lived in California and had contacted Folgheraiter and requested that he meet with appellant. There is also testimony about appellant "moving back" to California after the commission of the offense in Texas, suggesting that appellant had previously lived in California for some time.
[10] Appellant argues that Texas is the state with the "most significant relationship" because the offense occurred in Texas, "[t]he relationship between the appellant and the decedent was centered in Texas" and because appellant was living in Texas at the time of the offense. These facts demonstrate the relationship between Texas and the commission of the offense, not between Texas and appellant's communication with Folgheraiter.
[11] As stated above, the Restatement (Second) provides that "[e]vidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum." Restatement (Second) of Conflict of Laws § 139 (1971).
[12] The Family Code further imposes a duty of reporting to the authorities suspected instances of child abuse, and this duty expressly extends to clergy whose communications would otherwise be privileged. Steven Goode, Olin Guy Wellborn III, M. Michael Sharlot, Texas Practice Guide to The Texas Rules of Evidence: Civil and Criminal § 505.1 at 124 n. 13 (Supp.1998)(referring to Texas Family Code § 261.101(c)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580650/ | 45 S.W.3d 252 (2001)
Lougay Malone TOLES, Appellant,
v.
H. Edward TOLES, III, Appellee.
No. 05-97-00303-CV.
Court of Appeals of Texas, Dallas.
April 11, 2001.
*258 Bill C. Hunter, Charles M. Wilson, III, Dallas, Robert Gilbreath, Jenkins & Gilchrist, P.C., Dallas, for Appellant.
George R. Bienfang, John V. McShane, McShane, Davis & Hance, L.L.P., Dallas, for Appellee.
Braden W. Sparks, Dallas, Mediator.
Before Justices FITZGERALD, RICHTER, and ROSENBERG.[1]
OPINION
BARBARA ROSENBERG, Justice (Assigned).
This case involves a divorce action between Lougay Malone Toles (Wife) and H. Edward Toles III (Husband). In two points of error, Wife appeals the judgment notwithstanding the verdict (JNOV) denying her claim for intentional infliction of emotional distress and the $120,000 sanctions judgment against her. In four conditional cross-points, Husband claims the evidence is factually insufficient to support the verdict, there was an error in the charge, and the remedy for any error is remand for a division of the property. We sustain both of Wife's points, overrule Husband's cross-points, and reverse the portions of the trial court's judgment related to Wife's tort claims and sanctions. We render judgment that Husband take nothing on his sanction claim, reinstate the jury verdict awarding $325,000 to Wife on her tort claim, and remand to the trial court for entry of judgment on the jury verdict with prejudgment and postjudgment interest.
BACKGROUND
The parties were married in 1971 and separated in 1993. Husband filed for divorce. Wife filed a counter-petition for divorce and a claim for personal injuries, alleging intentional infliction of emotional distress and assault and battery. The case was bifurcated, and the tort claims were tried to a jury. The jury returned a verdict in favor of Wife on the claim for intentional infliction of emotional distress and awarded her damages of $325,000 .[2] The trial court, however, disregarded the jury's finding, granted Husband's motion for JNOV, and ordered that Wife take nothing on her tort claims. All remaining matters related to the divorce were determined by the court in a bench trial. In the divorce decree, the court ordered Wife to pay $120,000 to Husband as sanctions "for her misconduct during the pendency of this cause." Wife appeals the JNOV and the sanctions.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In her first point of error, Wife contends the trial court erred in granting JNOV for Husband because there was legally sufficient evidence to support the findings of the jury. Husband brings three cross-points requesting relief if the JNOV on the tort claim is reversed. He alleges insufficient evidence to sustain the verdict,[3] jury charge error, and argues the case should be remanded to the trial court for redetermination of a just and right division of the community estate in the divorce action.
*259 Standard and Scope of Review
A trial judge may properly grant a JNOV when there is no evidence to support one or more of the jury's findings of fact necessary to the judgment. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). To uphold the JNOV, we must determine that no evidence supports the jury's findings. Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex.1998); see Stokes v. Puckett, 972 S.W.2d 921, 923 (Tex.App.-Beaumont 1998, pet. denied). Thus, we must determine whether there is any evidence upon which the jury could have made a necessary finding of fact. In conducting this review, we review the record in the light most favorable to the finding of fact, considering only the evidence and inferences from the evidence that support the finding and rejecting the evidence and inferences that do not. Mancorp, Inc., 802 S.W.2d at 227; Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988) (per curiam). Where there is more than a mere scintilla of competent evidence to support a jury's finding of necessary facts, the JNOV will be reversed. Mancorp, Inc., 802 S.W.2d at 228. More than a scintilla of evidence exists if the record reveals some probative evidence to support the verdict, no matter how small. Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 164 (Tex. App.-Texarkana 1998, no pet.).
We review a factual sufficiency challenge to the jury verdict by examining all of the evidence presented at trial. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We will set aside the finding only when it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.
Applicable Law
A party who claims intentional infliction of emotional distress must prove that (1) the defendant acted intentionally or recklessly, (2) the defendant's conduct was extreme and outrageous, (3) the outrageous conduct caused the complainant emotional distress, and (4) the emotional distress suffered was severe. See Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993).
Before a question is submitted to a jury on intentional infliction of emotional distress, the court must determine, as a question of law, whether the plaintiff has presented evidence which, if believed, meets the legal standard for "extreme and outrageous" conduct. See Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993). As factfinder, the jury may believe or disbelieve any or all of the testimony of any witness. Barnes v. State Bar of Tex., 888 S.W.2d 102, 110 (Tex.App.-Corpus Christi 1994, no writ).
For each element, we first address the legal sufficiency of the evidence, then the factual sufficiency of the evidence.
Intentional or Reckless Conduct
Intentional infliction of emotional distress requires either that the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor's reckless conduct. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 63 (Tex.1998). Intentional conduct requires a showing that the actor desired the consequences of his act. Behringer v. Behringer, 884 S.W.2d 839, 842 (Tex.App.-Fort Worth 1994, writ denied); LaCoure v. LaCoure, 820 S.W.2d 228, 233 (Tex.App.-El Paso 1991, writ denied). An actor is reckless when he knows or has reason to know of facts that create a high degree of risk of harm to another and deliberately proceeds to act in conscious disregard of, or indifference *260 to, that risk. Twyman, 855 S.W.2d at 624. Intent may be inferred from the circumstances and the conduct of the actor, not just from the overt expressions of intent by the actor. LaCoure, 820 S.W.2d at 233. Of course, rarely will a defendant admit knowing of a substantial certainty that emotional harm would befall the victim. Twyman, 855 S.W.2d at 623. Juries are free to discredit the defendant's protestations that no harm was intended and to draw necessary inferences to establish intent. Id.
Wife testified to numerous incidents, over the term of the parties' marriage, where Husband mentally and physically abused her. She testified that Husband pinned her against the wall, choked her, spit on her, poured various liquid substances (including Coke, water, orange juice, and Nyquil) on her, threw barbeque against the curtains and on her, locked her out of her house, crushed her hand, pulled her out of the car, stomped on her feet, threatened to smother her, threatened to snap her neck, broke planters and a vase, destroyed numerous items of her personal property that had sentimental value, destroyed her college papers that she stayed up all night typing, dumped her clothes out of the closet, cut her clothing with scissors, called her names, and yelled obscenities at her.
After an argument between the parties following their separation, about which both parties testified, Wife was hospitalized for taking an overdose of pain medication. The hospital records indicated a bruise on Wife's leg. Although Wife told hospital personnel she received the bruise falling down stairs, she testified at trial that the plate-sized bruise was caused by the gearshift when Husband pulled her out of his car during the argument earlier that afternoon. According to Wife, Husband dragged her from the passenger seat, across the console, and out the driver's side of the vehicle.
There is more than a scintilla of evidence that husband's conduct included intentional and reckless acts that could cause emotional distress. This evidence is legally sufficient to support the jury's finding that Husband acted intentionally or recklessly to inflict emotional distress.
In reviewing the entire record for factual sufficiency of the evidence, we observe that the record includes contradictory evidence. Husband denied physically attacking or assaulting Wife during the marriage, but he did not dispute that many of the incidents occurred. He admitted he threw things, broke things, spit on Wife, argued at length with Wife, locked Wife out of the house, and poured various substances on Wife, but he remembered most of the incidents differently from Wife. He testified that Wife also argued, cursed, yelled, spit, and actively pursued their arguments. The parties' nineteen-year-old son testified by deposition that his parents argued a great deal, and he described the environment in his home as "sick." While he blamed both parents equally for the intensity of their arguments, the son recalled several incidents that confirmed Wife's testimony, including seeing Husband destroy Wife's personal property, seeing bruises on Wife, and seeing Wife covered in Nyquil or liquid Tylenol. He never observed Wife damage or destroy property or pour substances on Husband. Wife testified concerning bruises she attributed to Husband's abuse, and a neighbor testified she once observed Wife with bruises on her face. Husband's witnesses testified that Husband is a respected lawyer and businessman and that, in all his relationships with other people, he was never abusive or hostile.
Wife testified that she did not tell anyone about the ongoing abuse. Because *261 there were many incidents, she was unable to remember clearly when each occurred. Wife's psychologist testified that Wife repressed many memories of the abuse and, because of Wife's upbringing, she sought to conceal the abuse from those around her.
While the evidence is contested whether Husband was abusive toward Wife, or whether the abuse was intentional or reckless, the finding that Husband's acts constituted intentional or reckless conduct that created a high degree of risk of harm to Wife's emotional condition is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, there is factually sufficient evidence to support this element of Wife's cause of action.
Extreme and Outrageous Conduct
The second element of this cause of action requires the Husband's conduct to be extreme and outrageous. "Extreme and outrageous" requires the alleged conduct to be so outrageous in character, and so extreme in degree, as to exceed all possible bounds of decency and be utterly intolerable in a civilized community. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex.1999); Twyman, 855 S.W.2d at 620; RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965). Mere insults, indignities, threats, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. Bruce, 998 S.W.2d at 612. The fact that conduct is intentional, malicious, or even criminal does not, standing alone, mean it is extreme and outrageous for purposes of intentional infliction of emotional distress. Brewerton v. Dalrymple, 997 S.W.2d 212, 215 (Tex.1999).
Whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery is initially a question of law. Wornick Co., 856 S.W.2d at 734; RESTATEMENT (SECOND) OF TORTS § 46 cmt. h (1965). But when reasonable minds could disagree, it is for the jury to determine whether, in a particular case, the conduct is sufficiently extreme and outrageous to result in liability. Bruce, 998 S.W.2d at 616; Gonzales v. Willis, 995 S.W.2d 729, 735 (Tex.App.-San Antonio 1999, no pet.); RESTATEMENT (SECOND) OF TORTS § 46 cmt. h (1965).
In determining whether certain conduct is extreme and outrageous, courts consider the context and the relationship between the parties. See Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 569, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987); Bruce, 998 S.W.2d at 612.[4] Conduct considered extreme and outrageous in some relationships may not be so in other relationships. Married couples share an intensely personal and intimate relationship. Twyman, 855 S.W.2d at 627 (Phillips, C.J., concurring and dissenting). When discord arises, it is inevitable that the parties will suffer emotional distress, often severe. Id. Accordingly, Wife must bring forth evidence to raise a fact question on the existence of some conduct that brings the dispute outside the scope of an ordinary marital dispute and into the *262 realm of extreme and outrageous conduct. Cf. City of Midland v. O'Bryant, 18 S.W.3d 209, 217 (Tex.2000) (in employment context, it is necessary to show "the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct").
While occasional malicious and abusive incidents should not be condoned, they must often be tolerated in our society. Bruce, 998 S.W.2d at 617. When abusive conduct such as being assaulted, intimidated, and threatened becomes a regular pattern of behavior, it should not be accepted in a civilized society. See id. (discussing extreme and outrageous conduct in employment context). In this case, Wife testified to continuous abusive behavior throughout the marriage. A claim for intentional infliction of emotional distress does not necessarily require evidence of the physical aspects of assault or battery. See Schlueter v. Schlueter, 975 S.W.2d 584, 587 (Tex.1998). However, here, evidence regarding the physical nature of the abuse was presented. Moreover, because intentional infliction of emotional distress is considered a "continuing tort," the defendant's conduct throughout the parties' marriage may be considered. See Newton v. Newton, 895 S.W.2d 503, 506 (Tex. App.-Fort Worth 1995, no writ); Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex.App.-Austin 1990), rev'd on other grounds, 855 S.W.2d 619 (Tex.1993). When repeated or ongoing severe harassment is shown, the conduct should be evaluated as a whole in determining whether it is extreme and outrageous. Bruce, 998 S.W.2d at 615-16.
In evaluating the alleged conduct as a whole, it is the type that, if it is not the kind of assault and intimidation that is intolerable in a civilized society as a matter of law, at least reasonable minds would differ as to whether it was sufficiently extreme and outrageous to result in liability. Thus, it was proper for the intentional infliction of emotional distress issue to go to the jury. Having at least raised a fact issue as to whether Husband's acts were extreme and outrageous, Wife's testimony to numerous incidents of assault and intimidation is legally sufficient evidence to support the jury's finding and the conclusion that Husband's conduct may reasonably be regarded as so extreme and outrageous as to be intolerable in a civilized community.
We next review the record to determine whether the evidence of extreme and outrageous conduct was factually sufficient. Husband attempted to show that Wife brought her claim out of vindictiveness because Husband left her and filed for divorce. However, as we noted above, Husband did not deny that he threw things, broke things, spit on Wife, argued at length with her, locked her out of the house, and poured various substances on her. Although Husband denied assaulting Wife and he remembered most of the incidents differently from Wife, the jury, as factfinder, could believe or disbelieve any or all of the testimony of any witness. See Barnes, 888 S.W.2d at 110. Because the jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, we conclude there is factually sufficient evidence to support a finding that Husband's conduct was extreme and outrageous.
Severe Emotional Distress
Emotional distress includes all highly unpleasant mental reactions, such as fright, humiliation, embarrassment, anger, worry, and nausea. Bruce, 998 S.W.2d at 618; Washington v. Knight, 887 S.W.2d 211, 216 (Tex.App.-Texarkana 1994, writ denied); RESTATEMENT (SECOND) OF TORTS § 46 cmt. j (1965). The law *263 intervenes only where the distress is so severe that no reasonable person should be expected to endure it. RESTATEMENT (SECOND) OF TORTS § 46 cmt. j (1965). The intensity and duration of the distress are factors to be considered in determining its severity. Behringer, 884 S.W.2d at 844.
Wife testified that Husband's abusive treatment toward her began within the first two years of their marriage and continued throughout their marriage. According to Wife, she suffered from an ulcer, and Husband's treatment of her caused her great emotional distress, caused her to feel worthless and ashamed, and caused her to grind her teeth so hard that some are cracked. Wife's psychologist testified that Wife was severely depressed and that she suffers from post-traumatic stress disorder as a result of Husband's abuse. The psychologist and Wife's counselor testified that Wife was in further need of therapy and counseling more than two years after the parties' separation. We conclude there is legally sufficient evidence that Husband's conduct caused Wife emotional distress and that her emotional distress was severe.
Husband attempted to show other factors in Wife's history might have caused her emotional distress. Husband also attempted to discredit Wife's psychologist and the psychologist's test-taking procedures. Although the psychologist admitted she would conduct the interview as a forensic psychologist differently if she had it to do over, and she acknowledged other factors could have contributed to Wife's distress, she was confident in her diagnosis of Wife and confident that Wife's distress was primarily caused by the abuse and intimidation suffered in her marriage. According to the psychologist, Wife's upbringing and history explained Wife's reluctance to tell anyone about Husband's abusive treatment of her. We conclude there is factually sufficient evidence that Husband's conduct caused Wife emotional distress and that Wife's emotional distress was severe.
Because the evidence is legally sufficient to support the jury's finding on the elements of intentional infliction of emotional distress, we conclude the trial court erred in granting JNOV for Husband. Therefore, we sustain Wife's first point of error. Because the evidence is factually sufficient to support a jury's finding on each element, we overrule Husband's fourth cross-point.
Jury Charge
In his third cross-point, Husband claims there was jury charge error in the tort trial. The court submitted Question 2 to the jury as follows: "What sum of money, if now paid in cash, would fairly and reasonably compensate Lougay Malone Toles for her actual damages, if any, resulting from the conduct in Question 1?" (emphasis added). Husband objected to the charge and requested the phrase "proximate cause" be used rather than "resulting from." The court overruled his objection.
We review the trial court's submission of instructions and jury questions under an abuse of discretion standard. European Crossroads' Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 54 (Tex.App.-Dallas 1995, writ denied). The trial court has broad discretion in submitting jury questions so long as the questions submitted fairly place the disputed issues before the jury. Varme v. Gordon, 881 S.W.2d 877, 881 (Tex.App.-Houston [14th Dist.] 1994, writ denied). In order to fairly submit the issue of damages, a question must enable a jury to determine the amount of damages on appropriate grounds and correct legal principles. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 90 (Tex.1973); Libhart v. Copeland, *264 949 S.W.2d 783, 799-800 (Tex.App.-Waco 1997, no writ). To determine whether an alleged error in the jury charge is reversible, we must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety to determine if the trial court abused its discretion. Island Rec. Dev. v. Republic of Tex. Sav., 710 S.W.2d 551, 555 (Tex.1986); Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 722 (Tex.App.-Dallas 1997, no writ).
In this case, "proximate cause" was defined in the charge, and the instruction accompanying Question 2 advised the jury: "Actual damages, if any, in a claim for intentional infliction of emotional distress may be awarded for the past and future value of reasonable compensation for the harm from such severe emotional distress proximately caused by such intentional infliction." (emphasis added). Considering the charge in its entirety, we conclude that the trial court did not abuse its discretion in its submission of Question 2. We overrule Husband's third cross-point.
Remedy
In his first cross-point, Husband contends that in the event the JNOV is not affirmed, this Court should remand the case to the trial court for redivision of community property in light of the damage award. Wife argues that no redivision of the community estate is warranted.
Husband did not request findings of fact in support of his cross-point of error requesting redivision of community property in the divorce.[5] In a nonjury trial where findings of facts and conclusions of law are not properly requested and none are filed, it will be implied that the trial court made all the necessary findings to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam). The judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Id.; In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984) (per curiam).
The trial court has wide discretion in dividing the marital estate of the parties. TEX.FAM.CODE ANN. § 7.001 (Vernon 1998); Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985). In exercising its discretion, the trial court may consider many factors, including a disparity of incomes or of earning capacities, the spouses' capacities and abilities, benefits the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). Equality in the division is not required, and this Court indulges every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing the community estate. Id. at 698; Johnson v. Johnson, 948 S.W.2d 835, 838 (Tex.App.-San Antonio 1997, writ denied).
When a tort action is tried with the divorce, the court must avoid awarding a double recovery. Twyman, 855 S.W.2d at 625. A spouse should not be allowed to recover tort damages and a *265 disproportionate division of the community estate based on the same conduct. Id. However, the court may still award a disproportionate division of property for reasons other than the tortious conduct. Id. Moreover, recovery for personal injuries of a spouse for intentional infliction of emotional abuse, including pain and suffering, is the separate property of the injured spouse, and, therefore, is not part of the marital estate subject to division by the court. Schlueter, 975 S.W.2d at 587; Twyman, 855 S.W.2d at 625 n. 20. Such a recovery does not add to the marital estate. Twyman, 855 S.W.2d at 625 n. 20; see TEX.FAM.CODE ANN. § 3.001(3) (Vernon 1998).
In this case, the tort action was tried separately from the divorce action. In her counter-petition for divorce, Wife claimed the marriage was insupportable and that Husband was guilty of adultery, but she did not request divorce on the ground of cruelty. Wife requested a disproportionate division of the marital estate for several reasons, including but not limited to the disparity of the educational background and earning power of the spouses, non-tort-related health issues, the respective separate estates of the spouses, Husband's mismanagement of the community estate, and reimbursement for community assets wasted by Husband. Wife's request for a disproportionate division of the marital estate did not refer to Husband's alleged abuse as a basis for such relief.
Husband contends the court awarded Wife a disproportionate share of the community estate; however, he brings no point of error challenging the division of property. Husband provides no references to the record concerning the valuation of assets, nor does he direct us to evidence establishing that Wife was, in fact, awarded a disproportionate portion of the community estate, the court considered the tort claim when dividing the marital estate, or Wife would be provided a double recovery. The property division contained in the decree does not, on its face, appear to be disproportionate. Husband's cross-points do not challenge the implied finding that the trial court's division of community property is just and right, considering only reasons unrelated to Husband's tortious conduct.[6] Furthermore, the record includes evidence concerning Wife's non-tort-related claims that would support a disproportionate award of the marital estate. Husband has substantial separate property and significantly higher earning power than Wife.
We conclude that no redivision of the parties' community estate is required. Therefore, we overrule Husband's first cross-point.
SANCTIONS
In her second point of error, Wife challenges the portion of the divorce decree that orders her to pay $120,000 to Husband as sanctions. She claims the sanction does not meet the requirement of rule of civil procedure 13 or former rule 215,[7] nor does it come under the court's inherent power to sanction. During the hearing *266 on divorce property issues, Husband requested the court sanction Wife and/or her attorney for:
factually groundless pleadings that included adultery, expenditures on girl friends, financial torts, pauper's oath, and a motion to recuse;
legally groundless pleadings that included pleading of non-existent financial causes of action;
resistance to formal discovery such as failure to comply with subpoenas and deposition notices, appearing late for depositions, concealing evidence, and making evidence unavailable by instructing bank not to send statements;
violation of court orders relating to discovery and production of evidence such as orders to produce documents, property, and receipts;
violation of discovery agreements to produce bank and other financial records, documents requested for deposition, and financial records found in the home;
failure to amend pleadings after special exceptions were sustained as to financial torts, maximum amount of damages, and separate causes of action.
During the hearing, Husband questioned Wife and her attorney concerning pretrial discovery and pleading issues. In the final judgment, the court found that Wife should be sanctioned "for her misconduct during the pendency of this cause," but the final judgment did not specify what conduct the court considered sanctionable. To support the judgment, in his second cross-point, Husband relies on the trial court's inherent power to sanction Wife for bad faith conduct during litigation; in the alternative, he argues the sanction should be affirmed as attorney's fees authorized as part of the just and right division of the marital estate.
A trial court's imposition of sanctions is reviewed under an abuse of discretion standard. In re Bennett, 960 S.W.2d 35, 40 (Tex.1997); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 853 (Tex. 1992). Under an abuse of discretion standard, the appellate court reviews the entire record to determine if the trial court acted arbitrarily and unreasonably and thus abused its discretion. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 444 (Tex.1997).
First, the sanction judgment cannot be upheld under rule 13 because it does not state the particulars of the "good cause" for imposing sanctions against Wife. See TEX.R.CIV.P. 13; Barnum v. Munson, Munson, Pierce and Cardwell, P.C., 998 S.W.2d 284, 287 (Tex.App.-Dallas 1999, pet. denied) (trial court's judgment must state particulars of good cause for imposing sanctions); Gorman v. Gorman, 966 S.W.2d 858, 867-68 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (trial court must state with particularity good cause for finding that pleadings upon which sanctions are based are groundless, frivolous, and brought for purposes of harassment).
Second, the sanction judgment for alleged pretrial discovery abuse cannot be upheld under former rule 215 because Husband did not obtain a pretrial ruling on these discovery disputes. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex.1993) (failure to obtain pretrial ruling on discovery disputes that exist before commencement of trial constitutes waiver of any claim for sanctions based on that conduct).
Third, the trial court has inherent power to sanction to the extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial process, such as any significant interference with the court's administration of its core functions including *267 hearing evidence, deciding issues of fact raised by the pleadings, deciding questions of law, entering final judgment, and enforcing that judgment. Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex.App.-Houston [1st Dist.] 1994, writ denied); Shook v. Gilmore & Tatge Mfg. Co., 851 S.W.2d 887, 891 (Tex.App.-Waco 1993, writ denied); Kutch v. Del Mar Coll., 831 S.W.2d 506, 509 (Tex.App.-Corpus Christi 1992, no writ). For inherent power to apply, there must be some support in the record that the conduct complained of significantly interfered with the court's legitimate exercise of one of these functions. Williams v. Akzo Nobel Chems., Inc., 999 S.W.2d 836, 843 (Tex.App.-Tyler 1999, no pet.); Shook, 851 S.W.2d at 891; Kutch, 831 S.W.2d at 510. Here, we find no support in the record that Wife's conduct interfered with the court's exercise of any of its core functions.
Finally, Husband argues the sanction judgment should be affirmed as attorney's fees authorized in the divorce action. The trial court does not have inherent authority to award attorney's fees in a divorce action. Pletcher v. Goetz, 9 S.W.3d 442, 447-48 (Tex.App.-Fort Worth 1999, pet. denied); Chiles v. Chiles, 779 S.W.2d 127, 129 (Tex.App.-Houston [14th Dist.] 1989, writ denied), overruled on other grounds by Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993). The court is authorized to consider attorney's fees as one of many factors when making a just and right division of the marital estate. Pletcher, 9 S.W.3d at 447-48; Chiles, 779 S.W.2d at 129. When awarding attorney's fees in a divorce action, the trial court has no authority to direct one party to expend separate property funds on the other's behalf for such fees. Grossnickle v. Grossnickle, 935 S.W.2d 830, 847 (Tex.App.-Texarkana 1996, writ denied). In this case, the trial court specifically awarded attorney's fees as sanctions, and it is apparent from the judgment and the record that the trial court did not award the attorney's fees as part of the division of community property.
Under the facts of this case, we conclude that the court abused its discretion in awarding sanctions in this cause. Therefore, we sustain Wife's second point of error and overrule Husband's second cross-point.
CONCLUSION
Because we conclude the trial court erred in granting the JNOV for Husband, the evidence is factually sufficient to support the jury's finding of intentional infliction of emotional distress, there was no error in the jury charge on that cause of action, and no redivision of the parties' community estate is required under the facts of this case, we sustain Wife's first point of error and overrule Husband's first, third and fourth cross-points. Accordingly, we reverse the JNOV on Wife's claim for intentional infliction of emotional distress, reinstate the jury verdict, and remand to the trial court for entry of judgment for Wife for $325,000 as damages on her claim for intentional infliction of emotional distress and for the calculation and assessment of prejudgment and postjudgment interest on this award. See TEX.FIN.CODE ANN. §§ 304.003, .102 (Vernon Supp.2001).
Because we conclude that the court abused its discretion in awarding sanctions against Wife in this cause, we sustain Wife's second point of error and overrule Husband's second cross-point. Accordingly, we reverse that portion of the trial court's judgment and render judgment that Husband take nothing on his claim for sanctions.
*268 In all other respects, we affirm the trial court's judgment.
NOTES
[1] The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
[2] The jury was instructed not to answer questions related to the assault and battery claim if it answered "yes" to the questions related to intentional infliction of emotional distress.
[3] We construe Husband's cross-point liberally to challenge the factual sufficiency of the evidence because he requests the case be remanded in the event of reversal. See R.S. v. B.J.J., 883 S.W.2d 711, 714 (Tex.App.-Dallas 1994, no writ).
[4] Husband argues that we should apply an abuse of discretion standard of review, weighing all the evidence presented and considering the context and the relationship of the parties. Husband applies the wrong standard and scope of review. Bruce, 998 S.W.2d at 612. While we must consider the context and relationship of the parties in a claim for intentional infliction of emotional distress, when reviewing the granting of a JNOV, we must review the record in the light most favorable to the jury's finding of fact, considering only the evidence and inferences from that evidence that support the finding and rejecting the evidence and inferences that do not. See Mancorp, Inc., 802 S.W.2d at 227.
[5] When part of a cause is decided by a jury and part by the court, a party may request findings of fact and conclusions of law on the court-decided issues. See Operation Rescue-Nat'l v. Planned Parenthood of Houston & Southeast Tex., Inc., 937 S.W.2d 60, 82 (Tex. App.-Houston [14th Dist.] 1996), aff'd as modified, 975 S.W.2d 546 (Tex.1998); Shenandoah Assocs. v. J & K Properties, Inc., 741 S.W.2d 470, 484 (Tex.App.-Dallas 1987, writ denied) (op. on reh'g).
[6] Where the trial court's findings and implied findings are unchallenged by complaint on appeal, they are binding upon the appellate court unless the contrary is established as a matter of law, or if there is no evidence to support the finding. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986); Osuna v. Quintana, 993 S.W.2d 201, 208 (Tex. App.-Corpus Christi 1999, no pet.).
[7] This case was tried under former rule 215. See TEX.R.CIV. P. 215 (1990), amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999. However, the amendment to the rules of civil procedure made no substantial change to rule 215 that would affect our disposition of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579375/ | 12 So. 3d 786 (2009)
LORILLARD TOBACCO COMPANY, Appellant,
v.
Lynn FRENCH, Appellee.
No. 3D08-1525.
District Court of Appeal of Florida, Third District.
May 6, 2009.
Shook, Hardy & Bacon and William P. Geraghty; Greenberg Traurig and Elliot H. Scherker and David L. Ross and Daniel M. Samson, for appellant.
Grover & Weinstein and Marvin Weinstein, for appellee.
Before GERSTEN, C.J., and CORTIÑAS and SALTER, JJ.
SALTER, J.
Lorillard Tobacco Company appeals a final circuit court order awarding over five years of statutory prejudgment interest to the attorneys for a plaintiff, appellee Lynn French, on an award of attorney's fees and *787 costs.[1] That award was entered because the plaintiff had made a qualifying offer of judgment and proposal for settlement pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2000). Finding that plaintiff's counsel became "entitled" to the fees and costs as of the date the plaintiff obtained a judgment substantially higher than 125% of her written settlement offer, we affirm.
The Offer
The plaintiff was one of several thousand flight attendants who sued tobacco companies for second-hand exposure to smoke. On November 13, 2000, Ms. French's attorney tendered an offer of judgment to settle her claim for $2,676. Lorillard did not accept the offer.
At trial of the case in 2002, a jury awarded Ms. French $5,500,000. On September 24, 2002, the court granted a motion for remittitur and entered an amended final judgment in the amount of $500,000. Lorillard's appeal to this Court and petition for review by the Supreme Court of Florida were unsuccessful,[2] and Lorillard then paid the amended judgment.
Meanwhile, the plaintiff moved for an award of her attorney's fees and costs incurred after the offer of judgment was made, together with prejudgment interest on that amount commencing from the date of entry of the amended final judgment. Lorillard argued that prejudgment interest did not commence until the trial court entered an order disallowing Lorillard's objections to the validity of the offer of judgment and the plaintiff's good faith (or lack thereof) in making the offer.
For reasons that are not apparent from the record, the parties did not obtain a trial court order disallowing Lorillard's objections to an award of attorney's fees and costs until April 2007. Lorillard did not appeal that order, and it paid the attorney's fees and costs to plaintiff's counsel, but Lorillard reserved the right to dispute the remaining claim for prejudgment interest on the amount of those attorney's fees and costs. In March 2008, the trial court ruled that prejudgment interest began accruing upon the entry of the amended final judgment in 2002 rather than the entry of the order in 2007 overruling Lorillard's objections to an award of attorney's fees and costs. This appeal followed.
The Rule and Statute Fix the Date a Party Is "Entitled" to Fees
The Florida Supreme Court and this Court have regularly held that prejudgment interest begins to accrue on "the date the entitlement to attorney fees is fixed through agreement, arbitration award, or court determination." Butler v. Yusem, 3 So. 3d 1185 (Fla.2009) (quoting Quality Engineered Installation, Inc. v. Higley S. Inc., 670 So. 2d 929, 930-31 (Fla. 1996)); Cincinnati Equitable Ins. Co. v. Hawit, 933 So. 2d 1233 (Fla. 3d DCA 2006). The addition of prejudgment interest is appropriate because the sums of fees and costs are fixed amounts incurred at or before a certain date, the computation is simply a matter of arithmetic, and the statutory interest merely compensates a party for loss of use of the money. Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985).
Lorillard relies primarily upon Hilb, Rogal & Hamilton Co. of Fort Myers v. TB & *788 Associates, Inc., 742 So. 2d 256, 257 (Fla. 2d DCA 1997), in support of its argument that prejudgment interest does not begin to accrue until "the entry of the judgment making the determination of the entitlement to such fees." In that case, however, the accrual date used by the trial court was the date of a hearing on entitlement rather than the date the court signed the judgment (some six weeks later). The opinion acknowledges that the appellees conceded that the later date applied, and it does not appear that the appellees advanced the argument and analysis relied upon by French and the trial court in this case (i.e., that "entitlement" vests upon the occurrence of the two conditions, not upon the date of some later hearing or order).
The language in the rule and statute on settlement offers is clear that when the qualifying conditions have occurred ((1) a written offer has been made in accordance with Rule 1.442 and "an applicable Florida law", and (2) in the case of a plaintiff that is an offeror under section 768.79, the plaintiff "recovers a judgment in an amount at least 25 percent greater than the offer"), then the offeror is "entitled" to the award of attorney's fees and costs. Rule 1.442(h)(1) merely grants a trial court the discretion to disallow such an award if it determines that "a proposal was not made in good faith." The use of the word "disallow" again connotes that the entitlement vests when the qualifying conditions have occurred.
In this case, the qualifying conditions occurred in 2002. The years of further pleadings and arguments about the validity, sufficiency, or good faith of the offer and offeror did not result in any finding of "disentitlement" or "disapproval." If trial courts defer the accrual date for prejudgment interest until the date any issues pertaining to the validity or good faith of the offer are determined, that will incent the offerees/obligors to delay the day of resolution. Such a result is clearly contrary to both the spirit and the letter of the rule and the statute invoked in this case.
Affirmed.
NOTES
[1] The parties resolved the amount of attorney's fees and costs to be paid to counsel for the plaintiff; the only legal issue determined in the order appealed to this Court is the accrual date for prejudgment interest.
[2] Philip Morris, Inc. v. French, 897 So. 2d 480 (Fla. 3d DCA 2004), review denied, 918 So. 2d 292 (Fla.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545101/ | 23 F.2d 803 (1928)
CORY MANN GEORGE CORPORATION et al.
v.
OLD et al.
No. 2640.
Circuit Court of Appeals, Fourth Circuit.
January 10, 1928.
*804 *805 Edward R. Baird, Jr., of Norfolk, Va., and Ernest E. Baldwin, of New York City (Baldwin & Barns, of New York City, and Baird, White & Lanning and J. P. Jackson, all of Norfolk, Va., on the brief), for appellants.
Luther B. Way, of Norfolk, Va. (Pender, Way & Foreman, of Norfolk, Va., on the brief), for appellees.
Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.
PARKER, Circuit Judge.
This was a suit instituted by the Cory Mann George Corporation, Norton, Lilly & Co., and the Northern Coal Company, in behalf of themselves and other creditors similarly situated, against the Commercial Exchange Bank of Norfolk, its officers and directors. The purpose of the suit was to recover for funds of complainants deposited in the bank and fraudulently misappropriated by their Norfolk manager, one Arthur C. Odend'hal. It was alleged that the bank was liable for Odend'hal's misappropriations, because, through his collusion with the cashier, one Glennan, he had been allowed to draw out for his own use funds belonging to the companies which he represented. Liability of the directors was asserted on the ground of negligence in the management of the bank, and also on the ground that while the bank was insolvent they had transferred its assets to the associated banks of Norfolk and Portsmouth, under a contract providing that from these assets the associated banks should pay in full the claims of depositors as they appeared upon its books, which did not show the claims of complainants based upon the wrongful withdrawals of Odend'hal. One H. L. Page, who had formerly been a director of the bank, was later made a party to the suit, and an amendment to the bill was filed, alleging as additional ground of liability on his part that he had authorized the personal checks of Odend'hal to be charged against the account of the Northern Coal Company.
The case was referred to a special master, and on the coming in of his report a decree was entered against the bank, Odend'hal, and Glennan for $9,442.92 in favor of the Northern Coal Company, and for $57,493.61 in *806 favor of the Cory Mann George Corporation, the latter amount including the $15,000 involved in the claim of Norton, Lilly & Co., to which inclusion Norton, Lilly & Co. did not and does not object. The decree discharged the other officers and directors from the liability alleged, and from that portion of the decree the complainants have appealed; the Northern Coal Company assigning as error, also, that its recovery should have been fixed at $14,758, instead of $9,442.92. No appeal was taken by the bank, Odend'hal, or Glennan, and the correctness of the decree, in so far as it affects them, is not before us.
Odend'hal, as the Norfolk manager of the Northern Coal Company and of the Cory Mann George Corporation, had complete control of the business of each of these corporations in that city. He kept a deposit account in the name of each of them in the Commercial Exchange Bank, in which he deposited funds from time to time, and against which he drew checks. He was authorized by each of them to check against its account in the transaction of its business, and in the case of the Northern Coal Company no signature other than his was required on the check. Checks on the account of the Cory Mann George Corporation were required to be countersigned by the cashier in its Norfolk office. That corporation also required that Odend'hal furnish each month a certificate of the cashier of the bank showing the balance on deposit to its credit; but no such certificate was required by the Northern Coal Company.
The fraud on the Cory Mann George Corporation was perpetrated by charging against its account checks drawn by Odend'hal individually, and by crediting to Odend'hal's individual account checks payable to the Cory Mann George Corporation and deposited for credit on its account. The fraud was concealed by having the cashier of the bank furnish a false statement of account, showing the balance of account as it should have been and as it would have been if the fraudulent transactions had not occurred. These statements were signed by Glennan, who was acting in fraudulent collusion with Odend'hal. No one else knew anything about the fraud which was being perpetrated, except the bank's bookkeeper, who aided and assisted the cashier in perpetrating it. It was carefully concealed from the other officers and directors, none of whom even suspected it. As the fraud consisted in charging or crediting to one account checks which should have been charged or credited to another, it was not a fraud which could have been detected by examination of the bank's books, and as a matter of fact these appeared to be in perfect condition.
The fraud on the Northern Coal Company was perpetrated by charging against its account checks of Odend'hal. The false certificates as to bank balances were not obtained, as this company did not require them, but true statements of the account with canceled checks were sent to Odend'hal, who was in absolute control of the business of the company at Norfolk. As in the case of the fraud on the Cory Mann George Corporation, there is no evidence that any of the officers or directors of the bank, with the exception of Glennan, the cashier, knew of Odend'hal's fraudulent misappropriations. More than two years before these misappropriations were discovered, however, there occurred an incident upon which the Coal Company bases its contention as to the liability of H. L. Page, president of the bank at that time. A personal check of Odend'hal's came into the bank which overdrew his personal account. Page called him over the telephone and notified him of the overdraft. He protested that he had thousands of dollars on deposit in the name of the Northern Coal Company. Page replied that he could not charge his checks to the account of that company. Thereupon Odend'hal stated that he himself was the Northern Coal Company, and that any check signed in the name of the company might be charged to his account, or any check signed in his name charged to the account of the company. Odend'hal then came to the bank and gave instructions to its officials accordingly. Some time later, upon instructions from him, the two accounts were combined.
It appears that Page did not know and had no reason to suspect that Odend'hal's statement was false. Odend'hal at the time was a man of the highest standing in the community. He had absolute control of the Northern Coal Company's business in Norfolk and of its funds handled there; and the company, although doing a large business in Virginia, had not domesticated as required by statute. It required no counter signature on checks signed by Odend'hal, and when statements were sent in showing his checks charged to its account no protest was made. Glennan and the bookkeeper who were in collusion with Odend'hal saw checks which he sent to the Northern Coal Company in Boston, and which were charged to its account at the bank; but Page denies that he had any knowledge of these checks, and there is no evidence that he had such knowledge.
During the four years of the bank's existence *807 75 meetings of the directors were held. An executive committee was appointed, and loans were properly supervised. The directors regularly audited the accounts of the cashier while the transactions complained of were occurring, making two audits in 1921 and one in 1920. In addition to this, they had examinations made once a year by certified public accountants. It appears, further, that no amount of auditing or examination could have disclosed the fraud perpetrated on complainants by Odend'hal, unless their own books had been examined at the same time as were the books of the bank; for the fraudulent entries did not disturb the balance as shown by the books, nor give indication that a fraud was being perpetrated. There is no evidence of negligence on the part of the directors in the selection of the cashier or of the bookkeeper who colluded with Odend'hal, but, on the contrary, the evidence is that they were both thoroughly competent and bore excellent reputations until involved in this fraud.
In January, 1922, the directors decided to liquidate the bank because it was not making money. At that time no claims were being made against it by complainants, and it not only appears that the directors did not know of their claims, but also that they had no intention of giving a preference to any one. The bank was thought to be perfectly solvent, and it was expected that its assets would pay all creditors in full, and pay also a large dividend to stockholders. In order that the financial situation in Norfolk might not be disturbed by the liquidation of a bank at that rather critical time, the associated banks of Norfolk and Portsmouth took over its assets, under an agreement that they would pay in full the claims of all depositors as shown by its books, and that the directors would indemnify them against loss in so doing. The associated banks proceeded to liquidate the bank under this agreement, and by the latter part of May had paid in full the claims of all depositors as shown by its books.
As early as February 12, 1922, complainants had learned the facts with regard to the claims asserted in this suit. Nevertheless they took no action to establish their right to share in the distribution of the assets which had been transferred to the associated banks, but stood by and allowed these assets to be used to pay in full the claims of other creditors. Not until more than five months after learning the facts, and nearly two months after the other depositors had been paid in full, did they file suit.
Upon the facts as stated three principal questions arise for our determination: (1) Are the directors liable on the ground of negligence in the supervision of the bank for the losses sustained by complainants? (2) Are the directors liable, because of the transfer of assets under the agreement with the associated banks, for what complainants would have received on their claims, if the assets had been distributed ratably among the claims of all creditors including theirs? And (3) is the defendant Page liable by reason of his allowing the checks of Odend'hal to be charged against the Northern Coal Company's account? We shall consider these questions in the order named.
The first question has been argued as though in wrongfully drawing against the accounts of complainants Odend'hal had drawn out their funds, and that the directors were liable to complainants for allowing him to do so. It is clear, however, that the personal liability of the directors, if it existed, could not rest upon this basis. When funds of complainants were deposited with the bank on general deposit, they ceased to be funds of complainants, and became the property of the bank, and the bank thereupon became a mere debtor of complainants for the amount of the deposits. When, therefore, funds were thereafter paid out on checks which were improperly charged to the accounts of complainants, this does not mean that funds of complainants, but funds of the bank, were improperly paid out, and, so far as complainants are concerned, merely that improper charges were made against their accounts. Likewise the crediting of deposits to the wrong account did not impair the rights of the real depositor against the bank; but the paying out of funds on checks drawn against the account to which they were improperly credited was an improper diversion of the funds of the bank, and not of the depositor. The rights of the complainants to their deposits in the bank were not affected by the wrongful charges and credits, which merely concealed the wrongful diversion of the funds of the bank. Their right to recover on account of the negligence of the directors depends, therefore, upon their ability to show that their loss as depositors was due to the losses of the bank, and that these occurred through the negligence of the directors.
There is no trouble about the law applicable to this branch of the case. Directors are not insurers, nor are they technically trustees. They are agents of the corporation, charged with the supervision of its business, and, as such, bound to use that degree of care *808 which ordinarily prudent and diligent men would exercise under similar circumstances. Briggs v. Spaulding, 141 U.S. 132, 11 S. Ct. 924, 35 L. Ed. 662; Bates v. Dresser, 251 U.S. 524, 40 S. Ct. 247, 64 L. Ed. 388; Williams v. Fidelity Loan & Savings Co., 142 Va. 43, 128 S.E. 615, 45 A. L. R. 664. The rule as to their liability is well stated by Chief Justice Fuller in the case of Briggs v. Spaulding, just cited, as follows:
"The degree of care required depends upon the subject to which it is to be applied, and each case has to be determined in view of all the circumstances. They are not insurers of the fidelity of the agents whom they have appointed, who are not their agents but the agents of the corporation, and they cannot be held responsible for losses resulting from the wrongful acts or omissions of other directors or agents, unless the loss is a consequence of their own neglect of duty, either for failure to supervise the business with attention or in neglecting to use proper care in the appointment of agents. Morawetz, § 551 et seq., and cases."
Applying that rule to the facts of this case, we do not see how the loss occasioned by the wrongful payment of Odend'hal's checks, or by the wrongful crediting to him of deposits belonging to the Cory Mann George Corporation, can be said to have resulted from any negligence of the directors. It was, of course, a wrongful act on the part of the cashier to pay out the money of the bank to Odend'hal in this way; but the directors did not authorize it, and so far as we can see they did not leave undone anything which they should have done by which it might have been prevented. It is argued that they should have called in the passbooks of the customers and had them checked with the books of the bank; but, if this had been done, it is not certain, or even likely, that the fraud would have been prevented or discovered. The cashier and bookkeeper, who made false entries and certified to false statements of account, would certainly not have revealed the discrepancy between the books of the bank and the books of complainants, nor is it likely that they would have allowed the checking to be done by one who would have discovered it.
And we do not think that the directors should be held negligent and mulcted in damages for failure to adopt what in this day would be an unusual precaution, The modern practice of banks is not to check passbooks, but to send to the depositor statements of account, with his canceled checks or vouchers. The self-interest of the depositor can ordinarily be depended upon to protest against the charging of checks of other persons against his account; and we do not think that the directors were guilty of negligence because they did not foresee that what would ordinarily be a sufficient safeguard would be circumvented by the collusion between their faithless cashier and the faithless manager of complainants. As said by Judge Wallace in Warner v. Penoyer (C. C. A. 2d) 91 F. 587, 44 L. R. A. 761:
"They are not to be deemed remiss because they did not resort to exceptional methods, or because they relied on the cashier's supervision over the books and accounts, or because they reposed confidence in his reports of the amount and other clerical details of the assets and liabilities. They were under no duty to observe the extraordinary vigilance short of which a bank cannot be protected from the crimes conceived by a dishonest cashier."
In a case very similar to this, in that it involved falsification of the deposit ledger by a bookkeeper of the bank, the Supreme Court of the United States held that the directors should not be held answerable for taking the cashier's statement of liabilities to be correct, or for not calling in the passbooks of customers and comparing them with the ledger of the bank. Bates v. Dresser, 251 U.S. 524, 40 S. Ct. 247, 64 L. Ed. 388.
We have studied carefully, not only the report of the special master, but also the evidence in the case, and we are satisfied therefrom that the directors exercised reasonable care in their supervision of the bank, and that there is no evidence of failure on their part to measure up to the standard of the reasonably prudent man prescribed by the law. We are satisfied, also, that the loss which resulted from the fraudulent conduct of Odend'hal and the cashier could not reasonably have been foreseen or prevented by the directors, and therefore could not be said to have been caused by any lack of care on their part, even if there had been lack of care in other respects. In other words, the evidence does not establish negligence, nor does it show that the acts or omissions relied upon as being negligent were the proximate cause of complainants' loss.
On the second question the contention of complainants is that the directors are liable to them for what they would have received on their claims, if the assets of the bank had been distributed ratably among the creditors, instead of having been transferred to the associated banks of Norfolk and Portsmouth under a contract which provided that claims *809 of depositors as shown by the books should be paid in full. They take the position that, when their claims are counted among its liabilities, the bank was insolvent at the time of the transfer; that the transfer was made in anticipation of a dissolution of the corporation; that under such circumstances the assets constituted a trust fund for the payment of all creditors; that the transfer under the contract with the associated banks was a preference in favor of creditors whose claims were shown by the books of the bank; and that for transferring the assets so as to create such preference the directors are liable to complainants in damages.
It is perfectly clear that the directors had no idea of preferring any creditor of the bank in the contract made with the associated banks. They supposed that the obligations of the bank were correctly set forth on its books, and their sole purpose was to provide that every creditor of the bank should be paid in full. If, however, it had been intended to prefer the creditors whose claims appeared upon the books, there can be no doubt that under the law of Virginia, as it existed at that time, such a preference would have been valid. This is not a proceeding in bankruptcy, nor does it involve the question as to how a federal court will distribute assets of an insolvent corporation among its creditors in administering a receivership. The transfer of assets under the contract with the associated banks was in effect an assignment for the benefit of creditors. Cobb v. Interstate Mortgage Corp. (C. C. A. 4th) 20 F.(2d) 786; Moore v. Triplett, 96 Va. 603, 32 S.E. 50, 70 Am. St. Rep. 882; Wolf v. McGugin, 37 W. Va. 552, 16 S.E. 797; 5 C. J. 1036. And where the parties to an assignment reside and the property which is the subject-matter thereof is situate within the state where the assignment is made, there can be no doubt that the validity of preferences thereunder is governed by the law of that state. Peters v. Bain, 133 U.S. 670, 679, 10 S. Ct. 354, 33 L. Ed. 696; Barnett v. Kinney, 147 U.S. 476, 13 S. Ct. 403, 37 L. Ed. 247; South Branch Lumber Co. v. Ott, 142 U.S. 622, 12 S. Ct. 318, 35 L. Ed. 1136; Robinson & Co. v. Belt, 187 U.S. 41, 23 S. Ct. 16, 47 L. Ed. 65; Talley v. Curtain (C. C. A. 4th) 54 F. 43.
The law applicable in this case, therefore, is the law of Virginia; and it is settled that under the law of that state prior to the enactment of the statute of 1924 (title 46a of the Code of Virginia, sections 5278b-5278d) it was permissible to prefer creditors, even where the preference was given by an insolvent corporation. Planters' Bank v. Whittle, 78 Va. 737; Beck v. Semones' Adm'r, 145 Va. 429, 436, 134 S.E. 677; Peters v. Bain, supra. See, also, 2 Rawle C. L. 694, and cases cited, and 19 A. L. R. 321 et seq. And this was not affected by section 3810 of the Code; the clause relied upon by complainants being intended, not to prevent preferences, but the extinguishment of the debts of the corporation by dissolution.
Complainants argue, however, that, even though it be permissible to prefer creditors in an assignment, the rule has no application here, because the transfer of the assets of the bank was not intended to create a preference. But, of course, if the directors could not be held for damages if they had intentionally given a preference, they could not be held if the transfer resulted in a preference without their intending it. We quite agree with complainants that no preference was intended, and that the preference which has resulted in favor of the depositors whose claims were shown by the books was a thing which neither the directors nor the associated banks contemplated at the time of the transfer. But it does not follow that the directors are liable in damages for this unforeseen and unintended result. The remedy of complainants was to file a bill to surcharge and falsify their accounts as they appeared upon the books of the bank, to correct the mistake in the contract with the associated banks, and to subject the assets in the hands of the associated banks to the payment of the accounts as so corrected ratably with those of other depositors. Having stood silently by with knowledge of the facts, and allowed the contract to be carried out and the assets to be disbursed in paying in full the claims of other depositors, they are estopped now to question the validity of the contract or the propriety of the distribution of the assets thereunder. If they intended to complain of the disposition of the assets under the contract, they should have done so while there was yet time for the mistake of the directors to be corrected and a ratable distribution to be made. "If a man is silent when it is his duty to speak, he shall not be permitted to speak when it is his duty to be silent." Bispham's Principles of Equity (7th Ed.) par. 284; Morgan v. Railroad Co., 96 U.S. 716, 24 L. Ed. 743.
The third question relates to the liability of H. L. Page for permitting the checks of Odend'hal to be charged to the account of the Northern Coal Company. The same observation applies here that was made in the beginning of the discussion of the first question, *810 viz.: That the wrongful payment on the checks of Odend'hal did not dissipate the funds of the Northern Coal Company, but of the bank; and the only question is whether Page was guilty of such negligence in allowing the checks to be paid as would subject him to liability for the loss sustained by the bank or its creditors. We think that this question must be answered in the negative.
Of course, a bank has no right to charge one man's check to the account of another without the permission of the other; and it is clear that a bank should not charge the personal checks of an agent to the account of his principal without authorization of the principal. It is also clear that the fact that employees of the bank handled checks of Odend'hal which were sent to the Northern Coal Company in Boston was sufficient to put the bank as a corporation on notice that he was not the Northern Coal Company, as he contended that he was. But the question here does not turn on any of these matters, but on whether Page was guilty of negligence as an officer of the bank in trusting Odend'hal's statement and complying with his directions. We do not think that he was.
Notice to the employees of the corporation was notice to the corporation, but not to its officers and directors. Perth Amboy Gaslight Co. v. Middlesex County Bank, 60 N. J. Eq. 84, 45 A. 704, 709; Washburn v. Inter-Mountain Mining Co., 56 Or. 578, 109 P. 382, Ann. Cas. 1912C, 357; Wallace v. Lincoln Savings Bank, 89 Tenn. 630, 15 S.W. 448, 24 Am. St. Rep. 625; 4 Fletcher, Cyclopedia of Corporations, par. 2258. Page, therefore, was not charged with notice that Odend'hal had been sending checks to the Northern Coal Company in Boston. He had no knowledge of these checks, and no reason to doubt Odend'hal's statement that he was the company. Odend'hal was a man of high character and standing in the community. He had been clothed by the Northern Coal Company with apparent ownership of its business. The funds of that company were deposited in the bank by Odend'hal and drawn out by him. He was apparently the depositor, being allowed by the coal company to handle its funds without restraint, as though they were his own. When, therefore, he told Page that he was the Northern Coal Company, and that checks signed by him individually should be charged to the account of the company, the situation presented is not that of one known to be the agent of another, who directs that his checks be charged to the account of his principal, but of one who is in charge of a business which he claims to own, and who directs what checks shall be charged against its account.
A depositor can deposit funds in a trade-name, as well as in his individual name, and can authorize his individual checks to be charged against the funds deposited in the trade-name; for it is a matter of contract between the bank and the depositor as to how checks shall be signed and against what account they shall be charged. Polizzotto v. People's Bank, 125 La. 770, 51 So. 843, 30 L. R. A. (N. S.) 206; First Nat. Bank of Mishawaka v. Stapf, 165 Ind. 162, 74 N.E. 987, 112 Am. St. Rep. 214, 6 Ann. Cas. 631, and note at page 632; 3 Rawle C. L. 542; Pierson v. Union Bank, etc., Co., 181 Ky. 749, 205 S.W. 906, 2 A. L. R. 172, and note. Under the circumstances of the case, therefore, we do not think that Page was guilty of negligence in relying upon the statement of Odend'hal, or in allowing the checks to be charged as directed by him. We must view what he did in the light of the circumstances as they appeared to him at the time, and not in the light of subsequent developments; and, when so viewed, we cannot say that he failed to exercise reasonable prudence.
And we think, too, that the coal company is estopped by its own negligence in dealing with Odend'hal from relying upon the alleged negligence of Page as ground of liability. It appears that the bank sent statements of the coal company's account to its Norfolk office showing the checks of Odend'hal which had been charged against it. This went on for months and years, and no protest was made by the coal company. By intrusting its funds to Odend'hal without check or restraint, it enabled him to treat them as his own. By placing him in absolute control of its business, it enabled him to pose as the owner of that business. By failing to check his accounts properly, it enabled him to mingle its account with his own. And by failing to supervise his office, and protest when his checks were charged against its account, it enabled this practice to continue until a loss was sustained which in all probability would have been averted if timely protest had been made. Whatever might be the rights of other claimants, it does not lie in the mouth of this complainant, after failing to domesticate in Virginia and clothing Odend'hal with apparent ownership of its business and funds, to say that Page should not have trusted him or believed him when he asserted that ownership. Where one of two innocent persons must suffer by the acts of a third, he who has enabled such third *811 person to occasion the loss must sustain it.
There is one other point in the case, but it requires only brief notice. The coal company claims that the decree in its behalf should be for $14,750.80, instead of for $9,442.92. The bill of complaint alleged that certain checks amounting to $22,731 had been wrongfully charged to the account of the coal company, but that part of this sum had been repaid, leaving a balance of $17,395.22. It developed that one of the checks, in the sum of $7,962.30, was wrongfully included in the list sued on, as it was payable to the coal company, and that company had received the cash on it. The special master deducted this check from the $17,395.22, and we think that he was correct in so doing. It appears, furthermore, that the special master carefully went over the account and checks in arriving at the amount due, and his finding with respect thereto was approved by the judge in the court below. The rule is well settled that we will not disturb such a finding unless it is clearly wrong.
There was no error and the decree entered in the District Court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579385/ | 671 N.W.2d 243 (2003)
12 Neb. App. 276
CITY OF BEATRICE, Nebraska, a municipal corporation, Appellee,
v.
Daniel A. MEINTS, Sr., Appellant.
No. A-02-704.
Court of Appeals of Nebraska.
November 18, 2003.
*246 D. Kirk Wolgamott, for appellant.
Jacqueline M. Tessendorf, Beatrice City Attorney, for appellee.
HANNON and INBODY, Judges, and BUCKLEY, District Judge, Retired.
BUCKLEY, District Judge, Retired.
INTRODUCTION
Daniel A. Meints, Sr., appeals from an order of the district court for Gage County finding him in contempt of a previous court order regarding the use of his property and sentencing him to 120 days in jail. For the reasons that follow, we reverse, and remand with direction.
BACKGROUND
Meints is the owner of real estate located in a residential area of Beatrice, Nebraska. On January 24, 1994, pursuant to an action brought by the City of Beatrice (the City), the district court for Gage County entered a judgment and decree, finding that Meints had collected and placed upon his property outside of any structure thereon "substantial numbers and amounts of old automobiles and parts thereof, mowers, vacuum cleaners, bicycle parts, motorcycles and parts thereof, lumber, building materials, electrical fixtures, wheels, tires, glass containers, discarded furniture, batteries, litter, rubbish, trash and discarded materials of divers[e] kinds." The trial court found that the collection and maintenance of such items was a violation of the zoning ordinances and a public nuisance. The trial court ordered Meints to abate the ordinance violation and nuisance by removing the items from the property within 90 days from the date of the judgment. An exception was *247 made for building materials, which were to be neatly stacked. The trial court's order also enjoined Meints from using the property in the future for the collection and maintenance of such items as those ordered removed.
On December 28, 2001, the City filed an application for contempt citation alleging that Meints had willfully violated and disobeyed the court's January 24, 1994, order by using his property for the collection and maintenance of such items as those set forth in the order. The City requested that the court find Meints in willful contempt of the court's order and that he be compelled to remove the items on his property that violate the 1994 order.
Trial was held on April 12, 2002, and evidence was adduced. Following trial, the court found that Meints was in contempt as alleged in the application for contempt citation filed by the City. The court set the matter for disposition on May 10.
On May 10, 2002, the trial court sentenced Meints to 120 days in jail, but gave him the opportunity to purge himself of the finding of contempt and the sentence by placing the property in compliance as previously ordered. The trial court set a further hearing for May 24, at which time the court would determine if Meints had purged himself of the finding of contempt.
Following the hearing on May 24, 2002, the trial court found that Meints had failed to purge himself of contempt and ordered that the sentence of 120 days in jail be enforced. The execution of the sentence was stayed pending Meints' appeal.
ASSIGNMENTS OF ERROR
Meints assigns that the trial court erred in (1) finding that he willfully disobeyed the court's order, (2) finding that there was sufficient evidence to support a finding that he was in contempt and subsequently failed to purge himself of the contempt, and (3) failing to find that he had been prejudiced in this matter because of a lawsuit he had filed against the City.
STANDARD OF REVIEW
An appellate court, reviewing a final judgment or order in a contempt proceeding, reviews for errors appearing on the record. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. A trial court's factual finding in a contempt proceeding will be upheld on appeal unless the finding is clearly erroneous. Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000); Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997).
ANALYSIS
We first address the City's contention that Meints' appeal should be dismissed for lack of jurisdiction. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Davis v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003); In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002). The City contends that the present contempt action is civil in nature and that therefore, the trial court's order from which Meints appeals is not a final, appealable order.
A civil contempt is instituted to preserve and enforce the rights of private parties to a suit, to compel obedience to orders and decrees made to enforce such rights, and to administer the remedies to *248 which the court has found the parties to be entitled. McDermott v. McDermott, 8 Neb.App. 860, 602 N.W.2d 676 (1999). See Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980). A criminal contempt is prosecuted to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. State ex rel. Kandt v. North Platte Baptist Church, 225 Neb. 657, 407 N.W.2d 747 (1987); McDermott v. McDermott, supra.
In determining whether contempt orders are appealable, the Nebraska appellate courts have distinguished between civil, or coercive, sanctions and punitive sanctions. See, e.g., Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991); Michael B. v. Donna M., 11 Neb.App. 346, 652 N.W.2d 618 (2002). When a coercive sanction is imposed, the contemnor holds the keys to his or her jail cell because the sentence is conditioned upon the contemnor's continued noncompliance with the court's order. Id. An order imposing a coercive sanction in a civil contempt proceeding is always subject to modification by the contemnor's conduct and thus is not a final, appealable order. Michael B. v. Donna M., supra. See Dunning v. Tallman, 244 Neb. 1, 504 N.W.2d 85 (1993). On the other hand, a punitive contempt sanction is like a criminal sentence, because it is not subject to mitigation should the contemnor comply with the court order. A punitive contempt sanction thus is a final, appealable order. Michael B. v. Donna M., supra. See Maddux v. Maddux, supra.
In the instant case, the trial court sentenced Meints to 120 days in jail, but gave him the opportunity to purge the finding of contempt and the sentence by giving Meints 2 weeks to get his property into compliance with the January 24, 1994, order. At that point, Meints "held the keys to his jail cell" and the sanction was coercive. However, on May 24, 2002, the trial court determined that Meints had not purged himself of the contempt and it ordered that the jail sentence be enforced. As of that date, the sanction ceased to be coercive because the jail sentence was no longer subject to mitigation. See Maddux v. Maddux, supra.
"If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates, not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience."
In re Contempt of Sileven, 219 Neb. 34, 36-37, 361 N.W.2d 189, 191 (1985), quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Once the trial court ordered the sentence to be enforced, Meints no longer had an opportunity to purge himself of the contempt, and the sanction became absolute and without conditions. The imprisonment was for a definite period of time, and the trial court was no longer trying to exact compliance with the January 24, 1994, order, but, rather, it was punishing Meints for his completed act of disobedience. Thus, we conclude that the contempt sanction, as of May 24, 2002, was a punitive sanction. Therefore, the order from which Meints is appealing constitutes a final, appealable order. This disposes of the City's jurisdictional challenge.
However, the fact that the sanction was punitive does not establish the nature of the contempt proceeding for the purposes of review. The character, nature, or purpose of a contempt proceeding is determined by the procedure used in a trial to determine whether there is contempt and the sanction imposed. State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), overruled on other *249 grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999); McDermott v. McDermott, 8 Neb.App. 860, 602 N.W.2d 676 (1999). In criminal contempt proceedings where the act charged was not committed in the presence of the court, the prosecution should be in the name of the State and by information. Id. In criminal contempt proceedings, an alleged contemnor is instructed that he or she may claim his or her Fifth Amendment privilege against self-incrimination. McDermott v. McDermott, supra. See State ex rel. Reitz v. Ringer, supra.
In the present case, the contempt proceedings were conducted as a civil contempt as the City contends. The contempt proceeding was brought by the City in its capacity as a party litigant to the original civil action, not by information in the name of the State. Furthermore, the record does not show that Meints was instructed that he could claim his Fifth Amendment privilege against self-incrimination. Thus, the trial court imposed a punitive sanction in a civil contempt proceeding. A sentence in a prosecution for contempt, except that committed in open court, which is wholly punitive, may properly be imposed only in proceedings instituted and tried as for criminal contempt. In re Contempt of Sileven, supra. A criminal sanction is invalid if imposed in a proceeding that is instituted and tried as a civil contempt. Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991); In re Contempt of Sileven, supra. See, State ex rel. Reitz v. Ringer, supra; McDermott v. McDermott, supra. Thus, we conclude that the trial court committed plain error when it improperly imposed a punitive sanction, rather than a coercive sanction, in a civil contempt proceeding. An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Holt Cty. Sch. Dist. No. 0025 v. Dixon, 8 Neb.App. 390, 594 N.W.2d 659 (1999); Arcadian Fertilizer v. Sarpy Cty. Bd. of Equal., 7 Neb.App. 499, 583 N.W.2d 353 (1998).
The usual procedure on appeal in cases where the trial court has imposed an invalid punitive sanction in a civil contempt proceeding is to reverse the citation for contempt and remand the cause to the trial court in order that a proper civil penalty can be imposed or in order that a criminal proceeding can be conducted. State ex rel. Reitz v. Ringer, supra; McDermott v. McDermott, supra. Accordingly, we hereby reverse the judgment of the trial court and remand the contempt proceeding with direction to the trial court to impose a coercive sanction. Since we are remanding the cause for imposition of a proper coercive sanction, the contempt proceeding here resumes its character as a civil proceeding. See Maddux v. Maddux, supra. As previously stated, a coercive sanction is not a final order from which a contemnor can appeal. As a result, we need not address Meints' assignments of error.
CONCLUSION
We conclude that the trial court committed plain error when it improperly imposed a punitive sanction in a civil contempt proceeding. Therefore, we reverse the judgment of the trial court and remand the contempt proceeding with direction to the trial court to impose a coercive sanction.
REVERSED AND REMANDED WITH DIRECTION. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579390/ | 671 N.W.2d 602 (2003)
In re the Marriage of Gail P. BENDER, f/k/a Gail Papermaster, Petitioner, Respondent,
v.
Alan Paul Bender, Appellant.
No. C1-03-172.
Court of Appeals of Minnesota.
November 25, 2003.
*604 Jane Binder, Christine Howard, Binder Law Offices, P.A., Minneapolis, MN, for respondent.
Michael L. Perlman, Perlman Law Office, Minnetonka, MN, for appellant.
Considered and decided by HUDSON, Presiding Judge; RANDALL, Judge; and HALBROOKS, Judge.
OPINION
HUDSON, Judge.
This is an appeal from a dissolution judgment. Appellant Alan Bender claims that the district court erred by (1) adjusting the valuation dates for three investment accounts awarded to respondent Gail Bender, while refusing to adjust the valuation dates for any of the retirement accounts awarded to him; (2) failing to find that respondent used marital assets to pay her attorney fees and to adjust the property division accordingly; and (3) not calculating child support in accordance with the Hortis/Valento formula. We affirm the district court's decisions regarding the valuation date of the investment accounts and decline to address the question of attorney fees. We reverse on the issue of child support and remand for the district court to readdress that question.
FACTS
The parties married in 1970 and divorced in 2002. The parties have three adult children and one 13-year-old child, H.B. Respondent is self-employed as an oncologist, and the district court found respondent's annual income to be $147,500. Appellant is an epidemiologist with the State of Minnesota and his gross annual salary is $98,134. The parties have various assets including retirement accounts, investment accounts, and a homestead. Appellant argues that the parties stipulated to valuing all of the accounts to be awarded to respondent as of December 31, 2000. But the district court found that because of the subsequent downturn in the market, it was unfair not to "update" the values of the certain investment accounts. The property distribution ultimately awarded each party $1,169,449, including a requirement that respondent pay appellant $260,943 to effectuate the distribution. The district court did not award either party attorney fees.
Regarding custody, the parties entered a parenting plan pursuant to Minn.Stat. § 518.1705 (2000). The plan did not label their custody arrangement. The district court identified the custodial arrangement as joint legal and physical custody. The district court reserved child support and ordered that each party pay for H.B.'s expenses when H.B. was in his or her care. Additionally, the district court ordered respondent to pay for H.B.'s clothing expenses and appellant to pay for extracurricular and sports-related expenses. The district court found that because the parties spend roughly equal time with H.B. and because there was no designated child-support "obligor," neither party needed to pay child support. Further, the district court concluded that calculating child support using the Hortis/Valento formula *605 would have produced only a nominal amount of child support. Finally, the district court found that this child-support arrangement was appropriate because "it is important for [H.B.] to understand that both of his parents are contributing directly toward his care and support."
While appellant filed a notice of appeal, he did not order a transcript, stating that the transcript would cost about $10,000. Respondent unsuccessfully moved the district court for an order compelling appellant to order a transcript. Respondent then filed a motion with this court to dismiss the appeal because of the lack of a transcript. This court issued an order declining to dismiss the appeal at that time, but deferring a final ruling on the motion to dismiss to the panel considering the merits of the appeal.
ISSUES
I. Can this court decide this case without a trial transcript?
II. Do the district court's findings support its adjustment of the values of the accounts awarded to respondent?
III. Should this court address appellant's allegation that the district court failed to find that respondent used marital assets to pay her attorney fees?
IV. Do the district court's findings support its child-support determination?
ANALYSIS
I
We first address whether to dismiss some or all of the appeal because the lack of a transcript precludes us from reviewing some or all of the issues that appellant raises.
On appeal, the duty to provide a transcript is on the party seeking review of the rulings being challenged. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App.1995) (citing Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968)). While the lack of a transcript does not automatically require dismissal of an entire appeal, lack of a transcript does limit the scope of appellate review to whether the district court's conclusions of law are supported by its findings of fact. See Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970) (addressing limited scope of review); Mesenbourg, 538 N.W.2d at 494 (reviewing issues within limited scope of review despite lack of transcript). Because we can review aspects of the issues raised by appellant even without a transcript, the appeal need not be dismissed, and we deny respondent's motion.
II
Appellant argues that the parties agreed to value all of the assets as of December 31, 2000, and that it was unfair for the district court to use a more current valuation dateMarch 31, 2001with respect to certain accounts awarded to respondent, without similarly adjusting the valuation date for accounts awarded to appellant. On this limited record and in light of our limited scope of review, we affirm the district court's lack of a symmetrical adjustment in the valuations of the accounts awarded to the parties for four reasons. First, Minn.Stat. § 518.58, subd. 1 (2002), provides the district court with the discretion to adjust both valuations and valuation dates for individual assets:
The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes *606 specific findings that another date of valuation is fair and equitable. If there is a substantial change in value of an asset between the date of valuation and the final distribution, the court may adjust the valuation of that asset as necessary to effect an equitable distribution.
(Emphasis added.) Here the district court found that, due to market forces, the value of the accounts awarded to respondent decreased by $31,331 between December 31, 2000, and March 31, 2001. Thus, the district court functionally found both that a substantial change in the value of the accounts awarded to respondent occurred between the stipulated December 31, 2000 valuation date and the distribution date and that another valuation date (March 31, 2001) was fair and equitable. Thus, the district court's findings support the exercise of its statutory power to adjust the valuation date for, and the values of, the accounts awarded to respondent.
Second, at oral argument before this court, appellant's counsel candidly acknowledged that the district court had the discretion to adjust the valuation of the accounts as necessary to effect an equitable distribution. We note and appreciate the candor displayed by counsel on this point.
Third, to the extent appellant argues that the district court erred when it failed to make a similar adjustment to the accounts awarded to appellant, he fails to recognize that there were no findings that the accounts awarded to appellant suffered a similar decrease in value that would support an alteration of their valuations or their valuation date. Absent such findings, any adjustment to the valuation of, or valuation date for, those accounts would have been unsupported by the findings.
Finally, we note that, after reviewing evidentiary submissions from both parties, the district court used different valuation dates for different assets and that the district court's findings support both its individual determinations regarding the assets valued, as well as its overall determination that the property distribution was, in the aggregate, equitable. See Minn.Stat. § 518.58, subd. 1 (requiring property distribution to be equitable). Because, on this record, the district court's findings support its treatment of the valuation issues, we reject appellant's challenges to the valuation of the accounts awarded to the parties.
III
Next, appellant contends that the district court inadvertently awarded respondent attorney fees by failing to find that respondent paid her attorney fees with marital assets and adjusting the property division accordingly.
Appellant is raising this issue for the first time on appeal. This court will generally not consider matters not argued and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating appellate courts do not address issues or theories not raised in the district court). Because appellant did not raise the attorney fees issue to the district court, we do not address it here on appeal.
IV
Finally we address appellant's contention that the district court erred when it did not calculate child support in accordance with the Hortis/Valento child-support formula.
"Parents creating a parenting plan are subject to the requirements of the child support guidelines under section 518.551." Minn.Stat. 518.1705, subd. 8(a) (2002). The guidelines of Minn.Stat. 518.551 create a presumption that a child-support "obligor" will pay child support at the *607 guidelines amount, unless the district court makes the findings sustaining the setting of support at an amount that deviates from the guidelines amount. Minn. Stat. 518.551, subd. 5(i) (2002). For purposes of Minn.Stat. 518.551, "obligor" is defined as "a person obligated to pay ... support" and includes the caveat that "[a] person who is designated as the sole physical custodian of a child is presumed not to be an obligor for purposes of calculating current support under section 518.551 unless the court makes specific written findings to overcome this presumption." Minn.Stat. 518.54, subds. 1, 8 (2002). Thus, while the guidelines create a presumption regarding the correct amount of child support to be paid by the support obligor, the negative implication of the caveat in the definition of "obligor," as well as an extensive body of case law, functionally recognizes additional presumptions that it is the noncustodial parent who is the child-support obligor and that the obligor pays support (directly or indirectly) to the custodial parent. See generally, 1 Minnesota Family Law Practice Manual 7.01, at 7-5 (Cathy E. Gorlin ed., LexisNexis 3d ed.2001) (stating, generally, noncustodial parent pays support to custodial parent); cf. Minn.Stat. 518.551, subd. 5(a) (stating district court "may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the child's support").
"Parents voluntarily agreeing to parenting plans may substitute other terms for physical and legal custody, including designations of joint or sole custody, provided that the terms used in the substitution are defined in the parenting plan." Minn.Stat. 518.1705, subd. 2(c) (2002) (emphasis added). "`May' is permissive." Minn.Stat. 645.44, subd. 15 (2002). Thus, parenting plans need not include the traditional designations of "custodial parent" and "non-custodial parent," which trigger the presumptions regulating application of the child-support guidelines. Implicitly recognizing this possibility, the parenting-plan statute states that "[p]arents may include in the parenting plan an allocation of expenses for the child" and that such an allocation of the child's expenses "is an enforceable contract between the parents." Minn.Stat. 518.1705, subd. 8(b) (2002) (emphasis added). Because child-support provisions and traditional custodial designation(s) are both optional in parenting plans, it is possible for a parenting plan to omit either or both of those provisions. If either or both provisions are omitted from a parenting plan, the district court must address the question in the traditional manner. See Minn.Stat. 518.1705, subd. 4 (2002) (stating final judgment including alternate terms to designate child-related decision-making responsibilities "must" identify the custodial arrangement using traditional designations); Minn.Stat. 518.17, subd. 3(a)(3) (2002) (requiring dissolution judgment to address support); Minn.Stat. 518.57, subd. 1 (2002) (same). This requirement is consistent with the parallel requirement in non-parenting-plan cases that custody awards be labeled with a traditional custodial custody designation. See Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn.App.2002) (noting, in a case that did not involve a parenting plan, that "when a district court awards physical custody, whether based on a stipulation of the parties or not, it must also identify whether the physical-custody award is for sole or joint physical custody").
When a district court imposes traditional custodial designations on a parenting plan that does not include traditional designations, the court-imposed traditional designation "is solely for enforcement of the final judgment and decree where this designation is required for that enforcement and has no effect under the laws of this state, any other state, or another *608 country that do not require this designation." Minn.Stat. 518.1705, subd. 4. As noted above, the presumptions regulating the identification of a child-support obligor as well as the setting of the amount of child support are based on the traditional custodial designations. Therefore, if a parenting plan omits both use of the traditional custodial designations and a stipulated child-support arrangement, the creation and enforcement of a child-support obligation requires the invocation of the court-imposed traditional custodial designations. Alternatively stated: If a parenting plan omits both use of traditional custodial designations and a child-support stipulation, the statutorily required, court-imposed traditional custodial designations are binding for child-support purposes.
Here, the parenting plan proposed by the parties omitted use of the traditional custodial designations and lacked a child-support stipulation, and the district court, consistent with its duty under Minn. Stat. 518.1705, subd. 4, designated the parties "joint legal and physical custodians." Thus, because "[p]arents creating a parenting plan are subject to the requirements of the child support guidelines" and because "[a]pplication of the Hortis/Valento formula to cases of joint physical custody is an application of the guidelines[,]" the presumptively correct child-support calculation here was that set out by the Hortis/Valento formula. Minn.Stat. 518.1705, subd. 8(a); Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn.App.2001). Under that formula, separate support obligations are set for each parent, but only for the periods of time that the other parent has physical custody of the children, and a single net payment is determined by offsetting the two obligations against each other. Schlichting, 632 N.W.2d at 792. Thus, "the presumptively correct, guideline child-support amount for parents with joint physical custody is the amount calculated under Minn.Stat. 518.551, subd. 5(b), for each parent, less the amount offset by the Hortis/Valento formula. Any deviation from that amount requires the statutory findings [necessary to support a deviation under Minn.Stat. 518.551, subd. 5(c), (i).]" Id. at 793.
Here, not only was the Hortis/Valento formula not used to actually set support, but also there was no calculation of the parties' obligations under that formula. The court's findings for deviating from the presumptively correct support application of the Hortis/Valento formula consisted of a single sentence stating that its deviation would allow the minor child to know each parent was contributing to his support. This finding alone is insufficient to support deviating from guidelines child support. Among other things, absent a calculation of the parties' obligations under the Hortis/Valento formula, the support obligation from which the district court is deviating is not known. Therefore, the district court's findings do not support its child-support determination, and we reverse the district court's reservation of child support and remand for the district court to calculate the parties' child-support obligations in accordance with the Hortis/Valento formula. Should the district court determine that a deviation is still appropriate, it shall make sufficient written findings outlining the reasons for the deviation and addressing the criteria in Minn.Stat. 518.551, subd. 5(c), (i).
DECISION
Because the lack of a transcript does not preclude review of the issues addressed here, we deny respondent's motion to dismiss the appeal. Also, because the district court's findings support its decision to use a more current valuation date for the investment accounts awarded to respondent to ensure an equitable division of property, we affirm the district court's decision on this issue. We further hold that when parties stipulate to a physical-custody arrangement *609 pursuant to Minn.Stat. 518.1705 (2002), but fail to make a traditional custody designation of joint or sole physical custody, the district court's designation of the custody arrangement as sole or joint physical custody is binding for child-support purposes and that when that designation is one of "joint physical custody," the district court must set support under the Hortis/Valento formula or make findings explaining why it is not doing so. Because the district court found the parties' custody arrangement to be one of joint physical custody but failed to make findings supporting its refusal to set support at the guidelines amount, the district court's findings do not support its support determination and we reverse the district court's decision to reserve child support and remand for the district court to readdress the support question with or without a reopening of the record, in the district court's discretion.
Affirmed in part, reversed in part, and remanded; motion denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579394/ | 12 So. 3d 234 (2009)
BOWEN
v.
STATE.
No. 4D09-1601.
District Court of Appeal of Florida, Fourth District.
July 20, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579432/ | 12 So.3d 1154 (2009)
Denise A. CUEVAS, Appellant
v.
Margaret K. KELLUM, Appellee.
No. 2007-CA-01590-COA.
Court of Appeals of Mississippi.
June 30, 2009.
*1155 Christopher E. Fitzgerald, Ocean Springs, Attorney for Appellant.
Earl L. Denham, Ocean Springs, and Henry P. Pate, Attorneys for Appellee.
Before LEE, P.J., GRIFFIS and CARLTON, JJ.
GRIFFIS, J., for the Court.
¶ 1. Denise Cuevas appeals the chancellor's decision to forgo a formal accounting and trial in the dissolution of her partnership with Margaret Kellum. Cuevas alleges that: (1) the chancellor denied her the right to a trial on the merits of the claims asserted in her complaint, and (2) the adoption of the special master's report was manifestly wrong.
FACTS
¶ 2. On September 8, 1999, Cuevas and Kellum entered into a partnership agreement with the purpose of operating an elderly-care facility, Settler's Point Assisted Living. Kellum submitted the general *1156 partnership agreement signed by both parties to the chancellor. The partnership owned Settler's Point and other real property located in Jackson County, Mississippi. On October 23, 2003, Kellum informed Cuevas that she intended to dissolve the partnership, and from that time on, Cuevas alleges that Kellum denied her access to the financial records of the business.
¶ 3. On October 27, 2003, Cuevas filed a compliant that requested injunctive relief and alleged that Kellum: (1) breached the partnership, (2) breached her fiduciary duties, and (3) tortiously breached the partnership agreement warranting punitive damages. Cuevas also demanded a full and complete accounting of all accounts billed and monies received and paid out starting on October 1, 2003, to present.
¶ 4. By agreed order, the chancellor, on May 4, 2004, appointed Haidee Oppie Sheffield as the special master with instructions to determine: (1) the capital contributions from each party to the business; (2) the personal-related withdrawals from the business; (3) the ownership interest of each party in the business as of the date of the filing of this litigation; and (4) the ownership interest of each party in the real property as of the date of the filing of this litigation. The chancellor also stated that the trial would be reset following the special master's report.
¶ 5. On March 28, 2005, the special master made her findings, and no timely objections were made to her findings. On April 19, 2005, Cuevas filed a motion to allow out-of-time objections to the special master's report, which was denied. On February 10, 2006, the chancellor adopted the special master's findings. The trial was set and continued numerous times.
¶ 6. On May 25, 2007, the chancellor heard motions to compel at which time she stated, "I thought this case was over. What's left?" Cuevas's attorney explained to the chancellor that: (1) there had never been a formal accounting; (2) documents were recently produced; (3) depositions had been set; (4) the partnership was never dissolved; and (5) trial on the remaining issues was set for June.
¶ 7. On July 17, 2007, the chancellor entered an order nunc pro tunc to the special master's findings and gave the parties thirty days to agree to an implementation of the special master's report dividing the partnership's assets, and if they could not agree, then the order allowed for the appointment of a special commissioner.
STANDARD OF REVIEW
¶ 8. "The findings of a chancellor will not be disturbed when supported by substantial evidence unless there was manifest error or a[n] improper legal standard was applied." In re Estate of Temple, 780 So.2d 639, 642(¶ 15) (Miss.2001) (citation omitted). However, an appellate court conducts a de novo review on any question of law. In re Admin. of the Estate of Abernathy, 778 So.2d 123, 127(¶ 13) (Miss. 2001) (citation omitted).
ANALYSIS
1. Did the chancellor deny Cuevas the right to a trial on the merits of claims asserted in her complaint?
¶ 9. Cuevas claims that the special master's report does not negate the need for a trial on the merits of her complaint. For the first time, Kellum argues that the chancery court had no jurisdiction to hear Cuevas's complaint on the merits.
¶ 10. First, we address whether all of Cuevas's claims were resolved by the special master. In her complaint, Cuevas alleged that Kellum: (1) breached the partnership, (2) breached her fiduciary duties, *1157 and (3) tortiously breached the partnership agreement warranting punitive damages.
¶ 11. A special master was appointed by the chancellor pursuant to Mississippi Rule of Civil Procedure 53 to aid in the resolution of this case. The supreme court has stated that under Rule 53(d):
The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearing and for the filing of the master's report.
(Emphasis added). See also Massey v. Massey, 475 So.2d 802, 805 (Miss.1985). Here, the chancellor limited the special master to a determination of (1) the capital contributions to the partnership by each party; (2) the value of personal-related withdrawals from the partnership; (3) the ownership interest of each party in the partnership as of October 27, 2003; and (4) the ownership interest of each party in three parcels of real estate.
¶ 12. The special master's authority was limited to the assignment given to her by the chancellor. The chancellor's specific delegation to the special master did not instruct her to address the merits of Cuevas's claims nor did she address Cuevas's claims for breach of partnership, breach of fiduciary duties, and tortious breach of the partnership agreement. All of Cuevas's claims were not resolved by the special master's report.
¶ 13. Next, we turn to the issue of a trial. The special master was appointed on May 4, 2004, and submitted her report on March 28, 2005. The findings were adopted by the chancellor on February 10, 2006, and for the first time on May 25, 2007, the chancellor opined that no trial was necessary. In the order appointing the special master, the chancellor specifically stated that the trial would be reset following the special master's report. Furthermore, in the two years following the special master's report, numerous references were made by the chancellor and Kellum's counsel to the impending trial.
¶ 14. Kellum argues that the chancellor's order should be affirmed because the chancery court lacked the jurisdiction to address Cuevas's claims for damages for breach of fiduciary duty, breach of the partnership agreement, and tortious breach of the partnership agreement, which are claims at law and subject to a jury trial. Cuevas claims that the chancery court has pendent jurisdiction over her claims. "Jurisdiction is a question of law which [the appellate court] reviews de novo." Issaquena Warren Counties Land Co., LLC v. Warren County, 996 So.2d 747, 749(¶ 5) (Miss.2008) (citation omitted).
¶ 15. "To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought." RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So.2d 926, 928(¶ 11) (Miss.2007) (citations omitted). "The dissolution of a partnership requires the settling of accounts. A Mississippi chancery court holds the authority to hear a case for an accounting." Crowe v. Smith, 603 So.2d 301, 307 (Miss.1992) (internal citation omitted). The supreme court "has stated, where there appears from the face of the well-pleaded complaint an independent basis for equity jurisdiction, our chancery courts may hear and adjudge law claims." Issaquena Warren Counties Land Co., LLC, 996 So.2d at 751(¶ 10). "In such circumstances, the legal claims lie within the pendent jurisdiction of the chancery court." Id. Cuevas's *1158 claims for dissolution of the partnership were properly brought in a court of equity; therefore, the other claims asserted fall within the chancery court's pendent jurisdiction. The chancellor did not consider the claims for breach of fiduciary duty or the tortious breach of the partnership agreement warranting punitive damages; therefore, we reverse the judgment of the chancellor. On remand, the chancellor should permit a hearing to allow evidence to be presented on the remaining claims.
2. Was the chancellor's adoption of the special master's report manifestly wrong?
¶ 16. Cuevas argues the adoption of the special master's report was manifestly wrong due to a lack of formal accounting. Kellum argues that Cuevas is not entitled to a formal accounting because the special master's report is sufficient.
¶ 17. Cuevas claims that a partner has an absolute right to a formal accounting in the event of the dissolution of a partnership under Mississippi Code Annotated section 79-12-43 (Repealed Jan. 1, 2007). That statute was repealed effective January 1, 2007. "The effect of a repealing statute is to abrogate the repealed statute as completely as if it had never been passed ... unless the repealing or modifying statute contains a saving clause." City of Belmont v. Miss. State Tax Comm'n, 860 So.2d 289, 303(¶ 28) (Miss.2003). The Uniform Partnership Act which repealed sections 79-12-1 through XX-XX-XXX provides a savings clause. Mississippi Code Annotated section 79-13-1206 (Supp.2008) states that "[t]his chapter does not affect an action or proceeding commenced or right accrued before this chapter takes effect."
¶ 18. Cuevas filed her complaint on October 27, 2003, well before section 79-12-43 was repealed by Chapter 13, the Uniform Partnership Act, on January 1, 2007. Section 79-12-43 states that "any partner shall have the right to a formal account as to partnership affairs: (a) [i]f he is wrongfully excluded from the partnership business or possession of its property by his copartners." Miss.Code Ann. § 79-12-43(1)(a) (Rev.2001). In her initial complaint, Cuevas argued that she had been wrongly excluded from the partnership because Kellum removed her from the bank accounts, barred her from the premises, and refused to allow her access to the financial affairs of the business.
¶ 19. Cuevas has a statutory right to a formal account of the partnership's finances under section 79-12-43. However, it is unclear what constitutes a formal account of a partnership because there is no Mississippi case law addressing the issue. Therefore, we look to other areas of the law where a formal account is required for guidance. Under estate law, an executor has a duty, at least once a year, to "present under oath an account of his administration, showing the disbursements, every item of which and the amount thereof to be distinctly stated and supported by legal voucher, and it shall also show the receipts of money and from what sources." Miss.Code Ann. § 91-7-277 (Rev.2004). A formal account of a partnership as in an estate should contain, at minimum, the partnership's disbursements and receipts of money.[1] It is undisputed that the dissolution *1159 proceedings did not report the partnership's receipt of income.
¶ 20. In her brief, Kellum acknowledges that Cuevas had a right to a formal account at Cuevas's expense. However, Kellum cites no authority that requires Cuevas the ousted partner to bare the expense of the accounting. Kellum admits the chancellor did not direct the special master to render a formal account, and that the special master did not require her to produce a monthly accounting for the period that she ran Settler's Point without Cuevas. However, Kellum claims that a formal accounting means nothing more than an adjusting of the equities of the parties, and that the chancellor's judgment should be affirmed because the chancellor adjusted the equities of the parties. Barry v. Mattocks, 156 Miss. 424, 432-33, 125 So. 554, 556 (1930). We find no support for this proposition in Barry. It is undisputed by Cuevas, Kellum, and the special master that a formal accounting was not conducted.
¶ 21. Cuevas is entitled to a formal accounting, but the need for a formal accounting does not invalidate the special master's report. As we have said, the special master was given four specific tasks, which did not include conducting a formal accounting. The special master was diligent and reasoned in her determination of the specific findings. Cuevas waived her objections to the findings when she failed to timely object within ten days as required under Mississippi Rules of Civil Procedure 53(g)(2). Cuevas has given this Court no reason to reject the findings of the special master. The chancellor did not err by adopting the special master's report, but the chancellor did err in refusing to order a formal accounting and to allocate those costs. Accordingly, we find that the chancellor should order a formal accounting on remand.
¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.
NOTES
[1] Unlike an estate, however, a partnership is a business organization that typically accounts for its operations on an annual basis. The account for operations can be accomplished by using a computer accounting software program that prepares, or has the functions to prepare, a trial balance, income statement, balance sheet, statement of cash flow, or other accounting statements that are used in the business. We recognize that not every business organization follows generally accepted accounting principles or uses a Certified Public Accountant to prepare its accounting records. However, every business organization must account for its operations, if for no other reason than to prepare and file the required tax returns. Indeed, there is no statutorily required specific form that must be used for an "accounting." Indeed, an accounting may be as simple as a list of receipts and disbursements or as complex as an audited financial statement. However, the accounting must show the results of operations either through income that remains in the organization, liabilities of the organization, or equity balances of the owners. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579457/ | 671 N.W.2d 765 (2003)
267 Neb. 57
STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, Relator,
v.
Stuart B. MILLS, Respondent.
No. S-02-1085.
Supreme Court of Nebraska.
December 5, 2003.
*768 Kent L. Frobish, Assistant Counsel for Discipline, for relator.
Robert F. Bartle, of Bartle & Geier Law Firm, Lincoln, for respondent.
HENDRY, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
PER CURIAM.
INTRODUCTION
The office of the Counsel for Discipline of the Nebraska Supreme Court filed amended formal charges against respondent, Stuart B. Mills. After a formal hearing, the referee concluded that Mills had violated the Code of Professional Responsibility and recommended that Mills be suspended from the practice of law for a period of 5 months. Both the Counsel for Discipline and Mills filed exceptions to the referee's recommended sanction.
FACTUAL BACKGROUND
Mills was admitted to the practice of law in the State of Nebraska on January 22, 1973. The charges in this case arise from Mills' representation of Cheryl Borgelt, personal representative of the estate of David Borgelt. David died intestate in Cuming County, Nebraska, on July 28, 1998, and was survived by his wife, Cheryl, five adult children, and several grandchildren. Following David's death, Cheryl retained Mills to assist her in the estate proceedings. Mills testified that the Borgelt estate was the largest he had ever handled.
Due to David's intestacy, as well as the size of the estate, consideration was given as to the best method to minimize or defer estate taxes. The method chosen was renunciation, wherein the Borgelts' adult children would renounce any claim they had to the Borgelt estate so that the property could pass directly to Cheryl. It was further determined that when necessary, the Borgelts' adult children would renounce on behalf of their minor children. Mills testified that he had never handled an estate in which a renunciation or disclaimer was used. Although Mills states that he "did not necessarily agree that the renunciation process would necessarily be in the best interest of the client," brief for respondent at 3, Mills ultimately advised Cheryl to proceed with renunciation.
Prior to retaining Mills, the record discloses that Cheryl met with another attorney regarding the feasibility of a renunciation plan. That attorney informed Cheryl that the Borgelts' children could not unilaterally renounce on behalf of their minor children. The record further shows that Mills was aware of that attorney's opinion at the time he undertook his representation of Cheryl and the estate.
Before recommending that the adult children renounce not only their interests in the estate but also that of their minor children, Mills contacted an attorney employed in the estate tax division of the Internal Revenue Service (IRS) with whom Mills had "developed a working relationship, long-standing in nature." Brief for respondent at 3. Mills' purpose in contacting the attorney was to ascertain *769 whether renunciation would be permissible in the circumstances of the Borgelt estate. The attorney told Mills that he believed renunciation would be permissible. This discussion was not confirmed in writing, and Mills did no further research on the issue. Mills acknowledged in his testimony before the referee that he should not have relied on the attorney's belief. It was later determined that under the circumstances presented, the Borgelts' adult children could not renounce their respective minor children's interest without court approval.
The renunciations prepared by Mills required that the signatures of those executing the renunciations be notarized. Since several of the Borgelt children lived outside the Cuming County area, their renunciations were sent by mail. Mills requested those children living outside the area to sign and return the renunciations to him, at which time he would notarize the signatures. Upon receipt, Mills notarized the renunciations despite the fact that he had not witnessed the children's signing the documents.
In addition to notarizing the documents in this manner, Mills directed his secretary to alter the dates on which the Borgelt children had actually signed the renunciations so that they were uniformly dated March 25, 1999, which the secretary accomplished by using "white out." Mills also notarized several warranty deeds signed by the Borgelt children, again without witnessing their signatures. To those deeds, Mills affixed a date of April 8, 1999, although that was not the date on which the deeds were signed.
Mills believed all of these steps were required to be completed within 9 months of David's death. The record indicates, however, that both the renunciations and the deeds were actually circulating amongst the Borgelt family in May 1999, which was beyond the 9-month postdeath time limitation of April 28, 1999.
At the hearing before the referee, Mills testified that he mistakenly believed it was sufficient that the renunciations simply be signed within 9 months of David's death, and that filing within that time period was not required. See, generally, Neb.Rev. Stat. § 30-2352(b) (Reissue 1995). Federal estate tax return form 706 (Form 706) was completed and filed on March 25, 1999. The renunciations were filed with the county court for Cuming County on June 30, 1999, and the deeds were filed with the register of deeds of Cuming County on that same date.
In reviewing copies of the renunciations, Michele Moser, the IRS attorney assigned to examine the tax return, "noted that the renunciations were not timely filed." In addition, Moser believed there were indications suggesting the renunciations were not properly dated. Moser then traveled to Cuming County to examine the original renunciations. Upon examination, Moser observed that most of the renunciations contained two dates, a typewritten date over the "white out" and a handwritten date under the "white out."
When Moser contacted Mills concerning these discrepancies, Mills was not truthful about the date the renunciations were signed or in whose presence the renunciations were acknowledged. Mills also told Moser he did not know why "white out" had been used on the renunciations, claiming it must have been done by his secretary for appearance purposes. Mills further told Moser that the renunciations were received by the personal representative prior to March 25, 1999, the date Form 706 was filed.
After Mills had been contacted by Moser, Mills wrote a letter to Cheryl dated June 2, 2000, which stated in part, "I left a *770 message on your answering machine this morning. It is critical that in the event [Moser] calls any of your children that they tell her they were in Wisner on March 25, 1999 and signed the renunciation (disclaimer) in my presence."
Eventually, Mills admitted his wrongdoing and a new attorney was retained by Cheryl to represent the Borgelt estate. The record indicates that during the IRS investigation of the circumstances surrounding the filing of Form 706, neither Cheryl nor her children provided any false or inaccurate information to the IRS and, further, that no family member was the focus of any criminal investigation. The record further indicates that Cheryl and the estate suffered a financial loss due to Mills' actions. Also, at the time of Mills' hearing, the potential existed for additional IRS penalties resulting from these events.
Amended formal charges were filed against Mills in this court, alleging he violated the following provisions of the Code of Professional Responsibility:
DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
....
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice....
(6) Engage in any other conduct that adversely reflects on his or her fitness to practice law.
....
DR 6-101 Failing to Act Competently.
(A) A lawyer shall not:
(1) Handle a legal matter which the lawyer knows or should know that he or she is not competent to handle, without associating with a lawyer who is competent to handle it.
(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him or her.
....
DR 7-102 Representing a Client Within the Bounds of the Law.
(A) In his or her representation of a client, a lawyer shall not:
....
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false.
(7) Counsel or assist a client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
It was further alleged that Mills' conduct violated Neb.Rev.Stat. § 76-218 (Reissue 1996) (violation of notary's duty).
REFEREE'S FINDINGS
A referee was appointed to conduct a hearing in this matter. In a report filed February 21, 2003, the referee found there was clear and convincing evidence that Mills had violated Canon 1, DR 1-102(A)(1) and (3) through (6); Canon 6, DR 6-101(A)(1) and (2); and Canon 7, DR 7-102(A)(4) through (8); as well as § 76-218. The referee found there was not clear and convincing evidence as to any violation of DR 6-101(A)(3). The referee *771 recommended a suspension of 5 months, noting that
[t]he nature of the offense is extremely serious; the need for deterring others is evident; the maintenance of the Bar's reputation and protection of the public militates in favor of some substantial punishment; the attitude of the Respondent was cooperative and remorseful and is taken into account; and, finally, the behavior of the Respondent does bring into question his fitness to continue to practice law.
ASSIGNMENTS OF ERROR
The Counsel for Discipline filed an exception to the referee's recommended sanction as being too lenient. Mills filed cross-exceptions to (1) the referee's finding that "the behavior of the Respondent does bring into question his fitness to continue to practice law" and (2) the referee's recommended sanction, arguing that the record supported a sanction of a suspension of no greater than 60 days.
STANDARD OF REVIEW
A proceeding to discipline an attorney is a trial de novo on the record, in which the Nebraska Supreme Court reaches a conclusion independent of the findings of the referee; provided, however, that where the credible evidence is in conflict on a material issue of fact, the court considers and may give weight to the fact that the referee heard and observed the witnesses and accepted one version of the facts rather than another. State ex rel. Counsel for Dis. v. Achola, 266 Neb. 808, 669 N.W.2d 649 (2003). Disciplinary charges against an attorney must be established by clear and convincing evidence. Id.
ANALYSIS
We read Mills' exception to the referee's finding that "the behavior of Respondent does bring into question his fitness to continue to practice law" as relating only to the referee's recommended sanction. When no exceptions to the referee's findings of fact are filed by either party in a disciplinary proceeding, the court may, at its discretion, adopt the findings of the referee as final and conclusive. Achola, supra. Because neither party has filed exceptions to the referee's findings of fact, we consider them final and conclusive pursuant to Neb. Ct. R. of Discipline 10(L) (rev. 2001). We therefore adopt the referee's findings of fact and conclude that clear and convincing evidence establishes that Mills violated DR 1-102(A)(1) and (3) through (6); DR 6-101(A)(1) and (2); DR 7-102(A)(4) through (8); and § 76-218. Thus, we determine that the only issue remaining for this court's consideration is the appropriate sanction.
To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance and reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the respondent generally, and (6) the respondent's present or future fitness to continue in the practice of law. Achola, supra. Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances. Id. For purposes of determining the proper discipline of an attorney, this court considers the attorney's acts both underlying the events and throughout the proceeding. Id.
Mills' conduct as counsel for the personal representative of this estate is troubling. Such conduct consisted of (1) handling a legal matter which he knew or should have known he was not competent to handle *772 without associating with an attorney who was competent; (2) handling a legal matter without adequate preparation; (3) notarizing certain renunciations and deeds without witnessing the signatures of those signing the respective documents; (4) directing his secretary to alter the dates the renunciations were actually signed and to affix a uniform date of March 25, 1999; (5) affixing a uniform date of April 8, 1999, to some of the deeds, which did not conform to the actual dates on which the deeds were signed; (6) causing to be filed in both the county court for Cuming County and the register of deeds for Cuming County documents known to be false; (7) falsely informing the IRS, through Moser, that (a) the renunciations were signed in Mills' presence on March 25, 1999, (b) he did not recall why "white out" was used other than perhaps by his secretary for appearance purposes, and (c) the renunciations were received by the personal representative prior to March 25, 1999; and (8) filing Form 706 based on information Mills knew to be false.
As troubling as this conduct is, the most egregious aspect is what followed. In a letter to Cheryl dated June 2, 2000, Mills elicits the aid of Cheryl and her children in perpetuating his deception, telling Cheryl, "[i]t is critical that in the event [Moser] calls any of your children that they tell her they were in Wisner on March 25, 1999 and signed the renunciation (disclaimer) in my presence."
Pursuant to Neb. Ct. R. of Discipline 4 (rev. 2001), this court may consider any of the following 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. State ex rel. Counsel for Dis. v. Achola, 266 Neb. 808, 669 N.W.2d 649 (2003). We therefore turn our attention to the determination of an appropriate sanction, recognizing that the propriety of a sanction must be considered with reference to the sanctions this court has imposed in prior cases presenting similar facts. See State ex rel. NSBA v. Gallner, 263 Neb. 135, 638 N.W.2d 819 (2002).
The only Nebraska case cited by the Counsel for Discipline involving the misrepresentation of an acknowledgment is State ex rel. Nebraska State Bar Assn. v. Butterfield, 169 Neb. 119, 98 N.W.2d 714 (1959). In that case, Elven Butterfield represented his clients in a real estate transaction. The referee found that during a subsequent proceeding to set aside a deed involved in that transaction, Butterfield falsely testified that one of the signatures on the deed was not acknowledged before him. The referee further found that although the acknowledgment had occurred on or before June 7, 1956, Butterfield postdated the acknowledgement to January 2, 1957. The referee concluded that Butterfield had improperly postdated the deed and the acknowledgement and had given false testimony to a court of law. We suspended Butterfield for 6 months.
In State ex rel. NSBA v. Scott, 252 Neb. 698, 564 N.W.2d 588 (1997), this court was faced with an attorney who had lied to both the Department of Veterans Affairs and the Workers' Compensation Court during the course of representing his client. We stated that "[a]lthough we encourage all attorneys to zealously represent their clients, such advice cannot be construed to permit attorneys to deceive a court of law or other interested entities," id. at 704, 564 N.W.2d at 592, and suspended the attorney for 1 year.
The present case, however, involves conduct beyond falsifying renunciations and deeds and providing false information to a county court, the register of deeds, and the *773 IRS. It includes an element not found in Butterfield or Scott; that element is Mills' attempt to elicit the aid of Cheryl, his client, and her children in his deception. Our review of Nebraska cases has found no similar factual circumstance, and the parties cite us to none. We therefore look to other jurisdictions presenting similar facts for additional guidance. See State ex rel. NSBA v. Frederiksen, 262 Neb. 562, 635 N.W.2d 427 (2001) (looking to other jurisdictions for guidance in determining appropriate disciplinary sanction).
In re Corizzi, 803 A.2d 438 (D.C.2002), involved an attorney who represented two clients in separate personal injury cases. Both clients had been treated by a chiropractor suggested by Anthony Corizzi. Corizzi counseled his clients to commit perjury during their depositions with respect to how each had been referred to the chiropractor, as Corizzi was attempting to conceal the fact that he and the chiropractor had a referral relationship. In furtherance of Corizzi's suggestion, both clients lied in their depositions "to the virtual destruction of their causes." Id. at 439. In addition, Corizzi failed to advise one of his clients of a settlement offer, and made false statements to the "Bar Counsel" denying he had counseled his clients to lie. The Court of Appeals for the District of Columbia concluded that Corizzi's actions violated ethical rules equivalent to DR 1-102(A)(4) and DR 7-102(A)(7). Being "particularly influenced by the violations... which establish that [Corizzi] instructed two of his clients to lie in their depositions," 803 A.2d at 442, the court, noting the lack of mitigating factors, disbarred Corizzi, stating:
While engaged in the practice of law, he blatantly solicited outright perjury by two of his clients on separate occasions to conceal his reciprocal relationship with the chiropractor. The predictable consequences of his action were the virtual destruction of his clients' cases and their exposure to possible criminal prosecution, clients to whom he owed the highest duty of fidelity.
Id. at 442-43.
Matter of Friedman, 196 A.D.2d 280, 609 N.Y.S.2d 578 (1994), involved an attorney who engaged in multiple acts of serious misconduct. Relevant to our inquiry was an incident whereby Theodore Friedman had a private investigator approach a witness in a negligence suit he was litigating. The witness later informed the opposing attorney that Friedman's private investigator had tried to bribe him. Apparently unaware that the opposing side knew of the bribe, Friedman and the private investigator met with the witness and asked the witness to testify falsely about various matters, including whether the witness had been offered or paid any money, and whether the witness had ever met Friedman. The court, concluding that Friedman's actions with respect to this incident were in violation of DR 7-102(A)(4), (6), and (8), disbarred Friedman, noting that "[a]ny one of [his] many serious violations would be ground for removal of the respondent from the roll of attorneys." Matter of Friedman, 196 A.D.2d at 295, 609 N.Y.S.2d at 586.
Matter of Geron, 486 N.E.2d 514 (Ind. 1985), presented a factual situation in which respondent Terry Geron was representing a client on a contempt citation. Geron told his client to wait in the stairwell while he went into the courtroom to check the nature of the hearing. Five minutes later, Geron returned to his client and told him to leave the courthouse and go to "`The Village Pub.'" Id. at 515. The client did so, and Geron reentered the courtroom, informing the court that his client had yet to arrive. Geron then made a few telephone calls and informed the *774 court that his client was on the way. However, the client never arrived and the hearing proceeded in the client's absence. During the hearing, witnesses testified that they had seen Geron and his client arrive at the courthouse together. In response, Geron falsely testified that he had not entered the courthouse with his client. Geron later informed his client of the nature of Geron's testimony, and threatened the client with bodily harm should the client fail to testify as Geron advised. The Indiana Supreme Court found that Geron had violated DR 1-102(A)(1) and (3) through (6) and DR 7-102(A)(3) through (7). The court, in suspending Geron for 2 years, stated:
The bizarre behavior surrounding this incident calls into question Respondent's professional competence and ethics. He jeopardized his client's interest and the integrity of the court in order to camouflage his errors. The extent of his willingness to do so demonstrates a serious lack of understanding of the professional obligations of a lawyer. It is difficult, if not impossible, to discern the motivating factors behind conduct of this nature, but it is certain that this Court cannot allow its reoccurrence.
Matter of Geron, 486 N.E.2d at 516.
Finally, in In the Matter of Gross, 435 Mass. 445, 759 N.E.2d 288 (2001), respondent Frank Gross was retained to represent a client charged with operating a motor vehicle while under the influence of alcohol and leaving the scene of an accident. Although at the time of her arrest the client acknowledged that she was the operator of the vehicle, Gross decided to employ both an alibi defense and a defense based upon mistaken identification. In furtherance of these defenses, and in response to the court's calling the case for trial, Gross had the alibi witness approach as if she were the defendant. This was all done in an attempt to confuse the victim, who was present, and hopefully prompt a misidentification at trial. Gross' attempt at confusing the victim was discovered.
Though initially denying his actions, Gross eventually acknowledged that the alibi witness, and not his client, had come forward when the case was called for trial. However, Gross insisted that the mixup was due to "`some confusion.'" Id. at 447, 759 N.E.2d at 290. Gross later contacted his client and the alibi witness, informing them that both would be questioned about the incident, and advising them to tell the judge that they, too, had been "`confused.'" Id. The Supreme Judicial Court of Massachusetts concluded that Gross had violated DR 1-102(A)(4) through (6); DR 6-101(A)(2) and (3); DR 7-101(A)(1) and (3); DR 7-102(A)(3), (5), and (7); DR 7-102(B)(1) and (2); and DR 7-104(A)(2). Noting a prior disciplinary violation involving deceit, the court suspended Gross for 18 months, stating:
A knowing misrepresentation to a court is itself a serious violation, and that serious violation was then compounded by other aggravating factors. The respondent's orchestration of the impersonation scheme before the court was a form of misrepresentation amounting to criminal contempt and obstruction of justice.... When the ruse was uncovered, the respondent sought to evade responsibility, and asked his client and another witness to make further misrepresentations to the court to assist him in covering up his own wrongdoing. Ensnaring them in the scheme led to the issuance of a default warrant against his client, a capias for the arrest of the witness, and potential criminal charges against the witness.
In the Matter of Gross, 435 Mass. at 452-53, 759 N.E.2d at 293-94.
*775 Before imposing a disciplinary sanction, we must also consider any mitigating factors present. State ex rel. NSBA v. Frederiksen, 262 Neb. 562, 635 N.W.2d 427 (2001). Mills argues that several mitigating factors exist. To begin with, Mills argues that Cheryl and her family were not the complainants in this case.
Although it is true that Mills' actions were brought to the attention of the Counsel for Discipline by the attorney retained to replace Mills, that attorney testified at Mills' hearing:
[Counsel for relator:] I just want to focus here for a moment. Why did you file the grievance as opposed to [Cheryl], the client of Stuart Mills, filing the grievance?
A. If I had not, I believe the client would have because of the anger or distress they felt. And in discussing it, they preferred that I file it. Also, because of the things that came to my attention in the course of working with the [IRS] to resolve things, I became concerned that it also was my obligation [under the Code] to file something.
Our de novo review of the record simply shows that Cheryl preferred that her new attorney file the complaint. Even though Cheryl and her family were not the "complainants," we conclude that under these circumstances, the identity of the party actually filing the complaint is not a mitigating factor.
Next, Mills argues that he has suffered financial consequences as a result of this action. Specifically, Mills argues that he has "incurred defense costs relating to the IRS investigation" and that he has lost present and future clients as a result of his actions. Brief for respondent at 11. Mills also argues that he "will suffer the shame of the proceeding represented here." Id. However, these are merely consequences of Mills' own inappropriate conduct and offer nothing in the way of explaining the underlying reason for such conduct. Under these circumstances, they are not mitigating factors.
Finally, Mills contends he was suffering from "the mitigating factors of [a] difficult personal situation at home, as well as [a] difficult office situation." Brief for respondent at 10. In support of this argument, Mills cites State ex rel. Counsel for Dis. v. Koenig, 264 Neb. 474, 647 N.W.2d 653 (2002), and State ex rel. Counsel for Dis. v. Thompson, 264 Neb. 831, 652 N.W.2d 593 (2002).
Mills first compares his situation to Koenig, stating that "[t]he stressful personal crisis and psychological issues confronting... Mills presents a case similar to the court's recognition of such circumstances in [Koenig]." Brief for respondent at 10. However, Koenig is inapplicable, as in that case, this court makes no mention of a "stressful personal crisis and psychological issues."
Thompson, however, does consider "psychological issues." In Thompson, this court gave mitigating weight to Thompson's diagnosed depression. In Mills' case, however, the referee specifically determined:
I am not prepared to give great weight to the personal problems (i.e., loss of a long-time secretary, deterioration in his marriage relationship) which ... Mills claimed clouded his judgment. It should be noted that during a critical period of time involved hereJanuary 1, 1999 to August 1, 1999... Mills did not see fit to seek out professional medical treatment.
The type of personal problem being endured by ... Mills in this case is not, *776 in my view, the kind of matter which this Court has felt worthy of mitigation.
(Citation omitted.)
Our de novo review of the record supports the referee's determination. Unlike Thompson, this record contains no diagnosis of depression. The diagnosis is that of "adjustment disorder of adult life with mixed emotional features." Mills' "treatment" for this specific diagnosis consisted principally of one office "interview" on December 10, 1999, and two telephone "visits" with a clinical psychologist on December 13 and 21. With regard to the December 21 visit, the psychologist's records state that "[Mills] thinks that he can handle the problems with the help of his friends, so he decided to call back if the problems again become overwhelming." There is no evidence of any further treatment or evaluation by this psychologist.
Although we acknowledge Mills' additional testimony that approximately 1 year after this initial treatment, he received "counseling of a similar nature" from another counselor, the medical evidence in this record does not approach that in Thompson, nor does it contain any evidence that Mills' diagnosis was a direct and substantial contributing factor to his misconduct or that treatment will substantially reduce the risk of further misconduct. See Thompson, supra. We determine that based upon this record, Mills' adjustment disorder is not a mitigating factor.
In an attorney discipline proceeding, an isolated incident not representing a pattern of conduct is considered as a factor in mitigation. State ex rel. Counsel for Dis. v. Apker, 263 Neb. 741, 642 N.W.2d 162 (2002). An attorney's cooperation during the process is yet another factor to be considered in mitigation. Id. Finally, the attorney's admission of responsibility for his or her actions reflects positively upon his attitude and character and is to be considered in determining the appropriate discipline. Id.
It is clear from the record that Mills' behavior surrounding his handling of the Borgelt estate was an isolated incident in what has otherwise been an exemplary legal career. The record indicates that Mills is involved in his community and has countless letters of support from judges, lawyers, and laypersons. In addition, Mills has never been disciplined in the 30 years he has been authorized to practice law in Nebraska.
Although Mills initially lied to the IRS during its investigation, he did eventually cooperate and has fully cooperated with the Counsel for Discipline's investigation into this matter. Furthermore, Mills has admitted his wrongdoing and has admitted that he engaged in conduct which violates the Code of Professional Responsibility.
Mills' actions, particularly with respect to eliciting the aid of Cheryl and her children in perpetuating his deception to the IRS, are egregious. Nevertheless, this case is unlike In re Corizzi, 803 A.2d 438 (D.C.2002), in which the attorney made false statements to "Bar Counsel" denying that he had advised his clients to lie and where the court specifically noted the lack of any mitigating factors, and Matter of Friedman, 196 A.D.2d 280, 295, 609 N.Y.S.2d 578, 586 (1994), which involved "many serious violations" and where the only mitigating evidence consisted of character witnesses. In this case, sufficient evidence in the form of Mills' cooperation, the absence of any prior discipline, and an otherwise exemplary 30 years of practice, exists to mitigate against the disbarment imposed in In re Corizzi and Matter of Friedman. Upon our de novo review of the record, this court determines that *777 Mills should be suspended from the practice of law for a period of 2 years.
CONCLUSION
The Counsel for Discipline's exception with respect to the referee's recommended sanction is upheld. Mills' exceptions with regard to the recommended sanction are overruled. Mills is hereby suspended from the practice of law for a period of 2 years, effective immediately. Mills is directed to comply with Neb. Ct. R. of Discipline 16 (rev. 2001), and upon failure to do so, he shall be subject to punishment for contempt of this court. Mills 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 (rev. 2001).
JUDGMENT OF SUSPENSION.
GERRARD, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579397/ | 12 So. 3d 1069 (2009)
STATE of Louisiana, Appellee
v.
Kenny Wayne COLLINS, Appellant.
No. 44,248-KA.
Court of Appeal of Louisiana, Second Circuit.
May 27, 2009.
*1073 Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.
Jerry L. Jones, District Attorney, Josephine P. Heller, Assistant District Attorney, for Appellee.
Before WILLIAMS, STEWART and CARAWAY, JJ.
STEWART, J.
The defendant, Kenny Wayne Collins, was convicted by a jury of unauthorized entry of an inhabited dwelling, attempted sexual battery, and attempted possession of marijuana with intent to distribute. He was sentenced to three years at hard labor for the unauthorized entry conviction; four years at hard labor without benefit of probation, parole or suspension for the attempted sexual battery conviction; and ten years at hard labor, with credit for time served, the first four years without benefit of probation, parole, or suspension of sentence, the remaining six suspended, with five years' supervised probation, for the attempted possession of marijuana with intent to distribute conviction. The sentences are to run concurrently with each other, but consecutively to any other sentences. The defendant now appeals, urging five assignments of error. For the following reasons, we affirm the defendant's convictions and sentences, but amend the defendant's sentence for attempted possession with intent to distribute to remove the prohibition of parole.
FACTS
On November 8, 2006, J.G.[1] was standing outside her apartment smoking a cigarette with Justin Flores, her boyfriend's brother, and the defendant. The trio stood and talked for a few minutes before J.G. announced that she was going back into the apartment that she shared with her boyfriend, Joshua Flores, and Justin Flores, so that she could take a shower. She asked Justin to lock her in the apartment. J.G., Joshua, and Justin all lived together and had only one key to the apartment. After Justin did so, he and the defendant went to the defendant's apartment two doors down to play video games.
The defendant shared an apartment with his then seven-months pregnant girlfriend, Whitney Farris. Farris left shortly after the two arrived. Soon after, the defendant told Justin he had to leave for a few minutes.
After J.G. got out of the shower, she walked into her bedroom wearing only a towel and began to dry off when she looked in the mirror and saw the defendant standing in the corner. J.G. screamed and told him to get out of her apartment. The defendant left the room and J.G. ran into her walk-in closet to put on some clothing. She put on a t-shirt and a pair of jogging pants and when she looked up again, the defendant was in her closet with her and was attempting to hug her. As he did so, he shoved his hand down the front of her jogging pants and touched her vagina. J.G. screamed again *1074 and managed to get away from him. She ran out of the apartment to find Justin and call the police. The defendant did not have his own key to the apartment, nor did anyone have permission to be in the apartment alone with J.G.
Deputy John Dupree, upon arriving at the scene, first spoke with the victim inside her apartment where he found her curled up on her couch, crying. He then left the victim's apartment and was approached by Collins. Dupree Mirandized Collins and then explained to him the nature of the investigation. Dupree testified that the defendant told him that he did not have permission to be in the apartment stating, "He knew not to be in there alone with her."
Whitney Farris arrived home and noticed the law enforcement vehicles centered around their apartment building. She went into her apartment and told the defendant that there were police outside and that he stood up abruptly and left the apartment. Shortly thereafter, Farris attempted to take J.G. her mail, but was stopped at J.G.'s front door by a law enforcement officer. She returned to her apartment, where she was approached several minutes later by another officer who explained the situation and asked for consent to search the apartment. Farris voluntarily gave her consent.
During the search, officers discovered three sandwich-type bags of marijuana, a digital scale, a manual scale, and small "baggies" typically used to separate a large quantity of marijuana into smaller quantities for resale. Detective Mark Johnson was accepted by the trial court as an expert in the field of "packaging and distribution of marijuana." Johnson testified that the marijuana was packaged into different size bundles to please a variety of buyers and that scales were usually found in cases of distribution because sellers wanted to make sure that they were not being ripped off by others. Johnson testified that it was his opinion that there was an intent to distribute indicated by the amount of marijuana and other evidence found in the apartment.
After searching the apartment, officers asked the defendant about the drugs found in the apartment. According Deputy John Dupree, the defendant stated that he had bought the drugs that same night from a guy out of town and that he had paid four hundred dollars ($400.00) for it.
The jury returned three responsive verdicts of guilty to: attempted sexual battery, unauthorized entry of an inhabited dwelling, and attempted possession of marijuana with intent to distribute. The defendant was sentenced to four years at hard labor without benefit of probation, parole or suspension for the attempted sexual battery conviction; three years at hard labor for the unauthorized entry conviction; and ten years at hard labor, the first four years without benefits, the remaining six years suspended, with five years' supervised probation for the attempted possession with intent to distribute conviction.
The defendant now appeals.
LAW AND DISCUSSION
Assignment of Error Number 1: Sufficiency of the Evidence
The defendant asserts five assignments of error in this appeal. In his first assignment of error, the defendant challenges the sufficiency of the evidence. More specifically, the defendant argues that the state failed to prove that he committed the crime of unauthorized entry of an inhabited dwelling, because the state failed to prove that he did not have permission to enter the apartment and failed to show any forced entry into the apartment. The *1075 defendant implies that either Flores or the victim gave him a key. The defendant also argues that the state failed to prove that he committed the crime of attempted sexual battery. Noting that he left the room when asked to do so and then returned after the victim was dressed, the defendant argues the state failed to prove that the defendant did not have consent to touch the victim. Finally, the defendant argues that the state failed to prove the requisite intent for attempted possession with intent to distribute.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So. 2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So. 2d 347, writ denied, 97-1203 (La.10/17/97), 701 So. 2d 1333.
Under the Jackson v. Virginia standard, we review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Bosley, supra; State v. Tate, XXXX-XXXX (La.5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, XXXX-XXXX (La.2/22/06), 922 So. 2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So. 2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2d Cir.8/30/02), 827 So. 2d 508, writ denied, XXXX-XXXX (La. 11/14/03), 858 So. 2d 422.
Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App.2d Cir.9/18/02), 828 So. 2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So. 2d 566, 2002-2997 (La.6/27/03), 847 So. 2d 1255, cert. denied, 540 U.S. 1185, 124 S. Ct. 1404, 158 L. Ed. 2d 90 (2004).
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So. 2d 769; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So. 2d 219, writ denied, XXXX-XXXX (La.11/9/06), 941 So. 2d 35. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied, *1076 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).
La. R.S. 14:27 states: "Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose."
The defendant argues that the state failed to prove that he did not have permission to be in the victim's home. La. R.S. 14:62.3 defines unauthorized entry of an inhabited dwelling as:
The intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.
The evidence shows that the defendant entered the home of the victim and stood in her bedroom waiting for her to finish her shower. The victim testified that the defendant did not have permission to be in her home and that she asked Justin Flores to lock her inside because she was going to take a shower. No evidence suggested that the defendant had permission to be in the home. The defendant argues that Justin Flores could have given the defendant permission to be in the home. However, when Justin Flores testified, he made no statement that suggested that he gave the defendant permission to be in the apartment. Viewing the evidence presented in the light most favorable to the prosecution, we affirm the conviction for unauthorized entry.
La. R.S. 14:43.1 defines "sexual battery" as:
The intentional engaging in any one of the following acts with another person where the offender acts without the consent of the victim ... (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender...
The defendant argues that the state failed to prove that the defendant did not have consent to touch the victim. The defendant left the room when the victim yelled at him to get out and then returning once she was in her closet. The victim testified that the defendant did not have permission to be in her home and that when she saw the defendant, she yelled for him to leave the apartment and thought he had. When she then went into her closet to put on clothes, he reappeared in her closet and began to touch her. The victim testified that she continued to yell at him to leave and then wrenched herself from his grasp and fled the apartment. The defendant's statements to the investigating officers indicated circumstances that were very similar to those explained by the victim.
When there is conflicting testimony, it is up to the trier of fact to make a determination of credibility and such a determination should not be overturned on appeal save to protect fundamental due process. This court will not alter a reasonable credibility determination made by the trier of fact. The attempted sexual battery conviction is affirmed.
Finally, the defendant argues that the state failed to prove that he had the requisite intent required to support the attempted possession with intent to distribute conviction. La. R.S. 40:966(A) establishes that:
"It shall be unlawful for any person knowingly or intentionally: (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a *1077 controlled dangerous substance analogue classified in Schedule I ..."
Intent is a question of fact to be decided by the trier of fact; it need not be proven as fact, but may be inferred from the circumstances. State v. Wiley, 40,289 (La. App. 2 Cir. 10/26/05), 914 So. 2d 1117. Circumstantial evidence from which the intent to distribute may be inferred includes the quantity of the substance, equipment, and supplies found with it, where it was found, manner of the packaging, and the testimony of experts knowledgeable in the field. State v. House, 325 So. 2d 222 (La.1975).
The state presented evidence that marijuana was found in the defendant's home packaged in a manner consistent with distribution, along with scales and "baggies," which are commonly used to measure and package marijuana for distribution. As cited above, intent is a question of fact. Here, the trier of fact made a determination based on the testimony of the officers who had searched the defendant's apartment as well as Detective Johnson's expertise in the field of narcotics to make a determination that, under the circumstances, the defendant had the requisite intent. The evidence is sufficient to support such a finding.
This assignment is therefore without merit.
Assignment of Error Number 2: Motion to Suppress
In the defendant's second assignment of error, he asserts that the trial court erred in denying his motion to suppress the marijuana seized from his apartment. He contends that the motion to suppress was erroneously denied because the law enforcement officers should have asked his permission to search the apartment after obtaining consent from the defendant's cotenant.
Pursuant to La. C. Cr. P. art. 703(D), the state bears the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant:
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
Therefore, the state bears the burden of showing that probable cause and exigent circumstances justified a warrantless search and seizure. State v. Hemphill, 41,526 (La.App. 2d Cir. 11/17/06), 942 So. 2d 1263, 1271, writ denied, 2006-2976 (La.3/9/07), 949 So. 2d 441.
The entire record, including the testimony at trial, is reviewable for determining the correctness of a ruling on a pretrial motion to suppress. State v. Young, 39,546 (La.App. 2d Cir.03/02/05), 895 So. 2d 753. Our review is not confined to the transcript of the hearing on a motion to suppress. State v. Young, supra.
This court reviews the district court's ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Hemphill, supra.
In United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), the United States Supreme Court considered the validity of a warrantless search of a home when consent to search was given, not by the defendant, but by a co-occupant of the home. The facts were that the defendant was arrested in his front yard and taken to a waiting police car. The officers then asked the woman who lived in *1078 the home with the defendant for consent to search, and she granted it. In that case, the Court held that such a consent is valid, and the evidence discovered admissible at the defendant's trial.
Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), a more recent case, also considered the validity of a co-occupant's consent to search, but had a slightly different holding. In that case, the United States Supreme Court once again affirmed the validity of a warrantless search with consent of a co-occupant; however, the Court stated that one occupant's consent could not trump the refusal of another occupant. In the instant case, law enforcement officers were leaving the apartment of the victim when they were approached by the defendant. He gave a statement implicating himself in the criminal activity that had been reported by the victim and was placed under arrest. The officers then placed him in a vehicle and went to his apartment to question his girlfriend, Whitney Farris, who lived there with him. Farris gave the officers consent to search the apartment. While searching it, they located marijuana and paraphernalia indicative of distribution.
The evidence presented did not indicate that the officers removed the defendant from his home in an attempt to prevent him from objecting to a search, or that they purposefully avoided seeking his permission by ignoring any objection by him. Rather, they proceeded with the investigation by questioning potential witnesses, including Farris. In the process of questioning Farris, the officer obtained her consent to search the apartment she shared with the defendant. Her consent was valid. The record does not show that the officers obtained Farris's consent after a refusal by the defendant. The officers placed the defendant under arrest for the crimes they already knew he committed and continued their investigation while the defendant was located in one of their vehicles. For these reasons, we find no error in the trial court's denial of the motion to suppress.
Assignment of Error Number 3: Jury Challenge
In the third assignment of error, the defendant argues that the trial court erred in denying his Batson challenge regarding the exclusion of jurors based upon race. He asserts that the race-neutral reasons for the peremptory challenges of two black jurors from the first panel were not sufficient to satisfy the requirements of Batson and that the dismissal of those jurors was discriminatory.
It is well settled that the use of peremptory challenges based solely on a juror's race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Batson decision is codified in our law in La. C. Cr. P. art. 795.
In State v. Draughn, XXXX-XXXX (La.1/17/07), 950 So. 2d 583, the proper reviewing process for a Batson claim is set forth as follows:
A defendant's Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, "[t]he second step of this process does not demand an explanation that is persuasive, or even plausible"; so long as the reason is not inherently discriminatory, it suffices. Third, the court must *1079 then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating "the persuasiveness of the justification" proffered by the prosecutor, but "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." (citations omitted.)
Since the trial judge's findings in the context under consideration here largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 1868, 114 L. Ed. 2d 395 (1991).
During voir dire, the defendant raised a Batson challenge after the state peremptorily challenged an African-American male and an African-American female from the potential jury panel. Shermekia Bush and Brian Burrell were challenged and excused by the court.
The defense pointed out that because Burrell had not been asked any questions, there could be no cause for his release except race. The State was then asked to give its race-neutral reasons for the challenges to Bush and Burrell:
To respond, your Honor, I'll start with Mr. Burrell since he was last mentioned. That's exactly the reason he was. We exercised the preempt is [sic] because through some reason he was never asked any questions. He never raised his hand in response to any questions. Um, and so I was just a little fearful. Didn't really get an opportunity to speak with him. That's simply the reason we filed the strike back on him. Not strike back. Peremptory challenge on him. And as to Shermekia Bush, she's the cousin of-she did not name him by name-but of an individual who was recently convicted of vehicular homicide and murder. It has to be Jatazz Warren. I helped out with that trial for Jatazz Warren. I don't care what the woman says she thinks he was wrongly accused of it. Um, and that's the reason, certainly that's a race neutral reason for her, for us exercising a peremptory challenge. There's four black jurors left after the three causes. Two of which we didn't' [sic] challenge. Those are the reasons we challenged them.
The defense responded that Bush stated that she could be impartial, and the state reiterated that it was a peremptory challenge. The Court ruled:
I understand. The State has certainly presented racially neutral reasons for excluding Ms. Bush. And really even before you get to that test that part of the test it's whether there's been a systematic exclusion of a particular race. And the Batson challenge and the reverse Batson challenge. The State has ten additional peremptory challenges remaining. They chose not to strike Angelo Monk, Jacqueline Hamilton and also Tony Gibson. So at this point there's no systematic exclusion of black juror members. There's really no race neutral reasons at this point why Brian Burrell was not, uh, was stricken. But that really is not relevant at this point because there's no systematic exclusion of black members of the jury. So the Court will note the objection but the Court will deny the Batson motion.
The state then stated as another reason for challenging Burrell that he has a disturbing the peace and two counts of simple battery misdemeanors, which "obviously [sic] not felony convictions but they did play a part in our decision. Criminal history. Specifically the two simple batteries."
*1080 The trial court's final determination was that:
Certainly they have good grounds to challenge Shermekia Bush. The only one questionable is Mr. Burrell but there's no systematic exclusion at this point. Because there are, there are three black potential members of this jury who were not stricken by the State. Two that were. And although there were no peremptory challenges exercised for white members of this jury panel, there's no systematic exclusion based on the fact that the State elected to strike the two that were stricken. So I'll deny the motion.
Applying the reasoning in State v. Draughn, supra, to the present case, the defendant has failed to show that the trial court erred in denying its Batson challenges. Under Draughn, the first question is whether the defense has made a prima facie showing that the peremptory challenges were based on race. After reviewing the record, it is presumed that the court believed the defendant had met that burden. The state was then required to present race-neutral reasons for the peremptory challenges. Under Draughn, the state's reasons need not be persuasive, or even plausible, but simply race-neutral. Here, the state justified its challenge of Bush based on the recent prosecution of her cousin. The state also gave several reasons for challenging Burrell, including that he wasn't questioned thoroughly, he did not raise his hand when questions were addressed to the entire panel, and his prior misdemeanor convictions. While the trial court may not have found the reasons for the challenge of Burrell persuasive or plausible, they were race-neutral. It was then the court's option to determine whether the defendant had proven "purposeful discrimination." Here, the trial court found that the defendant had not met that burden because three black members of the potential jury panel were not challenged.
Based on the voir dire transcript and the transcript of the Batson discussion between the opposing parties and the trial court, the defendant has not shown that the trial court was clearly erroneous in denying its Batson challenge.
This assignment is therefore without merit.
Assignment of Error Number 4: Expert Testimony
In the fourth assignment of error, the defendant contends that the trial court erred in allowing Detective Mark Johnson to provide expert testimony that was "tantamount to an opinion that the defendant was guilty of the crime charged." State v. Wheeler, 416 So. 2d 78 (La.1982). The defendant asserts that such testimony invaded the province of the jury and directly resulted in his conviction for attempted possession of marijuana with intent to distribute.
Louisiana Code of Evidence Article states:
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, expertise, training, or education, may testify thereto in the form of an opinion or otherwise.
Moreover, Article 704 provides:
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.
*1081 Pursuant to this article, a trial judge may admit expert testimony which "embraces an ultimate issue to be decided by the trier of fact," but the expert witness is not permitted to testify to the ultimate issue of a defendant's guilt. State v. Irish, 2000-2086 (La.1/15/02), 807 So. 2d 208.
This court held in State v. Daniels, 614 So. 2d 97 (La.App. 2d Cir.1993), that a police officer's expert testimony that he had examined the contents of a pill bottle, estimated the value of cocaine, and determined that the amount was consistent with distribution was permissible since the officer did not say that either the defendant or a hypothetical person was guilty of distribution.
In State v. Smith, XXXX-XXXX (La.App. 1st Cir.12/31/03), 868 So. 2d 794, the court determined that testimony by a detective, who was an expert in narcotics, that opined a certain amount of marijuana seized from the defendant was not for personal consumption, was deemed permissible in a prosecution for possession with intent. The court explained that the average individual would not have knowledge of the amount of narcotics normally used for personal consumption. Also, the detective did not express an opinion as to guilt or innocence. State v. Smith, supra.
Louisiana jurisprudence has condemned the use of hypothetical questions that parallel the actual fact situation of the case. The prosecutor may not get the expert witness to give an opinion about whether the hypothetical person described "would be involved in the distribution of marijuana." State v. Smith, XXXX-XXXX (La.App. 1 Cir.12/31/03), 868 So. 2d 794.
In the present case, Detective Mark Johnson was accepted as an expert in the field of packaging and distribution of marijuana. He testified with regard to the marijuana and other items discovered at the defendant's home:
DETECTIVE JOHNSON: Specifically what jumps out at me right off the bat, is you've got here each one of these are a quarter pounder. Basically what's referred to on the street as a QP of marijuana. These things are supposed to weigh approximately a hundred twelve (112) grams apiece. This here is one individually packaged deal. Ounce of marijuana. This should weigh somewhere in the neighborhood of twenty eight (28) grams or one ounce. That's where we at. I see a set of digital scales here. Uh, a set of manual scales for otherwise commonly known when they're not being used for illegal purposes these are postal scales if you will. But manual scales. And several baggies of individuals, what they would be referred to on the street as dime bags. A dime referring to Ten Dollars ($10.00). That's how much these things would go for. And obviously a big bag to hold it all together.
STATE: Now looking at the three baggies itself with the marijuana in it, what is important about that being in the quarter and the ounce size bags?
DETECTIVE JOHNSON: This right here is an indicator that these things were packaged for individual sales. Whenever a person would come up they want to buythey may not have but Ten Dollars ($10.00) on them. Well, you sell them Ten Dollars ($10.00). You don't sell them something for Two Hundred Fifty Bucks ($250.00). You have individual packaging here for quick sales depending on what the drug user wants to use and what he wants to buy. He can go as little as Ten Bucks ($10.00) as much as up to whatever you can negotiate this for.
*1082 STATE: So the varying sizes of the packaging indicates distribution?
DETECTIVE JOHNSON: Or possession with intent-Yes Ma'am.
STATE: And what about those two packages that came to be the same weight. What does that signify to you?
DETECTIVE JOHNSON: That he's whoever this person is has sat down and made a conscious to [sic] weigh up package so that way he'll know whenever he's making a sale that hey, I want a QP. He's got this right here. If the guy only wants an ounce he's got that already packaged ready to go. If the person only wants a little dime bag ready to go he's got that. So these were packaged into whatever size the person that wants to buy so he can buy as little or as much as he wants to. In this.
Detective Johnson then described the use of scales in distribution of marijuana. He believed all of this marijuana was not for personal use because no implement in which to smoke the marijuana was found with the drugs.
The state then concluded its questioning with the following exchange:
STATE: And is it your opinion from what you've seen from this evidence that the person in possession of that marijuana had the intent to distribute that marijuana?
DEFENSE COUNSEL: I object to that question, your Honor. That goes to the province of the jury.
STATE: Your Honor.
BY THE COURT: Repeat the question.
STATE: My question is is it your opinion from what you've seen today that the person in possession of this marijuana had-I'll rephrase the question. Is it your opinion from what you've seen today that there, the way that that marijuana is packaged that there's an intent to distribute?
COURT: Overruled.
DETECTIVE JOHNSON: Yes, Ma'am.
In this case, Detective Johnson was merely giving his opinion that the quantity of drugs, their packaging, and the paraphernalia were consistent with distribution. He based his opinion upon his many years of experience and training. Knowledge of the amount of marijuana usually possessed for sale or distribution, as distinguished from amounts used or possessed for personal consumption, was not a fact within the knowledge of the average individual. State v. Smith, supra. Moreover, Detective Johnson never explicitly stated that the defendant was guilty of possession of marijuana with intent to distribute. This assignment has no merit. Assignment of Error Number 5: Excessive Sentence
In the fifth and final assignment of error, the defendant asserts that the sentences imposed are excessive. More specifically, the defendant argues that the trial court erred in ordering that the attempted possession with intent sentence should be served without benefits, because La. R.S. 40:966 B(3) does not provide for imposition of sentence without benefits. Additionally, the defendant argues that the trial court failed to give adequate consideration to his lack of a significant criminal history, the effect of incarceration on his family, and his medical and educational history.
La. C. Cr. P. art. 881.1(E) applies to defendant's sentence, which provides in pertinent part:
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, *1083 shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
Inasmuch as the defendant did not file a La.C.Cr.P. art 881.1 motion to reconsider his sentence, we will limit our review to the bare claim that his sentence is constitutionally excessive. State v. Masters, 37,967 (La.App. 2d Cir.12/17/03), 862 So. 2d 1121.
A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So. 2d 7; State v. McCall, 37,442 (La.App. 2d Cir.8/20/03), 852 So. 2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So. 2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.
In reviewing claims of an excessive sentence, an appellate court uses a two-step process. First, the record must show, as it does here, that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So. 2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So. 2d 641.
The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475 (La.1982). The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So. 2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So. 2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So. 2d 277, writ denied, XXXX-XXXX (La.9/28/07), 964 So. 2d 351.
Second, the determination of whether the sentence imposed is too severe is contingent upon the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So. 2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So. 2d 864.
The defendant was convicted of attempted sexual battery, which carried a possible sentence of 5 years; attempted possession of marijuana with intent to distribute, which carried a possible sentence of 15 years; and unauthorized entry of an inhabited dwelling, which carried a possible sentence of 6 years. The defendant was sentenced to 5 years for the attempted sexual battery conviction, 10 years for the attempted possession with intent conviction, and 3 years for the unauthorized entry *1084 conviction. The defendant now argues that these sentences are excessive.
The record shows that the trial court specifically considered aggravating and mitigating circumstances, thereby complying with La.C.Cr.P. art. 894.1, and tailored the sentence to the instant offense and this offender. The trial court relayed the facts of the case and the defendant's criminal history. The trial court also addressed the defendant's "social history," including mentioning the defendant's girlfriend, who already had a two-year-old daughter with the defendant and was pregnant, at the time of the sentencing, with his second child. The trial court stated that the defendant admitted daily use of marijuana and that he was on active probation at the time the instant offenses were committed. As a result, his probation was revoked and he was in the middle of serving a 3-year sentence. The defendant has not shown that the trial court failed to consider the Article 894.1 factors.
The record does not show that the defendant's sentence is grossly out of proportion with the acts committed. With regard to the attempted sexual battery conviction, the defendant was sentenced to the maximum of 5 years at hard labor without benefit of probation, parole or suspension. The defendant was originally charged with sexual battery and faced a 10-year sentence, and although he was only convicted of attempted sexual battery, the defendant has not shown that this was a "purposeless and needless inflection of pain and suffering." With regard to the attempted possession with intent to distribute conviction, the defendant faced a term of up to 15 years and was actually sentenced to 10 years at hard labor, the first 4 years without benefit, the remaining 6 years suspended, with 5 years supervised probation. This sentence is nowhere near the maximum that the defendant faced, and the defendant has, again, failed to show that this was a needless infliction of pain and suffering. Finally, for the unauthorized entry conviction, he was sentenced to 3 years at hard labor, when he faced 6. This sentence is half that to which the defendant was exposed and the defendant has failed to show that this was a needless infliction of pain and suffering.
Further, it should be noted that these sentences are to be served concurrently, meaning the defendant's total jail time is only 5 years.[2] The defendant's exposure for all three crimes, if served consecutively, would have been 26 years. The defendant's resulting sentence of 5 years does not show a needless infliction of pain and suffering.
This assignment is therefore without merit. However, the defendant is correct, and the state concedes, that the trial court erred in denying the defendant the benefit of parole for the attempted possession with intent to distribute conviction. For that reason, we amend the sentence to delete the prohibition of parole, but affirm the remainder of his sentence.
CONCLUSION
For the foregoing reasons, we affirm the defendant's convictions and sentences, but amend the defendant's sentence for attempted possession with intent to distribute to remove the prohibition of parole.
AFFIRMED AS AMENDED.
NOTES
[1] The victim's initials are used in lieu of her name. La. R.S. 46:1844(W).
[2] These sentences are to be served consecutively to any other sentences. Because the defendant was imprisoned on a probation revocation, the sentences will be added to the end of the term he is currently serving. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579481/ | 671 N.W.2d 452 (2003)
Roger K. MENDENHALL and Edwin L. Mendenhall, Jr., Appellees,
v.
Marilyn Mendenhall JUDY, Appellant.
No. 02-0940.
Supreme Court of Iowa.
November 13, 2003.
*454 Thomas M. Walter of Johnson, Hester, Walter, Breckenridge & Duker, L.L.P., Ottumwa, for appellant.
Kenneth L. Keith and Joni L. Keith of Keith Law Firm, P.C., Ottumwa, for appellees.
LAVORATO, Chief Justice.
Two brothers, Edwin L. Mendenhall, Jr. and Roger K. Mendenhall, brought this equity action against their sister, Marilyn Mendenhall Judy. The brothers sought to set aside a transfer of stock in a family corporation that the children's mother, Gladys Mendenhall, made to Marilyn while Gladys was still alive. The district court set aside the transfer of stock on the grounds that the transfer resulted from undue influence that Marilyn had exerted over Gladys. Subject to two modifications, we affirm the judgment of the district court and remand the case for further proceedings consistent with this opinion.
I. Scope of Review.
Because this action is in equity, our review is de novo. Iowa R.App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but we are not bound by them. Id. R.6.14(6)(g).
II. Applicable Law.
To set aside a transfer on the ground of undue influence, one must show "such persuasion as results in overpowering the will of the [grantor] or prevents him from acting intelligently, understandingly, and voluntarilysuch influence as destroys the free agency of the grantor and substitutes the will of another person for his own." Leonard v. Leonard, 234 Iowa 421, 429, 12 N.W.2d 899, 903 (1944). Undue influence must be present at the very time the transfer is made. Arndt v. Lapel, 214 Iowa 594, 603, 243 N.W. 605, 609 (1932). Proof of undue influence must be by evidence that is clear, convincing, and satisfactory. Else v. Fremont Methodist Church, 247 Iowa 127, 139, 73 N.W.2d 50, 57 (1955). Evidence is clear, convincing, and satisfactory when there is no serious or substantial uncertainty about the conclusion to be drawn from it. Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App.1983). Direct proof of undue influence is not required. In fact, undue influence may be and usually is proven by circumstantial evidence. Estate of Cory v. Ankeny State Bank, 169 N.W.2d 837, 842 (Iowa 1969).
Four elements are necessary to establish undue influence:
(1) The [grantor] must be susceptible to undue influence, (2) opportunity [on the part of the grantee] to exercise such influence and effect the wrongful purpose must exist, (3) a disposition [on the part of the grantee] to influence unduly for the purpose of procuring an improper favor must be present, and (4) the result must clearly appear to be the effect of undue influence.
Estate of Herm v. Henderson, 284 N.W.2d 191, 200-01 (Iowa 1979). Weakened mental condition of the grantor, relationship of the grantor and the grantee, inequality of distribution, and activity of the grantee are all factors that bear on the question of undue influence. Wilson v. Wilson, 240 Iowa 26, 33, 34 N.W.2d 911, 915 (1948).
A transfer to a grantee standing in a confidential or a fiduciary relationship to the grantor is presumptively fraudulent and therefore presumptively the product of undue influence. Marron v. Bowen, 235 Iowa 108, 112, 16 N.W.2d 14, 16-17 (1944). If such a relationship is found to exist, the *455 burden of proof shifts to the grantee to negate a presumption of undue influence by clear, convincing, and satisfactory evidence. Herm, 284 N.W.2d at 200. We have recognized that this "rule is particularly applicable where one of the parties has a dominating influence over the other by reason of the affection, trust, and confidence of the latter in the former." Id.
A fiduciary relationship includes a relationship in which one is under a duty to act for the benefit of the other as to matters within the scope of the relationship. Merritt v. Easterly, 226 Iowa 514, 517-18, 284 N.W. 397, 399 (1939).
We have referred to several principles in determining the existence of a confidential relationship:
Confidential relationship is a very broad term and is not at all confined to any specific association of the parties to it. In law it has been defined or described as any relation existing between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith for the benefit of the other party. In its broadest connotation the phrase embraces those multiform positions in life wherein one comes to rely on and trust another in his important affairs.
A confidential relationship arises whenever a continuous trust is reposed by one person in the skill and integrity of another, and so it has been said that all the variety of relations in which dominion may be exercised by one person fall within the general term "confidential relation."
Herm, 284 N.W.2d at 199 (citation omitted). Such a relationship is particularly likely to exist where there is a family relationship. McGaffee v. McGaffee, 244 Iowa 879, 888, 56 N.W.2d 36, 39 (1953). Moreover, a confidential relationship may exist although there is no fiduciary relationship. Oehler v. Hoffman, 253 Iowa 631, 635, 113 N.W.2d 254, 256 (1962).
III. Facts.
With the foregoing principles in mind, we turn to the record in this case. On our de novo review, we find the following facts.
Gladys and Edwin Mendenhall, Sr. (Ed, Sr.) had three children: Edwin Mendenhall, Jr. (Ed, Jr.), Roger Mendenhall, and Marilyn Mendenhall Judy. Gladys and Ed, Sr. lived in Ottumwa, Iowa. Ed, Sr. owned and operated Hardsocg Pneumatic Tool Company. Hardsocg was founded in 1904, and its original business included contract machine work, engineering, assembly, and heat-treating. At one time, the company employed approximately forty-five people and made parts for M-47 tanks and jet engines. At the times material to this lawsuit, the company was an owner and lessor of real property, principally for warehouse and office space.
Roger has lived in California most of his adult life. He graduated from the University of Iowa with a B.S. degree in mechanical engineering and received an M.B.A. degree in 1984. Since 1956, Roger has worked for several companies in California.
Ed, Jr. has a B.A. degree in social science. Beginning in 1953, he worked with his father in the Hardsocg Company for about ten years, beginning in 1953. He had a purchasing background and filled such a need in the company at his father's request. Ed, Jr. left the company when it changed from a manufacturing business to a rental property operation. He moved to West Des Moines and regularly saw his parents on holidays.
Marilyn lived in California for several years and returned to Iowa in 1991. She has lived continuously in Ottumwa since 1993. She has worked in clerical and administrative *456 positions. She began helping Ed, Sr. with Hardsocg in 1995.
On June 19, 1995, Gladys executed a will that left all of her property in equal shares to her three children. On the same day, Gladys executed a general power of attorney that named Marilyn as Gladys's attorney-in-fact with Ed, Jr. as successor to Marilyn if Marilyn became unable to act. The power of attorney prohibited Marilyn from making gifts to herself.
In October 1995, Ed, Jr. and Marilyn opened a conservatorship for Ed, Sr. in Wapello County because he was having problems managing his business and other affairs. What led to the conservatorship was the fact that some woman was apparently "scamming" Ed, Sr. of large sums of money.
On August 1, 1997, Ed, Sr. died, leaving to Gladys an estate worth $417,241.22. The estate included 500 shares of Hardsocg stock valued at $296,193.79. The estate had debts totaling $42,000. Hardsocg's assets consisted primarily of three parcels of real estate. Ed, Jr. and Marilyn were appointed co-executors of the estate rather than Gladys because the three children believed Gladys, who was ninety-one years old at the time, did not have the ability to act as executor.
Following Ed, Sr.'s funeral, Gladys made known her desire that her estate be divided equally among her three children. At about the same time, Marilyn suggested to Ed, Jr.in Gladys's presencethat they should figure out some way to disinherit Roger because he was wealthy and did not need anything. Ed, Jr. refused to go along with this suggestion.
Gladys suffered from many illnesses, some of which were attributed to old age. She had a severe hearing problem, poor eyesight, hypertension, chronic dizziness, gout, breast cancer, glaucoma, degenerative joint disease, skin conditions, and a bowel condition. She also suffered from depression and progressive dementia. A hospital discharge summary dated October 14, 1996 covered a period of hospitalization from October 5 through October 14. The discharge summary included a final diagnosis of malignant hypertension, dementia with delirium, primary and degenerative. An October 8, 1996 consultation prepared by a psychiatrist concluded that Gladys had primary dementia with senile onset. A neurologist who examined Gladys noted in his report dated October 8, 1996 that Gladys had short-term memory deficits and cognitive deficits, but he also noted that her memory deficit "[d]oes not seem that bad for 90 years of age but clearly is impaired." Gladys took numerous daily medications.
After Ed, Sr.'s death, the three children discussed a guardianship for Gladys because of her health problems. Marilyn objected and nixed the idea.
Thereafter, Marilyn grew very close to her mother, calling on her five to six times a day to check on her and running Gladys's household as far as hiring caretakers. Gladys in turn became more and more dependent on Marilyn.
On October 5, 1997, the three children and Gladys had a telephone conference to discuss Gladys's assets, that is, where the money was, how much money there was, and what was to be done with it. Marilyn suggested that Gladys needed $1000 per month for living expenses and that she Marilynneeded more than the $125 per week she was receiving in wages from Hardsocg. Marilyn proposed taking Hardsocg as her third of Gladys's estate and she and her brothers could balance any difference as necessary. No agreement was reached on this proposition.
Following this conversation, Marilyn contacted attorney Rich Gaumer to prepare *457 a trust that would in effect direct the trustee to distribute all stock in Hardsocg to Marilyn. Gladys rejected the trust draft because it named a bank as trustee, something that Gladys did not want.
On November 10, 1997, Marilyn engaged attorney Vern Ball, an experienced probate lawyer, concerning Gladys's legal work, primarily relating to Gladys's gift of her Hardsocg stock to Marilyn. Ball's billing records for this work are in evidence, and they identify the meetings and phone calls he had with Marilyn and Gladys. Ball and Marilyn went to great lengths to document Gladys's intentions and competency even to the point of tape-recording at least one meeting.
Ball saw to it that the general power of attorney, which prohibited Marilyn from making gifts to herself, was amended. Tammy S. Huddleston of South Ottumwa Bank was added to the document as attorney-in-fact to allow gifts to Marilyn. There was considerable confusion in the testimony about whether Gladys actually signed the amended general power of attorney.
Ed, Sr.'s estate included the 500 shares of Hardsocg stock valued at $296,193.79. Because of the expense, the co-executors decided against an appraisal of the stock and used the tax assessment to establish the value. Unbeknownst to her two brothers, Marilyn hired an independent appraiser to determine the value of the shares for the transfer to her. The appraiser determined the value to be $207,919.10.
Ball recognized the potential issues that might arise with any gift of stock to Marilyn that was to the detriment of her two brothers. So Ball went to what the district court described as "extraordinary and careful lengths to determine and document Gladys's competency to execute the gift." To that end, Ball wrote a letter to Gladys's treating physician, Dr. Steven R. Ellison, to determine Gladys's "testamentary capacity" to make the gift. In the letter, Ball explained to the doctor that Gladys had to have sufficient mental capacity to (1) understand the nature and extent of the instrument she has executed; (2) know and understand the nature and extent of her property; (3) understand the gift she desires to make; and (4) remember the natural objects of her bounty.
Ed, Sr.'s estate was closed on June 22, 1998. Three days later, Gladys signed a declaration of gift document that transferred all of her shares of stock in Hardsocg to Marilyn. The gift was conditioned upon (1) Gladys receiving $1000 per month from Hardsocg or Marilyn for the remainder of Gladys's life and (2) payment by Marilyn or Hardsocg of all of Ball's fees. Gladys signed the document in Dr. Ellison's office. Dr. Ellison also signed the document, stating that the gift to Marilyn was voluntary and not a result of undue influence. Dr. Ellison however did not thoroughly question Gladys about, or investigate the issues, of undue influence as Ball had requested.
Ball informed the two brothers of the stock transfer after it was made. The record is clear that neither brother knew what was happening until after the transfer was completed.
Shortly thereafter, Ball sent Tammy Huddleston instructions for completing the stock transfer to Marilyn provided that Huddleston believed "Gladys still has sufficient mental capacity and present desire to do so." On July 17 Gladys transferred the 500 shares of Hardsocg stock to Marilyn. Gladys executed the assignment on the shares of stock with Huddleston signing the assignment as attorney-in-fact. At the time of the transfer, Gladys was just short of her 92nd birthday.
*458 Either on July 21 or July 29 Ball met with Gladys and Marilyn to determine what to do with the remainder of Gladys's estate. No decision was made on that date. However, later, Ball drafted a trust document dividing the remaining assets among the three children. On August 26 Gladys executed the trust document, which named her as trustee.
Marilyn paid for Ball's services. His time records show that he spent eighteen hours with Marilyn and seven hours with Gladys.
Hardsocg was generating at least $2500 per month in profit. Because the $1000 per month to Gladys was not enough to meet her needs, assets from the trust were used to supplement Gladys's care.
On September 29 Marilyn was named durable power of attorney for health care decisions on behalf of Gladys. Ball also prepared this document. On October 29 Gladys executed a codicil to her June 19, 1995 will. In the codicil, Gladys directed the transfer of her assets to the revocable trust and named Ed, Jr. and Marilyn as co-executors. Ball also prepared the codicil.
On May 13, 2001, Gladys was admitted to the hospital because of a bowel obstruction. The hospital records stated the following:
She was kept comfortable with analgesics on a p.r.n. basis. She was not considered to be a surgical candidate as per her previous Advanced Directives and her daughter's wishes. Her condition continued to slowly deteriorate and she expired on May 21, 2001.
Gladys's final diagnosis included, among other things, dementia.
Before Gladys died, Marilyn told Roger, who was in the eastern part of the United States on vacation, that there was neither an urgency nor need to return home. Roger later learned from Ed, Jr., whose wife had contacted the hospital, that Gladys was terminal. Marilyn told neither brother of the possibility of surgery to correct the blockage. The brothers did not learn of Marilyn's recommendation against surgery until after this suit was filed.
Before Gladys died, Marilyn took all of her mother's jewelry, claiming that Gladys had given the jewelry to her. The gift was made without the approval of Tammy Huddleston as provided by the amended power of attorney. Marilyn neglected to tell her brothers that Gladys had given her the jewelry.
IV. Proceedings.
On July 25, 2001, Ed, Jr. and Roger filed this lawsuit against Marilyn, alleging that the stock transfer was ineffective because of undue influence, misuse of a confidential relationship, and a breach of a fiduciary duty. In her answer, Marilyn denied these allegations. Additionally, she asserted the stock was effectively transferred and that a gift was completed. She admitted she had a fiduciary relationship with Gladys. In a response to a request for admission, Marilyn admitted the existence of a confidential relationship with Gladys to the extent Gladys had granted her a power of attorney.
Following a bench trial, the district court concluded that clear, convincing, and satisfactory evidence established that Marilyn had exerted undue influence over Gladys relative to the stock transfer. The court set aside the transfer, ordered a full accounting to the brothers of all financial transactions occurring since the date of the transfer, and directed that the stock certificates be delivered to the district court clerk pending further order of the court.
*459 Additionally, the court ordered that if Marilyn wished to retain the stock, she had to pay each brother $84,731.26 within sixty days of the ruling. The $84,731.26 represented one-third of the stock value at the time of the transfer. The court entered judgment in favor of each brother for $84,731.26. If Marilyn failed to make such payments, the court ordered the stock sold within six months of the court's ruling. Proceeds from the sale would be applied to the costs of the action and to the judgments awarded to the two brothers. The balance of the proceeds would be paid to Marilyn.
Marilyn appealed and later applied for a supersedeas bond. The district court stayed the proceedings upon the posting of a supersedeas bond of $211,828.15. Later, Ed, Jr. and Roger, each subsequently filed a satisfaction of judgment stating the judgment "is paid and satisfied in full."
Ed, Jr. and Roger then moved to dismiss the appeal, contending that Marilyn's payment of the judgments resulted in her becoming the sole owner of the company, a substantial benefit. Because she received a substantial benefit, the brothers argued that Marilyn waived her right to appeal.
Marilyn resisted the motion, asserting that she made the payments involuntarily to avoid sale of the company's assets, she could not raise sufficient funds for the supersedeas bond, and she received no benefit by satisfying the judgments. Therefore, she concluded, she did not waive her right to appeal. We ordered the parties to brief and argue the appellate-waiver doctrine with the substantive issues raised on appeal.
V. The Issues.
On appeal, Marilyn raises two issues. First, she contends the district court erred in setting aside the stock transfer on grounds that the transfer was procured by undue influence. Second, she contends that her payment of the judgments in lieu of posting a large and unobtainable supersedeas bond did not constitute a waiver of her right to appeal. We will consider the waiver issue first and then proceed to the undue influence issue.
VI. The Appellate-Waiver Issue.
Pursuant to the appellate-waiver doctrine, "[o]ne who accepts material and substantial benefits under a judgment or decree may not ordinarily challenge the provisions under which such benefits are awarded." In re Bruce, 522 N.W.2d 67, 73 (Iowa 1994). To be effective, the waiver must be made voluntarily, intentionally, and with knowledge of the circumstances. Johnson v. Johnson, 301 N.W.2d 750, 752 (Iowa 1981). We have retreated from our strict application of the doctrine in earlier cases because of the potential for harsh results. Id. The burden of proof is on the party claiming waiver to show facts supporting such claim. Id. at 753.
We view the payments here were made under compulsion of court order. According to the order, Marilyn's failure to make the payments would result in a sale of the company's assets. In view of the order, we can hardly say that Marilyn "voluntarily" made the payments. Hegtvedt v. Prybil, 223 N.W.2d 186, 188 (Iowa 1974) ("Payment is not voluntary when it is made under compulsion of court order.").
The motion to dismiss the appeal is denied.
VII. The Undue Influence Issue.
The district court found that clear, convincing, and satisfactory evidence established that a confidential and fiduciary relationship existed between Marilyn and *460 Gladys. As to these relationships, we agree with and adopt the following district court findings:
The evidence establishes by clear, convincing, and satisfactory evidence that a confidential relationship existed between Gladys and Marilyn. Marilyn managed the Hardsocg business interests, in one degree or another, in an increasingly dominant manner, from 1993 to the time of Gladys's death. In addition, Marilyn either personally took care of or saw that Gladys's daily physical needs were met. A very close, loving, and confidential relationship existed between Marilyn and Gladys at the time of the gift of Hardsocg on June 25, 1998, and prior thereto.
It is established by clear, convincing, and satisfactory evidence that a fiduciary relationship existed between Gladys and Marilyn. Marilyn held a power of attorney from Gladys since at least June 19, 1995. Clearly, Marilyn was under a duty to act for and advise Gladys pursuant to her duties as attorney-in-fact. Gladys placed her complete confidence in Marilyn and was subject to Marilyn's domination and influence.
In addition, as mentioned, Marilyn admitted in her answer that she had a fiduciary relationship with Gladys and admitted in a response to a request for admissions that she had a confidential relationship with Gladys.
Our review of the district court ruling convinces us that although the court found that Marilyn breached her fiduciary and confidential relationship with Gladys relative to the stock transfer, the court did not shift the burden of proof to Marilyn. Rather without the benefit of the presumption, the court found that clear, convincing, and satisfactory evidence established that Marilyn exerted undue influence on Gladys regarding the transfer. In making that determination, the court went through the earlier mentioned four factors necessary to establish undue influence. We set out those findings, which we adopt as our own.
A. A person is susceptible to undue influence. As to this factor the court found:
The evidence establishes by clear, convincing, and satisfactory evidence that Gladys was susceptible to undue influence by Marilyn. Gladys, born July 24, 1906, was 91 years of age at the time of the gift of Hardsocg stock on June 25, 1998. Gladys had been diagnosed with primary degenerative dementia, senile onset, by psychiatrist Ronald R. Berges, D.O., on October 8, 1996. A diagnosis of dementia with delirium, primary and degenerative, was made by Dr. Macalalad, M.D. in October of 1996. Although Gladys was a strong-willed and opinionated woman, she was clearly susceptible to undue influence by Marilyn.
Several witnesses, including her attending physician Dr. Ellison, testified that Gladys was a strong-willed and opinionated person. These same witnesses testified that Gladys was mentally competent. From their testimony, it appears that Gladys was a very nice and decent person who had opinions about what she wanted to do. She was also described as high average in intelligence. She received her teaching certificate from Drake University.
Notwithstanding this evidence, the medical records we have mentioned and the medical opinions the district court referred to leave no doubt in our minds that Gladys's mental and physical condition was weakened during the critical period of time leading up to the transfer of the stock to Marilyn. By the time of Ed, Sr.'s death, all three children questioned Gladys's ability to serve as executor of her husband's estate. The children even discussed the *461 idea of a guardianship for Gladys because of her health problems. Because of her weakened condition, Gladys was readily subject to influence. Such a condition "has a direct bearing on the issue of undue influence." Herm, 284 N.W.2d at 200; see also Monahan v. Roderick, 183 Iowa 1, 6, 166 N.W. 725, 727 (1918) ("Conduct which might be insufficient to unduly influence a person of mental strength might be sufficient to so operate upon a failing mind.").
Moreover, Dr. Ellison did not adequately question Gladys to determine her "testamentary" capacity to make the transfer and whether she was making the transfer because of Marilyn's undue influence over her. Additionally, the testamentary standard that Ball instructed the doctor to use was inadequate for purposes of the transfer. A higher degree of mental competency is required for transactions of ordinary business than is necessary for testamentary disposition of property. Costello v. Costello, 186 N.W.2d 651, 654-55 (Iowa 1971).
B. There is opportunity to exercise undue influence and a disposition to influence. Relative to these two factors, the district court found:
Marilyn had the opportunity to exercise undue influence over Gladys. Marilyn returned to Ottumwa, Iowa in 1993 and lived there continuously through the date of Gladys's death on May 21, 2001. Gladys's other two children, Ed and Roger, lived in West Des Moines and Huntington Beach, California, respectively, and were not in as frequent contact with Gladys in her later years. Marilyn is to be commended for her loving care of Gladys in Gladys's declining years. Ironically, that very care also carried with it the opportunity for Marilyn to exercise undue influence over Gladys. Marilyn had a disposition to unduly influence Gladys for the purpose of procuring the gift of the Hardsocg stock. As noted, Marilyn started the legal work on the stock transfer through attorney Vern Ball in November of 1997, while a co-executor with Ed, concerning Mr. Mendenhall's Estate. Three days after Mr. Mendenhall's Estate was closed on June 22, 1998, Gladys executed the declaration of gift of Hardsocg stock to Marilyn. The Court does not conclude that Marilyn's only intent concerning Gladys was to unduly influence her for the purpose of obtaining the gift of Hardsocg stock. Marilyn clearly loved and cared for her mother and spent countless hours providing for her welfare. Even so, Marilyn clearly influenced Gladys as concerns the gift of Hardsocg stock.
There is other evidence bearing on these two factors. For example, Gladys had executed a will in June 1995 that left her property in equal shares to her three children. Shortly after Ed, Sr. died Gladys talked about dividing her estate equally among her three children. Ball testified that at his first meeting with Gladys in December 1997 Gladys wanted Marilyn to have the company, but as far as her whole estate was concerned she wanted "to treat her boys ... evenly." Ball was concerned about the issue of undue influence because he was aware Marilyn was in a confidential or fiduciary relationship with Gladys. It was that concern that prompted Ball to have Gladys's family physician examine Gladys and attest that Gladys was competent and that the transfer of the Hardsocg stock was not the result of undue influence.
Thereafter, Ball met with Gladys on February 12, April 21, and the latter part of July 1998. At the February 12 and April 21 meetings, Gladys was still considering transferring the stock to Marilyn but dividing her entire estate evenly among her three children.
*462 The July meeting took place after the transfer of stock to Marilyn. Ball tape-recorded that meeting. It is clear from the recording that Gladys was unsure on how to divide the balance of her estate. One month later, Gladys executed a trust in which she was the trustee and in which she divided her remaining assets among her three children. Marilyn would therefore receive in value approximately half of the estate by virtue of the stock transfer and one-third of the balance of the estate by virtue of the trust. In total, Marilyn stood to receive two-thirds of Gladys's estate. See Miller v. Doan, 233 Iowa 315, 317, 6 N.W.2d 318, 320 (1942) ("If there is some direct or substantive evidence of undue influence, the fact that the last will differs from a previous one, that it is unnatural or inequitable, may be considered as tending to show the influence operated on the mind of the testator.").
From all of this evidence, we find that Marilyn was on a mission to make sure that her mother transferred the Hardsocg stock to her. Her intention was clearly apparent from the telephone conversation that took place among the mother and three children shortly after Ed, Sr. died. In that conversation, Marilyn proposed taking the Hardsocg stock as her third of Gladys's estate. One month later Marilyn hired Ball and together they not only accomplished this mission but more: Rather than ending up with one-third of Gladys's estate, Marilyn stood to end up with two-thirds.
Ball was not Gladys's attorney; rather he was Marilyn's attorney. Marilyn hired him and paid him. This leads to another disturbing fact. No one saw fit to have Gladys seek proper independent advice of her own choosing. In addition, Marilyn and Ball did not inform the brothers of the transfer until after it was completed, thereby depriving Gladys of the brothers' advice.
Proper independent advice in these circumstances means "showing that the donor had the benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was furthermore so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidently as to the consequences to himself of his proposed benefaction." Merritt, 226 Iowa at 528, 284 N.W. at 404 (citation omitted); see also Luse v. Grenko, 251 Iowa 211, 219, 100 N.W.2d 170, 175 (1959) (holding that independent advice to the transferor is an important consideration where there is a confidential relation between grantor and grantee who is in position of dominance; no showing that siblings were made aware of plan to make defendant joint payee of mother's bank account and bonds); McGaffee, 244 Iowa at 887, 56 N.W.2d at 39-40 (grantor's lack of independent advice material on question of undue influence by grantee in suit by grantor against grantee for cancellation of instruments assigning grantor's businesses to grantee). A lack of independent advice is sometimes sufficient in and of itself to set aside conveyances and contracts executed under such circumstances. Marron, 235 Iowa at 113, 16 N.W.2d at 17.
Clearly, the transfer was materially beneficial to Marilyn while at the same time materially disadvantageous to Gladys. The company was earning $20,000 per year, all of which would go to Gladys absent the stock transfer. The stock transfer limited Gladys's access to the company's income to just $12,000 per year. Gladys was giving up at least $8,000 per year to help with her living expenses. As it turned out, $12,000 per year was not *463 enough to meet Gladys's needs; assets from the trust were used to supplement her care.
C. Result must clearly appear to be the effect of undue influence. As to this last factor, the district court found:
The result (gift of Hardsocg stock) clearly appears to be the effect of undue influence by Marilyn over Gladys. The timing of the gift as noted above, the fact that her brothers Ed and Roger were not advised of the gift ahead of time, the extraordinary lengths that attorney Vern Ball went to establish Gladys's competency at the time of the gift, and much of the other evidence produced in this case established the undue influence by Marilyn over Gladys.
To this we add some additional evidence. Apparently, Gladys had the notion that if she transferred the stock to Marilyn, Marilyn would keep her out of a nursing home. Marilyn knew this, and we are satisfied she used this knowledge to her advantage to convince Gladys to transfer the stock to her.
In sum, four significant factors that this court has said bear on the question of undue influence are present here: weakened mental condition of the grantor, relationship of the grantor and the grantee, inequality of distribution, and activity of the grantee. See Wilson, 240 Iowa at 33, 34 N.W.2d at 915. To this we add the stealthy way in which the transfer was made, that is, concealing the transfer from the brothers until after it was completed. See Telsrow v. Telsrow, 237 Iowa 672, 680-81, 22 N.W.2d 792, 798 (1946). We are satisfied the evidence clearly, convincingly, and satisfactorily establishes that Marilyn exerted undue influence over Gladys concerning the stock transfer. The decision to make the transfer was not Gladys's but Marilyn's.
VIII. Disposition.
Although we agree with the district court, we think its judgment should be modified as follows. Because Marilyn has paid for the stock and now owns it, we think the accounting the district court ordered should conclude with the date Marilyn paid for the stock. If the clerk of the district court of Wapello County has not already done so, the clerk shall release the stock to Marilyn. With those modifications, we affirm the judgment of the district court and remand the case to that court for further proceedings consistent with this opinion.
AFFIRMED AS MODIFIED AND CASE REMANDED WITH DIRECTIONS.
All justices concur except WIGGINS, J., who takes no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579494/ | 516 F. Supp. 2d 128 (2007)
Ruby TAYLOR, Plaintiff,
v.
Elaine L. CHAO, Secretary of Labor, et al., Defendants.
Nos. 03-1761 (RMC), 05-810.
United States District Court, District of Columbia.
October 19, 2007.
*129 *130 David H. Shapiro, Swick & Shapiro, P.C., Washington, DC, for Plaintiff.
Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, Robin M. Earnest, Riverdale, MD, for Defendants.
MEMORANDUM OPINION
ROSEMARY M. COLLYER, District Judge.
Can an employer be held liable for sexual harassment when a plaintiff was offended by some managers' comments but did not complain for months, and when she did complain the employer investigated quickly and the alleged harassment ceased? The answer is no. Plaintiff Ruby Taylor[1] brought this action against her employer, the Pension Benefit Guaranty Corporation ("PBGC"), alleging race and gender discrimination due to sexual harassment by managers. See 42 U.S.C. § 2000(e) et seq. PBGC is not liable because Ms. Taylor failed to report the alleged harassment for a substantial period of time. When she finally did report it, PBGC promptly investigated and there were no further incidents. Ms. Taylor also alleges retaliation, but this claim lacks merit because the alleged retaliatory actions either (1) were too long after her complaint of discrimination to be causally related; (2) were not materially adverse to cause a reasonable employee to forego filing a discrimination charge; or (3) the employer has presented a non-discriminatory reason for its actions and Ms. Taylor has failed to present evidence of pretext. Thus, summary judgment will be granted to PBGC,
I. FACTS
Ms. Taylor is an African American woman who is employed currently, and at the times relevant to her complaints, as an auditor by PBGC. Compl. in Case No. 03-1761 *131 ("1st Compl.") ¶ 4; Compl. in Case No. 05-810 ("2d Compl.") ¶ 4.[2] She is an auditor with PBGC's Division of Insurance Supervision and Compliance, formerly known as the Pre-Termination Processing Division ("PPD").2d Compl. ¶ 4. PPD was divided into two sections, auditors and financial analysts. Pl.'s Ex. 3, Joy Dep. at 32. Jonathan Henkel supervised the auditors, including Ms. Taylor. Pl.'s Ex. 4, Bacon Aff. at 3. The head of PPD was Robert Joy, Pl.'s Ex. 3, Joy Dep. at 7, and Mr. Joy's supervisor was Bernie Hagans, Director of the Insurance Operations Department. Id. at 67. Ms. Taylor's supervisors Mr. Hagans, Mr. Joy, and Mr. Henkel were all Caucasian men. Ms. Taylor was a "very good employee." Id. at 64.
Robert Bacon, an African American, supervised the analysts. Pl.'s Ex. 4, Bacon Aff. at 3. Ms. Taylor alleges that she was sexually harassed by Mr. Bacon in a work atmosphere that was "permeated with sexual discussion and innuendo." Pl.'s Opp. at 3. She contends that the supervisors "fed into" the atmosphere, that PPD head Mr. Joy called her "sweetie" and stared at her. Pl.'s Ex. 7, Taylor 2007 Dep. at 8 & 12. She also claims that once when she asked him a work-related question, he flirtatiously responded that he would do anything she wanted. Id. at 8. In addition, on more than one occasion, Mr. Hagans complimented Ms. Taylor on her appearance. Pl.'s Ex. 9, Hagans Dep. at 59-60,
Ms. Taylor further complains that a team building exercise that took place in Rock Creek Park in the summer of 2001 became "sexually charged." Pl.'s Opp. at 5. Employees formed two teams for a seavenger hunt for items on a list Mr. Henkel created. Pl.'s Ex. 14, Henkel Dep. at 47 & 52. The list included "plastic toy (adult)" and "4 strands of hair." Pl.'s Ex. 15. Ms. Taylor produced a strand of her red hair for her team. Pl.'s Ex. 12, Logan Dep. at 72-74. Another auditor on her team, Michael Logan, then asked Ms. Taylor whether her hair was "red all over" and people laughed. Id. at 74. Mr. Bacon and Mr. Henkel gave Ms. Taylor's team 150 points due to the "embarrassing moment." Pl.'s Ex. 14, Henkel Dep. at 120.
Specifically with regard to Mr. Bacon, she alleges that he harassed her from some time in 2001 until April of 2002.[3] Pl's Opp. at 7-14. First, Mr. Bacon began to tell Ms. Taylor that he wanted to be her "close friend." Pl.'s Ex. 6, Taylor 2005 Dep. (Day 2) at 20. Mr. Bacon told Mr. Joy that Ms. Taylor "would do anything to move ahead." Id. In October of 2001, Mr. Bacon assured Ms. Taylor that he would make sure she received an outstanding performance evaluation. Pl.'s Ex. 2, Taylor First Aff. at 7. When Ms. Taylor then did receive an outstanding evaluation, Mr. Bacon asked, "what are you going to do for me?" Pl.'s Ex. 2, Taylor First Aff. at 10.
Mr. Bacon allegedly made `other comments as well. In 2001, Mr. Bacon told Ms. Taylor that she did not love her fiancé because if she did, she already would have married him. Def.'s Ex. 11, First EEO Compl. Att. at 1-2. Mr. Bacon told Ms. Taylor that he could beat up her fiancé. Id. at 2. Also sometime in 2001, Mr. Bacon flirted with Ms. Taylor and she asked him to stop. Id. When she told him to stop sexually harassing her, Mr. Bacon told her *132 that no one would believe her and that they would think she was coming on to him. Id. Mr. Bacon allegedly bragged that he did not need to pursue women because they flocked to him, and that despite this, he had never cheated on his wife. Id. at 3-6.
In April of 2002, Ms. Taylor asserts that she had a number of confrontations with Mr. Bacon resulting in her complaint to PBGC's Human Resources Department ("HRD"). On April 3 of 2002, Ms. Taylor was wearing a suit jacket with a short-sleeved blouse underneath. Id. at 5. She took off her jacket because she was hot, and Mr. Bacon said, "I see you flaunting that black." Id. On April 4, 2002, Mr. Bacon stopped by Ms. Taylor's office. Id. She refused to turn around to say hello, since she was busy working and had already said hello to him that day. She felt that he bullied her by insisting that she turn around to talk to him. Id. The next day, Friday April 5, when Ms. Taylor was in the copy room, Mr. Bacon came in to speak to her. Id. at 6. She tried to ignore him, but he followed her around the room calling her "baby" and saying, "You know you see me. You'd better turn around." Id. He approached her with his hands toward her neck as if to choke her. Id. She told him not to touch her, and he replied that he would if he wanted to. Id. She told him to stop harassing her and that she would complain to management if he continued. Id. Mr. Bacon responded that management would not do anything because he was well liked and that she should appreciate the outstanding evaluation she received. Id.
On April 9, 2002, Ms. Taylor contacted HRD, and she was referred to Janice Mackey, the Equal Employment Opportunity ("EEO") manager.[4] Def.'s Ex. 11, First EEO Compl. at 8. Under PBGC's policy for the prevention of sexual harassment,[5] Ms. Taylor had the option to go to an EEO counselor or to follow the "sexual harassment exception" to the individual complaint procedures under which an employee can request an investigation. Pl.'s Ex. 21, Mackey Aff. at 3; see Def.'s Ex. 18, Policy 30-4. Ms. Taylor elected to proceed under this exception and requested that PBGC launch an investigation. Id. at 4. Attorney-Advisor Tim Callaghan of the Office of the General Counsel started investigating on April 12, 2002, and on April 23, Mr. Callaghan issued a Report of Inquiry. Def.'s Ex. 17, Report of Inquiry. The Report indicated that Ms. Taylor alleged sexual harassment, Mr. Bacon denied the allegations, and the remaining PBGC personnel interviewed by Mr. Callaghan expressed surprise and disbelief that Mr. Bacon would sexually harass someone. Id. at 2. There were no witnesses to the alleged incidents of harassment, other than Ms. Taylor and Mr. Bacon. Id. The Report did not find sufficient evidence that Mr. Bacon had sexually harassed Ms. Taylor and thus no discipline was taken against Mr. Bacon. Def.'s Ex. 34, Mackey Aff. at 16.
Ms. Taylor contends that after she filed her EEO complaint her supervisors retaliated against her. Pl.'s Opp. at 15. Ms. *133 Taylor's performance evaluation was downgraded from "outstanding" in 2001, to "excellent" in 2002, to "fully effective" in 2003. Pl.'s Ex. 11, Taylor Second Aff. at 6. In June of 2002, Mr. Hagans told Ms. Taylor that she needed to improve her "negative behaviors." Pl.'s Ex. 2, Taylor Aff. at 79. Ms. Taylor also alleges that her supervisors started withholding work, Pl.'s Opp at 18, and that in fall of 2003 she was required to submit work plans to her supervisor twice per month instead of once per month as she had previously done. Pl.'s Ex. 7, Taylor 2007 Dep. at 67; Def.'s Ex. 32, Second EEO Compl. In early 2004, Mr. Joy told another supervisor, Michelle Gray, that he would not recommend Ms. Taylor for a position that PBGC might create because he did not trust her. Pl.'s Ex. 3, Joy Dep. at 82-83. The position was never created. Id. at 84.
Ms. Taylor also claims that she was improperly charged absent without leave ("AWOL") in October of 2003, when she in fact had submitted a leave slip. Id. at 97. Later, PBGC rescinded the AWOL charge, and Ms. Taylor was paid for her time off. Id. at 104.
Ms. Taylor sought EEO counseling on May 7, 2002 and filed an EEO complaint on August 28, 2002, concerning the 2001 and 2002 behaviors summarized above. See Def.'s Ex. 11. On August 19, 2003, she filed suit against PBGC[6] alleging race and gender discrimination, harassment, and retaliation. See Civil Case No. 03-1761. On October 17, 2003, she sought EEO counseling based on her claims of further retaliation. She then filed another EEO complaint on February 5, 2004, see Def.'s Ex. 32, and another court complaint on April 22, 2005, alleging continuing discrimination, harassment, and retaliation. See Civil Case No. 05-810. The cases were consolidated, and now PBGC has moved for summary judgment. The matter is ripe and ready for decision.
II. SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S. Ct. 2505, A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S. Ct. 2505. In addition, the nonmoving party may not *134 rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (citations omitted).
III. ANALYSIS
A. Discrimination Based on Allegations of Hostile Work Environment
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin in hiring decisions, in compensation, terms and conditions of employment, and in classifying employees in a way that would adversely affect their status as employees. 42 U.S.C. § 2000e-16. The Supreme Court has determined that the language of Title VII "is not limited to economic or tangible discrimination. The phrase `terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (quoting Meritor Say. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986)) (internal quotation marks omitted). Therefore, Title VII is violated when a plaintiff demonstrates that the "workplace is permeated with discriminatory intimidation, ridicule, and insult" and that this behavior is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 21, 114 S. Ct. 367.
An employer can be shielded from liability on a claim of harassment if it establishes (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); see also Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998); Roebuck v. Washington, 408 F.3d 790, 794-95 (D.C.Cir. 2005).[7]
PBGC has established an affirmative defense in this case. PBGC maintains a policy of equal employment opportunity and against sexual harassment. Def.'s Ex. 18. The policy is available on PBGC's internet website, and it directs employees who believe they have been harassed to contact an EEO counselor or the EEO manager immediately. Id. On October 2, 2001, PBGC's Chief Management Officer repeated this policy in an e-mail to all PBGC employees. See Def.'s Ex. 21. ("you . . . must contact an EEO Counselor within 45 days of the conduct that is believed to be harassing"). Ms. Taylor was aware of the anti-harassment policy. Pl.'s Ex. 7, Taylor 2007 Dep. at 19, 21. Because it has an anti-harassment policy which informs employees where to report allegations of harassment, PBGC has established the first element of an affirmative defense. See, e.g., Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481, 491-92 (S.D.N.Y.1998) (employer's *135 anti-harassment policy establishes first element of defense).
PBGC has also shown that Ms. Taylor unreasonably failed to take advantage of the preventative or corrective opportunities provided by PBGC. Ms. Taylor alleges[8] that Mr. Bacon started harassing her in 2001 when he told her he wanted to be her "close friend," see Pl.'s Ex. 6, Taylor 2005 Dep. (Day 2) at 20, and that he would make sure she received an outstanding evaluation. Pl.'s Ex. 2, Taylor First Aff. at 7. It was also in 2001 that Mr. Bacon told Ms. Taylor that she did not love her fiancé because if she did she already would have married him, that he told her he could beat up her fiancé, and that he flirted and bragged that women flocked to him. Def.'s Ex. 11, First EEO Compl. Att. at 1-6. The scavenger hunt in Rock Creek Park where Mr. Logan asked Ms. Taylor whether her hair was "red all over" occurred in the summer of 2001. Nevertheless, Ms. Taylor did not complain to her supervisors or to PBGC's HRD until April 9, 2002. Due to this long delay in reporting the alleged problem, Ms. Taylor failed to take advantage of any preventive or corrective measure that PBGC might have provided. Earlier reporting may have stopped Mr. Bacon from telling Ms. Taylor he thought she was flaunting her bare arms on April 3 of 2002, from insisting that she turn around to talk to him on April 4, and from calling her "baby" on April 5.
When Ms. Taylor finally contacted HRD on April 9, PBGC acted promptly. Attorney-Advisor Tim Callaghan of the Office of the General Counsel started investigating on April 12, 2002, and completed his investigation on April 23. Ms. Taylor has not asserted any additional allegations of sexual harassment by Mr. Bacon or anyone else after the April 2002 investigation.
Ms. Taylor argues that she did not delay (and that PBGC did not act promptly) because she complained to her friend David Smith, a team leader in the Insurance Operations Division, about Mr. Bacon. Pl.'s Ex. 18, Smith Aff. at 4-7. While Mr. Smith is a team leader and therefore in management at PBGC, he was not Ms. Taylor's supervisor and he was not an EEO counselor or manager. Ms. Taylor's informal complaint to Mr. Smith did not constitute notice to PBGC sufficient to bar PBGC's assertion of the affirmative defense.
Even if the Court did not find that the affirmative defense applied, Ms. Taylor's sexual harassment claim must be dismissed because she does not allege conduct sufficiently severe and pervasive to constitute a hostile work environment. To establish a prima facie hostile work environment claim, a plaintiff must demonstrate (1) that she is a member of a protected class, (2) that she was subject to unwelcome harassment, (3) that the harassment occurred because of her race or gender, (4) that the harassment affected a term, condition, or privilege of employment, and (5) that the employer knew or should have known of the harassment, and failed to act to prevent it. Lester v. Natsios, 290 F. Supp. 2d 11, 22 (D.D.C.2003) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)).
In determining whether a hostile work environment claim is substantiated, a court must look at all the circumstances of the plaintiff's employment, specifically focusing *136 on such factors as the frequency of the discriminatory conduct, its severity, whether it was threatening and humiliating or was merely offensive, and whether it unreasonably interfered with the employee's work performance. Harris, 510 U.S. at 23, 114 S. Ct. 367. The conduct must be sufficiently extreme to constitute an alteration in the conditions of employment, so that Title VII does not evolve into a "general civility code." Faragher, 524 U.S. at 788, 118 S. Ct. 2275. Consequently, "`mere utterance of an . . . epithet which engenders offensive feelings in an employee' does not sufficiently affect the conditions of employment to implicate Title VII." Harris, 510 U.S. at 21, 114 S. Ct. 367 (quoting Meritor, 477 U.S. at 67, 106 S. Ct. 2399). Further, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. at 778, 118 S. Ct. 2275. A plaintiff must demonstrate that the alleged events leading to the hostile work environment were connected, since "discrete acts constituting discrimination or retaliation claims . . . are different in kind from a hostile work environment claim that must be based on severe and pervasive discriminatory intimidation or insult." Lester, 290 F.Supp.2d at 33 (citing AMTRAK v. Morgan, 536 U.S. 101, 115-16, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)). "Workplace conduct is not measured in isolation." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001).
For example, in George v. Leavitt, 407 F.3d 405 (D.C.Cir.2005), the D.C. Circuit held that statements by three employees over a six-month period telling a plaintiff to "go back where she came from," separate acts of yelling and hostility, and allegations that the plaintiff was not given the type of work she deserved, were isolated instances that did not rise to the level of severity necessary to find a hostile work environment. Id. at 416-17. Similarly, in Singh v. United States House of Representatives, 300 F. Supp. 2d 48, 54-57 (D.D.C. 2004), this Court found that a plaintiffs allegations that her employer humiliated her at important meetings, screamed at her in one instance, told her to "shut up and sit down" in one instance, and was "constantly hostile and hypercritical" did not amount to a hostile work environment, even though these actions may have been disrespectful and unfair. But see Boyd v. Snow, 335 F. Supp. 2d 28, 34-35 (D.D.C. 2004) (harassment not challenged where plaintiffs supervisor repeatedly made remarks referring to sex acts and genitals, touched his private parts in front of plaintiff, and grabbed plaintiffs shoulders and backed her into a wall); Lucero-Nelson v. Washington Metro. Area Transit Auth., 1 F. Supp. 2d 1, 7-8 (harassment presumed where plaintiffs supervisor asked her questions about her sex life and racial preferences for sex partners, commented on her appearance and asked other employees to admire her legs, and asked plaintiff if she was a virgin when she married).
Here, Ms. Taylor alleges the following incidents of harassment:
(1) The summer 2001 scavenger hunt in Rock Creek Park when Mr. Logan asked if her hair were "red all over";
(2) Mr. Hagans' compliments her on her appearance;
(3) Mr. Joy calling her "sweetie";
(4) Mr. Bacon's comments in 2001 when he said that he wanted to be Ms. Taylor's "close friend," that he would make sure she received an outstanding evaluation, that she did not love her fiancé, that he could beat up her fiancé, and *137 flirted and bragged about his attractiveness to women.
(5) Mr. Bacon's comments in April 2002 when he said that Ms. Taylor flaunted her bare arms when she took off her jacket; insisted that she turn around to talk to him; followed her around the copy room calling her "baby" and insisting that she turn around; and said that she should appreciate the outstanding evaluation she received.
These allegations are insufficiently severe and pervasive to constitute an hostile work environment. While Ms. Taylor may have been genuinely offended at some of the comments made to her, these are the type of offhand comments and isolated incidents that simply do not amount to a discriminatory change in the terms and conditions of employment. Faragher, 524 U.S. at 778, 118 S. Ct. 2275. Title VII is not a civility code. Id.
B. Retaliation
Ms. Taylor also contends that PBGC retaliated against her after she complained of discrimination. Title VII prohibits an employer from retaliating against an employee because she "has opposed any practice made an unlawful employment practice by this title, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show that: 1)she engaged in protected activity; 2)she suffered from a materially adverse act; and 3) a causal connection exists between the protected activity and the employer's act. See Burlington N. & Santa Fe Ry. v. White, ___ U.S. ___, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006); Holcomb v. Powell, 433 F.3d 889, 901-02 (D.C.Cir.2006).
Retaliatory acts are not limited "to those that are related to employment or occur at the workplace." Burlington, 126 S.Ct. at 2409 (2006). However, a plaintiff must show that the employer's actions "would have been materially adverse to a reasonable employee." Id. Further, "an employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id. The Supreme Court has emphasized that the employer's action must be "materially" adverse because the statute protects employees from significant harms and does not protect an employee from "those petty slights or minor annoyances that often take place at work and that all employees experience." Id. at 2415. Further, an objective "reasonable person" standard applies. Id. Employees are not protected from "all retaliation, but from retaliation that produces an injury or harm." Id. at 2414. Cases must be evaluated based on their unique circumstances. Id. "A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional development might well deter a reasonable employee from complaining about discrimination." Id. at 2415-16.
In order to show causation, a plaintiff must show that the official responsible for the alleged retaliatory act had knowledge of the protected activity. Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985). A plaintiff may rely on temporal proximity to prove causation, but such proximity must be "very close." Clark County School Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001). For example, many courts have held that time lags of more than *138 three months are too long to show retaliatory causation. Breeden, 532 U.S. at 273-74, 121 S. Ct. 1508 (20-month lag; citing with approval O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir.2001) (3-month lag)); Sullivan-Obst v. Powell, 300 F. Supp. 2d 85, 94 (D.D.C.2004) (3-month lag and 15-month lag).
Ms. Taylor fails to present a prima facie case of retaliation as to certain of her allegations because she has not shown a causal connection between the incidents and the April 2002 complaint of discrimination. The following events occurred more than a year after Ms. Taylor's protected activity: (1) the early 2004 incident where Mr. Joy allegedly told Ms. Gray that he would not recommend Ms. Taylor for position that PBGC might create because he did not trust her; (2) the November 2003 incident where Ms. Taylor was erroneously listed as AWOL; and (3) the period in the fall of 2003 when Ms. Taylor was required to submit work plans to her supervisor twice per month.[9] While the record does not indicate the precise month in 2003 when Ms. Taylor's performance was evaluated as "fully effective," it must have occurred at least eight months (April 2002 to January 2003) after Ms. Taylor's April 2002 complaint of discrimination. This lack of temporal proximity does not support Ms. Taylor's claim of retaliation, and Ms. Taylor has not presented any other evidence that there was a causal connection between these actions and her protected activity.[10]
Nor has Ms. Taylor submitted evidence in support of a prima facie case of retaliation based on the allegation that in June 2002 Mr. Hagans told Ms. Taylor that she needed to improve her "negative behaviors." To prove a retaliation claim, Ms. Taylor must show that she suffered from a retaliatory act that "would have been materially adverse to a reasonable employee," Burlington, 126 S.Ct. at 2409, and that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id. Mr. Hagans' single comment to Ms. Taylor that she should improve her "negative behaviors" would not dissuade a reasonable employee from making a charge of discrimination. This comment was one of "those petty slights or minor annoyances that often take place at work and that all employees experience." Id. at 2415.
In contrast, Ms. Taylor has presented a prima facie case of retaliation based on the downgrading of her performance evaluation from "outstanding" in 2001 to "excellent" in 2002. Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If the defendant meets this burden, then the plaintiff must have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the employer were not its true reasons, but were a "pretext" for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct. 1089; McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. 1817. PBGC provides a non-discriminatory *139 explanation for the change in evaluation. In 2001, Ms. Taylor and another auditor, Mike Logan, worked on a special assignment in addition to their regular duties, and thus they both received an "outstanding" rating on their 2001 evaluations. Def.'s Ex. 14, Henkel First Aff. at 8-9; Def.'s Ex. 3, Joy Dep. at 91. Also, the rating of "excellent" was consistent with Ms. Taylor's previous ratings since prior to 2001 she had never received an "outstanding" rating. Her earlier ratings were as follows:
Year Rating
1996 meets or exceeds expectations
1997 excellent
1998 fully effective
1999 excellent
2000 fully effective
See Def's Reply at 16; Def.'s Ex. 12, Rating Chart. PBGC has presented a legitimate, non-discriminatory reason for the change in Ms. Taylor's performance rating, and Ms. Taylor has not presented any evidence' of pretext. Ms. Taylor's claim of retaliation must fail.
IV. CONCLUSION
For the reasons stated above, Defendants' motion for summary judgment [Dkt. # 26] will be granted. A memorializing order accompanies this Memorandum Opinion.
NOTES
[1] Since this case was filed, Ms. Taylor married and changed her name to Ruby Redd.
[2] The Court consolidated the 2003 and 2005 cases in an order entered on November 2, 2005.
[3] Before this time, Ms. Taylor and Mr. Bacon exercised together, regularly going running, sometimes just the two of them and sometimes with another auditor, Toni Montgomery-Chase. Pl.'s Opp. at 7. Ms. Taylor and Mr. Bacon stopped working out together in the summer of 2001. Id, at 8.
[4] Prior to this time Ms. Taylor had not notified her supervisor, Mr. Henkel, or PBGC's HRD about the alleged harassment. Sometime in the fall of 2001, Ms. Taylor had complained to her friend David Smith, a team leader in the Insurance Operations Division, about Mr. Bacon. Pl.'s Ex. 18, Smith Aff. at 4-7. When she complained to him again in April of 2002, he advised her to file a complaint. Pl.'s Ex. 5, Smith Dep. at 29-30.
[5] PBGC is subject to Directive 30-4, which includes a policy for the prevention of sexual harassment. Def.'s Ex. 18. Ms. Taylor was aware of the policy. Pl.'s Ex. 7, Taylor 2007 Dep. at 19, 21.
[6] Named defendants are (1) the Secretary of Labor, Elaine Chao, in her official capacity as Chairman of the PBGC and (2) the Executive Director of PBGC. Currently, PBGC is headed by Interim Director is Charles Millard. Either the Chairman or the Director or both acting together is head of the PBGC.2d Compl. ¶ 5. Defendants are named in their official capacities only. Id.
[7] This affirmative defense does not apply in cases where the harassment culminates in a tangible adverse employment action such as discharge or demotion. Faragher, 524 U.S. at 808, 118 S. Ct. 2275.
[8] PBGC denies the vast majority of the alleged incidents of harassment. For the purposes of PBGC's motion for summary judgment, however, the Court draws all justifiable inferences in favor of Ms. Taylor and accepts Ms. Taylor's evidence as true. See Anderson, 477 U.S. at 255, 106 S. Ct. 2505.
[9] Other employees, Thomas White and James Wright (both white males), were required to submit hi-weekly work plans. Def.'s Ex. 33, Resp. to Interrogatory 11. Ms. Taylor has not submitted evidence that she was singled out for close supervision.
[10] Ms. Taylor also alleges that her supervisors started withholding work after she complained about the alleged harassment. Pl.'s Opp at 18. Ms. Taylor does not present any evidence whatsoever in support of this allegation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645150/ | 994 So.2d 309 (2008)
COWARD
v.
STATE.
No. 2D08-4366.
District Court of Appeal of Florida, Second District.
October 22, 2008.
Decision without published opinion. Pet.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545198/ | 23 F.2d 41 (1927)
J. W. KOBI CO.
v.
FEDERAL TRADE COMMISSION.
No. 40.
Circuit Court of Appeals, Second Circuit.
December 12, 1927.
Joseph A. Burdeau, of New York City (Daniel N. Dougherty, of San Francisco, Cal., George F. Scull, of New York City, and Chadwick, McMicken, Ramsey & Rupp, of Seattle, Wash., of counsel), for petitioner.
Bayard T. Hainer, Chief Counsel, Adrien F. Busick, Asst. Chief Counsel, and James T. Clark, all of Washington, D. C., for respondent.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
MANTON, Circuit Judge.
The order entered by the Federal Trade Commission directs the petitioner to cease and desist from carrying into effect or attempting to carry into effect its policy of securing the maintenance of resale prices for its products by cooperative methods, in which it and its distributors, customers, and agents undertook to prevent sales of its products for less than such prices by (a) seeking or securing or entering into contracts, agreements, or understandings with customers or prospective customers that they will maintain the resale prices designated by it; (b) by soliciting customers to report the names of other customers who failed to observe such resale prices; and (c) by utilizing any equivalent co-operative means of accomplishing the maintenance of such resale prices. The order rests on agreements or understandings and co-operative methods of price fixing. The agreement, or understanding, or co-operative methods might be implied from the course of dealing or other circumstances. Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 42 S. Ct. 150, 66 L. Ed. 307, 19 A. L. R. 882; Frey & Son v. Cudahy Packing Co., 256 U.S. 208, 41 S. Ct. 451, 65 L. Ed. 892.
This record consists of correspondence of the petitioner with its customers relating to resale price fixing. No customers were called *42 as witnesses, but the petitioner's officers were called, and admitted that in some instances they had inquired from the trade as to price cutting by competitors, and stated that it was their policy not to sell to price cutters when so informed. They also admitted that in some specific instances they had entered into agreements with customers to observe resale prices, and that, when price cutting had been called to their attention, they asked customers to call further instances of price cutting of the kind to their attention. The correspondence between the petitioner and its customers and others brings this case well within the rule that the essential agreement or combination or conspiracy which is a violation of the Clayton Act (38 Stat. 730) might be implied from a course of dealing or other circumstances. United States v. Schrader's Sons, Inc., 252 U.S. 85, 40 S. Ct. 251, 64 L. Ed. 471; Federal Trade Com. v. Beech-Nut Packing Co., supra. The petitioner undoubtedly was endeavoring to control its resale prices, so as to prevent reduced prices. That was its definite purpose. It represented that it did not sell to price cutters, and before it accepted customers it made it plain that its resale prices would have to be observed. In some instances it obtained a tacit agreement to maintain resale prices, and in others it received a promise so to do, and thereupon served the customer his requirements. There are many instances in which it wrote to price-cutting customers a letter of which the one to George Kay is a sample, wherein it said:
"In the few instances where it has been necessary to urge the price maintenance proposition with other customers, we have received voluntary assurance that our prices would not be cut by the distributor unless we were first notified. This arrangement seems very fair to us, and although we do not suggest that you take such action, we think possibly that you may wish to do so. We shall hope to hear from you again."
And another to the Royal Drug Company:
"We will greatly appreciate your immediate assurance that you agree with our contentions and that you will comply with our request not to list Golden Glint or Golden Glint shampoo at a lower quotation than $2 net."
And, receiving no reply, they again wrote:
"We are therefore returning your order and regret that we will be unable to fill it, until such time as you are prepared to furnish reliable assurance that you agree with our policies. A letter indorsing our suggestions and stating in detail what steps you have taken or are taking to carry them out will be carefully considered. Telegraphic advice of this kind will not be accepted."
Thereafter, when they received an order with assurances that the prices would be maintained, they replied:
"We have your letter of April 7 and thank you for the assurance that you will not cut the resale price of Golden Glint shampoo below $2."
This character of correspondence was repeated to a number of their customers, and warnings were delivered that, if the prices were not maintained, future sales would be withheld. Its insistence that its terms and conditions be met before it accepted customers, and its reference to other customers who were following its policy or requirements, was sufficient to justify the finding of the commission that there were agreements to maintain resale prices. There was sufficient to require the action of the Trade Commission which would forbid the continuance and extension of these practices, which constituted a method to make the petitioner's policy of fixing resale prices that of its customers.
Another objectionable practice consisted of obtaining reports of price cutters from competitors. A letter written by petitioner's sales manager to its president makes reference to a complaint (a) from wholesalers against retail druggists' associations; (b) from hair goods jobbers against each other; and (c) from Brown against anybody and everybody who trespassed on his territory. And in a letter dated January 11, 1923, addressed to one of its customers, it wrote:
"Our salesmen are reporting all deviations from the suggested resale price schedule that come to their attention. A number of jobbers have consented to co-operate in the same way. We would like very much to have your assurance that you will support us in our effort to do the fair thing by everybody. How about it?"
And to another customer they wrote on May 15, 1923:
"We note that you previously cut the prices in order to meet competition. In case a similar necessity should arise again, we will be very appreciative if you will send us the name of your price-cutting competitor. We feel that we can safely guarantee you against this sort of competition and will appreciate your co-operation as requested."
Letters of like character, showing a well-settled and determined plan to maintain resale prices and eliminate price cutters, is found in this extensive correspondence offered in evidence. It indicates clearly a dangerous tendency unduly to hinder competition, and to attempt to create a monopoly in its products, and it is a practice which it was the desire of the Clayton Act to prevent. *43 Federal Trade Comm. v. Gratz, 253 U.S. 421, 40 S. Ct. 572, 64 L. Ed. 993. It comes well within the prohibition of an unfair method of competition in commerce which is declared unlawful. 38 Stat. 717 (15 USCA §§ 41-51). The basis of the condemnation of resale price fixing is the elimination of competition as represented by the prices among distributors of a product on which the resale prices were so fixed, and it has the danger of a distinct monopolistic effect. Toledo Pipe Threading Machine Co. v. Fed. Trade Comm. (C. C. A.) 11 F.(2d) 337; Fox Film Corp. v. Fed. Trade Comm. (C. C. A.) 296 F. 353.
But it is argued that the decision in Harriet Hubbard Ayer, Inc., v. Fed. Trade Comm. (C. C. A.) 15 F.(2d) 274, justifies the petitioner in its business conduct. There we pointed out that there was no evidence to show that there was anything by way of direction in their merchandising system to compel or even request retail dealers to adhere to their prices in resale. A price list was sent out in the packages, and to serve no purposes other than to apprise the ultimate consumer of the ordinary retail prices at which he could purchase petitioner's products, and also to name the price at which the retailer or jobber could purchase its product. We pointed out that there were but a few isolated instances of an effort to eliminate a price cutter, and said:
"We think the petitioner did no more than it might lawfully do in selecting its customer whom it considered desirable."
And further we said:
"There is nothing disclosed in this record to base a finding of fact that there was an effort of discrimination resulting in substantially lessening competition or tending to create a monopoly in this line of commerce. Price maintenance is unlawful when it tends to create a monopoly. But there was no cooperation with its jobbers and retailers, or other distributors, which was effectual either as an agreement, expressed or implied, intended to accomplish purposes of price fixing. Until such is established, an order to cease and desist is unwarranted."
For the reasons there stated, we think the cases are distinguishable. What was proven here established offenses of agreements or understanding either in obtaining, directly or indirectly from its customers, promises or assurances that the prices fixed by the petitioner would be observed by such dealers and entering into contracts with the understanding that the petitioner's products would be resold by the dealers at prices specified or fixed by the petitioner. There was also a method employed in reporting on price cutters and a continuous request of dealers and jobbers to report the competitors who did not observe the resale prices suggested by the petitioner and a threat to refuse sales to dealers so reported on. These practices were offensive to the act and warrant the order entered below. Cream of Wheat Co. v. Fed. Trade Comm. (C. C. A.) 14 F.(2d) 40; Q. R. S. Music Co. v. Fed. Trade Comm. (C. C. A.) 12 F.(2d) 730; Moir et al. v. Fed. Trade Comm. (C. C. A.) 12 F.(2d) 22; Hills Bros. v. Fed. Trade Comm. (C. C. A.) 9 F.(2d) 481.
It is argued that the order cannot stand because one commissioner took the testimony in the case to support the complaint and afterwards passed on the effect of it as a member of the commission; that he was not present at the oral argument when the case was submitted. It is conceded that briefs were filed. The claim that the statute makes the commissioner both the judge and prosecutor has been held to be unsubstantial. Sears, Roebuck & Co. v. Fed. Trade Comm. (C. C. A.) 258 F. 307, 6 A. L. R. 358. The statute provides (section 3, Fed. Trade Commission Act [15 USCA § 43]) that the commission may, by one or more of its members or by such examiners as it may designate, prosecute any inquiry necessary to its duties in any part of the United States. Section 9 of the Federal Trade Commission Act (15 USCA § 49) authorizes a member of the commission to sign subpnas, administer oaths, affirmations, summon witnesses and receive evidence. The fact that the commissioner took the evidence and made a report without recommendation does not, under the terms of the act, disqualify him from participating in the decision rendered by the commission.
It is argued that the order of the commission should be supplemented by directing affirmatively what the petitioner may do. But the commission exercises only the administrative function delegated by the act. It has no judicial powers. Nat. Harness Mfrs.' Ass'n v. Fed. Trade Comm. (C. C. A.) 268 F. 705. It has not had delegated to it the power of review. The order of the commission is not too indefinite for purposes of obedience to its command. Oppenheim, Oberndorf & Co. v. Fed. Trade Comm. (C. C. A.) 5 F.(2d) 574; Fed. Trade Comm. v. Beech-Nut Packing Co., 257 U.S. 441, 42 S. Ct. 150, 66 L. Ed. 307, 19 A. L. R. 882.
The petition is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545226/ | 128 F.2d 815 (1942)
PACIFIC SOUTHWEST REALTY CO.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 10037.
Circuit Court of Appeals, Ninth Circuit.
June 8, 1942.
*816 Claude I. Parker, John B. Milliken, and Bayley Kohlmeier, all of Los Angeles, Cal. (L. A. Luce, of Washington, D. C., of counsel), for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Joseph M. Jones, and Frank Ready, Sp. Assts. to Atty. Gen., for respondent.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
DENMAN, Circuit Judge.
Petitioner, a Delaware corporation doing business in California, seeks review of a decision of the Board of Tax Appeals denying deductions from its gross incomes for the calendar tax years 1936 and 1937 (a) of dividends declared and paid out by it to its preferred stockholders during said years; (b) for the discount at which its preferred stock was sold, and (c) for the premiums paid on the redemption of the stock.
*817 (a) Taxpayer's payment of moneys to stockholders declared and paid to them as dividends.
The securities upon which the moneys were paid out by the taxpayer were Cumulative Preferred Serial Stock issued under provisions of taxpayer's certificate of incorporation. They were drawn in the customary form establishing such a relationship between a stockholder and its corporation. They were required to be redeemed at the end of a fixed period of years for their $100 par value and any unpaid accumulated dividends. The unpaid dividends did not bear interest. They provided a quarterly dividend payable out of profits in the aggregate annual amount of 6½% for one serial issue and 5½% for another.
In the event that profit was not made and the quarterly dividend not paid, the holders of the preferred shares, who otherwise had no voting rights, acquired all of the voting rights of the stockholders and could assume the control of the corporation and through the ordinary corporate processes compel the declaration and payment of the dividend. The preferred stockholders so controlling the corporation had no power to pay the quarterly dividends otherwise than by this corporate process of declaration thereof from profits then existing. This power was never invoked and all of the dividends paid in the tax years in question were declared and paid in usual corporate procedure by the action of the board of directors.
It would thus appear that the dividends so paid fall within the provisions of the Revenue Act of 1936 which are controlling for the two years in question. That act defines a dividend of a corporation to be a "distribution" "out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings or profits of the taxable year." Revenue Act 1936, Section 115, 26 U.S.C.A. Int. Rev.Acts, page 868.
Treasury Regulations 94 for the Revenue Act of 1936 treats dividends on preferred stock as not interest, as follows:
"Art. 23 (b)-1. Interest. * * * So-called interest on preferred stock, which is in reality a dividend thereon, cannot be deducted in computing net income. * * *."
The next Revenue Act, of 1938, § 115, 26 U.S.C.A. Int.Rev.Acts, page 1055, contains the same definition of a dividend so far as pertinent here. Regulations 94, Art. 23 (b)-1. Interest for the 1938 act has the same provision treating the preferred dividend as not interest. The regulation thus has the force of law. Commissioner v. Laguna Land & Water Co., 9 Cir., 118 F.2d 112, 113; Helvering v. Winmill, 305 U.S. 79, 83, 59 S. Ct. 45, 83 L. Ed. 52; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 116, 59 S. Ct. 423, 83 L. Ed. 536.
A taxpayer claiming as a deduction the moneys so declared and paid as a dividend has the burden of "showing that the deduction clearly falls within some deduction provision of the taxing act." White v. United States, 305 U.S. 281, 292, 59 S. Ct. 179, 83 L. Ed. 172.
Taxpayer attempts to maintain this burden by a claim that the preferred serial stock was in fact not preferred stock at all but a mere evidence of an indebtedness. It bases this claim on a provision of its certificate of incorporation and of the stock issued pursuant to it that in the event that at the maturity period of the stock, when the corporation is required to exercise the corporate process of redemption, it fails to redeem, the stockholder thereafter has the right of a general creditor to sue for the principal value of the stock and for any accumulated unpaid dividend.[1]
This general creditor's right after failure *818 of redemption by the corporate process never arose, for, as stated, all the quarterly dividends were paid for each quarter and all of the outstanding preferred stock was redeemed by the process of redemption in the two tax years in question.
The taxpayer claims that although all the moneys were paid at each quarter in pursuance of the corporate process, and although the quarterly dividends so could have been paid quarterly only by that process, and could become ordinary general creditor's debts only years later by the failure of the corporate process of redemption, during which delayed period they bore no interest, nevertheless, because, in addition to the stockholder's corporate process rights under which all the money was paid him, he had in the event of failure of that process the right to sue as a general creditor, the security was in effect no more than a promissory note or debenture.
We are unable to follow this reasoning. A taxpayer may arrange his business transactions so they may or may not be taxable under the phraseology of the taxing act. If so arranged in a form which is or is not taxable, it is no argument for or against a tax exemption that it might have been arranged in some other way. Commissioner v. Kolb, 9 Cir., 100 F.2d 920, 926, 927.
Here the taxpayer arranged its business so it was obligated to pay the quarterly dividends only by a distribution to the holders, of a dividend declared "out of the surplus or net profits of the business of the corporation." This is exactly what the Revenue Act of 1936 and the Regulations quoted above define as a corporate dividend which cannot be deducted in computing net income as "so-called interest on preferred stock."
In our opinion the taxpayer has not shown that its claimed deductions "clearly falls within some deduction provision of the taxing act." On the contrary, it clearly appears to us that the moneys paid in the tax years were declared and paid as a dividend in the usual relationship of stockholder to the corporation and that the taxpayer is not entitled to deduct them from its gross income.
The taxpayer claims this was not its intent in creating the preferred stock. But the evidence shows the exact contrary. In the circulars to the subscribers to the stock issue they were advised of the taxpayer's intent and purpose by its following statement: "In opinion of Counsel, exempt from normal Federal Income Tax and exempt from Personal Property Tax in California."
At the time this declaration of intent and purpose was made dividends to stockholders were exempt from the normal federal income tax, whereas interest paid them was not exempt from such tax. Section 25, Revenue Act of 1928, 26 U. S.C.A. Int.Rev.Acts, page 360.
Taxpayer relies on two cases decided by this court, Commissioner v. Proctor Shop, 9 Cir., 82 F.2d 792, 794, and Commissioner v. Palmer, Stacy-Merrill, Inc., 111 F.2d 809, 810. In both these cases we held that the securities issued by the tax paying corporation were "merely held by the creditor as security," and that "dividends paid are, according to the intent of the parties, in fact interest." Commissioner v. Proctor Shop, 9 Cir., 82 F.2d 792, 794.[2]
In the Proctor Shop case the instrument was called Debenture Preference Stock and in the Palmer, Stacy-Merrill case Preferred Stock. In the latter case we held that certain subsidiary findings of the Board of Tax Appeals showed that "the parties intended the certificates to be certificates of indebtedness." [111 F.2d 810.] Here the petitioning taxpayer itself declared its intent that the dividends on the preferred stock were not to be deemed indebtedness but stock dividends not subject to the "normal Federal Income Tax."
Other cases cited by the taxpayer are clearly distinguishable. The bonds in Commissioner v. O. P. P. Holding Co., 2 Cir., 76 F.2d 11, bore "interest," specifically so called, and the payments held deductible were made not as a dividend *819 but as an ordinary interest payment. In the instant case only by the corporate process of making a profit and declaring a dividend were the payments made.
The anomalous "guaranteed dividends" of Helvering v. Richmond, F. & P. R. Co., 4 Cir., 90 F.2d 971, bear no resemblance to the dividends here declared and out of earnings. The guaranteed dividends were payable whether earned or not. What was determined there was that an amount, not declared as a dividend, paid to perform the contract for the amount of the so-called "guaranteed dividend," was interest and deductible as such.
In Commissioner v. J. N. Bray Co., 5 Cir., 126 F.2d 612, the "interest" bearing Debenture Preferred Stock gave the holder a right to "cumulative interest without directors' declaration." The payments made were not held to be made out of profits. Hence they did not fall within the definition of dividends of the Act of 1936 and the question here to be decided was not passed upon.
We hold that the moneys paid out by the taxpayer on its 5½% and 6½% Cumulative Preferred Serial Stock were dividends and not deductible from its gross income.
(b) Discount expense. It is stipulated herein that petitioner's securities designated 5½% Cumulative Preferred Serial Stock were issued and sold at a discount and that if said discount is deductible $1,833.26 was allocable to 1936 and $31,275.39 was allocable to 1937.
Since, as above held, the security sold by the taxpayer was intended to be and was in fact a preferred stock, and since they were redeemed by the corporate process of call and redemption, and hence the condition precedent to the debtor-creditor relationship arising in the event of a failure to call and redeem never arose, we hold that the discounts on the issue of the securities were for preferred stocks and not for a bond, note or certificate of indebtedness.
(c) Redemption at 105% of the par value of the stock.
As stated, the 6½% and 5½% Cumulative Preferred Serial Stock were redeemed in the tax years in question. It was stipulated that "during the year 1936 petitioner redeemed and retired all of its then outstanding securities designated 6½% Cumulative Preferred Serial Stock for the face value thereof plus a premium of $182,025.00" and that "During the year 1937 petitioner redeemed and retired all of its then outstanding securities designated 5½% Cumulative Preferred Serial Stock for the face value thereof plus a total premium of $20,000.00."
These redemptions were made in the usual corporate process, here a thirty day notice of redemption given by mail to the stockholders of record and by publication and by the deposit of the redemption moneys at the noticed place of redemption.
Since the moneys were paid pursuant to the corporate process and not upon an indebtedness arising from the failure to redeem, we hold that the premiums paid on redemption were upon an obligation of the corporation, as corporation, to the stockholder, as its stockholder, and that the premiums cannot be deemed as if paid in the discharge of a bond or promissory note or certificate of indebtedness.
The decision of the Board of Tax Appeals that none of the claimed deductions is permitted under the taxing act is affirmed.
Affirmed.
HEALY, Circuit Judge (concurring).
On principle, I am not able to distinguish this case from Commissioner v. Palmer, Stacy-Merrill, Inc., 9 Cir., 111 F.2d 809. The distributions there held to be deductible as interest were made through the "corporate process" of declaring dividends out of profits. I concurred somewhat doubtfully in that decision on the ground that this court was committed by Commissioner v. Proctor Shop, Inc., 9 Cir., 82 F.2d 792, to the view that the actualities of the situation were to be looked to in determining whether corporate distributions, whatever called, were true dividends or whether they were in fact interest on indebtedness and therefore deductible as an expense.
The securities in the two cases mentioned, and in this case, are hybrids. If they had been denominated "bonds" rather than preferred stocks, I apprehend that nobody would contend that they were not true evidences of debt or that the returns paid thereon were anything other than interest. Cf. Commissioner v. Columbia River Paper Mills, 9 Cir., 126 F. *820 2d 1009. However, a corporate taxpayer has no good reason to complain if issues which it calls preferred stock are for tax purposes treated as such by the Commissioner, particularly where, as here, the corporation has theretofore customarily treated the payments as dividends in making returns of its taxable income; and where it has advised investors that, in the opinion of counsel, the returns therefrom are dividends and therefore exempt from tax. In such circumstances the corporation, having deliberately made its bed, may with propriety be required to lie in it.
NOTES
[1] The provision is as follows:
"In the event that the corporation shall fail to redeem said preferred stock at the time and place herein and/or in said resolution herein authorized, the holders of said preferred stock shall have the right to enforce payment of the par value of said preferred stock so agreed to be redeemed, together with the amount of any unpaid, accrued, or accumulated dividends thereon, together with the premium, if any, to be paid on such redemption, the same as on any unconditional claim or debt against the corporation, and upon payment thereof the rights of the holders thereof as stockholders of this corporation shall cease and determine and said preferred stock so paid shall be appropriately cancelled upon the books of this corporation and said stock shall not be reissued." (Emphasis supplied.)
[2] "`* * * On this the designation of the instrument issued by the corporation, while not to be ignored, is not conclusive, * * *. The real intention of the parties is to be sought and in order to establish it evidence aliunde the contract is admissible. * * * If the evidence establishes "that dividends paid are, according to the intent of the parties in fact interest, and the stock on which the dividends are paid is merely held by the creditor as security, it makes no difference what the reason was for paying it in that form."'" (Emphasis supplied.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070894/ | Dismiss and Opinion Filed July 8, 2014.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00265-CR
RONNIE BANNISTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 29736-86
MEMORANDUM OPINION
Before Justices Fillmore, Evans, and Lewis
Appellant has filed a motion to dismiss the appeal. Appellant’s counsel has approved the
motion. The Court GRANTS the motion and ORDERS that the appeal be DISMISSED and
this decision be certified below for observance. See TEX. R. APP. P. 42.2(a).
PER CURIAM
Do Not Publish
TEX. R. APP. P. 47
140265F.U05
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RONNIE BANNISTER, Appellant On Appeal from the 86th Judicial District
Court, Kaufman County, Texas
No. 05-14-00265-CR V. Trial Court Cause No. 29736-86.
Opinion delivered per curiam before Justices
THE STATE OF TEXAS, Appellee Fillmore, Evans, and Lewis.
Based on the Court’s opinion of this date, we DISMISS the appeal.
Judgment entered this 8th day of July, 2014. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1579443/ | 671 N.W.2d 150 (2003)
258 Mich. App. 438
CITY OF DETROIT, Plaintiff-Appellee,
v.
19675 HASSE, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12251 Grandmont and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12210 Grandmont and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12136 Grandmont and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
8063 Mansfield and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
11335 Mansfield and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12055 Mansfield and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
11357 Rutherford and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
7734 Forrer and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12620 Sussex and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14302 Terry and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9337 Lauder and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
16223 Lauder and Alice Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
15461 Marlowe and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14820 Freeland, Bell Management Company, and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14008 Freeland, Oak Management Company, and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14028 Ardmore and Bell Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14304 Stansbury and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9194 Carlin and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
13949 Schaefer and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
11415 Sorrento and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
21460 Thatcher and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
16951 Chicago and T & R Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9387 Manor and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
11365 Manor and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
10010 Pinehurst and T & R Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
13940 Washburn and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
13561 Cloverlawn and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9353 Yellowstone and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12082 Yellowstone, Joy Management Company, and Alice Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9724 Otsego and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
19431 Lamont and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
13480 Newbern and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12762 Terry, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
20625 Lyndon, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
18535 Plainview, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
10840 West Outer Drive, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
18910 Braile and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
19448 Lyndon and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
18900 Patton and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9003 Vaughan, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
18280 Vaughan and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
18922 Annchester, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14232 Grandville, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
19953 Ashton and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
7737 Archdale, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9636 Archdale, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
11407 Longacre and Frank Matthews, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
12150 Rutland, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9391 Memorial, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9994 Memorial and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
20500 Ferguson, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
8932 Metetal, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
8901 St Marys, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9213 Montrose, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
15016 Prest, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9414 Sussex and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
16230 Coyle and Oak Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14261 Terry, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14400 Lauder, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14528 Hubbell, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
8321 Strathmoor and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
14609 Mark Twain and Joy Management Company, Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
13545 Appoline, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9379 Meyers, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
16925 Tireman, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
9317 Manor, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
8510 Roselawn and Tamarac Properties, Inc., Defendants, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
10011 Morley, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
19361 Runyon, Defendant, and
Acorn Investment Company, Defendant-Appellant.
City of Detroit, Plaintiff-Appellee,
v.
20226 Pinehurst, Defendant, and
Acorn Investment Company, Defendant-Appellant.
Docket Nos. 237995, 238269-238338.
Court of Appeals of Michigan.
Submitted September 10, 2003, at Detroit.
Decided September 16, 2003, at 9:05 a.m.
Released for Publication November 10, 2003.
*157 Ruth Carter, Corporation Counsel, and Joanne D. Stafford, Supervising Assistant Corporation Counsel, Detroit, for the city of Detroit.
Veleta P. Brooks-Burkett, Detroit, for the defendants.
Before: WHITBECK, C.J., and TALBOT and ZAHRA, JJ. *151 *152 *153 *154 *155
*156 PER CURIAM.
In these seventy-one consolidated appeals, we decide whether a statute of limitations bars plaintiff city of Detroit's actions to foreclose tax liens on several parcels of real property owned by defendant Acorn Investment Company[1] for unpaid tax bills dating back as far as 1989. Because statutes of limitations do not run against the state or its subdivisions without an express legislative enactment, and because the Legislature has not enacted a statute of limitations for in rem foreclosure actions, we hold that no statute of limitations barred the city's actions. We also conclude that the city was authorized to impose a late penalty fee because the ordinance empowering it to do so was enacted after December 31, 1982, as required by M.C.L. § 211.44(7). Accordingly, we affirm the trial court's seventy-one foreclosure judgments and the trial court's grant of summary disposition with respect to the penalty fees.
I. Basic Facts And Procedural History
A. The City's First Series Of Complaints
In May 2001, the city filed thirty-nine nearly identical complaints, each containing one count entitled "Real Property Tax Foreclosure." The complaints described each of the involved parcels of real property, alleged that none of the various entities with ownership interests had paid general real estate taxes that the city levied on the properties, and averred that more than two years had passed since the city purchased "at the annual tax sale" "the unpaid tax liens of the City of Detroit for years prior to 1998." The city attached to each of the complaints tax bills showing unpaid taxes for each property, most dating back to 1991 or 1990, and one property having unpaid taxes as far back as 1989. According to the city, the unpaid amounts now included interest, penalties, and court costs. The city requested that, 120 days after the filing date of the complaints, the trial court enter judgments of foreclosure with respect to the pre-1998 tax liens on the involved parcels pursuant to § 8-403 of the 1997 Detroit Charter, and "order the vesting in [the city] the absolute title in fee... in the subject propert[ies]" unless defendants paid the amounts of the judgments within sixty days after entry of the *158 judgments. The city also sought possession of the premises.
B. The City's Second Series Of Complaints
In June 2001, the city filed separate complaints with respect to thirty-two additional parcels of real property, each containing two counts. The first count, entitled "Real Property Tax Foreclosure," which consisted of allegations mirroring those within the sole count of the May 2001 complaints, sought a judgment of foreclosure of pre-1998 tax liens and possession of the involved parcels. Count II requested that the trial court impose on the owners of the involved properties personal liability for the delinquent real property taxes, pursuant to M.C.L. § 211.47 and Detroit Charter, § 8-403(2). The city again attached as an exhibit to each complaint the relevant real property tax bill showing unpaid city taxes, in some cases dating back to 1989. In September 2001, the trial court consolidated all the city's seventy-one actions.
C. Acorn's Motion And The City's Response
Shortly before the consolidation occurred, Acorn filed a "Motion for summary disposition and declaratory judgment, in part," pursuant to MCR 2.116(C)(10). While Acorn did not dispute the amounts of delinquent property taxes or the city's "ability to foreclose on real property in a suit to collect delinquent real property taxes," Acorn argued that a six-year period of limitations precluded the city from obtaining a judgment of foreclosure on liens for unpaid taxes that became due more than six years before the city filed its complaints. Acorn noted that Michigan case law had applied a six-year period of limitations to in personam actions to collect unpaid property taxes pursuant to M.C.L. § 211.40 and Detroit Charter § 8-403. Acorn acknowledged that there was no clear period of limitations for actions to foreclose on a real property tax lien, but theorized that the six-year limitations period applicable to otherwise unspecified personal actions, M.C.L. § 600.5813, also governed foreclosure actions because (1) "[t]he gravamen of the instant complaint is the collection of `taxes,' which according to the City charter, is a personal debt of the owner of the property," and (2) in Detroit, foreclosure represented merely an alternate and concurrent remedy to an in personam suit, and Michigan case law explained that one could not avoid a period of limitations applicable to a remedy at law by pursuing a substitute equitable remedy. Acorn also contested the city's ability to impose and collect penalties on the unpaid taxes. The city responded to Acorn's motion for summary disposition by requesting judgments or declaratory relief in its favor pursuant to MCR 2.116(I)(1), 2.116(I)(2), and 2.605.
D. The Trial Court's First Ruling
At an August 2001 hearing, after the parties summarized their briefs addressing the propriety of summary disposition, the trial court ruled:
With regard to the Statute of Limitations, a judge is, in my view of what the role of a judge is, is certainly not that of a Legislature.
The judge does not have the opportunity to create the Statute of Limitations where the Legislature has either failed to do so, or has chosen not to do so, and that is the case here.
211.40, I believe I'm correct, indicates that the lien referred to for those amounts and for all interest and charges on those amounts shall continue until paid.
The [L]egislature has not, in this in rem proceeding, created a Statute of Limitations. Thus, it does not apply. There is none in this instance.
*159 With regard to penalty ... if I can find the ordinance reference.
* * *
593-H did recodify, or codified the ordinances of the City of Detroit, and provided when said ordinances would become effective, and it was passed in 1984, effective January 1, 1985.
It is clear to this Court that that ordinance was passed after the date required in the statute, which is M.C.L. § 211.44, paren (7), and prior to any of the taxes, which are the subject of this case.
With regard to costs, attorney fees, all that's premature at the point. So the Court ... will not rule on that.
And other than costs and attorney fees, there really is nothing left in this case except for, as requested by [plaintiff's counsel], I'm going to grant his motion for, in effect, a declaratory judgment in his favor....
Shortly thereafter, the trial court entered an order of declaratory judgment that incorporated its oral rulings.[2]
E. The City's Motion For Summary Disposition And The Trial Court's Second Ruling
In October 2001, the city filed a motion for summary disposition requesting that the trial court enter judgments of tax foreclosure in each of the cases because the 120-day statutory waiting period had expired and the delinquent taxes remained unpaid. The motion also requested that the trial court award the city $350 in attorney fees and court costs "for each case to reimburse the City of Detroit in the event of redemption."
In early November 2001, the trial court held a hearing devoted, in part, to the city's motion for summary disposition. The city requested entry of seventy-one foreclosure judgments, described various costs common to each action for which it sought reimbursement in the event Acorn redeemed its properties, and attempted to distinguish the case on which Acorn relied for the proposition that a six-year period of limitations applied in the instant cases. Acorn challenged some of the city's asserted costs, and again set forth its positions that a six-year period of limitations applied to the collection of a personal debt consisting of real property taxes, and that no valid city ordinance authorized delinquent tax penalties.
The trial court declined to hold oral argument on the basis that the motion presented the same issues the trial court had previously addressed. The trial court then awarded the city $350 in costs in each case, payable in the event that Acorn exercised its rights of redemption. On November 19, 2001, the trial court entered seventy-one judgments of foreclosure and on November 21, 2001, the trial court entered an "Order Granting Motion for Summary DispositionConsolidated Tax Foreclosure Judgments." Sixty-eight of the court files contain a satisfaction of judgment filed on January 15, 2002, reflecting Acorn's payment of the entire amounts of delinquent taxes and penalties.
II. The Statute Of Limitations
A. Standard Of Review
Whether a period of limitations applies to preclude a party's pursuit of an action constitutes a question of law that we *160 review de novo.[3] Similarly, we review de novo questions of statutory interpretation[4] and the propriety of the circuit court's summary disposition ruling.[5]
B. The Sovereign Shield
It is a long-established principle of Michigan jurisprudence that periods of limitations do not operate against the state in the absence of a statute otherwise expressly so providing.[6] The United States Supreme Court long ago explained the concept of the sovereign shield from periods of limitations:
The rule quod nullum tempus occurrit regithat the sovereign is exempt from the consequences of its laches, and from the operation of statutes of limitationsappears to be a vestigial survival of the prerogative of the Crown. But whether or not that alone accounts for its origin, the source of its continuing vitality where the royal privilege no longer exists is to be found in the public policy now underlying the rule even though it may in the beginning have had a different policy basis. "The true reason... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers. And though this is sometimes called a prerogative right, it is in fact nothing more than a reservation, or exception, introduced for the public benefit, and equally applicable to all governments."... So complete has been its acceptance that the implied immunity of the domestic "sovereign," state or national, has been universally deemed to be an exception to local statutes of limitations where the government, state or national, is not expressly included.... [[7]]
Thus, at common law, "`the sovereign was exempt from the operation of statutes of limitation and remains exempt to this day in the absence of statutory authority.'"[8]
C. Piercing The Sovereign Shield
The question, then, is whether any Michigan statute expressly pierces the state's common-law shield against periods of limitations. Acorn concedes that no existing statute explicitly prescribes a period of limitations in which the state or its agencies must file real property tax foreclosure actions. Only one section of Chapter 58 of the Revised Judicature Act,[9] which establishes various periods of limitations for judicial actions brought in Michigan courts, explicitly addresses the applicability of limitations periods to the state. That section, M.C.L. § 600.5821, provides:
*161 (1) Actions for the recovery of any land where the state is a party are not subject to the periods of limitations, or laches. However, a person who could have asserted claim to title by adverse possession for more than 15 years is entitled to seek any other equitable relief in an action to determine title to the land.[[10]]
(2) Actions brought by any municipal corporations for the recovery of the possession of any public highway, street, alley, or any other public ground are not subject to the periods of limitations.
(3) The periods of limitations prescribed for personal actions apply equally to personal actions brought in the name of the people of this state, or in the name of any officer, or otherwise for the benefit of this state, subject to the exceptions contained in subsection (4).
(4) Actions brought in the name of the state of Michigan, the people of the state of Michigan, or any political subdivision of the state of Michigan, or in the name of any officer or otherwise for the benefit of the state of Michigan or any political subdivision of the state of Michigan for the recovery of the cost of maintenance, care, and treatment of persons in hospitals, homes, schools, and other state institutions are not subject to the statute of limitations and may be brought at any time without limitation, the provisions of any statute notwithstanding.
D. Personal Actions
Acorn insists that M.C.L. § 600.5821(3), which extends the statutory limitations on personal actions[11] to the state, applies to bar the city's actions.[12] This contention rests upon Acorn's characterization of the city's real estate property tax foreclosure actions as personal actions. But the characterization betrays a misunderstanding of the distinction between personal actions, or actions in personam, and actions in rem.
Black's Law Dictionary defines an action in personam as one that
seeks to enforce an obligation imposed on the defendant by his contract or delict; that is, it is the contention that he is bound to transfer some dominion or to perform some service or to repair some loss. In common law, an action brought for the recovery of some debt or for damages for some personal injury, in contradistinction to the old real actions, which related to real property only.[[13]]
In contrast, the term action in rem signifies [a]n action determining the title to property and the rights of the parties, not merely among themselves, but also against all persons at any time claiming an interest in that property.[14] Stated another way:
[A]ctions in personam differ from actions in rem in that actions or proceedings in personam are directed against a *162 specific person, and seek the recovery of a personal judgment, while actions or proceedings in rem are directed against the thing or property itself, the object of which is to subject it directly to the power of the state, to establish the status or condition thereof, or determine its disposition, and procure a judgment which shall be binding and conclusive against the world. The distinguishing characteristics of an action in rem is [sic] its local rather than transitory nature, and its power to adjudicate the rights of all persons in the thing.[[15]]
Here, the counts in the city's complaint that are at issue plainly reflect that the city pursued real estate tax foreclosure actions with respect to each parcel and has named each parcel as a defendant.[16] Michigan courts consistently have characterized such actions as actions in rem.[17]
Acorn nonetheless argues that in personam and in rem actions are subcategories of the broader category of personal actions, citing the following italicized language in support:
Personal actions are those brought for the recovery of personal property, for the enforcement of a contract or to recover for its breach, or for the recovery of damages for an injury to the person or property. Personal actions are, as to form, either ex contractu or ex delicto; as to place tried, local or transitory; and as to object, in personam or in rem.[[18]]
Initially, we note that actions brought for the recovery of real property are absent from this description of personal actions. Moreover, it appears that the author of the article employed the adjective "personal" in the second sentence before listing the various forms of action in an effort to distinguish these forms of action from the common-law "real actions" discussed within the immediately preceding paragraph.[19]*163 The definition of "in rem" in Black's Law Dictionary (6th ed.), p. 793, makes it clear that actions in rem are entirely distinct from personal actions:
A technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam.
"In rem" proceedings encompass any action brought against person in which essential purpose of suit is to determine title to or to affect interests in specific property located within territory over which court has jurisdiction. It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. In the strict sense of the term, a proceeding "in rem" is one which is taken directly against property or one which is brought to enforce a right in the thing itself. [Some emphasis added; citations omitted.]
Citing Detroit v. Walker,[20] among other authorities, Acorn argues that because real estate taxes constitute personal obligations of the taxpayer, any action premised on the tax debt constitutes a personal action. However, the Walker Court stated that the statutory provision permitting in personam actions to collect city property taxes implemented an additional enforcement mechanism,[21] not the exclusive one. In other words, while it is true that the city could have pursued a personal action to recover Acorn's debts, it chose instead to proceed in rem by foreclosing, which it was also authorized to do.[22] It is plain that when, as here, a municipality opts to pursue only in rem actions to foreclose the liens on real property, these actions are not somehow rendered personal actions simply because the municipality might have pursued a money judgment against the property owner in lieu of an in rem action. Similarly, there is no merit to Acorn's suggestion that its determination to satisfy its personal obligations of delinquent property taxes after the city obtained its judgments of foreclosure transformed the nature of the city's in rem proceeding into a personal action.
Nevertheless, Acorn urges this Court to apply the statutory limitation on personal actions on the principle that a party may not seek an equitable remedy to avoid a statutory limitation attendant to the analogous legal remedy. However, Acorn offers no authority for the proposition that this principle may be applied to a political subdivision of the state in contravention of the sovereign shield doctrine, and we have found none. Accordingly, we reject this argument.
In sum, because the only claims at issue here seek foreclosure rather than damages, we conclude that these appeals involve in rem actions and not personal actions. Therefore, given the lack of a statute of limitations on in rem actions by *164 the state or the city, its subdivision, we conclude that the trial court correctly declined to find the city's actions timebarred and properly granted the city summary disposition with respect to this claim as a matter of law.
III. The Penalty Provision
A. Standard Of Review
We review de novo issues of statutory interpretation,[23] as well as the legal question whether the city properly enacted an ordinance authorizing the imposition of penalties for delinquent real property taxes.[24]
B. The City's Ordinances
The city was initially authorized to assess late penalty charges for delinquent property taxes by § 21-7-43 of the Detroit Municipal Code of 1964. However, in 1982, the Legislature enacted a provision that prohibited local tax collecting treasurers from imposing late penalty charges unless the collecting unit's governing body approved a resolution or ordinance after December 31, 1982, that allowed them to do so. That provision reads in pertinent part:
The local property tax collecting treasurer shall not impose a property tax administration fee, collection fee, or any type of late penalty charge authorized by law or charter unless the governing body of the local property tax collecting unit approves, by resolution or ordinance adopted after December 31, 1982, an authorization for the imposition of a property tax administration fee, collection fee, or any type of late penalty charge provided for by this section or by charter, which authorization shall be valid for all levies that become a lien after the resolution or ordinance is adopted.[[25]]
On August 1, 1984, the Detroit City Council passed Ordinance No. 593-H, which adopted a municipal code for the city of Detroit that included the ordinances in the 1964 Detroit Municipal Code, and gave them immediate force and effect. Included within the municipal code that the city adopted through the enactment of Ordinance No. 593-H was § 18-9-95, which provided:
No addition for penalty shall be made to general city taxes levied on real and personal property paid on or before the thirty-first day of August. A penalty in the amount of one per cent of every unpaid tax shall be added thereto on September first and an additional one per cent of such tax shall be added on the first day of each succeeding month, until such tax is paid in full, not to exceed a total penalty of twenty-five (25) per cent of the unpaid tax.
This ordinance was formerly § 21-7-43 of the Detroit Municipal Code of 1964, which Ordinance 593-H adopted by reference.
Acorn maintains, without citation of authority, that M.C.L. § 211.44(7) operated to repeal the 1964 ordinance that authorized real estate tax penalties, and that the 1984 adoption of this ordinance from the 1964 code was therefore ineffective. We disagree. A statute can preempt a municipal ordinance if the statute "completely occupies the field that ordinance attempts to regulate" or if the ordinance "directly conflicts with a state statute."[26]*165 MCL 211.44(7) does not occupy the field, but explicitly contemplates that local units may assess late penalties.
Further, the provision does not directly conflict with or "repeal" the ordinance, as Acorn suggests. An examination of the statutory language reveals that M.C.L. § 211.44(7) does not prohibit a city from enacting an ordinance assessing late fees for taxes, but only prohibits the treasurer from imposing such feeseven if authorized by charterunless the city government approved an ordinance authorizing the fees after the statute became effective on December 31, 1982. Therefore, there was no direct conflict between the statute and the ordinance. Accordingly, the city's incorporation by reference of the former § 21-7-43 constituted a valid enactment. This method of codification is explicitly authorized by M.C.L. § 117.5b, which provides:
Each city shall have power, whether provided in its charter or not, to codify, recodify and continue in code its municipal ordinances, in whole or in part, without the necessity of publishing the entire code in full. The ordinance adopting the code, as well as subsequent ordinances repealing, amending, continuing or adding to the code, shall be published as required by law. The ordinance adopting the code may amend, repeal, revise or rearrange ordinances or parts of ordinances by reference by title only.
Because the city validly enacted an ordinance after December 31, 1982, that authorized the imposition of a penalty fee on delinquent property taxes, we conclude that the trial court properly granted summary disposition to the city with respect to this issue.
Affirmed.
WILLIAM C. WHITBECK, Chief Judge, and MICHAEL J. TALBOT, and BRIAN K. ZAHRA, Judges.
NOTES
[1] The city identified in its complaints several other entities that allegedly had ownership interests in the tax delinquent properties. Because only Acorn Investment Company appealed to this Court, we refer only to that entity in this opinion.
[2] On September 17, 2001, Acorn filed in this Court a claim of appeal from the circuit court's order of declaratory judgment. The appeal, entitled Detroit v. 13545 Appoline, Docket No. 236817, was dismissed on November 2, 2001, apparently for lack of jurisdiction because the August order did not constitute a final judgment.
[3] Collins v. Comerica Bank, 468 Mich. 628, 631, 664 N.W.2d 713 (2003).
[4] Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Prop & Cas. Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).
[5] Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999).
[6] Crane v. Reeder, 21 Mich. 24, 44 (1870).
[7] Guaranty Trust Co. v. United States, 304 U.S. 126, 132-133, 58 S.Ct. 785, 82 L.Ed. 1224 (1938), quoting United States v. Hoar, 26 F.Cas. 329, 330 (D.Mass., 1821) (citations omitted).
[8] Regents of the Univ. of Michigan v. State Farm Mut. Ins. Co., 250 Mich.App. 719, 733, 650 N.W.2d 129 (2002), quoting In re Konke Estate, 98 Mich.App. 249, 252, 296 N.W.2d 226 (1980); see also Maillat v. Village of Marcellus, 329 Mich. 370, 374, 45 N.W.2d 325 (opinion by Dethmers, J.), 376 (concurring opinion by North, J.); 329 Mich. 370, 45 N.W.2d 325 (1951); Gorte v. Dep't of Transportation, 202 Mich.App. 161, 165, 507 N.W.2d 797 (1993); 54 CJS, Limitation of Actions, § 17, pp. 41-42.
[9] MCL 600.5801 et seq.
[10] Neither party argues the applicability of M.C.L. § 600.5821(1) to this case.
[11] MCL 600.5813 provides that the general limitations period for personal actions is six years.
[12] The city falls within the scope of the state's protection against periods of limitations. The Supreme Court has stated in the context of an action to foreclose real property tax liens, "In exercising a power delegated to it by the State, the city of Detroit, under its charter provisions, acted as an agency of the State." Detroit v. O'Connor, 302 Mich. 531, 533, 5 N.W.2d 453 (1942).
[13] Black's Law Dictionary (6th ed.), p. 29. See also Attorney General v. Harkins, 257 Mich.App. 564, 570, 669 N.W.2d 296 (2003);, quoting Black's Law Dictionary, supra.
[14] Black's Law Dictionary (7th ed.), p. 30.
[15] 1A CJS, Actions, 69, pp. 463-464.
[16] Our review of the trial court files in these cases revealed no order disposing of the second counts (seeking personal judgments of money damages against the property owners for the amounts of delinquent property taxes) in the thirty-two complaints filed on June 12, 2001. We need not consider the counts for money damages because (1) the city indicates in its brief on appeal that it voluntarily "dropped its in personam count in each of the 32 actions ... and the judgment in each case was solely for foreclosure of the lien," and (2) Acorn agrees that the city's "final remedies were judgments of foreclosure in all the cases."
[17] O'Connor, supra at 535, 5 N.W.2d 453; Smith v. Cliffs on the Bay Condo. Ass'n (On Remand), 245 Mich.App. 73, 75, 626 N.W.2d 905 (2001). See also Continental Motors Corp. v. Muskegon Twp., 376 Mich. 170, 180, 135 N.W.2d 908 (1965) ("A basic distinction between an ad valorem property tax and an excise tax is that the former is regarded as primarily in rem in nature while the latter is regarded as in personam in nature."); Int'l Typographical Union v. Macomb Co., 306 Mich. 562, 575-577, 11 N.W.2d 242 (1943) (quoting 1 Am. Jur., p. 436, for the definition of an "action in rem," and concluding, "The courts have, we find, uniformly held that actions to impress liens upon property and to enforce a tax lien against real estate are proceedings in rem."); Thompson v. Auditor General, 261 Mich. 624, 652, 247 N.W. 360 (1933) ("Under the tax law the State acquires a lien against the real estate assessed and before such land may be sold, such lien must be foreclosed and sale ordered by the court. Such foreclosure is a proceeding in rem, against the land itself...."); Keweenaw Bay Outfitters & Trading Post v. Dep't of Treasury, 252 Mich.App. 95, 101, 651 N.W.2d 138 (2002) ("In Michigan, in rem proceedings include foreclosures for failure to pay taxes....").
[18] 1 Am. Jur. 2d, Actions, § 32, p. 744 (emphasis added).
[19] See 1A CJS, Actions, § 4, p. 313 ("Ordinarily, the term `personal action' is used in contradistinction to the terms `real action' and `mixed action.'").
[20] Detroit v. Walker, 445 Mich. 682, 700 n. 24, 520 N.W.2d 135 (1994).
[21] Id. at 704, 520 N.W.2d 135.
[22] See M.C.L. § 211.40 and Detroit Charter, 8-403 (providing that assessed taxes are both a personal debt of the owner and a lien on the property).
[23] Attorney General v. Pub. Service Comm., 249 Mich.App. 424, 429, 642 N.W.2d 691 (2002).
[24] State Treasurer v. Abbott, 468 Mich. 143, 148, 660 N.W.2d 714 (2003).
[25] MCL 211.44(7).
[26] Rental Prop Owners Ass'n of Kent Co. v. Grand Rapids, 455 Mich. 246, 257, 566 N.W.2d 514 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579490/ | 12 So. 3d 255 (2009)
Leo DORBAD, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-3741.
District Court of Appeal of Florida, First District.
May 11, 2009.
Rehearing Denied June 15, 2009.
*256 Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
WOLF, J.
Appellant appeals from his judgment and sentence for second-degree murder. He raises three issues on appeal: (1) whether the trial court erred in denying his motion for judgment of acquittal based on insufficient evidence to overcome his claim of an accidental shooting; (2) whether the trial court abused its discretion by excluding the testimony of Dr. Greer regarding appellant's calm demeanor on the night of the shooting; and (3) whether the trial court erred in admitting hearsay testimony of several witnesses pursuant to the "state of mind" exception to the hearsay rule. We find that there was sufficient evidence to support the charge. We, therefore, affirm as to this issue without further comment. We agree with appellant as to issue 2 and address it, even though it is unclear that it was preserved, in order to guide the trial court in conducting a new trial.[1] As to issue 3, we agree with appellant and reverse and remand for a new trial.
On July 5, 2006, appellant, by way of a grand jury indictment, was charged with first-degree murder of Dawn Luciano. Appellant was accused of shooting and killing the victim, Luciano, a young woman who lived with him as a boarder. On April 12, 2007, appellant proceeded to trial, which ended in a hung jury.
On April 12, 2007, during the first trial, appellant sought to introduce the testimony of Dr. Richard Alden Greer, a psychiatrist, regarding appellant's post-shooting demeanor. During the first trial, and again in the second trial, the State placed heavy emphasis on appellant's "calm" demeanor following a traumatic shooting. Appellant sought to introduce Dr. Greer's testimony in an effort to characterize appellant's "calm" demeanor as one signifying stress.
Dr. Greer's testimony was proffered for the record. During the proffer, Dr. Greer explained that he had been a board certified psychiatrist for over 17 years. The State accepted Dr. Greer as an expert in forensic psychiatry. Thereafter, Dr. Greer stated that he had reviewed (1) appellant's *257 911 phone call on the night of the shooting, (2) depositions of law enforcement officers regarding appellant's demeanor on the night of the shooting, and (3) police reports noting the officers' observations of appellant on the night of the shooting. Based on this review, Dr. Greer opined that appellant appeared to be under stress and "acting in a manner I would characterize as withdrawn, shock like manner; someone who is being flat, withdrawn, unemotional." Dr. Greer opined that "[p]eople respond to shocking or traumatic events in a variety of ways, from hysteria... to complete catatonia or complete unresponsiveness." In addition, Dr. Greer stated that:
A lay person might indicate that someone who had immediately or accidentally or in some way shot another person might be hysterical, might be very upset or tearful or shouting. On the other hand, in my experience and from my listening to [appellant], obviously that was not the case; that he was flat.... That, in and of itself, is an element of shock, surprise, trauma.... They may repeat themselves, as I heard in [appellant's] voice.
The trial court excluded the testimony, finding that (1) the testimony would cause confusion in the minds of the jury and (2) Dr. Greer had not witnessed the officers' testimony at the time of trial nor had he examined the defendant; thus, his testimony lacked reliability.
In addition, prior to the first trial, appellant filed a motion in limine seeking to exclude the hearsay testimony of several witnesses who were expected to testify at trial, to include: Kahall Aharoni, Christopher Gordon, Ashley Guba, Danille Kratz, and Judith Poli. After hearing argument on the motion, the trial court entered an Order Granting in Part and Denying in Part Defense Motion in Limine Number One Statements Purported To Be Made By Dawn Luciano, ruling that (1) Kahall Aharoni could testify that appellant had many guns and that Luciano said she was scared without identifying of what she was scared; (2) Christopher Gordon could testify that Luciano told him that appellant was so jealous he slept with a gun under his pillow and that she was planning to leave his home as soon as possible; (3) Ashley Guba could testify that Luciano told her that appellant was a jealous guy and that she was afraid of him; (4) Danille Kratz could testify that Luciano told her she wanted Kratz to take her home to keep appellant from knowing that she had been out with another man; and (5) Judith Poli could testify that Luciano explained to her that appellant was very possessive and got very angry, yelled at her, and that she was scared. Defense objections to this testimony were renewed at the time of the second trial.
As to the trial court's concern regarding the sufficiency of Dr. Greer's observations, we would first note that this concern would go as to the weight to be given his testimony rather than its admissibility.
Section 90.704, Florida Statutes (2006), governs the use of expert testimony and provides in pertinent part:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. ...
The trial court appears to believe this language limited Dr. Greer to testifying only about matters upon which he had personal knowledge: personal knowledge meaning personal observation of the officers' testimony regarding appellant's demeanor the night of the incident. However, the statute specifically authorizes opinions based on data perceived before trial. In addition, when an expert is testifying on evidence he or she has not personally observed, *258 the expert may state an opinion based on record facts through a hypothetical question, as long as those facts are supported by evidence that has been or will be introduced at trial. Atl. Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90 (1922); N. Broward Hosp. Dist. v. Johnson By and Through Johnson, 538 So. 2d 871 (Fla. 4th DCA 1988); Young v. Pyle, 145 So. 2d 503, 504 (Fla. 1st DCA 1962).
Illustrative of this point, in Holt v. State, 422 So. 2d 1018, 1019 (Fla. 1st DCA 1982), this court considered whether a trial court erred in permitting an "expert witness to respond to a hypothetical question which assumed facts which were not yet in evidence" and upheld the admission of the testimony stating, "[t]his contention is without merit because sufficient facts to form the basis of the hypothetical question were established later in the trial."
Here, Dr. Greer testified that he was asked to provide his expert opinion "based on the ... behavior that was documented with regard to [appellant's] 911 call and the observations of law-enforcement officers at the time after the shooting of Miss Luciano." The information he reviewed prior to reaching a conclusion included "officers' statements, depositions, as well as [a review of the] actual 911 tapes." The evidence considered by Dr. Greer was substantially similar to the evidence later admitted at trial. Based on the foregoing, Dr. Greer could testify that appellant's calm demeanor was consistent with a person undergoing shock.
As to the confusion Dr. Greer's testimony might cause, we determine any confusion, if it exists, would not justify exclusion of this testimony.
Section 90.702, Florida Statutes (2006), governs the admissibility of expert testimony and provides in pertinent part:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
Here, the trial court inexplicably reasoned that Dr. Greer's use of words such as "calm" and "shock" would confuse the jury based on their divergent clinical and lay definitions. Based on section 90.702, the evidence should have been admitted unless it would not assist the trier of fact in understanding the evidence or determining a fact in issue.
In Boyer v. State, 825 So. 2d 418, 419-20 (Fla. 1st DCA 2002) (citations omitted), this court considered a trial court's exclusion of a psychiatrist's testimony regarding the phenomena of false confessions, stating in pertinent part:
Expert testimony should be excluded when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions. However, the trial court is not compelled to exclude the expert just because the testimony may cover matters within the average juror's comprehension. Even though the jury may have beliefs about the subject, the question is whether those beliefs are correct.
.... Had Dr. Ofshe's testimony been admitted, it would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried. It is for the jury to determine the weight to give to Dr. Ofshe's testimony, and to decide whether they believed his theory or the *259 more commonplace explanation that the confession was true.
In determining whether evidence will assist the trier of fact in a meaningful way, the first step is considering what the evidence, if admitted, would have tended to explain or prove.
It is clear the State opined that appellant's calm demeanor was highly unusual and indicative of his cold-blooded nature. It is likewise clear that appellant was attempting to rebut this contention with Dr. Greer's expert opinion by suggesting that appellant's calm demeanor was a result of his shock and stress, not his callousness. Dr. Greer's expert testimony on demeanor in stressful situations would allow the jury to consider two opposing views of the evidence and assist the jury in determining what weight to place on evidence of appellant's calm demeanor. Thus, it would clearly aid in the jury's understanding of the evidence. Furthermore, whether appellant's calm demeanor was indicative of a cold-blooded nature or stress is probative of appellant's guilt because the jury would be more likely to believe appellant committed the crime in anger and hate if it believed the State's version of the evidence. If the jury accepted Dr. Greer's opinion that appellant was in shock and under stress in the hours after the shooting, the jury would be more likely to believe appellant's accidental shooting defense. As such, it appears the trial court erred in excluding the evidence as it (1) aided the jury in understanding two possible motivations for appellant's behavior and (2) was probative of appellant's guilt.
We next address the hearsay statements made by the victim in this case. Appellee asserts the disputed hearsay statements were admissible pursuant to the state of mind exception to the hearsay rule. Section 90.803(3)(a), Florida Statutes (2006), governs the state of mind exception to the hearsay rule and provides in pertinent part:
(a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
The state of mind exception authorizes the use of hearsay to establish the declarant's state of mind when his or her state of mind is material to the action. Stoll v. State, 762 So. 2d 870, 875 (Fla. 2000). When applied to murder prosecutions, the state of mind exception does not typically authorize the use of a victim's hearsay statements as establishing the victim's state of mind because the victim's state of mind is not generally a material issue in a case. Id.
In some homicide cases involving claims of accident or self-defense, the victim's state of mind may be pertinent, such as where there is an issue of who instigated the confrontation. See Peterka v. State, 640 So. 2d 59, 64 (Fla.1994) (Florida Supreme Court allowed hearsay statements of victim to rebut defendant's theory that victim instigated the fight); see also Huggins v. State, 889 So. 2d 743, 757 (Fla.2004) (allowing hearsay statements establishing victim's state of mind to rebut appellant's theory that victim willingly left a local shopping area with him); Kingery v. State, 523 So. 2d 1199, 1202 (Fla. 1st DCA 1988) (holding that a claim of self-defense will open the door to hearsay statements establishing the victim feared the accused). In the instant case, however, there was no *260 doubt that the initial instigator of the confrontation was appellant. The main relevance of the admission of these statements was to demonstrate the bad character of appellant. Under these circumstances, the admission of the statements constituted reversible error.
We reverse and remand for a new trial.
BROWNING, J., concurs; BENTON, J., concurs in the judgment with opinion.
BENTON, J., concurring in the judgment.
I agree that the trial court erred in allowing the hearsay testimony the defense sought to exclude by its motion in limine, and that the conviction must be reversed for that reason. As the majority opinion explains, however, we are not holding that exclusion of Dr. Greer's testimony required reversal.
NOTES
[1] The record is unclear whether appellant renewed his objection to the exclusion of Dr. Greer's testimony at the time of the second trial. | 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.