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https://www.courtlistener.com/api/rest/v3/opinions/1579521/ | 671 N.W.2d 101 (2003)
256 Mich. App. 703
MEREDITH CORPORATION, d/b/a WNEM TV5, Plaintiff-Appellee/Cross-Appellant,
v.
CITY OF FLINT, Defendant-Appellant/Cross-Appellee.
Docket No. 232310.
Court of Appeals of Michigan.
Submitted January 14, 2003, at Detroit.
Decided June 3, 2003, at 9:10 a.m.
Released for Publication July 14, 2003.
*103 Braun Kendrick Finkbeiner, P.L.C. (by Scott C. Strattard and Craig W. Horn), Saginaw, for the plaintiff.
Joliat, Tosto, Mccormich & Bade, PLC (by John A. Tosto), Flint, for the defendant.
Before SMOLENSKI, P.J., and WILDER and SCHUETTE, JJ.
*102 WILDER, J.
In this action filed pursuant to the Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq., defendant city of Flint appeals as of right from the circuit court's judgment awarding plaintiff Meredith Corporation $6,269.73 in costs and attorney fees. Plaintiff cross-appeals the circuit court's denial of its request for punitive damages and denial of attorney fees and costs incurred before August 21, 2000. We affirm in part, reverse in part, and remand.
I. Facts and Proceedings
In early July 2000,[1] a minor called defendant's 911 center for assistance and, immediately following the call, shot and killed his uncle. The prosecutor charged the minor in the family division of circuit court with voluntary manslaughter and possession of a firearm during the commission of a felony. The minor asserted that he shot his uncle in self-defense. On July 6, 2000, plaintiff submitted an FOIA request for disclosure of audiotapes of the 911 call and police-dispatch radio traffic concerning the incident and records identifying who was staffing defendant's 911 center when the minor called 911.
On July 12, defendant's assistant city attorney informed plaintiff by letter that it could not provide the requested information within five business days as required by the act and that defendant was claiming the ten-business-day extension for disclosure permitted by M.C.L. § 15.235(2)(d). Two days later, on July 14, defendant's assistant city attorney sent plaintiff a letter denying its FOIA request. Defendant claimed in the letter that the information was exempt from disclosure pursuant to M.C.L. § 15.243(1)(b)(i) and (ii) "as this is an on-going investigation."[2] Defendant's assistant city attorney sent an identical letter to plaintiff on July 26, 2000.
On August 17, 2000, plaintiff filed its complaint in the instant matter, asserting that the information was subject to disclosure and that the attorneys in the underlying juvenile proceeding had consented to disclosure of the information. According to plaintiff's complaint, the minor had been *104 bound over for trial on charges of manslaughter, and the law-enforcement investigation was not ongoing.[3]
One hour after plaintiff filed its complaint, defendant filed a motion for a protective order in the juvenile proceeding concerning disclosure of the tape. In its motion, defendant stated that the minor's attorney had subpoenaed the 911 tape from defendant, that several media outlets had requested the tape, and that the tape contained statements made by the minor and his uncle. Defendant requested that the family division of circuit court enter an order prohibiting the minor's attorney from disseminating the tape or its contents to anyone, including the media and the minor's family members, until after the minor's trial.
On August 22, 2000, plaintiff filed a motion in the circuit court to compel disclosure of the information it requested pursuant to the FOIA, which the circuit court heard on August 28, 2000. At the hearing, plaintiff contended that because the minor had been charged and bound over, any law-enforcement investigation had concluded. Plaintiff also noted that both the minor's attorney and the prosecutor assigned to the case had signed affidavits supporting release of the tape. Plaintiff requested immediate disclosure of the 911 tape and an award of $500 in punitive damages for defendant's arbitrary and capricious denial of plaintiff's request.
In response, defendant acknowledged that because the police had completed their investigation and the prosecution had acted on the investigation, any further investigation would be conducted by the prosecutor's office, not law enforcement. Defendant claimed, however, that because of the "exciting" nature of the tape, release of the contents of the tape would receive substantial media attention and the minor's right to a fair trial could be jeopardized. Defendant requested a protective order preventing disclosure of the tape on this basis. Defendant also informed the circuit court that the family division of circuit court would be hearing its motion for a protective order the following day. Plaintiff advised the circuit court that it had intervened in the family-division proceeding and had filed a brief in opposition to defendant's motion for a protective order.
The circuit court found that there was no "justification on the evidence and documents submitted to me that would allow the City of Flint not to disclose the 911 tape that was requested." The circuit court specifically found no evidence of an ongoing law-enforcement investigation. Regarding defendant's claim that by refusing to disclose the tape it sought to preserve the fairness of the minor's trial, the circuit court stated:
I think that is a noble concern, and certainly one that [the family division] might want to address, but I think in terms of the right of the [p]laintiff to seek this information through the Freedom [of] Information Act, that that is not something that should be addressed by me here.
Although the circuit court held that "the reasons for nondisclosure offered by the [c]ity ... are without merit and that the 911 tape should be disclosed," the circuit court chose to delay the effect of its ruling until after the hearing on defendant's motion for a protective order and directed *105 that "release [of the tape] was subject to [the family division's] concept of what is needed to protect his trial."
During the hearing in the family division on defendant's motion for a protective order,[4] defendant admitted that plaintiff was entitled to the tape. Nevertheless, defendant argued that because the tape would likely be played repeatedly by the media, it should not be made public until after the trial. Defendant also claimed that "[the minor's] right to a fair trial might be might be affected. The City of Flint's case, the Prosecutor's case, might be affected" by distribution of the tape before trial.
Plaintiff opposed the motion and advised the family division that the circuit court had found no valid reasons for nondisclosure of the tape. Plaintiff argued that the order sought by defendant violated the First Amendment as a prior restraint on publication and that defendant lacked standing to raise the fair-trial issue. The prosecution argued in support of defendant's motion as a prophylactic measure to prevent a change of venue or a protracted jury-selection process, but admitted that there was no legal basis for prohibiting release of the tape. Counsel for the minor concurred with plaintiff that defendant lacked standing to assert the minor's right to a fair trial, and asserted that defendant's true reason for wanting to shield the tape from public exposure was the resulting criticism defendant's 911 system could face after release of the tape.
The family division denied defendant's motion, finding that defendant failed to sustain its burden of showing that disclosure of the evidence would interfere with the parties' rights to a fair trial, and that the requested order constituted an unconstitutional prior restraint on publication. Later that day, the circuit court in the instant case signed an order granting plaintiff's motion to compel disclosure of the tape. Defendant subsequently released the tape to plaintiff.
Thereafter, plaintiff filed a motion for costs, attorney fees, and punitive damages stemming from defendant's denial of its FOIA request. Defendant argued that plaintiff was not entitled to attorney fees. First, defendant claimed that plaintiff was not the "prevailing party" because the FOIA suit was not reasonably necessary to obtain disclosure of the tape, and the suit was not a substantial cause of the tape's disclosure. Second, defendant argued that plaintiff was not "forced" into litigation and could have opted for a less expensive administrative appeal of defendant's denial. Defendant also claimed that because its reasons for denying plaintiff's FOIA request were based in law, it had not acted in an arbitrary and capricious manner in denying the request and thus plaintiff was not entitled to punitive damages. Defendant also objected to the amount of attorney fees plaintiff requested, noting that plaintiff had requested attorney fees related to intervening in the family-division proceeding to oppose defendant's motion for a protective order.
At the hearing on plaintiff's motion, the circuit court found that plaintiff was a prevailing party and that it was necessary for the suit to be filed to achieve production of the tape. The circuit court also found that defendant "probably" had a reasonable belief that the minor's rights could be affected by release of the tape, but that once the minor's attorney and the prosecutor indicated in affidavits that they did not *106 oppose release of the tape, "at that point in time, the case was over for all practical purposes." Accordingly, the circuit court found that plaintiff was entitled to attorney fees only from the date of the affidavits forward. Additionally, the circuit court found that because defendant also sought to prevent disclosure by moving for a protective order in the family-division proceeding, plaintiff necessarily pursued its right to production of the tape in the family division as well, and that plaintiff was entitled to recover attorney fees incurred in that forum. Subsequently, the circuit court held an evidentiary hearing regarding the reasonableness of plaintiff's requested attorney fees and entered judgment in plaintiff's favor. In addition to its rulings on plaintiff's request for attorney fees, the circuit court also denied plaintiff's request for punitive damages, concluding that defendant did not act arbitrarily and capriciously in declining to release the tape. This appeal followed.
On appeal, defendant claims that the circuit court erred by finding that plaintiff was a prevailing party and by permitting plaintiff to recover attorney fees incurred when plaintiff intervened in the family-division proceeding to oppose defendant's motion for a protective order. Plaintiff argues on cross-appeal that the circuit court erred by limiting its recovery of attorney fees to those incurred after the attorneys in the family-division proceeding approved by affidavit the release of the tape. Plaintiff also argues that the circuit court erroneously concluded that it was not entitled to punitive damages.
II. Standard of Review
We review de novo questions of law such as statutory interpretation. Thomas v. New Baltimore, 254 Mich.App. 196, 200, 657 N.W.2d 530 (2002). We review for clear error the circuit court's findings of fact. Id.
III. Analysis
Defendant first claims that plaintiff was not a prevailing party in the present action because plaintiff failed to demonstrate that the suit was reasonably necessary to compel disclosure of the requested information. We disagree.
Consistent with the "prodisclosure" intent of the FOIA, a public body must provide the public with access to all government information that is not specifically exempt from disclosure. Thomas, supra at 201, 657 N.W.2d 530. To efficiently accomplish disclosure, the FOIA places specific requirements on public bodies that receive requests for public records. A public body must respond to a request for public records within five business days of receipt of the request by either granting the request in whole or in part, denying the request in whole or in part, or notifying the requesting party that it will respond to the request in ten business days. MCL 15.235(2)(a)-(d); see also Key v. Paw Paw Twp., 254 Mich.App. 508, 511-514, 657 N.W.2d 546 (2002). If the public body denies the request in writing in whole or in part, the denial constitutes "a public body's final determination" to deny the request. MCL 15.235(4). After the public body denies the request, the requesting party has the right to either appeal the denial to the head of the public body, M.C.L. § 15.240(1)(a), or seek review of the denial in circuit court, M.C.L. § 15.240(1)(b).
If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the court shall award reasonable attorneys' fees, costs, and disbursements. If the person or public body prevails in part, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys' fees, costs, and disbursements.... [MCL 15.240(6).] *107 Additionally, the circuit court must award the requesting party $500 in punitive damages if it determines that the public body "arbitrarily and capriciously violated [the FOIA] by refusal or delay in disclosing or providing copies of a public record." MCL 15.240(7).
"A party prevails in the context of an FOIA action when the action was reasonably necessary to compel the disclosure, and the action had a substantial causative effect on the delivery of the information to the plaintiff." Scharret v. Berkley, 249 Mich.App. 405, 414, 642 N.W.2d 685 (2002).
The circuit court specifically found that plaintiff was the prevailing party and that "it was necessary for the lawsuit to be filed to produce the tape." Defendant fails to show that this finding is clearly erroneous, because it is undisputed that defendant did not release the tape until ordered to do so by the circuit court. The circuit court plainly considered the relevant factors in reaching its conclusion that plaintiff was the prevailing party.
Defendant next argues that the circuit court erred in finding that plaintiff was the prevailing party because the decision in the family-division proceeding, rather than the circuit court's order in this action, compelled release of the tape. We disagree. Defendant's denial of plaintiff's FOIA request constituted a final decision to deny the request. MCL 15.235(4). Plaintiff had the right, therefore, to institute this litigation, M.C.L. § 15.240(1)(b), and, at the conclusion of this litigation, the circuit court ordered production of the tape. In contrast, defendant's motion for a protective order in the family-division proceeding sought only to limit the minor's attorney's use of the tape, and the order denying defendant's motion did not require defendant to provide the tape to plaintiff. Additionally, defendant's motion addressed only one of defendant's claimed exemptions from disclosure. The instant litigation was reasonably necessary to determine that all of defendant's claimed exemptions lacked merit.
Similarly, the circuit court's deferral to the family division concerning the minor's right to a fair trial does not prevent a finding that the instant action had a "substantial causative effect" on the release of the tape. Although the circuit court stayed the effect of its order until after the hearing in the family division, it specifically held that defendant's "reasons ... for nondisclosure" lacked merit. Moreover, at the hearing on plaintiff's motion for attorney fees, the circuit court noted that the family division "in effect, ... agreed with the decision that was made earlier...." Accordingly, it is clear that the circuit court ruled on both of the exemptions claimed by defendant, not just the minor's right to a fair trial. For all of these reasons, we find that the circuit court properly concluded that plaintiff prevailed in the instant action.
Defendant next asserts that the circuit court erred in awarding plaintiff costs and attorney fees incurred in opposing defendant's motion for a protective order in the family division because the costs and fees were not incurred in the FOIA action. We disagree. Defendant emphasizes the words "under this section" in M.C.L. § 15.240(6), but fails to read the phrase in context. The statute states that "[i]f a person ... prevails in an action commenced under this section" the circuit court must award reasonable attorney fees. Id. (Emphasis added.) Construing the plain language of the statute, People v. Koonce, 466 Mich. 515, 518, 648 N.W.2d 153 (2002), we find that as long as an action for disclosure of public records is initiated pursuant to the FOIA, the prevailing party's entitlement to an award of *108 reasonable attorney fees, costs, and disbursements includes all such fees, costs, and disbursements related to achieving production of the public records. The fact that a portion of the requested attorney fees were incurred in a separate, related matter does not preclude recovery of that portion of the attorney fees. Rather, the circuit court may consider the fact that the prevailing party incurred fees and costs in multiple proceedings in determining whether the requested sum is reasonable.[5] The circuit court did not err as a matter of law by concluding that plaintiff could recover attorney fees incurred as a result of its participation in the family-division proceeding.
Moreover, we find that the circuit court did not clearly err by finding that plaintiff's participation in the family-division hearing was necessary in light of the facts of this case. Rather than conclusively resolving the validity of its objections to releasing the tape in the FOIA action, defendant chose to pursue a protective order in the underlying family-division proceeding. The circuit court did not clearly err in finding that plaintiff acted reasonably by intervening in the family-division proceeding to oppose defendant's motion for a protective order in furtherance of its claim under the FOIA.
On cross-appeal, plaintiff argues that the circuit court erred by refusing to award the costs and attorney fees it incurred before August 21, 2000, the date when counsel in the family-division proceeding signed affidavits stating that they did not object to the release of the tape. We agree. In its ruling on plaintiff's motion for attorney fees, the circuit court limited its award to fees plaintiff incurred on or after August 21, 2000, because defendant "probably had a belief that [wa]s reasonable that the release of the tape may impact" the minor's trial. The circuit court erred, however, by limiting the award in this manner. The language of M.C.L. § 15.240(6) does not permit the circuit court to limit the prevailing party's request for attorney fees to those incurred only when the defendant's refusal to disclose the public records is unreasonable. Instead, the statute provides without qualification that the circuit court must award the prevailing party reasonable attorney fees, costs, and disbursements. If the circuit court had determined that plaintiff prevailed only in part, it might have exercised its discretion to award plaintiff only a portion of its reasonable attorney fees, M.C.L. § 15.240(6), but no such finding was made. Accordingly, we reverse the portion of the circuit court's decision limiting plaintiff's recovery of reasonable attorney fees, and remand for a determination of reasonable attorney fees and costs incurred before August 21, 2000.
Lastly, plaintiff argues that the circuit court erred in denying its request for punitive damages under M.C.L. § 15.240(7). We agree. We review for clear error the circuit court's finding that defendant did not act arbitrarily and capriciously. Yarbrough v. Dep't of Corrections, 199 Mich.App. 180, 185, 501 N.W.2d 207 (1993). "Even if defendant's refusal to *109 disclose or provide the requested materials was a statutory violation, it was not necessarily arbitrary or capricious if defendant's decision to act was based on consideration of principles or circumstances and was reasonable, rather than `whimsical.'" Tallman v. Cheboygan Area Schools, 183 Mich. App. 123, 126, 454 N.W.2d 171 (1990), quoting Laracey v. Financial Institutions Bureau, 163 Mich.App. 437, 441, 414 N.W.2d 909 (1987).
Here, the circuit court found that defendant had a reasonable belief (at least for a period) that release of the tape could compromise the minor's right to a fair trial, and that defendant's decision to withhold the tape was not arbitrary and capricious. This finding was clearly erroneous. Throughout the proceedings, defendant consistently failed to articulate any specific reasons why disclosure of the tape would deprive the minor of a fair trial, other than that the tape would receive extensive media attention. In particular, while admitting in both proceedings that plaintiff, and therefore the public, was entitled to release of the tape, defendant offered no basis for concluding that the minor's right to a fair trial would not be adequately protected by the prosecutor and the minor's attorney, each of whom had the direct responsibility to protect the minor's rights and approved the release of the tape.
Despite knowing that the tape was subject to disclosure, defendant pursued a strategy that delayed release of the tape for weeks after plaintiff submitted its FOIA request. Even after the prosecution and the minor's attorney approved release of the tape, defendant refused to release it until ordered to do so by the circuit court. Under these circumstances, we conclude that the circuit court clearly erred in finding that defendant did not act arbitrarily and capriciously in withholding the tape. Accordingly, we reverse the circuit court's denial of plaintiff's request for punitive damages. On remand, the circuit court must award plaintiff punitive damages in accordance with M.C.L. § 15.240(7).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
SCHUETTE, J., concurred.
SMOLENSKI, P.J. (concurring in part and dissenting in part).
I concur in part and dissent in part. I would not award punitive damages because I believe that under the circumstances, the defendant did not act arbitrarily and capriciously.
NOTES
[1] The exact date of the incident is not clear from the record. Although some documents state that the incident occurred on July 3, 2000, plaintiff's complaint states that the incident occurred "on the evening of July 4 or early on July 5."
[2] MCL 15.243(1)(b)(i) and (ii) exempt public records from disclosure that are "[i]nvestigating records ... that ... would ... [i]nterfere with law enforcement proceedings" or "[d]eprive a person of the right to a fair trial or impartial administrative adjudication."
[3] While the record before us does not reveal the dates that the minor was charged by the prosecutor or bound over by the district court, defendant does not dispute plaintiff's claim that the law-enforcement investigation was not ongoing when plaintiff's complaint was filed.
[4] For reasons not clear from the record, the hearing on defendant's motion was adjourned to September 5, 2000.
[5] In Michigan Tax Mgt. Services Co. v. Warren, 437 Mich. 506, 509, 473 N.W.2d 263 (1991), an action under the FOIA, our Supreme Court adopted the analysis employed in Wood v. DAIIE, 413 Mich. 573, 587-588, 321 N.W.2d 653 (1982), which cited the factors listed in Crawley v. Schick, 48 Mich.App. 728, 737, 211 N.W.2d 217 (1973), as appropriate criteria for the circuit court to consider in determining whether requested attorney fees are reasonable. "`[A] trial court should consider the guidelines of Crawley[; however,] it is not limited to those factors in making its determination.'"Michigan Tax Mgt. Services Co., supra at 510, 473 N.W.2d 263, quoting Wood, supra at 588, 321 N.W.2d 653. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580714/ | 59 N.W.2d 830 (1953)
REUTER
v.
OLSON.
No. 7303.
Supreme Court of North Dakota.
August 4, 1953.
*832 Robert Vogel, Garrison, for plaintiff-appellant.
Ella Van Berkom, Minot, for defendant-respondent.
BURKE, Judge.
This action arose out of a collision between two motor vehicles. Each party sought a recovery for injuries alleged to have been caused by the negligence of the other and each denied any negligence on his own part. Upon the trial of the case the jury returned a verdict for dismissal of the action and judgment was entered in accordance with the verdict. Plaintiff *833 thereafter moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied in both its phases and plaintiff has appealed both from the order denying the motion and from the judgment. The specifications of error challenge several of the instructions and the sufficiency of the evidence.
The collision occurred at the intersection of Highway 37 and a street of the City of Garrison. Immediately prior to the collision plaintiff was proceeding westward on Highway 37 and defendant was moving in a southeasterly direction on the city street. As the two vehicles neared the intersection the angle between their lines of approach was about 135 degrees. Vehicles entering the highway from the street were required first to come to a full stop and there was a stop sign at the intersection notifying drivers of that fact. It is undisputed that defendant proceeded onto the highway without stopping and that thereafter the collision occurred. Defendant's testimony is to the effect that as he approached the highway he applied pressure to his brake pedal in order to bring his car to a stop, that then he discovered that his brakes were not in working order, that he shifted into second gear to hurry across the highway in front of the plaintiff; that he was successful in this maneuver; that he crossed the highway to its south lane and was headed east when plaintiff drove diagonally across the highway and struck his car. Plaintiff testified that he noticed defendant's car first when it was one-hundred or one hundred-fifty feet from the intersection, that the next time he noticed it, it was right in front of him, that he tried to turn left to avoid it, but collided with it in the north lane of the highway. Plaintiff's contention is that defendant was negligent in driving onto the highway without stopping; that he (plaintiff) had a right to assume that defendant would stop and a right to rely on that assumption, that in these circumstances he was not obliged to keep a continuous lookout and that there was therefore no negligence on his part. Defendant's contentions are; first, that he had safely crossed the center line of the highway before the collision and that the collision was caused by plaintiff's negligence in leaving his proper lane and crossing to the south or left-hand (to the plaintiff) lane; and second, that in any event, when plaintiff saw the defendant in a position of peril, he had an opportunity to take the easy turn to the right and avoid the collision.
The first specification of error is that the court erred in reading the complaint and answer in stating the issues in the case to the jury. Error is predicated on the fact that the answer alleged a version of the facts which was contrary to defendant's testimony and also on the fact that after the complaint and answer had been read the court failed to read plaintiff's reply. On several occasions we have held that it is bad practice for the court to read the pleadings to the jury. Branthover v. Monarch Elevator Co., 33 N.D. 454, 156 N.W. 927; Elliot Supply Co. v. Green, 35 N.D. 641, 160 N.W. 1002; Black v. Smith, 58 N.D. 109, 224 N.W. 915; Voter v. Newsalt, 58 N.D. 154, 225 N.W. 74; Hoffer v. Burd, N.D., 49 N.W.2d 282. Though the practice is generally disapproved it is not reversible error unless it appears that a party to the action has been prejudiced thereby. Voter v. Newsalt, supra; Hoffer v. Burd, supra. Here the unsupported allegation of the answer which was read to the jury was:
"That said plaintiff left his lane of traffic and drove his automobile across the center line of said highway and into the left hand lane of traffic contrary to law, in which said lane of traffic plaintiff was driving his automobile, that upon seeing the approaching car of the defendant, plaintiff drove his automobile over and upon the extreme right shoulder of said highway and slowed down to a stop; and while thus proceeding the plaintiff drove his automobile against upon and into the front left side of defendant's automobile."
It is clear that this paragraph of the answer uses the word "plaintiff" in two instances where the word "defendant" was intended. No doubt defendant intended to *834 allege that plaintiff left his proper lane of traffic and drove into the left hand lane in which defendant (not plaintiff) was driving and that defendant (not plaintiff) drove his automobile over and upon the extreme right shoulder of said highway and slowed down to a stop. If we consider that the jury understood this paragraph as the defendant intended it to be understood, it contains an allegation not supported by any evidence. The defendant did not testify that he "drove upon the extreme right shoulder of the road and slowed down to a stop" before the collision. His testimony was that he had reached the south lane of the highway and was headed east before the collision and that his car was still in motion at the time of the collision. In view of the fact that the jury dismissed the defendant's counterclaim, we do not see how the reading of this allegation could have been prejudicial to plaintiff. To reach such a verdict the jury must have found that defendant had not driven upon the extreme right shoulder of the road and stopped before the collision. On the other hand if we assume that the reading of this paragraph of the answer was merely confusing to the jury, there would still be no prejudice to the plaintiff for the confusion would exist in connection with the contentions of the defendant and not those of the plaintiff.
The second specification of error is that the court erred in instructing the jury as follows:
"I charge you that even though you find that the defendant failed to stop at the stop sign, yet, if such failure to stop was not the proximate cause of the collision, that is, if the collision did not occur by reason of the failure to stop and that such failure to stop was not the proximate cause of the injuries which plaintiff's automobile sustained, then such failure to stop did not proximately cause the damage to plaintiff's car."
This instruction is not challenged upon the ground that it is an incorrect statement of the law or that it is not applicable to the evidence and issues in the case. It is objected to because "It is repetitive, the Court having already instructed in general on proximate cause, that it is specific instead of general, and that it was unduly emphasized." We see no merit in these contentions. The instruction merely pointed out the applicability of the general instructions to the evidence in the case.
The third specification of error is that the court erred in giving the following instructions:
"It is the law that a driver of a motor vehicle must drive on the right hand side of the road. If you find that the plaintiff failed to drive on said right side of the road, and that his failure to do so was negligent, and that such negligence proximately caused the damages to defendant's automobile then plaintiff would not be entitled to recover."
It is said that this instruction is error "for the reason that it stated the law to be applicable only to the plaintiff and ignored the rule of law as to crossing the center line in order to avoid accidents if possible." There is no merit in this specification. Under the evidence the instruction could apply only to the plaintiff. There is evidence that plaintiff drove on the wrong side of the road, but no evidence that the defendant did. With respect to avoiding an accident the trial judge in another part of the instructions, charged, "In an emergency a driver of a vehicle is required only to act in the manner of a reasonable, prudent man, and is not to be held liable for failure to choose the wisest course of action, if the course he did choose is such as a reasonably prudent man might choose." This instruction applied to any action which the plaintiff might have taken to avoid a collision, including crossing the center line of the highway. The instructions must be considered as a whole. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Burkstrand v. Rasmussen, 77 N.D. 716, 45 N.W.2d 485.
In his fourth specification of error plaintiff asserts that it was error for the court to instruct upon the doctrine of contributory negligence since neither party pleaded contributory negligence on the part of the other. Each party did, however, *835 plead primary negligence on the part of the other party and offered evidence which tended to establish such negligence. Thus the question of negligence of both parties was in issue. Whether the collision was caused solely by the negligence of one party, or by the concurrent negligence of both parties, or by the primary negligence of one party and the contributory negligence of the other, were issues which arose upon the evidence in the case. The instruction was therefore proper. 65 C.J.S., Negligence, § 293, p. 1245
Plaintiff's fifth specification of error is that the court erred in instructing upon the doctrine of last clear chance. It was defendant's contention, that, even if defendant were negligent in proceeding through the stop sign without stopping, plaintiff still had an opportunity to avoid a collision by turning to the right and proceeding up the street by which the defendant had approached the intersection. In support of this theory defendant offered testimony that the turn was one which could have been safely negotiated at fifty miles an hour. Plaintiff's testimony was that when he first saw the defendant after he had passed through the stop sign, defendant's car was right in front of him. Whether the question of a last clear chance on the part of the plaintiff was properly at issue under the evidence, may be a close question, but whether the issue was properly submitted or not, its submission was not prejudicial to the plaintiff, since the jury in dismissing defendant's counterclaim must have found that plaintiff did not have the last clear chance of avoiding the collision. A party cannot complain of the giving of instructions on an issue upon which the jury found in his favor. International Soc. v. Hildreth, 11 N.D. 262, 90 N.W. 70.
Plaintiff's sixth specification of error is that the trial court erred in prefacing one of his instructions with the remark, "At the request of counsel, I instruct you". As to the circumstances in which the remark was made, the record shows that upon completing his instructions the court asked: "Is there anything else that counsel desires for the jury?" The attorney for the defendant replied, "I think that covers it." The attorney for plaintiff said, "I believe there is one, your Honor." He then presented a requested instruction to the Court and the Court said: "I think this instruction here is okay. At the request of counsel, I instruct you." Section 28-1412 NDRC 1943 provides:
"* * * All instructions given by the court to the jurors must be read or given to them orally by the court without disclosing whether such instructions were requested or not."
Ordinarily it would be prejudicial error for the court to violate the mandatory provisions of this statute. Ferderer v. Northern Pacific Ry. Co., 75 N.D. 139, 26 N.W.2d 236. However, the purpose of the statute is to keep from the jury knowledge that any instruction was requested in order that all instructions may stand on the same footing authoritatively as the instructions of the court. Here the jury acquired knowledge that the instruction was requested, in the first instance, not from the statement of the court but from the statements and actions of the attorney for the plaintiff. The question of the court, set forth above, the replies by counsel, and the presentation of the instruction to the court by counsel for the plaintiff all took place in the presence of the jury. Counsel cannot complain because the trial court informed the jurors that the instruction was requested when his own statement and acts had previously made that fact perfectly clear to them.
Plaintiff's seventh specification of error is that the court erred in instructing the jury upon the theory of unavoidable accident. "The issue of unavoidable accident is raised when there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties." Orange & N. W. R. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973, 975; Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777. There is evidence in this case that defendant proceeded through the stop sign because of an unaccountable failure of his brakes. He testified that his brakes had been in operating *836 order when he had last previously used them only a few minutes earlier. This evidence raised the issue of unavoidable accident and it was accordingly not error for the court to submit the issue to the jury.
Plaintiff's eighth specification of error is that the court erred in instructing that contributory negligence in any degree as the proximate cause of the accident on the part of either party would bar a recovery by that party. Plaintiff's counsel states his objection to the instruction as follows: "The use of the word in any degree in such a context is prejudicial error because it ignores the essential element that negligence on the part of the plaintiff must have contributed proximately to his injury in order to bar his recovery."
There is no merit in this specification. The instruction did not ignore the element of proximate cause, it specifically referred to it and limited the negligence which would bar a recovery to "contributory negligence as the proximate cause." While the language used by the trial court was not legally precise, nevertheless in view of the fact that elsewhere in the instructions contributory negligence and proximate cause were adequately defined, we do not see how the jury could have been confused or misled.
Likewise there is no merit in the plaintiff's contention that, under the evidence he was entitled to judgment as a matter of law. As has been heretofore set forth in this opinion, the evidence is conflicting. Defendant testified that he had safely crossed the north lane of the highway and was proceeding eastward in the south lane when plaintiff turned out of his proper lane and ran into him. If this testimony is true, plaintiff could not recover.
The credibility of witnesses and the probability of their testimony are questions for the jury and not for an appellate court. Mikkelson v. Snider, 43 N.D. 416, 175 N.W. 220; Nimmins v. Forsberg, 70 N.D. 417, 294 N.W. 663. And where the evidence is conflicting and different conclusions may reasonably be drawn therefrom, the Supreme Court on appeal will not disturb the verdict nor the order of the trial court denying motions for judgment notwithstanding the verdict and for a new trial on the ground of the insufficiency of the evidence. Jacobs v. Bever, N.D., 55 N.W.2d 512.
The judgment of the district court is affirmed.
MORRIS, C. J., and GRIMSON, CHRISTIANSON and SATHRE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580702/ | 919 F. Supp. 1545 (1996)
The TAYLOR GROUP, INC., Plaintiff,
v.
Roger W. JOHNSON, Administrator of the General Services Administration; Thurman M. Davis, Regional Administrator for the General Services Administration; Thomas Russell, Contracting Officer; Carol M. Browner, Administrator of the Environmental Protection Agency; and Jean Mills, Contracting Officer, Defendants.
CA No. 94-D-1254-S.
United States District Court, M.D. Alabama, Southern Division.
February 28, 1996.
*1546 *1547 James H. McLemore, Montgomery, AL and Karl Dix, Jr., Atlanta, GA, for plaintiff.
Kenneth E. Vines, Asst. U.S. Attorney, Montgomery, AL, for defendants.
MEMORANDUM OPINION AND JUDGMENT
DE MENT, District Judge.
Before the court is The Taylor Group, Inc.'s ("plaintiff") application filed November 14, 1994, for attorneys' fees, expenses and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Under the EAJA, a "prevailing party in any civil action" may seek payment for fees, expenses and costs incurred by the attorneys in the litigation. 28 U.S.C. § 2412(a)(1) & (b). Such an award is mandatory unless the court "finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Id. at § 2412(d)(1)(B).
In Taylor v. Johnson, 915 F. Supp. 295 (M.D.Ala.1995),[1] the court found that under the EAJA, the plaintiff was a "prevailing party" and that the United States had failed to sustain its burden of showing that its position was substantially justified. Based on the authority of National Treasury Employees Union v. Internal Revenue Service, 735 F.2d 1277 (11th Cir.1984), the court, however, reserved ruling on whether "special circumstances" warranted a denial of attorneys' fees, expenses and costs. In National Treasury Employees Union, the Eleventh Circuit held that where, as here, a settlement agreement is silent regarding fees and the record does not contain an adequate factual basis to conclude that the prevailing party waived attorneys' fees or that the United States assumed attorneys' fees were not wanted, the court should hold an evidentiary hearing unless the parties can stipulate to the relevant facts. Id. at 1279.
Hence, in Taylor 1, the court ordered the parties to enter into a joint stipulation of the facts regarding the intent and discussions, if any, of attorneys' fees during settlement negotiations. The parties have now done so and additionally provided several attorney affidavits and declarations. The court finds that the additional evidence provides a sufficient factual basis to rule on the plaintiff's EAJA application, thus, rendering a hearing unnecessary. For the reasons discussed herein, the court grants, in part, and denies, in part, the plaintiff's application and awards $16,323.41 in attorneys' fees, expenses and costs for work performed in connection with this case.
FACTS
Complete findings of fact are contained in Taylor 1, which the court herein incorporates by reference. The additional evidence submitted by the parties, which the court finds dispositive, is as follows:
(1) The parties have stipulated that "[a]t no time prior to or during the settlement discussions was the subject of attorneys' fees, costs, or expenses raised by either party." Stipulation at ¶ 8.
(2) Lydia R. Hakken, counsel for the General Services Administration ("GSA"), filed a Declaration and therein states that "it was the understanding of GSA that the Settlement Agreement constituted the entire *1548 agreement between the parties and that it did not exclude attorneys' fees." Hakken's Declaration at ¶ 5.
(3) Kenneth R. Pakula, counsel for the Environmental Protection Agency ("EPA"), filed a Declaration and therein states that "[t]he subject of attorneys' fees, costs, and expenses was not discussed prior to, or during, settlement discussions. At no point in time did counsel for [the plaintiff] indicate that they would seek to be reimbursed for attorneys' fees, costs or expenses." Pakula's Declaration at ¶ 4.
(4) The parties have stipulated that the plaintiff's "first request for reimbursement of its attorneys' fees ... was made in its application for Fees and Other Expenses Under the Equal Access to Justice Act. Prior to this application, [the plaintiff] had not requested reimbursement of its attorneys' fees." Stipulation at ¶ 9.
(5) The parties also have stipulated that "counsel for [the plaintiff] drafted the Settlement Agreement, provided draft copies to counsel for GSA and EPA for comment, and coordinated the Settlement Agreement between the parties." Id. at ¶ 6.
(6) In an affidavit, counsel for the plaintiff (Karl Dix) explains his reasons for excluding a request for attorneys' fees, expenses and costs in the complaint and for failing to discuss the same during settlement negotiations. He states that he thought such a request in the complaint "would be premature," since such a request "could only be ruled upon by the Court after final adjudication of the matter." Dix's Aff. at ¶ 2. He further explains as follows:
I remember that we were rushed to finalize the settlement since the scheduled preliminary injunction hearing was driving the resolution of this matter. Accordingly, I never mentioned the recovery of attorneys' fees during the settlement of this matter since [the plaintiff] did not request reimbursement of attorneys' fees in its Complaint and I viewed an Equal Access to Justice Act fee application as a proceeding separate and apart from the underlying litigation which would be heard and resolved after the litigation had been concluded as required by statute. Raising and negotiating the fee application issue, I feared, would expand the scope of the negotiations and, potentially, fatally undermine the resolution of this matter since resolution would be delayed beyond the hearing date.
Id. at ¶ 4.
(7) The settlement agreement executed between the parties includes the following clause: "This Settlement Agreement contains the entire agreement and understanding between [the plaintiff] and Defendant[s] relating to the subject matter contained herein, and it may not be altered, amended, or modified in any respect or particular whatsoever except by writing duly...."
DISCUSSION
I. Special Circumstances
In determining the plaintiff's right to attorneys' fees, expenses and costs under the EAJA, the only issue remaining is whether the United States has met its burden of showing that "special circumstances" make an award under the EAJA inappropriate in this case. 28 U.S.C. § 2412(d)(1)(B). The court finds that the United States has failed to sustain its burden.
The "special circumstances" exception under the EAJA functions as "`safety valve'" and serves at least two purposes. National Treasury Employees Union, 735 F.2d at 1278 (citing 1980 U.S.Code Cong. & Ad.News at 4990). First, the exception "`help[s] insure that the Government is not deterred from advancing in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts.'" Id. (brackets supplied). Second, "`[i]t ... gives the court discretion to deny awards where equitable considerations dictate an award should not be made.'" Id.
Here, the United States asserts that the following "special circumstances" render an award under the EAJA inequitable: (1) the plaintiff's failure to discuss attorneys' fees, expenses and costs during settlement negotiations; (2) the omission of attorneys' *1549 fees, expenses and costs in the settlement agreement coupled with the so-called "merger clause" contained therein; and (3) the plaintiff's failure to make a demand in the complaint for attorneys' fees, expenses and costs. To avoid liability under the EAJA, the United States bears the burden of showing the existence of "special circumstances." Kunz Constr. Co. v. United States, 16 Cl.Ct. 431, 434 (1989), aff'd, 899 F.2d 1227 (1990). A review of the applicable case law indicates that courts seldom invoke the "special circumstances" exception. See Knights of Ku Klux Klan v. East Baton Rouge Parish School Bd., 643 F.2d 1034, 1041 (5th Cir.), rev'd on other grounds, 454 U.S. 1075, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981) (decided under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, as amended, which has been interpreted to contain a "special circumstances" exception as under the EAJA).
Here, it is undisputed that neither party raised the issue of attorneys' fees, expenses and costs throughout the settlement negotiations. Furthermore, the attorneys for the respective parties have submitted evidence setting forth their "intents" regarding the right of the plaintiff to seek attorneys' fees, expenses and costs in a separate action. Not surprisingly, the intents of opposing counsel lie on opposite ends of the spectrum. That is, counsel for the plaintiff (Karl Dix) represents that he never intended to waive such a right, while counsel representing the interests of the United States states that they assumed that the absence of any discussion thereof foreclosed a subsequent demand in an EAJA application. Based upon the circumstances presented in this case, the court finds that the reasons underlying the opposing parties' assumptions are plausible and believable. That is, the court does not question the truth or veracity of the respective attorneys' allegations.
In National Treasury Employees Union, the Eleventh Circuit suggested, without holding, that a denial of fees may be warranted where the prevailing party "remained silent on attorney's fees during settlement discussions for fear their injection would upset the settlement." 735 F.2d at 1279. The Eleventh Circuit continued by stating, however, that a waiver should not be found if counsel for the prevailing party "merely overlooked" the statutory right to fees or if the United States deliberately did not mention costs in order to "take advantage of this oversight." Id.
Here, the court finds that neither party is blameless. It is clear from the affidavit submitted by counsel for the plaintiff (Karl Dix) that he knew of his right to seek attorneys' fees, expenses and costs but failed to mention the "fee application issue" for "fear[]" that he "would expand the scope of the negotiations and, potentially, fatally undermine the resolution of this matter...." Dix's Aff. at ¶ 4. This admission would appear to tip the scales in favor of denying attorneys' fees, expenses and costs to the plaintiff.
On the other hand, the declarations submitted by the attorneys representing the interests of the United States reveal that they had full knowledge of the provisions of the EAJA, and the right of the "prevailing party" to seek attorneys' fees, expenses and costs, but chose to remain silent on the issue. Hence, the United States' knowledge of but failure to mention the same, coupled with the argument that the plaintiff's silence constitutes a waiver, closely resembles the situation set forth in National Treasury Employees Union.
To state it a different way, the United States' argument that the plaintiff's silence constitutes a waiver is a two-edged sword. The United States' same silence during settlement negotiations equally could be interpreted as acquiescence in the plaintiffs statutory right to subsequently seek attorneys' fees, expenses and costs under the EAJA if it were to prevail. See Ashley v. Atlantic Richfield Co., 794 F.2d 128, 139 n. 18 (3d Cir.1986). Hence, when carefully weighing the factors presented here, the court finds that the scales are evenly balanced, the fault lying equally with both parties. The court finds that under these circumstances, the plaintiff is entitled to an award of attorneys' fee, expenses and costs, because the EAJA and interpreting case law place the burden of proof on the losing party.
*1550 Other than National Treasury Employees Union, supra, the court has not found, nor have the parties pointed to, any controlling precedent regarding the failure to discuss attorneys' fees, expenses and costs during settlement negotiations. Other circuits faced with analogous circumstances under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, as amended, have found that the prevailing party does not waive attorneys' fees where the parties fail to address this issue in the settlement agreement. For example, in El Club Del Barrio, Inc. v. United Community Corp., 735 F.2d 98 (3d Cir.1984), the Court of Appeals for the Third Circuit held as follows:
The issue ... is whether the failure of the parties to a civil rights suit to have provided for attorneys fees in a written settlement agreement creates a "special circumstance" depriving a prevailing plaintiff in the underlying action of its right to reasonable attorneys fees under 42 U.S.C. § 1988 (1976). We hold that it does not, even where the parties discussed but were unable to agree on attorneys fees during settlement negotiations. Rather, the burden is on the losing party to show that the settlement agreement clearly waived the statutory right to attorneys fees.
Id. at 99. There, the plaintiff, as the prevailing party, included in a draft of the settlement agreement an express reservation of the right to seek attorneys' fees in a separate petition. Id. at 100. In the final agreement, however, the plaintiff withdrew this provision. Nevertheless and despite the defendants' reasonable reliance on the plaintiff's withdrawal, the court held that silence in the settlement agreement is insufficient, in and of itself, to sustain a losing party's burden of proof. Rather, the losing party, who bears the burden of proof, must show an affirmative waiver of fees by the prevailing party. Id. at 101.
Similarly, in Ashley, the Third Circuit held that under 42 U.S.C. § 1988 and
in the absence of an express waiver, [a prevailing party] will be deemed to have retained [his or] her statutory right to an award of reasonable attorney's fees. Therefore, where a defendant seeks to settle its total liability on a claim, it shall be incumbent upon the defendant to secure an express waiver of attorney's fees. Silence will not suffice.
794 F.2d at 138-139 (footnotes omitted) (brackets supplied). As indicated, the Third Circuit places the ultimate responsibility on the losing party to bring up and incorporate in the settlement agreement the parties' understanding regarding attorneys' fees. The court agrees with the reasoning behind strictly construing a settlement agreement against the losing party on a fee waiver issue, because the EAJA (as well as 42 U.S.C. § 1988) provides for a reasonable fee except in the most unusual circumstances. In sum, the court finds that because the EAJA places the burden of proof on the United States in this case and because all other factors are equal, the United States cannot defeat the plaintiff's EAJA application under the "special circumstances" exception simply by asserting that the plaintiff was silent on the issue of attorneys' fees where it also failed to raise the issue during settlement negotiations.
The court further finds that contrary to the United States' argument, the so-called "merger clause" contained in the settlement agreement does not preclude the issuance of attorneys' fees, expenses and costs. In interpreting the settlement agreement, the court turns to Alabama law as provided in the terms of the agreement. Under Alabama law, the court must look to the express terms in the agreement which clearly provide the limits of the settlement agreement. Kinmon v. J.P. King Auction Co., 290 Ala. 323, 276 So. 2d 569, 570 (1973) ("`[I]t is elementary that it is the terms of the written contract, not the mental operations of one of the parties, that control its interpretation.'") (citation omitted); see also Shepherd Realty Co. v. Winn-Dixie Montgomery, Inc., 418 So. 2d 871, 874 (Ala.1982) ("`[I]n the absence of ambiguity, the court cannot interpret the contract but must take it as it is written.'") (citation omitted).
Here, the court finds that by its express terms, the settlement agreement only refers to the terms specifically enumerated in said document. In fact, the language is crystal *1551 clear: "This Settlement Agreement contains the entire agreement and understanding between [the plaintiff] and Defendant[s] relating to the subject matter contained herein." (Emphasis supplied.) As indicated, supra, attorneys' fees were not then in issue. Additionally, the court finds that nowhere within the four corners of the document is there a waiver of any right to file for reimbursement of attorneys' fees under the EAJA. The court finds it ironic that the United States relies upon a clause to add new terms to the agreement to defeat the plaintiff's fee claim when that very clause is designed to preclude such additions.
The court likewise finds that, contrary to the United States' contention, the plaintiff's failure to request attorneys' fees, expenses and costs in the complaint does not prevent it from an award thereof. An EAJA fee application is separate and distinct from the original action, and the thirty-day EAJA filing period does not even begin to run until the entry of a "final judgment" in the underlying case. See 28 U.S.C. § 2412(d)(2)(G). Nowhere in the provisions of the EAJA is there a requirement that a party request attorneys' fees, expenses and costs in the pleadings of the original action. The court points out that the United States has not provided any case law or statutory authority in support of its argument.
Finally, the court emphasizes that its findings are consistent with the purposes of the EAJA. As explained in Kunz Constr. Co., Inc.:
Congress had a clear purpose when it passed the EAJA. Of paramount motivation was Congress' concern that certain individuals and small businesses "may be deterred from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights." H.R.REP. No. 1418, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.CODE CONG. & ADMIN.NEWS 4953, 4984, 4984. Especially troubling to Congress was its recognition that "when the cost of contesting a Government [action] exceeds the amount at stake, [many individuals and small businesses have] no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it." H.R.REP. No. 1418 at 9, 1980 U.S.CODE CONG. & ADMIN.NEWS at 4988. Accordingly, Congress crafted EAJA to "reduce the detriments and disparity by entitling certain prevailing parties to recover an award of attorney fees, expert witness fees, and other expenses against the United States." H.R.REP. No. 1418 at 6, 1980 U.S.CODE CONG. & ADMIN.NEWS at 4984.
16 Cl.Ct. at 431.
II. Award of Attorneys' Fees, Expenses and Costs under the EAJA
The plaintiff seeks attorneys' fees, expenses and costs under the EAJA for legal services associated with the preparation of the complaint and the motion for temporary restraining order or, in the alternative, for preliminary injunction. Additionally, the plaintiff seeks payment for hours expended by its attorneys in settlement negotiations that resulted in the dismissal of this action on October 13, 1994, and for time spent preparing the EAJA application for fees, expenses and costs.
A. Attorneys' Fees
In finding that the plaintiff has satisfied all conditions for recovering attorneys' fees under the EAJA, the court must now determine the amount of attorneys' fees to award. "The starting point for determining the amount of reasonable fees is the number of hours reasonably expended during the litigation multiplied by a reasonable hourly rate." Bruland v. Howerton, 742 F. Supp. 629, 635 (S.D.Fla.1990) (citing Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir.1988) (second citation omitted)).
1. Authorized Hourly Rate under the EAJA and Upward Adjustment of Hourly Rate
The EAJA provides that
the amount of fees awarded ... shall be based upon prevailing market rates for the kind and quality of services furnished ... except that ... attorney fees shall not be *1552 awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A). Of the four attorneys who worked on the plaintiff's case, three are based in Atlanta, Georgia, and one in Montgomery, Alabama. Based upon practical experience and knowledge of the legal fees charged today, the court finds that one cannot logically argue that the prevailing market rate for legal fees in either Atlanta or Montgomery is less than $75 per hour, and the United States, for good reason, has not made such an argument.
As provided under the EAJA, the court, in its discretion, may increase the maximum hourly fee if it determines that a cost-of-living increase or a "special factor" warrants a deviation from the $75 cap. Id. at § 2412(d)(2)(A)(ii); see also Pollgreen v. Morris, 911 F.2d 527, 538 (11th Cir.1990) (citing with approval a South Carolina case in which the statutory rate was adjusted to an hourly rate of $134.36); see also Jean v. Nelson, 863 F.2d 759 (11th Cir.1988), aff'd. sub nom. Commissioner, Immigration & Naturalization Service v. Jean, 496 U.S. 154, 110 S. Ct. 2316, 110 L. Ed. 2d 134 (1990).
Here, the plaintiff does not seek an increase under the "special factor" exception but, rather, asserts that a cost-of-living increase is warranted. The court agrees. Congress imposed the $75 cap on the original effective date of the EAJA, which was October 1, 1981. Clearly, this rate should be adjusted to reflect the rise in the cost of living on the date the plaintiff filed its EAJA application, which was in November 1994. In determining the rate of adjustment, the court will use the Consumer Price Index ("CPI") compiled by the United States Bureau of Labor Statistics.[2]See Bruland, 742 F.Supp. at 636 n. 8 (citing United States v. Willens, 731 F. Supp. 1579, 1581 (S.D.Fla. 1990)); Jean, 863 F.2d at 773 (holding that "a court should describe mathematically the basis of all cost of living adjustments under the [EAJA]"). Virtually every court has calculated cost-of-living increases by comparing the CPI in October 1981 with the CPI of the year at issue. Jones v. Espy, 10 F.3d 690, 693 (9th Cir.1993) (citation omitted); Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990); Sierra Club v. Secretary of Army, 820 F.2d 513, 521-23 (1st Cir.1987).
In 1981, the CPI was 82. On the date the plaintiff filed its EAJA application, the CPI was 149.4. See Pl.'s Br. in Supp. of EAJA Appl., filed Nov. 14, 1994, Ex. 4 (CPI index). The following formula indicates that the current maximum rate under the EAJA, adjusted solely for cost of living and no other factor, is $136.65:
82.0 $75
----- = ---- X = $136.65
149.4 X
The plaintiff does not request the full cost-of-living increase for the four attorneys who worked on his case. Additionally, the United States has neither argued that a cost-of-living increase is not justified nor has it asserted that the hourly rates proposed by the plaintiff are unreasonable. After carefully reviewing the affidavits submitted in support of the plaintiff's EAJA application, the court finds that the rates requested are reasonable based upon the experiences of each of the attorneys and, thus, will award fees at the following rates:
Attorney Hourly Rate
Karl Dix $130.00
Lee Roberts $130.00
George Papaioanou $110.00
James H. McLemore $130.00[3]
*1553 2. Hours Expended
In support of the EAJA application for attorneys' fees filed on November 14, 1994, as supplemented on November 30, 1994, the plaintiff submitted itemized statements of the services rendered by its attorneys, as well as attorney affidavits in support thereof. In the original application filed November 14, 1994, the plaintiff requests attorneys' fees for legal services rendered by Karl Dix, Lee Roberts and George Papaioanou from September 26, 1994, through October 25, 1994. The hours for which the plaintiff seeks compensation from these three attorneys are as follows: (1) Karl Dix (54.20 hours); (2) Lee Roberts (1.5 hours); and (3) George Papaioanou (31.20 hours). Additionally, the plaintiff seeks attorneys' fees for 18.7 hours of work by James McLemore from September 19, 1994, through October 18, 1994.
Then, on November 30, 1994, the plaintiff supplemented its EAJA application. The attorney hours set forth therein are for the preparation of the EAJA fee application. The plaintiff requests attorneys' fees for work conducted by Karl Dix and George Papaioanou from October, 26, 1994, to November 22, 1994. Specifically, the plaintiff seeks an additional 2.4 hours for work performed by Karl Dix in reviewing various correspondence from the defendants and in working with George Papaioanou on the EAJA application. An additional 34.7 hours also is sought for George Papaioanou's hours spent preparing the EAJA application. Finally, the plaintiff requests 5.7 additional hours for James McLemore's work on the EAJA application. Hence, the total hours for which the plaintiff seeks payment of attorneys' fees, as shown in the EAJA application, as supplemented, are as follows: (1) Karl Dix (54.2 + 2.4 = 56.6 hours); (2) Lee Roberts (1.5 hours); (3) George Papaioanou (31.2 + 34.7 = 65.9 hours); and (4) James McLemore (18.7 + 5.7 = 24.4 hours).
While hours for preparation of an EAJA application are compensable, Jean, 496 U.S. at 157, 110 S.Ct. at 2318, the court finds that awarding fees for 42.8 hours (34.7 + 2.4 + 5.7) is excessive. Nearly one-third of the total attorney hours was spent preparing the EAJA application, as supplemented. In so finding, the court realizes, of course, that on November 16, 1994, it ordered the plaintiff to file case authority, which would allow the court to award attorneys' fees for time spent in preparing the EAJA application, thus, requiring additional work for the plaintiff's attorneys. Nonetheless, the court has reviewed the case law and can find no authority for awarding attorneys' fees for such a high number of hours. See Fraction v. Bowen, 859 F.2d 574, 575 (8th Cir.1988) (awarding attorneys' fees for 4.25 hours for preparation of the EAJA application for attorneys' fees); Rutledge v. Sullivan, 745 F. Supp. 715, 716 n. 1 (S.D.Ga.1990) (finding "that 3.5 hours is a reasonable amount of time to draft, revise and amend a fees application and accompanying memorandum of support").
After reviewing the affidavits and attorney statements, as well as the case law, the court is willing to award the plaintiff one-half of the hours requested for the preparation of the EAJA application. That is, the court will reduce by fifty percent the hours submitted by Karl Dix, George Papaioanou and James McLemore to reflect the following figures: (1) Karl Dix (2.4 × .5 = 1.2); (2) George Papaioanou (34.7 × .5 = 17.35); (3) James McLemore (5.7 × .5 = 2.85).
However, after careful review of the attorney statements, the court finds that all other hours requested are reasonable and compensable under the EAJA. The United States argues that the fee application should be denied because it "fails to specifically indicate how many hours were spent, on a daily basis, in performing the legal tasks related to the subject litigation. Counsel has merely provided a list of dates, tasks and total hours without indicating the number of hours expended on each daily activity." Def.s' Opp. to Pl.'s EAJA Appl., filed Dec. 12, 1994, at 12 n. 6. The EAJA provides that records of an attorney's time must be submitted with an EAJA fee application. 28 U.S.C. § 2412(d)(1)(B). The United States cites Naporano Iron and Metal Co. v. United States, 825 F.2d 403 (Fed.Cir.1987), wherein the court stated that "[i]n the absence of such an itemized statement, the court is unable to determine whether the hours, fees and expenses, are reasonable for *1554 an individual item." Id. at 404 (citation omitted). The court finds that case distinguishable from the instant one.
In Naporano Iron and Metal Co., the EAJA application for attorneys' fees included one affidavit submitted by the attorney in charge of the plaintiff's case. Therein, the court emphasized that the attorney had merely provided a conclusory assertion that
the total fees sought were $117,490 and attendant disbursements of $6,545. He stated, "[b]ecause 70 percent, more or less, of the time expended in this matter was expended by senior members of the firm, an average hourly rate of $115.00 is a close approximation of actual hourly rates...." (emphasis added).... Attached thereto were periodic billings to Naporano Iron and Metal Company generally indicating the total billing for the month and allocable `Disbursements' for the billed period. An example is the bill from petitioners' attorney dated December 16, 1982, to wit: For Legal Services Rendered through November 30, 1982.
Id. The court affirmed the trial court's denial of fees under the EAJA and held that "such a showing is inadequate to support an award of attorneys' fees." Id. (citations omitted). The court further stated that "[o]nly by knowing the specific task performed can the reasonableness of the number of hours required for any individual item be judged." Id.
Here, the court finds that the attorney statements are sufficiently detailed to be acceptable under the EAJA. The statements list in detail each individual attorney's time by date and specific task and then provide the total hours spent in those activities combined, and also identify meetings and telephone conversations. For example, in the supplemental application for fees, Karl Dix outlines his work as follows:
11/08/94 Received and reviewed letter from
EPA; worked on response.
11/09/94 Reviewed correspondence from Mr.
McEntagart to Mr. Taylor; reviewed
letter previously telecopied to Mr.
Taylor; worked with George Papaioanou
on application.
11/10/94 Reviewed various telecopies and various
telephone conversations with Mr.
Taylor.
TOTAL HOURS: 2.40 at $130 per hour = $312.
The court does not find fatal the fact that each specific line item does not state the exact number hours performed for that activity. This example and the remaining itemizations presented by the four attorneys are sufficiently particularized and reasonable in amount. Importantly, the United States does not argue that any of the activities engaged in by the attorneys are not compensable under the EAJA or that the hours claimed are excessive.
Additionally, the court finds the remarks in Kunz Constr. Co. equally pertinent in this case:
With respect to the alleged inadequacy of [plaintiff's] fee application, the Supreme Court's unequivocal directive that "a request for attorney's fees should not result in a second major litigation" is particularly apt. [Plaintiff's] application is clearly adequate to determine not only its entitlement to fees but the parameters of its recovery. Requiring [plaintiff] to re-file now, after the application has matured, for a new round of responsive pleading based merely on a quantum question would certainly transgress the Court's proscription just quoted.
16 Cl.Ct. at 440 (brackets supplied) (internal citations omitted).
3. Total Attorneys' Fees Award
Based on the foregoing, the court finds that $15,539.00 is the appropriate attorneys' fee award in this case:
Attorney Rate Per Hour Hours Fee
Karl Dix $130.00 55.4 $7202.00
Lee Roberts $130.00 1.5 $ 195.00
George Papaioanou $110.00 48.55 $5340.50
James H. McLemore $130.00 21.55 $2801.50
TOTAL = $15,539.00
*1555 B. Expenses and Costs
The plaintiff also seeks payments for expenses and costs, and the United States has not contested the reasonableness of these amounts. In addition to attorneys' fees, the EAJA authorizes the award of "expenses" and "costs." 28 U.S.C. § 2412(a)(1) & (d)(1)(A). For example, compensable expenses include "telephone, reasonable travel, postage, and computerized research expenses." Jean, 863 F.2d at 778.[4]
The attorney statements attached to the EAJA application, as supplemented, set forth the various expenses and costs incurred during the course of this litigation. The court will discuss each and whether said amount is recoverable:
1. Computer Research The plaintiff seeks a total of $129.89 for computer research ($93.55 in the original EAJA application, and $36.34 in the supplemental application). The court finds that the total claimed for computer research is reasonable and recoverable. "Computer research fees are typically billed to paying clients and should therefore be recoverable in a fee petition." Butler v. Shalala, No. 92-C-145, 1995 WL 314595, at *5 (N.D.Ill. May 22, 1995); Elcyzyn v. Brown, 7 Vet. App. 170, 183 (1994) (awarding computer research costs incurred "in preparation for the proceedings ... [since] such costs are customarily charged to the client where these proceedings took place").
2. Long Distance Calls: The plaintiff requests expenses for long distance telephone calls totaling $80.49. See Attorney statements of Karl Dix, George Papaioanou and Jimmy McLemore setting forth bills of $29.25, $38.01 and $12.53. The court finds that $80.49 is reasonable and compensable under the EAJA. See Jean, 863 F.2d at 778.
3. Photocopying and Facsimile: The plaintiff's facsimile costs total $364.50 ($96.00 + $20.50 + 248.00), and photocopying fees amount to $403.75 ($63.25 + 73.25 + $267.25). As already stated, both facsimile and photocopying expenses are recoverable under the EAJA, see Jean, supra. Based upon the complexity of the case and the pertinent documents which were necessary to litigate and settle this action, however, the court finds this amount excessive and will reduce it by one-half. Hence, the plaintiff may recover $384.14 for these expenses.
4. Postage, UPS Delivery & Federal Express: The court will allow the plaintiff to recover expenses for postage ($8.09) and UPS delivery ($21.00) as listed in the attorney statements submitted in support of the EAJA application. See Pl.'s Appl. for Fees, Expenses & Costs under the EAJA, filed Nov. 14, 1994. Likewise, the plaintiff may recover $40.80 for postage, express mail and certified mail expenses as claimed by Jimmy McLemore. See John C. Grimberg Co., ASBCA 32490, 88-3 BCA ¶ 20,860 (1988).
5. Filing Fee: Plaintiff also may recover as costs the clerk filing fee of $120.00. 28 U.S.C. § 2412(a) states that "a judgment for costs, as enumerated in section 1920 of this title ... may be awarded to the prevailing party in any civil action by or against the United States ..." According to § 1920, "[a] judge or clerk of any court of the United States may tax as costs" ... [f]ees of the clerk...." 28 U.S.C. § 1920(1).
6. Miscellaneous and Attorney Travel: The court rejects the claim for $20.00 in miscellaneous charges, because the plaintiff has not stated for what service or services these charges were incurred. Likewise, the court will not award the plaintiff for any monies incurred for attorney travel. While the plaintiff, in its brief, states that all charges for attorney travel are recoverable, *1556 the plaintiff has not submitted an amount for such expenses.
7. Secretarial Overtime: The court rejects the plaintiff's request for overtime monies paid to the attorneys' secretaries and agrees with the reasoning set forth in Louis v. Nelson, 646 F. Supp. 1300 (S.D.Fla.1986). In analyzing the prevailing party's application for fees and expenses under the EAJA, the court stated as follows:
The Court can find no way to justify awarding compensation for secretarial overtime as either costs or expenses. Secretarial work is part of the everyday activity of a law firm which constitutes its overhead. Secretarial salaries are paid to employees of the firm, and thus are not similar to those monies paid to persons outside the firm such as process servers or witnesses. Furthermore, their salaries cannot be equated with costs, such as filing fees, or expenses such as postage or computer charges, which are similarly paid to entities outside of the law firm. Attorneys cannot be compensated for normal overhead expenses. The Court finds no authority to support the inclusion of hours and subsequent charges related to secretarial overtime in the award.
Id. at 1321.
Based on the foregoing, the following chart outlines the expenses that the court will award the plaintiff under the EAJA:
Expenses Amount
Computer Research $129.89
Long Distance Calls $ 80.49
Photocopying and Facsimile $384.14
Postage, UPS Delivery & Federal
Express $ 69.89
Filing Fee $120.00
Miscellaneous and Attorney
Travel $ 00.00
Secretarial Overtime $ 00.00
TOTAL = $784.41
CONCLUSION
For the reasons stated herein and pursuant to the provisions of the Equal Access to Justice Act, 28 U.S.C. § 2412, it is CONSIDERED, ORDERED and ADJUDGED that the plaintiff be and the same is hereby AWARDED the amount of $16,323.41 against the defendants, to be paid forthwith to plaintiffs' attorneys for fees, expenses and costs expended during the course of this litigation.
NOTES
[1] Hereafter, the court will refer to the November 27, 1995, memorandum opinion and order as Taylor 1.
[2] In Bruland, the court "utilized a single cost-of-living factor to account for inflation occurring between 1980 and the time of the ultimate disposition of the attorneys' fees issue." Id. at 636 (citing cases) (emphasis supplied). Here, the plaintiff has calculated the cost-of-living increase based upon the CPI in effect when the plaintiff filed his EAJA application. The court finds that this method is appropriate, particularly since it will yield a lower cost-of-living increase than the CPI in effect today. Hence, the United States is in no way prejudiced and is in fact benefitted.
[3] In his affidavit attached to the brief in support of the EAJA application for attorneys' fees, filed November 14, 1994, James McLemore sought $136.65 per hour, the maximum allowable under the EAJA. However, in his subsequent affidavit filed on November 30, 1994, James McLemore lowered his fee to $130 per hour.
[4] The following cases exhibit the types of expenses that courts have awarded under the EAJA. Vaughn v. Heckler, 860 F.2d 295, 296 (8th Cir.1988) (postage and photocopying expenses); Aston v. Secretary of Health & Human Services, 808 F.2d 9, 12 (2d Cir.1986) (telephone, postage, photocopying and travel expenses); Securities & Exchange Commission v. Kaufman, 835 F. Supp. 157, 159-60 (S.D.N.Y.1993) (travel, typing services, postage, telephone, transportation, storage of records and translation expenses); Holden v. Bowen, 668 F. Supp. 1042, 1053 (N.D.Ohio 1986) (telephone, messenger service, postage, computer-assisted research and travel expenses). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579540/ | 12 So. 3d 169 (2007)
P.W.
v.
STATE DEP'T OF HUMAN RES.
No. 2050910.
Court of Civil Appeals of Alabama.
April 13, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579472/ | 12 So.3d 884 (2009)
Carola YEAKLE, Appellant,
v.
David H. YEAKLE, Appellee.
No. 4D08-2012.
District Court of Appeal of Florida, Fourth District.
June 24, 2009.
*885 Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellant.
Terrence P. O'Connor of Morgan, Carratt and O'Connor, P.A., Fort Lauderdale, for appellee.
WARNER, J.
The wife and husband each appeal various aspects of the trial court's final judgment of dissolution of marriage. Of the multiple issues raised, we reverse on two. First, the trial court erred in refusing to include the parties' stipulated settlement agreement in the final judgment. Second, the cumulative total of the financial awards the wife was ordered to pay are excessive.
The wife and husband married in 1991 and had two children. The wife filed for divorce in 2007. The parties disputed various issues regarding the children as well as their incomes and finances. At trial, the husband's counsel read a stipulation into the record regarding the marital residence:
The Husband is going to be receiving the marital residence and he's going to be responsible for the mortgage encumbering the residence and he's going to make his best efforts to see if he can assume the mortgage to have the Wife's name removed from the mortgage.
(Emphasis supplied). The court asked whether removal of the wife's name could be done by court order, to which both parties acknowledged that it could not without the mortgagee's consent. The husband's counsel explained that the husband had been trying to get the wife's name removed, but had been unsuccessful so far. The wife's counsel noted that the husband was only required to use his best efforts to achieve that result. Nevertheless, the final judgment provides:
[T]he parties reached an agreement on... equitable distribution which was dictated into the record and is included in this Final Judgment. . . . Husband shall be solely responsible for the mortgage encumbering the property. The lender is ordered to permit Husband to solely assume the mortgage.
The wife complains that the court changed the stipulation. She would not have consented to the stipulation regarding the marital residence if it were not for the requirement that the husband use his best efforts to compel the mortgage lender to remove her name and allow the husband to assume the mortgage. We agree that the court should not have changed the stipulation in this way and that it deprived the wife of the ability to enforce the provision that the husband use his best efforts to remove her from the note and mortgage.
"A stipulation properly entered into and relating to a matter upon which it *886 is appropriate to stipulate is binding upon the parties and upon the Court." Steiner v. Steiner, 638 So.2d 174, 175 (Fla. 1st DCA 1994) (quoting Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971)). Accord Lift v. Lift, 1 So.3d 259, 261 (Fla. 4th DCA 2009). The court must not disturb the stipulation "unless found to be ambiguous or in need of clarification, modification or interpretation." Steiner, 638 So.2d at 175 (citation omitted).
In this case, the parties stipulated to the husband using "his best efforts to see if he can assume the mortgage to have the Wife's name removed from the mortgage." The trial court expressed concern that the husband would not succeed in removing her name without the help of a court order directing the lender to permit the husband to assume the entire mortgage. However, in reality the court could not order the lender to remove the wife's name from the mortgage without the lender being a party to the proceedings. Without the provision requiring the husband to use his best efforts to remove her from the mortgage, the wife did not receive the benefit of the bargain she negotiated with the husband and would have no means of enforcing the provision. The stipulation was not ambiguous or in need of interpretation, and the court should have enforced it in the final judgment.
In the final judgment, the court found that the wife currently earned a gross income of $65,000 a year and the husband earned $500 a week ($26,000/ year). The court expressly rejected the husband's request to impute income to the wife. The court ordered shared parental responsibility and declared the husband the primary residential parent. The court awarded the husband permanent periodic alimony and child support. The court ordered the parties to each pay 50% of non-covered medical and dental expenses, together with 50% of the private school tuition. It also required the wife to maintain life insurance for the benefit of the husband.
The court did not calculate the net income of the parties, but the child support worksheet is attached to the judgment. In it, the net income of the wife is calculated at $3,171, and the net income of the husband is $3,215. This would constitute the wife's income after deduction of alimony and the husband's income including the alimony. See § 61.30(2), Fla. Stat. From this income, the wife will be required to pay $939 per month to the husband for child support and also pay her share of the private tuition of the children, which amounts to $445 per month. She pays $120 for their health insurance, while the husband pays $210 for child care. After deducting the child support, private tuition, and health insurance, she will be left with $1,677, plus she must pay for the life insurance and, due to her expanded visitation schedule, must also maintain a residence capable of housing the children during their visits. The husband on the other hand will have approximately $3,400, after payment of child care expenses and private tuition, to support himself and the expenses of the children.
Particularly in these present tough economic times, it is difficult for any marital dissolution to provide sufficient funds to each party to sustain the standard of living to which they might have been accustomed during their marriage. In this case, the wife was the primary income producer, yet her income has been reduced drastically, as has the husband's. The total of their combined incomes amounts to less than half of what it was two years ago.
Although each award or responsibility placed on the wife, standing alone, may not be excessive, the cumulative total of the awards can constitute an abuse of discretion. See Posner v. Posner, 988 So.2d 128, *887 129 (Fla. 4th DCA 2008); Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990). Posner compiled various cases to show what cumulative amounts can constitute an abuse of discretion:
Based on the record evidence and findings as to his ability to pay, the total award places an undue burden on him without any justification-assuming that he could be required to pay an amount leaving him with nothing for his personal needs. See Calderon v. Calderon, 730 So.2d 400 (Fla. 5th DCA 1999) (former husband could not be charged with permanent periodic alimony, child support, and mortgage payments totaling $2549, where his net income was $2760); Radziwon v. Radziwon, 710 So.2d 748, 748-49 (Fla. 4th DCA 1998) (the trial court abused its discretion in setting former husband's alimony obligation at $866 per month, with an additional payment of $200 per month toward the alimony arrearage; former husband's net monthly income was $1775, former wife's net monthly income was $1263, and the former husband was left with only $709 per month to support himself after paying alimony. Former wife would have had $2,128.85 available for her needs); Benenfeld v. Benenfeld, 705 So.2d 1072 (Fla. 4th DCA 1998) (alimony award was excessive where alimony award and insurance deductible together constituted nearly 80% of the husband's net income); Decker v. Decker, 660 So.2d 1162 (Fla. 4th DCA 1995) (court abused its discretion in awarding wife alimony and child support constituting 76% of husband's income); Thomas v. Thomas, 418 So.2d 316 (Fla. 4th DCA 1982) (reversed alimony and child support award which amounted to 58% of husband's net income).
988 So.2d at 130. Similar to the cases cited in Posner, here the amounts assessed against the wife cumulatively are excessive. While in actual dollars the wife might be left with slightly more than the husbands in the foregoing cases, this still amounts to an abuse of discretion where the wife is left with less than the husband makes per month in his own occupation. The court's awards leave her with only about 35% of her net income.
The husband contends that given the wife's prior income history, it was not an abuse of discretion. Yet the court affirmatively refused to impute additional income to the wife. Therefore, we cannot consider the award in relation to what the wife could make.
We reverse and remand for further consideration of the awards made and to correct the final judgment to include the stipulation of the parties as to the marital home. On remand, the court may simply refashion the award or may take further testimony as the court deems necessary.
Reversed and remanded for further proceedings.
GROSS, C.J., and CIKLIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579478/ | 671 N.W.2d 89 (2003)
256 Mich. App. 691
FARMERS INSURANCE EXCHANGE, Plaintiff-Appellee,
v.
AAA OF MICHIGAN, Defendant-Appellant.
Docket No. 232188.
Court of Appeals of Michigan.
Submitted March 3, 2003, at Detroit.
Decided June 3, 2003, at 9:05 a.m.
Released for Publication July 14, 2003.
Richard R. Bachelder, Grand Blanc, for the plaintiff.
Gross, Nemeth & Silverman, P.L.C. (by Mary T. Nemeth), and Schoolmaster, Hom, Killeen, Siefer & Arene (by Kevin S. Carden), Detroit, Bloomfield Hills, for the defendant.
Before: HOEKSTRA, P.J., and SMOLENSKI and HOOD, JJ.
*90 PER CURIAM.
This case involves a priority dispute under Michigan's no-fault act, M.C.L. § 500.3101 et seq., between two insurance companies concerning payment of no-fault benefits related to injuries that two children sustained while passengers in an automobile driven by their day-care provider. The district court granted summary disposition in favor of plaintiff Farmers Insurance Exchange and later entered a judgment for plaintiff in the amount of $18,811.96. Defendant AAA of Michigan filed a claim of appeal in the circuit court from the district court judgment, but the circuit court denied defendant's appeal and affirmed the district court's decision. Defendant now appeals by leave granted. The only issue on appeal is whether plaintiff or defendant is first in priority for payment of automobile insurance benefits in light of subsection 3114(2) of the no-fault act, M.C.L. § 500.3114(2). We hold that the applicability of subsection 3114(2) depends on a primary purpose/incidental nature inquiry with respect to whether a motor vehicle is operated in the business of transporting passengers. Because we conclude that subsection 3114(2) does not apply under the circumstances in the present case, we reverse the lower courts' orders and remand for entry of judgment in favor of defendant.
I. Facts and Procedural Background
In May of 1999, plaintiff filed a complaint in district court, seeking a declaratory judgment that defendant was first in priority for liability for no-fault benefits related to a May 14, 1998, automobile accident. The two minor daughters of plaintiff's insured[1] suffered injuries while passengers in a vehicle driven by their day-care provider and insured by defendant. Plaintiff paid the children's claim for personal injury protection (PIP) benefits, but sought reimbursement from defendant on the basis that pursuant to subsection 3114(2) of the no-fault act, M.C.L. § 500.3114(2), defendant had first priority to pay these benefits. According to plaintiff, at the time the accident occurred, the vehicle the day-care provider used to transport the children in the operation of a for-profit day-care center was "a motor vehicle operated in the business of transporting passengers to and from day care/ school," and thus, pursuant to subsection 3114(2), defendant was responsible for providing PIP benefits. Plaintiff also claimed that defendant had denied plaintiff's requests for reimbursement.
In its answer to the complaint, defendant left plaintiff to its proofs concerning priority under subsection 3114(2) and denied that it had refused plaintiff's request for reimbursement. Subsequently, the parties filed cross-motions for summary disposition. Each party argued that the other party occupied the no-fault insurance position of first priority under M.C.L. § 500.3114 and provided reasonable arguments concerning the applicability of the statute in this case. However, having heard argument on the motions, the district court granted plaintiff's motion for summary disposition and denied defendant's motion for summary disposition; the order stated that defendant was in first priority to pay no-fault PIP benefits. Thereafter, pursuant to the parties' stipulation, the court entered a judgment for plaintiff in the amount of $18,811.96. Defendant filed in the circuit court, a claim of appeal regarding the district court's judgment, but after briefing and oral argument, the circuit court denied defendant relief from the district court's judgment. *91 Thereafter, defendant sought leave to appeal in this Court, which this Court granted.
II. Standard of Review
Resolution of the issue before us requires interpretation and application of subsection 3114(2) of the no-fault act, which are questions of law that this Court reviews de novo. Proudfoot v. State Farm Mut. Ins. Co., 254 Mich.App. 702, 708, 658 N.W.2d 838 (2003); Bloomfield Charter Twp. v. Oakland Co. Clerk, 253 Mich.App. 1, 9, 654 N.W.2d 610 (2002). In a recent case involving interpretation of the no-fault act, Proudfoot, supra, this Court reiterated pertinent rules of statutory construction:
The primary goal when construing a statute is to ascertain and give effect to the intent of the Legislature. When determining the Legislature's intent, this Court must first look to the statute's specific language. Judicial construction is unnecessary if the meaning of the language is clear. However, judicial construction is appropriate when reasonable minds can differ regarding the statute's meaning. Terms contained in the no-fault act are read "`in the light of its legislative history and in the context of the no-fault act as a whole.'" Further, courts should not abandon common sense when construing a statute. Given the remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the persons who are its intended beneficiaries. [Proudfoot, supra at 708-709, 658 N.W.2d 838 (citations omitted).]
III. Analysis
The sole issue on appeal is which insurer, plaintiff or defendant, is first in priority for payment of PIP benefits for two children who sustained injuries in a motor-vehicle accident.
We begin our analysis by noting that generally an injured person is required to seek compensation from his own no-fault insurer, regardless of whether that person's insured vehicle is involved in the accident. MCL 500.3114(1). In Thomas v. Tomczyk, 142 Mich.App. 237, 241, 369 N.W.2d 219 (1985), this Court noted:
The primary goal of the Legislature in enacting the Michigan no-fault act ... was to ensure prompt and adequate compensation to parties injured in automobile accidents by requiring them to first look to their own insurers. Thus, an injured person is generally required to seek compensation from his own no-fault insurer even where that person's insured vehicle is not involved in the accident. [Citations omitted.]
However, the Legislature provided exceptions to this general rule, including the exception found in subsection 3114(2):
A person suffering accidental bodily injury while an operator or a passenger of a motor vehicle operated in the business of transporting passengers shall receive the personal protection insurance benefits to which the person is entitled from the insurer of the motor vehicle. This subsection does not apply to a passenger in the following, unless that passenger is not entitled to personal protection insurance benefits under any other policy:
(a) A school bus, as defined by the department of education, providing transportation not prohibited by law.
(b) A bus operated by a common carrier of passengers certified by the department of transportation.
(c) A bus operating under a government sponsored transportation program.
(d) A bus operated by or providing service to a nonprofit organization.
*92 (e) A taxicab insured as prescribed in section 3101 or 3102.
(f) A bus operated by a canoe or other watercraft, bicycle, or horse livery used only to transport passengers to or from a destination point. [MCL 500.3114(2) (emphasis supplied).]
The parties agree that none of the exceptions within subsections 3114(2)(a)-(f) apply in this case.
With regard to the instant case, the significant language of subsection 3114(2) is "a motor vehicle operated in the business of transporting passengers." The no-fault act does not define this statutory phrase or the operative terms within it that are implicated in this case.[2] Defendant asserts that "the business of transporting passengers" must constitute the sole or primary purpose of the motor vehicle, while plaintiff suggests that even utilization of a vehicle in the business of transporting passengers incidental to other, primary uses of the vehicle falls within the scope of subsection 3114(2). Because the statutory phrase does not have a clear and unambiguous meaning, this Court must construe it under the rules of statutory interpretation. Proudfoot, supra.
While sparse Michigan case law exists interpreting or otherwise discussing subsection 3114(2), this Court has made relevant observations concerning the Legislature's motives in enacting subsection 3114(2) and its exceptions. In Michigan Mut. Ins. Co. v. Farm Bureau Ins. Group, 183 Mich.App. 626, 633-634, 455 N.W.2d 352 (1990), this Court noted:
As previously indicated, the Legislature generally "intended that an injured person's personal insurer stand primarily liable for ... benefits whether or not its policy covers the motor vehicle involved and even if the involved vehicle is covered by a policy issued by another no-fault insurer." Lee v. DAIIE, 412 Mich. 505, 515, 315 N.W.2d 413 (1982). The "injured person's personal insurer" is, of course, the insurance company providing no-fault insurance in his household which was purchased by an "owner or registrant of a motor vehicle." MCL 500.3101(1) and 500.3114(1).... While a business can be an owner or registrant of a motor vehicle, and thus required to purchase no-fault insurance, a business obviously cannot be a "household," or have a "spouse" or "relative," in the primary and generally understood meaning of those words. Accordingly, insurers of business vehicles usually would not be first in order of priority under the general priority scheme. The Legislature recognized this and created what amounts to a business household in § 3114(2) and (3), so that responsibility for providing benefits would be spread equitably among all insurers of motor vehicles.
The household in § 3114(2) consists of the operator of the motor vehicle, and passengers under certain circumstances. It is apparent that the Legislature used the terms "operator" and "passenger" in § 3114(2) so that, as in § 3114(3), it could define a "household" of reasonable size in convenient terms. See M.C.L. § 500.3114(2)(a)-(f).... [J]ust as the Legislature enacted § 3114(2) and (3) to spread liability equitably among all insurers, it enacted exceptions to § 3114(2), requiring use of the word "passenger," to prevent the shift of primary liability from being inequitable in certain obvious circumstances. [Emphasis supplied.]
In an earlier opinion, State Farm Mut. Automobile Ins. Co. v. Sentry Ins., 91 *93 Mich.App. 109, 114, 283 N.W.2d 661 (1979), this Court explained:[3]
The exceptions in § 3114(2) and (3) relate to "commercial" situations. It was apparently the intent of the Legislature to place the burden of providing no-fault benefits on the insurers of these motor vehicles, rather than on the insurers of the injured individual. This scheme allows for predictability; coverage in the "commercial" setting will not depend on whether the injured individual is covered under another policy. A company issuing insurance covering a motor vehicle to be used in a(2) or (3) situation will know in advance the scope of the risk it is insuring.... [Emphasis supplied.]
As the parties observe, Thomas, supra, is the only published opinion of this Court interpreting the meaning of "a motor vehicle operated in the business of transporting passengers" within subsection 3114(2).[4]Thomas involved a dispute concerning which no-fault insurer had priority of coverage. Id. at 239, 241, 369 N.W.2d 219. In Thomas, two Michigan Technological University students sustained injuries after they were involved in an automobile accident while they were passengers in an automobile driven by a third student and headed home to the Flint area for the holidays. Id. at 239, 369 N.W.2d 219. The two students had responded to a ride board notice posted by the third student, with whom they had no previous acquaintance, and paid him twenty-five dollars for a round trip. Id. The two students filed suit seeking to recover no-fault benefits from the insurer of the driver's vehicle on the basis that "at the time of the accident, plaintiffs were passengers in a `motor vehicle operated in the business of transporting passengers,'" according to subsection 3114(2). Id. at 240, 369 N.W.2d 219. This Court affirmed the trial court's grant of summary disposition to the driver's insurer. Id. at 240-242, 369 N.W.2d 219. In a footnote, this Court quoted the circuit court's analysis:
The [c]ourt ... will find that this is not any business. And I'll make a specific statement that, it wasn't the primary function of the driver to carry passengers for hirer [sic], he's a student, as far as I can tell. And it is not the primary purpose of the vehicle to carry passengers for hirer [sic], it just happened that incidental to coming home, it was convenient to take on passengers, and I don't really blame him for trying to make a little extra money to cover the cost of gas, that's a long ride up the Upper Peninsula. And so the entry of a judgment in favor of MEEMIC [the driver's insurer] is granted in both cases. [Thomas, supra at 240 n. 2, 369 N.W.2d 219 (emphasis added).]
After referring to the general rule regarding no-fault recovery and the exception provided within subsection 3114(2), this Court provided the following one paragraph of analysis:
*94 We are not persuaded that the Legislature intended by its enactment of § 14(2) [subsection 3114(2)] of the no-fault act to abandon the general rule of coverage where college students pay other college students for the privilege of carpooling home for school holidays. We agree with the trial court that under the particular facts of these cases, plaintiffs were not passengers of "a motor vehicle operated in the business of transporting passengers." We thus affirm the judgment of the trial court. [Thomas, supra at 241-242, 369 N.W.2d 219.]
The instant case is factually distinguishable from Thomas to the extent that, unlike the isolated incident of carpooling during which the accident occurred in Thomas, the accident in the instant case took place as the day-care provider drove the children to school, which she routinely did three to five times each week. However, the Thomas Court appeared to sanction, without explicitly adopting or restating itself, the circuit court's analysis, which concluded that subsection 3114(2) did not apply because the driver's transportation of passengers for hire did not constitute his primary function or purpose in operating his vehicle, but that "incidental[ly] to coming home, it was convenient to take on passengers."[5]Thomas, supra at 240 n. 2, 241-242, 369 N.W.2d 219.
We agree with this analysis and believe that it accurately encompasses the intent of the Legislature in enacting subsection 3114(2). Thus, we hold that a primary purpose/incidental nature test is to be applied to determine whether at the time of an accident a motor vehicle was operated in the business of transporting passengers pursuant to subsection 3114(2).
Applying that test to the instant case, we conclude that the day-care provider's driving of the children to school would not fall within the scope of subsection 3114(2) because the record indicates, and the parties agree, that (1) her driving of the children to school in her vehicle occurred incidentally to the vehicle's primary use as a personal vehicle, and (2) her transportation of the children to and from school constituted an incidental or small part of her day-care business.[6] Furthermore, a conclusion that the day-care provider's incidental driving of the children to *95 school did not constitute the operation of a vehicle in the business of transporting passengers under subsection 3114(2) is consistent with this Court's observations that the Legislature intended subsection 3114(2) to apply in "commercial" situations. State Farm, supra at 114, 283 N.W.2d 661.
IV. Conclusion
In sum, we hold that the applicability of subsection 3114(2) of the no-fault act depends on a primary purpose/incidental nature inquiry with respect to whether a motor vehicle is operated in the business of transporting passengers. Under the facts of the present case, subsection 3114(2) does not apply, and thus plaintiff is first in priority to pay the no-fault benefits in question. Accordingly, we reverse and remand to the district court for entry of judgment in favor of defendant.
Reversed and remanded for further action consistent with this opinion. We do not retain jurisdiction.
JOEL P. HOEKSTRA, MICHAEL R. SMOLENSKI and KAREN FORT HOOD, JJ.
NOTES
[1] The girls' father had a personal automobile insurance policy through plaintiff that covered the girls as members of the household. See M.C.L. § 500.3114(1).
[2] We note that "motor vehicle" is defined in the no-fault act, M.C.L. § 500.3101(2)(e).
[3] We acknowledge that this explanation is dicta because the case did not involve this Court's ruling with respect to subsection 3114(2), but we find the analysis persuasive.
[4] We note that in USAA Ins. Co. v. Houston Gen. Ins. Co., 220 Mich.App. 386, 559 N.W.2d 98 (1996), cited by plaintiff, this Court considered whether a shuttle bus service that had contracted to provide transportation services at Detroit Metropolitan Wayne County Airport fell within two of the exemptions to subsection 3114(2). USAA Ins Co., supra at 390-393, 559 N.W.2d 98. The Court did not explain the significance of the phrase "motor vehicle operated in the business of transporting passengers" because the shuttle bus company's insurer apparently did not dispute that the bus company operated vehicles in the business of transporting passengers. Id. at 388-389, 559 N.W.2d 98.
[5] In a more recent case, Lampman v. Workman, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2002 (Docket No. 225743), 2002 WL 485014 this Court considered the priority of the no-fault insurer of National Fleet Liquidators of Michigan, Inc. (NFL), which bought motor vehicles at auction for later resale to retailers. Because NFL "did not have a showroom location, NFL used `drivers' to move the vehicles to the sale location, and a van would then transport the drivers back home. Several of these drivers, who were injured or killed when the van in which they were riding was involved in an accident, brought suit." This Court reversed the trial court's determination that the injured drivers were passengers in a vehicle operated in the business of transporting passengers under subsection 3114(2). This Court examined the term "business" within subsection 3114(2) and found that it signified a for-profit endeavor. This Court reasoned that "NFL's primary business (i.e., that from which it derived profit) was the buying and selling of cars. NFL's transportation of the drivers was merely incidental to its overall business." Lampman, supra (emphasis supplied).
[6] Contrary to plaintiff's suggestion, we do not believe that the day-care provider's compliance with vehicle-related state requirements applicable to day-care operators changes the fact that her transportation of children comprised a small part of her day-care business. Furthermore, the mere fact that the day-care provider charged a fee for her transportation of the children does not itself mean that she operated a vehicle in the business of transporting passengers. Thomas, supra at 240-242, 369 N.W.2d 219. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579479/ | 12 So.3d 229 (2009)
LEE
v.
STATE.
No. 2D09-1283.
District Court of Appeal of Florida, Second District.
July 1, 2009.
Decision without published opinion Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579642/ | 671 N.W.2d 479 (2003)
L. David WILSON, Appellant,
v.
GOOD WILL PUBLISHERS and Cincinnati Companies, Appellees.
No. 00-2066.
Supreme Court of Iowa.
November 13, 2003.
William D. Scherle and Aaron T. Oliver of Hansen, McClintock & Riley, Des Moines, for appellant.
David L. Jenkins of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees.
LARSON, Justice.
David Wilson suffered a heart attack while on a road trip for his employer, Good Will Publishers, Inc. Believing his heart attack arose out of his employment, Wilson filed a claim against Good Will for workers' compensation benefits. The industrial commissioner and the district court denied benefits. The court of appeals reversed, concluding that Wilson had proved a sufficient nexus to his job to recover benefits. We vacate the decision of the court of appeals and affirm the judgment of the district court.
*480 I. Facts and Prior Proceedings.
David Wilson worked as a sales trainer for Good Will, traveling across the country from his home in Tabor, Iowa. Good Will publishes "Judeo-Christian material," sponsored by private advertisers and distributed primarily through hospitals and doctors' offices. Wilson left home on the afternoon of Sunday, April 16, 1995, to meet a trainee in Dexter, Missouri, at 8 a.m. the next day. He planned to travel partway, sleep for a few hours, and resume the trip. He drove as far as Columbia, Missouri, where he rented a motel room. He awoke between 1 and 2 a.m. with what he thought was indigestion, the result of having eaten a "nice Easter meal with his family" on the day he left Tabor. Apparently unable to sleep any longer, Wilson left the motel, stopping for antacids on the way to Dexter. Immediately after he checked into a motel in Dexter, he sought medical attention. At a local clinic, a nurse diagnosed a possible heart attack, and he was transported to a hospital in Poplar Bluff, Missouri. He was then flown to St. Louis, where he ultimately had open-heart surgery. Wilson had a history of "significant underlying coronary artery disease," largely due to his heavy cigarette smoking.
Following his surgery, Wilson filed this claim for workers' compensation benefits. Good Will resisted on the ground it was not an injury that arose out of and in the course of his employment. A deputy workers' compensation commissioner denied benefits on the ground the claimant failed to establish his work was the legal or medical cause of his heart attack, as required by our cases. This decision was affirmed by the commissioner. The district court affirmed the denial of benefits but substituted its own findings for those of the agency as to the question of legal causation: whether Wilson was "impelled to continue" working after experiencing the first symptoms of a heart attack. The district court nevertheless affirmed the commissioner on the ground the claimant did not show medical causation.
The court of appeals reversed on the basis that Wilson produced substantial evidence on both legal and medical causation and remanded to the commissioner to determine benefits.
II. Legal Principles.
Heart attack cases may be compensated under Iowa's workers' compensation statute under special rules adopted by this court. The parties agree that a claimant must prove both "legal" and "medical" causation. Riley v. Oscar Mayer Foods Corp., 532 N.W.2d 489, 492 (Iowa App. 1995) (citing Briar Cliff College v. Campolo, lo, 360 N.W.2d 91, 94-95 (Iowa 1984); Sondag v. Ferris Hardware, 220 N.W.2d 903, 905-06 (Iowa 1974)).
We review rulings by the commissioner under Iowa Code chapter 17A. See Iowa Code § 86.26 (2001); Cargill, Inc. v. Conley, 620 N.W.2d 496, 500 (Iowa 2000). Review by the district court, and by this court, is limited to correction of legal errors. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). The findings of the commissioner are treated like jury verdicts, and we construe them broadly to uphold the commissioner's decision. Id.
Although a claimant must establish both legal and medical causation, we limit our discussion to the legal-causation issue because the claimant's failure to establish that element determines the outcome. Legal causation may be shown when (1) heavy exertions ordinarily required by the job are superimposed on a defective heart, aggravating or accelerating the previous condition; (2) unusually strenuous employment *481 exertion is superimposed on a preexisting diseased condition; or (3) damage results from continued exertion required by the employment after the onset of the heart attack symptoms. Sondag, 220 N.W.2d at 905-06.
While Wilson relied in his initial claim on all three bases of legal causation under Sondag, his judicial review petition and this appeal are limited to the third: continued exertion required by his employment after the onset of symptoms. Specifically, he relies on this language from Sondag:
"The most obvious relevance of this [third] element (continuing exertion after symptoms) is in showing causal connection between the obligations of the employment and the final injury; for if the workman, for some reason, feels impelled to continue with his duties when, but for these duties, he could and would have gone somewhere to lie down at once, the causal contribution of the employment to the aggravation of the condition is clear."
220 N.W.2d at 906 (emphasis added) (quoting 1A Arthur Larson, Larson's Workmen's Compensation Law § 38.64(c), at 7-145).[1] In Riley, 532 N.W.2d at 493, we described this motivation as being "driven to work." Wilson contends he was impelled to continue traveling in order to reach his destination in Dexter to continue training Good Will's new representative. This objective, according to Wilson, was so important it was his primary focus, motivated by this language in Good Will's training manual:
ABOVE ALL ... REMEMBER!
During your new reps first four (4) weeks of his training, he and his family must be the most important thing in your life.
You have a responsibility to this newest member of the Good Will Family. He and his entire family will be looking to you to teach and lead them to a successful future.
DON'T LET THEM DOWN!
Wilson stated that he continued driving to Dexter to meet his trainee because
[y]ou have a schedule. The training manual tells you that these people are more important than your own family. You have a sense of obligation, a sense of urgency. It's almost like putting a guilt trip on you, and I took the situation at hand, I followed the company procedure.... Wilson agreed, however, that he did not feel that he would have lost his job or been disciplined if he stopped to seek medical attention.
The commissioner rejected Wilson's "impelled to continue" argument:
Contrary to claimant's contentions, there is no evidence in the record to support a finding that defendant employer required claimant to continue working after his initial symptoms began. The claimant was free to seek medical attention whenever he felt ill. Claimant was not under orders to continue working after his symptoms began.... ....
The evidence does not support a conclusion that the claimant was required to keep working. There is no doubt that the claimant is a conscientious worker who wanted to do the best by defendant employer. However, that in and of itself does not establish that the employer demanded *482 or expected claimant to continue working when experiencing a medical condition or medical discomfort or symptoms requiring medical attention.
Wilson's own statements support the commissioner's finding that he was free to seek medical attention whenever he felt ill. Wilson believed, at least until he reached Dexter, that he only had indigestion. When he arrived there and realized his condition might be more serious than that, he immediately suspended his work and sought medical help.
While the language of the commissioner's findings did not use the "impelled to continue" language of Sondag, the gist of the findings is clear: because Wilson was free to seek medical attention without employment restraints, he did not meet the Sondag test. We will construe the commissioner's findings broadly to support his conclusion, i.e., that Wilson failed to meet the third legal-causation test of Sondag. See Shank, 516 N.W.2d at 812 (court to apply broadly commissioner's findings to support its decision).
The district court substituted its fact-finding for that of the industrial commissioner on this issue, finding that Wilson was impelled to continue working. We conclude this was error; a district court is not free to substitute its findings of fact for that of the commissioner if the commissioner's findings are supported by substantial evidence. However, the district court denied benefits on the ground the claimant had failed to establish medical causation. We therefore affirm its decision, although on a different ground.
While the parties argue about whether the claimant had established medical causation, we need not address that issue because a claimant must establish both legal and medical causation. Riley, 532 N.W.2d at 492. This claim must fail for lack of proof of legal causation. We also decline to address the parties' argument on appeal about whether the "impelled to continue" standard of Sondag is judged on a subjective or objective basis because the court of appeals, not the parties, interjected that issue. It was therefore waived.
We vacate the decision of the court of appeals and affirm the judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.
All justices concur except WIGGINS, J., who takes no part.
NOTES
[1] Although Sondag and the parties to this appeal refer to the three bases for legal causation as "elements," suggesting they are jointly necessary conditions, they are actually individually sufficient bases for finding legal causation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918516/ | 101 B.R. 755 (1989)
In re TERRA VILLA APARTMENTS, LTD., d/b/a Cross Creek Apartments, a Florida Limited Partnership, Debtor.
No. 87-07187.
U.S. Bankruptcy Court, N.D. Florida. Tallahassee Division.
June 5, 1989.
*756 C. Edwin Rude, Jr., Tallahassee, Fla., for Metropolitan Life Ins. Co.
Timothy Warfel, Tallahassee, Fla., for First Federal Sav. and Loan Ass'n.
Laura Beth Farragasso, Tallahassee, Fla., for Grandland Realty Associates, Ltd.
N. Sanders Sauls, Tallahassee, Fla., for debtor.
MEMORANDUM OPINION ON MOTION FOR ORDER AUTHORIZING DISBURSEMENT OF INSURANCE PROCEEDS
LEWIS M. KILLIAN, Jr., Bankruptcy Judge.
THIS MATTER came on to be heard upon Metropolitan Life Insurance Company's ("Met Life") motion authorizing disbursement of approximately $42,000.00 in insurance proceeds resulting from a fire at the Cross Creek Apartments (Cross Creek) in Albany, Georgia. Met Life is a secured creditor of the Debtor and the owner and holder of a first trust deed on Cross Creek.
On May 2, 1989, First Federal Savings and Loan Association of Russell County ("First Federal") filed a response objecting to Met Life's claim and seeking disbursement of said proceeds to the unsecured creditors in accordance with their priority under the Bankruptcy Code.
*757 On May 24, 1989, Grandland Realty Associates, Ltd., a Georgia Limited Partnership (hereinafter "Grandland") filed a motion for a change of venue and response to Met Life's motion. Grandland, a secured creditor of the Debtor and current owner of Cross Creek, is seeking the insurance proceeds for use in the repair of the fire damaged apartments.
The underlying facts relevant to the resolution of which party is entitled to the insurance proceeds and proper venue may be summarized as follows:
On May 23, 1972, a trust deed between Houston Motor Lodges, Inc. (former owner of the apartment complex), and Griffith Mortgage Corporation was executed. The note covering the real estate and accompanying U.C.C. financing statement covering personal property were properly recorded. Subsequently, the note and financing statement were transferred to Met Life by assignment and were also properly recorded. The importance of this note is that it contains a provision requiring the borrower to insure the premises for the benefit of and payable to the lender.
On July 6, 1987, Terra Villa Apartments, Ltd., then owner of Cross Creek, filed a voluntary petition under Chapter 11 of the Bankruptcy Code. Shortly thereafter, a fire damaged the apartment complex. Consequently, the debtor-in-possession and Aetna Insurance Corporation agreed on a $42,000.00 settlement to cover the loss.
On December 31, 1988, the automatic stay was lifted permitting foreclosure on Cross Creek. Grandland consummated foreclosure proceedings on February 7, 1989, and is consequently the current owner of the apartment complex. Additionally, Grandland itself is in Chapter 11 bankruptcy in the Middle District of Georgia.
I
It is necessary to resolve the question of venue before the disbursement of insurance proceeds issue. Grandland contends the appropriate venue for Met Life's motion is in the Bankruptcy Court for the Middle District of Georgia. However, Grandland has not provided, nor does there appear to be a basis in law for changing the venue of a motion. Bankruptcy Rule 1014, in conformity with 28 U.S.C. § 1412, states, "on timely motion . . . the case may be transferred to any other district if the court determines that the transfer is in the interest of justice or for the convenience of the parties." (emphasis supplied). Grandland's motion for change of venue of Met Life's motion is neither a case nor proceeding under 28 U.S.C. § 1412 or Bankruptcy Rule 1014, but is merely a contested matter as provided in Bankruptcy Rule 9014. Therefore, the motion for change of venue is denied.
II
Met Life contends they have a contractual right or, in the alternative, an equitable lien on certain insurance proceeds arising from a fire which caused approximately $42,000.00 at Cross Creek. The court is not persuaded that Met Life is entitled to the proceeds under the "Special Endorsement 1" to the Debtor's insurance policy with Aetna. The endorsement specifically states, "the following [four mortgagees] will receive a 30 day notice on the event of cancellation [of the policy]." Neither the insurance policy nor the endorsement indicate that any of the four listed mortgagees are entitled to any part of the insurance proceeds. Therefore, this court determines that no contractual right to the proceeds existed since Met Life was not named as loss-payee in the declarations on the insurance contract nor was said contract ever assigned to Met Life.
Notwithstanding the general rule that a mortgagee does not have a claim to fire insurance proceeds unless named as a loss-payee or assignment, Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851, 858 (5th Cir.1979), Met Life's contention that an equitable lien arose does have merit. The law of equitable liens in Georgia includes the following exception:
[I]f a mortgagor is bound by covenant or otherwise to insure the mortgaged premises for the better security of the mortgagee, the latter will have an equitable *758 lien upon the money due on a policy taken out by the mortgagor to the extent of the mortgagee's interest in the property destroyed.
Id., (quoting Wheeler v. Factors' and Traders' Ins. Co., 101 U.S. 439, 442, 25 L.Ed. 1055, 1057 (1880)). See also 55 Am. Jur.2d, Mortgages, § 277 at 365 (1971 & Supp.1988).
The first trust deed that Met Life now holds specifically required the mortgagor to insure the premises to the benefit of and payable to the mortgagee. This provision clearly falls within Georgia's equitable lien provision. Based on the foregoing, this court determines that an equitable lien did arise in favor of Met Life. But the inquiry does not stop here.
The relevant inquiry now becomes whether Met Life's equitable lien is avoidable by the debtor-in-possession acting as a hypothetical bona fide purchaser pursuant to § 544(a)(3) of the Bankruptcy Code and whose rights are defined under Georgia Law. See In re Fulton Air Service, Inc., 777 F.2d 1521 (11th Cir.1985). Under Georgia law, "a bona fide purchaser for value without notice of an equity will not be interfered with by equity." Ga.Code Ann. § 23-1-20 (1989). However, there are two reasons why the debtor-in-possession cannot avoid Met Life's equitable lien.
First, the equitable lien did not arise until after the Chapter 11 petition was filed.
In order to give rise to an equitable lien there must be a debt, duty, or obligation owing by one person to another; a res to which that obligation fastens, which can be identified or is described with reasonable certainty; and an intent, express or implied, that the property serve as security for the payment of the debt or obligation.
51 Am.Jur.2d, Liens, § 24 at 162 (1970 & Supp.1988) (emphasis supplied). See also Wheeler, 101 U.S. at 442 (equitable lien attaches to the "money due on a policy"); In the Matter of Rutherford, 73 B.R. 665 (Bankr.W.D.Mo.1986) (mortgagee was entitled to an equitable lien on insurance proceeds which was superior to the interest of the Chapter 7 trustee acting as a hypothetical lien creditor where mortgage required the debtor to provide insurance for the benefit of the mortgagee but the debtor failed to provide such insurance). Because it is the insurance proceeds, not the insurance policy, which is the res to which Met Life's equitable lien attached, a bona fide purchaser could not possibly avoid the lien since the lien was not in existence at the time the Chapter 11 petition was filed.
Second, for the debtor-in-possession to rely on the powers of a bona fide purchaser to avoid an equitable lien, the debtor-in-possession must take without notice. Ga.Code Ann. § 23-1-20. The Code further provides, "notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led." § 23-1-17. In Henson v. Bridges, 218 Ga. 6, 9, 126 S.E.2d 226, 228 (1962), the Supreme Court of Georgia held:
[O]ne claiming title to lands [as would a hypothetical bona fide purchaser in bankruptcy] is chargeable with every matter which appears in his deed, and of any matters which appear on the face of any deed, decree, or other instrument forming an essential link in the chain of instruments through which he deraigns title, and of whatever matters he would have learned by any inquiry which the recitals of those instruments made it his duty to pursue.
The court further held that it was immaterial whether the purchaser has actually seen, read, or has knowledge of the contents of such instruments. Id. at 10, 126 S.E.2d at 228-29. In Hendrix v. W.R. Altman Lumber, 145 F.2d 501, 503 (5th Cir. 1944), the appeals court, applying Georgia law, held that the appellant was informed by the reservation in his deed of the existence of a contract for the removal of timber and was thus chargeable with notice of the terms of such contract.
Similarly, a bona fide purchaser in this case would have constructive notice of the mortgagor's duty to insure the premises for the benefit of and payable to the mortgagee since the trust deed was recorded *759 and the instrument is in the chain of title. In a case with similar facts and similar state law, the Eastern District Bankruptcy Court of North Carolina held that the obligation on the part of the debtors to provide insurance was a conspicuous part of the recorded instruments and any purchaser of the real property had notice and would take subject to the instrument and obligations contained therein. In re Moore, 54 B.R. 781, 784 (Bankr.E.D.N.C.1985). The court went on to hold that the mortgagee had priority over the debtor-in-possession in the Chapter 11 bankruptcy. Id. The only cases within the Eleventh Circuit holding for the trustee or debtor-in-possession and against the creditor, all have in common that no lien was recorded and, therefore, the trustee or debtor-in-possession did not take with notice. See Fulton, 777 F.2d at 1523 (Chapter 11 trustee in bankruptcy, as a bona fide purchaser, may avoid unrecorded state tax liens); In re Consolidated Southeastern Group, Inc., 75 B.R. 102, 104 (Bankr.N.D.Ga.1987) (Chapter 11 debtor-in-possession, acting as a bona fide purchaser, may avoid unrecorded city utility tax liens); In re Jenkins, 74 B.R. 440, 449 (Bankr.N.D.Ga.1987) (Chapter 11 debtor-in-possession as bona fide purchaser could avoid any unrecorded restrictive covenants).
Finally, First Federal's reliance on In re OPM Leasing Services, Inc., 23 B.R. 104 (Bankr.N.Y.1982) (equitable lien will not be upheld where all available means of perfecting the lien were not employed) is not persuasive. In OPM Leasing, the court held that no security interest was ever meant to be created and even if there was a security interest, no financing statement was ever recorded, thus third parties would not have notice of the secret lien. Id. at 116-17. This court finds the facts in this case more analogous to the facts in Rutherford, 73 B.R. at 668-69 (it is not necessary for separate perfection in insurance where a properly perfected mortgage clearly provides for the loss-payee status of the mortgagee) and in Moore, 54 B.R. at 784 (the recording of the deed properly perfected the equitable lien). Met Life, unlike the creditor in OPM Leasing, does have properly recorded instruments putting third parties on notice.
Based on the foregoing, this court determines that Met Life has an equitable lien which is perfected and not voidable by the debtor in possession. However, since the mortgagor's obligation to insure was intended to afford better security for the payment of the debt, this court declines to order the disbursement of the insurance proceeds since there is an insufficient factual basis for this court to determine whether the debt is sufficiently secured through other means. See 55 Am.Jur.2d, Mortgages, § 277 at 367 (1971 & Supp. 1988); See also In re Island Helicopter Corp., 63 B.R. 515, 522 (Bankr.E.D.N.Y. 1986) ("since the obligation to insure is intended to ameliorate the mortgagee's secured status, a court may decline to enforce the equitable lien where the debt is sufficiently secured through other means").
Since the Cross Creek Apartments have been sold to Grandland through foreclosure, this court is unable to establish whether or not Met Life's interest in the insurance proceeds is adequately secured through other means. Further, the proceeds may well constitute cash collateral which Grandland may seek to use for repair of the complex in its own reorganization. Therefore, it is for the Bankruptcy Court for the Middle District of Georgia to determine whether Met Life's valid equitable lien should be enforced against Cross Creek's current owner (Grandland). Accordingly, Met Life's motion for disbursement of the proceeds is hereby denied.
DONE AND ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918554/ | 101 B.R. 767 (1989)
In re Elmer Daniel SPERRY, Debtor.
Leigh MEININGER, as Trustee for Lake Abstract & Guaranty Co., Crossclaimant,
v.
Paul GRIGSBY, Cross-defendant.
Bankruptcy No. 84-672-BKC-6P7, Adv. No. 86-74.
United States Bankruptcy Court, M.D. Florida, Orlando Division.
June 15, 1989.
*768 John A. Baldwin, Fern Park, Fla., for Defendants Paul Grigsby and Elmer Daniel Sperry.
Stephen H. Judson, Leesburg, Fla., for defendant Lake Abstract.
Leigh Meininger, trustee, Orlando, Fla., for defendant Lake Abstract.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO CROSSCLAIM OF LEIGH MEININGER, TRUSTEE
GEORGE L. PROCTOR, Bankruptcy Judge.
This adversary proceeding is before the Court upon the crossclaim filed by Leigh Meininger, the bankruptcy trustee for defendant Lake Abstract & Guaranty Co. ("Lake Abstract"), seeking to void an unrecorded mortgage pursuant 11 U.S.C. § 544(a).
A trial of this adversary proceeding was held on March 19, 1987, September 3, 1987, October 13, 1988 and March 2, 1989, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. Lake Abstract's crossclaim against Grigsby concerns real property located in Lake County, Florida (the "Clermont Property"). The property is legally described as follows:
Lots 7 and 20, and the West 50 feet of Lots 1 to 6, inclusive, Block 73, in the City of Clermont, Florida, according to the Official Plat thereof, recorded in Plat Book 8, pages 17 to 23, inclusive, Public Records of Lake County, Florida, Less the right of way for State Road No. 50.
2. At all times material to this proceeding, the property was owned by Lake Abstract & Guaranty Co., a debtor in another Chapter 7 proceeding before this Court. Case No. 85-2002-BKC-6P7.
3. Cross-defendant Paul Grigsby ("Grigsby") asserts a mortgage lien against the Clermont Property in the amount of $55,358.83, plus interest, predicated upon an unrecorded mortgage executed by Lake Abstract around October 1, 1985.
4. The trustee for Lake Abstract, Leigh Meininger, filed the crossclaim against Grigsby pursuant to § 544(a) seeking to void this unrecorded interest in property of that estate.
CONCLUSIONS OF LAW
The crossclaim of Lake Abstract is predicated upon 11 U.S.C. § 544(a)(3), which provides:
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by
(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists.
Simply put, § 544(a)(3), permits a trustee to avoid any transfer of property of the debtor, or obligation incurred by the debtor, that would be voidable by a bona fide purchaser of the property. Actual knowledge of the unrecorded interest is irrelevant the trustee "shall" be able to avoid an encumbrance that would be voidable by *769 a bona fide purchaser "without regard to any knowledge of the trustee or of any creditor." In re Sandy Ridge Oil Co., Inc., 807 F.2d 1332 (7th Cir.1986).
In this case, Grigsby failed to properly record his mortgage interest in the Clermont Property. Therefore, a bona fide purchaser for value conducting a record search for this property would have no knowledge of Grigsby's interest and would take title to the property free and clear of this encumbrance. Under § 544(a)(3), the trustee assumes the position of a bona fide purchaser and may void a mortgage interest which was unrecorded as of the petition date. This is true irrespective of whether such a bona fide purchaser actually exists.
The Court concludes that the trustee may, on behalf of Lake Abstract's bankruptcy estate, use his "strongarm" powers under 11 U.S.C. § 544(a) to void Grigsby's interest in the Clermont property.
The Court will enter a separate Final Judgment in accordance with these findings.
FINAL JUDGMENT ON CROSSCLAIM OF LEIGH MEININGER, TRUSTEE
Upon Findings of Fact and Conclusions of Law separately entered, it is ORDERED as follows:
1. Final Judgment is entered in favor of crossclaimant Leigh Meininger, as Trustee for Lake Abstract & Guaranty Co., and against the cross-defendant, Paul Grigsby.
2. Cross-defendant Paul Grigsby's unrecorded interest in the following described property is void pursuant to 11 U.S.C. § 544(a):
Lots 7 and 20, and the West 50 feet of Lots 1 to 6, inclusive, Block 73, in the City of Clermont, Florida, according to the Official Plat thereof, recorded in Plat Book 8, pages 17 to 23, inclusive, Public records of Lake County, Florida, Less the right of way for State Road No. 50.
3. Leigh Meininger, as trustee for Lake Abstract & Guaranty Co., may dispose of this property free and clear of any claim of lien asserted by Cross-defendant Paul Grigsby.
DONE AND ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918556/ | 101 B.R. 274 (1988)
In re Deanna Joan STARR, SSN XXX-XX-XXXX, Debtor.
Bankruptcy No. 88-00021.
United States Bankruptcy Court, E.D. Oklahoma.
April 28, 1988.
William E. Rutledge, Tulsa, Okl., Trustee.
Robert Inglish, Okmulgee, Okl., for debtor.
ORDER
JAMES E. RYAN, Bankruptcy Judge.
On April 15, 1988, this Court heard the Motion for Order Denying Debtor's Claim of Exemption as filed by William E. Rutledge, the duly appointed Chapter 7 Trustee. The Debtor had timely filed a Response to the Trustee's Motion. The Court entered a Minute extending the time to April 22, 1988 for the parties to file Stipulations and Briefs. This Court is in receipt of such Stipulations and Briefs, and accordingly enters the following.
FINDINGS OF FACT
1. This matter is a "core" proceeding. 28 U.S.C. § 157(b). This Order is given in compliance with B.R. 9021.
2. The Debtor was formerly married to Charles Edward McGee. On March 27, 1986, a Decree of Divorce was entered in the District Court of Garfield County, State of Oklahoma. In the Petition filed relating to the divorce, the Plaintiff (Deanna McGee) alleged that Charles McGee, the Defendant, had been guilty of adultery and extreme mental cruelty, and that a state of complete and irreconcilable incompatibility had arisen between the parties. However, the Court in its Decree of Divorce did not make any findings concerning these allegations and the divorce was granted upon a showing of a state of complete and irreconcilable incompatibility only.
3. Prior to the filing of the Divorce Petition, a cause of action had been commenced in the District Court in and for Tulsa County, State of Oklahoma, by *275 Charles Edward McGee and Deanna Joan McGee, husband and wife, Plaintiffs, versus N.V.T. Management, Inc., d/b/a Tulsa Excelsior Hotel. An Amended Petition was filed in the cause of action on January 16, 1986. The Plaintiffs were suing to recover for injuries caused to Mr. McGee resulting from his slipping and falling while taking a shower in a combination shower/tub. The parties requested the following damages for Mr. McGee:
"(a) The loss of earnings in the past and which Plaintiff will continue to suffer in the future in the proximate amount of $250,000.00.
(b) Pain and suffering which Plaintiff has suffered in the past and will continue to suffer in the future for the duration of his life which amount will be approximately $650,000.00.
(c) Medical expenses and expenses for relief of pain and suffering and for relief of psychological and physical trauma incurred by Plaintiff and which Plaintiff will incur in the future in the amount of $100,000.00."
Additionally, the parties incorporated a cause of action for the benefit of Mrs. McGee claiming a loss of consortium with her husband in the amount of $50,000.00. In return for a $20,000.00 settlement, Mrs. McGee's cause of action was dismissed without prejudice. The money was deposited in the lawyer's Trust Account. The account was garnished by a joint creditor of Charles and Deanna McGee. The portion of the funds beyond the garnished amount paid over to Mrs. Starr and which is currently in dispute totals $16,776.33.
4. On January 13, 1988, the Debtor filed her voluntary Chapter 7 Bankruptcy Petition. Pursuant to filing, the Debtor claimed the following property as exempt:
"Personal injury settlement (consortium) held in lawyer trust account."
The Debtor stated the value of this exemption to be $20,000.00 and the Trustee timely made objection to the allowance of exemption.
CONCLUSIONS OF LAW
A. The Debtor claims an exemption for the $20,000 settlement of her loss of consortium action. The claim is made pursuant to Okla.Stat. tit. 31, § 1(A)(21) (1978) as follows:
"Such person's interest in a claim for personal bodily injury, death, or workers' compensation claim, for a net amount not in excess of fifty thousand dollars ($50,000.00), but not including any claim for exemplary or punitive damages."
B. The elements of the Debtor's consortium action were never proven because of the settlement by the parties. However, settlements are encouraged by Courts and are conclusive, similar to a final judgment, in the absence of fraud or mistake. Corbett v. Combined Communications Corp. of Oklahoma, Inc., 654 P.2d 616 (Okla. 1982). A settlement will bar any additional recovery in relation to the compromised claim. State ex rel. Derryberry v. Kerr-McGee Corp., 516 P.2d 813 (Okla.1973). The settlement of the loss of consortium action has the same effect as if the matter had been determined by an adjudication for exemption purposes.
C. A consortium loss typically includes a spouse's loss of services, society and companionship due to the injury of the other spouse. Aderhold v. Stewart, 172 Okl. 77, 46 P.2d 346 (1935). The Oklahoma Statutes were amended in 1973 to specifically permit a married woman the right to bring an action for loss of consortium. Okla.Stat. tit. 32, § 15 (1978). Debtor's consortium action, though derivative, is founded on "a personal bodily injury" action.
D. The Oklahoma Supreme Court recently addressed Okla.Stat. tit. 31, § 1(A)(21) (1978) in the case of Peoples State Bank & Trust Company v. Ruth Dell Brooks, 750 P.2d 479 (1988) wherein they found, while dealing with life insurance proceeds, that the Statute included actions brought by dependents.
E. A literal reading of Okla.Stat. tit. 31, § 1(A)(21) (1978) provides, and we conclude, that Debtor does possess an "interest in a claim for (the) personal bodily injury," of her ex-husband. This conclusion is in spite *276 of the consortium claim being a separate cause of action with different elements of proof required.
IT IS THEREFORE THE ORDER OF THIS COURT that Trustee's Motion for Order Denying Debtor's Claim of Exemption is denied, thus granting Debtor an exemption as to the remaining proceeds received from her claim of loss of consortium. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579573/ | 12 So. 3d 220 (2009)
LOZANO
v.
McNEIL.
No. SC09-752.
Supreme Court of Florida.
June 3, 2009.
Decision without published opinion Habeas Corpus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579592/ | 671 N.W.2d 144 (2003)
258 Mich. App. 495
PARKWOOD LIMITED DIVIDEND HOUSING ASSOCIATION, Plaintiff-Appellant,
v.
STATE HOUSING DEVELOPMENT AUTHORITY, Defendant-Appellee (Two Cases).
Docket Nos. 218433, 229448.
Court of Appeals of Michigan.
Submitted August 6, 2003, at Lansing.
Decided September 16, 2003, at 9:25 a.m.
Released for Publication November 10, 2003.
*145 Kemp, Klein, Umphrey, Edelman & May, P.C. (by Richard Bisio), Detroit, for the plaintiff.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Terrence P. Grady and Nancy A. Piggush, Assistants Attorney General, and Miller, Canfield, Paddock & Stone, P.L.C. (by Carl H. von Ende, Frederick A. Acomb, and Robert E. Gilbert), Special Assistants Attorney General, for the defendant.
Before: COOPER, P.J., and SAWYER and OWENS, JJ.
ON REMAND
OWENS, J.
Our Supreme Court has remanded this case to our Court with instructions to consider the substantive merits of plaintiff's appeal. 468 Mich. 763, 664 N.W.2d 185 (2003). Plaintiff had sought a declaratory judgment regarding whether its potential prepayment of a mortgage issued by defendant would entitle it to accounts funded in accordance with the loans. Defendant moved for summary disposition, contending that prepaying the mortgage would dissolve plaintiff and that the accounts in question would be "surplus," M.C.L. § 125.1493(b), thereby entitling defendant to own those accounts. The Court of Claims agreed and granted defendant's motion for summary disposition. Plaintiff challenges that ruling, as well as the Court of Claims ruling denying plaintiff's motion for summary disposition. We affirm.
I. Factual Overview and Procedural History
As noted in our earlier opinion, plaintiff is a limited partnership owning and operating a multiunit apartment complex. The apartment complex was financed by a mortgage between the parties in 1973. To qualify for the mortgage, plaintiff was organized as a limited dividend housing association pursuant to M.C.L. § 125.1491. The parties also executed a "regulatory agreement" relating to the operation of the mortgaged property. The regulatory agreement required plaintiff to deposit funds into several reserve accounts.
In 1998, plaintiff informed defendant that it intended to prepay its mortgage, and asked whether the amounts in the reserve accounts would be credited toward the amount due under the mortgage or paid to plaintiff after satisfaction of the mortgage. Defendant replied that it would, instead, retain the money in three of the reserve accounts as "surplus" pursuant to M.C.L. § 125.1493(b) and the agreements between the parties. M.C.L. § 125.1493(b) provides that, upon dissolution of a limited dividend housing association, "any surplus in excess of those amounts shall be paid to the authority or to any other regulating government body as the authority directs."
In light of defendant's response, plaintiff did not prepay the mortgage. Instead, plaintiff sought a judicial declaration regarding which party would be entitled to the accounts if plaintiff opted to prepay the mortgage. The parties filed cross-motions for summary disposition.
In granting defendant's motion for summary disposition, the Court of Claims opined that allowing plaintiff to keep the money in the accounts would directly contravene the legislative intent of placing a cap on the association members' investment return. The court ruled that prepayment of the mortgage would be tantamount to dissolving the limited dividend housing association because the unique statutory relationship between plaintiff and defendant would no longer exist. The court further ruled that the money in the accounts was, in fact, surplus.
*146 On appeal, plaintiff contends that it did not dissolve, as contemplated by M.C.L. § 125.1493(b). Plaintiff further contends that the money in the reserve accounts was not a "surplus."
II. Standard of Review
We review de novo a trial court's ruling on a motion for summary disposition. Beaudrie v. Henderson, 465 Mich. 124, 129, 631 N.W.2d 308 (2001). Here, the facts are largely undisputed; instead, we are presented with legal questions involving statutory interpretation. We review de novo issues of statutory construction. Ypsilanti Housing Comm. v. O'Day, 240 Mich.App. 621, 624, 618 N.W.2d 18 (2000). In regard to statutory construction, we have opined:
The principal goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. In determining intent, this Court first looks at the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted, unless a literal construction of the statute would produce unreasonable and unjust results inconsistent with the purpose of the statute. In construing statutes, the court should avoid any construction which would render a statute, or any part of it, surplusage or nugatory. [Id. at 624-625, 618 N.W.2d 18 (citations omitted).]
Further, we review de novo conclusions of law. Walters v. Snyder, 239 Mich.App. 453, 456, 608 N.W.2d 97 (2000). Finally, we also review de novo the interpretation of contract provisions. Rednour v. Hastings Mut. Ins. Co., 468 Mich. 241, 243, 661 N.W.2d 562 (2003).
III. Analysis
Defendant, the Michigan State Housing Development Authority (MSHDA), was created by our Legislature in 1966. M.C.L. § 125.1401 et seq. Defendant lends money to various entities, such as nonprofit housing corporations and limited dividend housing associations, to construct or rehabilitate multifamily housing projects, M.C.L. § 125.1444. See OAG, 1989-1990, No. 6590, p. 157 (June 27, 1989). The Attorney General's opinion further observed:
Profit motivated developers usually choose to form a limited dividend housing association (association) to function as the borrowing entity. The association agrees to rent a certain portion of the total units in the housing project to persons of low and moderate income. The association investors agree to limit their return on their investment to a certain percentage as determined by the Authority at the time the loan is made. In return, the association receives benefits such as a below market interest rate on the loan, federal or state rent subsidies, or interest rate subsidies and/or various other tax benefits. [Id. at 157-158.]
A limited dividend housing association "includes general or limited partnerships, limited liability companies, joint ventures, or trusts, as any such entities shall be approved by resolution of the authority." M.C.L. § 125.1491.
Here, plaintiff is a limited partnership that obtained its loan from defendant after being approved by defendant as a limited dividend housing association.[1] Plaintiff's *147 partnership agreement was, therefore, required to provide that each member would "at no time ... receive in excess of the face value of the investment attributable to his or her respective interest plus cumulative dividend payments at a rate which the authority determines to be reasonable and proper, computed from the initial date on which money was paid ... in consideration for the interest...." M.C.L. § 125.1493(b). The regulatory agreement between the parties limited plaintiff's members to receiving annual distributions of no more than 6% of the member's initial investment. In addition, plaintiff's partnership agreement was required to provide that "upon dissolution of the limited dividend housing association, any surplus in excess of those amounts shall be paid to the authority or to any other regulating body as the authority directs." M.C.L. § 125.1493(b). As noted above, we must determine whether the trial court erred in ruling that plaintiff's prepayment of its mortgage would be tantamount to a dissolution of the limited dividend housing association.
Michigan appellate courts have not yet addressed whether dissolution occurs upon satisfaction of the mortgage. Initially, we note that the term "dissolution" could fairly refer to either dissolution of plaintiff as a limited dividend housing association or dissolution of plaintiff as a limited partnership. Because the term "dissolution" is ambiguous, judicial construction is required. Ypsilanti, supra at 624-625, 618 N.W.2d 18.
We note that, like M.C.L. § 125.1493(b), a Wisconsin statutory scheme provided that "upon dissolution of the limited-profit entity any surplus in excess of the distributions allowed by this section shall be paid to the authority [Wisconsin Housing and Economic Development Authority]." Wisconsin Housing & Econ. Dev. Auth. v. Bay Shore Apartments, 200 Wis. 2d 129, 546 N.W.2d 480, 482 (Ct.App., 1996). In Bay Shore, two limited dividend entities, both of which were limited partnerships, questioned whether satisfaction of the mortgage constituted a "dissolution." Id. at 482, 484. The entities contended that dissolution required something more than merely paying off the mortgage, such as the entities dissolving as partnerships while indebted to the Wisconsin Housing and Economic Development Authority (WHEDA). Id. at 484. The WHEDA, in turn, contended that dissolution referred to the dissolution of the entities as limited-profit entities by satisfying the respective mortgages, and not dissolution of the entities as limited partnerships. Id. at 484.
The Bay Shore court noted that a partnership "can be dissolved wholly on the happening of a fortuitous event," such as a partner's incapacity. Bay Shore, supra at 486. The court considered it "absurd" that the phrase "dissolution" would mean dissolution of the type of organization the limited-profit entity chose (rather than dissolution of the entity status as a limited-profit entity). Id. at 485-486. The court further noted that the term "limited-profit entity" only had meaning with reference to the WHEDA loan; therefore, the court concluded that the Wisconsin legislature intended that a "dissolution" occurred when a limited-profit entity satisfied the WHEDA loan. Id. at 486.
Although the Bay Shore decision is not binding, we find it instructive. Both the WHEDA and the MSHDA were created to provide affordable housing for low- and moderate-income families. See M.C.L. § 125.1401; M.C.L. § 125.1493(b); Bay Shore, supra at 487. The statutory *148 schemes that created the WHEDA and the MSHDA allow certain entities to receive a low interest mortgage loan and various tax incentives in exchange for accepting a limited annual return on the entity's members' initial investments. M.C.L. § 125.1493(b); Bay Shore, supra at 487-488. The respective statutory schemes also provide for the WHEDA and the MSHDA to retain any "surplus" upon the dissolution of these entities. M.C.L. § 125.1493(b); Bay Shore, supra at 487-488.
Here, there is no question that plaintiff, as a limited partnership, could continue to exist after satisfying the mortgage. Conversely, the limited partnership could cease to exist before satisfying the mortgage. For example, if plaintiff were to be restructured (presumably with defendant's permission) into a general partnership or another approved entity, defendant would be authorized by M.C.L. § 125.1493(b) to retain any surplussimply because the limited partnership was dissolved as part of the restructuring. Alternatively, as the Bay Shore court noted, plaintiff could dissolve as a limited partnership on the basis of a fortuitous event. Like the Bay Shore court, we find such a result to be absurd.
The better interpretation of the statutory language is to interpret "dissolution" in its statutory context. Indeed, while a limited partnership can exist in many contexts, a limited-divided housing association exists only in the context of receiving a loan from defendant. In fact, the regulatory agreement indicates that defendant's restrictions on plaintiff only apply as (i) preconditions to the loan being made and (ii) continuing obligations during the loan repayment period.[2] Thus, once the loan is repaid, plaintiff's obligation to restrict its members' annual dividends would be lifted. At that point, although plaintiff would still be a limited partnership, it would certainly not be an entity receiving limited investment dividends. Accordingly, plaintiff would no longer be a limited dividend entity, such as a limited dividend housing association.
Because the parties' relationship is so intertwined with the status of loan, we conclude that the term "dissolution" refers to this relationship, and not to plaintiff's status as an entity outside the loan. Thus, we resolve the aforementioned statutory ambiguity by concluding that a limited dividend housing association dissolves when it satisfies its mortgage obligation to defendant. Therefore, we reject plaintiff's contention of error.
Plaintiff also contends that, even if the Court of Claims did not err in its construction of the word "dissolution," it nevertheless erred in granting defendant's motion for summary disposition because the accounts in question are not "surplus," as used in M.C.L. § 125.1493(b). The Court of Claims did not directly address this issue.
We note that M.C.L. § 125.1493(b) mandates that members of a limited divided partnership association agree to receive only a limited return on investment. In fact, the statute states that "at no time" shall a member receive anything beyond the member's initial investment and the limited dividend. By stating in the next phrase that defendant would receive any surplus, the statutory language certainly *149 suggests that the members of a limited dividend partnership would never receive anything beyond their initial investments and the allowable annual dividends. If so, read in its statutory context, everything else, regardless of when received, would be "surplus."
It should be noted that, unlike the term "dissolution," our Legislature eventually defined the term "surplus" as follows:
As used in this chapter, the term "surplus" shall not be deemed to include any increase in assets of any limited dividend housing association organized in accordance with the provisions of this chapter, by reason of reduction of mortgage, by amortization or similar payments or realized from the sale or disposition of any assets of a limited dividend housing association to the extent such surplus can be attributed to any increase in market value of any real property or tangible personal property accruing during the period the assets were owned and held by the limited dividend housing association. [M.C.L. § 125.1494.]
Thus, surplus does not include an increase in assets due to making mortgage payments, appreciation, and selling assets. By adding this statutory language, our Legislature allowed the members of a limited dividend housing association to receive, in addition to their annual dividend, the long-term benefits of owning the property.
Our Legislature's definition of surplus did not, however, exclude any of the accounts at issue in this appeal. The wellestablished rule of the statutory construction, expressio unius est exclusio alterius, recognizes that the expression of one thing suggests the exclusion of all others. See Pittsfield Charter Twp. v. Washtenaw Co., 468 Mich. 702, 712, 664 N.W.2d 193 (2003). Accordingly, we are not persuaded that the accounts at issue in the instant matter fall outside the statutory definition of "surplus," M.C.L. § 125.1494. We note that our ruling is consistent with the Attorney General's opinion referenced above. See OAG, 1989-1990, No. 6590, p. 157-162 (June 27, 1989) (opining that the MSHDA owns the residual receipts remaining after the dissolution of a limited dividend housing association and the payment of certain project expenses); see also Bay Shore, supra at 488 (allowing the WHEDA to retain the limited dividend entities' replacement reserves as part of the surplus). Consequently, we reject plaintiff's contention of error.[3]
In summary, we conclude that the Court of Claims did not err in granting defendant's motion for summary disposition because (i) a limited dividend housing association dissolves upon satisfaction of an MSHDA mortgage and (ii) the MSHDA was statutorily authorized to retain the accounts at issue as "surplus," M.C.L. § 125.1493(b); M.C.L. § 125.1494.
Affirmed.
NOTES
[1] Plaintiff's limited dividend housing association agreement recognized that it took the form of a limited partnership. The mortgage, mortgage note, and regulatory agreement signed by the parties each referred to plaintiff as "Parkwood Limited Division Housing Association, a Michigan limited partnership."
[2] Whether defendant does, in fact, retain any control over plaintiff after the mortgage is satisfied is beyond the scope of this appeal.
[3] In light of our ruling, we decline to consider plaintiff's issue challenging whether the Court of Claims should have made rulings beyond the questions presented to it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579648/ | 12 So.3d 236 (2009)
CECIL
v.
STATE.
No. 5D08-3018.
District Court of Appeal of Florida, Fifth District.
June 23, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580731/ | 12 S.W.3d 813 (2000)
Mark Edward REASOR,
v.
The STATE of Texas.
No. 681-99.
Court of Criminal Appeals of Texas.
March 1, 2000.
*814 Nancy B. Barohn, Dallas, for appellant.
Kevin Patrick Yeary, Asst. DA, San Antonio, Matthew Paul, State's Atty., Austin, for the State.
OPINION
HOLLAND, J., delivered the unanimous opinion of the Court.
Appellant was arrested for possession of a controlled substance on January 26, 1996. After the trial court denied appellant's motion to suppress evidence, he pleaded guilty to the charge against him. Appellant was sentenced to ten years confinement and a $10,000 fine. This Court granted the State's petition for discretionary review to determine: 1) whether the court of appeals erred in holding that the officer's protective sweep of appellant's residence was illegal; and 2) whether the court of appeals erred by holding that appellant's consent to search his residence was fatally tainted. We will reverse the judgment of the court of appeals.
Facts
Officer Bellino received information from an informant that appellant would be in possession of cocaine and would be distributing the cocaine on January 26, 1996. Bellino, joined by three other deputies, began surveillance at appellant's house at 8:30 PM that evening. Around 9:40 PM, appellant and a companion left appellant's house, and the officers followed them. Appellant made three brief stops at three different apartment complexes and returned to his house. Bellino testified in *815 the motion to suppress evidence that this behavior was "common for individuals who are delivering narcotics."
When appellant got back to his house, the police officers blocked his car in the driveway and identified themselves as police officers with their weapons drawn.[1] The officers checked appellant and his companion for weapons. When Bellino approached appellant's car, he noticed a brown pouch containing a white, powdered substance laying open on the dash. The officers secured this evidence and advised appellant of his Miranda warnings.[2] Appellant indicated that he understood his rights and was willing to talk to the officers. Appellant's companion was permitted to leave after the police officers were assured that the companion was not involved in any illegal activity.
At this point, three officers entered appellant's house to conduct a "protective sweep" of the residence. When the officers finished, they brought appellant back into the house to interrogate him. There, while handcuffed, appellant signed the Miranda warning form and the consent to search form. Appellant identified the substance found in his car as cocaine, and he pointed out other controlled substances in his bedroom and living room. The police also found additional drug paraphernalia, including a triple-beam scale and a ledger containing customer's names.
The trial court denied the motion to suppress, and appellant subsequently pleaded guilty to the possession of a controlled substance. On appeal, appellant claimed that the trial court violated his federal and Texas constitutional rights because the consent to search his house was not freely and voluntarily given. Appellant also asserted that the "protective sweep" was illegal, and thus, it tainted his consent.
The court of appeals agreed with appellant. It concluded that prosecutors "made no showing that the officers had `articulable facts' which led them to believe that there might be someone else in the residence." Reasor v. State, 988 S.W.2d 877, 882 (Tex.App.-San Antonio, 1999). Additionally, the court of appeals concluded that the consent to search appellant's house was not voluntary under the totality of the circumstances. See id. at 881. As support for that conclusion, the court cited the facts that appellant was arrested at gunpoint, that he was handcuffed at the time he gave consent, and that police had already searched his vehicle and "swept" his house. The State filed a petition for discretionary review alleging that the court of appeals erred by holding the protective sweep was illegal and by holding the appellant's consent was fatally tainted. We granted review of the State's petition.
Analysis
In its first ground for review, the State asserts that the court of appeals erred in holding the "protective sweep" engaged in by the officers was illegal. Specifically, the State contends that the court of appeals failed to give proper deference to the trial court's findings and conclusions. As support for its argument, the State cites Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990), and United States v. Oguns, 921 F.2d 442 (2d Cir. 1990).
A "protective sweep" is a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Buie, 494 U.S. at 328, 110 S. Ct. 1093. In Maryland v. Buie, the United States Supreme Court considered whether the Fourth Amendment would permit officers to conduct a protective sweep incident to an arrest. Id. at 329, 110 S. Ct. 1093. The *816 defendant in Buie committed an armed robbery with an accomplice, and the police placed the defendant's house under surveillance. When the officers entered defendant's house with a warrant to arrest him, they located the defendant in the basement. The officers continued to search the basement "`in case there was someone else' down there." While in the basement, an officer found evidence linking defendant to the offense. See id. at 329, 110 S. Ct. 1093. The trial court denied the defendant's motion to suppress because the officers did not know if anyone was in the basement, and the defendant was charged with a serious offense. The officers had no other way to know if the defendant had accomplices hiding in the basement.
The United States Supreme Court began its analysis with the basic premise that "the Fourth Amendment bars only unreasonable searches and seizures." Id. at 331, 110 S. Ct. 1093. To determine whether a search is reasonable, the individual's Fourth Amendment privacy interest is balanced with the promotion of legitimate governmental interests. Under this balancing test, a search of a house is "generally not reasonable without a warrant issued on probable cause," but may nevertheless be permitted when a strong public interest exists for the search. Id.
The Buie Court concluded that the defendant had a legitimate privacy interest in the areas of his house searched after he was located. It also found, however, that the police officers had a strong interest in "taking steps to assure themselves that the house in which a suspect is being, or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." Id. at 333, 110 S. Ct. 1093.[3] The Supreme Court determined that a warrant was not required when officers were, as a precautionary matter, looking in areas from which an attack could be immediately launched. See id. at 334, 110 S. Ct. 1093 (emphasis added).
Concluding that a protective sweep was reasonable under the Fourth Amendment, the Supreme Court set out the parameters under which a particular sweep was legal.
The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.
Id. at 337, 110 S. Ct. 1093. The sweep must not be a "full search of the premises." Id. at 335, 110 S. Ct. 1093. Rather, it may only extend "to a cursory inspection of those spaces where a person may be found" and may only last long enough to "dispel the reasonable suspicion of danger." Id. Furthermore, the protective sweep is not an automatic right police possess when making an in-home arrest. It is permitted only when "justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Id. at 336, 110 S. Ct. 1093.
This Court has never addressed the legal parameters of a protective sweep.[4] Therefore, we utilize the test articulated *817 in Buie. When conducting an in-home arrest, a police officer may sweep the house only if he possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that police officer or to other people in the area. As the Supreme Court also concluded, this sweep must stay within the appropriate scope and may last long enough to "dispel the reasonable suspicion of danger."
Applying this standard to the instant case, this Court concludes that the protective sweep in appellant's home was illegal. In the hearing on the motion to suppress, Officer Bellino did not express his belief that any third persons were inside the appellant's home. Nor did Bellino once articulate his belief that a third person inside the home was attempting to jeopardize either his or the public's safety. In fact, Bellino specifically stated that he considered the appellant's driveway a safe place for both him, his fellow officers and the appellant. Since Bellino failed to express a single articulable fact necessitating a protective sweep, we conclude this sweep was illegal.[5] The State's first ground for review is overruled.
In its second ground for review, the State contends that the court of appeals erred by holding that appellant's consent to search his apartment was fatally tainted. In the State's opinion, the evidence presented showed by clear and convincing evidence that appellant voluntarily consented to the search of his home. The State also asserts that the court of appeals failed to defer to the trial court's findings of fact and conclusion that the consent was voluntary.
Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued upon probable cause is "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). One such established exception is a search conducted with the consent of the suspect. See generally Davis v. United States, 328 U.S. 582, 593, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946). For consent to be a valid exception, however, that consent must be voluntary. See Schneckloth, 412 U.S. at 223, 93 S. Ct. 2041.
In Schneckloth v. Bustamonte, the United States Supreme Court considered the definition of "voluntary consent" in the context of a search and seizure. See id. at 219, 93 S. Ct. 2041. "When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Id. at 248, 93 S. Ct. 2041. The Court noted that "voluntariness" goes beyond the literal meaning of "a knowing choice." Unless a person is unconscious or incapacitated, all statements made could be considered "voluntary in the sense of representing a choice of alternatives." Id. at 223-24, 93 S. Ct. 2041 (quoting Culombe v. Connecticut, 367 U.S. 568, 604-05, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961)). Under this view, even physically-forced consent would be voluntary because, in theory, the suspect had a choiceeither consent to the search or be beaten. See id. On the other hand, we do not ask whether the consent would have been given "but-for" the police actions or inquiries. Under this view, "virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind." Id. at 224, 93 S. Ct. 2041 (quoting Culombe, 367 U.S. at 604-05, 81 S. Ct. 1860). Therefore, the premise of voluntariness does not mean that police *818 are required to never question an accused in custody, but they must have limits to the measures taken during their interrogations.
"In determining whether a defendant's will was overborne in a particular case," the Schneckloth Court developed the standard by which consent is tested for voluntariness. Trial courts "must [assess] the totality of all the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation." Id. at 226, 93 S. Ct. 2041. By looking at the circumstances leading up to the search, the reaction of the accused to pressure, and any other factor deemed relevant, a trial court can determine whether the statement of consent was given voluntarily. Some relevant factors the Supreme Court has taken into consideration in past cases are: the youth of the accused, the education of the accused, the intelligence of the accused, the constitutional advice given to the accused, the length of the detention, the repetitiveness of the questioning, and the use of physical punishment. See id.
The Texas Constitution protects the people against all unreasonable seizures and searches. See Tex. Const. Art. I, § 9. A search made after voluntary consent is not unreasonable. See Kolb v. State, 532 S.W.2d 87 (Tex.Crim.App.1976). In determining whether a defendant's consent was voluntary, the State is required to prove the voluntariness of consent by clear and convincing evidence. See State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim. App.1997). This Court has held that the trial court must look at the totality of the circumstances surrounding the statement of consent in order to determine whether that consent was given voluntarily. See Lackey v. State, 638 S.W.2d 439, 447 (Tex. Crim.App.1982).
In the instant case, this Court will consider whether the State proved that appellant's consent to search his house was voluntary by clear and convincing evidence by looking at a variety of factors. First, we take into account, as did the court of appeals, the fact that appellant was handcuffed at the point he gave the officers consent to search his house. This factor weighs heavily against the State's assertion that appellant's consent to search his home was voluntary. Additionally, we consider that appellant was arrested at gunpoint. At the time appellant gave his consent, the guns were no longer drawn, however. Further tainting the statement of consent was the fact the police had already entered appellant's home illegally while performing the protective sweep and the fact that the officers obtained the consent to search the home after they had taken the appellant inside his home.
Several factors support the State's contention that it did prove by clear and convincing evidence appellant voluntarily consented to the search of his home. First, the protective sweep of the house did not yield any incriminating evidence. At the point appellant consented to the search of his home, the police had not yet discovered any evidence against him except for the substance seen in appellant's car in plain view. Any taint from the illegal entry was sufficiently attenuated when the police obtained appellant's consent to search his home. Second, the police had questioned appellant's companion and had let that companion leave. This fact demonstrates the reasonableness of the arresting officers. Third, appellant was given his Miranda warnings twice once when he was arrested and once right before he pointed out additional evidence in his home. He had also signed both a Miranda warning form and a consent to search form. Furthermore, appellant was repeatedly warned that he had the right to remain silent throughout questioning, as shown by the following testimony from the hearing on the motion to suppress.
[STATE]: What did you do at that time [after the appellant's arrest] with the [appellant]?
[OFFICER BELLINO]: At that time I secured the evidence [located in the appellant's *819 car] and then I advised him of his Miranda warning.
* * *
[STATE]: Now you said you read him his rights. Did he appear to understand his rights?
[OFFICER BELLINO]: Yes.
[STATE]: Did he at any time waive his rights?
[OFFICER BELLINO]: He said that he understood them and that he would be willing to talk to us.
* * *
[STATE]: Okay. Can you tell the Court what happened innow this is the living area that you first are in; is that correct?
[OFFICER BELLINO]: That's correct.
[STATE]: And what takes place there in the living area?
[OFFICER BELLINO]: The first thing I did waswe have printed forms for Defendants to sign and witnesses to sign that haveit's a Miranda warning. So I reread the [appellant] the Miranda warning off the form. I asked him to sign it and then the companion that was with him I asked him to sign it also. So both of them signed it. And then I went through another printed form that we have. It's a consent to search form and you have to fill it in, you know, who it is that is consenting to and the location of where you are at and you describe the premises, and then [appellant] signed it and then the friend that he was with signed it also.
Bellino continued, testifying that appellant willingly told him what kind of drug was found in the car. Bellino also stated that the appellant willingly took the officers to his bedroom and living area, and appellant pointed out the location of additional narcotics. Additionally, Bellino testified that throughout the entire interview he "kept reminding [appellant that he had] the right to remain silent and the right to quit answering questions." But appellant chose to continue answering questions after each warning. With the many warnings given and an appellant who comprehended those warnings, the record demonstrates that appellant understood his legal rights and chose not to assert them at that time.
Considering all of the circumstances and giving proper deference to the trial court's determination, we hold that the State proved by clear and convincing evidence that appellant consented to the police search of his home. In fact, not only did he consent, but he cooperated with the police officers and showed them the illegal narcotics hidden in his home.
Conclusion
This Court concludes that even though the protective sweep of appellant's home was illegal, the consent appellant gave to police officers to search his home was voluntary. Any taint from the illegal sweep was sufficiently attenuated when appellant voluntarily consented to the search of his residence. The trial court did not err in denying appellant's motion to suppress the evidence obtained when searching his house. Therefore, we reverse the judgment of the court of appeals, and we affirm the conviction in the trial court.
NOTES
[1] Officer Bellino testified at the hearing on the motion to suppress that he stopped appellant at his house because "it would be safe for us and for him."
[2] The police officers did not have a search or arrest warrant.
[3] The protective sweep is analogous to a Terry or Long frisk. See generally Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983) (authorizing a police officer to "frisk" those areas of an automobile in which a weapon may be hidden or placed if the officer has a reasonable belief that the suspect is dangerous or may gain control of the weapon.); Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (holding that even though a frisk of a person for weapons constitutes a personal intrusion, the frisk is reasonable when weighed against the "need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.").
[4] This Court did previously refuse discretionary review of this issue. See Beaver v. State, 942 S.W.2d 626 (Tex.App.-Tyler 1996, pet. ref'd).
[5] It is important to note that this illegal entry did not produce any additional evidence used against appellant. Nor did the entry cause officers to discover any other participants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580734/ | 919 F. Supp. 1061 (1995)
VESTAX SECURITIES CORPORATION, Plaintiff,
v.
Diane M. DESMOND, Defendant and Third-Party Plaintiff,
v.
NATIONAL ASSOCIATION OF SECURITIES DEALERS, Third-Party Defendant.
No. 94-73220.
United States District Court, E.D. Michigan, Southern Division.
July 20, 1995.
*1062 *1063 Dennis J. Levasseur, Bodman, Longley, Detroit, MI, for Plaintiff.
Anthony V. Trogran, Jr., Weisman, Trogan, Bingham Farms, MI, for Defendant and Third-Party Plaintiff.
Sharon M. Woods, Daniel J. LaCombe, Barris, Sott, Detroit, MI, for Third-Party Defendant.
OPINION
COHN, District Judge.
I. Introduction
Defendant Diane M. Desmond (Desmond) filed a statement of claims in arbitration before the National Association of Securities Dealers (NASD) against plaintiffs Vestax Securities Corporation (Vestax), Mutual Service Corporation (MSC), Tezco Financial (Tezco) and Timothy Zimcosky (Zimcosky), alleging fraudulent concealment and breach of fiduciary duty, among other things.[1] Thereafter, Vestax brought a suit in this court challenging Desmond's right to arbitrate her claims and filed a motion pursuant to Fed.R.Civ.P. (FRCP) 65, for a preliminary injunction to enjoin Desmond from pursuing and continuing the arbitration and a motion pursuant to 28 U.S.C. § 2201 and FRCP 57, for a declaratory judgment barring Desmond from pursing her claims against Vestax in the future either in court or arbitration. Desmond then filed a motion for leave to file a third party complaint against NASD seeking a declaratory judgment that the ruling of this Court would determine the eligibility of Desmond's claims before NASD. After a hearing on the motions, the Court denied Vestax's motions without prejudice and granted Desmond's motion for leave to file a third party complaint.[2]
Desmond filed a third-party complaint then filed an amended third party complaint adding claims against NASD for failing to disclose its relationship with the attorney representing Zimcosky, Tezco and MSC in arbitration. NASD filed a motion to dismiss the third party complaint. MSC filed a motion to intervene in the third party suit and a motion to dismiss the complaint. These motions are now before the Court.
The Court's discussion with the lawyers at a hearing on NASD and MSC's motions on April 19, 1995, indicated that there is some confusion as to the Court's decision on Vestax's prior motion for injunctive relief and, in particular, the issue of fraudulent concealment. Therefore, Part III of this Opinion will discuss the fraudulent concealment issue and expound on the Court's prior denial of Vestax's motion and Part IV will address the motions concerning Desmond's third party complaint. For the reasons that follow, the Court will enter an order granting NASD's motion to dismiss the third-party complaint. *1064 MSC's motions concerning the third-party complaint will consequently be rendered moot. The November 3, 1994, Amended Order denying Vestax's motion for injunctive relief will remain in effect.
II. Background
A.
In the spring of 1985, Desmond contacted Zimcosky who was president of Tezco Financial, Inc. (Tezco), a registered investment advisory firm. Zimcosky was licensed to sell securities as a registered representative of MSC, a licensed broker-dealer. Desmond sought Zimcosky's advice regarding the investment of $150,000 she had received through a divorce settlement. At the time, Desmond was 47 years old and without any investment experience.[3]
Desmond explained this lack of experience to Zimcosky and said that she had conservative investment goals and expectations. Zimcosky agreed to act as her advisor in return for payment of various fees including annual fixed fees for monitoring the account portfolio and for advice. Desmond signed an Investment Advisory and Supervisory Services Contract which provided the following:
We [Tezco] are associated with Mutual Service Corporation, a registered broker-dealer, and as such we can execute securities transactions for your account upon your direction to do so.
The contract did not include a mandatory arbitration clause, but specified that Michigan law would apply to disputes.
In the course of this relationship, Zimcosky made the following limited partnership investments for Desmond:
Date[4] Amount Investment
5/8/85 $10,000 Granada 3
7/1/85 $10,000 Hall Institutional Mortgage
Fund
7/1/85 $ 5,000 American Insured Mortgage
Investors
7/1/85 $ 7,500 McNeil Real Estate Fund XV,
Ltd.
10/20/85 $60,000 Hall Crowntree Associates
Apparently, these investments were not successful.[5]
In July 1992, Zimcosky transferred his securities license from MSC to Vestax, another licensed broker-dealer. In doing so, Zimcosky became a registered representative of Vestax, with which he currently is affiliated.
In March 1993, Zimcosky and Desmond's relationship concluded. On that date, Zimcosky wrote to Desmond expressing his regret for her losses, explaining that:
I believe we were blind-sided by a Government tax law change, the S & L scandal and crisis, and events out of our control which led to the real estate depression not seen since the 1930's. I tried my best to do what was in your best interest. I put in $17,000 of my own money to keep it going when your cash flow was tight and Hall required additional capital.
B.
On May 2, 1994, Desmond filed a statement of claims in arbitration before NASD against Vestax, MSC, Tezco, and Zimcosky (collectively, Respondents). Among other things, Desmond alleged that "until severance of the relationship in 1993," Respondents placed her in high risk, non-liquid, unsuitable investments and engaged in fraudulent concealment. Specifically in regard to fraudulent concealment, Desmond alleged that the respondents "made inadequate or misleading disclosures concerning the status, value and suitability of [the] investments" which were, "in part, designed to conceal Respondents' previous misconduct." Also, she alleged that Respondents "took undisclosed and actively concealed fees and commissions for recommending and selling [Desmond] certain products in her portfolio."
*1065 Zimcosky, Tezco and MSC retained Eric Richards of the law firm Warner, Norcross & Judd to represent them in the arbitration proceedings. Richards had represented NASD as local counsel in two prior matters, one of which concluded on March 10, 1994, and the other of which concluded on November 13, 1993. These prior representations were not disclosed to Desmond.
In the arbitration, Richards filed a motion to dismiss before NASD on behalf of Zimcosky, Tezco and MSC on the ground that Desmond's claims were untimely, and therefore should be barred under the six-year eligibility period set forth in § 15 of the NASD Code of Arbitration and Procedure (NASD Code),[6] which states:
Sec. 15. No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction.
On September 8, 1994, Deborah Massucci, NASD Director of Arbitration, issued a letter ruling on the motion to dismiss, stating:
1. Claimant's date of filing pursuant to Section 25(c)(1) of the Code was on May 2, 1994. The 6 year period immediately preceding filing began on May 2, 1988. The Motion to Dismiss is denied in full regarding all purchases made on or after May 2, 1988 and claims regarding those purchases will be considered by the panel of arbitrators.
2. Claims regarding purchases made prior to May 2, 1988 will be permitted to go to the panel of arbitrators but only as to the allegations of wrongdoing made on or after May 2, 1988. All allegations of wrongdoing prior to May 2, 1988 are not eligible.[7]
Vestax then sought a declaratory judgment from this Court that purchases made on Desmond's behalf more than six years prior to the filing of the statement of claims with NASD were not eligible for submission to arbitration pursuant to § 15 and that Vestax was under no legal obligation to continue to defend itself or to otherwise participate in arbitration proceedings concerning such claims. Vestax also sought a preliminary injunction enjoining Desmond from taking any further action to arbitrate or initiate a civil action against Vestax based upon her present claims. Desmond responded that her claims were not time-barred because she had alleged fraudulent concealment an act which customarily tolls the statute of limitations.
At a hearing on the motion for preliminary injunction, the Court expressed reluctance to become involved in what appeared to be Vestax's attempt to flee from the arbitration forum that, along with the rest of the securities industry, it selected for resolution of disputes. The Court also expressed a concern that Desmond's statement of claims was not very clear because it did not specify which counts applied to which defendants and at which time, especially concerning the claim of fraudulent concealment. The Court told Vestax that this was a matter that should be raised in arbitration. Once the statement of claims was clarified, the Court was confident that the issue would become exactly what misconduct by Vestax occurred, if any, and whether it occurred both outside the statute of limitations period and while Zimcosky was licensed by Vestax. For example, because Zimcosky did not begin his employment with Vestax until July 1992, the Court said that Vestax could argue that it was not responsible for any wrongdoing that occurred prior to July 1992, and that it did not engage in wrongdoing from July 1992 to March 1993. The Court indicated that it would not enjoin Desmond's claims in arbitration because it was possible that Vestax engaged in misconduct which might have involved aiding and abetting Zimcosky in acts of fraudulent concealment while Zimcosky *1066 was licensed by Vestax. On November 3, 1994, the Court entered an order denying Vestax's motion for preliminary injunction without prejudice and granting Desmond's motion for leave to amend to file a third-party complaint seeking a declaration that NASD was bound to follow any eligibility determinations made by the Court.
The next day, Desmond filed a third-party complaint for declaratory relief "against the NASD that the ruling of this Court will determine the eligibility of Desmond's claims before the NASD." NASD asked Richards to represent it in the matter of Desmond's third-party complaint. Richards explained that he would not be able to represent NASD because he was already representing parties in the underlying arbitration. NASD contacted Desmond's counsel to explain that it needed extra time to respond to the third-party complaint because Richards, NASD's "regular attorney in Michigan," was conflicted out of the case.
Desmond then filed an amended third-party complaint which included an additional claim for declaratory relief and a claim for damages based on NASD's failure to advise her of its relationship with Richards. The amended third-party complaint seeks: (1) a declaratory judgment against NASD setting aside the letter ruling of the Director of Arbitration; (2) compensatory damages against NASD on the ground that NASD has engaged in "misconduct," and; (3) certification of the matter as a class action and an award of monetary and equitable relief "to correct adverse consequences resulting from NASD's misconduct," alleging that it is NASD's general policy not to disclose prior attorney-client relationships with the parties appearing before it.[8]
On January 9, 1995, "upon review of the documents filed in the [] arbitration, including the action filed in federal court," NASD administratively stayed the arbitration pending resolution of the eligibility issue.
III. Fraudulent Concealment
"The questions of whether certain parties are contractually bound to arbitrate and what issues may be arbitrated are for the courts to decide." Litton Financial Printing Division v. NLRB, 501 U.S. 190, 111 S. Ct. 2215, 115 L. Ed. 2d 177 (1991); Roney and Company v. Kassab, 981 F.2d 894, 898 (6th Cir.1992). In making this determination, a court must operate under a "presumption of arbitrability in the sense that `[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.'" AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 106 S. Ct. 1415, 1419, 89 L. Ed. 2d 648 (1986) (citing United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1960)) (emphasis added).[9]
*1067 The parties do not contest that a valid agreement to arbitrate exists between them. Rather, the main issues before the Court are: (1) whether the six year time period in § 15 operates as a statute of limitations subject to tolling where there is a claim of fraudulent concealment or whether it is a statute of repose which is an absolute bar to arbitration of stale claims; (2) what is necessary to state a claim in arbitration of fraudulent concealment sufficient to toll § 15, and; (3) whether Desmond has sufficiently stated such a claim against Vestax.
A.
The factors to be considered and carefully balanced when deciding whether to issue a preliminary injunction are:
1. Whether the movant has shown a strong or substantial likelihood or probability of success on the merits.
2. Whether the movant has shown irreparable injury.
3. Whether the preliminary injunction could harm third parties.
4. Whether the public interest would be served by issuing the preliminary injunction.
Frisch's Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir.1985). These are factors to be balanced rather than prerequisites. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985).
1.
a.
In determining Vestax's probability of success, the first question is whether, where a claim of fraudulent concealment is stated, the "occurrence or event" which starts the running of the period of eligibility is the date of purchase of the investment or the date the investor realizes, or reasonably should have realized, she has suffered some form of injury. Desmond contends that she did not discover the fraud until sometime in 1993. Under Michigan law:
If the existence of a cause of action is concealed by the party who would be liable, the person entitled to sue may bring the action within two years after the date of discovery or after the date the existence of the cause should have been discovered, despite any applicable statute of limitations.
Lumber Village, Inc. v. Siegler, 135 Mich. App. 685, 355 N.W.2d 654 (1984); citing M.S.A. 27A.5855. The NASD Code of Arbitration Procedure makes no mention of a tolling provision based on fraudulent concealment.
The Sixth Circuit's only discussion of this issue appears in Roney, supra, and Dean Witter Reynolds, Inc. v. McCoy, supra n. 9 (McCoy 1). In Roney, the Sixth Circuit concluded that the six year period in Rule 603 of the New York Stock Exchange (NYSE)[10] was a substantive bar to arbitrating actions before the NYSE because it operated as an eligibility requirement. 981 F.2d *1068 at 899. The Sixth Circuit held that since the appellees had "presented no compelling reason to deviate from the clear language of Rule 603," they were enjoined from arbitrating their claim based on occurrences over six years in the past. Id. The appellees argued, however, that their claims were not subject to the Rule 603 eligibility requirement because they alleged fraudulent concealment. The Sixth Circuit rejected this argument because it did not find a sufficient allegation of fraudulent concealment. Id. at 900. Therefore, it never reached the issue of whether a sufficient allegation of fraudulent concealment would have acted as an exception to Rule 603's eligibility requirement.
In McCoy 1, supra, several aggrieved investors brought a claim before NASD alleging that Dean Witter Reynolds, Inc. (Dean Witter) mismanaged their funds and falsely assured them that their money was safe while it did so. Dean Witter filed an action in district court for a preliminary injunction against the arbitration, arguing that the investors were time-barred under § 15 from bringing the action. The district court, prior to the decision in Roney, denied the motion on the basis that this was a question for the arbitrator.
The Sixth Circuit reversed and remanded on the basis that Roney decided that the question of which issues "are eligible" for arbitration is a question for the courts. 995 F.2d at 650-51; see discussion, supra n. 9. The Sixth Circuit then went on to discuss the merits of Dean Witter's motion for preliminary injunction. The Sixth Circuit said that, in Roney, it had agreed with Dean Witter's contention that the word "eligible" must be given its plain meaning and interpreted as absolutely barring stale disputes from reaching arbitration. Although its decision in Roney was based upon NYSE Rule 603, the Sixth Circuit noted that this rule was similar in substance and function to NASD Code § 15. Based on this reason, the Sixth Circuit found that "not only is it likely that Dean Witter will succeed on the merits of its argument that the question of arbitrability under NASD section 15 is not arbitrable, under Roney, its success is certain." Id. at 651. The Sixth Circuit concluded that this alone warranted injunctive relief without any need to consider the other preliminary injunction factors. However, the Sixth Circuit went on to stress that it was not reaching the question of whether § 15 actually did bar the investors' claims against Dean Witter, but was remanding this question to the district court.
The most significant portion of the Sixth Circuit's decision in McCoy 1 is the following statement with which it concluded its inquiry:
Section 15 is not akin to a statute of repose; should the District Court find, applying the relevant State law, that Dean Witter or its agents succeeded in fraudulently concealing their alleged wrong, then the claims potentially may still be pursued in arbitration. See Roney, 981 F.2d at 900.
Id. This statement has since been interpreted in the Eastern District of Tennessee, which heard McCoy 1 on remand, and in this district, which decided a case with virtually identical facts, to mean two different things.
On remand, the District Court for the Eastern District of Tennessee ignored the Sixth Circuit's concluding language in McCoy 1, categorizing it as mere dicta, because it states that the "claims potentially may still be pursued in arbitration" if fraudulent concealment is found. Dean Witter Reynolds, Inc. v. McCoy, 853 F. Supp. 1023 (E.D.Tenn. 1994), (McCoy 2). It determined that this language did not establish a fraudulent concealment exception because it cited to Roney. Id. at 1029. The District Court did not read Roney as holding that the six-year time limit in § 15 could be equitably tolled by fraudulent concealment, but instead found that Roney never met this issue because the Sixth Circuit there determined that there was no fraudulent concealment claim presented. The District Court decided that the issue was an open one in the Sixth Circuit and held that fraudulent concealment does not toll the six year eligibility provision in § 15, even in cases of fraudulent concealment. Id. at 1030. In doing so, it relied upon the Sixth Circuit's decision in Roney based upon NYSE Rule 603, and the fact that two other circuits, the Third and the Seventh, had held that NYSE Rule 603 was not a procedural statute of *1069 limitation but rather a substantive limitation on the arbitrator's jurisdiction. Id.
In Davis v. Keyes, 859 F. Supp. 290 (E.D.Mich.1994), Judge John Feikens of this district disagreed with the District Court for the Eastern District of Tennessee's interpretation of the Sixth Circuit's language in McCoy 1, finding that the language in McCoy 1 was a "clear instruction" rather than mere dicta. Judge Feikens held that § 15:
operates as a statute of repose, except in cases where the claim involves fraudulent concealment. In cases where there has been fraudulent concealment, the six-year eligibility requirement operates as a statute of limitations subject to tolling.
Id. at 291. However, since Judge Feikens found that a sufficient claim for fraudulent concealment was not made by the defendant, he held that no circumstances warranted tolling of the period and the defendant's claims which were more than six years old were ineligible for arbitration. Id.
Judge Feikens reasoned that the Sixth Circuit was in accordance with the decisions by the Seventh and Eighth Circuits involving claims other than fraudulent concealment. Id. at 292. However, where the claim involves fraudulent concealment, based upon the holding in Roney and the concluding language in McCoy 1, Judge Feikens concluded that the Sixth Circuit's position was that the eligibility period is tolled if there is sufficient proof of fraudulent concealment. Id. Judge Feikens said:
Explicit in the court of appeals rulings and findings in Roney and McCoy [1] is the conclusion that the six-year eligibility period operates as a statute of repose. Implicit in the ruling is the conclusion that fraudulent concealment is a condition which tolls the six-year eligibility period. The instruction provided to the district court by the court of appeals in McCoy is both explicit and unambiguous. If there is adequate proof of fraudulent concealment, defendants' claims more than six years old may still be pursued in arbitration.
Id. at 293.
The issue before this Court is whether to agree with the Eastern District of Tennessee's interpretation in McCoy 2 or Judge Feikens' interpretation in Davis, or to make its own interpretation. This Court agrees with Judge Feikens' interpretation in Davis.
The decision in Davis is a fair reading of the Sixth Circuit's decisions in McCoy 1 and Roney. The Sixth Circuit in Roney never reached the question of whether fraudulent concealment could act as an exception to the six year period in § 15 because it was not presented with a sufficient claim of fraudulent concealment. Then, in McCoy 1, the Sixth Circuit referred back to the discussion in Roney, and told the district court that on remand, if it found that the plaintiff engaged in fraudulent concealment, "then the claims potentially may still be pursued in arbitration." This is an instruction to the lower court, not dicta. It means that the Sixth Circuit was ready to hold that fraudulent concealment can operate as an exception to the six-year period in § 15 despite that the NASD Code of Arbitration Procedure makes no mention of this form of tolling.[11]
Reading these two decisions together, it is clear that if Desmond has sufficiently alleged a claim for fraudulent concealment, the six-year period in § 15 will not bar her from arbitrating her claims.
b.
Choosing which law to apply to determine whether Desmond's claim for fraudulent concealment is sufficient to toll § 15 is difficult. In Board of Regents v. Tomanio, 446 U.S. 478, 483, 100 S. Ct. 1790, 1794, 64 L. Ed. 2d 440 (1979), the Supreme Court held that in 42 U.S.C. § 1983 cases, where Congress did not establish a statute of limitations or a body of tolling rules for § 1983, "the federal courts were obligated not only to apply the analogous [state] statute of limitations ... but also to apply the [state] rule for tolling that statute of limitations." Id. Following the rationale *1070 of Tomanio, it seems logical to apply the tolling rules of the forum from which the statute of limitations has been borrowed. Here, that would be NASD. However, the NASD "Code of Arbitration Procedure" makes no mention of a fraudulent concealment tolling provision.[12] The Court is therefore placed in the awkward position of having to apply the tolling law of a forum different than the forum from which it borrowed the statute of limitations.
Sixth Circuit precedent provides little guidance in making this choice. Roney, supra, and McCoy, supra, are the only cases which even discuss the issue of which law should be applied to determine the sufficiency of a claim of fraudulent concealment for purposes of tolling NASD Code § 15. The issue was addressed in a tangential fashion in both cases, and in each the Sixth Circuit's decision was different. In Roney, supra at 900, the Sixth Circuit relied on "the federal doctrine of equitable tolling."[13] This doctrine looks to the sufficiency of the allegations in the statement of claims rather than substantively evaluating the merits of the claim. See Davenport at 1142 (statute not tolled where plaintiff "fail[ed] to allege either `due diligence' or `active concealment....'"). Under the doctrine, "the statute of limitations is tolled if the fraud remained undisclosed because the defendant took additional affirmative steps after committing the fraud to keep it concealed." Id. at 1142. A fiduciary's mere silence is insufficient. Id., citing Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452, 456 n. 4 (7th Cir.1987).
Later, in McCoy, the Sixth Circuit did not follow this approach. It implied that a court should look to "the relevant state law" to determine whether the statute of limitations in § 15 should be tolled. McCoy, supra at 651 ("... should the District Court find, applying the relevant state law, that Dean Witter or its agents succeeded in fraudulently concealing their alleged wrongs, then the claims potentially may still be pursued in arbitration") (emphasis added). The Sixth Circuit did not define "the relevant state law."
i.
It is the Court's position that in the absence of an NASD tolling provision, in keeping with the spirit of Tomaio the arbitrators should have the maximum possible discretion to decide whether a claim of fraudulent concealment is tenable. Neither the federal equitable tolling rules nor the "relevant state" tolling rules accomplish this result very well because the arbitrators are not given an opportunity to evaluate the merits of a claim which cannot successfully pass the tests of these other tribunals. Rather, to best achieve this result, a conclusory claim of fraudulent concealment which is less than sufficient under the federal rules or the "appropriate state law" should be eligible for arbitration. Discretion as to the merits of such claims will then lie more completely with the arbitrators.
A short review of the recent history of securities litigation sheds light on the Court's position. In the late 1980's, the securities industry decided that it was in its best interest to have disputes against it resolved in an *1071 arbitration forum.[14] Arbitration forum selection clauses became standard in client contracts and, initially, the courts were shut out of the entire process. However, brokerage houses soon became dissatisfied with certain facets of the arbitration process. On these occasions, the brokerage houses turned to the courts for declaratory and injunctive relief so that a higher authority could tell the arbitrators that they had done something wrong and that they should henceforth proceed in a particular manner.
At present, these cries for court interference in the arbitration process are relatively common; so much so that cases submitted to arbitration often result in satellite litigation in the court system. See Stanley Keller, Insights, Vol 8, Number 5, May 1994 at 2 ("arbitration is becoming the litigation battlefield that it was intended to avoid"). Not surprisingly, many questions have begun to arise concerning the appropriate role of a court in the arbitration process. In answer to one of these questions, it is generally held that courts have the power to decide what claims are "eligible" for arbitration.[15] However, the scope of "eligibility" has not been clearly defined. The question is: how much of this solicited assistance should the courts provide if the arbitration process is to continue to function?
The Court's position on this issue is clear from the comments it made from the bench at the first hearing. Simply stated, the Court is a facilitator to a forum chosen by the securities industry and accepted by its clients who buy the industry's services, and in that role, the Court should refrain from superimposing its rules on the forum. The need for such an approach is especially strong in the present situation where the Court is "borrowing" the arbitration forum's statute of limitations and must apply a tolling rule that is not included in the arbitration forum's rules.
This position finds support in Supreme Court precedent. In United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960), a case concerning the Labor Management Relations Act, 29 U.S.C. § 151, et seq., the Supreme Court stated:
The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is then confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator's judgment, when it was his judgment and all that it connotes that was bargained for.
* * * * * *
The courts therefore have no business weighing the merits of the grievance, considering whether there is equity in a particular claim or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those the court will deem meritorious. The processing of even frivolous claims may have therapeutic values which those who are not a part of the plant environment may be quite unaware.
Id. at 567-68, 80 S.Ct. at 1346-47; see generally, Frank Elkouri and Edna Asper Elkouri, *1072 How Arbitration Works, 3d ed. at 170-173 (1973).
Here, Desmond has alleged that Vestax "made inadequate or misleading disclosures concerning the status, value and suitability of the investments" which were "designed to conceal Respondents' previous misconduct." This should be a sufficient allegation to toll § 15 and to require arbitration of the claim of fraudulent concealment. If Desmond's claim of fraudulent concealment is factually deficient, it will ultimately be dismissed in arbitration.
ii.
Desmond's statement of claims is also sufficient to meet the two bodies of law arguably used by the Sixth Circuit "the relevant state law" and the federal equitable tolling doctrine. Although what is meant by the "relevant state law" is not clear, here the only possible "relevant state" is Michigan. Arbitration is a matter of contract law, First Options of Chicago, supra n. 8, and the Investment Advisory and Supervisory Services Contract between Desmond and MSC states that "[t]his contract will be governed by, and interpreted according to the laws of the State of Michigan." Further, Michigan is the forum state because NASD selected Michigan as the hearing location. See generally, Merrill Lynch, Pierce, Fenner & Smith v. Lauer, 49 F.3d 323, 330-31 (7th Cir.1995) (where arbitration agreement forum selection clause offered claimant a selection of arbitrators who would then select arbitration sight, claimant filed claim before NASD and NASD chose a Florida hearing location, district court in Illinois properly refused to entertain prearbitration dispute or to compel arbitration in Illinois).
Under Michigan law, "[a]s a general rule, for fraudulent concealment to postpone the running of the period of limitation, the fraud must be manifested by an affirmative act or misrepresentation." Lumber Village, supra 135 Mich.App. at 694, 355 N.W.2d 654. There is an exception to this requirement where the parties are in a fiduciary relationship because a fiduciary has an affirmative duty to disclose material facts. Id. at 695, 355 N.W.2d 654. It is under this exception that Desmond bases her claim of fraudulent concealment.
Desmond concedes that her account was technically a discretionary account, but argues that the account became a hybrid-type account which imposed a fiduciary duty on Zimcosky. The relationship between a broker and his or her customer varies between discretionary, non-discretionary and in between. Leib v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 461 F. Supp. 951 (E.D.Mich.1978). Which relationship exists determines whether the broker acts as a fiduciary. In Leib, supra, Judge Feikens discussed the relationship between a customer and his broker. In a non-discretionary account, the customer, rather than the broker, determines which purchases and sales to make and no fiduciary relationship arises. Id. at 952. In a discretionary account, the broker does not need customer authorization before making a transaction, and has a fiduciary relationship with the customer. Id. at 953. Between the discretionary and non-discretionary accounts is a hybrid-type account in which "the broker has in fact usurped actual control over a technically non-discretionary account." Id. at 954. Where this occurs, "the broker owes his customer the same fiduciary duties as he would have had the account been discretionary from the moment of its creation." Id. In determining whether a broker has assumed control of a non-discretionary account:
(1) the courts examine the age, education and intelligence and investment experience of the customer;
(2) if the broker was socially or personally involved with the customer, the courts are likely to conclude that the customer relinquished control because of the relationship of trust and confidence;
(3) if many of the transactions occurred without the customer's prior approval, the courts will often interpret this as a serious usurpation of control by the broker; and
(4) if the broker and the customer speak frequently with each other regarding the status of the account or the prudence of a particular transaction, the courts will usually find that the customer, by maintaining *1073 such an active interest in the account, thereby maintained control over it.
Id.
In Davis, supra, Judge Feikens determined that the customers maintained a non-discretionary account with the broker because the customers made the purchase and sale decisions even though they did so based on the broker's advice. The customers contended that a fiduciary relationship nevertheless existed because they presented their credentials to the broker and they had no investment experience in the investments which were eventually made. Judge Feikens did not accept this argument because, although the customers were retirees, they had not alleged that they were taken advantage of due to their age or were of limited intelligence. 859 F.Supp. at 295. Also, prior to entering into a relationship with the broker, the customers owned a number of investments, albeit different investments from those purchased from the broker. Id. at 295; See Leib, supra at 956 (broker had not usurped control of non-discretionary account where customer had professional experience in managing the financial affairs of others and understood the dynamics of the stock market).
The first factor in Leib for determining whether a broker has usurped control over a non-discretionary account is the customer's age, education, and investment experience. Desmond's age and intelligence do not suggest that she was at a disadvantage. However, she had no experience with financial matters at all when she went to Zimcosky for advice unlike in Davis where the plaintiffs had previously owned a number of investments. Based upon Leib and Davis, it appears that experience is a heavily weighted factor because, in both of those cases, the court refused to find a fiduciary relationship where the customers had investment experience. Therefore, the first factor weighs in Desmond's favor.
Factors two and four which deal with a personal relationship between the broker and the customer and active interest by the customer in the account do not appear to apply. The third factor in Leib looks to whether the transactions occurred without the customer's prior approval. There is no evidence as to whether Zimcosky made the purchase and sale decisions with or without Desmond's approval.
Given that the only applicable factor is the first factor and that it points to a fiduciary relationship, the Court is satisfied that a fiduciary relationship existed between Desmond and Zimcosky despite the technically discretionary nature of the account. Under Michigan law, this fiduciary relationship is sufficient to state a claim of fraudulent concealment sufficient to toll § 15 even absent an affirmative act.
A fiduciary relationship would not be sufficient to toll § 15 under the federal equitable tolling doctrine absent an allegation of affirmative conduct. The "silence of a fiduciary" is not enough under this doctrine. However, Desmond has alleged that Vestax "made inadequate or misleading disclosures concerning the status, value and suitability of the investments" which were "designed to conceal Respondents' previous misconduct." (emphasis added). Therefore, unlike the claimant in Davenport, supra, Desmond has alleged more than a mere "failure to disclose."
c.
Thus, the Sixth Circuit allows tolling of the six year period in § 15 for claims of fraudulent concealment and, under either the Court's position or either of the positions arguably taken by the Sixth Circuit, Desmond has made a claim of fraudulent concealment against Vestax sufficient to toll § 15.[16] Vestax's case therefore has a low probability of success on the merits.
*1074 2.
In PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 515 (3rd Cir.1990), the Third Circuit stated the following in regard to irreparable harm in arbitration disputes:
[w]e think it obvious that the harm to a party would be per se irreparable if a court were to abdicate its responsibility to determine the scope of an arbitrator's jurisdiction and, instead, were to compel the party, who has not agreed to do so, to submit to an arbitrator's own determination of his authority. Even if such things could be known in advance, it would be irrelevant whether the arbitrator's determination would be the same as the court's. A reluctant party has a right to a judicial determination of his obligation to arbitrate.
Id. at 515. Thus, the harm to Vestax would be "per se irreparable" were the Court not to grant the preliminary injunction if warranted.
The third and fourth factors are harm to third parties and service to public interest. Desmond argues that parties with claims that have been fraudulently concealed will be harmed by the grant of a preliminary injunction because of the precedent this will set. However, judicial precedent, correctly formulated, does not harm anyone. The public interest here is in the proper interpretation of arbitration agreements. This favors neither party over the other.
B.
Balancing these factors, it appears that Vestax should not be granted a preliminary injunction preventing Desmond from arbitrating claims based upon purchases made prior to May 2, 1988. Given that a fiduciary relationship existed between Desmond and Zimcosky, and given that Zimcosky was employed and licensed by Vestax, Desmond has sufficiently stated a claim of fraudulent concealment to toll the § 15 statute of limitations. She alleges that the respondents "made inadequate or misleading disclosures concerning the status, value and suitability of the investments" which were, in part, "designed to conceal Respondents' previous misconduct." She also alleges that "some misconduct occurred" after the 1985 purchases and that Zimcosky was employed by Vestax during a period of time in which he rendered services to Desmond and presumably, during which "some misconduct occurred." Presumably, the conduct to which Desmond is referring is the lack of adequate disclosures concerning the status and suitability of her investments and the concealment of the award of commissions. The date Desmond realized, or should have realized she suffered some form of injury becomes the relevant date.[17]
This decision is consistent with the Court's discussion from the bench on November 3, 1994. The Court has gone further, however, in deciding that Desmond has made a claim of fraudulent concealment sufficient to toll § 15 and that the claim is therefore arbitrable, rather than leaving this decision for the arbitrators.[18] The arbitrators are now the finders of fact on the merits of the issue.
IV. Third-Party Complaint
The Court will now turn to the motions concerning Desmond's third party complaint: NASD's motion to dismiss Desmond's third party complaint and MSC's motion to intervene *1075 and to dismiss Desmond's third party complaint.
A.
NASD contends that there is no reason for the Court to entertain a declaratory judgment action as to its duty to comply with the Court's order on eligibility. NASD contends that Desmond has not asserted a basis in the complaint to support a claim that NASD will not abide by the Court's ruling. In fact, NASD argues that by administratively staying the arbitration for ninety days, it has indicated its willingness to defer to the Court.
The Court agrees. The Court previously denied Vestax's request to enjoin Desmond from arbitrating her claims and NASD has indicated by its voluntary stay that it will abide by the Court's eligibility decisions. Therefore, the Court will dismiss Desmond's claim seeking a declaratory judgment that NASD is required to abide by the Court's eligibility decisions.
B.
NASD and MSC contend that the Court is without subject matter jurisdiction to entertain Desmond's third party claim regarding NASD's misconduct. Desmond argues that NASD failed to disclose its relationship with Richards and that it did so as a matter of policy. She argues that even though Richards may not have had an open file with NASD at the time the statement of claims was filed, there was nevertheless an ongoing attorney-client relationship between Richards and NASD at the time the statement of claims was filed which presents a potential for bias that should have been revealed. Desmond argues that this bias is what led Richards to file the § 15 motion to dismiss with the Director of Arbitration rather than the arbitration panel as is done in the normal course. Desmond wants the Director of Arbitration's letter ruling vacated and compensation for costs and attorney fees.
The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., gives a federal court jurisdiction to vacate an arbitration award upon application of a party to the arbitration in a situation "where there was evident partiality or corruption in the arbitrators, or either of them" or where the arbitrators were guilty of "any other misbehavior by which the rights of any party have been prejudiced." 9 U.S.C. § 10(a)(2) and (3). A district court does not have jurisdiction over disputes involving allegations of bias until after the arbitration proceedings have come to a close and the party claiming bias has received an award. See In Matter of Michaels and Mariforum Shipping, S.A., 624 F.2d 411, 414 n. 4 (2d Cir.1980) ("It is well established that a district court cannot entertain an attack upon the qualifications or partiality of arbitrators until after the conclusion of the arbitration and the rendition of an award"), Marc Rich & Co. v. Transmarine Seaways Corp., 443 F. Supp. 386, 386-87 (S.D.N.Y.1978) ("the question of qualification, where initially committed to the arbitrators themselves, is subject to judicial review only after an award has been made"), Corporate Printing Co. v. N.Y. Typographical Union, 601 F. Supp. 323, 328 (S.D.N.Y.1984) (court refused to consider allegation of institutional bias where arbitrator had been selected but had not yet made an award). One court made an exception to this general rule where, prior to the commencement of any arbitration proceedings, the plaintiff alleged specific instances of actual misconduct on the part of an arbitrator. See Metropolitan Property & Cas. v. J.C. Penney Cas., 780 F. Supp. 885 (D.Conn.1991) (court distinguished Michaels, supra, because unlike Michaels, the "[plaintiff] raises no interlocutory appeal arising out of the arbitration proceedings but seeks to disqualify an arbitrator for misconduct prior to the beginning of that process," and distinguished Corporate Printing, supra, and Marc Rich, supra, because "those cases involved disputes over the `qualifications' and `institutional bias' of arbitrators that created `at least the appearance of bias'"). In other words, there may be an exception for (1) non-interlocutory requests for relief which are (2) based on specific instances of actual misconduct.
*1076 Here, Desmond seeks interlocutory relief[19] based on an allegation of both institutional bias and misconduct by NASD in failing to disclose its relationship with Richards.[20] Desmond is seeking interlocutory relief which is barred by the general rule preventing vacatur prior to an award. Insofar as she alleges an act of specific misconduct against NASD, Desmond partially meets the exception carved out in Metropolitan.[21] To grant Desmond the relief she seeks, however, the Court would have to extend the exception in Metropolitan to allow for interlocutory relief.
There are good reasons not to make this extension. First, the arbitration process provides a forum for Desmond's complaint. The Director's letter ruling states that "[p]arties may, in their discretion, reassert these issues with the panel of arbitrators." Therefore, if Desmond is concerned about the integrity of the Director's ruling as to the application of § 15, she may reassert the § 15 issue before the arbitration panel which will be assigned to hear her claims. Desmond may be concerned that NASD's bias will spill into its selection of the arbitration panel. The Arbitrator's Manual requires arbitrators to disclose any possible conflicts, however, and Desmond will have an opportunity to assert a challenge for cause against any of the arbitrators assigned to the panel.
Second, the allegation of misconduct against NASD is far less egregious than the allegations which were made in Metropolitan and which led the court in that case to make an exception. There, the plaintiffs alleged that one of the arbitrators:
engaged in ex parte meetings and discussions with [Party "A" to the arbitration] at its Dallas headquarters concerning the merits of its claims in the arbitration prior to his formal selection to the panel, accepted "hospitality" from [Party "A"] during those meetings, evaluated documentary evidence relevant to the arbitration proceeding prior to his selection as an arbitrator, attempted to discuss the merits of the case with [Party "B's"] appointed arbitrator before the third arbitrator had been selected [by the arbitrators chosen by Party "A" and Party "B"], and failed to reveal his ex parte activities to [Party "B"].
780 F.Supp. at 887-88. Here, Desmond is alleging only that NASD failed to advise her of a relationship that had the potential for bias and/or the appearance of bias.
Desmond's claim against NASD is premature. The Court is without jurisdiction to entertain an interlocutory request to vacate a procedural ruling made in the underlying arbitration on the ground of alleged misconduct in failing to disclose a potential bias. An award of associated costs and attorney fees would like-wise be premature.
V.
The Court will enter an order dismissing the third-party complaint. There is no need to enter an order concerning Vestax's motion because this opinion merely expounded on the Amended Order dated November 3, 1994 *1077 in which the Court denied the motion. The Amended Order remains in effect.
NOTES
[1] Desmond's statement of claims also alleged: breach of contract, conspiracy, promissory estoppel, conversion, negligence, malpractice, breach of fiduciary duty, breach of Michigan securities law, violation of the Michigan Consumer's Protection Act.
[2] See Amended Order dated November 3, 1994.
[3] Before she was married, Desmond was a nun, and had no responsibility for managing her finances. After she was married, her husband managed all of her financial affairs.
[4] Desmond has stipulated to these dates for purposes of this motion only, but maintains that they have not yet been established.
[5] It is not clear exactly what happened with the investments. However, the statement of claims alleges $90,000 as an out-of-pocket loss.
[6] When she filed the statement of claims, Desmond signed a Uniform Submission Agreement under which she agreed to submit her claims to arbitration in accordance with the NASD Code.
[7] The letter ruling said nothing about the allegation of fraudulent concealment.
[8] On February 28, 1995, Desmond filed a second amended third-party complaint containing substantially the same allegations as the amended third-party complaint.
[9] In AT & T Technologies, the Supreme Court reaffirmed that the question of arbitrability is usually an issue to be decided by the courts, "[u]nless the parties clearly and unmistakably provide otherwise[.]" 475 U.S. at 648, 106 S.Ct. at 1418. In First Options of Chicago, Inc. v. Manuel Kaplan, ___ U.S. ___, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995), the Supreme Court held that the standard of review to be applied by a court to an arbitrator's decision about arbitrability depends upon the agreement between the parties. If the parties agreed to submit the arbitrability question itself to arbitration, "the court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances." Id. at ___, 115 S.Ct. at 1923, 131 L.Ed.2d at 993. If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question "independently." Id. "Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clea[r] and unmistakabl[e]' evidence that they did so." Id. at ___, 115 S.Ct. at 1924, 131 L.Ed.2d at 994. (citing AT & T Technologies, supra 475 U.S. at 649, 106 S.Ct. at 1418).
In Dean Witter Reynolds, Inc. v. McCoy, 995 F.2d 649 (6th Cir.1993), the Sixth Circuit relied upon the AT & T Technologies standard in holding that "in the context of NASD Rule 15, `the court must first determine from the contract provisions dealing with arbitration, the particular grievances that are intended to be subject to arbitration'" and that "the District Court must make that determination before arbitration may commence." Id. at 651 (citing Roney, supra at 898). Thus, the Sixth Circuit has held that questions involving § 15 of the NASD Code should be heard by the courts.
First Options of Chicago does not appear to affect McCoy because both cases rely on AT & T Technologies as the proper standard for determining whether parties have agreed to submit questions of arbitrability to the courts or to the arbitrators. Therefore, unless and until the Sixth Circuit finds that it needs to reexamine its position in McCoy in light of First Options of Chicago, McCoy is binding on this Court.
Interestingly, the Third Circuit has held that § 35 of the NASD Code shows a "clear and unmistakable" expression of the parties' intent to have arbitrators, and not the court, determine which disputes the parties have agreed to submit to arbitration. FSC Securities Corp. v. Freel, 14 F.3d 1310, 1312 (8th Cir.1994); cf. Edward D. Jones & Co. v. Sorrells, 957 F.2d 509, 514 n. 6 (7th Cir.1992) (court did not "believe that [§ 35] is a clear and unmistakable expression of the parties' intent to have arbitrators decide which disputes are arbitrable"). Section 35 reads:
The arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code which interpretation shall be final and binding upon the parties.
[10] Rule 603 of the NYSE reads:
No dispute, claim or controversy shall be eligible for submission to arbitration under this Code where six (6) years shall have elapsed from the occurrence or event giving rise to the act or the dispute, claim or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction.
[11] The circuits are not at all in agreement on this issue. The Third, Seventh, and Eighth Circuits apply § 15 as a substantive bar.
[12] Section 18 reads:
Sec. 18. (a) Where permitted by applicable law, the time limitations which would otherwise run or accrue for the institution of legal proceedings shall be tolled where a duly executed Submission Agreement is filed by the Claimant(s). The tolling shall continue for such period as the Association shall retain jurisdiction upon the matter submitted.
(b) The six (6) year time limitation upon submission to arbitration shall not apply when the parties have submitted the dispute, claim, or controversy to a court of competent jurisdiction. The six (6) year time limitation shall not run for such period as the court shall retain jurisdiction upon the matter submitted.
[13] The Sixth Circuit did not use this terminology, but cited Davenport v. A.C. Davenport & Son Co., 903 F.2d 1139, 1141-42 (7th Cir.1990), in which the Seventh Circuit applied both "the federal doctrine of equitable tolling" and the tolling laws of the state from which the statute of limitations was borrowed. In Davenport, the Seventh Circuit declined to decide which body of law applied, or if both could be applied, because the outcome of the case was the same either way. The Seventh Circuit explained that several times in the past it had held that federal common law determined the circumstances which would equitably toll a borrowed limitations period and that it was not sure of Tomaio's impact, if any, on these prior decisions.
[14] The Court expressed concern over this decision in a personal letter to the Editor of the New York Times:
To the Editor,
When the Supreme Court gave stockbrokers the power to insist that aggrieved customers submit their disputes to arbitration, it accorded them something given to no other American industry. ("When Naivete Meets Wall Street," Dec. 3) No other industry is privileged with a dispute resolution system in which the adjudicator is not required to explain the basis of the decision and no mechanism is available for review and correction of mistakes. Judges surely would do a faster job of deciding cases if no explanation was required of the basis for decision and there was no concern over review by a higher court. That Congress has done nothing to correct this gross imbalance is certainly evidence of the continued value we place on property in contrast to persons.
The N.Y. Times, Business Section, Sunday, January 14, 1990, at 13.
[15] See discussion, supra n. 9.
[16] Where a claimant has signed a mandatory arbitration agreement at the inception of the investment advisory relationship, the majority of cases suggest that a claim that is stale pursuant to § 15 cannot be litigated in court. See Castellano v. Prudential-Bache Secs., Inc., 1990 WL 87575, 1990 U.S.Dist. LEXIS 7352 (S.D.N.Y. June 19, 1990), Calabria v. Merrill Lynch, Pierce, Fenner & Smith, 855 F. Supp. 172 (N.D.Tex. 1994), Merrill Lynch v. Shelapinsky, 1994 WL 397123, 1994 U.S.Dist. LEXIS 10477 (W.D.Pa. Mar. 16, 1994), Piccolo v. Faragalli, 1993 WL 331933, 1993 U.S.Dist. LEXIS 13111 (E.D.Pa. Aug. 24, 1993); cf. Prudential v. LaPlant, 829 F. Supp. 1239 (D.Kan.1993) (inference can be drawn from opinion that § 15 barred claims can be litigated in court), Smith Barney v. St. Pierre, 1994 WL 11600, 1993 U.S.Dist. LEXIS 18649 (N.D.Ill. Jan. 4, 1994) (§ 15 barred claim can be litigated in court). However, the pivotal factor in these cases was that the claimant signed an agreement to arbitrate all claims against the broker at the inception of the investment advisory relationship. There are no cases addressing this question in the context of a claimant like Desmond who did not enter into such an agreement. Given this, it is reasonable to conclude that Desmond would still have the option of litigating in court any claims failing to meet the statute of limitations in § 15.
[17] The Court reiterates that a clarification of the statement of claims would assist all involved parties.
[18] The Amended Order of November 3, 1994, denying Vestax's motion for preliminary injunction remains in effect. This opinion clarifies the portion of the Amended Order stating that Vestax's motion is denied "for the reasons stated on the record."
[19] Although the arbitrators have not yet been selected, the relief Desmond is seeking is properly categorized as interlocutory because a procedural ruling has already been made in the arbitration.
[20] Desmond argues that "Defendant's problem is not with the forum but with the incompetence and lack of integrity of those who are in charge of it as evidenced by their misconduct in this specific case." Desmond seems to be saying that she is not alleging institutional bias. However, in arguing that the individuals in charge of NASD are incompetent and lack integrity, Desmond is expressing her lack of trust in the impartiality of the forum and is essentially alleging institutional bias.
[21] See Pompano-Windy City Partners v. Bear, Stearns & Co., 698 F. Supp. 504 (S.D.N.Y.1988). In Pompano, the plaintiffs asserted institutional bias. The court interpreted this as an argument that:
because the forum is asserted to be biased, it will further its bias by the appointment of biased arbitrators, it will ensure arbitrator conformity to its biased views through its payment of the arbitrators, and will further act on its bias by improperly influencing the arbitrators in ex parte communications through its staff attorney.
Id. at 517. The court held that the plaintiff's claims of bias were "too speculative and attenuated to justify invalidation of all contemplated arbitration, or to enjoin it before it commences." Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579703/ | 117 Mich. App. 522 (1982)
324 N.W.2d 22
PEOPLE
v.
CHARLES THOMPSON
Docket No. 53296.
Michigan Court of Appeals.
Decided April 27, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Gerald L. Charland, Senior Assistant Prosecuting Attorney, for the people.
Nora J. Pasman and John Nussbaumer, Assistants State Appellate Defender, for defendant on appeal.
Before: R.B. BURNS, P.J., and D.F. WALSH and MacKENZIE, JJ.
PER CURIAM.
After a jury trial, defendant was convicted of kidnapping, MCL 750.349; MSA 28.581, and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). Defendant was sentenced to imprisonment for 2 concurrent terms of 15 to 30 years and now appeals by right.
In People v Adams, 389 Mich. 222; 205 NW2d *525 415 (1973), the Court held that it was necessary to interpolate an element of asportation or its equivalent in the crime of kidnapping to prevent the kidnapping statute from being unconstitutionally overbroad. The necessary asportation could not be merely incidental to the commission of another underlying lesser crime. In People v Barker, 411 Mich. 291; 307 NW2d 61 (1981), the Court held that the Adams rule applied to cases in which the underlying crime is coequal in punishment to kidnapping. Kidnapping and first-degree criminal sexual conduct are coequal in punishment.
Here the trial judge instructed the jury on asportation as follows:
"[D]uring the course of such confinement the defendant must have forcibly moved the victim or caused her to be moved from one place to another for the purpose of abduction and kidnapping, or must have hidden the victim and kept her in secret confinement."
The instruction as given was insufficient to convey the essential point that the asportation could not be merely incidental to the charged criminal sexual conduct. While counsel for defendant made no relevant objection to the trial judge's instructions, defendant's right to a jury determination upon all essential elements of the offense requires that the trial judge's instructions include all of the essential elements of the offense charged and not exclude from jury consideration material issues, defenses, or theories if there is evidence to support them. People v Liggett, 378 Mich. 706, 714; 148 NW2d 784 (1967), People v Reed, 393 Mich. 342, 349-350; 224 NW2d 867 (1975). Failure to adequately instruct the jury here on the essential element of asportation was reversible error.
It was also reversible error, even absent objection, *526 for the trial judge to fail to instruct the jury on the defense of consent to first-degree criminal sexual conduct. See People v Hearn, 100 Mich. App. 749; 300 NW2d 396 (1980). As in Hearn, defendant's theory here was that complainant had consented to sexual intercourse. Although Hearn involved commission of first-degree criminal sexual conduct by sexual penetration while armed with a weapon, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), we believe that the reasoning used in Hearn is equally applicable where defendant is charged with commission of the crime by sexual penetration under circumstances involving commission of a felony, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). The prosecution's reliance on People v LaPorte, 103 Mich. App. 444; 303 NW2d 222 (1981), is misplaced. Contrary to the prosecution's assertion in its brief on appeal, the Court did not determine in that case that the jury need not be instructed on consent where the charge is criminal sexual conduct during the commission of a felony. We see no basis for such a distinction.
The prosecution also relies on the trial judge's instruction that consent is a defense to kidnapping and argues that the jury could not have reasonably found that complainant consented to sexual intercourse but not to kidnapping. We are not persuaded that consensual sexual intercourse is necessarily impossible in the course of a kidnapping. Moreover, the jury is the sole judge of all the facts and can choose, without any apparent logical basis, what to believe and what to disbelieve. People v Vaughn, 409 Mich. 463, 466; 295 NW2d 354 (1980).
The foregoing errors require reversal of both convictions and a new trial. Defendant here was charged with having committed first-degree criminal *527 sexual conduct by sexual penetration under circumstances involving commission of a felony, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). The felony relied upon was the charged kidnapping. Since we discern no clear legislative intent in the criminal sexual conduct statute to authorize multiple convictions for a single criminal act, defendant's conviction of both kidnapping and first-degree criminal sexual conduct violated the constitutional prohibition of double jeopardy. People v Swearington, 84 Mich. App. 372; 269 NW2d 467 (1978), People v Peete, 102 Mich. App. 34; 301 NW2d 53 (1980), lv den 411 Mich. 962 (1981), People v Brown, 105 Mich. App. 58; 306 NW2d 392 (1981), People v Bouknight, 106 Mich. App. 798; 308 NW2d 703 (1981), People v Clement Anderson, 111 Mich. App. 671; 314 NW2d 723 (1981). We recognize, however, that some panels of this Court have taken a contrary position. See People v Robideau, 94 Mich. App. 663; 289 NW2d 846 (1980), and People v Ferrell, 99 Mich. App. 609; 299 NW2d 366 (1980). On remand, the jury should be instructed that it may convict defendant, if at all, of only one of the two offenses. See People v Jankowski, 408 Mich. 79, 92-94; 289 NW2d 674 (1980).
In People v Washington, 100 Mich. App. 628, 632-633; 300 NW2d 347 (1980), the Court said:
"Evidence of prior consistent statements of a witness is generally inadmissible as substantive evidence. Brown v Pointer, 390 Mich. 346, 351; 212 NW2d 201 (1973), People v Hallaway, 389 Mich. 265, 276; 205 NW2d 451 (1973) (Justice BRENNAN, concurring). Evidence of prior consistent statements is admissible, however, to rebut a charge of recent fabrication or as evidence of whether or not a witness had made a prior inconsistent statement. People v Harris, 86 Mich. App. 301, 305; 272 NW2d 635 (1978), People v Coles, 79 Mich. App. 255, 260-261; 261 NW2d 280 (1977). The evidence *528 in the instant case must qualify under the recent fabrication exception if it is to be admissible, since no evidence of any prior inconsistent statement had been brought out during cross-examination. In Brown v Pointer, 41 Mich. App. 539, 548; 200 NW2d 756 (1972), rev'd on other grounds 390 Mich. 346 (1973), this Court set forth the guidelines for admission of prior consistent statements to rebut a charge of `recent fabrication':
"`Michigan permits the admissibility of prior consistent statements in order to rehabilitate an impeached witness if (1) the impeachment of the sworn testimony attacked the witness as having had a motive for changing or falsifying his testimony so as to have been of recent contrivance or fabrication, and (2) if the earlier consistent statement was given at a time prior to the existence of any fact which would motivate bias, interest, or corruption. People v Miniear, 8 Mich. App. 591 [155 NW2d 222] (1967); People v Gardineer, 2 Mich. App. 337 [139 NW2d 890] (1966).'"
On remand, complainant's prior consistent statements shall not be admitted except for one of the purposes ponted out in Washington.
The trial judge instructed the jury:
"Consent is a complete defense to the crime of kidnapping provided that you find the following:
"First, that the victim's consent to go with the defendant was not obtained by fraud, duress or threats; and, secondly, that the victim's consent was present throughout the commission of the alleged offense. If you find both of those elements present, then you must return a verdict of not guilty to the charge of kidnapping."
The prosecution bears the burden of proving defendant's guilt beyond a reasonable doubt and, where defendant produces enough evidence to put an affirmative defense into controversy, the prosecution bears the burden of disproving the affirmative defense beyond a reasonable doubt. Compare *529 People v Garbutt, 17 Mich. 9 (1868) (insanity), People v Coughlin, 65 Mich. 704; 32 N.W. 905 (1887) (self-defense), and People v MacPherson, 323 Mich. 438; 35 NW2d 376 (1949) (alibi). Shifting of the burden of proof in a criminal case goes to the very heart of the judicial process, and a shift in the burden of proof may not be inferred absent express statutory language to that effect. People v Rios, 386 Mich. 172, 174-175; 191 NW2d 297 (1971). The instruction reproduced above erroneously suggested that the burden of proof on the issue of consent had shifted to defendant. On remand, if the evidence introduced warrants instructions on consent as a defense to kidnapping or criminal sexual conduct, the instructions should indicate that the burden is on the prosecution to disprove consent beyond a reasonable doubt.
Reversed and remanded for further proceedings in accordance with the foregoing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579721/ | 12 So.3d 778 (2009)
Elwood STALEY, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D08-1863.
District Court of Appeal of Florida, First District.
April 30, 2009.
Rehearing Denied June 24, 2009.
*779 Elwood Staley, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondent.
PER CURIAM.
ORDER ON PETITION SEEKING BELATED APPEAL
Elwood Staley petitions for a belated appeal of a judgment and sentence of the Washington County Circuit Court. He alleges in his sworn petition that he relied on his trial counsel's assurances that a timely notice of appeal would be filed, only to discover after the time had expired for seeking review that an appeal had not been initiated. We take this opportunity to outline the procedure the court will now follow in instances such as this, where a petition for belated appeal presents a facially sufficient claim for relief grounded on the alleged ineffectiveness of trial counsel.[1]
Until now, when a petition seeking belated appeal was found to materially comply with the procedural requirements of Florida Rule of Appellate Procedure 9.141(c) and substantively stated a preliminary basis for relief, our uniform practice was to issue an order directing *780 the Attorney General to show cause why the petition should not be granted. That procedure has proven to be efficient in circumstances where the claim relates to a matter apparent from the record or where the claim does not involve issues directly related to the proceedings in the lower tribunal or its participants, and we intend to continue to utilize it in cases of that sort.[2]
On the other hand, this process is not particularly efficient or economical in the more common situation in which it is alleged that the fault for failing to timely appeal is attributable to some act or omission on the part of trial counsel. Where those allegations are facially sufficient to demonstrate an entitlement to relief, the state is obligated to show the existence of a good-faith basis for disputing petitioner's factual allegations before an evidentiary hearing will be ordered. See Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998). Thus, the process we have employed to date required the Attorney General's staff to contact defense counsel who might be distantly situated and with whom it has little or no prior professional relationship. These obstacles of distance and unfamiliarity, which in most cases would not similarly hinder the local State Attorney, often delayed a determination of whether the state could show a good-faith basis to dispute the claim. Only after such a showing was made by the Attorney General would we relinquish jurisdiction to the lower tribunal to conduct an evidentiary hearing and issue a report and recommendation.
Recognizing that, as applied to cases of this sort, our current procedure may result in unnecessary difficulties and delays in resolving these relatively simple claims, we have elected to revise that procedure to streamline and simplify the disposition of these cases. Henceforth, when we determine that a petition for belated appeal grounded on the alleged actions or inactions of trial counsel is legally sufficient, we will at that point relinquish jurisdiction to the lower tribunal for the purpose of appointing a special master to issue an order to show cause directed to the State Attorney,[3] conduct an evidentiary hearing if warranted by the state's response, and issue an appropriate report and recommendation concerning the petitioner's entitlement to a belated appeal. We anticipate that this course of action will minimize needless delays by immediately involving in the fact-gathering process the participants in the underlying proceedings, and our expectation is that, absent some extraordinary circumstances, necessary proceedings can be conducted and a report and recommendation issued within 60 days. In most cases, prosecutors and defense counsel in the trial court will enjoy some level of professional familiarity and rapport, which we trust will simplify and speed the process of determining whether a good-faith basis exists to dispute the factual allegations on which the claim for belated appeal is based. If *781 no such dispute exists, the state can promptly make that known, and an appropriate report and recommendation can be forwarded to this court.
On the other hand, if the need for an evidentiary hearing is shown, the special master will be in the best position to manage the logistics of conducting such a hearing and producing a timely report and recommendation. Because local practices and customs differ in the six judicial circuits under our jurisdiction, our intent is to permit the lower tribunal significant discretion in fashioning the particular means by which the proceedings below are conducted, provided those means recognize and protect the due process interests of the parties.
Accordingly, and in light of our determination that the particular petition in this case states a preliminary basis for relief, jurisdiction is hereby relinquished to the trial court for a period of 60 days. A copy of the petition seeking belated appeal is provided to the trial court as an attachment to our order, and the Chief Circuit Judge is requested to appoint a special master to serve as a commissioner of this court for the purpose of directing the state to show cause why the petition should not be granted, conducting an evidentiary hearing if deemed warranted pursuant to Schubert, and issuing a report and recommendation setting forth findings of fact and conclusions of law regarding petitioner's entitlement to a belated appeal in Washington County Circuit Court case number 06-000221-CF-MA. The report and recommendation shall be issued no later than 60 days from the date hereof, and copies shall be served on the clerk of this court, the petitioner, the State Attorney, and the Attorney General. Any party adversely affected by the special master's conclusion may file a response within 10 days following service of the report and recommendation and the other party may reply within 10 days of service of the response. The court will thereafter issue its order determining whether petitioner is entitled to a belated appeal.
HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.
NOTES
[1] On a case-by-case basis, this new procedure also may be found to be the most suitable means for resolving claims grounded on other, less common theories.
[2] Examples of the former circumstance include situations where it is alleged that the trial court failed to comply with its obligation under the Florida Rules of Criminal Procedure to inform the defendant of his or her appellate rights. The latter scenario includes, for example, an allegation by an incarcerated defendant entitled to the benefit of the "mailbox rule" that he timely mailed a notice of appeal from his place of confinement, but the notice did not reach the lower tribunal for reasons not attributable to him.
[3] Florida Rule of Appellate Procedure 9.141(c)(5)(A) requires that a copy of the petition seeking belated appeal be served on the appropriate State Attorney, thus ensuring that the Office of the State Attorney will be on adequate notice of the claim it is being directed to address. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579732/ | 117 Mich. App. 413 (1982)
324 N.W.2d 31
PEOPLE
v.
HARTFORD
Docket No. 54565.
Michigan Court of Appeals.
Decided June 23, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James L. McCarthy, Assistant Prosecuting Attorney, for the people.
Keller & Avadenka, P.C., for defendant on appeal.
Before: ALLEN, P.J., and CYNAR and C.J. FALAHEE,[*] JJ.
*415 PER CURIAM.
Defendant was charged in a three-count information with committing murder while in the perpetration of or attempt to perpetrate a robbery, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm while committing or attempting to commit a felony, MCL 750.227b; MSA 28.424(2). After a jury trial held August 25 through September 5, 1980, defendant was found guilty on all counts. Defendant was sentenced on October 14, 1980, to a term of natural life in solitary confinement at hard labor under count I, to a term of life under count II, and to the mandatory term of two years under count III. Defendant appeals as of right.
Defendant argues that his conviction should be set aside because of his two incriminating statements which he contends were improperly admitted against him. Defendant claims that the statements were obtained by police through improper interrogation when defendant was without the assistance of counsel and in a highly susceptible condition by reason of emotional excitement and the influence of medication. Resolution of this claim depends in part on whether the relevant police activity constituted interrogation.
"[S]ince the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v Innis, 446 US 291, 302; 100 S Ct 1682; 64 L Ed 2d 297 (1980).
This Court considered Innis at length in two fairly recent cases, People v Benjamin, 101 Mich App 637; 300 NW2d 661 (1980), and People v *416 Rowen, 111 Mich App 76; 314 NW2d 526 (1981). In both Benjamin and Rowen, the Court concluded that spontaneous, volunteered statements by an in-custody suspect did not fall within the purview of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), and were admissible at trial.
The first statement the admission of which defendant objects to occurred on July 21, 1980, when Deputy Sheriff Stephen Allen was driving defendant from a preliminary examination on an unrelated armed robbery charge back to the Oakland County jail. Allen testified that defendant was highly emotional, upset, and angry. Allen's testimony indicates that defendant initiated the comments concerning the armed robbery and killing at issue. It appears defendant's first comments were spontaneous, volunteered statements. Even accepting defendant's emotional state, the mere transporting of a defendant on an unrelated charge is not an act reasonably likely to elicit incriminating statements.
The analysis of defendant's first statement is complicated by Allen's response to defendant that he must shoulder some responsibility. Responses to a police officer's question, prompted by a defendant's volunteered remark, need not be suppressed at trial, even if the volunteered remark was not preceded by Miranda warnings. People v O'Brien, 113 Mich App 183, 192-193; 317 NW2d 570 (1982). In this case, Allen never questioned defendant but merely responded to unfounded accusations by defendant. Allen's paternal comment was not an act reasonably likely to elicit incriminating statements.
The second statement the admission of which defendant objects to occurred on March 22, 1980, *417 in a room at St. Joseph Mercy Hospital in Pontiac, Michigan, where Deputy Sheriff Michael Edwin was guarding defendant during hospital watch duty. At about 10 a.m., defendant started to cry. Edwin testified that defendant was upset but seemed awake and alert. Edwin's testimony indicates that defendant initiated the comments concerning the armed robbery and killing at issue. It appears defendant's comments were spontaneous, volunteered statements, even noting defendant's emotional state.
The analysis of defendant's second statement is complicated by the fact that defendant's statement was made while he was in a hospital recovering from injuries to the mouth area. Edwin could not be sure whether hospital personnel had administered any medication to defendant. This Court has not directly addressed the problem of volunteered statements while the defendant is under medication although it noted a problem in Benjamin, supra, 649, fn 4.
This Court recently addressed the problem of a susceptible defendant in considering whether a statement was voluntarily made in People v Harris, 110 Mich App 636; 313 NW2d 354 (1981). In Harris, defendant's statement was taken in the hospital emergency room where he was being treated for a gunshot wound to his arm. The record did not reflect whether defendant had received any medication, although the officer stated that he smelled alcohol on defendant's breath. At the time, defendant was receiving a blood transfusion. The duration of the detention was brief, and the conditions were not such as to have rendered the statement involuntary. The officer indicated that defendant appeared to understand what was happening and did not seem to be under the *418 influence of either alcohol or medication. The Court concluded defendant's statement was voluntarily made. Id., 653.
See, also, People v Crawford, 89 Mich App 30; 279 NW2d 560 (1979), lv den 409 Mich 914 (1980). But see Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978).
The instant case appears akin to Harris. John Stilp, an oral surgery resident at Detroit General Hospital, examined defendant on March 16, 1980, concerning defendant's injury to the lower jaw. Stilp removed bullet fragments from defendant's mouth. Defendant's statement was made on March 22, 1980, at St. Joseph Hospital in Pontiac, Michigan, where defendant was apparently still recovering from his injury. Edwin's testimony regarding defendant's statement reflects a situation where defendant was troubled not by his pain and injury but by his conscience and by concerns for his future.
Defendant's statements appear to have been spontaneous, voluntary, and, therefore, admissible. The trial court did not err by admitting them.
Defendant also argues that his right of cross-examination was irreparably harmed by the admission of two statements made by the codefendants which inculpated defendant. Defendant claims he was harmed because he could not call the codefendants for cross-examination in their joint trial.
Admission of a codefendant's confession, inculpating defendant, in a joint trial where the codefendant does not testify violates defendant's right of cross-examination under the Sixth Amendment despite an instruction that the confession cannot be used against defendant. Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). *419 Four justices sought to narrow the broad stance of Bruton in Parker v Randolph, 442 US 62; 99 S Ct 2132; 60 L Ed 2d 713 (1979). Justice REHNQUIST concluded that the admission of interlocking confessions of nontestifying codefendants with proper limiting instructions conformed to the requirements of the Sixth and Fourteenth Amendments. Justice REHNQUIST was joined by Chief Justice BURGER and Justices STEWART and WHITE. Justice BLACKMUN, the swing vote, concluded that any violation of the right to cross-examination was harmless beyond a reasonable doubt on the facts of the case.
This Court reached a conclusion similar to that of Justice REHNQUIST in People v Miller, 88 Mich App 210, 221; 276 NW2d 558 (1979), rev'd on other grounds 411 Mich 321; 307 NW2d 335 (1981):
"Where the various confessions are interlocking or substantially similar, the `powerfully incriminating extrajudicial statements of a codefendant' (391 US 135) are not present as in Bruton, and hence it is harmless error at most to admit such statements."
In the case at bar, defendant first complains of testimony by his brother, Michael Hartford, who testified under a grant of immunity. Michael Hartford testified that the codefendants told him that defendant had been shot in the mouth, that they had taken defendant to the Detroit Osteopathic Hospital and that defendant had killed someone. The court overruled defendant's objection that Michael Hartford's testimony was inadmissible hearsay.
The second incident of which defendant complains occurred during the testimony of Detective Sergeant Mark Goodrich. Goodrich testified that on March 18, 1980, at approximately 1:45 a.m., he *420 took a statement from codefendant Charles Hartford. The statement was tape-recorded and marked as Exhibit 52. The taped statement was played for the jury. Defendant's attorney did not object at the time of the admission of the statement.
Miller appears applicable to both statements of which defendant now complains. Although our defendant did not confess in response to interrogation by the police, defendant made two spontaneous statements in which he admitted the armed robbery and the killing. Defendant's own statements interlock with the testimony of his brother regarding statements by the codefendants.
It appears under the circumstances of this case that there was no error in admission of the two statements of which defendant complains. However, even the erroneous admission at a joint trial of such evidence does not automatically require reversal of an otherwise valid conviction. Where the evidence supplied through the confession is merely cumulative and other evidence of defendant's guilt is overwhelming, the admission of a confession by a nontestifying codefendant is harmless beyond a reasonable doubt. Harrington v California, 395 US 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969). See also People v Johnson, 106 Mich App 570; 308 NW2d 287 (1981). The statements by Michael Hartford and Charles Hartford are cumulative of those made by defendant. The physical evidence and the testimony of the surviving victim leave no doubt that defendant committed the charged crimes. The gun and mask used by the perpetrator, the blood type at the scene and in the mask, the hair in the mask, the bullet hole in the mask, the bullet in defendant's jaw, and the bullets in the victims' bodies all point to defendant as the perpetrator.
*421 Finally, defendant argues that the Michigan Supreme Court's abrogation of the felony-murder rule should be applied retroactively to defendant's case.
The Michigan Supreme Court abrogated the common-law felony-murder rule in People v Aaron, 409 Mich 672, 733; 299 NW2d 304 (1980). The Court stated that its decision shall apply to all trials in progress and those occurring after November 24, 1980, the date of the Aaron opinion. Id., 734.
This Court has refused to give retroactive effect to Aaron despite the fact that one panel of this Court rejected the felony-murder rule four years before the Aaron decision, People v Fountain, 71 Mich App 491, 505-506; 248 NW2d 589 (1976), People v Bradley, 106 Mich App 373, 381; 308 NW2d 216 (1981), People v Brady Smith, 108 Mich App 338, 341-342; 310 NW2d 235 (1981). Defendant has suggested no argument which persuades us to ignore the clear statement of Aaron.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304539/ | SNODGRASS, J.
The Insurance Company, having paid an alleged liability on a policy of alleged theft insurance to the said G. W. Malone in the sum of $3500, brought this bill against the defendant through the said Malone under alleged subrogation right to collect the amount so paid from the defendant, claiming, that the automobile on which the alleged insurance rested was stolen out of the garage of the said defendant by one of his employees in Knoxville, Tennessee, on or about the 7th of September, 1921 and so .wrecked and destroyed as the salvage was practically worthless. The right of recovery was rested both in contract as bailor and bailee, and a claim of negligence on the part of the said bailee in the protection of the car.
There is no question from the proof but what a Cadillac car of value belonging to the said Malone on or about the date in question in the early hours of the morning but before day light was left by the said Malone in the custody of defendants employee, a negro boy or man * and that by such action there was created a relationship of bailor and bailee between the said Malone and the defendant. Further there is no doubt but what the negro boy in charge of defendant’s garage took the car out of the garage and in making a test, as he claimed, in response to Malone’s direction, having received an order to grease, and take it out over some rough road to see if the squeaks were removed, in driving it about the streets of the city, ran the same against a telephone pole with such force and violence as to wreck it.
"While there has been considerable dispute as to the amount of the damages sustained, in view of the attitude the case has assumed we *689do not deem it necessary to determine the extent of the injuries. Suffice it to say that the bill claims that under the policy $3500 was claimed and that being subrogated to the rights of Malone he was entitled to recover that amount from defendant for the use and benefit of the insurance company.
The answer denied any liability and demanded strict proof of all the material allegations of the bill.
Proof was taken and on the bearing, the Chancellor dismissed the bill, holding and decreeing that the allegations of the original bill were fully met by the answer and the proof on file and that the theory of said bill that the defendant carelessly and negligently permitted said automobile to be stolen from bis garage is not sustained by the proof; on the contrary it was found and decreed by the court that said automobile was not stolen from the garage of the defendant and was not damaged as the result of any negligence upon the part of the defendant.
Accordingly. it was adjudged and decreed that no liability or obligation rested upon the Insurance Company to pay any sum of money to the said G. "W. Malone by virtue of the alleged policy of theft insurance referred to in the pleadings and proof, and if, in fact, said sum of $3500 was paid as averred in the original bill, it was done voluntarily and that no liability can be asserted against the defendant on account thereof.
It is also proper to say that the wrecked ear bad been left by some one in the garage of the defendant from the date of its damage to the filing of the cross-bill which was done by defendant to recover storage charges in the sum of $-. Upon which liability was denied by original complaint. This cross-bill was likewise dismissed by the Chancellor from which action there was no appeal and that branch of the litigation passed out. But from the decree denying the complainant any relief and dismissing bis bill an appeal has been perfected; and original complainant makes the following assignment of errors to-wit: “The learned trial court was in error in overruling, disallowing and failing to sustain the complainant’s bill, and in failing to render judgment against the defendant, Harth, for the full amount which it paid out upon bis representations, prosecutions and convictions of these thieves for this larceny.
Upon representation of said defendant that this ear was stolen, the insurance company, the complainant herein, paid out $3500 for the damage to this stolen car, and took subrogation receipt according to the terms of its policy, and it was entitled to a judgment and decree against said defendant for the amount it bad to pay out on account of his negligence, permitting said car to be stolen, when it was to keep for safe keeping, and in failing and refusing to render judgment in favor of complainant, the trial court was in error.”
*690We have carefully examined the record and have come to the conclusion that the decree of the Chancellor must be affirmed. Complainant insists virtually from the fact that defendant Harth represented to its adjuster or to defendant’s agents that the property was stolen by his employee; and from the fact that he as a matter of fact prosecuted the negro for larceny that he is estopped from denying liability thereon; pretermitting any question as to whether or not any such representations were made or any prosecution for theft of the automobile initiated by the defendant before the justice and as to whether or not any sufficient loss of the J. P. papers had been sufficiently accounted for so as to permit secondary proof of their contents. These facts if proven’ did not create an estoppel because lacking in the confession of or representation of any fact essential to a liability. There was no confession of any negligence on the part of the defendant.
It is insisted however that the fact of bailor and bailee existing created a contractual relation and an. admission alone that the automobile was stolen from the garage would create the presumption of negligence. Perhaps that might be true if nothing else appeared; but here all the facts surrounding the injury to the ear appears. We do not think the proof even raises any suspicion of theft or anything more than criminal trespass. When it reached the circuit court- and grand jury, where an indictment was found that was all they charged the negro with, and at best it is not claimed that the insurance policy covered damages through such a trespass.
The Insurance Company was not liable. The adjuster seems to have taken too much for granted, and seems to have rather assumed a liability against the defendant Harth upon the assumption that he was a bailee of the car. But bailees under the circumstances shown are not insurers of the goods bailed and are only responsible for ordinary care. There appears to have been no special contract between the parties imposing any higher degree of diligence.
Bailment is either special or general. It is general, as in this ease, “when the delivery is by one man to another to be redelivered upon request.” Jones v. Littlefield, 3 Yerger, 133. “The bailee who is benefited by the possession (as in this case by compensation) as well as the bailor, shall be bound to ordinary care, and shall be answerable for a corresponding neglect.” Jones on Bailment, 74, 78, 118, 120; L. R. A., 97; 1 Ba. Ab. 370; Young v. Forgey, 4 Haywood, 9, Ency. Digest, Vol. 2, page 289. See also in latter book same vol. and page, under note 1, statement of same as general rule with citations. Among which is one as follows: “Where the contract is one of mutual benefit, only ordinary care is required. But it is also said, that this case may vary much in different cases, ‘according to the nature of the thing and the circumstances.’ 1st Parsons *691on Contracts, 610-603. . . . “If the loss occur through theft or robbery or the injury result from violence, the bailee is only answerable, when his imprudence or negligence caused or facilitated the injurious act.” Id. 606. Wallace v. Canada, 4 Sneed, 364.” So that mere theft of the automobile had such occurred was not of itself sufficient to create a liability. Nor was the defendant therefore precluded from making his defense even though the articles may have been stolen. But as indicated there was absolutely no proof that the automobile was stolen; and the amazing thing is that this boy should have had a judgment of infamy pronounced against him upon his plea of guilty to an indictment which appears to have charged only a simple trespass. This is not a felony and does not involve any such serious consequence. While every larceny involves a trespass every trespass does not involve a larceny. Nor upon being arraigned upon such an indictment does it make any difference that the submission recites that it was for petit larceny.
The indictment itself defines the charge and we think the visitation of infamy was simply unauthorized and void. However it has been formally reversed and the defendant restored.
We think the proof shows that prior to this night this negro who was left in charge of defendant garage at night to receive incoming cars was shown during all his previous employment to have been a faithful and efficient employee; that he had never theretofore been a user of whiskey at all; that it was not his business to grease these cars and take them out at night; but that during the late hours of night this conventional complainant brought his car into the garage and delivered it to the negro, ordering him to dope the car, which meant to grease the ear and get the squeaks out of it. There is some issue in the proof as to whether or not it was necessary as a prerequisite to telling whether the squeaks had been gotten out of it to drive it out or test over some rough road or whether it was only necessary to shake the car to ascertain.
The negro says he was told to take it out and try it. This was denied by Malone who does not deny that he told him to grease it and take the squeaks out. At any rate Malone himself was drinking and gave the negro between a half pint and a pint of red liquor which the negro confesses to drinking and that he was drunk while testing the ear out, and ran it against a telephone pole accomplishing its ruin. While we shall not attempt to place the blame for the apparent carelessness with which the rights of these negroes, one of whom it appears had nothing to do with taking the car out; but maybe was seen about its wreck have been dealt with; we do not think the proof at all sufficient to have warranted a belief that there was any attempt to steal the car. Nor do we think there is any proof to indicate that defendant committed any negligence in *692leaving his garage in charge of this competent and hitherto faithful and efficient servant for which he should be saddled with responsibility for this accident. If the proof shows any one to blame it was Malone in contributing the means to this negro’s downfall, as the proof shows he did, in supplying him with liquor which appears to have brought about his incompetent or careless handling of the car.
It is insisted that the Chancellor sustained objection to all the proof that was offered, tending to support a case entitling the Insurance Company to a judgment and that such proof is not now before this court. But had it been before the court as claimed, the alleged subrogee could stand in no higher favor than Malone himself who it appears had no rights to be affected by his transfer. If the Insurance Company paid the claim upon such investigation, that was made it has no one to blame but itself and its own agents, as it does not appear to us to have been liable.
It results that the assignments of error are overruled and the decree of the Chancellor is affirmed with costs against appellee and securities.
Portrum and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1579737/ | 324 N.W.2d 327 (1982)
Phillip L. GRIFFITH, Appellant,
v.
FARM AND CITY INSURANCE COMPANY, Appellee.
No. 67203.
Supreme Court of Iowa.
September 29, 1982.
*328 Thomas J. Reilly and William J. Conroy, Jr., of Thomas J. Reilly Law Firm, P. C., Des Moines, for appellant.
Paul Horvath, of Davis, Grace, Horvath, Gonnerman & Rouwenhorst, P. C., Des Moines, for appellee.
Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McGIVERIN and CARTER, JJ.
McGIVERIN, Justice.
Plaintiff Phillip L. Griffith appeals from judgment entered in this court-tried law case for defendant Farm and City Insurance Company (FCI) which denied him coverage under the uninsured automobile clause of an automobile liability insurance policy he maintained with defendant. Griffith had sustained personal injuries and property damage in a motor vehicle accident and sought payment from FCI to cover his losses. The dispositive issue on appeal is whether trial court erred in placing the burden of persuasion on plaintiff to prove that neither the operator nor the owner of the vehicle which injured him maintained automobile liability insurance covering his losses. We find no trial court error in this regard and affirm the judgment.
This case began on August 18, 1976, with the purchase of a 1970 Plymouth automobile by John Guess from Eddy's Used Cars (Eddy's) in Des Moines. Guess purchased the car under an oral installment sales contract, depositing one hundred dollars as a down payment. He took possession of the vehicle but there was no transfer of the certificate of title and no inspection of the vehicle at that time. See Iowa Code §§ 321.45(2); 321.238(18) (1981).
On August 21, 1976, Guess drove the Plymouth into the rear end of a 1973 Cadillac owned and operated by plaintiff. Griffith's vehicle was damaged and he sustained physical injuries.
Guess made the final installment payment on the Plymouth on September 8 and the certificate of title was transferred to him on September 17.
Plaintiff filed the petition in the present action on January 21, 1977. He sought $10,000 in damages from FCI on the theory that Guess was an "uninsured motorist," pursuant to an automobile liability insurance contract in effect between FCI and plaintiff, and that FCI therefore owed him the amount of coverage under that clause.
Plaintiff also brought a second action against Guess on June 27, 1977, seeking recovery for losses stemming from the accident on a negligence theory. A judgment for $10,000 was entered in favor of Griffith against Guess on January 28, 1978. Guess has not satisfied this judgment.
The action against FCI culminated in trial court's findings, conclusions and judgment on June 15, 1981. The court found that Guess was not insured at the time of the accident but that plaintiff had "failed to prove by a preponderance of the evidence the material and necessary allegations of his Petition." The court concluded that: Griffith had failed to carry his burden to prove the Plymouth had been inspected prior to the collision; absent such proof no bona fide transfer to Guess could have been *329 accomplished; because the title to the Plymouth could not be transferred to Guess it remained in some other party, presumably Eddy's Cars; and that Griffith failed to carry the burden of proof that the Plymouth was uninsured at the time of the accident. The court also found there was no showing that Eddy's did not have insurance on the Plymouth car. Trial court dismissed plaintiff's petition and he appeals.
The resolution of the dispositive issue in this case revolves around the language of the automobile liability insurance policy in effect between Griffith and FCI.[1] In the policy FCI:
Agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:
* * * * * *
Coverage LUninsured Motorists Protection Coverage (Bodily Injury Liability). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury", sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
(Emphasis supplied.) The policy defined "uninsured automobile" as:
(1) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile;
(2) a hit-and-run automobile as defined; or
(3) it is agreed that the term "uninsured automobile" includes an automobile with respect to which there is a bodily injury liability insurance policy applicable at the time of the accident but the company writing the same is or becomes insolvent within one year after such an accident.
The language of the policy complied with the requirement of Iowa Code § 516A.1 that an insurer offer "uninsured motor vehicle" coverage.
Trial court essentially placed the burden of persuasion upon plaintiff to prove that the Plymouth was an uninsured automobile. To satisfy this burden, plaintiff basically had to prove that neither the owner nor the operator of the vehicle had liability insurance. We find no error in trial court's allocation of the burden of proof.
It is generally recognized that in order for an insured to recover under uninsured motorist coverage, the insured bears the burden of proving the uninsured status of the other motorist or vehicle. See e.g., Home Insurance Co. v. Harwell, 263 Ark. 884, 885, 568 S.W.2d 17, 18 (1978); Hartford Accident & Indemnity Co. v. Studebaker, *330 139 Ga.App. 386, 387, 228 S.E.2d 322, 324 (1976); Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1, 4 (Mo.App.1975); State Farm Mutual Automobile Insurance Co. v. Stewart, 288 So.2d 723, 724-25 (Miss. 1974); Rice v. Aetna Casualty and Surety Co., 267 N.C. 421, 422, 148 S.E.2d 223, 224 (1966); State Farm Mutual Automobile Insurance Co. v. Matlock, 462 S.W.2d 277, 278 (Tex.1970); Annot. 26 A.L.R.3d 883, 892 (1969); but cf. Enis v. Specialty Auto Sales, 83 Cal.App.3d 928, 938, 148 Cal.Rptr. 255, 258-61 (1978) (compliance with requirement to notify state upon sale of vehicle found to be affirmative defense to basic rule of owner liability; thus, burden of proof of compliance on defendant).
In the present case, plaintiff carried the burden of proving the operator of the vehicle, Guess, did not have automobile liability insurance. However, Griffith failed to prove that the owner of the Plymouth did not maintain liability insurance on the vehicle, and thus failed to prove that the Plymouth was an "uninsured automobile" under his policy with FCI.
Generally, an automobile dealer who sells a motor vehicle under a conditional or installment sales agreement is not an owner for purposes of Iowa Code § 321.493.[2]Hartman v. Norman, 253 Iowa 694, 704, 112 N.W.2d 374, 378 (1962). However, in the present case, Eddy's was the owner of the Plymouth for liability purposes on the date of the accident by virtue of our decision in Sullivan v. Skeie Pontiac, Inc., 270 N.W.2d 814 (Iowa 1978). See also Farm & City Insurance Co. v. U. S. Fidelity and Guaranty Co., 323 N.W.2d 259, 261 (Iowa 1982); Iowa Kemper Insurance v. Cunningham, 305 N.W.2d 467 (Iowa 1981). Under Sullivan, Eddy's retained ownership responsibility under Iowa Code § 321.493 on the date of the accident, August 21, 1976, due to its failure to obtain a motor vehicle inspection certificate pursuant to § 321.238 for the Plymouth it had sold and delivered to Guess prior to August 21.[3]Id. at 817.
At the time of the accident, the owner and the operator were different entities. Thus, in order for plaintiff to recover for damages caused by an "uninsured automobile" under his uninsured motorist coverage, he had to prove that neither the owner nor the operator maintained automobile liability insurance on the Plymouth. Stordahl v. Government Employees Insurance Co., 564 P.2d 63, 67 (Alaska 1977); General Accident Fire and Life Assurance Co. v. Means, 362 So.2d 135, 137-38 (Fla.App.1978); Castaneda v. State Farm Mutual Automobile Insurance Co., 348 So.2d 1231, 1233 (Fla.App. 1977); Gordon v. Phoenix Insurance Co., 242 So.2d 485, 488-90 (Fla.App.1970); Motorists Mutual Insurance Co. v. Tomanski, 27 Ohio St.2d 222, 226, 271 N.E.2d 924, 926 (1971); Fielder v. Amica Mutual Insurance Co., 378 A.2d 1386, 1387 (R.I.1977); 7 Am. Jur.2d Automobile Insurance § 318 at 985 (1980); see State Farm Mutual Automobile Insurance Co. v. Johnson, 458 S.W.2d 473, 473-74 (Tex.1970) (owner/operator did not maintain liability insurance; employer carried liability policy covering non-owned automobiles driven by employees in course of employment; no uninsured automobile and no recovery under uninsured motorist coverage); United States Fidelity & Guaranty Co. v. Byrum, 206 Va. 815, 817-18, 146 *331 S.E.2d 246, 247-48 (1966) (neither owner nor operator maintained liability insurance; employer insured against liability arising out of employee's negligent acts during the course of employment; motor vehicle was insured, not "uninsured").
Plaintiff's failure to prove that neither the owner nor the operator of the Plymouth carried automobile liability insurance on the vehicle precludes his recovery from FCI under the uninsured automobile coverage of this insurance contract. Trial court made no error in assessing the burden of proof in this case or in its finding that plaintiff failed to prove the essential elements of his cause of action.
We have considered all of the contentions of Griffith, whether or not expressly discussed in this opinion, and find them without merit. Therefore, we affirm the judgment dismissing plaintiff's petition.
AFFIRMED.
NOTES
[1] Although we agree with plaintiff's contention on appeal that Chapter 516A, "Protection Against Uninsured or Hit-and-Run Motorists," is remedial in nature and therefore should be interpreted liberally to effectuate its purposes, see Rodman v. State Farm Mutual Automobile Insurance Co., 208 N.W.2d 903, 909-10 (Iowa 1973); Finney v. Farmers Insurance Co., 92 Wash.2d 748, 751, 600 P.2d 1272, 1275 (1979); Annot., 26 A.L.R.3d 883, 888 (1969), the liberal construction relates to the scope of the legislation and not to the proof or evidence necessary to establish compliance with the terms or conditions of the insurance contract. Cf. Maddy v. Jones, 230 Md. 172, 179-80, 186 A.2d 482, 484-85, (1963) (legislation establishing unsatisfied claim and judgment fund is to be construed liberally to effectuate its beneficial purpose but not in a manner that substitutes for the proof required to become eligible to recover from the fund); Downing v. Stewart, 85 N.J.Super 62, 66, 203 A.2d 724, 726 (1964) (same in regard to New Jersey fund); D. Blashfield, Automobile Law and Practice, § 274.3 at 50 (3d ed. 1966).
[2] Section 321.493 provides:
In all cases where damage is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage.
A person who has made a bona fide sale or transfer of his right, title, or interest in or to a motor vehicle and who has delivered possession of such motor vehicle to the purchaser or transferee shall not be liable for any damage thereafter resulting from negligent operation of such motor vehicle by another, but the purchaser or transferee to whom possession was delivered shall be deemed the owner. The provisions of subsection 2 of section 321.45 shall not apply in determining, for the purposes of fixing liability hereunder, whether such sale or transfer was made.
[3] Trial court properly placed the burden of proof on the issue of a valid § 321.238 inspection upon plaintiff. We conclude that on the basis of this record there is substantial evidence to support the trial court's finding that the vehicle had not passed the required inspection. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918486/ | 101 B.R. 696 (1989)
In re Billy Joe PLASTER, SSN XXX-XX-XXXX, Betty June Plaster, SSN XXX-XX-XXXX, Debtors.
Bankruptcy No. 88-71102.
United States Bankruptcy Court, E.D. Oklahoma.
February 7, 1989.
Ronald Walker, Okmulgee, Okl., for debtors.
ORDER
JAMES E. RYAN, Bankruptcy Judge.
On this 7th day of February, 1989, Debtors' Motion to Clarify Order came before this Court for consideration and resolution. The Debtors seek a clarification of this Court's Order issued from the bench during a hearing on confirmation of their Chapter 13 Plan conducted December 14, 1988.
After review of the Motion and the applicable case law in this area, we FIND:
1. Debtors are the owners of a 1986 Oak Creek Mobile Home which is mortgaged to creditor Shelter America. This mobile home is admittedly used as the Debtors' principal residence. Under the terms of the Debtors' Chapter 13 Plan filed on September 16, 1988, the Debtors seek to modify the terms of their agreement with Shelter America pursuant to 11 U.S.C. § 1322(b)(2). The value of the mobile home is listed in the Debtors' Petition and Plan at $10,000 with the creditor's security interest in said mobile home being placed at $30,000.
2. The Debtors' attempted modification stems from § 1322(b)(2) wherein it states:
"(b) . . . the Plan may
*697 (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence . . . "
(Emphasis added)
It is apparent from the legislative history of this Section that Congress intended precisely what it wrote; that is, modification could be accomplished "except claims wholly secured by real estate mortgages." See S.Rep. No. 95-989, 95th Cong., 2d Sess. 141 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5927.
Thus, the issue presented for consideration is whether a mobile home is deemed realty or personalty for the purpose of interpretation of the above referenced Section of the Bankruptcy Code.
3. The determination of whether this property is real or personal in nature is governed by the applicable state law. See 5 Collier on Bankruptcy 1322.06 at 1322-14 (15th Ed.1980) and In the Matter of Robert L. Colver, 13 B.R. 521, 7 B.R.Ct.Dec. (CRR) 859 at 860 (Bankr.D.Nev.1981).
4. Under Title 47 governing motor vehicles in the Oklahoma Statutes, a "manufactured home" is defined as:
"a structure, transportable in one or more sections, which, in the traveling mode, is eight (8) body feet or more in width or forty (40) body feet or more in length, or, when erected on site, is three hundred twenty (320) or more square feet, and which is built on a permanent chasis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electric systems contained thereon."
That Section further defines the term "mobile home" as "a manufactured home transportable in one section." Thus, the mobility aspect of the structure is emphasized and the placement of this particular definition in the Title governing motor vehicles seems to imply the characteristics of personalty to a mobile home.
5. Another method of interpreting the intent under Oklahoma law for the status of a mobile home is the method in which taxation is imposed. Under Title 68, § 2101 governing revenue and taxation, a "manufactured home" is defined as "every vehicle defined as a manufactured home in § 22.1 of Title 47 of the Oklahoma Statutes."
Former § 22.1 of Title 47 is presently § 1-123 quoted above.
A manufactured home is levied in excise tax similar to that done with other motor vehicles. Okla.Stat.Ann. tit. 68, § 2104.3 (West Supp.1988). Further, the homestead exemption available under Okla.Stat.Ann. tit. 68, § 2406 (West Supp.1988) defines the "homestead" as "the actual residence of a natural person who is a citizen of the State of Oklahoma . . ." This would seem to ambiguously include a mobile home or manufactured home under said exemption. However, it has been determined that § 1-123 of Title 47 relating to the licensing of mobile homes does not allow a person owning a mobile home and utilizing it as a permanent residence to claim homestead exemption for ad valorem tax purposes when such person does not own the real estate upon which the mobile home is parked. Opinion of the Attorney General No. 69-308 (Nov. 10, 1969). There appears to have been no decision by a Court of competent jurisdiction to alter this opinion.
6. If a particular mobile home satisfies the definition set forth under the Oklahoma Statutes, it is the considered opinion of this Court that said mobile home is personalty and thus the mortgage on said mobile home may be modified under § 1322(b). However, when a mobile home loses the mobility aspect of its character, and becomes affixed to a particular parcel of real estate, and further if the owner of the mobile home and the real estate are in fact the same and the mobile home is used as the principal residence of the owner, said mobile home may in fact be deemed realty under this limited set of circumstances.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579767/ | 12 So.3d 170 (2007)
FIVE STAR FOOD SERV., INC.
v.
JOSEPH HENRY GREEN.
No. 2051012.
Court of Civil Appeals of Alabama.
April 16, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Dismissed on motion of appellant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579786/ | 392 F.Supp. 90 (1975)
Alan Roy HOLLANDER
v.
SEARS, ROEBUCK & CO.
Civ. No. H-74-398.
United States District Court, D. Connecticut.
March 27, 1975.
*91 Alan Roy Hollander, pro se.
William S. Rogers, Louis R. Pepe, Hartford, Conn., for defendant.
RULING ON DEFENDANT'S MOTION TO DISMISS
BLUMENFELD, District Judge.
This is a pro se action brought pursuant to 42 U.S.C. § 1981 (1970) by the plaintiff, a white student at Wesleyan University in Middletown, Connecticut, who alleges that he was subjected to racial discrimination by the defendant, Sears, Roebuck & Co., as a result of its refusal to consider him for a position in the Sears Summer Internship Program for Minority Students. The defendant has moved to dismiss the action on three distinct grounds.
The complaint alleges that on December 7, 1973 the defendant conducted recruiting interviews for its summer internship program at Wesleyan University, but denied the plaintiff such an interview solely because he was white and not a member of a minority group. Following this refusal, the plaintiff on December 11, 1973 sent letters of complaint to both the Connecticut Commission on Human Rights and Opportunities (hereinafter "Commission") and the United States Equal Employment Opportunity Commission (hereinafter "EEOC") in Boston, Massachusetts. The Connecticut Commission investigated the complaint and on June 19, 1974 dismissed it without a hearing on the basis of insufficient evidence of racial discrimination. On July 16, 1974 the plaintiff appealed the Commission's decision to the Court of Common Pleas in Hartford, but on November 20 that court sustained a plea in abatement[1] and the action was dismissed. The complaint before the EEOC was withdrawn by the plaintiff on January 13, 1975, only six days following his receipt of that commission's notification of readiness to investigate the complaint. The instant action was filed on December 20, 1974 and alleges a violation of 42 U.S.C. § 1981 (1970).[2] Jurisdiction is grounded in 28 U.S.C. § 1343(4) (1970).
I.
The defendant's principal claim is that § 1981 does not provide a cause of action for whites who are the alleged victims of racial discrimination. While there is some support for this broad claim, see Ripp v. Dobbs Houses, Inc., 366 F.Supp. 205 (N.D.Ala.1973); Balc v. United Steelworkers of America, 6 Employment Practices Decisions ¶ 8948 (W.D.Pa. 1973), aff'd without opinion, 503 F.2d 1398 (3d Cir. 1974); Perkins v. Banster, 190 F.Supp. 98 (D.Md.1960), aff'd, *92 285 F.2d 426 (4th Cir. 1960), I do not agree with it.
It is true that the statute provides that "all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . .." (emphasis added), but I do not understand this to mean, as the defendant maintains, that only non-whites may sue under § 1981. A review of the relevant legislative history of § 1 of the Civil Rights Act of 1866, 14 Stat. 27[3] from which § 1981 was ultimately derived provides strong support for the position that the phrase "as is enjoyed by white citizens" was not intended to restrict the availability of this cause of action to non-whites.[4]
As originally passed by the Senate, the bill which eventually became § 1 of the 1866 Act did not contain the questioned phrase. It was added by amendment in the House. See Georgia v. Rachel, 384 U.S. 780, 791, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). During the Senate debates on that original bill, Senator Lyman Trumbull of Illinois, the floor manager, made it quite explicit that the bill was intended to protect the rights of whites, as well as blacks. In response to a charge by one of the bill's opponents that it was outrageous to provide federal protection for blacks that had never been accorded whites, Senator Trumbull stated:
"Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, *93 a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?" Cong.Globe, 39th Cong., 1st Sess. 599 (1866).
Of course, this statement was made before the House amended the bill to include, inter alia, the phrase "as is enjoyed by white citizens." However, when the bill was resubmitted to the Senate for consideration of the House amendments, the following colloquy took place between Senator Trumbull and Senator Van Winkle of West Virginia:
"Mr. VAN WINKLE. There seems to be an incongruity in this language to which I wish to call the attention of the chairman of the committee. The clause commences with the words `and such citizens.' As I understand those words they include all persons who are or can be citizens, white persons and all others. The clause then goes on to provide that `such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, shall have the same right to make and enforce contracts,' &c., `as is enjoyed by white citizens.' It seems to me these words are superfluous. The idea is that the rights of all persons shall be equal; and I think the clause, leaving out these words, would attain the object. This is merely a verbal criticism. I think the bill is incongruous in expression as it stands.
"Mr. TRUMBULL. I quite agree with the Senator from West Virginia that these words are superfluous. I do not think they alter the bill. I think the bill would be better without them, but they have been adopted by the House of Representatives. We did not think they altered the meaning of the bill; and we did not think it worth while to send the bill back just because these words were inserted by the House. They thought there was some importance in them and have inserted them; and as in the opinion of the committee which examined this matter they did not alter the meaning of the bill, the committee thought proper to recommend a concurrence, and I hope the Senate will concur in it." (Emphasis added). Cong.Globe, 39th Cong., 1st Sess. 1413 (1866).
Without further debate, the amendment was approved by the Senate and ultimately the entire bill, as amended, was passed. Thus, the history of this legislation in the Senate clearly reflects an understanding that the act was to protect the rights of all citizens notwithstanding the amendatory language inserted by the House.
Nor is there anything in the debates in the House with regard to that phrase which would undercut the Senate's understanding. The phrase was added to the bill without debate on the floor of the House by motion of Congressman James F. Wilson of Iowa, the bill's floor manager. Cong.Globe, 39th Cong., 1st Sess. 1115 (1866). Although Congressman Wilson provided little explanation for his amendment, his subsequent remarks in the course of general debate provide support for the view that the language was not intended to restrict the bill's coverage to non-whites alone:
"Mr. Speaker, if all our citizens were of one race and one color we would be relieved of most of the difficulties which surround us. This bill would be almost, if not entirely, unnecessary, and if the States, seeing that we have citizens of different races and colors, would but shut their eyes to these differences and legislate, so far at least as regards civil rights and immunities, as though all citizens were of one race and color, our troubles as a nation would be well-nigh over. But such is not the case, and we must do as best we can to protect our citizens, from the highest to the lowest, from the whitest to the blackest, *94 in the enjoyment of the great fundamental rights which belong to all men." (Emphasis added). Cong. Globe, 39th Cong., 1st Sess. 1118 (1866).
In light, then, of this legislative history, it is quite clear that § 1981 should not be read as only providing a cause of action for non-whites. The phrase "as is enjoyed by white citizens" was apparently intended only "to emphasize the racial character of the rights being protected," Georgia v. Rachel, supra, 384 U.S. at 791, 86 S.Ct. at 1789, and not to impose a limitation upon the scope of the protection afforded by § 1981 to "all persons within the jurisdiction of the United States." 42 U.S.C. § 1981. Although the rights enjoyed by whites are used as the measuring stick under § 1981, whites themselves may be denied the rights which are normally available to members of their race. When that occurs, within the scope of activities protected by § 1981, and it is a result of racial discrimination, § 1981 provides them with a cause of action. See WRMA Broadcasting Co. v. Hawthorne, supra; Gannon v. Action, 303 F.Supp. 1240 (E.D.Mo.1969), aff'd in part, remanded in part on other grounds, 450 F.2d 1227 (8th Cir. 1971); Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894 (E. D.Mo.1969); cf. Walker v. Pointer, supra.[5] And to read § 1981 in this way complies with the well-known and wise rule of statutory construction enunciated by Judge Learned Hand in Federal Deposit Ins. Corp. v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943):
"There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed; nor any surer mark of over solicitude for the letter than to wince at carrying out that purpose because the words used do not formally quite match with it."
II.
The remaining grounds of the defendant's motion have little merit. The defendant maintains that before commencing this action under § 1981 the plaintiff was required to exhaust his administrative remedies before the EEOC. See 42 U.S.C. § 2000e-5 (1970). This argument was considered and definitively rejected by the Second Circuit in Gresham v. Chambers, 501 F.2d 687, 690-691 (1974).
Lastly, the defendant argues that the decisions of the Connecticut Commission and the Court of Common Pleas preclude further litigation of this issue under the doctrines of res judicata and collateral estoppel. Whether employment discrimination proceedings in these state forums can ever bar relitigation in federal court of a discrimination claim under § 1981 need not be decided here.[6] It is *95 clear that the nature of the state proceedings were such that neither res judicata nor collateral estoppel have any application to the instant case.
Administrative determinations may be given res judicata effect "[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate . . .." United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966). However, it is clear that this is only true where "both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings." Id.; see Paramount Transport Systems v. Chauffeurs Local 150, 436 F.2d 1064 (9th Cir. 1971); United Engineers & Constructors, Inc. v. International Bhd. of Teamsters, 363 F.Supp. 845 (D.N.J. 1973); International Wire v. Electrical Workers Local 38, 357 F.Supp. 1018 (N. D.Ohio 1972), aff'd, 475 F.2d 1078 (6th Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); Shell Chemical Co. v. Teamster Local 676, 353 F. Supp. 480 (D.N.J.1973). In the instant case that standard has not been satisfied. An investigator of the Connecticut Commission in accordance with Conn.Gen.Stat.Ann. § 31-127 (Supp. 1975) undertook an investigation of the plaintiff's charges, unilaterally determined that they lacked evidentiary support and dismissed them. No hearing was conducted and the plaintiff was not otherwise given an opportunity to argue his version of the facts. Under those circumstances, the Commission's determination cannot be given res judicata or collateral estoppel effect. See also James L. Saphier Agency, Inc. v. Green, 293 F.2d 769, 773 (2d Cir. 1961).
Nor can any such effect be given to the action taken by the Court of Common Pleas. That court's dismissal of the plaintiff's appeal was not a decision on the merits and thus does not constitute a bar to further litigation. Restatement of Judgments § 49 (1942). Furthermore, the failure of the plaintiff to appeal the court's dismissal to the Connecticut Supreme Court does not, as the defendant argues, bar this action. "[T]here is no doctrine of exhaustion of judicial remedies. If a judgment of dismissal is rendered on jurisdictional grounds, the losing party may accept it; and, instead of seeking a review, may institute another action where one will not be met by the jurisdictional bar." Illinois Cent. R. R. Co. v. Mississippi Pub. Serv. Comm'n, 135 F.Supp. 304, 306 (S.D.Miss.1955); Kipbea Baking Co. v. Strauss, 218 F.Supp. 696, 699 (E. D.N.Y.1963).
Accordingly, the defendant's motion to dismiss is denied, and it is
So ordered.
NOTES
[1] The plea was based upon untimely and improper service upon the defendant in that action.
[2] 42 U.S.C. § 1981 (1970) provides:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
[3] Act of April 9, 1866, c. 31, § 1, 14 Stat. 27, re-enacted by § 16 of the Enforcement Act of 1870, Act of May 31, 1870, c. 114, § 16, 16 Stat. 140, 144, and codified in §§ 1977 and 1978 of the Revised Statutes of 1874, now 42 U.S.C. §§ 1981 and 1982.
Section 1 provided in relevant part:
"[A]ll . . . citizens of the United States . . . of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."
[4] Although the defendant only asserts that § 1981 was not intended to provide whites with a cause of action, it might be argued that Congress lacked the power under the thirteenth amendment, which § 1981 in its original form was enacted to implement, see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), to pass protective legislation for whites. However, the colorblind nature of the thirteenth amendment was well discussed in Walker v. Pointer, 304 F.Supp. 56 (N.D.Tex.1969), a case considering the availability of § 1982, see note 3 supra, to white litigants:
"The discussion of the Court in Jones indicates that the institution of slavery prompting the Thirteenth Amendment was ordinarily associated with the black man. Yet whites too have historically been susceptible to enslavement in many countries throughout the centuries. In this country white slavery was known to exist during the antebellum period in the South. Current statutes punishing practices relating to slavery continually refer to the victimization of `any person.' 18 U.S.C. §§ 1581-1588. The bar against involuntary servitude has been invoked by the courts in numerous contexts where race is immaterial." Id. at 58 (footnotes omitted).
See WRMA Broadcasting Co. v. Hawthorne, 365 F.Supp. 577 (M.D.Ala.1973). As Congress clearly has the power to protect whites from involuntary servitude and slavery, there can be little doubt that it also has the power to protect whites from "all badges and incidents of slavery." Jones v. Alfred H. Mayer Co., supra 392 U.S. at 439, 88 S.Ct. at 2203.
[5] The position that § 1981 protects all persons who are the victims of racial discrimination is implicitly supported by a number of cases which have held that whites who allege nonracially motivated discrimination do not have standing under § 1981, because "[t]he plain purpose of [the statute] is to provide for equality of rights as between persons of different races." Agnew v. City of Compton, 239 F.2d 226, 230 (9th Cir. 1956), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957); see Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N. D.Cal.1973); Willis v. Chicago Extruded Metals Co., 358 F.Supp. 848 (N.D.Ill.1973); Abshire v. Chicago and Eastern Ill. R.R. Co., 352 F.Supp. 601 (N.D.Ill.1972); Marshall v. Plumbers Local 60, 343 F.Supp. 70 (E.D.La.1972).
However, it has also become clear that § 1981 provides a cause of action for persons discriminated against on the basis of alienage. See Graham v. Richardson, 403 U.S. 365, 377, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Takahashi v. Fish and Game Comm'n, 334 U.S. 410, 419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Guerra v. Manchester Terminal Corp., 498 F.2d 641, 653-654 (5th Cir. 1974).
[6] A series of cases have held that state adjudications do not preclude subsequent actions brought pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. See, e.g., Batiste v. Furnco Construction Corp., 503 F.2d 447 (7th Cir. 1974); Voutsis v. Union Carbide Corp., 452 F.2d 889 (2d Cir. 1971), cert. denied, 406 U.S. 918, 92 S. Ct. 1768, 32 L.Ed.2d 117 (1972). Several other courts have held that decisions of the National Labor Relations Board dealing with employment discrimination in the context of violations of the National Labor Relations Act are not to be accorded res judicata effect so as to prevent subsequent Title VII actions. See Willis v. Chicago Extruded Metals Co., supra; cf. Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125 (6th Cir. 1971). Different factors, however, may be involved in deciding the issue with regard to § 1981 actions. Cf. Lombard v. Board of Educ., 502 F.2d 631 (2d Cir. 1974), cert. denied, ___ U.S. ___, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579795/ | 12 So.3d 435 (2009)
HEIRS OF Bobbie JACKSON, Plaintiff-Appellant
v.
Dr. Richard M. O'DONOVAN, et al., Defendants-Appellees.
No. 44,314-CA.
Court of Appeal of Louisiana, Second Circuit.
May 13, 2009.
*436 S. Douglas Busari & Associates, by S. Douglas Busari, Tallulah, for Appellant.
Nelson, Zentner, Sartor & Snelling, LLC, by F. Williams Sartor, Jr., Monroe, for Appellees.
Before STEWART, GASKINS & PEATROSS, JJ.
STEWART, J.
The trial court granted an exception of prescription filed by the defendant doctors in response to the initiation of medical review panel proceedings by the heirs of the decedent, Bobbie Jackson. Finding that the complaint is prescribed on its face and that the plaintiffs failed to prove that their action had not prescribed, we affirm.
FACTS
The plaintiffs, identified as the "Heirs of Bobbie Jackson," filed a complaint on March 19, 2008, to initiate medical review panel ("MRP") proceedings against the defendants, Dr. Richard M. O'Donovan, Dr. Michael R. Hand, and Dr. Walter M. Sartor concerning their treatment of Ms. Jackson and their alleged failure to diagnose an abdominal mass as cancer. The complaint identifies the heirs as "persons of full age and majority," but does not explain their relationship to the deceased.
The complaint alleges that Dr. O'Donovan treated Ms. Jackson in June 2006, when she exhibited symptoms of weight loss, poor appetite, vomiting, and abdominal pain. Tests done on June 13, 2006, revealed a mass in Ms. Jackson's right lower abdomen, but Dr. O'Donovan did not investigate or examine the mass. Rather, on June 15, 2006, he diagnosed the mass as an asymptomatic fibroid.
Still having abdominal complaints, Ms. Jackson was admitted to St. Francis North Hospital under Dr. Hand's care on July 12, 2006. He diagnosed a gallbladder problem. On August 22, 2006, Dr. Sartor performed gallbladder removal surgery on Ms. Jackson. Although she was still complaining of abdominal pain upon discharge from the hospital, Dr. Sartor did not investigate its cause.
The complaint further alleges that Ms. Jackson was again admitted to the hospital on September 30, 2006, at which time another physician, who is not involved in this matter, diagnosed the abdominal mass as cancer. Ms. Jackson subsequently died on February 5, 2007. According to the complaint, the death certificate issued on *437 March 21, 2007, identified the cause of death as sarcoma with metastasis.
The defendants responded to the MRP complaint by filing an exception of prescription in the district court. They argued that the plaintiffs' complaint, which was filed more than one year after the date of Ms. Jackson's death, was prescribed on its face. Therefore, they asserted that dismissal of the complaint was warranted unless the plaintiffs proved that it was not untimely.
In response, the plaintiffs offered the affidavit of Catina Jackson-Robinson, identified as an heir of Bobbie Jackson. The affidavit states that Ms. Jackson died at home and that her family was not advised of the cause of death until the death certificate was issued on March 21, 2007. According to the affidavit, the death certificate listed sarcoma cancer as the cause of Ms. Jackson's death, thereby prompting the family to inquire into her medical records, which revealed the alleged malpractice by the defendants.
The exception was heard by the trial court on September 12, 2008. The minutes indicate that the parties declined to have the proceedings recorded, thus there is no transcript to review. Upon taking the matter under advisement, the trial court rendered a judgment on October 12, 2008, dismissing the plaintiffs' claim as prescribed. The trial court determined that any damage resulting from the alleged malpractice was apparent on February 5, 2007, the date of Ms. Jackson's death. Prescription began to run on the date of death, and not on the date of the death certificate as contended by plaintiffs.
The plaintiffs' appeal followed.
APPLICABLE LAW
Prescription is a peremptory exception that must be specially pleaded. La. C.C.P. art. 927(B). The party pleading prescription ordinarily bears the burden of proof; however, if prescription is evident on the face of the plaintiff's pleadings, then the burden shifts to the plaintiff to show that the matter has not prescribed. Carter v. Haygood, XXXX-XXXX, p. 8-9 (La.1/19/05), 892 So.2d 1261, 1267; Campo v. Correa, 2001-2707, p. 7 (La.6/21/07), 828 So.2d 502, 508. Prescriptive statutes are to be strictly construed so as to favor the obligation sought to be extinguished. Carter v. Haygood, XXXX-XXXX, p. 10, 892 So.2d at 1268.
The prescriptive period for medical malpractice actions is set forth in La. R.S. 9:5628(A), which states:
A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
A health care provider against whom MRP proceedings have been initiated may raise an exception of prescription in a court of competent jurisdiction and proper venue before completion of the MRP process. La. R.S. 40:1299.47; Dixon v. Louisiana State University Medical Center, 33,036, p. 4 (La.App. 2d Cir.1/26/00), 750 So.2d 408, 411-412, writ denied, XXXX-XXXX (La.4/20/00), 760 So.2d 350.
*438 La. R.S. 9:5628(A) provides two periods for filing a malpractice action either one year from the date of the alleged act, omission, or neglect, or one year from the date of discovery so long as no more than three years have elapsed from the date of the alleged act, omission, or neglect. Campo v. Correa, 2001-2707, p. 9, 828 So.2d at 509. The first period applies when the damages are immediately apparent upon the commission of the alleged malpractice, whereas the second period is a codification of the fourth category of contra non valentem that occurs where the cause of action is not known or reasonably knowable by the plaintiff and when the damages are not immediately apparent upon commission of the alleged malpractice. Carter v. Haygood, XXXX-XXXX, p. 11, 892 So.2d at 1268.
Considering the two prescriptive periods provided by La. R.S. 9:5628, a petition alleging medical malpractice is not prescribed on its face if it is brought within one year of the date of the discovery so long as there are facts alleged with particularity to show that the plaintiff was unaware of the malpractice before the date of discovery and that the delay in filing suit was not due to some willful, negligent, or unreasonable action by the plaintiff. Campo v. Correa, 2001-2707, p. 9, 828 So.2d at 509.
In Taylor v. Giddens, 618 So.2d 834 (La.1993), the supreme court clarified the applicability of La. R.S. 9:5628 to survival actions and wrongful death actions. The court determined that La. R.S. 9:5628 applies to the survival action, which comes into existence at the time of the tortious conduct and is derivative of the malpractice victim's action. Id., at 840. The survival action, which allows the recovery of damages suffered by the victim from the time of injury until death, is dependent upon the victim having a viable malpractice claim at the time of death. Id. However, the wrongful death action, which compensates the victim's family for their own injuries resulting from the victim's death, arises when the victim dies and not at the moment of the alleged malpractice. Id. The wrongful death action is not derivative of the malpractice victim's action and is not subject to the prescriptive periods of La. R.S. 9:5628. Rather, the wrongful death action is governed by the one-year period under La. C.C. art. 3492 applicable to delictual actions and begins running on the date of the malpractice victim's death. Id., at 841. In Taylor, supra, the wrongful death action filed within one year of the malpractice victim's death was timely, but the survival action filed more than three and one-half years after the tortious act was prescribed.
DISCUSSION
With the aforementioned principles in mind, we must determine whether the complaint initiating MRP proceedings filed on March 19, 2008, is prescribed. To the extent that the plaintiffs seek damages for wrongful death, their claim is prescribed due to the fact that it was filed more than one year after the date of Ms. Jackson's death, which occurred on February 5, 2007.
Seeking reversal of the trial court's judgment, the plaintiffs argue that the survival action aspect of their malpractice claim is not prescribed. They contend that the complaint initiating MRP proceedings was timely filed within one year of the date of discovery of the malpractice and certainly within the three-year limit of La. R.S. 9:5628. The date of discovery occurred, according to plaintiffs, on March 21, 2007, when the death certificate identifying the cause of death as sarcoma with metastasis was issued. Upon learning that Ms. Jackson had died from cancer, her *439 heirs were prompted to examine her medical records, which revealed the defendants' alleged failure to diagnose Ms. Jackson with cancer.
As stated, a medical malpractice action brought within one year of the date of discovery is not prescribed on its face so long as the petition alleges facts with particularity to show that the plaintiff was unaware of the malpractice before the alleged date of discovery and that the delay in filing was not due to the plaintiff's willfulness, negligence, or unreasonableness. Campo v. Correa, 2001-2707, p. 9, 828 So.2d at 509. For prescription to begin, a plaintiff need only have constructive knowledge of facts that would indicate to a reasonable person that he or she was a tort victim. Campo v. Correa, 2001-2707, p. 11-12, 828 So.2d at 510. This means notice of sufficient facts to excite attention and call for inquiry. Id. There is no requirement that the plaintiff or injured party must be informed of possible malpractice by an attorney or medical practitioner before prescription begins to run. Abbott v. Louisiana State University Medical Center-Shreveport, 35,693, p. 6 (La. App. 2d Cir.2/27/02), 811 So.2d 1107, 1111, writ denied, XXXX-XXXX (La.5/31/02), 817 So.2d 104.
The petition in this matter is the complaint initiating the MRP proceedings filed on March 19, 2008. Contrary to the plaintiffs' claim that they did not discover the alleged malpractice until the issuance of the death certificate prompted inquiry, the allegations set forth in their complaint point to the date of discovery as September 30, 2006, when a cancer "work up" was done on Ms. Jackson and the abdominal mass was found to be a "sarcomatous degeneration." At this point, it was apparent that the defendants may have failed to properly diagnose Ms. Jackson's complaints about abdominal pain and the etiology of the abdominal mass previously revealed in a CT scan on June 13, 2006. The diagnosis of cancer made on or immediately after September 30, 2006, would excite the attention of a reasonable person and call for an inquiry about possible malpractice by the defendants who had previously treated Ms. Jackson for abdominal complaints. Upon Ms. Jackson's death on February 5, 2007, her viable malpractice claim was transmitted to her heirs who then had to file their survival claim within one year of her death and within three years of the date of the tortious conduct.
Based on the allegations made in the complaint, the plaintiffs' survival action/malpractice claim is prescribed on its face, as asserted by the defendants in exception of prescription. The burden then shifted to the plaintiffs to show that the matter had not prescribed. To meet the burden of proving their claim had not prescribed, the plaintiffs offered the affidavit of Catina Jackson-Robinson. The affidavit, which simply alleges that the heirs were unaware of the cause of death and potential malpractice until the death certificate prompted them to inquire into Ms. Jackson's medical records, does not alone suffice to show that the claim had not prescribed. If so, any plaintiff could easily defeat an exception of prescription by claiming he did not know.
The date that the malpractice occurred, or the date the deceased knew or should have known of the malpractice, is the date prescription began to run. According to the complaint, the abdominal mass was diagnosed as some type of cancer as early as September 30, 2006, at which time the facts suggesting the existence of a potential malpractice claim were apparent and discoverable. It was incumbent upon the plaintiffs to explain whether or not Ms. Jackson was aware of her condition and the actionable malpractice claim. If Ms. *440 Jackson did not know and should not have known that she had an actionable malpractice claim, then plaintiffs had to explain why they did not learn of Ms. Jackson's condition and actionable malpractice claim prior to the issuance of the death certificate. Though the plaintiffs' complaint suggests that Ms. Jackson should have been aware of her actionable malpractice claim by September 30, 2006, when she was diagnosed with cancer, plaintiffs offered nothing to show that Ms. Jackson had no knowledge of her claim or to explain what knowledge, if any, they had about her medical condition and treatment in the months prior to her death. Not even the death certificate was included in the record. We find that the bare allegation that they did not know about the malpractice until after the death certificate was issued does not suffice to show that the plaintiffs' survival action is not prescribed.
Although La. C.C.P. art. 934 allows for amendment of the petition when the grounds of the peremptory objection may be removed by amendment, we do not find this article applicable to allow plaintiffs to plead facts supporting their claim of late discovery of actionable malpractice. Such facts should have been established by plaintiffs as part of their burden of proof before the trial court on the exception of prescription. See Holmes v. LSU/E.A. Conway Medical Center, 43,662 (La. App.2d Cir.10/22/08), 997 So.2d 605 and Dixon v. LSU Medical Center, supra.
CONCLUSION
For the reasons explained, we affirm the trial court's judgment. Costs of appeal are assessed against the plaintiffs.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919939/ | 91 B.R. 1006 (1988)
In re JERRY-SUE FASHIONS, INC., d/b/a Miss Tee For Me, J & L Concepts Toll Free and American Sweats, Debtor.
JERRY-SUE FASHIONS, INC., a Florida corporation, Plaintiff,
v.
I.T. ASSOCIATES, INC., Defendant.
Bankruptcy No. 88-00517-BKC-SMW, Adv. No. 88-0301-BKC-SMW-A.
United States Bankruptcy Court, S.D. Florida.
October 20, 1988.
*1007 Thomas R. Lehman, Friedman & Lehman, P.A., Miami, Fla., for IT Associates, Inc.
Ted Bartelstone, Hollander Schiffrin & Bartelstone, Miami, Fla., for debtor.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE having come before the Court upon the complaint of Jerry-Sue Fashions, Inc. (the "debtor") to recover preferential payments made to I.T. Associates, Inc. (the "creditor"), pursuant to 11 U.S.C. § 547(b) and § 550(a), and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel, and being otherwise fully advised in the premises does hereby make the following Findings of Fact and Conclusions of Law:
Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1334(b) and § 157(a)(b) and the district court's general order of reference. This is a core proceeding in which the Court is authorized to hear and determine all matters relating to this case in accordance with 28 U.S.C. § 157(b)(2)(F).
The debtor was a manufacturer of clothing and the creditor was one of its trade creditors, supplying fabric to the debtor since October, 1986. Each time the debtor placed an order for fabric, the creditor would issue an invoice to the debtor for the payment of the goods ordered and at the same time or soon thereafter, ship the goods to the debtor. A total of thirty-one invoices, (the last one dated November 20, 1987), were issued by the creditor in connection with sales of fabric to the debtor. Although the payment terms contained on the invoices required payment by the debtor within thirty days of the date of the invoice, the transactions between the creditor and the debtor were governed by a more extended credit terms. For example, of the thirty-one invoices issued in connection with shipments of goods to the debtor, only one invoice was paid on or before thirty days after the debt was incurred. Fourteen of the invoices issued to the debtor by the creditor were not paid until thirty to forty days after invoice date and eighteen of the invoices were not paid until forty to sixty days after invoice date.
The debtor commenced this action to avoid and recover four payments, totalling $10,050.00 which were made to the creditor within ninety days of the filing of the involuntary petition in this case. The four payments made to the creditor occurred between forty-nine and seventy-four days after the indebtedness was incurred by the debtor. As with all payments made by the debtor to the creditor, the four payments were made by checks drawn on the debtor's operating account. Furthermore, at the time the four payments were made, the debtor had not ceased all or a portion of its business.
In defense of the debtor's preference claim, the creditor argues that the payments made by the debtor fall under the preference exception contained in 11 U.S.C. § 547(c)(2). Under 11 U.S.C. § 547(c)(2) payments made by the debtor within the ninety day preference period may not be avoided if: (1) the payments were made on debts incurred in the ordinary course of business of the debtor and creditor; (2) the payments were made in the ordinary course of business between the debtor and the creditor; and, (3) the payments were made according to ordinary business terms.
*1008 Section 547(c)(2) protects payments which do not result from "unusual" debt collection practices. Marathon Oil Company v. Flatau (In re Craig Oil Co.), 785 F.2d 1563 (11th Cir.1986). In determining whether a transferee has established the requirements of the preference exception for a payment of a debt incurred by the debtor in the ordinary course of business, the Court will consider the parties prior course of dealing, the amount of the payment, the timing of the payment, and the circumstances surrounding the payment. Newton v. Ed's Supply Co., Inc. (In re White), 58 B.R. 266 (Bankr.E.D.Tenn.1986). Thus, evidence of "unusual" debt collection practices not insulated by 11 U.S.C. § 547(c)(2), include changes in the method of payment by the debtor to the creditor (for example, a change from payments made by check to payments made by cashier's check or cash), payments made after the debtor has ceased all or a portion of its business operations and payments which are late, relative to the parties' prior course of dealing.
Although the invoices issued by the creditor contained thirty day payment terms, the parties established a course of dealing pursuant to which the debtor was allowed to exceed the thirty day payment terms considerably. The majority of the debtor's payments to the creditor were forty to sixty days after the indebtedness was incurred and in one instance, sixty-two days after the indebtedness was incurred. The Court finds that the four payments made by the debtor were not late payments when viewed in the context of the party's prior course of dealing, and therefore, were made according to ordinary business terms between the debtor and creditor.
In addition to being made according to ordinary business terms, the four payments sought to be avoided in this action were made in the ordinary course of business between the debtor and the creditor. First, the four payments were made by check drawn on the debtor's operating account, as was customary by the debtor. Therefore, the manner of payment was not at variance with the parties' course of dealing. Second, the debtor had not ceased all or a portion of its business operations at the time the four payments were made. Therefore, the Court finds that the four payments which the debtor seeks to recover from the creditor were made in the ordinary course of its business and thereby are not recoverable by the debtor under 11 U.S.C. § 547(b).
Based on the foregoing, this Court finds that the four payments totalling $10,050.00 which the debtor seeks to avoid as preferential payments under 11 U.S.C. § 547(b) come within the ordinary course of business exception and cannot be recovered by the debtor.
A separate Final Judgment of even date has been entered in conformity herewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579960/ | 12 So. 3d 761 (2009)
DUNKEL-MARTINEZ
v.
WASTE MANAGEMENT INC. OF FLORIDA.
No. 5D08-3292.
District Court of Appeal of Florida, Fifth District.
July 14, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581172/ | 147 N.W.2d 6 (1966)
181 Neb. 64
Glen D. MARTINDALE, Appellant,
v.
STATE of Nebraska, DIRECTOR OF MOTOR VEHICLES, Appellee.
No. 36323.
Supreme Court of Nebraska.
December 9, 1966.
Neal D. Youmans, W. H. Kirwin, Scottsbluff, for appellant.
Clarence A. H. Meyer, Atty. Gen., Chauncey Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, SMITH and McCOWN, JJ., and FLORY, District Judge.
SPENCER, Justice.
This is an appeal from the sustaining of the State's demurrer to the petition on appeal of Glen D. Martindale from an order of the Director of Motor Vehicles revoking his operator's license.
A general demurrer tests the substantive legal rights of the parties upon admitted facts including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded. Central Nebraska Public Power & Irr. Dist. v. Walston, 140 Neb. 190, 299 N.W. 609.
There is no dispute as to the pleaded facts. The operator's license of appellant was ordered revoked on October 22, 1965, *7 because of an accumulation of 12 points. Included in those points were two resulting from a conviction on February 5, 1964, for operating a motor vehicle on January 21, 1964, when he did not have an operator's license in his possession.
On June 27, 1963, The Director of Motor Vehicles issued an order revoking appellant's license. On that occasion, appellant secured a restraining order in the district court for Scotts Bluff County and the revocation was held in abeyance pending trial. While the action was pending, appellant's license expired and he was unable to secure a renewal. On November 1, 1963, a judgment was entered in the district court for Scotts Bluff County nullifying the order of revocation. A copy of that judgment was transmitted to the Director of Motor Vehicles. On January 9, 1964, the director issued a letter to effectuate the judgment of November 1, 1963. Appellant alleges that this letter was not received by him until after January 21, 1964. On that day, he was arrested for driving without having an operator's license in his possession. Appellant applied for and received an operator's license subsequent to his arrest on January 21, 1964. His conviction on February 5, 1964, resulted in a loss of two points pursuant to section 39-7,128, R.S.Supp., 1965. Subsequently, and before October 22, 1965, appellant accumulated an additional 10 points, and on that date the Director of Motor Vehicles revoked his operator's license. This the director was required to do. Section 39-7,129, R.S.Supp., 1965, provides in part: "* * * whenever it shall come to the attention of the director that * * * any * * * person has, as disclosed by the records of such director, accumulated a total of twelve or more points within any period of two years, as set out in section 39-7,128, the director shall summarily revoke (1) the license and privilege of such person to operate a motor vehicle in this state * * *."
Appellant challenges the propriety of assessing two points for his failure to have an operator's license in his possession on January 21, 1964, alleging that the failure was due entirely to an unreasonable delay on the part of the Director of Motor Vehicles of the State of Nebraska in issuing the order rescinding the previous order of revocation. Until this was done, appellant was not able to secure a current operator's license. Appellant asserts that the two points assessed as the result of this conviction are therefore wrongfully charged to his operator's license, and that in justice and equity they should be eliminated. Appellant urges that in equity that which should have been done must be considered as though it were actually done. If this were true, then appellant's point total would be 10 rather than 12, and his license would not be subject to revocation. There is no merit to appellant's contentions.
Conceding an unreasonable delay on the part of the Director of Motor Vehicles, appellant was not without remedy. He had available the right to an appropriate action to compel the director to act, assuming the delay to be unreasonable. He was aware that he was not privileged to operate a motor vehicle on the public highways of this state until he secured a current operator's license. S. 60-413, R.R.S.1943. Instead of resorting to proper legal procedure, he knowingly flaunted the law.
This case is controlled by Bradford v. Ress, 167 Neb. 338, 93 N.W.2d 17, in which we held: "The validity of a prior judgment of conviction of the operator of a motor vehicle for traffic violations, which judgment has been duly certified in regular form and sent to the director of motor vehicles with nothing appearing thereon indicating invalidity, cannot be collaterally attacked in an appeal to review mandatory and ministerial action of such director in revoking the license of such person to operate a motor vehicle in this state."
The judgment of the trial court is correct and is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579831/ | 12 So. 3d 181 (2007)
ANDREW WALKER
v.
CITY OF SELMA AND VALERIA JONES.
No. 2060774.
Court of Civil Appeals of Alabama.
June 1, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Transferred to Sup. Ct. for lack of subject-matter jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/770436/ | 226 F.3d 885 (7th Cir. 2000)
United States of America, Plaintiff-Appellee/Cross-Appellant,v.Jim Gee and William C. Norris, Defendants-Appellants/Cross-Appellees.
Nos. 99-2348, 99-2622, 99-2623, 99-3093
In the United States Court of Appeals For the Seventh Circuit
Argued April 3, 2000Decided September 11, 2000
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 393-CR-13RM--Robert L. Miller, Jr., Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Bauer and Williams, Circuit Judges.
Williams, Circuit Judge.
1
The United States government charged William C. Norris and Jim Gee in a 32-count indictment in connection with a scheme to assist in the unauthorized reception of cable television signals.1 Before submitting the case to the jury, the government dropped two of the counts against Norris. The jury returned guilty verdicts on all remaining counts. Defendants appeal their convictions and their sentences. The government appeals defendants' sentences. For the reasons stated below, we reverse defendants' convictions on mail fraud, wire fraud, and conspiracy. We affirm Norris's conviction for assisting unauthorized reception of cable service, but we remand for resentencing consistent with this opinion.
2
* Little of the evidence at trial was in dispute. The government charged, and the defense readily admitted, that Gee and Norris were involved in the production of equipment that buyers could use to transform cable television converters into devices that could descramble all encrypted cable programming. A cable television subscriber who acquires a descrambler from a source other than the cable company can access premium programming without paying the cable company any additional fees. The evidence showed that Bryan Corrigan, a cooperating witness, developed chips and modules that could modify cable converter boxes to descramble all encrypted cable programming. Gee took Corrigan's work product and sold it to Norris and other after-market dealers. Norris sold these chips and modules, and cable boxes modified by these chips and modules, to home viewers. These devices allow the user to, among other things, descramble and view premium cable television channels without the cable provider's permission.
3
A jury found Norris guilty of thirteen counts of wire fraud, violating 18 U.S.C. sec. 1343; five counts of mail fraud, violating 18 U.S.C. sec. 1341; seven counts of misdemeanor assisting unauthorized reception of cable service and four counts of felony assisting unauthorized reception of cable service, violating 47 U.S.C. sec. 553(a)(1); and one count of conspiracy, violating 18 U.S.C. sec. 371. The same jury found Gee guilty of ten counts of wire fraud and one count of conspiracy.
4
The district court sentenced Norris to 37 months of home confinement and imposed a fine and special assessments totaling $16,325. The court sentenced Gee to 37 months of imprisonment and imposed a fine and special assessments totaling $8,050.
II
A. Material Falsehood
5
Norris and Gee claim that their convictions on wire and mail fraud should be reversed because the government did not properly allege or prove materiality and because the court did not properly instruct on materiality. We review de novo the sufficiency of an indictment. See United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997).
6
In 1999, the Supreme Court ruled that a "scheme to defraud" under the wire and mail fraud statutes must include the element of a material falsehood. See Neder v. United States, 527 U.S. 1, 25 (1999). "[A] false statement is material if it has 'a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.'" Id. at 16 (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)).
7
Earlier in this case, in 1997, defendants filed an unsuccessful motion to dismiss, arguing, inter alia, that the indictment failed "to allege any false or misleading statements" to customers or cable companies. In response to that motion, the government acknowledged that the indictment does not base fraud charges on any misleading statements or fraudulent omissions.2 Under the law at that time, the district court correctly ruled that a material falsehood was not an essential element of the wire or mail fraud statutes.3
8
On appeal, the government argues that the indictment does in fact allege false and misleading statements.4 However, as the government acknowledged in 1997, the indictment does not allege that defendants misrepresented or concealed a material fact in aid of their scheme. All the government can point to is the language in the indictment and argue that the court should view it as a whole, rather than in a hypertechnical manner.5 The government acknowledges that the indictment does not use the words "material," "misrepresentation," or "concealment" but suggests that the indictment sufficiently apprized defendants of the nature of the charges and all essential elements, including materiality. The indictment merely alleges a "scheme to defraud," however, which the Neder court ruled insufficient. See id. at 20.
9
The government next argues that even if material falsehoods were not in the indictment, it introduced sufficient evidence of material falsehoods at trial to support the verdict. We review sufficiency of the evidence under a substantial evidence standard. See United States v. Durrive, 902 F.2d 1221, 1229 (7th Cir. 1990). We "view the evidence in the light most favorable to the government and accept circumstantial evidence as support, even sole support, for a conviction." Id. If we find insufficient evidence to support the verdict, we must reverse with instructions that the district court grant a judgment of acquittal. See United States v. Locklear, 97 F.3d 196, 199-200 (7th Cir. 1996).
10
The government claims that it introduced evidence that end-users misrepresented and concealed the use of the illegal descrambler units from cable operators. This evidence does not prove, however, that defendants misrepresented or concealed material facts. Furthermore, the government did not proffer any evidence that Norris or Gee ever induced any of their customers to make false or misleading statements to their customers' cable companies.
11
The government also points to trial testimony that demonstrated that the chips and descramblers sold by Norris and Gee were designed to allow free access to premium cable channels and to block the subscriber's descrambler unit from receiving electronic authorization instructions from the cable operator. The devices' capabilities do not, however, prove material falsehoods by Norris and Gee. The government did not proffer any evidence that defendants made any false or misleading statements. Therefore, even after viewing the evidence in the light most favorable to the government, no rational jury could have found the essential element of a material falsehood.
12
We find that the government not only failed to allege but also failed to prove that Norris or Gee made any false or misleading statements. Consequently, we reverse their mail and wire fraud convictions and remand with instructions that the district court grant a judgment of acquittal on these charges. Accordingly, we find it unnecessary to review whether the district court's jury instructions on material falsehoods were sufficient.
B. Conspiracy
13
Defendants next argue that their conspiracy convictions should be reversed on two grounds. First, they contend that the government failed to proffer substantial evidence of an agreement between Norris and Gee to violate 28 U.S.C. sec. 553(a)(1).6 Second, they argue that the district court's failure to include a buyer- seller instruction is reversible error.
1. Substantial Evidence
14
As noted above, we review sufficiency of the evidence under a substantial evidence standard. See Durrive, 902 F.2d at 1228. We also note that
15
a sufficiency of the evidence challenge is hard to win, given the standard of appellate review. We consider the evidence in the light most favorable to the government, and we must affirm the conviction so long as any rational factfinder could have found the essential elements of the offense to have been established beyond a reasonable doubt. We will overturn the verdict "only if the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt."
16
United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999) (internal citations omitted) (quoting United States v. Granados, 142 F.3d 1016, 1019 (7th Cir. 1998)).
17
The trial evidence establishes that: 1) Gee programmed chips that descrambled premium cable programming; 2) Norris regularly purchased these chips from Gee; 3) Norris installed the chips into descrambling equipment and sold the equipment or just the chips to customers and distributors; 4) Gee programmed different kinds of chips, depending on Norris's order; 5) Norris and Gee established a routine for their joint venture; 6) Norris and Gee had regular contact with each other via telephone and facsimile; 7) Gee visited Norris's shop on at least two occasions; 8) Norris and Gee collaborated by sharing instructions, warnings, and disclaimers and by having Norris train Gee's employee; and 9) after Gee found out that authorities raided Norris's shop, Gee shipped all of his cable supplies out of state. Defendants counter, however, that this circumstantial evidence suggests only that they had an arm's-length business relationship, not a conspiracy.
18
A conspiracy requires the government to prove (1) the existence of an agreement to commit an unlawful act; (2) that defendants knowingly and intentionally became members of the conspiracy; and (3) the commission of an overt act that was committed in furtherance of the conspiracy. See United States v. Lahey, 55 F.3d 1289, 1293 (7th Cir. 1995). "The existence of a mere buyer-seller relationship between [defendants, however,] without more, is not sufficient to establish a defendant's guilt. The government must prove that a defendant knowingly and intentionally joined the charged conspiracy, knowing the conspiracy's aims and intending to achieve them." Menting, 166 F.3d at 927; accord United States v. Mims, 92 F.3d 461, 465 (7th Cir. 1996); see also United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991) ("The buy-sell transaction is simply not probative of an agreement to join together to accomplish a criminal objective beyond that already being accomplished by the transaction.").
19
A conspiracy is more than a buyer-seller agreement. A conspiracy
20
is an agreement with a particular kind of object- - an agreement to commit a crime. . . . What is required for conspiracy in such a case is an agreement to commit some other crime beyond the crime constituted by the agreement itself. . . . But insofar as there was an agreement between [defendants] merely on one side to sell and on the other to buy, there was no conspiracy between them no matter what [the buyer] intended to do with the [contraband] after he bought [it]. . . . A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone.
21
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en banc); see also Direct Sales Co. v. United States, 319 U.S. 703, 709 (1943) (ruling "that one does not become a party to a conspiracy by aiding and abetting it . . . and the inference of [conspiracy] cannot be drawn merely from knowledge that the buyer will use the goods illegally").
22
To find sufficient evidence of a conspiracy, we have "looked for evidence of 'a prolonged and actively pursued course of sales coupled with the seller's knowledge of and a shared stake in the buyer's illegal venture'. . . . Other important indicia of conspiracy include 'the length of affiliation, the established method of payment, . . . the extent to which the transactions are standardized, and the demonstrated level of mutual trust.'" Menting, 166 F.3d at 928 (quoting United States v. Pearson, 113 F.3d 758, 761 (7th Cir. 1997)). If enough of these factors show more than a mere buyer-seller agreement, this court will not reverse a jury's conclusion that a conspiracy existed. See United States v. Clay, 37 F.3d 338, 342 (7th Cir. 1994); accord Pearson, 113 F.3d at 761.
23
Here, the government proffered sufficient evidence to conclude that Gee knew what Norris was doing with the chips. Moreover, over a period of 13 months, Gee and Norris had regular dealings with each other and developed a routine for their orders and payments. Defendants argue, however, that their transactions could just as easily be construed as routine commercial transactions between business associates and not as "standardized" transactions between conspirators. The supplies Gee sold to Norris and the equipment Norris sold to his customers were not contraband per se.7 Furthermore, Gee and Norris did not have a financial interest in each other's business or share in any of their business profits or losses.
24
We will not reverse the verdict if we find that the jury, when looking at the evidence in the light most favorable to the government, could have rationally determined that a conspiracy existed. See Durrive, 902 F.2d at 1229-30. While defendants' arguments have merit, a rational factfinder could find that the government established the essential elements of conspiracy beyond a reasonable doubt. Evidence of a 13-month cooperative relationship between Norris and Gee, which included standardized transactions, the sharing of disclaimers, and Norris's training of Gee's employee, supported the conspiracy allegations. Consequently, we find sufficient evidence to support the jury's conspiracy verdict.
2. Buyer-Seller Jury Instruction
25
Defendants also argue that the district court should have included a buyer-seller jury instruction. They make this argument though they did not suggest this instruction below and never argued this theory of the case to the jury. We review jury instructions not objected to at trial under a plain error standard. See United States v. Reynolds, 189 F.3d 521, 524 n.2 (7th Cir. 1999). Plain error is: (1) an error; (2) that is plain, meaning obvious or clear; and (3) that affects substantial rights. See United States v. Olano, 507 U.S. 725, 732-34 (1993). Furthermore, "[i]n order to reverse a conviction for plain error, [we] must determine . . . that the error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Mims, 96 F.3d at 465 (quoting Olano, 507 U.S. at 732).
26
District judges should inform juries that repeated transactions do not constitute a conspiracy. See United States v. Thomas, 150 F.3d 743, 745 (7th Cir. 1998). "If a jury rationally could find in the defendant's favor on some material issue, then the jury must be instructed on that subject." Id. at 746 (citing Mathews v. United States, 485 U.S. 58, 63 (1988)). Furthermore, because the line between a conspiracy and a mere buyer-seller relationship is difficult to discern, district judges should instruct juries in appropriate situations on the distinction. See Mims, 92 F.3d at 464.
27
This case presents one of those situations. The proffered evidence of a conspiracy was circumstantial and not overwhelming. The evidence was as consistent with a buyer-seller relationship as it was with a conspiracy. The instructions allowed the jury to make a guilty finding without determining whether the government had proved the existence of a conspiracy. Cf. id. at 466.
28
We have no way of knowing whether, had the jury understood the distinction between a conspiracy and a buyer-seller relationship, it would still have convicted Norris and Gee of conspiracy. Because a rational jury could find that Gee dealt with Norris without any agreement between them to commit any future crimes, the district court should have included a buyer-seller jury instruction. Moreover, the district court should have sua sponte included a buyer-seller instruction because it knew that the conspiracy evidence was weak.8
29
The district judge's reservation about the proof of a conspiracy should have alerted him to be certain that the jury correctly evaluated the evidence before determining whether a conspiracy existed. See Thomas, 150 F.3d at 745-46. This plain error substantially affected defendants' rights. The jury could have concluded that defendants had a buyer-seller relationship and thus acquitted them on the conspiracy charge. Therefore, the failure to give a buyer-seller instruction
30
affected the substantial rights of the defendants because we cannot be sure whether the jury made the factual findings of conspiratorial agreement necessary for a verdict of guilt. Though we cannot know the probability that the error changed the outcome--a properly instructed jury might, nonetheless, have determined that there was a conspiratorial agreement--we are certain that the error had a substantial potential to affect the outcome. Thus the error affected the defendants' substantial rights.
31
Mims, 92 F.3d at 466.
32
Having satisfied the prerequisites for reversal on grounds of plain error in this case, we must determine whether the error is one that "seriously affects the fairness, integrity and public reputation of judicial proceedings." Olano, 507 U.S. at 732. As we found in Mims, this is a difficult question when the evidence was sufficient to support a conspiracy conviction. See Mims, 92 F.3d at 466. However, where, as here, "the existence of a conspiratorial agreement was closely contested and conflicting evidence was presented on the issue, the failure to ensure a jury finding on this essential element undermines the essential fairness and integrity of the trial." Id. Consequently, we must reverse the conspiracy convictions.
C. Norris's Proposed Jury Instructions
33
Norris proposed several instructions to advise the jury that the cable equipment at issue in this case was not contraband or illegal per se and that this circuit had ruled in 1988 that a person could not be convicted under 47 U.S.C. sec. 553 for selling a descrambler with the intent that the buyer use it for lawful purposes.9 We review the district court's refusal to give a party's instruction by determining whether the omission prejudiced the party. See United States v. Katalinich, 113 F.3d 1475, 1482 (7th Cir. 1997).10
34
A defendant is only entitled to an instruction on his theory of defense if: (1) the defendant proposed a correct statement of the law; (2) the evidence lends some support to the defendant's theory; (3) the defendant's theory of defense is not part of the charge; and (4) the failure to include the defendant's instruction would deny him a fair trial.
35
Id. The district court rejected defendants' proposed instructions, finding that Instruction 18 properly covered the topics addressed in Norris's proposed instructions. Instruction 18 states
36
The government does not have to prove that the equipment involved in a particular count was sold for the sole and specific purpose of cable television theft, or that the equipment was actually used illegally. The government must prove that Mr. Norris intended the equipment involved in a particular count to be used for unauthorized reception of cable service, or that he acted with specific knowledge that the equipment involved would be so used.11
37
While Norris's Proposed Instruction No. 5 would have provided more direct guidance than Instruction 18, the district court's refusal to use his instruction did not prejudice Norris. His proposed instruction accurately states that cable descramblers are not per se illegal and that a person is criminally liable only if he sells the devices with the intent or specific knowledge that the buyer will use them for unauthorized purposes. Like Norris's proposed instructions, Instruction 18 states the wilfulness requirement to convict under sec. 553. Consequently, the district court's refusal to use his proposed instructions did not prejudice Norris.
38
Accordingly, we find that the district court did not err when it rejected Norris's Proposed Instructions Nos. 5 through 8. While we would have preferred Norris's Proposed Instruction No. 5, we do not find that he was prejudiced by the use of Instruction 18.
39
D. Norris's Relevant Conduct Under U.S.S.G. sec. 1B1.3
40
Defendants contend that the district court erred in its loss calculations by holding against defendants conduct not necessarily found criminal by the jury and not found criminal by the court at all. First, they maintain that because the district judge determined for purposes of his evidentiary ruling that the government had not proven its conspiracy case,12 the court should not have considered as relevant conduct any losses other than those related to the descrambler sales specifically charged in the indictment. In other words, the court should ignore any losses only attributable to the conspiracy conviction. Second, defendants maintain that losses from sales not addressed by a specific count in the indictment cannot be included as relevant conduct because the jury did not specifically find such sales illegal. While we have already ruled that defendants' conspiracy convictions must be reversed, we will offer some comments on this relevant conduct question because it will be relevant at Norris's resentencing.
41
The Supreme Court allows the sentencing court to include acts or omissions in its sentencing calculations even if the jury acquitted the defendant on those acts or omissions. See United States v. Watts, 519 U.S. 148, 157 (1997). This apparent contradiction exists because sentence calculations require a lower standard of proof than criminal convictions. "The Guidelines state that it is 'appropriate' that facts relevant to sentencing be proved by a preponderance of the evidence, and we have held that application of the preponderance standard at sentencing generally satisfies due process." Id. at 156; see also U.S.S.G. sec. 6A1.3 cmt. Given the district judge's determination prior to the jury verdict that there was not a preponderance of evidence to support the conspiracy counts, a novel question arises. May the district judge ignore acts that the jury found attributable to a defendant beyond a reasonable doubt if the judge believes that they do not pass the preponderance standard?
42
In Edwards v. United States, the Supreme Court ruled that "regardless of the jury's actual, or assumed, beliefs about the conspiracy, the Guidelines nonetheless require the judge to determine [relevant conduct]." 523 U.S. 511, 514 (1998) (emphasis added). Moreover, we have consistently held that the sentencing judge alone is left to determine all issues of relevant conduct. See United States v. Joiner, 183 F.3d 635, 643 (7th Cir. 1999); see also United States v. Bell, 154 F.3d 1205 (10th Cir. 1998); United States v. Brown, 148 F.3d 1003 (8th Cir. 1998), cert. denied, 525 U.S. 1169 (1999). The district judge may not, however, ignore specific conduct for which the jury found a defendant guilty. See Edwards, 523 U.S. at 514 (ruling that "relevant conduct" includes conduct for which the defendant is convicted).
43
The district court addressed defendants' arguments in its April 6, 1999, opinion denying defendants' motion for a new trial and denying their motion to reconsider the loss calculations. After summarizing defendants' arguments, the court concluded:
44
The court's ruling under Fed. R. Evid. 801(d)(2) (E) was not the final word on whether the charged conspiracy was proven. In count 32, the jury found Mr. Norris and Mr. Gee guilty of the conspiracy that had not been proven to the court's satisfaction in the government's case in chief. While the jury was not required to find each charged overt act to have been proven, the jury had to find that Mr. Norris and Mr. Gee agreed to assist criminal conduct. It is one thing to say as the Watts Court said, that a jury's finding that a count was not proven beyond a reasonable doubt does not preclude a sentencing judge from finding that the activity charged in the count was proven by a preponderance of the evidence. It is quite another to say (as the court believes it must to accept the defendant's argument) that a sentencing judge may disregard a jury's finding of guilt on a count when constructing a "sentencing package," see Woodhouse v. United States, 109 F.3d 347 (7th Cir. 1997), that includes that count.
45
The jury found the defendants guilty of conspiracy to assist, knowingly and willfully, in the authorized and illegal interception and reception of communications services offered over a cable system and for the purpose of commercial advantage and private financial gain. The court cannot sentence either defendant for that crime without assuming the verdict's truth, and the court cannot determine the guideline range without accepting the truth of the verdict, whatever the sentencing judge might have found under Fed. R. Evid. 104(a) at the conclusion of the government's case in chief. When it is accepted--as [it] must be accepted to impose any sentence on the conspiracy count-- that Mr. Norris and Mr. Gee agreed with each other and with others to assist the unlawful interception of cable signals, the rest of the evidence persuades the court that it is more likely than not than [sic] all of the sales reflected in the Norris Electronics invoices were part of that conspiracy. They must all be considered in determining the sentencing range.
46
(emphasis added.)
47
If the district judge concluded that it was more likely than not that the jury included the relevant conduct in its conspiracy conviction, then the judge misread Edwards and Watts. The jury could have convicted defendants of conspiracy with the commission of only one overt act. The district judge made the correct sentencing determination under Edwards and Watts, however, if he independently determined that the government proved by a preponderance of the evidence that all of the relevant conduct included in his sentencing calculations were part of the conspiracy.
48
Accordingly, at Norris's resentencing, the district judge should make an independent evaluation of the relevant conduct to include in his sentence calculations. Norris's relevant conduct includes the specific convictions that still stand--the eleven counts of assisting unauthorized reception of cable service. The district judge can also include conduct that is "part of the same course of conduct or common scheme or plan as the offense of conviction," U.S.S.G. sec. 1B1.3(a)(2); accord Edwards, 523 U.S. at 514, if the district judge finds that the government proved this other conduct by a preponderance of the evidence.
49
E. Loss Calculation Under U.S.S.G. sec. 2F1.1(b)(1)
50
The government appeals the district court's loss calculations. This loss calculation issue will resurface when the district court resentences Norris. At defendants' sentencing, the government argued that the district court should calculate loss using the formula devised by the National Cable Television Association ("NCTA"), which computes loss based on the value of the cable television programming to which the descramblers afforded unauthorized access. Under this approach, the losses attributed to Norris are $15,176,364 and to Gee are $13,233,864. Defendants urged the court to employ a method used by the government in a similar case from New Jersey, which computed loss by summing the sale prices of the equipment sold. Under this method, the losses attributed to Norris are $1,240,875 and to Gee are $1,041,510.
51
The district court adopted the defendants' approach. We review the district court's loss determinations under U.S.S.G. sec. 2F1.1(b)(1) for clear error. See United States v. Saunders, 129 F.3d 925, 929 (7th Cir. 1997). Guideline interpretations are questions of law, however, which we review de novo. Id.
52
The Guidelines increase the offense level for offenses involving fraud or deceit based on the amount of "loss." The Guidelines suggest that
53
the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information. This estimate, for example may be based on the approximate number of victims and an estimate of the average loss to each victim, or on more general factors, such as the nature and duration of the fraud and the revenues generated by similar operations. The offender's gain from committing the fraud is an alternative method that ordinarily will underestimate the loss.
54
U.S.S.G. sec. 2F1.1 cmt. 9. Courts may use the gain from participation in the fraud when the exact amount of the loss to the victim is unknown. See United States v. Craig, 178 F.3d 891, 899 (7th Cir. 1999); see also United States v. Andersen, 45 F.3d 217, 221 (7th Cir. 1995) (ruling that "the defendant's gain may provide a reasonable approximation of a victim's loss when more precise means of measuring loss are unavailable").
55
The district court found the NCTA calculation unreasonable because this calculation assumes that each purchaser used the descrambler illegally and that each purchaser used the descrambler to view all available premium programming. More important, according to the district court, the NCTA calculation assumes, without any evidence, that had Norris not sold descramblers, his customers would have purchased all of the available premium channels from the cable companies. Accordingly, the district court opted to compute loss based on defendants' gross revenue because a precise method of calculating loss was unavailable. Nothing in the government's arguments on appeal convinces us that the district court's determination was clearly erroneous. The government makes the same arguments on appeal that it did before the district court. The district court evaluated the government's arguments but found that the defendants' approach was the better method of calculating loss. The government would be well served in cases like this to include a survey or statistical sampling to support its estimate of the loss.
56
Accordingly, at Norris's resentencing, the district judge can calculate the meaning of "loss" under U.S.S.G. sec. 2F1.1 (b)(1) by using the gross revenue that Norris derived from his relevant conduct. Based on our above relevant conduct analysis, the district judge may attribute a different loss amount to Norris at his resentencing.
F. Departure Under U.S.S.G. sec. 5K2.0
57
Although Norris was not eligible for a reduction in his offense level for acceptance of responsibility under U.S.S.G. sec. 3E1.1,13 the district court granted him a two-level downward departure for acceptance of responsibility under sec. 5K2.0.14 The district court found that Norris demonstrated a "non-heartland" acceptance of responsibility. He made early and consistent offers to the government to determine the legality of his business through a prompt civil declaratory judgment action. Moreover, he immediately discontinued his business following the verdict against him. The government argues that the district court had no authority to grant Norris a departure for "quasi-acceptance of responsibility" after denying him a reduction under sec. 3E1.1.
58
We review a district court's departure decision for abuse of discretion and its findings of fact for clear error. See United States v. Wilke, 156 F.3d 749, 753 (7th Cir. 1998). We review de novo a district court's grounds for departure. See United States v. Bradley, 196 F.3d 762, 771 (7th Cir. 1999). A sentencing judge has broad discretion to depart downward when not blocked by a specific guideline. See United States v. Stefonek, 179 F.3d 1030, 1038 (7th Cir. 1999) (citing Koon v. United States, 518 U.S. 81, 98- 100 (1996)), cert. denied, 120 S. Ct. 1177 (2000). The Guidelines apply to a "heartland" of typical cases. See Koon, 518 U.S. at 94. If the case is within the "heartland," a district judge must impose a sentence falling within the applicable Guideline range. See id. at 92. However, the Guidelines "authorize[ ] district courts to depart in cases that feature aggravating or mitigating circumstances of a kind not adequately taken into consideration by the [Sentencing] Commission." Id. Here, the Guidelines do not explicitly bar the district court's departure. Moreover, the district judge found many reasons why this case, and Norris's actions, fell outside the "heartland" of the applicable guidelines.
59
Norris consistently believed that he was operating a legal business because his product was ambiguous in the sense that customers could use it for legal--as well as illegal--purposes. He offered for more than five years to play a lower-stakes game with the government--one in which his ante would be his business, but not his freedom. He invited a civil suit, seeking an injunction, which would have prevented the sales of any items found illegal. Early on, Norris prevailed: counts brought under one statute were dismissed, and the dismissal was affirmed, see United States v. Norris, 34 F.3d 530 (7th Cir. 1994); detention was denied because it did not appear to the court that Norris's conduct had been shown to violate the statute; counts brought under another statute were also dismissed, and that dismissal was also affirmed, see United States v. Norris, 88 F.3d 462 (7th Cir. 1996). Even as Norris won these early battles, he continued to suggest to the government that it pursue the civil alternative.
60
After his conviction, Norris immediately ceased his business, froze his inventory, offered negotiations with the government concerning the disposal of his inventory, and offered his full assistance to the government with respect to access to his inventory.
61
In the ordinary ("heartland") case, such post- trial conduct would be unremarkable, but in the unusual circumstances of this case, it demonstrates a different form of acceptance of responsibility that seems to echo the concerns that led the drafters of the guidelines to allow a finding of sec. 3E1.1(a) when a defendant goes to trial to determine a statute's applicability to his conduct. This case's circumstances are far too unusual to have been contemplated by the Sentencing Commission when it drafted sec. 3E1.1.
62
Norris April 9, 1999 Sentencing Mem. at 13.
63
The government argues that the district court did not have authority to grant this departure after denying Norris a sec. 3E1.1 departure. The government suggests that a "quasi-acceptance of responsibility" departure under sec. 5K2.0 is available only to defendants who have already received the maximum reduction under sec. 3E1.1. The government's cited cases, however, are unavailing.
64
In United States v. Bean, 18 F.3d 1367, 1368-69 (7th Cir. 1994), the district court allowed a six-level downward departure for "extraordinary acceptance of responsibility" because the defendant had voluntarily repaid the money that he had defrauded from a bank. We reduced the departure to two levels because the defendant continued to insist on his innocence even after his conviction and because his conviction was his third for defrauding a financial institution. Contrary to the government's assertion, Bean does not stand for the proposition that sec. 5K2.0 departures for acceptance of responsibility are unavailable for defendants who do not qualify for a sec. 3E1.1 departure. Furthermore, Bean is clearly distinguishable from this case. Norris did not insist on his innocence after the jury convicted him, and he has not displayed a pattern of fraudulent activity.
65
In United States v. Bailey, 97 F.3d 982, 986 (7th Cir. 1996), we affirmed the trial court's denial of a sec. 3E1.1 departure. The trial court determined that the defendant did not display genuine remorse or contrition. Bailey does not help the government. Bailey merely reinforces the requirements for a sec. 3E1.1 departure; it does not address the prerequisites for a sec. 5K2.0 departure.
66
Likewise, we easily distinguish the facts in Stefonek from the instant case. In Stefonek, we reversed the district court's "community service" ground for departure because the services were provided by the same businesses that were the vehicles of Stefonek's multiple violations of federal law. 179 F.3d at 1038. No such "Robin Hood theory of sentencing" exists here. Cf. id.
67
The district court correctly applied the applicable grounds for departure. Therefore, we conclude that it was not clear error for the district court to depart downward two-levels under sec. 5K2.0.
68
G. Norris's Downward Departure for his Physical Condition and Imposition of Home Detention
69
After reviewing more than 500 pages of medical records, watching a videotaped deposition of Norris's cardiologist, observing Norris at trial and during sentencing, and listening to the in- court testimony of both Norris and his mental health therapist, the district court concluded that imprisonment posed a substantial risk to Norris's life and, therefore, departure under U.S.S.G. sec. 5H1.4 was warranted.15 The government contends that Norris's physical condition was not an "extraordinary physical impairment" within the meaning of sec. 5H1.4 and that the Bureau of Prisons ("BOP") could provide adequate medical care to Norris. We review a district court's departure decision for abuse of discretion and its findings of fact for clear error. See Wilke, 156 F.3d at 753. We review de novo a district court's grounds for departure. See Bradley, 196 F.3d at 771.
70
We have developed a three-part test to facilitate our analysis:
71
First, we must determine whether the district court has stated adequate grounds for departure. This is a question of law and is reviewed de novo. Second, we must determine whether the facts which underlie the grounds for the departure actually exist. This determination is reviewed using the clearly erroneous standard of review. Third, we must determine whether the degree of departure is linked to the structure of the Guidelines. The district court's findings on what degree of departure is appropriate are given deference.
72
United States v. Hendrickson, 22 F.3d 170, 175 (7th Cir. 1994). Unlike the cases cited by the government, the district court in this case made particularized findings that Norris was entitled to a departure under sec. 5H1.4. In United States v. Sherman, 53 F.3d 782, 787 (7th Cir. 1995), we rejected the district court's downward departure under sec. 5H1.4 because the "judge made no legal finding with regard to the treatment [the defendant] was likely to receive in jail in relation to his medical needs, nor did he rely on a competent medical diagnosis of [the defendant's] condition." In United States v. Woody, 55 F.3d 1257, 1275-76 (7th Cir. 1995), we affirmed the district court's decision not to depart under sec. 5H1.4 because the defendant presented "no sound factual foundation" to support the departure. In this case, moreover, the district court found that the BOP's letter16 was merely a form letter trumpeting the BOP's ability to handle medical conditions of all kinds. Consequently, it was not an abuse of discretion for the district court to conclude that Norris's medical condition warranted a downward departure.
73
The government also argues that the district court's imposition of a nonprison sentence-- probation and home monitoring--is not available because Norris's offense level of 21 falls in Zone D of the sentencing table. Imprisonment substitutes are not available for offense levels that fall in Zone D. See U.S.S.G. sec.sec. 5B1.1 cmt. 2, 5C1.1(f) & cmt. 8, 5F1.2.17
74
The district court tried to keep Norris's sentence consistent with the Guidelines while also keeping him out of prison. Consequently, instead of departing through the offense levels, the judge departed from the restrictions of sec. 5B1.1 and sec. 5C1.1. The district court recognized that the Guidelines do not provide for 37 months of home detention, but ruled the Guideline's restriction
75
no impediment, because this case involves factors not adequately considered by the Sentencing Commission. Finally, the court believes the sentence properly considers the structure of the guidelines, because, among other reasons noted thus far, the guidelines include the recognition in U.S.S.G. sec. 5H1.4 that "in the case of a seriously infirm defendant, home detention may be as efficient as . . . imprisonment."
76
Norris April 9, 1999 Sentencing Mem. at 13.
77
The district court improperly departed outside the Guidelines. Although sec. 5H1.4 allows the use of home detention, the defendant's offense level must be in Zone A or B to satisfy the requirements of sec. 5B1.1(a) (probation not allowed for Zone C or D offense levels), sec. 5C1.1(f) ("if the applicable guideline range is in Zone D of the Sentencing Table, the minimum term shall be satisfied by a sentence of imprisonment"), and sec. 5F1.1 ("community confinement may be imposed as a condition of probation or supervised release"). Consequently, upon resentencing, unless Norris's offense level is in Zone A or B, the district court may not sentence him to home detention.
III
78
For the reasons stated above, we REVERSE Jim Gee's and William C. Norris's convictions on mail fraud, wire fraud, and conspiracy. We AFFIRM Norris's conviction for assisting unauthorized reception of cable service, but we VACATE his sentence and REMAND for resentencing consistent with this opinion.
Notes:
1
Norris was originally charged over six years ago with unauthorized decryption of satellite cable programming under 47 U.S.C. sec. 605(e)(4). The district court granted Norris's motion to dismiss on the ground that his alleged conduct concerned coaxial cable rather than satellite signals. We affirmed. See United States v. Norris, 34 F.3d 530 (7th Cir. 1994). The government next indicted Norris with violating the second part of 47 U.S.C. sec. 605(e)(4), which by reference to 47 U.S.C. sec. 605(a) prohibits the unauthorized interception of radio communications. The district court also dismissed these counts, ruling that the cable television programming that Norris allegedly helped intercept did not constitute radio communications, and we affirmed. See United States v. Norris, 88 F.3d 462 (7th Cir. 1996). After these two interlocutory appeals by the government and two superseding indictments, Norris and Gee came to be charged under the present indictment on January 9, 1997.
2
"It is clear from a reading of the indictment that the fraud charges are not based on misleading statements or fraudulent omissions." Gov't's Resp. in Opp'n to Mot. to Dismiss Second Superseding Indictment at 2.
3
Norris first moved the district court to dismiss the wire and mail fraud charges in 1993, well before Gee was ever involved in this case. The district court denied the motion, stating that "[c]ontrary to Mr. Norris's assertions, a charge of wire or mail fraud need not be supported by an underlying false representation or statement." United States v. Norris, 833 F. Supp. 1392, 1396 (N.D. Ind. 1993), aff'd, 34 F.3d 530 (7th Cir. 1994). Thereafter, in response to a superseding indictment in 1997, in which Gee was also named as a defendant, defendants moved for a dismissal of the wire and mail fraud charges.
4
The government concedes that the Neder holding will be retroactively applied to this case.
5
Count 1 charges that
William Norris . . . knowingly devised a scheme and artifice to defraud cable television companies . . . of premium and special programming transmissions and subscription fee revenues. The scheme and artifice to defraud include the assembly, modification, sale and distribution of modified cable television converter-decoders and other decoding devices which enabled basic cable television subscribers to receive premium and special cable programming without the knowledge and authorization of the cable television companies and without payment of the required subscription fee.
Superseding Indictment, Count 1 para. 14.
Count 2 charges that Norris bought chips from Gee who programmed the chips and modules so that the cable converter-decoder in which they were installed would receive all premium cable television programming, including Pay-Per-View, without detection and without payment of the required fee or subscription fee to the cable television company.
Id. Count 2 para. 2.
6
Count 32 of the Superseding Indictment alleges that defendants
did combine, conspire, confederate and agree among themselves and with other persons both known and unknown to the Grand Jury, to . . . violat[e] 47 U.S.C. sec. 553(a)(1), by knowingly and willfully, for the purpose of commercial advantage and private financial gain, assist[ ] in intercepting and receiving certain communications services offered over a cable system, which was not specifically authorized by a cable operation and otherwise not specifically authorized by law, in that they manufactured and distributed and caused to be manufactured and distributed equipment intended for unauthorized reception of premium and Pay-Per-View cable television programming.
Superseding Indictment, Count 32 para. 2.
7
In this regard, Norris's and Gee's case is unlike the quintessential illegal drug case that forms the basis for conspiracy case law in this circuit. See, e.g., Menting, 166 F.3d at 925 (cocaine); United States v. Thomas, 150 F.3d 743, 743 (7th Cir. 1998) (crack cocaine); Pearson, 113 F.3d at 759 (cocaine); Mims, 92 F.3d at 462 (same); Lechuga, 994 F.2d at 346 (same); Townsend, 924 F.2d at 1388 (heroin, cocaine, and marijuana).
8
During the trial, the district court ruled that the government could not admit coconspirator statements under Fed. R. Evid. 801 (d)(2)(E). The district court found that the government had not shown, by a preponderance of the evidence, that a conspiracy existed between the defendants. See generally Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (ruling that "when the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence"). The district court observed that:
This is not a matter of the sufficiency of the evidence to allow Count 32 of the Indictment to survive the motion for judgment of acquittal at the close of the government's case. This is not a matter of the sufficiency of the evidence for the trier of fact to find the predicate facts to be true. It's a question for me to decide. So I can't just sit here and decide whether the jury could find these things to have been proven. I must find that these things have been proven by a preponderance of the evidence. And in making that determination, I weigh the evidence as though we were at the end of a bench trial.
. . . . . . .
Sitting as a fact finder, . . . I find myself unpersuaded that there was an agreement to assist others in the unauthorized reception of cable signals.
The district court did find, however, that there was sufficient evidence to let the jury decide whether the government had proven a conspiracy.
9
Norris tendered the following as his proposed Instructions Nos. 5 through 8.
A person does not violate 47 U.S.C. sec. 553 for being engaged in the production or sale of a device or equipment which is used for legal purposes merely because the same device or equipment is capable of being used for unauthorized reception of cable service. The particular device or equipment that is the subject of any count brought in the Indictment under 47 U.S.C. sec. 553 must have been provided with the intent or specific knowledge that it will be used for unauthorized reception of cable service before any provider could be convicted.
Norris's Proposed Instruction No. 5.
This proposed instruction was adopted from the Cable Communications Policy Act's legislative history. See H.R. Rep. No. 98-934, at 84 (1984), reprinted in 1984 U.S.C.C.A.N. 4721 ("The Committee does not intend that manufacturers, distributors or retailers be subject to liability under this section if they are engaged in the production or sale of a device or equipment which is used for legal purposes merely because the same device or equipment is capable of being used for unauthorized reception of cable service, if they do not provide the equipment with the intent or specific knowledge that it will be used for the unauthorized reception of cable service.").
There is no federal law making it a crime merely to manufacture, distribute, or own a descrambler. It is a federal crime to manufacture, distribute, or own a descrambler only if there is an intent to receive or assist in receiving unpurchased programming.
Norris's Proposed Instruction No. 6.
It is not a violation of sec. 553 to use a customer-owned descrambler to view programming that a customer has purchased.
Norris's Proposed Instruction No. 7.
In 1988 the United States Court of Appeals for the Seventh Circuit (the federal appellate court having jurisdiction over federal cases brought in Indiana, Illinois, and Wisconsin) handed down a case entitled United States v. Gardner, 860 F.2d 1391 (7th Cir. 1988). The United States Court of Appeals stated in that Gardner case that a person could not be convicted of an offense under 47 U.S.C. sec. 553 if he sold so-called black boxes (meaning nonaddressable descramblers) with the intent that they be used for lawful purposes.
Norris's Proposed Instruction No. 8.
10
The government argues that this court should review Norris's rejected jury instructions for plain error because Norris did not properly object to the court's Instruction No. 18. "Merely submitting an instruction is not enough. A defendant must object to the judge's refusal on the record and clearly state the reasons for his objections. Otherwise, we will review a district court's refusal of a proposed jury instruction for plain error." Katalinich, 113 F.3d at 1482; accord Fed. R. Crim. P. 30. The government suggests that because Norris did not properly object to Instruction 18, he waived his right to object to the court's refusal to use his proposed Instructions 5 through 8. The government's argument is absurd. Just because Norris's proposed instructions are related to Instruction 18 does not require Norris to object to Instruction 18 in order to preserve his objections to the court's declination of his proposed instructions. Norris clearly alerted the district court to the potential problems with the court's instructions and the reasons for his objections. See United States v. O'Neill, 116 F.3d 245, 247 (7th Cir. 1997); see also Tr. V-21, V-34-35. Accordingly, we will not review Norris's rejected instructions for plain error.
11
Instruction 18 was adopted from our Gardner opinion. See 860 F.2d at 1399 ("To convict under sec. 553, the jury was not required to find that the black boxes were sold for the sole and specific purpose of cable piracy, nor that the boxes were actually used illegally. Rather, the jury only needed to find that [defendant] intended the black boxes to be used for the unauthorized reception of cable service when he sold the boxes to [his customer].").
12
See supra note 8.
13
U.S.S.G. sec. 3E1.1 allows a two-level offense level reduction if "the defendant clearly demonstrates acceptance of responsibility for his offense." This reduction does not generally apply, however, in situations, like here, where the defendant "puts the government to its burden of proof at trial by denying the essential factual elements of guilt." U.S.S.G. sec. 3E1.1 cmt. 2.
14
U.S.S.G. sec. 5K2.0 states an offender characteristic or other circumstance that is, in the Commission's view, "not ordinarily relevant" in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the case from the "heartland" of cases covered by the guidelines.
15
U.S.S.G. sec. 5H1.4 states
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.
16
This was the only evidence presented by the government at Norris's sentencing in arguing against departure.
17
U.S.S.G. sec. 5B1.1 cmt. 2 states: "Where the applicable guideline range is in Zone C or D of the Sentencing Table . . ., the guidelines do not authorize a sentence of probation."
U.S.S.G. sec. 5C1.1(f) states that "[i]f the applicable guideline range is in Zone D of the Sentencing Table, the minimum term shall be satisfied by a sentence of imprisonment." Comment 8 to sec. 5C1.1(f) precludes the use of any imprisonment substitutes where the applicable guideline range is in Zone D.
U.S.S.G. sec. 5F1.2 states that "Home detention may be imposed as a condition of probation or supervised release, but only as a substitute for imprisonment." | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1579838/ | 12 So. 3d 227 (2009)
COLLINS
v.
STATE.
No. 2D08-3691.
District Court of Appeal of Florida, Second District.
June 26, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579881/ | 324 N.W.2d 652 (1982)
Robert UTECHT, Appellant,
v.
SHOPKO DEPARTMENT STORE, Respondent.
No. 82-166.
Supreme Court of Minnesota.
October 8, 1982.
*653 Willenbring, Lickteig & Dahl and Timothy D. Clements, Cold Spring, for appellant.
Donohue, Rajkowski & Hansmeier, St. Cloud, for respondent.
Considered and decided by the court en banc without oral argument.
SCOTT, Justice.
Plaintiff Robert Utecht appeals from a summary judgment in favor of defendant Shopko Department Store in this suit for libel. The primary issue on appeal is whether there are genuine issues of material fact concerning the defamatory nature of the communication and Shopko's privilege to publish it. We conclude that there are and, therefore, reverse and remand for further proceedings.
In early July 1979 Kathy Utecht, plaintiff's wife, lost her checkbook and several credit cards including a Shopper's Charge card. She called various local retailers, including Shopko, and informed them of the loss in hopes of preventing unauthorized use of the credit cards. In August 1979 plaintiff's brother-in-law informed him that while in the check-out lane in Shopko, he had observed a notice posted on the cash register reading "Shopper's Charge Robert Utecht Do Not Accept." Plaintiff called Shopko and demanded immediate removal of any such signs. He subsequently went to the store where he found one sign, handwritten in blue ink on a 3 inch by 5 inch index card, in a trash barrel.
Angry and upset about possible damage to his reputation, plaintiff sought damages in conciliation court. He was awarded $1,000 and Shopko removed the case to county court. Plaintiff then filed a complaint alleging damages in excess of $50,000. Upon motion, the county court transferred the action to the district court because the claim exceeded its jurisdictional limit. Shopko moved for summary judgment. The motion was denied. On the morning of trial Shopko renewed its motion and, this time, the trial court granted it on the dual grounds that the communication was not defamatory as a matter of law and that it was privileged as a matter of law.
We have often cautioned that summary judgment is not a substitute for trial. 2 J. Hetland & O. Adamson, Minnesota Practice, Civil Rules Annotated 563 (1970). In libel cases a publication may be defamatory on its face; or it may carry a defamatory meaning only by reason of extrinsic circumstances. The question whether a claimed defamatory innuendo is reasonably conveyed by the language used is for the court to determine. Marudas v. Odegard, 215 Minn. 357, 10 N.W.2d 233 *654 (1943). If the words are capable of the defamatory meaning, it is for the jury to decide whether they were in fact so understood. Gadach v. Benton County Co-op Association, 236 Minn. 507, 53 N.W.2d 230 (1952). We cannot agree with the trial court that the notice posted by Shopko was not reasonably susceptible of a defamatory meaning. The circumstances in which the notice was seen by the public necessarily prompted speculation as to why the card was not to be accepted. Loss or theft are possible explanations but poor credit is an at least equally likely alternative. The innuendo that one is a deadbeat is clearly defamatory and a jury should determine whether that meaning was the one actually conveyed.
Shopko argues that any fact issue regarding the defamatory nature of its notice is nonetheless not material because the communication was privileged. There are two types of privileges, absolute and qualified. Both are potentially applicable here. The claim of absolute privilege is based on plaintiff's consent to the publication. While plaintiff concedes that he consented to Shopko's informing its cashiers not to accept his credit card, it is undisputed that he did not expressly agree to the method used. There is, therefore, a factual question for a jury as to whether the publication was within the scope of the consent, i.e., whether Shopko reasonably interpreted plaintiff's request. The result is the same with respect to the claim of qualified privilege. It constitutes a defense only when the communication is made in a reasonable manner and for a proper purpose. Hebner v. Great Northern Railway Co., 78 Minn. 289, 80 N.W. 1128 (1899). Plaintiff here alleges that the method used to communicate information regarding the credit card to the cashiers was unreasonable under the circumstances because it excessively published the information. The question whether a qualified privilege has been defeated by abuse is one for the jury. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn.1980).
Plaintiff also contends that the trial court erred by denying his motion to amend the complaint to assert a claim for punitive damages. Whether to allow an amendment is committed to the trial court's discretion. Dale v. Pushor, 246 Minn. 254, 75 N.W.2d 595 (1956). Minn.Stat. § 549.20 (1980) provides that punitive damages are allowable in civil actions "only upon clear and convincing evidence that the acts of the defendant show a willful indifference to the rights or safety of others." All of the discovery evidence before the court indicates that Shopko was, at most, negligent. The trial court, therefore, did not abuse its discretion by refusing to permit the amendment.
Affirmed in part; reversed and remanded in part.
COYNE, J., took no part in the consideration or decision of this case.
PETERSON, Justice (dissenting).
I respectfully disagree with the majority opinion and would affirm the grant of summary judgment.
Two alternative findings supported the lower court's disposition of the case through summary judgment. The lower court found the posted cashier's notice ("Shopper's Charge Robert Utecht Do Not Accept") not capable of a defamatory meaning. Although I am inclined to agree with the lower court the notice does not seem capable of bearing the defamatory meaning attributed to it by plaintiff I defer to the majority on this issue. A jury should decide what meaning is actually taken.
More important to this dissent is the issue of abuse of a qualified privilege. Both parties and the lower court agreed: Shopko had a qualified privilege to communicate the loss of plaintiff's credit card to its cashiers. As the majority points out, plaintiff alleged abuse of the qualified privilege through excessive publication. The lower court found no abuse of the qualified privilege. The majority would allow the jury to consider the issue.
*655 I dissent from the majority on this point: the lower court could rule as a matter of law that no abuse of the qualified privilege occurred through excessive publication. The Restatement (Second) of Torts § 619(2) (1977) suggests the rule: "Subject to control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege." But importantly, the comments to the subsection add: "These questions are for the jury to determine unless the facts are such that only one conclusion can reasonably be drawn." Id., comment on subsection (2) (emphasis supplied). If the facts of the instant case point to only one conclusion that Shopko used a reasonable means to convey the message not to accept the Utecht credit card then the judge may decide the issue of abuse of a qualified privilege. Id.
Shopko did not abuse the qualified privilege it had through excessive publication. This conclusion follows from an understanding of the excessive publication doctrine:
§ 604. Excessive Publication
One who, upon an occasion giving rise to a conditional privilege for the publication of defamatory matter to a particular person or persons, knowingly publishes the matter to a person to whom its publication is not otherwise privileged, abuses the privilege unless he reasonably believes that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged.
Id., § 604. The comments to this section are especially important in determining the reasonability standard. (In the present case, the reasonableness of the posting of the notice by Shopko is to be ascertained.) Comment a suggests:
a. Ordinarily, a privilege is abused by speaking defamatory words in the presence of persons whose knowledge of them is unnecessary to the protection of the interest in question. However, this is not true when the publication to those persons is reasonably incidental to the communication of the defamatory matter to the person whose knowledge is reasonably believed to be necessary or useful for the protection of the interests. In many cases, the communication, to be effective, must be made at a given time and place even though third persons are present who are likely to overhear it. * * *
Id., comment a (emphasis supplied).
Comment b explores further the reasonability standard:
b. Often the only practicable means of communicating defamatory matter involves a probability or even a certainty that it will reach many persons whose knowledge of it is of no value in accomplishing the purpose for which the privilege is given. In this case, the publication is not excessive or an abuse of the privilege, if the importance of the interest involved, the gravity of the harm threatened to it and the inconvenience of any other means of communication make the publication reasonable. * * *
One privileged to publish defamatory matter may, without abuse of the privilege use a method of communication that involves an incidental publication of the defamatory matter to persons to whom he is not otherwise privileged to publish it, if the method, although not the only way in which the information can be effectively communicated, is customary and sanctioned by business or other necessity. * * *
Id., comment b (emphasis supplied).
The facts of the present case demonstrate the reasonability of Shopko's actions. Mrs. Utecht called Shopko, asking them not to accept the lost credit cards. In a deposition, Mrs. Utecht related the information she told Shopko:
Q Did you know anybody at Shopko?
A Personally?
Q Yes.
A No.
Q Okay. So, you just called up, I take it. Did you get Mr. Davis right away?
A I don't remember.
Q Okay. Well, tell me what you told Mr. Davis?
A The same as I told the other stores, our cards had been lost, not to accept any charge on our card.
*656 Q Okay. What did this Mr. Davis the person you talked to indicate when you told him that?
A "Okay."
Q Okay. Again the purpose for contacting Shopko, the same reason you contacted the other stores?
A Yes.
* * * * * *
Q [T]hat was the basic idea why you contacted them, so they didn't accept it?
A Yeah.
Shopko used a means it thought reasonable to communicate the fact of plaintiff's credit card loss: a notice on the cash register. To be sure, Shopko might have employed some other means of conveying the information, perhaps by putting the information on a clipboard, or by displaying only a credit card number. But these methods do not convey the message so clearly, quickly or efficiently to cashiers as the method chosen. If the Utechts were serious about not having their credit card accepted, one cannot fault Shopko for following through on this request. Its method would work.
The lower court judge had all the facts and circumstances of the case before him when he granted summary judgment to respondent. The parties do not debate the content of the sign, nor is the positioning of the sign in dispute. Absent any controversy as to the facts of this case, the court's determination that the qualified privilege was not abused is justified. The facts support only one conclusion: Shopko complied with a customer request in a reasonable commercial manner by posting the cashier notice. The lower court reached this conclusion after a full review of the facts before it. This court should affirm the judgment of the lower court.
KELLEY, Justice (dissenting).
I join the dissent of Justice Peterson. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579876/ | 84 S.W.3d 892 (2002)
79 Ark.App. 138
Gina DELUCA
v.
Bobby STAPLETON.
No. CA 02-144.
Court of Appeals of Arkansas, Division III.
September 18, 2002.
*894 Lyons, Emerson & Cone, P.L.C., by: Scott Emerson, Jonesboro, for appellant.
Kincade Law Office, by: Ronald P. Kincade, Mountain Home, for appellee.
ANDREE LAYTON ROAF, Judge.
Appellant Gina Deluca appeals from the trial court's denial of her petition to modify custody by allowing her to relocate with her minor children to California. The trial court also denied the petition of her ex-husband, appellee Bobby Stapleton, for change of custody. On appeal, Deluca argues that the trial court failed to properly evaluate the factors to be considered in parental-relocation cases as set forth in Staab v. Hurst, 44 Ark.App. 128, 868 S.W.2d 517 (1994), and that the decision is clearly erroneous. We disagree and affirm.
Deluca and Stapleton were married in 1991 and divorced in 1993. Deluca was awarded custody of the parties' two minor children. At the time of the divorce both parties lived in Calico Rock. Deluca later moved to Jonesboro and attended Arkansas State University where she received a bachelor's degree in radiography in 2000. Deluca was employed part-time as a radiology technician at a Jonesboro hospital at the time of the hearing on her petition to relocate. Stapleton worked at Boeing Aircraft, also had a part-time photography business, and lived with his wife Linda in a mobile home next door to his mother outside Calico Rock.
Deluca filed her petition to relocate in October 2000, four months after the trial court had entered an order finding her in willful contempt for violation of prior orders regarding Stapleton's visitation. In her petition to relocate, Deluca asserted that she had finished her college courses in X-ray technology and had the opportunity to earn substantially more at a job she had been offered in her home state of California. The petition was not heard until nearly a year later, on August 9, 2001. The trial judge issued a detailed letter opinion on August 16, 2001, setting out the reasons why he was denying Deluca's petition to relocate. The order was entered four months later, and Deluca timely appealed.
Deluca argues on appeal that the trial court failed to follow the factors set out in Staab v. Hurst, supra, that she presented overwhelming evidence on the threshold issue of whether the move would result in a real advantage to the family unit as a whole, and that the evidence weighed in her favor on all of the additional factors to be considered after she had met this threshold burden of proof.
In cases involving child custody and related matters we review the case de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. Wagner v. Wagner, 74 Ark.App. 135, 45 S.W.3d 852 (2001); Presley v. Presley, 66 Ark.App. 316, 989 S.W.2d 938 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Turner v. Benson, 59 Ark.App. 108, 953 S.W.2d 596 (1997). In child-custody *895 cases we give special deference to the trial court's position to evaluate what is in the best interests of the child. Thompson v. Thompson, 63 Ark.App. 89, 974 S.W.2d 494 (1998). The best interest of the child remains the ultimate objective in resolving child custody and related matters. Staab v. Hurst, supra.
In Staab, this court set forth five factors that should be considered in determining whether to allow a custodial parent to move from the state of the noncustodial parent. These factors are:
(1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.
Id., 44 Ark.App. at 134, 868 S.W.2d 517. Before a circuit judge is to consider the Staab factors, the custodial parent bears the threshold burden to prove some real advantage to the children and himself or herself in the move. Wilson v. Wilson, 67 Ark.App. 48, 991 S.W.2d 647 (1999).
In addition to her own testimony, Deluca presented the testimony of Professor Ray Winters, Chairman of the Radiology Services Department at Arkansas State University (ASU), Mary Deluca-Elder, her sister, and the parties' children Mandy and
Travis Stapleton, ages eleven and nine. Dr. Winters testified that he was Deluca's advisor at ASU. He stated that Deluca was licensed as a radiographer in Arkansas, that she was working toward registration in mammography radiography, and that job turnover in mammography is low and opportunities for employment not readily available in central Arkansas. He further testified that demand for mammographers is higher on the east and west coasts, and that they are paid $2.50 to $3.50 more per hour than in the Arkansas region. Dr. Winters further testified that jobs were readily available in Arkansas in radiology and that Deluca could get one paying $13.00 to $15.00 per hour "anywhere in Arkansas at this time." He stated that Deluca would earn, at the outside, a dollar to two dollars more an hour if she were to be employed in mammography.
Deluca testified that she was taking additional training to qualify in the specialized area of mammography and that she was presently working part-time doing mammograms at a Jonesboro hospital. She further testified that her hours there had been "cut back" to eight per week, that she was living on unemployment, and that she also had to go on welfare and receive subsidized housing. She testified that she was unwilling to work as a general X-ray technician because it would be a "step backward" and would require her to be on call and work nights, weekends, and holidays as a new employee, and she would not have anyone to take care of her children. She stated that she wanted to move to Sacramento, California, where her sister lived, and that she had a job awaiting her in a breast imaging center working a day shift, with benefits and a $4,000 signing bonus. She further testified that her sister and her sister's husband planned to buy a house for her and the children to live in rent-free and would also help her with *896 babysitting. She stated that she was willing to allow Stapleton to make up for the loss of weekend visitation by increasing his summer, Christmas, and spring break visitation. Deluca admitted that she and Stapleton cannot get along, do not talk to each other, and claimed that she had not "intentionally done anything wrong" in regard to the parties' past visitation disputes.
Mary Deluca-Elder testified by deposition that she was employed with the same radiology group where Deluca would be working and was aware of an opening there for a mammographer with a salary range of $15.57 to $21.80 per hour; that she and her husband would buy a house as an investment and allow Deluca to live there rent-free, and that she would not charge her for babysitting. Mandy Stapleton testified that "I pretty much think I would like it," if she went to live in California, and Travis Stapleton testified that he wanted to spend as much time as he could with both parents, had more fun with his dad, missed him, and wished he could be with his dad all the time. After the hearing Deluca also presented a faxed letter dated August 15, 2001, from her prospective employer confirming that she had been offered a full-time position as a radiology technologist in September 2000 in a "float pool" providing coverage for absent employees, and that there are always open positions in this pool.
Bobby Stapleton testified in opposition to Deluca's petition. He stated that he and Deluca had been in court nearly every year since 1995, including a Department of Human Services (DHS) hearing. He stated that before the March 2000 contempt hearing, he was able to see the children only sporadically at best, but since then he has been able to see them every other weekend. He testified that Deluca was responsible for allegations of abuse made against him to DHS, and that if Deluca was allowed to move to California, he would not even get summer visitation without a court fight. Stapleton testified that his parents, siblings and other family members lived in and near Calico Rock, that it was a two-and-a-half hour drive one way from there to Jonesboro, and that he had not attended many of the children's extracurricular activities, in part because he feared a confrontation with Deluca.
In his letter opinion, the trial court made the following conclusions of law and findings:
Staab v. Hurst, 44 Ark.App. 128, 868 S.W.2d 517 (1994) and its progeny have laid down the guidelines to be followed in this situation. Children, after the divorce of their mother and father, form a new family unit with the custodial parent. If the custodial parent seeks to move with the children to another state, the best interest of the children cannot be considered in a vacuum, but must be considered in the context of the family unit. An important inquiry is whether the proposed move is in the best interest of the custodial parent.
It may be (I am unable to say) that the proposed move of the mother to California would help her. If so, and the inquiry ended there, the decision would necessarily be in the mother's favor. But it does not (and should not) end there. A determination must be made whether removal of the children to the State of California is inspired primarily by a desire by the mother to frustrate the father's visitation. Based on my experience with this case stretching back over several years, and my past knowledge that the mother has repeatedly frustrated the father's visitation, resulting in two separate contempt rulings by me against her because of such conduct, and after observing her at this most recent hearing, I am compelled to find that her *897 motive is in large part frustration of his visitation. And even if this is not presently her motive, there is no doubt in my mind that if she were ever permitted to move to California, there is no way after that move she would comply with any substitute visitation order, no matter the wording of such order. Obviously, continuous and continuing litigation between the mother and father can only be harmful to the children. I believe I have the mother's attention while she is in Arkansas as far as obeying visitation orders, but in my opinion litigation would commence anew shortly after the move. And in view of the testimony of the children, I find it is not in their best interest to go to California. The oldest child, for instance cannot say whether she wants to go, although it might be "fun." The youngest child wants to live with his father. In my opinion, it is much better for these children to stay in Arkansas, see their father frequently, and visit their paternal grandmother and other family members.
On appeal, Deluca contends that the trial court clearly erred by stating that he was "unable to say" whether the proposed move would benefit the family unit as a whole, and this ruling must therefore be reversed. She further asserts that the evidence on each of the remaining factors to be considered weighs heavily in her favor.
We do not agree that the trial court's findings regarding whether Deluca met her threshold burden or her motives are clearly erroneous under the circumstances of this case. While Deluca presented evidence that she had a job offer in California, allegedly in her desired area of radiography, and that she had family there willing to subsidize her living expenses at least for a time, there was also extensive testimony, both in her case and by Stapleton, that she could easily obtain full-time employment in Arkansas at close to, if not the same pay as that in California.
Secondly, the trial court clearly found Deluca to be not credible. In an exchange abstracted in Stapleton's brief, the court questioned Deluca about the delay in entering the order resulting from the March 2000 contempt hearing, which was signed only by Stapleton and his counsel. Deluca first denied that her prior attorney had sent her the order, but admitted that she had received it when shown a letter she signed acknowledging receipt of the order, and further stated that she had refused to sign the order because she did not agree with its contents. This order provided in pertinent part that Deluca was in willful contempt for violation of prior orders of the court; listed five separate provisions she had violated; awarded Stapleton extended summer visitation plus additional makeup visitation; withheld sentencing of incarceration conditioned upon Deluca's compliance with future orders; prohibited Deluca from enrolling the children in school under any name other than Stapleton, or allowing them to use any other name; and provided that there would be no denial of visitation on account of illness of the children unless documented by a medical report or based on any allegation of abuse against Stapleton unless he has been convicted in a court of law of the abuse. Deluca's petition for relocation followed closely on the heels of this contempt order, and the trial court specifically found that "her (Deluca's) motive is in large part frustration of [Stapleton's] visitation." Finally, we note that the trial court in essence stated that, regardless of whether Deluca had met her threshold burden of proving the move would result in a real advantage, his inquiry did not end there, and he went on to assess the remaining Staab factors as if the burden had been *898 met. Thus, the trial court did not end his inquiry by finding that Deluca had failed at proving a real advantage, but gave her credit for having met the burden.
Deluca next argues that the evidence weighs in her favor on the remaining factors to be considered. She contends that the trial court, in assessing the likelihood of her compliance with future visitation orders, erroneously concluded that Arkansas would lose jurisdiction of the case to California if he allowed her to move. Although the trial court made remarks to this effect at the hearing, in his letter opinion, the trial court stated that if Deluca were permitted to move "there is no way that she would comply with any substituted visitation order," and "in my opinion litigation would commence anew after the move." The trial court's opinion was based on his "experience with this case stretching back over several years," and "after observing [Deluca] at this most recent hearing." The letter opinion does not address the conflict over jurisdiction raised during the hearing, or predict the outcome if such a conflict should ensue.[1]
Deluca also argues that Stapleton's motives for resisting the move lack integrity, and were born of spite. In support of this argument, she asserts that he does not attend the children's extracurricular activities or transport them to these events during his visitation, has not reimbursed her for their medical or dental bills not covered by insurance, does not regularly attend church, and lists various other alleged lapses on the part of Stapleton, which, if nothing else, reflect on the degree of acrimony between the parties. However, the testimony by Stapleton and the children presented a father and children who love each other and want to spend time with each other, and demonstrated that Stapleton has attempted to maintain a close relationship by pursuing enforcement of his regular weekend and summer visitation.
As to the final factor, Deluca contends that Stapleton could easily afford the children's travel expenses to and from California, and that she would be willing to allow him the bulk of the summer weeks plus other extra time to make up for the lost weekends. She contends that her opportunity for career advancement and a better and more comfortable lifestyle for herself and her children should not be sacrificed to maintain Stapleton's pattern of weekly visitation. The trial court did not discuss this factor in his letter opinion. However, some alternative to weekly visitation will be available in almost every case, unless the incomes of the parties are insufficient to bear this additional expense. The trial court fully set out the Staab factors in his letter opinion, and we cannot say that he failed to consider this final factor in reaching his decision. We further cannot say that this factor alone would outweigh the trial court's findings with respect to Deluca's motives and the likelihood of her compliance with further visitation orders.
*899 Finally, we distinguish the cases cited by Deluca for the proposition that this court has placed great emphasis on a custodial parent's desire to relocate for career advancement. In Friedrich v. Bevis, 69 Ark.App. 56, 9 S.W.3d 556 (2000), we affirmed a chancellor's decision to allow a relocation to Texas where the custodial parent obtained a much higher-paying job with less travel. In Wagner v. Wagner, 74 Ark.App. 135, 45 S.W.3d 852 (2001), we affirmed a chancellor's decision to allow relocation to Florida where the custodial parent had a job opportunity and would be near her mother. In Hass v. Hass, 74 Ark.App. 49, 44 S.W.3d 773 (2001), we reversed the chancellor's decision prohibiting the custodial parent from moving to El Dorado from Fayetteville. There the parent wanted to move in order to take advantage of an offer of a federal judicial clerkship. Finally, in Parker v. Parker, 75 Ark.App. 90, 55 S.W.3d 773 (2001), this court reversed the trial court's denial of relocation from Jonesboro to Little Rock where the appellant had a job offer and planned to pursue an advanced degree, and where the family had lived until 1996, noting the short distance between Jonesboro and Little Rock.
Both Wagner and Friedrich involved parties with past visitation disputes. In affirming the trial courts' decisions to allow relocation, we stated that while past problems with visitation were not alone dispositive of the question of the integrity of the custodial parent's motives for seeking to move, we would defer to the trial court to evaluate the witnesses and their testimony in this regard. Both of the cases in which this court reversed the denial of relocation involved relatively short intrastate moves, while the case before us involves a move to California. In this case, the evidence supports the findings made by the trial court regarding Deluca's motive and likelihood of compliance with future visitation orders, and, as we did in Wagner and Friedrich, we defer to the trial court in the evaluation of the witnesses and their testimony on these crucial issues.
Affirmed.
PITTMAN, J., agrees.
GRIFFEN, J., concurs.
NOTES
[1] The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which both Arkansas and California have adopted, is the exclusive method for determining the proper forum in custody disputes involving other jurisdictions. In re C.T., 100 Cal. App. 4th 101, 121 Cal. Rptr. 2d 897 (2002). See Ark.Code Ann. §§ 9-19-101 to 9-19-401 (Repl.2002); Cal. Fam.Code §§ 3400 to 3462 (West 2000). Under the UCCJEA, the Arkansas trial court would retain jurisdiction over any future custody disputes between the parties even if Deluca were permitted to relocate to California. The only exception to the trial court's continuing jurisdiction is in the event that an emergency exists, in which case California would take emergency jurisdiction to protect the child from actual or threatened mistreatment or abuse. In re C.T., supra. See Cal. Fam.Code § 3424. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579848/ | 84 S.W.3d 26 (2002)
Roger Rocky HERNANDEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 06-01-00171-CR.
Court of Appeals of Texas, Texarkana.
Submitted May 29, 2002.
Decided June 21, 2002.
Discretionary Review Refused November 20, 2002.
*28 David Cunningham, Attorney at Law, Houston, for Appellant.
Eric E. Kugler, Assistant District Attorney, William J. Delmore III, Harris County Assistant District Attorney, Houston, for The State.
Before GRANT, ROSS, JJ., and CORNELIUS,[*] C.J.
OPINION
Opinion by Justice ROSS.
Roger Rocky Hernandez appeals his judgment of conviction for the offense of retaliation. See Tex. Pen.Code Ann. § 36.06 (Vernon Supp.2002). He entered a plea of guilty before the court without an agreed recommendation as to punishment. The court assessed punishment at five years' imprisonment. The sole issue on appeal is whether the trial court abused its discretion in failing to conduct a hearing on a motion for new trial.
Hernandez was indicted for threatening to murder Billy Humphrey, a public servant. At the time of the alleged offense, Hernandez was an inmate in a state jail facility where Humphrey was the warden. *29 Humphrey and Hernandez were personally acquainted with each other. The record shows that, on August 4, 2000, guards at the facility conducted random cell searches, which resulted in the removal of contraband from Hernandez' cell. The removal of this contraband visibly angered Hernandez. He approached Humphrey and stated, "WHEN I GET OUT, I'M GOING TO FIND YOU AND KILL YOU, YOUR WIFE AND THE KIDS." Hernandez had been a problem prisoner, with reports in his record of possession of contraband and fighting. Humphrey therefore took the threats seriously and was in fear for his and his family's safety.
Before the entry of Hernandez' plea, the State provided defense counsel with two written notices of the State's intent to introduce evidence of extraneous offenses and other bad acts. On March 13, 2001, the State gave notice of convictions in Bexar County dated November 20, 1998, for theft, possession of a controlled substance, and unauthorized use of a motor vehicle. On March 16, 2001, the State gave written notice of five instances of disciplinary violations committed by Hernandez while incarcerated.
At his trial on March 19, 2001, Hernandez signed a written waiver of constitutional rights, agreement to stipulate to evidence, and a judicial confession stating that the allegations of the indictment are true. He verbally acknowledged awareness that the felony charge to which he was entering a plea carried a possible sentence of two to ten years' imprisonment and a fine not to exceed $10,000.00, and that he might receive deferred adjudication or probation. When asked if anyone had suggested to him that, by entering a plea before the court, a specific type or level of punishment would be imposed, Hernandez answered, "No." Hernandez acknowledged by his signature that he received written plea admonishments, was aware of the consequences of his plea, and was satisfied with the "effective and competent representation" of his attorney. He filed an application for community supervision and verbally confirmed for the court that he wanted a presentence investigation (PSI) report prepared. He also stated that no one forced him to enter a plea and that no one promised him "anything whatsoever." Based on Hernandez' plea and the evidence presented, the trial court found the evidence sufficient to substantiate Hernandez' guilt, but deferred a finding of guilt and ordered a PSI report. The case was reset for sentencing on May 17, 2001.
At the May 17 punishment hearing, the State offered the PSI report into evidence, without objection, and rested. Hernandez then called four witnesses. He first called his fiancee, Angel Zamora, who asked the court to place Hernandez on probation; Hernandez' mother, Sylvia Hernandez, also asked the court to grant Hernandez probation; and Hernandez' father, Robert Hernandez, Sr., testified he had left the family home when Hernandez was twelve years old.[1] On cross-examination, the State attempted to question Hernandez' father about Hernandez' disciplinary violations while confined in the state jail facility, but Hernandez' objection was sustained. Hernandez testified on his own behalf. His own counsel questioned him concerning his prior convictions and his state jail disciplinary violations. On cross-examination, the prosecutor questioned him about the specifics of the prison disciplinary violations. On redirect examination, Hernandez requested probation.
In closing argument, the prosecutor argued, "He wants this court to believe that *30 the leopard has changed its spots, but we see while he was in prison, repeat offense after offense, some violent.... I ask the court to send him back to prison. He hasn't earned probation."
The court assessed Hernandez' punishment at five years' imprisonment.
In a motion for new trial, filed by new counsel, Hernandez alleged ineffective assistance of counsel at trial. He specifically complained his trial counsel failed to investigate the law and facts concerning his guilt or innocence, gave him erroneous advice which caused him to enter an involuntary plea of guilty, and failed to investigate the law and facts concerning his punishment.
In support of the motion, Hernandez filed several affidavits. In his own affidavit, Hernandez denied the allegations of the indictment and stated he gave his trial attorney the names of several individuals who were witnesses to the incident in question, but who were never contacted. Hernandez states that, had these witnesses been interviewed, his attorney would have learned he did not threaten the warden. He further states he never had the opportunity to meet with his trial attorney to fully discuss the case. He alleges his trial attorney told him of a plea offer of two years' imprisonment, which his attorney urged him to accept. He further states his attorney told him he would receive probation and this is the only reason he pled guilty.
Other affidavits were filed by Angel Zamora, Sylvia Hernandez, Robert Hernandez, Sr., and Maria Hernandez. Maria is Hernandez' stepmother. All of these persons state in their respective affidavits that Hernandez' trial attorney told him he would receive probation if he entered a plea of guilty.
Hernandez' appellate counsel also filed an affidavit in support of the motion for new trial, stating, in part:
On the day that [Hernandez] was sentenced to five years in prison, I was present in the 177th Judicial District Court. Although I did not witness the sentencing hearing or see the pronouncement of sentence, I do have personal knowledge of certain matters that took place before the hearing. I was in court that day on unrelated matters. During the course of my presence in the courtroom, I became aware that the state had subpoenaed witnesses from TDCJ-ID to participate in a sentencing hearing involving [Hernandez]. I was also made aware that those witnesses had not appeared and would not be available that day. Although the state wanted to have those witnesses present, they indicated that they were prepared to go forward without the witnesses present. I know [the trial attorney], the attorney for [Hernandez]. When he arrived, I told him what I had heard, that is, that the prison guards and officials were not present and that the state would proceed at the sentencing hearing without them. I told [the trial attorney] that I did not believe that the state could introduce that evidence at sentencing unless he opened the door. Shortly after that conversation, I concluded my business and left the courtroom. I returned later after the sentencing hearing had been concluded.
On the last page of the motion for new trial, there appears a handwritten note, signed by appellate counsel, stating he spoke with a substitute coordinator "@ 49 San Jacinto @1100 on 6/14/01." The record also contains a letter, dated June 25, 2001, filed on June 27, 2001, addressed to the court and the clerk, stating the motion for new trial had been filed, indicating *31 "presented to Joey DeBryn within two days of filing," and formally requesting a hearing on the motion under Tex.R.App. P. 21. The letter notes the flooding problems in the Houston area at that time. On July 30, 2001, appellate counsel filed a written objection to the submission of the motion solely on affidavits and requested a hearing. The court's docket sheet shows only the filing of the motion.
In response to Hernandez' contention the trial court abused its discretion in refusing to hold a hearing on the motion for new trial, the State contends: 1) a proper presentment to the trial court was not made by Hernandez; and 2) Hernandez failed to show the trial court abused its discretion in not holding a hearing on the motion.
TEX.R.APP. P. 21 governs new trials in criminal cases. Rule 21.4(a) provides that a defendant may file a motion for new trial "before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court." The record in this case reflects a timely filing; sentence was imposed May 17, 2001, and the motion was filed June 14, 2001.
Rule 21.6 provides, "The defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposed or suspends sentence in open court." Tex.R.App. P. 21.6. The Texas Court of Criminal Appeals, finding the word "present" to be "somewhat ambiguous" and resorting to extra-textual sources, determined the purpose or object sought to be obtained by this requirement "is to put the trial court on actual notice that a defendant desires the trial court to take some action on the motion for new trial such as a ruling or a hearing on it." Carranza v. State, 960 S.W.2d 76, 78 (Tex.Crim.App. 1998). The record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise brought the motion to the attention or actual notice of the trial court. Id. at 79. The majority opinion also quoted from the concurring opinion of Judge Overstreet,[2] which stated presentment must result in actual notice to the trial court and may be evidenced by the judge's signature or notation on a proposed order or by a hearing date set on the docket. Id. at 79-80. In Gumpert v. State, 48 S.W.3d 450, 458-59 (Tex.App.-Texarkana 2001, pet. ref'd), we held that mere filing of the motion for new trial was not sufficient to show "presentment" as required by the rule; the record must show the movant actually delivered the motion to the trial court or otherwise brought it to the attention or actual notice of the trial court.
Hernandez has cited Daniels v. State, 63 S.W.3d 67 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd), which addressed the issue of sufficient "presentment" of the motion for new trial and held the presentment there was sufficient. The record in that case contained a docket entry: "Motion for New Trial was presented to the Court." The Fourteenth Court of Appeals held that, based on this docket entry, the trial court had the required actual notice of the motion within ten days of the date of its filing and the defendant had fulfilled his obligation under Rule 21.6. Id. at 69.
Daniels is distinguishable from this case, as there is nothing in the record to substantiate that the trial court had "actual notice." The handwritten notation *32 in which counsel states he spoke with a substitute coordinator "@ 49 San Jacinto @1100 on 6/14/01," contains only the unilateral assertion by counsel of his conversation with court personnel on the date indicated. It does not contain acknowledgment of presentment to the judge, the coordinator, or to anyone else who could speak for the court. Significantly, the docket sheet in this case shows only the filing of the motion.[3]
After oral argument and submission of this case, Hernandez filed a motion to supplement the record on appeal, or in the alternative, to abate the appeal to the trial court to make findings of fact concerning the "presentment" of the motion for new trial. The purpose was to facilitate a showing by Hernandez that the trial court was properly presented with the motion. Accompanying the motion to supplement was the affidavit of a former Harris County assistant district attorney who handled the Hernandez case. This affidavit states that, because a tropical storm caused flooding of the Harris County Criminal Justice Center in June 2001, normal trial dockets were not being heard at that time, and offices of both the courts and the district attorney had to be relocated. The affidavit asserts that both the judge and the court coordinator in Hernandez' case had actual notice of the filing of the motion for new trial, and that it was the judge's stated intention to rule on the motion based solely on affidavits. Hernandez' motion to supplement is also supported by copies of two letters from appellate counsel, acknowledging the difficulties under which the courts were operating at that time because of the flooding.
In Yarbrough v. State, 57 S.W.3d 611 (Tex.App.-Texarkana 2001, pet. ref'd), we held that, under the Rules of Appellate Procedure, specifically Tex.R.App. P. 34.1, we are not permitted, in a direct appeal, to consider affidavits not before the trial court, except regarding matters affecting our jurisdiction. Id. at 615. Rule 34.1 defines the contents of an appellate recordthe clerk's record and the reporter's record. We held that affidavits filed solely in the appellate court do not properly fall into either part of the record and, therefore, cannot properly be considered by a court of appeals. Id. at 616. This is, in principle, no different from the Texas Court of Criminal Appeals' admonition that claims of ineffective assistance of counsel must be "firmly founded" in the record and that such claims are often "inappropriate" for determination on direct appeal. Thompson v. State, 9 S.W.3d 808, 813 n. 5 (Tex.Crim.App.1999).
While we are aware of the flood in the Houston area during significant time periods in this case, the Rules of Appellate Procedure and caselaw do not permit us to consider matters which are, under the rules, outside the record. This is in accord with the basic function of an appellate court and the basic concept of an appeal. An appeal is a review by a superior court of an inferior court's decision and may, generally, be used to obtain a review of a judgment for errors apparent on the face of the record, determine whether error occurred in the proceedings leading up to *33 the judgment, or determine the validity of the judgment itself. However, an error in fact that is not exhibited by the record cannot be corrected by such review. 4 Tex. Jur.3d Appellate Review §§ 1, 2 (1999).
The record does not contain an acknowledgment of presentment of the motion for new trial to the trial court, and the docket sheet does not show presentment. Based on the applicable law and the lack of proof in the record of actual notice, as required, we hold Hernandez did not timely "present" the motion for new trial to the trial court.
Even assuming Hernandez' motion for new trial was properly presented to the trial court, we hold the motion and affidavits, even if assumed to be true, were not sufficient to grant Hernandez a new trial.
When an accused properly presents a motion for new trial, raising matters not determinable from the record, which would entitle the accused to relief, it is an abuse of the trial court's discretion to fail to hold a hearing on the motion. King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000); Reyes v. State, 849 S.W.2d 812, 815-16 (Tex.Crim.App.1993). The motion must be accompanied by affidavit(s), specifically showing the truth of the grounds of attack. King, 29 S.W.3d at 569; Edwards v. State, 37 S.W.3d 511, 514 (Tex. App.-Texarkana 2001, pet. ref'd). If the affidavits do not supply reasonable grounds which would entitle the accused to the relief sought, the trial court does not abuse its discretion in refusing to hold a hearing. King, 29 S.W.3d at 569; Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim. App.1994). While the affidavits are not required to reflect every argument legally required to establish relief, the motion or affidavits must reflect that reasonable grounds exist for holding that such relief could be granted. Edwards, 37 S.W.3d at 514.
Hernandez' motion for new trial contends that his plea of guilty was involuntary and that he was denied effective assistance of counsel due to erroneous assurances from trial counsel regarding his punishment. Hernandez' affidavit attached to the motion for new trial states that he did not commit the crime with which he was charged, that his trial counsel had been pressuring him to accept a two-year plea-bargained sentence offered by the State, and most significantly, that on the day he was to enter his plea, he received assurances from trial counsel that he would receive community supervision. The affidavits of his relatives, also attached to the motion for new trial, are to the same effect, that trial counsel told Hernandez that, if he pled guilty, he would receive community supervision. Hernandez further stated in his affidavit the only reason he pled guilty to the offense charged was because he got such assurances from his attorney.
The matter of whether the plea of guilty in this case was voluntary or involuntary is determinable from the record. At the plea hearing, Hernandez stated in open court, and in writings submitted to the court, that he was guilty of the crime for which he was charged, that he was aware his plea of guilty was without an agreed recommendation as to punishment, and that the trial court could and would consider the full range of punishment authorized by law. Hernandez further acknowledged that his plea of guilty was not the result of force, threats, or promises, and that he was satisfied with his lawyer's representation.
An attestation of voluntariness at the plea hearing creates a heavy burden for the appellant to show involuntariness at a subsequent hearing. Valle v. State, 963 S.W.2d 904, 909 (Tex.App.-Texarkana 1998, pet. ref'd). In Messer v. State, 757 *34 S.W.2d 820 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd), the defendant entered a plea of no contest, telling the trial court at the plea hearing that no one had "forced, threatened, or coerced" him in any way in the entry of his plea. He testified that he was entering his plea voluntarily and that he recognized it was an open plea without recommendation by the state. A PSI report was ordered, and the defendant was specifically advised the state reserved the right to argue for whatever punishment it felt appropriate at a later hearing. Id. at 822. At a hearing on his motion for new trial, Messer testified that his nolo contendere plea was entered strictly because his attorney advised him he would get probation. Id. Trial counsel testified that, based on an informal meeting with the judge and the prosecutor, she thought if the defendant entered a no contest plea, his sentence would be probated, and that she so advised the defendant. Id. at 823-24. Trial counsel acknowledged that her perceptions of what occurred at this meeting were mistaken and that her advice to the defendant as to the promise of probation was unprofessional and incorrect. Id. at 826. Notwithstanding this testimony, the Houston court held:
The statements made to appellant by his defense counsel about the punishment he might expect if he pleaded no contest simply constituted counsel's predictions, albeit erroneous ones, about the logical outcome of certain trial strategy. In view of the clear admonitions given by the trial court before the plea, which both the appellant and his counsel admit they understood, appellant cannot credibly contend that his plea was involuntary and that he was denied effective assistance of counsel.
Id. at 826.
Further, in the opinion on the appellant's motion for rehearing, the court stated:
Here, the testimony presented by appellant and his counsel at the new trial hearing shows that counsel was fully apprised of the trial court's intent to consider all factors before making an assessment of punishment. Having assured the court that his plea was voluntary and not based on any promises or inducements ... appellant cannot now complain that his counsel was ineffective in advising him about the court's intent in assessing punishment.
Id. at 828 (op. on reh'g).
In Messer, trial counsel admitted giving her client unjustified assurances of a probated sentence. However, she and the defendant acknowledged the judge told them in open court of the full range of punishment available, and that no assurances of a specific punishment had been made. In the instant case, there is no affidavit from trial counsel at all. Even if we accept as true Hernandez' assertions of counsel's assurances, and accept as true all other witnesses' testimony that trial counsel told him he would get probation, we agree with the holding of the Houston court that such assurances, albeit erroneous, cannot overcome the admissions Hernandez made in open court that his plea was voluntary, with full knowledge of the court's sentencing options.
The trial court did not abuse its discretion by not holding a hearing on Hernandez' motion for new trial.
Hernandez contends his trial counsel rendered constitutionally ineffective assistance in two respects: one, the giving of erroneous advice as to his prospects for community supervision, and two, for failing to heed the warnings of Hernandez' present appellate counsel regarding the unavailability of the State's witnesses at the *35 punishment hearing and calling Hernandez to testify at that hearing.
When confronted by a claim of ineffective assistance, the two-pronged analysis of Strickland v. Washington[4] is utilized to determine whether the accused did not receive constitutionally effective assistance of counsel. Under the first prong of the Strickland test, an appellant must show counsel's performance was deficient, i.e., show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. To be successful in such a claim, an appellant must show counsel's representation fell below an objective standard of reasonableness. Under the second prong, an appellant must show the deficient performance jeopardized his defense. The appropriate standard for judging prejudice requires an appellant to show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000); Smith v. State, 40 S.W.3d 147, 149 (Tex.App.-Texarkana 2001, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the ineffective assistance. When determining the validity of a defendant's claim of ineffective assistance, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. When the record is silent, i.e., when there is nothing in the record to reflect counsel's reasons for actions or inactions, and plausible explanations exist, the appellate court should presume trial counsel made all significant decisions in the exercise of professional judgment. Valdes-Fuerte v. State, 892 S.W.2d 103, 112 (Tex.App.-San Antonio 1994, no pet.).
Regarding the claim of ineffective assistance based on counsel's assurance of a probated sentence, we refer to Messer, cited above. The Houston court held in that case the second prong of the Strickland test could not be met where the defendant and his attorney were specifically advised in open court that all punishment options were available, and where they specifically stated that no promises had been made, and where the defendant stated that he understood the trial court could assess any appropriate punishment. Messer, 757 S.W.2d at 828.
To successfully attack a guilty plea for ineffective assistance, a defendant must show counsel's alleged deficiencies caused his plea to be unknowing and involuntary. This standard requires a defendant to show there is a reasonable probability that, but for counsel's errors, defendant would not have pled guilty, but would have insisted on going to trial. State v. Kelley, 20 S.W.3d 147, 151 (Tex. App.-Texarkana 2000, no pet.). Hernandez stated in open court, and he and his counsel signed documents reflecting, that his plea was voluntary and made with full knowledge of potential punishments.
Regarding the decision to call Hernandez to testify at the punishment hearing, we note the silence of the record regarding trial counsel's reasoning in making this determination. No affidavit submitted *36 with the motion sets forth counsel's strategy, and for the reasons stated above, we are precluded from considering appellate counsel's assertion, made in a post-submission motion to this Court, concerning his unsuccessful attempts to obtain trial counsel's affidavit. We will make a full inquiry into counsel's strategy or tactics only if, from all appearances after trial, there is no plausible basis in strategy or tactics for such counsel's actions. We will not second-guess counsel's trial strategy; nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Matlock v. State, 20 S.W.3d 57, 59 (Tex.App.-Texarkana 2000, pet. ref'd). The State offers the plausible explanation that trial counsel may have adopted the strategy of fully disclosing Hernandez' past misdeeds, and argue that he had reformed and would be an appropriate candidate for community supervision. In closing argument, trial counsel stressed Hernandez' difficult upbringing, his present support of three children, and that he had learned from his mistakes.
While present appellate counsel may have chosen a different strategy in attempting to keep out these prior prison disciplinary violations, we conclude Hernandez' affidavits, even if true, would fail to overcome the recognized presumption in favor of a viable trial strategy.
We find no reasonable basis on which the motion for new trial should have been granted, even if the testimony contained in the affidavits was found to be true. We therefore find no abuse of discretion by the trial court in failing to conduct a hearing on Hernandez' motion.
We affirm the judgment.
NOTES
[*] William J. Cornelius, C.J., Retired, Sitting by Assignment
[1] Hernandez was twenty-three years old at the time of trial.
[2] The majority opinion called it "essentially the same holding as that set out in this opinion." Carranza v. State, 960 S.W.2d 76, 80 (Tex.Crim.App.1998).
[3] Generally, docket sheets are not evidence. Rodriguez v. State, 834 S.W.2d 592, 595 (Tex. App.-Houston [1st Dist.]), pet. granted in part & ref'd in part; remanded in part on other grounds, 844 S.W.2d 744 (Tex.Crim.App. 1992). However, "[a] docket entry may supply facts in certain situations, but it cannot be used to contradict or prevail over a final judicial order." N S W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex.1977) (citing Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939); Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561 (1937); Ex parte Rains, 113 Tex. 428, 257 S.W. 217, 220 (1923); Stark v. Miller, 63 Tex. 164 (1885)).
[4] 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This standard was adopted as the standard for claims made under the Texas Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579884/ | 84 S.W.3d 320 (2002)
Lawrence EHRIG and Norma Ehrig, Appellants,
v.
GERMANIA FARM MUTUAL INSURANCE ASSOCIATION, Appellee.
No. 13-01-200-CV.
Court of Appeals of Texas, Corpus Christi.
July 25, 2002.
Rehearing Overruled September 19, 2002.
*321 Robert W. Loree, Tommy Hernandez, San Antonio, for Appellants.
Paul A. Ehlert, Ehlert & Betts, Brenham, for Appellee.
Before Justices DORSEY, YAÑEZ, and RODRIGUEZ.
OPINION
Opinion by Justice DORSEY.
This is a suit on a homeowner's insurance policy containing a two-year contractual limitations provision.[1] Lawrence and *322 Norma Ehrig sued Germania Farm Mutual Insurance Association ("Germania") after it denied their claim for foundation damage to their home. Germania moved for summary judgment on the grounds that the two-year contractual limitations provision, along with the applicable two-year statutory limitations provisions, barred all of the causes of action. The trial court granted summary judgment on all the causes of action. The issue on appeal is whether Germania established as a matter of law that limitations barred the Ehrigs' suit. We reverse and remand.
I. ALLEGATIONS AND PROCEDURAL BACKGROUND
The Ehrigs bought a homeowners insurance policy from Germania to insure their home against damage caused by plumbing leaks. Their home allegedly sustained foundation damage due to sewer-line leaks, so they filed a claim with Germania, which hired Gerloff Plumbing Co. to conduct plumbing tests on the home. In its report Gerloff noted several substantial leaks in the plumbing drain system under the home. Germania then hired an engineering firm, Rimkus Consulting Group, to investigate and report on the cause of the foundation movement and related damage. In its engineering report Rimkus concluded that there was no foundation damage caused by the plumbing leaks. Germania denied the claim.
The Ehrigs filed suit against Germania on July 10, 1998, alleging claims for breach of contract, negligence, breach of the duty of good faith and fair dealing, and violations of the DTPA and Texas Insurance Code. Germania moved for summary judgment on all of the causes of action, alleging that limitations on each cause of action commenced on May 15, 1996, the date that Germania orally informed Mr. Ehrig of its decision to deny the claim. Because the Ehrigs did not file suit until July 10, 1998, Germania argued that the Ehrigs did not file suit within the statutory and contractually mandated two-year limitations periods.
The Ehrigs responded that Germania sent them a "No Claim" notice, indicating that it had denied their claim on May 15, 1997. Afterwards they continued to discuss the case with Germania and requested a copy of the Rimkus engineer's report. Germania sent them the report and met with them to discuss it. On July 11, 1996, Germania sent them another "No Claim" notice, indicating that it had denied their claim on July 11, 1996. The Ehrigs contended that limitations commenced on July 11, 1996, and because they filed suit on July 10, 1998, the two-year limitations provisions did not bar their causes of action.
The trial court granted Germania's motion for summary judgment. The Ehrigs appeal from that judgment. The Ehrigs did not move for summary judgment on any of their causes of action.
II. STANDARD OF REVIEW
The standards for reviewing a summary judgment motion are well established: (1) the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed material fact issue exists precluding summary judgment, we take as true evidence favorable to the nonmovant; and (3) indulge every reasonable inference in the nonmovant's favor and resolve any doubts in its favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).
A trial court should grant a defendant's motion for summary judgment if it either disproves at least one essential element of each of the plaintiff's causes of action or establishes all the elements of an affirmative defense. American Tobacco *323 Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). When a defendant moves for summary judgment on an affirmative defense, it must prove each essential element of the defense as a matter of law, leaving no issue of material fact. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).
Germania moved for summary judgment on the affirmative defense of limitations. Thus, it had the burden to establish conclusively the applicability of the statute of limitations. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975); see also Hill v. Milani, 678 S.W.2d 203, 204 (Tex.App.-Austin 1984), aff'd, 686 S.W.2d 610 (Tex. 1985). As a part of this burden Germania had to establish as a matter of law the date upon which limitations commenced concerning the Ehrigs' causes of action. See Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 412 (Tex.App.-Corpus Christi 1988, no writ).
III. ANALYSIS
By issue one the Ehrigs assert that the trial court erred by granting summary judgment on the basis that limitations barred their causes of action. The question of when a cause of action accrues is a question of law for the trial court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). A cause of action generally accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998). Here, the facts authorizing the Ehrigs to seek a judicial remedy occurred when Germania denied their claim. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829 (Tex.1990); Peña v. State Farm Lloyds, 980 S.W.2d 949, 953, 954 (Tex.App.-Corpus Christi 1998, no pet.) (bad-faith insurance claim accrues on date insurer denies coverage). The same rule applies to insurance code and DTPA claims. Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 100 (Tex. 1994); Peña, 980 S.W.2d at 953. Thus, for purpose of the running of limitations the issue is when did the Ehrigs' causes of action accrue?
Germania argues that all of the Ehrigs' causes of action accrued, and limitations commenced, on May 15, 1996, the date Germania, through its adjuster, Leon Willingham, orally informed Mr. Ehrig that the claim was denied. On the other hand, the Ehrigs contend that limitations commenced on July 11, 1996, the date Germania denied their claim in writing in the second "No Claim" notice.
Willingham testified in his deposition that on May 15, 1996, he personally told Mr. Ehrig that the claim was denied. However, at that time he did not give Mr. Ehrig any written notice confirming this denial. The Ehrigs do not dispute that Willingham made that statement on that date; rather, their contention is that they did not consider the oral statement made on that date to constitute an "outright denial" of coverage because of conduct taken by Germania immediately after the oral denial. According to the Ehrigs the oral denial of coverage was not a final resolution of the question of whether Germania was denying their claim. Immediately after the oral denial Mr. Ehrig asked Willingham to give him a copy of the engineering report conducted by Rimkus Consulting Group, the engineering firm hired by Germania. Germania provided a copy and also sent a form entitled "No Claim" to the Ehrigs that stated their claim was denied because the proximate cause of the loss was not a "named peril" of the policy coverage conditions. This form was completed by Willingham. It was dated May 17, 1996, and listed the date of denial of coverage as May 15, 1997 rather than May *324 15, 1996. Germania contends the mistaken year date was a typographical error. The report contains the following comments:
On the date of 5/15/96 I met Mr. Lawrence Ehrig at his store and went over the Rimkus Consulting Group, Inc. report of findings, foundation evaluation and supplemental letter of findings. I explained to Mr. Ehrig the findings in the reports; the damage was caused from settlement over a period of time and not from the AWD [accidental water discharge] loss. Mr. Ehrig stated that he would like a copy of the reports. Attached is a letter from Mr. Ehrig stating that he would like a copy of the reports. There will not be any coverage to the outside or inside to the dwelling. Attached to this report is the copys [sic] of both reports that I stated above to Mr. Ehrig.
Less than two months after sending the May "No Claim" notice Germania sent two representatives to again speak with the Ehrigs. Willingham and another Germania representative, David May, met with Mrs. Ehrig at the Ehrigs' home to discuss the engineering report and denial of the claim. The following day David May sent a second "No Claim" notice to the Ehrigs noting the date of the report to be July 11, 1996, and, this time, listing the date of denial of coverage as July 11, 1996. This report also contained the following comments:
On 7-10-96 Leon Willingham and I [David May] met with Mrs. Ehrig to Discuss [sic] an engineering report. The report was prepared by Mr. Roger Garza, P.E., at our request and as a result of an accidental water discharge reported to Germania.... Leon and I explained to Mrs. Ehrig that Mr. Garza's findings indicated that no structural damage had been done to the dwelling as result of the water discharge. We explained further that Mr. Garza determined that the damage to the dwelling was caused by settlement. We went on to explain policy provisions that exclude earth movement, settlement and cracking of foundations.Though Mrs. Ehrig understands our viewpoint, she is in dissagreement [sic] with Mr. Garza and indicated that she may request appraisal.
We start from the premise that the law is well settled that an outright denial of an insurance claim triggers commencement of the statute of limitations period for causes of action stemming from the denial of coverage. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828, 829 (Tex.1990). The question in this case is whether the first oral denial of the claim constituted an unambiguous, "outright denial" of the Ehrigs' claim which triggered commencement of the statute of limitations period.
The Ehrigs, in part, rely on the application of Article 21.55, Section 3(a) of the Texas Insurance Code, which states that "an insurer shall notify a claimant in writing of the acceptance or rejection of the claim not later than the 15th business day after the date the insurer receives all items, statements, and forms required by the insurer...." Tex. Ins.Code Ann. art. 21.55, § 3(a) (Vernon Supp. Pamph.2002) (emphasis added); Oram v. State Farm Lloyds, 977 S.W.2d 163, 167 (Tex.App.-Austin 1998, no pet.).
As authority for its argument Germania relies on Kuzniar v. State Farm Lloyds, 52 S.W.3d 759 (Tex.App.-San Antonio 2001, pet. denied), which states that the closing of an insurance claims file was sufficient to trigger commencement of the limitations period and that the statute requiring insurers to provide written notice does not affect commencement of the two-year contractual *325 limitations provision in a homeowners insurance policy. In Kuzniar the court stated:
The legal injury in this case occurred when State Farm unreasonably failed to pay the Kuzniars' claim, which at the very latest was when the claim file was closed on January 13, 1993. The Kuzniars argue, however, the legal injury should derive from State Farm's failure to comply with its statutory duty to timely accept or reject the policy claim. But the failure to comply with a statutory duty has nothing to do with, and fails to vitiate, the Kuzniars' own responsibility to exercise diligence in pursuing their claim. The closing of the claim file was an objectively verifiable event that unambiguously demonstrated State Farm's intent not to pay the claim, "even if the fact of injury [was] not discovered until later."
Kuzniar, 52 S.W.3d at 760 (footnote and citation omitted).
However we do not find Kuzniar helpful in determining the ultimate issue in our case. Kuzniar involved a situation where the insureds were never notified that their claim was denied. Id. The Kuzniars reported a plumbing leak to State Farm in 1992. State Farm sent out an adjuster, who told the Kuzniars to hire a plumber to investigate the leaks. The Kuzniars, apparently, took no action for approximately one year and did not contact State Farm regarding the claim again. State Farm closed the file in 1993. The Kuzniars filed suit for denial of the claim in 1996. State Farm won a summary judgment based upon the two-year contractual limitations provision, and the Kuzniars appealed.
The appellate court affirmed the trial court's summary judgment by holding that accrual of the Kuzniars' cause of action was determined by the "legal injury rule." Id. at 760. Under the legal injury rule, "a cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later." Id. (quoting S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996)). The Kuzniars argued that State Farm's failure to promptly notify them of the rejection of the claim tolled the accrual date of the cause of action. However the appellate court pointed out that "[t]he legal injury in this case occurred when State Farm unreasonably failed to pay the Kuzniars' claim, which at the very latest was when the claim file was closed on January 13, 1993." Id. We do not see how the reasoning and analysis in Kuzniar sheds light on the question of whether the first or the second of two potential dates of denial of an insurance claim triggers accrual of a cause of action stemming from the denial.
The Texas Supreme Court has stated that "when there is no outright denial of a claim, the exact date of accrual of a cause of action ... should be a question of fact to be determined on a case-by-case basis." Murray, 800 S.W.2d at 833 n. 2. While the statement in Murray is dicta, and refers to a scenario where an insurance company is, effectively "stringing along" an insured with no denial or payment of a claim, we believe that reasoning applies here. Accordingly we hold that the question of whether the oral denial of the Ehrig's claim alleged to have occurred on May 15, 1996 constituted an "outright denial" sufficient to trigger the commencement of limitations is a question of fact for the jury's determination. The essence of the legal injury rule is that a party is responsible for pursuing legal remedies when the party becomes aware of facts giving rise to a legal injury. When the facts are arguably not clear enough to put the aggrieved party on notice of a legal injury, the question of whether the facts are sufficient to put the party on notice or *326 not should be determined by the factfinder.
Accordingly, we reverse the trial court's grant of summary judgment on the limitations issue, and remand the case for trial. We sustain the first issue.
Due to our disposition of the above issue we need not address the Ehrigs' remaining issues. Tex.R.App. P. 47.1.
We REVERSE the judgment and REMAND the case for trial.
NOTES
[1] The insurance policy stated at Section X.-CONDITIONS, paragraph fifteen: "Suit Against Us. No suit or action can be brought unless the policy provisions have been complied with. Action brought against us must be started within two years and one day after the cause of action accrues." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579849/ | 392 F. Supp. 1134 (1974)
STEEL HILL DEVELOPMENT, INC.
v.
The TOWN OF SANBORNTON.
Civ. A. No. 73-280.
United States District Court, D. New Hampshire.
December 30, 1974.
*1135 David J. KillKelley, Nighswander, Lord, Martin & KillKelley, Laconia, N. H., for plaintiff.
Peter V. Millham, Wescott, Millham & Dyer, Laconia, N. H., for defendant.
*1136 OPINION
PETTINE, Chief Judge.[*]
This case involves a second attempt by the plaintiff to have declared unconstitutional the zoning ordinance of the Town of Sanbornton as it relates to plaintiff's property located therein. The factual background leading up to the instant Complaint can be gleaned from the previous opinion of this Court as well as that of the Court of Appeals for the First Circuit, see Steel Hill Development, Inc. v. Town of Sanbornton, 338 F. Supp. 301 (D.N.H.), aff'd 469 F.2d 956 (1st Cir. 1972). These cases will hereinafter be referred to collectively as "Steel Hill I" with citation to the relevant opinion where necessary. Therefore, only a brief review of the essential facts established in the prior litigation is necessary.
The plaintiff corporation is the owner of approximately 500 acres of land acquired in 1969 and located within the Town of Sanbornton. Prior to March 9, 1971, the land owned by plaintiff (the "Steel Hill tract") was entirely within a zoning area requiring a minimum lot size of 35,000 square feet, or about three-fourths of an acre. On March 9, 1971, the defendant, by its Town Meeting, adopted amendments to the zoning ordinance. As a result of these amendments, approximately 70% of the Steel Hill tract is now within a zone requiring 6 acre minimum lot size and approximately 30% in an area zoned for 3 acre minimum lots. As a result of these zoning changes, plaintiff was unable to go forward with its proposed development of the Steel Hill tract, according to a "cluster" plan, to subdivide the tract into 500 to 515 family units comprising a four-season recreation community.
On February 17, 1972, this Court entered judgment for defendant Town finding, on the facts before it, that the zoning amendments were not so arbitrary or unreasonable as to deprive the plaintiff of any rights guaranteed under the United States Constitution. 338 F. Supp. 301. That decision was affirmed, in an opinion written by Chief Judge Coffin, 469 F.2d 956 (1st Cir. 1972).
The instant Complaint was filed on November 9, 1973, alleging that subsequent to the decision in the First Circuit in "Steel Hill I", the plaintiff has altered its plan of development from a four-season recreation community to a mobile home development which allegedly "will fulfill the overwhelming public need in the region for economical housing for all segments of society." Plaintiff further alleges that the lot size restrictions incorporated into the zoning ordinance make a mobile home development subdivision prohibitive, that therefore the ordinance is exclusionary, arbitrary, discriminatory, and totally unrelated to the public health, safety, morals and general welfare of the Town. Based on the foregoing allegations, plaintiff claims the ordinance is violative of New Hampshire Revised Statutes Annotated (N.H.R.S.A.) 31:60, and the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, as well as violative of the right to travel. Plaintiff seeks declaratory and injunctive relief; jurisdiction is alleged under 42 U.S.C. §§ 1983 and 1985.
Prior to trial defendant moved for judgment on the pleadings and for dismissal, primarily relying on the theory that the doctrines of res judicata and collateral estoppel would bar relitigation of the constitutionality of the Town's zoning ordinance as it pertains to plaintiff's property, an issue decided in defendant's favor in "Steel Hill I." As to the issue of res judicata (also referred to as "claim preclusion") this Court, 392 F. Supp. 1144, held in its memorandum opinion of June 25, 1974:
"It is the opinion of this Court that the plaintiff's alteration of its plan of development for the Steel Hill tract, *1137 as alleged in the Complaint, is of such overriding significance that the judgment rendered in `Steel Hill I,' based as it was on a totally distinct proposal for the use of plaintiff's property, cannot serve as conclusive on the legal issues raised herein, and that the instant action is not, therefore, precluded on the theory of res judicata. In reaching this conclusion, the Court takes particular note of the emphasis in the First Circuit's opinion in `Steel Hill I' on the `stop gap' nature of its qualified approval of the Town's zoning ordinance. It is highly significant that the proposed development therein involved was intended to create a demand for seasonal homes designed primarily for wealthy urbanites rather than serve to meet an already existing local need for first homes." Id. at 1148 (footnote omitted; emphasis in original).
While this Court found no res judicata bar to the instant action, the question as to which issues were foreclosed herein by reason of collateral estoppel was reserved for subsequent determination. In particular, it remains defendant's position that the District Court in "Steel Hill I" determined that the three acre minimum lot size restrictions (affecting approximately 30% of the Steel Hill tract) were reasonable and justified to protect the public health, clearly a legitimate zoning objective, see Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926), and that this finding was affirmed by the Court of Appeals and is binding on this Court in the instant case, despite the change in the type of development proposed.
This Court reserved ruling on this issue prior to trial.[1] At this stage of the proceedings, the question of whether the reasonableness of three acre minimum lot size restrictions on the Steel Hill tract is foreclosed by the decisions in "Steel Hill I" is again before me by way of a motion to dismiss on behalf of the defendant at the close of plaintiff's case. Fed.R.Civ.P. 41(b). The record is sufficiently clear at this point to overcome the Court's earlier reluctance to rule on this point.
It is settled that the following criteria must be answered in the affirmative before an issue will be considered concluded under the doctrine of collateral estoppel:
". . . whether the issue sought to be concluded is the same as that involved in the prior action; was litigated in the prior action; was in fact judicially determined in the prior action; and whether the judgment in the prior action was dependent upon the determination made of the issue." 1B, J. Moore, Federal Practice, ¶ 0.443 [1] at 3902.
Two specific passages from the "Steel Hill I" decisions point unequivocally towards an affirmative answer to each of the aforementioned criteria. In the District Court, Judge Bownes stated as follows:
"If I were to decide this case based solely on the question of whether the lot sizes were reasonably necessary from the standpoint of health and safety, I would find that the three acre minimum provided adequate insurance for the problems of sewage disposal and drainage that are inevitable in this type of soil and that the six acre minimum was not reasonably necessary." 338 F.Supp. at 305.
Any doubts that the above quoted language was not a judicial determination *1138 of reasonableness from the standpoint of health and safety, or that the decision as to the reasonableness of three acre minimum lot sizes was not dependent on this finding regarding health and safety, are laid to rest by the express holding of the appellate court:
"The district court found that, as the Sanbornton Planning Board had itself determined topograph and soil conditions posed severe problems of pollution, improper sewage disposal, poor drainage and erosion to large-scale development of the Steel Hill tract, justifying imposition of the three-acre minimum lot size requirement in accordance with the public health. We have carefully read the conflicting trial testimony of the various experts who expressed an opinion on these matters and cannot say that the court's finding is clearly erroneous. In any event, appellant does not seem to challenge that ruling, but rather directs its argument to the unreasonableness of the six acre lot requirement." 469 F.2d at 960 (emphasis added).
Thus, regardless of any arguable ambiguity as to the basis of the District Court's finding regarding three acre minimum zoning, the Court of Appeals unmistakably interpreted the lower court opinion as upholding such minimum lot size restrictions on the basis of public health.
"If a judgment has been reviewed by an appellate court, the appellate court's judgment, insofar as it differs from the judgment reviewed, determines what is concluded under the doctrines of res judicata and collateral estoppel." 1B, J. Moore, Federal Practice, ¶ 0.416[1] at 2201.
Plaintiff obviously sought a determination as to the reasonableness of both the three and six acre restrictions in its previous complaint in "Steel Hill I" and it cannot now claim that the three acre issue was not before the courts for determination.
Thus, even if the three acre restrictions were additionally found to be justified on the more expansive "general welfare" rationale employed in relation to the six acre restrictions, the mere existence of another possible ground for a judgment does not negate the collateral estoppel effect of a determination based on the more narrow findings. See Irving National Bank v. Law, 10 F.2d 721 (2d Cir. 1926). See generally, J. Moore, supra, paragraph 0.443 [5].[2]
Plaintiff would urge, however, that the issue of "reasonableness" as it relates to the three acre restrictions is not the identical issue that was before the courts in "Steel Hill I" by virtue of a subsequent change in facts, to wit, the modification of its development plan from a proposal for "four season recreational homes" to be marketed to relatively prosperous vacationers, to a proposal for a mobile home condominium development geared toward meeting the primary housing needs of the low and moderate income residents of the region.
This Court expressly reserved ruling on the question of the effect of a change in development plan on the conclusiveness of the prior determination regarding three acre zoning so that it might explore more fully the exact nature of the change in plan as it related to sewage disposal and the newly injected "exclusionary zoning" issue left open by the decisions in "Steel Hill I." See note 1 supra. After considering plaintiff's *1139 evidence in this case, and once again reviewing the transcript of the prior trial and the decisions rendered in "Steel Hill I," the Court finds that the issue of the reasonableness of three acre minimum lot zoning, as it relates to plaintiff's property now in question, has been concluded in favor of the defendant and that such a finding is binding on this Court by reason of collateral estoppel, notwithstanding the plaintiff's modification of its development plan.
In reaching this conclusion, it is most helpful to analyze precisely what has not changed subsequent to the decisions in "Steel Hill I." Certainly no evidence has been adduced by plaintiff to indicate that the natural conditions of the land comprising the Steel Hill tract have undergone any change in recent years. To be sure, the general topography, slope and soil conditions which were before the Court in "Steel Hill I" are the identical conditions before me at this trial. While plaintiff has presented different witnesses at this trial relating to this issue, and new test pits were performed in order to analyze the acceptability of the soil for purposes of septic tank disposal (testimony of Harrow, Keller, Mayo, Cowan), it is clear that collateral estoppel cannot be avoided by discovery and introduction of new evidence bearing on a fact in issue in the absence of a subsequent event which creates a new legal situation. Southern Pacific R. Co. v. United States, 168 U.S. 1, 18 S. Ct. 18, 33, 42 L. Ed. 355 (1897).[3]
Secondly, plaintiff's own witness testified that the modified cluster plan for a mobile home development involves essentially the same number of units on the same amount of land as was proposed in the initial cluster plan at issue in "Steel Hill I," (Testimony of Mayo). Furthermore, Mr. Joseph Pepe, of the plaintiff corporation, admitted under cross-examination that the present plan was designed under the same cluster development concept as the previous plan, and that the locations for each unit were similar to the site locations proposed in the original plan.[4]
*1140 Finally it is clear that the engineering to be adopted by the plaintiff in attempting to overcome the problems inherent in septic tank disposal on this tract (i. e., on rocky and sloping land in which the natural soil layer above the impermeable sub-strata is relatively narrow) has not changed in any significant respect since the decisions rendered in the prior case. Plaintiff continues to propose the use of fill to form raised leaching fields designed to increase the layer of permeable soil for proper septic disposal.
Thus, with the topography unchanged, as well as a proposal to build the same number of units on essentially the same sites, and without any modification in plaintiff's design for septic tank disposal, the conclusion seems inescapable that this Court is presented with an attempt by the plaintiff to have relitigated the identical question concluded by the prior trial and appeal, an attempt which must fail under the doctrine of collateral estoppel.
A change in the material facts underlying a prior adjudication may well necessitate a redetermination of certain issues in light of the changed circumstances. See Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-602, 68 S. Ct. 715, 720-721, 92 L. Ed. 898 (1948); United States v. Certain Land at Irving Place and 16th Street, 415 F.2d 265, 269 (2d Cir. 1969). However, the mere change in the type of units to be placed on the site in question, the economic status of the proposed buyers of such homes, or the proposed change in the form of ownership of those units, cannot be material in opening the door to relitigation of three acre minimum zoning once such a minimum acreage requirement has been finally adjudicated to be reasonable on the basis of public health.[5]
Plaintiff argues further that the doctrine of collateral estoppel should not bar relitigation of the three acre issue in that plaintiff is asserting the constitutional rights of prospective buyers of Steel Hill homes, issues not before the Court in "Steel Hill I." It is asserted that new issues are before the Court, namely that the ordinance infringes on the right to travel and creates a suspect classification (discrimination on the basis of wealth), thus requiring the defendant to show a "compelling interest" in order to justify its ordinance. A mere "substantial relation" to the public health, safety, morals or general welfare *1141 of the community, the standard of review employed in "Steel Hill I," see 469 F.2d at 960, is alleged to be inapplicable to these changed circumstances. I cannot accept plaintiff's analysis in this regard.
Even assuming arguendo that this plaintiff has standing to assert the constitutional rights of prospective low-income homeowners who are non-parties,[6] the circumstances herein do not require application of a "compelling interest" or "least restrictive alternative" test.
Plaintiff's assertion that the right to travel is a "fundamental right" triggering a "compelling interest" standard of review under the equal protection clause cannot be disputed. Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Cole v. Housing Authority of City of Newport, 312 F. Supp. 692 (D.R. I.), aff'd 435 F.2d 807 (1st Cir. 1970). However, in each of the aforementioned cases, the issue under consideration was the validity of durational residency requirements which fell unequally on, and to the prejudice of, newcomers vis a vis long-term residents of a particular area. I fail to find an analogy in the present ordinance which affects all persons similarly, non-residents and residents alike. There having been shown no legislative classification falling unequally on outsiders, it cannot be said that the ordinance must be judged under a compelling interest standard.
Plaintiff also argues that the Town's ordinance discriminates against low and moderate income persons and as such is subject to strict judicial scrutiny, a standard not relevant in "Steel Hill I." Plaintiff relies on San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) for the proposition that wealth is a suspect classification under the equal protection clause. Rodriguez, however, rejected the theory that wealth discrimination alone is an adequate basis for invoking the strict scrutiny standard, 411 U.S. at 29, 93 S. Ct. 1278. The Court held that in the absence of evidence of discrimination against a "definable category of `poor' people" or evidence of an absolute deprivation by virtue of a complete inability to pay for some desired benefit, the strict scrutiny standard would not be invoked. I cannot find from the plaintiff's evidence that the Rodriguez criteria have been satisfied, and thus I decline to employ the strict scrutiny standard on that basis. Ybarra v. City of the Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974).
Since I find that this Court must look to the identical standard of judicial review as was employed in "Steel Hill I" in considering the constitutionality of this ordinance under the present facts, a departure from the doctrine of collateral estoppel on the basis *1142 of the applicability of a different legal standard is not warranted.[7]
In so ruling, the Court does not intend to belittle plaintiff's evidence of a genuine need in the region for some type of additional housing designed to meet the needs of the low and moderate income residents of the region. Although the extent of such need and the proposed development's suitability to meet such need remains open to some difference of opinion based on the evidence brought forward by plaintiff, it cannot be said that plaintiff has simply fabricated a need in order to justify its proposed development.[8] But even viewing the evidence on this question in the light most favorable to the plaintiff, I must find the earlier three-acre ruling to be conclusive. It is clear from the entire history of this litigation that Sanbornton has not zoned with the implied purpose of keeping any particular socio-economic group from residing within its borders. On the other hand, the Town has strenuously urged that the Steel Hill tract is simply not suitable for high density development and the Courts have agreed that a three acre lot size restriction, as it pertains to the Steel Hill tract, is reasonable due to the natural conditions of soil and topography. See Salamar Builders Corp. v. Tuttle, 29 N.Y.2d 221, 325 N.Y.S.2d 933, 275 N.E.2d 585 (1971). This Court would be engaged in a most unwarranted usurpation of judicial authority were it now to hold that the Town must permit a high density development at the Steel Hill site to meet a regional need for low and moderate income housing, despite an earlier finding that the Town acted reasonably in determining that this tract could not accommodate any housing at a density in excess of three acre lots.[9] This Court *1143 might have come to a different conclusion if it were faced with this issue initially, but the purpose for which collateral estoppel was created to prevent relitigation of issues once judicially determined mandates that I accept the prior finding as conclusive herein.
Such a ruling is not intended to imply approval of Sanbornton's entire zoning scheme as it relates to all land within the Town, nor is that issue before the Court.[10] The only question before this Court is whether the defendant's zoning ordinance, as it affects the land owned by the plaintiff, is so clearly arbitrary and unreasonable as to constitute a deprivation of constitutionally protected rights. In light of the prior finding relative to the reasonableness of three acre zoning at the Steel Hill tract, I cannot so hold. I would repeat, however, the caveat as expressed by the District Court that should the zoning laws of the Town become permanent barriers of exclusion and discrimination, redress may always be sought in the courts, 338 F. Supp. at 307.
It is encouraging that Sanbornton has begun to chart its course of future land use development through its participation in the Lakes Region Planning Commission. It is hoped that through such participation the Town will not avoid its obligations of cooperating with neighboring communities to solve regional land use and housing problems as they relate to all segments of the regional population. Surely, as the Court of Appeals recognized, natural population growth should not be "channelled by the happenstance of what town gets its veto in first," 469 F.2d at 962. On the other hand, it is certainly not the model of good planning to channel regional population growth by the happenstance of which developer wins its lawsuit first. The concept of planned regional growth has become increasingly recognized as a recommended mode of land use planning. See Note, 58 Cornell L.Rev. 1035, 1052 n. 76 and citations therein; N.H.R.S.A. 36:45 et seq.[11] Indeed, zoning to control density and for purposes of orderly growth has increasingly become accepted as permissible police power objectives. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974); Golden v. Planning Board of Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291 (1972), appeal dismissed, 409 U.S. 1003, 93 S. Ct. 440, 34 L. Ed. 2d 294 (1972); J. D. Construction Corp. v. *1144 Board of Adjustment of Freehold, 119 N.J.Super. 140, 290 A.2d 452 (Law Div. 1972). While under proper circumstances a judicial remedy may be the only redress against arbitrary and unreasonable zoning restrictions, such an issue, once determined, must be laid to rest unless a change has occurred which should subject the prior determination to rescrutiny. No such change has been shown by plaintiff to justify this Court's redetermination of the three acre question.
Since plaintiff's mobile home development plan fails to comply with even a three acre lot size requirement, a verdict may be directed for the defendant without the necessity of this Court reaching the issue of the reasonableness of six acre zoning in light of plaintiff's modified development plan.
Plaintiff's Complaint is hereby dismissed, pursuant to Rule 41(b), Fed.R. Civ.P.
NOTES
[*] Chief Judge, District of Rhode Island, sitting by designation.
[1] The reason for this Court's reservation of decision on this issue was expressed in my June 25, 1974 memorandum opinion, 392 F. Supp. at 1152:
". . . if natural population growth and housing needs in the area enter into the balance, which they did not in `Steel Hill I,' and if the plaintiff's modified development plan provides reasonable assurances of avoiding the problems of pollution, improper sewage disposal, poor drainage, and erosion, perhaps the balancing process would lead to a different conclusion as to the reasonableness of even a three-acre minimum."
[2] Cf. Woods v. Interstate Realty Co., 337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93 L. Ed. 1524 (1949) (". . . where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.") Accord Diagor Shipping Corporation v. Union Tank Car Company, 371 F.2d 722 (9th Cir. 1967).
It appears clear from the opinion of the Court of Appeals in "Steel Hill I" that even if the Court were to have rejected the "general welfare" theory in relation to the six acre issue, it upheld the three acre restrictions on an entirely different ground, namely on the basis of public health.
[3] Plaintiff argues at page 45 of its memorandum that:
"The Town of Sanbornton has no real justification for its exclusionary zoning. The plaintiff's experts testified that the proposed mobile home development conforms to good land planning practices (Testimony of Mr. Harrow), it conforms to good engineering practices (Testimony of Mr. Keller and Mr. Cowan) and there will be no adverse effect upon the welfare, health or safety of the Town if the development is allowed to proceed."
Furthermore, it is plaintiff's contention that the Sanbornton Comprehensive Town Plan (Pl. Exh. 17) indicates that the Steel Hill tract is situated in an area found to be suitable for almost all types of development. (Pl. memorandum at 72 et seq.) This evidence was either before the Court in "Steel Hill I" or is simply different proof going to the issues before the Court in the earlier proceeding, which could have been presented at that time. Under the doctrine of collateral estoppel I am not free to re-evaluate this evidence in light of the Court's earlier finding with respect to the three acre issue, and I am bound by the earlier determination.
[4] In its Memorandum at page 107 et seq., plaintiff attempts to distinguish the conventionally built homes proposed in "Steel Hill I" from the mobile homes proposed herein in relation to dangers from erosion and sewage. Apparently, plaintiff feels that this distinction is a sufficient change of factual circumstances to justify a redetermination of the three acre issue. With this contention I cannot agree. In the first place, there is nothing in the opinions of the Courts in "Steel Hill I" to indicate that the type of housing to be placed on the tract bore any significant relationship to the determination that three acre minimum lot restrictions were reasonable from the standpoint of public health. The Courts were obviously concerned with the density of the proposed development in relation to soil conditions and topography, not to the issue of whether mobile homes or conventional homes were to be placed on the sites. Secondly, this Court is unconvinced from the evidence put forward by plaintiff that the placing of mobile homes on the same number of sites on which conventional homes were to be placed in "Steel Hill I" would result in any significant distinctions with respect to the concerns which led to the earlier finding on the three acre issue. In fact, it might be argued that seasonal "second" homes, as was before the Court in "Steel Hill I," would be occupied less frequently than mobile homes designed for "first" homes of permanent residents and would thus result in a lesser environmental impact. For this reason, the Court finds unpersuasive the testimony adduced by plaintiff concerning differences in sewerage discharge as between mobile homes and conventional "stick built" homes. (Testimony of Beitler)
[5] If there were some proof that the Town was not willing to meet its responsibilities of providing adequate services to satisfy the needs of natural population growth, and that this was the primary motivation behind the three acre restriction, then the Town would face a heavy burden in justifying large minimum lot areas on that basis alone. See National Land and Investment Company v. Kohn, 419 Pa. 504, 215 A.2d 597 (1965); Appeal of Girsh, 437 Pa. 237, 263 A.2d 395 (1970); Oakwood at Madison, Inc. v. Township of Madison, 117 N.J.Super. 11, 283 A.2d 353 (1971). Yet the Courts in "Steel Hill I" did not rest a decision concerning the reasonableness of three acre zoning on an "additional burden" analysis, but found that natural conditions of the soil, beyond the control of the municipality, made reasonable the three acre restrictions in order to guard against improper sewage disposal and erosion. As to the three acre zoning at the Steel Hill tract, the Court did not accept the evidence that the municipality's primary purpose was to avoid additional burdens upon the administration of public services or to exclude a particular type of housing. Even those Courts that have given the closest scrutiny to the use of lot size restrictions as an exclusionary device have recognized that natural conditions, beyond the control of the municipality, might justify an otherwise unreasonable density regulation. National Land, supra; Oakwood at Madison, Inc., supra.
[6] The Court notes that the question of plaintiff's standing to assert the constitutional rights of non-parties received less than adequate treatment in plaintiff's Memorandum. Plaintiff merely cites Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974) to support its position, failing to recognize that in Belle Terre the landlord himself had been cited for violating a city ordinance and three tenants had joined in the action. The issue of standing to raise the rights of third persons who are non-parties has received much attention in the case law, and it is far from clear whether, according to these precedents, the plaintiff herein has such standing. See Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). See also Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969); Griswold v. Connecticut, 381 U.S. 479, 481, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). However, in light of this Court's ruling with regard to the substance of the claims raised on behalf of non-parties, I need not decide the issue of standing.
[7] Plaintiff's argument that the State has subsequent to "Steel Hill I" pre-empted the field of water and sewage regulation by virtue of state public health standards is unpersuasive. Fillmore v. Town of Sanbornton, 319 A.2d 103 (N.H.1974) stands as authority for the proposition that a municipality may enforce stricter requirements with regard to health regulations than those that might be required to receive state approval of a particular project. Furthermore, the New Hampshire Sanitary Laws and Regulations upon which plaintiff relies (Pl.Exh. 43) specifically refer to minimum requirements, and I do not find that by virtue of these regulations, a municipality is powerless to require stricter standards. See, e. g. Exh. 43, Regulation C, VI:
"A minimum of 10,000 feet shall be provided for each mobile home space. However, soil conditions may require larger areas to be provided." (emphasis added)
[8] As to the regional need for low and moderate income housing see Lakes Region Planning Commission, Initial Housing Element Addendum, 1973 at 4-10 (Exh. 19-A); Lakes Region Planning Commission, Overall Program Design, 1974-1975 at 14 (Exh. 25) ("Better quality and greater quantities of housing for low and moderate-income families and elderly is critical."); Lakes Region Planning Commission, Housing Needs Survey, 1973 (Exh. 20). As to the feasibility of mobile homes to meet such a need, see Lakes Region Planning Commission, Mobile Home Living in the Lakes Region, 1973 (Exh. 35); LeRoy et al, Mobile Home Residents in New Hampshire (1973) (Exh. 33). Several of plaintiff's witnesses testified to the housing shortage among low and moderate income residents of the Lakes Region, (Testimony of Simoneau, Hamilton, Harrow) and others testified concerning the feasibility and desirability of mobile homes to meet such a need (Testimony of Pepe, Neal, Plant, Beitler, Sparks (and Exh. 72)).
Defendant, by way of cross examination, attempted to demonstrate that the housing shortage was not as critical as plaintiff would represent and that plaintiff's mobile home development would fail to meet the needs of the low and moderate income residents of the region due to cost, distance from employment and shopping centers, and housing preferences.
[9] Plaintiff cites the Court to the following language from Village of Euclid v. Ambler Realty Co., supra, 272 U.S. at 390, 47 S.Ct. at 119:
"It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way."
In light of the earlier determination regarding three acre zoning, this Court cannot say that this case falls within any "exception" to the basic concepts of "Euclidean" zoning.
Plaintiff would also have this Court redetermine the issue of the Town's motivation in amending its zoning ordinance.
"There should be no question that the motive of the Town of Sanbornton in rezoning the Steel Hill tract to six acres in 1971 and the elimination of mobile home parks in 1972 was not because of any alleged soils `problems' but was specifically to prohibit and thwart any development of mobile home parks in the Town." Plaintiff's memorandum at 50.
However, the Courts in "Steel Hill I" specifically found that the three acre restrictions at the Steel Hill site were in accordance with the permissible zoning objective of protection of public health, and that finding forecloses a new finding by this Court that such a restriction was simply designed to exclude a particular type of housing.
[10] It cannot be said that any minimum acre zoning requirement is unconstitutional per se, National Land and Investment Company v. Kohn, 419 Pa. 504, 215 A.2d 597, 607-608, and to determine the constitutionality of a zoning ordinance beyond the facts and circumstances of a particular case would be to do so in a factual vacuum, which this Court will not do. Home Life Insurance Co. v. Board of Adjustment, 393 Pa. 447, 143 A.2d 21 (1958).
[11] Plaintiff attempts to summarize in its memorandum the attempts made by other municipalities in the region to restrict or exclude mobile homes from their borders (Pl. memorandum at 31). I find such an analysis lends greater support to the need for regional planning with regard to the placement of mobile homes. Plaintiff has also shown that there presently exists a demand in the Lakes Region for 527 mobile homes. (Pl. Exh. 26 at 4-3) Sound regional planning might well dictate that the obligation to meet this need be spread throughout the region, whereas plaintiff's proposal would insist that the Town of Sanbornton bear the entire burden of satisfying the regional need for mobile homes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579885/ | 324 N.W.2d 381 (1982)
In the Matter of the ESTATE OF James J. SERBUS, Sr., Deceased.
John F. SERBUS, Personal Representative of the Estate of James J. Serbus, Sr., Deceased, petitioner, Appellant,
v.
Mary SERBUS, Respondent.
No. 51799.
Supreme Court of Minnesota.
October 1, 1982.
*382 Joseph W. Parris, and Donald W. Fett, Parris Law Offices, Hector, for appellant.
Hulstrand, Anderson, Larson & Boylan and Ronald C. Anderson, Willmar, for respondent.
Heard, considered and decided by the court en banc.
*383 WAHL, Justice.
This appeal arises out of respondent Mary Serbus' objection to the probate of the will of her husband, James J. Serbus. Mary Serbus seeks to set aside an antenuptial agreement between James and herself and to revoke her consent to James' will. The Probate Division of Renville County Court ruled in Mary's favor. John F. Serbus, son of James and personal representative of his estate, appealed the trial court's decision to a three-judge panel of the Eighth Judicial District, which upheld the trial court in a 2-1 decision. We granted discretionary review and now reverse.
Mary and James Serbus were married on April 17, 1963, when she was 65 and he was 68. Each had been married before, and each had five children. On March 28, 1963, about 3 weeks before their wedding, Mary and James executed an antenuptial agreement in which Mary consented to James' making of a will which would provide her at his death with $4,000, a life estate in the homestead and its furnishings, and a funeral similar in nature and quality to his own. Immediately after their wedding a few weeks later, James executed a will incorporating the terms to which Mary had agreed, and Mary executed a consent to the will.
Fifteen years later, on December 8, 1978, James suffered a fall and was confined to a nursing home. His children and Mary became involved in a dispute over his guardianship. On March 16, 1979, Mary executed a revocation of her consent to her husband's will. James died on June 10, 1979, and Mary executed a renunciation of his will on June 14, 1979. The validity of the antenuptial agreement revocation is at issue in this appeal.
James accumulated substantial assets prior to his marriage to Mary. Upon his retirement from farming in 1955, he gave each of his three sons a separate 80-acre tract of land to farm. He retained another 400 acres which were to pass to his children under the terms of the will. At the time of James' death, his estate was worth over $900,000: approximately $735,000 in real property and about $200,000 in cash and other personal property. The trial court found that, at the time of his marriage to Mary, James had cash assets of approximately $58,000 and real estate valued at approximately $90,000. At no time has Mary had independent assets of any significant value.
James' will describes and devises to James' five children four farms owned by James. The will also contains a residual clause under which all of James' personal property, except that specifically bequeathed to Mary, would pass to James' children. The will, which was signed by James and witnessed by attorney Leigh Ronning and his secretary, Ruth Bredeson, is followed by Mary's written consent. The consent provides:
I, Mary Serbus, wife of James J. Serbus, Sr., do hereby declare that I know the contents of the foregoing will and that I am familiar with the nature and extent of the estate of James J. Serbus, Sr. and I do hereby consent to said will and agree to take the bequest therein provided for me in lieu of any statutory right which I may have to make selection or receive inheritance other than the bequest contained in said will.
At the probate proceedings, however, Mary testified that, when she signed the antenuptial agreement and consent to the will, she did not know how much property James owned. She stated that she knew James had land but that he had never told her how much land or money he had. She said that she had not read the antenuptial contract and consent to the will before signing them, that she had not participated with James and Ronning in any discussion about the property, and that, when the documents were ready for her signature, Ronning had simply told her to sign them.
Ronning denied Mary's testimony. He stated that it was his standard practice to describe to a person in Mary's situation her statutory inheritance rights. Ronning admitted, however, that he considered James his client, that he did not advise Mary to seek other counsel, and that he himself did not discuss with Mary the nature and extent of James' property.
*384 Mary testified that she first learned the extent of James' property and the terms of his will when, about a year after their marriage, the two of them went over the will together. At that time, she told her husband she would have difficulty living on $4,000. However, 15 years later, at James' guardianship hearing on May 17, 1979, Mary gave this testimony:
Question: Okay, Mrs. Serbus, do you have in your possession Mr. Serbus' will?
Answer: Yes.
Question: Have you ever made a statement to anyone that because the Will did not favor you, that you were going to destroy it?
Answer: No, I was satisfied with the Will.
In the intervening years Mary took no steps to revoke either the antenuptial contract or her consent to James' will.
James' children testified that Mary was aware of the extent of their father's wealth. Martha Tauer, a daughter, stated that he had mentioned having $100,000 or more and willing Mary $4,000. According to Tauer, these statements were made in Mary's presence before she married James. Rita Schoepfer, another daughter, testified that she had heard James tell Mary how much money he had but that she could not remember the exact amount. Rita also stated, as did several of James' children, that James often bragged about his money and that his wealth was a matter of general knowledge in the community. James' sons, Lloyd, James, Jr., and John, each gave similar testimony. Lloyd stated that James discussed his worth in Mary's presence. James, Jr. testified that James had told Mary he had approximately $100,000 and 400 acres of land. He also indicated that Mary had expressed satisfaction with what she would be getting at her husband's death. John stated that his father had mentioned the $100,000 figure in Mary's presence.
Under the terms of the antenuptial contract, Mary agreed to accept, in lieu of her statutory rights, the sum of $4,000, a life interest in the homestead and its furnishings, and a funeral equal in nature and quality to that of her husband. James' will incorporates the terms of the antenuptial contract and passes the bulk of his property to his children. The trial court found that James had a duty to disclose to Mary the extent of his property and that the personal representative of the estate had not sustained the burden of showing that such disclosure had been made. Therefore, the trial court invalidated both Mary's consent and the antenuptial agreement and allowed Mary to take against the will.
Parties to a marriage have long been able to enter into enforceable antenuptial contracts. Appleby v. Appelby, 100 Minn. 408, 111 N.W. 305 (1907). Seventy years ago, in an effort to recognize the validity of such contracts while at the same time protecting the equally strong policy of encouraging trust in confidential relationships, we determined that a presumption of fraud is raised when parties to an antenuptial contract stand in a confidential relationship to one another and there is inadequate consideration to support their agreement. Slingerland v. Slingerland, 115 Minn. 270, 132 N.W. 326 (1911).
The trial court found that a confidential relationship existed between Mary and James when they executed their antenuptial contract. This finding is reasonably supported by the record as a whole. First, James did not need a housekeeper. His daughter, Rita, lived with and cared for him until he married Mary. Second, James courted Mary. He took her to family gatherings and dances before they were married. They "kept company." James was a "nice man" whom Mary loved and trusted. The trial court could conclude from this evidence that James was seeking Mary's companionship and that the marriage was not simply a business arrangement.[1] We *385 give due deference to the trial court's opportunity to judge the credibility of the witnesses and will not set aside such a finding of fact made by the trial court without a jury unless clearly erroneous. Minn.R.Civ.P. 52.01; Northern States Power Co. v. Lyon Food Products, 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The trial court next found, and John Serbus does not dispute, that, under the terms of the antenuptial contract, Mary receives far less than she would be entitled to if she were permitted to take against the will or if no will were in existence. Under those circumstances, Mary would take approximately one-third of James' real and personal property, or about $300,000. Under the antenuptial contract, she receives the sum of $4,000 and a life estate in the homestead and its furnishings. The consideration for the antenuptial contract was clearly inadequate.
Thus, there is a presumption of fraud under Slingerland. In such a situation at common law, the burden rested upon the party who retained the greater interest "to show there was no fraud or concealment, and that [the other party] knew the extent, character, and value of his property and the nature and extent of her rights as his wife and widow." Slingerland, 115 Minn. at 275, 132 N.W. at 328.
In 1978, the Minnesota legislature codified the major requirements of the common law of antenuptial contracts:
A man and woman of legal age may enter into an antenuptial contract or settlement prior to solemnization of marriage which shall be valid and enforceable if (a) there is a full and fair disclosure of the earnings and property of each party, and (b) the parties have had an opportunity to consult with legal counsel of their own choice.
Minn.Stat. § 519.11, subd. 1 (1980). The statute, which does not pertain to the case at bar, further provides that "[a]n antenuptial contract or settlement duly acknowledged and attested shall be prima facie proof of the matters acknowledged therein and as to those matters, the burden of proof shall be and rest upon the person contesting the same." Minn.Stat. § 519.11, subd. 5 (1980). The statute thus places the burden of proof on the person contesting "the matters acknowledged therein."
The antenuptial contract at issue here, written in 1963, is governed not by the statute but by our cases under the common law. At common law, the burden of proving full disclosure of assets and knowledge of right to independent legal counsel rests with the proponent of the antenuptial contract, John Serbus in this case. Gartner v. Gartner, 246 Minn. 319, 323, 74 N.W.2d 809, 813 (1956); Slingerland v. Slingerland, 115 Minn. 270, 132 N.W. 326. The reason for such a rule is that persons entering into such a contract are in a fiduciary relationship. The party giving up an interest is placing trust in the other party and expecting him or her not to abuse that trust. Since it would be easy for the person retaining the greater interest to abuse the trust placed in him, we require that person to prove he has provided the other with full and fair information before entering into the antenuptial contract. In re Estate of Malchow, 143 Minn. at 58, 172 N.W. at 916.
Did John Serbus sustain his burden of showing that Mary knew the extent of James' property at the time she signed the antenuptial contract? We believe that he did. We evaluate the trial court's finding to the contrary under the rule set out in Northern States Power Co. v. Lyon Food Products, 304 Minn. at 201, 229 N.W.2d at 524. We will not disturb a trial court's findings of fact on review "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Id. (citation omitted). On this issue, it is not just a question of the credibility of the witnesses. There is written evidence in both the antenuptial contract and the consent to the will that Mary knew the extent of James' property. *386 These written statements render the credibility of Mary's testimony to the contrary extremely doubtful. We find that the trial court's findings must be set aside as contrary to the weight of the evidence.
There is support in the oral testimony, as well as in the written evidence, that Mary knew the extent of James' property. Mary herself, 16 years after her marriage to James, stated in open court at the guardianship proceeding on May 17, 1979, that she was satisfied with the terms of the will. Attorney Ronning, who had no interest in the outcome of the matter, testified that Mary had read the documents and that her legal rights had been explained to her. James was a person who talked freely about his property. While it is true that James was in a position to take advantage of Mary's trust in him, we find that the evidence supports an opposite conclusion.
Under both Slingerland and Minn.Stat. § 519.11, subd. 1, each party to an antenuptial contract must also have an opportunity to consult with an attorney. The unusual fact in this case is that, while Ronning did not suggest that Mary seek independent counsel, it was Mary who chose Ronning as an attorney. Ronning had been an acquaintance of Mary's former husband, Emil Olson, had visited the Olson home on several occasions and had probated Olson's estate. Under these unusual facts, we find that Mary's rights were adequately protected. We do not, however, underestimate the importance of independent legal counsel, especially in cases where it is not clear on the record that the party giving up an interest was advised of the nature and extent of the other's property.
We hold that John Serbus sustained his burden of showing that, at the time of signing the antenuptial contract and consent to the will, Mary Serbus knew the extent of James Serbus' property and the nature of her interest therein. We reverse the district court appeal panel decision to the contrary.
Reversed.
COYNE, J., took no part in the consideration or decision of this case.
NOTES
[1] We contrast this case with In re Estate of Malchow, 143 Minn. 53, 172 N.W. 915 (1919), where we found no confidential relationship. In Malchow, the parties, strangers to one another, talked of marriage at their first meeting. There was no courtship or engagement, and it was clear that Malchow wanted a housekeeper. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579887/ | 84 S.W.3d 805 (2002)
Jason Kedrick SIMS, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-00-01260-CR.
Court of Appeals of Texas, Houston (1st Dist.).
August 22, 2002.
*806 Mike DeGuerin, Foreman, DeGuerin, Nugent & Gerger, Houston, for Appellant.
Rikke Burke Graber, Asst. Dist. Atty., Houston, for the State.
Panel consists of Justices NUCHIA, JENNINGS, and WILSON.[*]
OPINION
DAVIE L. WILSON, Justice (Retired).
After the trial court denied his pretrial motion to suppress evidence, Jason Kedrick Sims, appellant, pleaded no contest to possession of marihuana in a useable quantity of less than two ounces. Pursuant to a plea bargain agreement, the trial court assessed punishment at 30 days in jail. In one point of error, appellant argues the *807 trial court erred when it denied his motion to suppress evidence. We affirm.
Background
Around midnight on June 23, 2000, Harris County Deputy Sheriff Ron Rooth responded to a domestic disturbance at the Polly Apartments. Three officers were at the apartment when he arrived, and the officers told Rooth that a black male, "younger in age" had left the scene before they arrived.
While walking to his patrol car, Deputy Rooth saw appellant walking in the apartment complex's courtyard, heading in the general direction where the disturbance occurred. Appellant, who matched the suspect's description, appeared to be intoxicated[1] and was carrying a 40-ounce can of Schlitz malt liquor.
Deputy Rooth testified appellant denied being involved in the disturbance and said he was on his way to his "baby's mother's house." When Rooth asked for appellant's identification, he said he had none, but stated his name was "Jason Simms" and provided his date of birth. Deputy Rooth asked appellant to come to the patrol car so he could determine if appellant was involved in the disturbance. He patted appellant down, and placed him in the back of the patrol car where the back doors were locked. Rooth ran a computer check on the name "Jason Simms," but was unable to obtain any information.
Leaving appellant in the locked patrol car, Deputy Rooth walked to the apartment appellant said he was visiting. The woman inside denied knowing appellant. Rooth returned and again asked appellant his name, but appellant told Rooth to call his girlfriend. Another officer, who had a cellular phone, called the woman, and she admitted knowing appellant, but said that his last name was spelled with one "m" and gave a different date of birth than appellant earlier reported. With the new spelling of the last name and the new date of birth, a computer check revealed that appellant had an outstanding arrest warrant from Mississippi.
An hour after the initial stop, Deputy Rooth arrested appellant and drove him to the police station. When he removed appellant from the back of the patrol car, Rooth discovered a bag of marihuana under the back seat. Rooth testified that he had searched the patrol car before he began his shift, there were no narcotics in it, and appellant was the first person in the back seat of the patrol car since the beginning of Rooth's shift.
Motion to Suppress
In his only point of error, appellant argues the trial court erroneously denied his motion to suppress evidence obtained subsequent to an illegal detention.
In reviewing a motion to suppress evidence, we give great deference to a trial court's determination of historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Mixed questions of law and fact that turn on the credibility and demeanor of a witness are reviewed under the almost-total-deference standard, and mixed questions of law and fact that do not turn on the credibility and demeanor of a witness are reviewed de novo. Id. Also, we examine the evidence in the light most favorable to the trial court's ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim.App.1999). When the trial court does not file findings of fact, we assume *808 that the trial court made implicit findings that support its ruling, so long as those implied findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).
Investigative Detention
Citing Brown v. State, 481 S.W.2d 106 (Tex.Crim.App.1972) and Faulk v. State, 574 S.W.2d 764 (Tex.Crim.App.1978), appellant contends the "general description of `young black male,' without any description to distinguish the alleged suspect from the general populace, does not rise to the level of reasonable suspicion to allow a lawful detention." In Brown, a Dallas police officer followed a car containing four men who "fit the general description" of persons who had committed an armed robbery the day before. Brown, 481 S.W.2d at 108. The description consisted only of a designation as to race and an approximation as to height and weight. Id. While following them, the back seat occupants turned to look at the officer, and the officer believed their body language indicated they were attempting to conceal a weapon. Id. The police officer called for back-up and continued to follow the car. The driver of the car stopped the car and walked back to ask the police officer why he was following him. Id. at 108-09. The driver produced his identification and then went back to his car and waited for the back-up to arrive. Id. When the back-up arrived, the four men and the car were searched. No weapons or contraband were found on the men, but some ammunition was found in the glove compartment, and a baggie of marihuana was found behind the back seat armrest. Several weapons and ammunition were found in the trunk. Id. at 109.
The Court of Criminal Appeals found the police officer lacked specific information linking the men to the armed robbery; therefore, he lacked probable cause to arrest or search them. Id. at 111. Additionally, the Court held that to constitute probable cause, it must assume (1) the men recognized the unmarked police car; (2) the gestures were in response to that awareness; and (3) the gestures were purposely made to avoid apprehension. The Court reversed and held the chain of inferences was too tenuous to establish even probable cause for an investigative stop. Id. at 112.
In Faulk, a Lubbock police officer heard on his radio that a "young black male wearing a multicolored shirt" had just robbed a convenience store and was headed south of the store on foot. Faulk, 574 S.W.2d at 765. Approximately two miles from the scene of the crime, the officer noticed a black male driving a car. He saw the car speed up slightly and then slow down as the driver leaned forward and to the right. Id. At no time were any traffic violations committed in the officer's presence. The officer stopped and searched the car. He discovered a hat and money pouch under the seat and a weapon under the dash. Id.
The Court of Criminal Appeals held that the officer's inarticulate hunch, suspicion, or good faith was not enough for an investigatory stop simply because Faulk was seen a short period of time after the robbery and close to the robbery scene. Id. at 767.
When Officer Rooth initially approached appellant, he conducted a specific inquiry. He wanted to know if appellant was involved in the disturbance. Appellant said he was not. Officer Rooth then asked appellant for identification. He had no identification on him, but told Rooth his name and date of birth. Rooth took appellant to his patrol car to run a computer check. He patted appellant down and *809 placed him in the backseat of the patrol car and locked the doors.
We have previously held that, once a pat-down search takes place, a stop becomes an investigative detention and not a consensual encounter. See Gamble v. State, 8 S.W.3d 452, 453 (Tex.App.-Houston [1st Dist.] 1999, no pet.). An investigative detention is generally justified if specific, articulable facts, taken together with their rational inferences, lead the detaining officer to conclude that the detainee may be associated with a crime. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968); Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997); Gamble, 8 S.W.3d at 453. We review the totality of the circumstances. Woods, 956 S.W.2d at 38.
Here, the bases for the detention were that appellant (1) was a young, black, male, and (2) was walking in the courtyard of an apartment complex near where a domestic disturbance had taken place.
Deputy Rooth testified he stopped appellant to find out if he was involved in the disturbance, and the only reason for stopping him was that he fit the general description of a young, black male that had been observed leaving the scene. He had not seen appellant engage in any criminal activity, and he did not stop him because he was carrying a beer. Rooth said he was more concerned about the disturbance than appellant's possible inebriation; therefore, he did not do any field sobriety tests.
Rooth testified he did not know how many apartments were in the apartment complex, and the record does not indicate how far Rooth was from the disturbance when he came across appellant.
Although the State argues appellant's intentional self-misidentification is significant, it is the timing of the events that is significant. When Deputy Rooth initiated his investigative detention, he did not know appellant's name was spelled with one "m." Regardless, Texas Penal Code section 38.02 states that a person commits the offense of failure to identify if:
(a) ... he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information ... [or]
(b) ... he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
Tex. Penal Code Ann. § 38.02 (Vernon 2002). Appellant was not under arrest or lawfully detained when he gave Deputy Rooth the incorrect spelling of his name, and Rooth gave no testimony indicating he had good cause to believe appellant was a witness to a crime. In fact, on crossexamination, Rooth was asked if the complainant was available at the scene to identify appellant. Rooth testified the complainant was still in the apartment complex, but he never attempted to get a better description of the suspect or have the complainant identify appellant.
In order to justify an investigative detention, an officer must have specific, articulable facts, which, in light of his experience and personal knowledge, together with other inferences from those facts, would warrant the intrusion on the person stopped for further investigation. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. These specific and articulable facts must create a reasonable suspicion in the officer's *810 mind that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983).
Deputy Rooth testified the only reason he stopped appellant was that he fit the description of the suspecthe was a black male in his early 20swalking in the apartment complex. These are not sufficient articulable facts to connect appellant with the disturbance.
In this case, because the trial court denied the motion to suppress, the implied finding is either that Deputy Rooth properly detained appellant or that a lawful arrest attenuated the unlawful detention.
Exclusion of Evidence
Having found appellant was improperly detained, we must determine whether admission of the evidence was appropriate. Article 38.23 requires the exclusion of evidence "obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas." Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp.2002). Evidence should be excluded once a causal connection between the illegality and the evidence is established. Roquemore v. State, 60 S.W.3d 862, 872 (Tex.Crim.App.2001).
The State argues that the discovery of the arrest warrant sufficiently attenuated the illegal detention. The attenuation doctrine is applicable to article 38.23's prohibition against evidence "obtained" in violation of the law because evidence sufficiently attenuated from the violation of the law is not considered to be "obtained" therefrom. If the evidence is not "obtained" in violation of the law, then its admission into evidence is not in contravention of article 38.23. Thus, the attenuation doctrine is not an exception to article 38.23, but rather is a method of determining whether evidence was "obtained" in violation of the law. See Johnson v. State, 871 S.W.2d 744, 751 (Tex.Crim.App.1994).
Here, it is undisputed that appellant's arrest, subsequent to the discovery of the outstanding warrant, was legal. Once the outstanding warrant was discovered, Deputy Rooth took appellant to the police station. The marihuana was discovered in Deputy Rooth's patrol car after appellant got out of the car at the police station. The marihuana was not obtained in violation of the law. It was obtained subsequent to and pursuant to a lawful arrest. See Brooks v. State, 830 S.W.2d 817, 821 (Tex.App.-Houston [1st Dist.] 1992, no pet.).
We hold the trial court did not abuse its discretion when it overruled appellant's motion to suppress evidence.
We affirm the judgment of the trial court.
NOTES
[*] Justice Davie L. Wilson, who retired on March 31, 2002, continues to sit by assignment for the disposition of this case, which was submitted on March 18, 2002.
[1] Officer Rooth admitted his offense report did not mention appellant's alleged intoxication. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579955/ | 118 Mich. App. 318 (1982)
324 N.W.2d 625
PEOPLE
v.
JENNINGS
Docket No. 59174.
Michigan Court of Appeals.
Decided July 20, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Alice F. Sage, for the people.
Elbert L. Hatchett, for defendant.
Before: DANHOF, C.J., and BEASLEY and J.P. SWALLOW,[*] JJ.
PER CURIAM.
On October 17, 1980, defendant, Michael Jennings, also known as William Michael Jennings, was convicted by a jury, as charged, of armed robbery, in violation of MCL 750.529; MSA 28.797. After being sentenced to not less than 5 years nor more than 20 years in prison, defendant appeals as of right.
The conviction arises from an incident at a St. Clair Shores grocery store on the evening of March 22, 1980, where the proprietor and his sole *320 employee, while in the process of closing the establishment, were confronted by two masked men, one of whom was carrying a stick. The proprietor's employee, who was at the cash register, was approached by the taller of the two men. As she attempted to escape from him, the man smashed a green colored glass bottle on her head. Thereupon, her assailant removed all of the money contained in the cash register and fled from the building.
Investigation revealed that defendant's fingerprints were on the broken glass bottle. Subsequently, a warrant was issued and defendant was arrested and charged with armed robbery.
Prior to trial, an evidentiary hearing was conducted on defense counsel's motion to suppress the glass bottle from evidence. At the hearing, the complainant identified a green "Atlas sugar-free, lemon-lime, at least 10 ounces" bottle as the article by which she was struck. She further testified that the pieces of the broken bottle were swept up and placed in a jar on the day succeeding the assault and that, on the following day, the evidence was given to Detective Philip Kidder of the St. Clair Shores Police Department.
Although not able to identify defendant as her masked assailant, the complainant testified that she had seen defendant in the store on several occasions. On direct examination, she unequivocally stated that defendant was not the customer who returned the green Atlas bottle to the store.
Also testifying at the evidentiary hearing was Detective Kidder, who was assigned to investigate the case on the Monday morning following the Saturday evening robbery. He recounted appearing at the grocery store to obtain the broken glass bottle from complainant and immediately thereafter delivering the bottle to the State Police Crime Laboratory.
*321 On cross-examination, Detective Kidder admitted that the procedure employed in the investigation of this robbery deviated from the St. Clair Shores Police Department's normal procedure, as usually a detective would have photographed and collected the evidence on the morning subsequent to the commission of a major crime.
In denying defendant's motion to suppress the weapon from admission into evidence, the trial court stated:
"The Court: The testimony is quite clear from Mrs. Lower that she was struck over the head with a bottle. It was an Atlas bottle, lemon-lime, and she put the pieces in a jawbreaker jar and put them in a trash can liner and subsequently retrieved them and gave them to the police, and we have demonstrative evidence, it's either a lemon-lime bottle or it isn't a lemon-lime bottle that's in the jawbreaker container.
"The court will deny your motion to suppress and quash the information."
On appeal, defendant maintains that the trial court abused its discretion by admitting the glass bottle into evidence. Particularly, defendant contends that the trial court erred because of the police department's deviation from its normal procedure of preserving evidence and the tenuous connection of the evidence to the within case.
In his treatise on evidence, Professor McCormick provides the following guidance:[1]
"Again, demonstrative evidence may be classified as to whether the item offered did or did not play an actual and direct part in the incident or transaction giving rise to the trial. Objects offered as having played such a direct role, e.g., the alleged weapon in a murder *322 prosecution, are commonly called `real' or `original' evidence and are to be distinguished from evidence which played no such part but is offered for illustrative or other purposes. It will be readily apparent that when real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged. If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition." (Footnotes omitted; emphasis in original.)
A break in the chain of custody of evidence does not require automatic exclusion of the proffered evidence.[2] In order to obtain the admission of real evidence, a prosecutor must lay a foundation identifying the items as what they are purported to be and displaying that the items are connected with the accused or the crime.[3]
In the within matter, the following facts are pertinent to an analysis of this issue: (1) the complainant categorically identified the broken glass bottle as the weapon used to inflict her injuries; (2) the identified bottle was an uncommon brand; (3) shortly prior to the assault, the grocery store floor was swept, which negated the possibility of other glass being intermixed with the Atlas glass bottle; (4) on the day following the incident, the proprietor and the complainant returned to the store and preserved the evidence for the police department; (5) Detective Kidder, two days after the *323 crime was committed, marked the broken bottle and delivered it to the State Police Crime Laboratory; (6) complainant testified that defendant was not the customer who returned the Atlas pop bottle; (7) a latent print specialist for the Michigan State Police, Dennis Holmes, testified at trial that he found fingerprints of the third and fourth fingers of defendant's left hand on the bottle.
In assessing the foregoing particulars, we find that the prosecutor established an adequate foundation for the admission of the broken bottle. In permitting the introduction of the broken bottle into evidence, the trial court did not abuse its discretion for, among other things, complainant unequivocally identified the bottle as the weapon, and the bottle was in a substantially unchanged condition.
In 29 Am Jur 2d, Evidence, § 774, pp 844-845, the general rule concerning the identification and introduction of evidentiary articles is set forth:
"Articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time in issue. In most cases it is not possible to establish the identity in question by a single witness, since the object or article has usually passed through several hands before being analyzed or examined or before being produced in court, and under such circumstances it is necessary to establish a complete chain of evidence, tracing the possession of the object or article to the final custodian, and if one link in the chain is missing, the object or article cannot be introduced.
"The party offering the object or article in evidence must also show that, taking all the circumstances into account, including the ease or difficulty with which the particular object or article could have been altered, it was reasonably certain that there was no material alteration. It is not necessary that an object or article *324 which is offered in evidence should be in precisely the same condition at the moment of its offer as at the time when it played a part in the occurrence which gave rise to its offer in evidence, but the change in its condition must not have been wrought for unjustifiable purposes, and it must not be of sufficient moment that the exhibit will mislead." (Footnotes omitted.)
Inasmuch as we have concluded that a proper foundation for the admission of the article was laid through the testimony of complainant and Detective Kidder, the alleged deficiencies in the procedure used by the police in collecting and preserving the evidence go to the weight afforded to the evidence, rather than its admissibility.[4] We do not find a vital link missing in the chain of custody of the object, nor does any sign of tampering with the evidence appear on the record. In admitting the evidence at trial, the trial court did not clearly abuse its discretion.[5]
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] McCormick, Evidence (2d ed), § 212, p 527.
[2] People v Kemp, 99 Mich. App. 485, 489; 298 NW2d 1 (1980).
[3] People v O'Brien, 113 Mich. App. 183; 317 NW2d 570 (1982), 9 Wigmore, Evidence (Chadbourn Rev), § 2550, p 640.
[4] People v Stevens, 88 Mich. App. 421, 424; 276 NW2d 910 (1979), lv den 408 Mich. 948 (1980), People v Kozlow, 38 Mich. App. 517, 527-528; 196 NW2d 792 (1972), lv den 387 Mich. 798 (1972).
[5] People v Becker, 300 Mich. 562, 565; 2 NW2d 503; 139 A.L.R. 1171 (1942), People v Amison, 70 Mich. App. 70, 74; 245 NW2d 405 (1976), 1 Wigmore, Evidence (3d ed), § 16, p 310, 8 Michigan Law & Practice, § 221, pp 287-289. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581161/ | 147 N.W.2d 18 (1966)
Claude Perrin SMALL and Kathryn Small, Appellants,
v.
Frank OGDEN and Helen Ogden, Appellees.
No. 52304.
Supreme Court of Iowa.
December 13, 1966.
*19 W. R. Mockridge, DeWitt, for appellants.
Lane & Waterman, by Robert V. P. Waterman and Donald H. Sitz, Davenport, for appellees.
RAWLINGS, Justice.
By an action in equity for declaratory judgment plaintiffs sought construction of a real estate contract and asked that forfeiture proceedings previously instituted by defendants be enjoined. The trial court found the contract unambiguous, denied the relief prayed by plaintiffs, and they appealed.
A written contract was entered into January 6, 1949, under which plaintiffs agreed to purchase and defendants agreed to sell certain farm land in Clinton County. The given purchase price was $30,000, with specified payments to be as follows: $2000 down payment, $6000 on or before March 1, 1949, then $1000 December 1st and a like sum June 1st of each year until December 1, 1964, at which time final payment of $385.77 was to be made.
The contract also provided: "The entire amount may be paid off at any time in accordance with schedule A of which each party has (sic) been delivered a copy."
Another pertinent provision in the agreement is as follows: "Payments do not bear interest".
Schedule A then provides in part: "If parties of the second part want to pay in full the remaining unpaid payments due under the terms of the agreement, they may do so by notifying party of the first part sixty (60) days prior to the time payment is to be made and by making such payment as appears below.
regular
1949 payment to be $23,420.00 less any/payments made during the year
1950 " " " 22,196.80 " " " " " " "
1951 " " " 20,928.67 " " " " " " "
1952 " " " 19,613.82 " " " " " " "
1953 " " " 18,350.37 " " " " " " "
1954 " " " 17,036.38 " " " " " " "
1955 " " " 15,669.84 " " " " " " "
1956 " " " 14,248.63 " " " " " " "
1957 " " " 12,770.28 " " " " " " "
1958 " " " 11,233.40 " " " " " " "
1959 " " " 9,634.74 " " " " " " "
1960 " " " 7,972.13 " " " " " " "
1961 " " " 6,243.02 " " " " " " "
1962 " " " 3,998.28 " " " " " " "
1963 " " " 2,444.74 " " " " " " "
1964 " " " 1,385.77 " " " " " " "
*20 The last and final payment shall be made 12/1/1964 in amount $385.77."
Plaintiffs satisfied all installments due under the contract until a total of $29,000 had been paid, then January 4, 1961, tendered the sum of $1000 and demanded deed. This was refused by defendants and July 17, 1964, they instituted forfeiture proceedings claiming default by plaintiffs in making payments due June 1, 1960, and all subsequently owing. Plaintiffs then commenced the subject action.
This being a proceeding in equity, evidence was presented by both parties after which the trial court found the contract not ambiguous, and dismissed plaintiffs' petition, holding they were required, by the agreement, to make all payments specified, or exercise right of prepayment according to schedule A. In so doing the court found no need to resort to extrinsic evidence.
I. Our review is de novo. See Ullmann v. Reed Ins. Agency, 258 Iowa 100, 137 N.W.2d 690, 691.
II. In Bruhl v. Thul, 257 Iowa 889, 134 N.W.2d 571, 573-574, this court said: "* * * we are asked to interpret the contract which the parties made for themselves. The objective is to ascertain the meaning and intention of the parties as expressed in the language used. (Authorities cited.)
"It is the court's duty to give effect to the language of the contract in accordance with its plain and ordinary meaning and not make a new contract for the parties by arbitrary judicial construction. (Authorities cited).
"The court will not resort to construction where the intent of the parties is expressed in clear and unambiguous language. In interpreting a contract we may resort to rules of construction only where the language of the instrument is of doubtful meaning. (Authorities cited)."
Our first problem is to determine whether the agreement entered into by plaintiffs and defendants is or is not ambiguous.
III. Ambiguity may be said to appear when, after application of certain rules of interpretation to the face of the instrument, a genuine uncertainty results as to which one of two or more meanings is the proper one. Morris Plan Leasing Co. v. Bingham Feed and Grain Co., Iowa, 143 N.W.2d 404, 412.
And, in arriving at the intent of the parties as expressed by their agreement we consider the entire instrument, giving effect, if possible, to all language used. Chicago & N. W. Ry. Co. v. Kramme, 244 Iowa 944, 948, 59 N.W.2d 204; Randolph v. Fireman's Fund Ins. Co., 255 Iowa 943, 951, 124 N.W.2d 528, 8 A.L.R. 3d 907; and Harrison Sheet Steel Co. v. Morgan, (8 Cir.), 268 F.2d 538, 542.
Looking again to the face of the contract between plaintiffs and defendants we find the purchase price to be $30,000, followed by a provision for specified periodic payments which total the sum of $38,385.77, without interest.
Also to be considered is schedule A, identified as exhibit E, which is a part of the contract by which plaintiff-purchasers are accorded permissible prepayment rights.
In this respect the contract itself provides the entire amount may be paid off at any time in accordance with schedule A, which in turn contains a provision to the effect that if the purchasers desire to exercise right of prepayment, they may do so by remittance of an annually reduced sum over a term of about 15 years.
It requires only a surface mathematical computation to understand, and if necessary, clarify any or all of the payment terms provided by the contract, including schedule A. See Harvey Const. Co. v. Parmele, 253 Iowa 731, 736, 113 N.W.2d 760.
For example, if plaintiff-purchasers had elected to liquidate the contract in 1949, they would have previously paid $8000, and under schedule A would have paid an additional *21 $23,420, making a total of $31,420 paid by them for the farm.
And, if they had desired to take deed in 1952, the down payment and annual periodic remittances would then have totaled $14,000, and an additional payment of $19,613 would be required, making a total of $33,613 paid by plaintiffs for the property.
IV. It thus appears the agreement contains a general statement as to purchase price, followed by a special provision as to time or times for the making of specified periodic payments, with an alternate specific arrangement, schedule A, under which the purchasers could, if desired, pay off the contract prior to the final maturity date.
In this connection we have a well established rule of construction that where in a contract there are general and special agreements referring to the same subject, the special controls. Schlosser v. Van Dusseldorp, 251 Iowa 521, 526, 101 N.W.2d 715.
As stated in 91 C.J.S. Vendor and Purchaser § 97, page 981: "* * * if in the contract of sale a general recital of the consideration is inconsistent with the subsequent provisions as to the terms of payment, which are definite and particular, the latter will control."
This means the specific provisions of the contract providing for installment payments, or in the alternative for prepayment, must be held to control over the general statement as to purchase price.
V. An examination of the entire contract involved in this case discloses some conflict as to purchase price and payments to be made. But mere conflict does not, in and of itself, serve to create uncertainty or ambiguity.
By application of the foregoing rules of construction we entertain no genuine uncertainty as to the intent of the parties expressed in their agreement.
It is to us evident interest on the purchase price was predetermined, then added to the periodic payments to be made as set forth in the body of the contract or in the discount schedule identified as schedule A.
To this both the sellers and purchasers agreed. By this they are bound.
The contract discloses a purchase price of $30,000 with permissible periodic payments, without interest, over a span of about 15 years. Under this time payment plan the purchasers would, in event of full and timely compliance, pay a total of $38,385.77 before being entitled to deed.
In addition they were accorded optional right of prepayment on a discount basis by the terms of schedule A, but this right they never exercised.
VI. We are also satisfied that even if the contract were to be deemed ambiguous the same result would obtain under the evidence presented.
This discloses ordinary negotiations as to price and terms prior to execution of the agreement.
Above all, however, this evidence shows a predetermination of interest, this being done for the admitted purpose of adding to the principal or cash price in an attempt to effect a tax saving to the sellers. In other words the interest was purposely added to the principal in an effort to create for the sellers a capital gain as opposed to an ordinary interest income.
The testimony of plaintiff Claude Perrin Small discloses he owned 700 acres, farmed about 1000, and had previously read legal documents in dealing with land transactions.
It also reveals this witness, being one of the buyers, was aware of the time payment provision in the contract and the attached instrument before signing the agreement, claiming however he was not too well aware of the language contained in schedule A.
*22 However, this alleged lack of complete knowledge means little or nothing. An agreement in writing speaks for itself. McDannel v. Parkview Investment Corporation, 257 Iowa 1160, 136 N.W.2d 281, 285. And, absent fraud or mistake not here apparent, ignorance of the contents of a written agreement will not serve to negate or avoid its contents. Schlosser v. Van Dusseldorp, 251 Iowa 521, 527, 101 N.W.2d 715.
VII. We conclude the contract here involved is not ambiguous. The order entered by the trial court must be and is affirmed.
Affirmed.
GARFIELD, C. J., and LARSON, SNELL, MOORE and MASON, JJ., concur.
THORNTON, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581153/ | 147 N.W.2d 478 (1966)
Howard FREDERICK and Hilda Frederick, Appellees,
v.
Robert L. SHORMAN, Defendant,
Yvonne Shorman, Defendant-Appellant.
No. 52136.
Supreme Court of Iowa.
December 13, 1966.
*480 Edgar L. King and G. K. Thompson, Cedar Rapids, for defendant-appellant.
Fred C. Fisher, Jr., Cedar Rapids, for appellees.
MASON, Justice.
Hilda Frederick, principal plaintiff, seeks to enjoin Yvonne Shorman, principal defendant, from attaching certain real estate and for a declaratory judgment that Robert L. Shorman, also a defendant, Yvonne's former husband, had no interest in the premises or in the alternative that plaintiff and her present husband, Howard Frederick, have a lien on Robert's interest (for *481 purchase, improvement, repairs and taxes) superior to the attachment lien.
From decree determining that Robert had no interest in the real estate subject to attachment and permanently restraining Yvonne from proceeding with attachment and levy, she appeals.
Since the real contest is between Hilda and Yvonne the former will be referred to as plaintiff and the latter as defendant.
I. Yvonne held a judgment against Robert, her former husband, for child support. Robert had record title to a joint tenancy in real estate consisting of a residence property in Cedar Rapids, with his mother, plaintiff Hilda Frederick. This property was purchased in 1950 but the title was taken in the joint names of Hilda Bjornsen, plaintiff's maiden name, and her son, Robert. Hilda paid the entire consideration. The deed conveying the property reads:
"[We] hereby SELL AND CONVEY unto Hilda H. Bjornsen (unmarried) and Robert L. Shorman (unmarried), Mother and Son, as joint tenants and not as tenants in common, with the full right of the survivor to take the whole title and right of property to both in fee simple and absolutely."
Robert later married Yvonne, and his mother married her co-plaintiff, Howard Frederick. A child, Roberta, was born to Robert and Yvonne; later they were divorced and a judgment for child support was entered against Robert. He failed to pay, Yvonne obtained an execution on the judgment and levied upon his interest in the realty.
Thereupon plaintiffs brought this action. Upon trial the court held that since Robert contributed nothing to the purchase price of the property or its upkeep he had no interest and entered the decree from which this appeal is taken.
Plaintiff pleaded "The purchase of the property was for the purpose of making and establishing a homestead for plaintiff and her son and under an agreement with her son, Robert, that he would continue to reside in said premises and would contribute from his (Robert's) funds and earnings, a sum equal to ½ of the purchase price and further sums equal to ½ of the upkeep, taxes and maintenance of the home," and she and Howard Frederick made substantial and valuable improvements in the premises, paid all taxes, insurance and repairs.
II. Defendant assigns three propositions relied on for reversal: The court erred (1) in failing to find a completed gift from Hilda to her son; (2) in finding Robert had no interest in the attached real estate; and (3) in giving consideration to a letter as having probative force to which objections had been made that it was incompetent, irrelevant and immaterial.
Defendant contends under her first assignment the court overlooked the fact there was a gift of an interest in real estate and Robert's failure to contribute to the purchase price is of no significance since consideration is not requisite to a valid gift; the question is the extent of the interest conveyed as a gift; and plaintiff failed to show the transfer in the form contained in the deed, supra, was not a gift.
Plaintiff, on the other hand, asserts the gift theory is raised for the first time on appeal; it was not considered by the trial court because, among other things, defendant failed to plead it.
Defendant replies this is a matter of general defense; since the deed is regular on its face, the burden is on plaintiff to prove by clear and convincing evidence that the grantees were not equal joint owners; plaintiff is attempting to overcome a presumption arising from the record title; the issue made by plaintiff's petition was that her son had no interest in the property; it was as much plaintiff's duty to negative an interest arising through gift as through purchase; since Robert paid nothing toward the acquisition or improvement *482 of the house, his interest, if any, must have been acquired by gift.
Plaintiff pleaded a special contract to the effect that at the time she purchased the property she had an agreement with her son that he would repay her for the half interest he acquired under the deed, which agreement he failed to carry out. By commencing this action she took the burden of proving Robert had no interest in the real estate which could be reached by defendant's writ of execution.
III. "The legal or equitable nature of a declaratory judgment proceeding is to be determined by the pleadings, the relief sought, and the nature of each case." Henderson v. Hawkeye-Security Insurance Company, 252 Iowa 97, 100, 106 N.W.2d 86, 88.
This action is equitable in nature and is so treated here. The court gives weight to the findings of the trial court but is not bound by them. Rule 344(f) 7, Rules of Civil Procedure.
Under a general denial defendant may prove anything tending to show plaintiff's allegation is untrue. Thus in an action to recover property based on a superior right or title proof of a gift to defendant may be made under a general denial. 38 C.J.S. Gifts § 64.
If an unqualified transfer to the donee is proved, one asserting the delivery was made on some condition or trust has the burden of establishing such condition or trust. 38 C.J.S. Gifts § 65.
Plaintiff is required to carry the burden on this issue by a preponderance of the evidence, "* * * [but] this is not a fixed or unvarying standard. What would be sufficient to constitute a preponderance of the evidence and to sustain a judgment in an ordinary case might not suffice in another, where, in addition to the burden resting upon the plaintiff in any case, particular presumptions are to be overcome. This is especially true where a plaintiff seeks by parol evidence to overcome the presumptions arising from the express terms of a conveyance, or from the relations of the parties concerned therein. * * * The very terms of the conveyance are evidence, and must be overcome. Hence much more certainty and conclusiveness are requisite than in ordinary cases." Hein v. W. T. Rawleigh Company, 167 Neb. 176, 92 N.W.2d 185, 190.
To sustain this burden plaintiff is required to overcome certain rebuttable presumptions. First, a deed is presumed to be that which it purports to be and the burden is on the one asserting otherwise. When a deed sufficient to vest title is executed and delivered, the law raises the presumption of an intent to pass the title in accordance with its terms and the burden rests on the one who avers a different intention. 26A C.J.S. Deeds § 181. Second, there is a presumption that joint tenants hold in equal shares. 48 C.J.S. Joint Tenancy § 6. Third, where a parent causes a deed conveying land by a third person to be placed in the names of a parent and a child and the parent furnishes the consideration, the law presumes a gift by the parent or advancement to the child. McGinnis v. McGinnis, 159 Iowa 394, 397, 139 N.W. 466, 467; 6 Thompson on Real Property (1962 Replacement), § 3129.
In fairness to the trial court it should be noted that this "gift" defense was apparently not asserted at trial, and for that reason presumably not considered by it. But the issue does inhere in defendant's denial and thus presents a question of law we believe should be considered. In considering this matter as proper subject for argument here we recognize the validity of plaintiff's statement that had it been raised at trial the record might well have been made factually more complete.
Defendant's position is fairly simple. She contends that considering the foregoing *483 rules of construction Robert was still shown to be the owner of a beneficial half interest because the evidence fails to rebut a completed gift by mother to son. She concedes she can reach by her execution only the interest Robert has in the property and she does not claim to be in the position of an innocent purchaser for value.
Plaintiff is attempting to change or overcome the presumption arising from the terms of the deed she caused to be executed and delivered.
It requires less positive and unequivocal testimony to establish a gift from mother to her children than it does a gift between persons not related and in cases where there is no suggestion of fraud or undue influence, very slight evidence will suffice. Love v. Francis, 63 Mich. 181, 29 N.W. 843, 847. That a gift may be established by proper evidence, even when supported only by parol testimony, see Belgard v. Belgard, 202 Iowa 1356, 1357, 212 N.W. 116, 117. Consideration is not necessary to support a gift; after delivery which in the instant case was by the execution and recording of the deedthe gift is irrevocable except, of course, upon mutual agreement of the parties. Stonewall v. Danielson, 204 Iowa 1367, 1371, 217 N.W. 456, 458.
As stated, plaintiff pleaded there was a special agreement between Robert and herself whereby he should repay to her half the property costs. She made no attempt to prove this and rested her case on the claim she intended something squarely contrary to the terms of the deed, which she has never asked to be reformed. Her pleaded case was that she intended Robert should have a half interest in the property for which he owed her half the purchase price and upkeep; she sought to prove she never intended Robert should be the owner of any interest until her death.
She said: "I was unmarried at the time I purchased the property, and he was my only child, so naturally I put the house in his name, only if something would happen to me he would get the house. It was vice versa. * * * At the time I bought the property at 1015 Staub Court I told my son I was putting it in his name in case something happened to me, in case I was married."
Plaintiff does not claim there was any mistake in the deed, or any fraud or duress leading to its execution. It was drawn exactly as she ordered. She contends its only effect is to create a right of survivorship.
When one attacks a deed such as this in an attempt to show it does not properly express the real intent of the grantor, either by an action for reformation on the grounds of mistake, fraud, duress or the like, or to prove a resulting trust, the burden thus assumed is always a heavy one requiring the stated quantum of proof. This is particularly so when the deed is carefully drawn and solemnly executed and acknowledged before a notary. The presumptions of validity and regularity attaching to such a document require clear and convincing evidence to preponderate against them. Bingaman v. Bingaman, 85 Neb. 248, 122 N.W. 981, 983. A party seeking to establish a fact in opposition to written evidence must make out his case with more than usual clearness. Bombei v. Schafer, 242 Iowa 619, 625, 47 N.W.2d 842, 845, citing 32 C.J.S. Evidence § 1033.
The intent sought to be reached is plaintiff's intent existing at the time she caused the deed to be executed. Baker v. Normanoch Ass'n Inc., 25 N.J. 407, 136 A.2d 645, 651; 26 C.J.S. Deeds § 83; Brown v. Crozer Coal & Land Company, 144 W.Va. 296, 107 S.E.2d 777, 786; Cronkhite v. Falkenstein, (Okl.) 352 P.2d 396, 398. It was some 15 years after execution of the deed before plaintiff made any attempt to impeach it. She now says it was her intention only to create a right of survivorship in her son without giving him any other interest. Without joint tenancy there could be no *484 such right. She does not deny intending to create a joint tenancy. She attempts to contradict the effect of the deed.
To hold that the written document meant anything different from what the parties expressed therein requires evidence which is clear, satisfactory and convincing. McKenney & Seabury v. Nelson, 220 Iowa 504, 506, 262 N.W. 101, 102.
Plaintiff testified she had made the same arrangement, a joint tenancy title, in regard to an automobile and perhaps nine $75 bonds; that she turned the automobile and four of the bonds over to defendant at the time of his divorce. She admitted referring to the property as "our house" and did not deny defendant's testimony that the property was always referred to between Robert and her as "our house."
Defendant testified plaintiff told her she and Robert could move into the house if he wanted to and plaintiff would buy another house. Plaintiff did not deny this testimony. Defendant also testified Robert told her in plaintiff's presence that he owned the house, referring to 1015 Staub Court.
It is our opinion plaintiff has failed to sustain her burden by sufficient evidence of the character and weight required; that the "gift theory" was properly before the court and the court erred in finding defendant had no interest whatsoever in the real estate.
What has been said with regard to defendant's first assignment applies with equal force to defendant's second assignment.
IV. The court erred in permanently restraining defendant from proceeding with attachment and levy in the cause referred to in the trial court's judgment.
"The individual interest of one joint tenant is subject to levy and sale upon execution against him. Such interest may be sold and without making the other coparceners parties to the action. The levy and sale operate as a severance of the joint tenancy, and the purchaser at the sale becomes a tenant in common with the other coowners. The mere filing by a creditor of a joint tenant of a memorial of his judgment in the registrar's office prior to the death of the joint tenant, judgment debtor, does not operate as a severance and the survivor takes the whole free from the lien of the judgment, in the absence of any other steps taken by the creditor to sever the title. A joint tenancy is severable upon the voluntary or involuntary conveyance or seizure of the interest of either tenant and upon such severance the joint tenancy is turned into a tenancy in common." 4 Thompson on Real Property, (1961 Replacement) § 1780.
"During the continuance of a joint tenancy, each joint tenant has a liability to have his fractional interest taken for the satisfaction of his debts. Any such taking, when completed, works a severance of the joint tenancy. Thus a judgment creditor must not only levy on the land, but sell it, and have any redemption period expire, before the severance is completed." 4 Powell on Real Property, § 618.
We agree a joint tenant's creditors can, by proper action brought before the joint tenant's death, reach the interest or title to the property held in joint tenancy. Of course, such interest cannot be reached after the joint tenant's death.
We hold Robert became vested with an interest in the real estate when the joint tenancy was created. Having determined in Division III, supra, that plaintiff failed to overcome the presumption of a gift to her son and the presumption that she and her joint tenant held their interest in equal shares, Yvonne has the right as Robert's judgment creditor to proceed with her levy.
*485 V. Defendant's third assignment raises the question of the sufficiency of a general objection to predicate error.
The court in its findings of facts found when Robert learned of his mother's marriage to Howard Frederick in 1955 he wrote her a letter, saying "have the house put in his name." This letter and a letter to plaintiff's attorney written prior to trial were offered by plaintiff as admissions against Robert, who was in default and not called as a witness in the trial.
Defendant contends his objection that the letters were incompetent, irrelevant and immaterial was sufficient to direct the court's attention to their defects.
These letters were clearly hearsay as to Yvonne and do not come within any exception to that rule.
"It is elementary that an objection to offered evidence must be sufficiently specific to advise the trial court why it is inadmissible. The court should not be left to speculate as to whether the evidence is in fact subject to some infirmity which the objection does not point out.
"In Jackson v. Chicago, Milwaukee, Saint Paul & Pacific Railroad Co., 238 Iowa 1253, 1263, 30 N.W.2d 97, 103, we said: `Ordinarily the objection should point out in what particular or particulars the offered evidence is inadmissible and where this is not done there is no proper basis for reversal unless the grounds of the objection are obvious.'" Ferris v. Riley, 251 Iowa 400, 408, 101 N.W.2d 176, 180, 181. See also Lende v. Ferguson, 237 Iowa 738, 749, 23 N.W.2d 824, 830-831; Floy v. Hibbard, 227 Iowa 149, 151, 287 N.W. 829, 830; International Harvester Co. v. Chicago, M. & St. P. Ry. Co., 186 Iowa 86, 172 N.W. 471, 475.
Although the defects to the offered exhibits are obvious and ordinarily could not be eliminated, a specific objection would have obviated the problem. We have given no weight to either of these letters in this de novo review.
VI. We find no merit in plaintiffs' claim for alternative relief.
The matter is therefore remanded with instructions to dissolve the injunction and to enter declaratory judgment in accordance with this holding.
Reversed and remanded.
GARFIELD, C. J., and LARSON, SNELL, MOORE, and STUART concur.
BECKER and RAWLINGS, JJ., dissent.
THORNTON, J., not sitting.
BECKER, Justice.
It is relatively recently that joint tenancy has come back into vogue. See 51 Iowa Law Review 582 where a study of over 10,000 deeds in five counties indicates the use of joint tenancy arrangements in over 50% of the current real estate transfers. See also Joint Tenancy in Iowa, 34 Iowa Law Review 41 for historical review of our changing concepts of joint tenancy law. The recent growth of the use of such deeds occurred after 1930.
The same problems are present in allowing parol evidence to ascertain the intent of the parties in connection with joint tenancy deeds as are present in applying rules to deeds conveying common tenancy, sole ownership or other interest in real estate. Sinclair v. Allender, 238 Iowa 212, 222, 26 N.W.2d 320, 326, we quote: "Cooper v. Skeel, 14 Iowa 578, 580 (`That a trust may be established by parol testimony * * against the face of a deed' is not denied. And yet if the point were res integra, we should certainly strongly incline to hold that such evidence is too dangerous, and that it should be rejected. * * *)" On such assertions the whole body of resulting trusts in real estate transactions has been developed. It is the intent of the party *486 that controls. Where it is shown that the contributions were unequal (here the plaintiff contributed all funds), it is presumed that the parties intended to share in proportion to the amount contributed to the purchase price. Williams v. Monzingo, 235 Iowa 434, 16 N.W.2d 619, 156 A.L.R. 508; Culp v. Price, 107 Iowa 133, 77 N.W. 848; Cotton v. Wood, 25 Iowa 43, Keokuk Savings Bank & Trust Company v. Desvaux, Iowa, 143 N.W.2d 296.
It is recognized that the plaintiff's case was pleaded somewhat ineptly and it might well have been amended to conform to the proof, but this gift theory was not urged until this appeal. The essence of plaintiff's case is found in the following quotation: "I was unmarried at the time I purchased the property, and he was my only child, my only heir, so naturally I put the house in his name, only if something would happen to me, he would get the house. It was vice versa. Now, if something happened to him, so it would be protected to a certain point." Conceivably there are other statements in the record that do not exactly square with this statement of intent. However, it is submitted that a great deal of this confusion in the witness' mind grows out of a layman's lack of appreciation of the technical effect of joint tenancy deeds. It is obvious that the trial court after reviewing the record as a whole believed the foregoing statement of the plaintiff. We again fail to give weight to the trial court's factual findings.
Basically the protest in this dissent is that in refusing to give credence to the plaintiff's expression of intent we fail to recognize the facts surrounding the transaction, and what people are in fact doing with their property in this day and age.
The property was acquired as a homestead and subsequently used as such. The son was not living with the mother and never did live at the homestead (except for visits) since acquisition. The son contributed nothing to upkeep, taxes, maintenance or repair. No delivery (other than presumptive delivery due to recording the deed) was ever shown. While much of this evidence goes to facts occurring after the transfer, it corroborates the expression of intent as of the time the house was transferred. There is no evidence of a different intent. The contrary theory grows out of the series of presumptions. See Restatement of the Law, Trusts, sections 442, 443:
"Section 442. Purchase in the Name of a Relative. Where a transfer of property is made to one person and the purchase price is paid by another and the transferee is a wife, child or other natural object of bounty of the person by whom the purchase price is paid, a resulting trust does not arise unless the latter manifests an intention that the transferee should not have the beneficial interest in the property.
"Section 443. Rebutting the Presumption of a Gift to a Relative. Where a transfer of property is made to one person and the purchase price is paid by another, and the transferee is a wife, child or other natural object of bounty of the person by whom the purchase price is paid, and the latter manifests an intention that the transferee should not have the beneficial interest in the property, a resulting trust arises." See also Shelley v. Landry, 97 N.H. 27, 79 A.2d 626 which reaches a result that is far more realistic.
After giving due consideration to the factual situation, we should conclude that plaintiff's testimony that she had her son's name placed on the deed "only if something happened to me" is acceptable. The trial court believed plaintiff. The judge of that court was in a better position to weigh the evidence.
As noted in the 51 Iowa Law Review article, supra, over 50% of the deeds examined for the purposes of that article were joint tenancy deeds. It is submitted that the vast majority of these deeds (particularly those not involving husband and wife) have the same purpose and the same intent as expressed by this plaintiff. She *487 had the transaction completed while she was single and had a living son. It is inherently probable that she wanted to keep her own homestead during her life but she wanted her son to take the property at her death. It is inherently improbable that plaintiff intended to make a present, gift or advancement of one-half interest in her homestead that would expose her to the very calamity that now befalls her.
It is inconceivable that the bulk of the people who are using joint tenancy deeds in relation to homesteads intend to convey any present property right other than a survivorship right to take effect at death. It may well be that individuals acting in this manner should employ the knowledgeable background and sophisticated techniques of attorneys. The fact is that they do not always do so.
Plaintiff testified here that she did intend her son to have beneficial interest to take effect on her death. I would hold with Shelley v. Landry, supra, that Robert L. Shorman holds the joint tenancy interest in the property for the benefit of his mother during her lifetime. His right to the property in the event his mother predeceases him is a valuable legal right which is subject to attachment, and if necessary, sale on execution.
This is not an easy area of the law but it is submitted that this type of decision will cause continued trouble in the future because it is unrelated to reality. I believe that plaintiff's son did get an interest to take effect at his mother's death, and would accordingly modify and remand.
RAWLING, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581175/ | 147 N.W.2d 819 (1967)
Sharon Coates DAVIDSON, Appellee,
v.
R. J. COONEY, d/b/a R. J. Cooney Construction Company, Appellant.
Margery DAVIS, formerly Margery Fry, formerly Margery Carlson, Appellee,
v.
R. J. COONEY, d/b/a R. J. Cooney Construction Company, Appellant.
No. 52014.
Supreme Court of Iowa.
January 10, 1967.
*820 Hart & Hart, Waukon, for appellant.
Sheridan & Sheridan, Waukon, for appellee Davidson.
Walter L. McNamara, Cedar Rapids, for appellee Davis.
*821 GARFIELD, Chief Justice.
The main question this appeal presents is the sufficiency of the proof by circumstantial evidence of the claimed negligence of defendant as a proximate cause of injuries suffered by plaintiff Sharon Coates Davidson and cross-petitioner (in reality another plaintiff) Margery Davis from a collision of motor vehicles. We hold the proof was sufficient for submission to the jury.
I. At the outset we express disapproval of the 360-page record on appeal. At least half of it is filled with matters not material to the appeal which should have been omitted as rule 340, Rules of Civil Procedure, contemplates.
It is regrettable too that disposition of the controversy arising from an accident on December 4, 1959, has been unduly delayed largely by a multitude of procedural moves most of which were disposed of in a manner not now complained of. See in this connection Winneshiek Mutual Ins. Ass'n v. Roach, 257 Iowa 354, 132 N.W.2d 436, 439. A small part of the delay may also be traced to preparation of a record needlessly long.
II. The case is somewhat unusual in that no vehicle of defendant-appellant Cooney was directly involved in the collision. He operated a rock quarry near the place of collision and it is claimed his trucks were loaded so material leaked or otherwise escaped therefrom onto the roadway, in violation of section 321.460, Codes, 1958, 1962, and the condition was a proximate cause of the collision between the vehicle in which plaintiff Sharon Davidson was riding, driven by Margery Davis, and the one driven by a Mrs. Henderson. Cooney insists there is no proof any material escaped onto the roadway from his trucks on the day of the collision.
At the time of the accident the girls Sharon and Margery were high school students at Postville who were traveling north on paved primary Highway 51 toward Waukon in an auto a boy friend of Margery loaned them for the trip. The collision with the Henderson oncoming car occurred about three miles north of Postville near the foot of a hill the girls had descended and just north of a T intersection between 51 and a county road running east, surfaced with crushed rock. Two hundred twenty feet east of 51, on the north side of the county road, was the entrance to a stockpile of crushed rock hauled there from Cooney's quarry about 550 feet north of the county road, on the east side of 51.
In hauling from the quarry to the stockpile defendant's trucks were driven south on 51 to the county road and thence east to the stockpile. The return trip to the quarry was made over the same route. On the day of the accident Cooney's trucks hauled 48 loads of crushed rock from his quarry to his stockpile between 7 a. m. and noon when Cooney's men stopped hauling for the day. The collision occurred about 3:40 p. m.
Several witnesses testified in substance the roadway on 51 for the 550 feet between defendant's quarry and stockpile was more or less covered with rock, gravel, lime and other debris which was slimy, wet and slippery. South of its intersection with the county road and north of the entrance to the Cooney quarry, 51 was dry and without debris.
Right after the girls passed the intersection with the county road their car skidden on debris on the roadway of 51. Margery succeeded in straightening the course of the car but encountered a second slippery spot within about 10 to 15 feet, the car skidded again and she was unable to control it or avoid colliding with the southbound car driven by Mrs. Henderson.
One circumstance that makes proof of plaintiff's case more difficult is that 98 loads of crushed rock were hauled on December 4 up to 3 to 3:30 p. m. over the same 550 feet of Highway 51 by employees of Leas who operated a quarry *822 adjoining Cooney's on the north. Naturally, Cooney is inclined to blame Leas' truckers for the condition of the roadway of which plaintiff complains.
The circumstance just referred to would be more formidable if it were not for the fact Leas' loaded trucks entered Highway 51 as much as 200 feet north of the place where defendant's trucks entered it and continued on 51 to Postville, about three miles beyond the place where Cooney's trucks left it and, as indicated, there is substantial evidence debris was found only on the 550 feet of 51 over which Cooney's trucks traveled. It is true Leas' empty trucks returned over the county road and thence north on 51 to the Leas quarry.
There are other circumstances which support the claim the debris came from defendant's trucks rather than Leas'. The jury could properly find Leas' trucks were more carefully loaded than defendant's were. They went to a road project east of Postville, the loads were weighed after leaving the floor of the Leas' quarry and the county paid for the rock as weighed. Loads on defendant's trucks, however, were not weighed or sold but merely transported to the stockpile after making a left turn from 51 onto the county road. There is also evidence the endgate of defendant's trucks was not always closed when they made the return trip to the quarry. Further, one of the two drivers for defendant said he was unable to see through the window of the cab of the truck when the trucks were loaded. Some of Leas's drivers testified no material was spilled from their trucks that day.
III. In considering defendant's claim he was entitled to a directed verdict we consider the evidence in the light most favorable to plaintiff. Division II hereof was written with this in mind.
Generally questions of negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as matters of law.
An issue may be proven by circumstantial evidence but this evidence must be such as to make the theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. Generally, however, it is for the jury to say whether circumstantial evidence meets this test. Rule 344(f) 2, 10, and 16, Rules of Civil Procedure.
It is not necessary in a civil case that circumstantial evidence be so clear as to exclude every other possible theory. Soreide v. Vilas & Co., 247 Iowa 1139, 1143, 78 N.W.2d 41, 43, 44, and citations; Larson v. Johnson, 253 Iowa 1232, 1234, 115 N.W.2d 849, 850, and citations; Christianson v. Kramer, 257 Iowa 974, 135 N.W.2d 644, 650.
IV. Sole ground of negligence submitted to the jury was that defendant's trucks were driven onto Highway 51 without being so loaded as to prevent rock, lime or mud from dropping, sifting, leaking, or otherwise escaping therefrom onto the highway, causing it to be slippery and hazardous in violation of section 321.460, Codes, 1958, 1962.
So far as applicable here this statute provides: "Spilling loads on highways. No vehicle shall be driven * * * on any highway unless such vehicle is so * * * loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping therefrom, * * *."
As before indicated, we think there was substantial evidence summarized in Division II hereof to warrant submission to the jury of this charge of negligence. Our conclusion finds support in Overhouser v. American Cereal Co., 118 Iowa 417, 421, 92 N.W. 74; Lockwood v. Wiltgen, 251 Iowa 484, 487-489, 101 N.W.2d 724, 726, 727; Matsumato v. Arizona Sand & Rock Co., 80 Ariz. 232, 295 P.2d 850, 56 A.L.R. 2d 1385, 1390, 1391, and Anno. 1392, 1400-1404; Price v. Parks, 127 Fla. 744, 173 So. 903; Meil v. Syracuse Constructors, Inc., 19 A.D.2d 10, 240 N.Y.S.2d 403; Dudley & Orr v. Jacobs, Tex.Civ.App., 257 S.W. 315. See also as having some bearing Hawkeye-Security *823 Ins. Co. v. Lowe Constr. Co., 251 Iowa 27, 30, 99 N.W.2d 421, 424; Shannon v. Missouri Valley Limestone Co., 255 Iowa 528, 122 N.W.2d 278; Solberg v. Schlosser, 20 N.D. 307, 127 N.W. 91, 93, 94, 30 L.R.A., N.S., 1111.
V. There is little doubt the issue of proximate cause was also for the jury. In several recent decisions we have approved this from Restatement, Second, Torts, section 431: "The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm." Frederick v. Goff, 251 Iowa 290, 298, 100 N.W.2d 624, 629; Wheatley v. Heideman, 251 Iowa 695, 712, 102 N.W.2d 343, 353, 354; Sayre v. Andrews, 258 Iowa ___, 146 N.W.2d 336, 344.
"Nor will the fact that some other cause operates with the defendant's negligence to produce the injury relieve the defendant if the injurious result is traceable in some material degree to his want of due care" (citations). Swaim v. Chicago, R. I. & P. R. Co. (1919), 187 Iowa 466, 471, 174 N.W. 384, 386 (cert. den. 252 U.S. 577, 40 S. Ct. 344, 64 L. Ed. 725); Lockwood v. Wiltgen, supra, 251 Iowa 484, 491, 101 N.W.2d 724, 728; precedents last cited above.
Of course there may be more than one proximate cause of an injury. Sayre v. Andrews, Lockwood v. Wiltgen, both supra, and citations therein. Nor would the negligence of the driver of the car in which Sharon was riding as a passenger be imputable to her unless she had a right, in some manner, to control its operation. Sayre and Lockwood cases; Mathews v. Beyer, 254 Iowa 52, 59, 116 N.W.2d 477, 481. There is no evidence Sharon had such right.
It is not contended Margery, the driver, was not entitled to recover on the ground she was contributorily negligent as a matter of law.
See also on the issue of proximate cause Overhouser v. American Cereal Co., supra, 118 Iowa 417, 422, 92 N.W. 74; Whitlatch v. City of Iowa Falls, 199 Iowa 73, 80, 201 N.W. 83.
VI. Instructions which submitted to the jury the charge of negligence referred to in Division IV hereof are assailed as without sufficient support in the evidence and the claimed negligence was not a proximate cause of plaintiffs' injuries. We have held against these contentions in the two preceding divisions hereof. Elaboration of what is there said is deemed unnecessary.
VII. Defendant's remaining assigned error is based on receipt of testimony of Sharon's brother as to his observations of Highway 51, and concerning a snapshot taken by him, the morning after the collision.
This witness testified he went to the scene of the accident early in the morning after it happened and observed a light, clear substance frozen to the pavement and several spots of loose gravel between the entrance to defendant's quarry and the county road running past his stockpile. He also took a snapshot of part of this segment of the highway and said a "line" shown in the picture was gravel. The court excluded offered testimony of this witness as to tracks on the highway. Defendant's objection to the testimony received as incompetent, irrelevant, immaterial in point of time and without foundation was overruled. The record shows no objection to the offer of the snapshot as an exhibit.
Defendant calls attention to statements in 8 Am.Jur.2d, Automobiles and Highway Traffic, section 958, page 505; Hackman v. Beckwith, 245 Iowa 791, 805, 64 N.W.2d 275, 283, 284, and Ficke v. Gibson, 153 Neb. 478, 45 N.W.2d 436, 438, 439, that evidence of tire marks (and, in Ficke, foot and tire marks) at the scene of an accident is inadmissible unless it is shown conditions *824 were the same when the marks were observed as at the time of the accident.
We do not question the stated rule but think it is not applicable to evidence received here as to the condition of the roadway the morning after the accident. The jury could properly find the accident occurred about 4 p. m., that nothing was hauled south from either quarry in the vicinity between that time and time of the witness' observations, and the only change in the condition testified about was the result of freezing. (One witness testified to conditions he observed as late as 5:30 on December 4.) It clearly appears there was some thawing on December 4 when witnesses said the surface was wet and slimy. Sharon's brother testified it was cold the next morning when he made his observations. This would be normal for the locality in early December. It is probable the condition described by the witness was less hazardous than conditions at the time of the accident.
It seems unlikely the jury would not weigh the evidence complained of in the light of their knowledge of the normal change of conditions caused by the drop in temperature during the preceding night. The trial court appears to have given careful consideration to the admissibility of this evidence and we are not persuaded its receipt was reversible error.
Although not strictly in point, our conclusion finds some support in Coonley v. Lowden, 234 Iowa 731, 741-744, 12 N.W.2d 870, 877, 878 (Division III of opinion), and citations; Torrence v. Sharp, 246 Iowa 460, 462, 463, 68 N.W.2d 85, 87; Shover v. Iowa Lutheran Hospital, 252 Iowa 706, 718-720, 107 N.W.2d 85, 92, 93 (Division V of opinion); Meil v. Syracuse Constructors, Inc., supra, 19 A.D.2d 10, 240 N.Y.S.2d 403; Zinda v. Pavloski, 29 Wis. 2d 640, 139 N.W.2d 563, 565, 566.
We find no reversible error in any respect assigned and argued by appellant.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1754471/ | 999 S.W.2d 846 (1999)
NORWEST MORTGAGE, INC., Appellant,
v.
Jose B. SALINAS and Victoria B. Salinas, Appellees.
No. 13-96-552-CV.
Court of Appeals of Texas, Corpus Christi.
July 1, 1999.
*851 Harvey Ferguson, Jr., Chaves, Gonzales & Rodriguez, Paul W. Nye, Audrey Mullert Vicknair, Roberta Dohse, Chaves, Gonzalez & Hoblit, Corpus Christi, for Appellant.
Larry G. Hyden, Henkel, Hyden & Sanders, John Blaise Gsanger, William R. Edwards III, Edwards, Perry & Haas, J. Mitchell Clark, Corpus Christi, for Appellee.
Before Chief Justice SEERDEN and Justices YAÑEZ and CHAVEZ.
OPINION
Opinion by Justice YAÑEZ.
Mr. and Mrs. Jose B. Salinas ("the Salinases") instituted this suit against Norwest Mortgage, Inc. ("Norwest") for recovery of damages in connection with a loan agreement financing the construction and purchase of a home. The jury found Norwest liable for breach of contract, fraud, negligent misrepresentation, gross negligence, and knowing violations of the Deceptive Trade Practices Act ("DTPA").[1] The Salinases elected to recover under the DTPA and the trial court awarded damages based solely on the DTPA claims. Norwest raises seventeen points of error, contending: (1) the evidence is legally and factually insufficient to support the jury's findings of fraud, negligent misrepresentation, gross negligence, violations of the DTPA, and the mental anguish damages awarded under the DTPA; (2) the trial court erred in instructing the jury, admitting improper witness testimony, and in awarding damages for mortgage payments made by the Salinases and attorneys' fees as a percentage of DTPA damages; (3) that the jury's answers are inconsistent; and (4) the judgment improperly includes the jury's findings on issues other than violations of the DTPA. In two conditional cross-points, to be considered only if we reverse any aspect of the trial court's judgment based on the DTPA, the Salinases contend (1) the trial court erred in failing to include prejudgment interest from the calculation of additional damages under the DTPA and (2) the evidence is sufficient to support the jury's findings of negligent misrepresentation and gross negligence. We affirm the judgment of the trial court.
*852 I. Facts
In August of 1991, the Salinases contacted several builders, including Bay Area Builders ("Bay Area"), for the purpose of soliciting a bid for the construction of a new home. The Salinases became interested in Bay Area when they visited a "Parade of Homes," which featured homes advertised as built by Bay Area and financed by Norwest. The Salinases met with Bay Area's Bertha Ortiz, who told them that Norwest would consider financing their home construction loan if they put up $200 in earnest money and agreed to purchase a home from Bay Area. The Salinases signed an "Agreement to Sell" with Bay Area on or about September 10, 1991. The agreement provided for a sales price of $124,900 and a loan in the amount of $138,100.[2] Shortly thereafter, Ortiz arranged a meeting, held at Bay Area's offices, between the Salinases and Randy Smith, a Norwest loan officer. At the meeting, Smith described the benefits of Norwest's "Single Closing Construction Loan Agreement," which provides, among other things, for interim and permanent financing and supervision by Norwest over a phased disbursement of funds to approved builders. The Norwest single closing agreement, signed by the Salinases and Bay Area on or about October 31, 1991, provides for a note in the amount of $138,100, construction to be completed by February 25, 1992, and for the commencement of mortgage payments on March 1, 1992, whether or not construction is complete. It further provides authorization for Norwest to "inspect and check the construction of the improvements," advance funds "in proportion to its inspector's report of progress of construction," and that Bay Area was required to provide Norwest with lien waivers from all parties furnishing labor and materials to the job prior to each advance of funds. The agreement also provides for the Salinases to execute a "Security Instrument" in favor of Norwest and for "assignment" to Norwest of any indebtedness owing to Bay Area by the Salinases under the separately executed "Builder's and Mechanic's Lien Contract."
Bay Area did not complete construction of the home by the February 25 completion date. Nonetheless, the Salinases were required to begin making regular mortgage payments starting March 1, 1992.
In late March 1992, Smith contacted several Norwest clients, including the Salinases, whose homes were then under construction by Bay Area. Norwest held a meeting to inform the clients of recently acquired information regarding problems with Bay Area. Smith and several Norwest management officials, including an attorney and the regional manager, attended the meeting. The Salinases were told that Bay Area had ceased working on the house and that Norwest had refused to provide additional funds because of reports that Bay Area had not paid outstanding bills related to the construction. Norwest advised the Salinases that liens totaling approximately $47,000 had been filed on the property and that if they so desired, they could select another builder. Further attempts to resolve the problems with Bay Area were unsuccessful. In May 1992, the Salinases sought legal representation. In October 1992, Norwest accepted a $57,700 proposal from North Padre Properties ("North Padre") to complete construction on the Salinas home within approximately sixty days. The Salinases knew Norwest had solicited bids from several builders, but were not involved in the selection of North Padre to complete the work. Mr. Salinas testified he had some reservations *853 about the decision because he did not believe North Padre was a member of the local builder's association. North Padre began work at the site in November 1992.
In February or March of 1993, the Salinases met with Pat Childers of North Padre to discuss the progress of the work and various related matters. Childers testified that he expected payment from the Salinases for some "extra" work performed at their request.[3] Mr. Salinas did not pay North Padre because the work on the house was incomplete and he feared North Padre would stop work altogether if payment was made. Shortly thereafter, North Padre ceased working on the house. Childers testified that North Padre was paid approximately $57,000 by Norwest for work performed on the house.[4]
Even though the house was incomplete, the Salinases obtained a certificate of occupancy and began living in the house in March of 1993, after having made regular mortgage payments for a year. Shortly thereafter, the Salinases solicited a $13,700 proposal from another builder to repair and/or complete work on the house. At the time of trial, Mr. Salinas testified that liens totaling approximately $11,000 were on file related to construction on the home.
On February 12, 1993, the Salinases filed suit against Norwest and Bay Area, alleging various theories of recovery. After trial began, the Salinases accepted an offer of settlement from Bay Area. The jury found Norwest liable for breach of contract, fraud, negligent misrepresentation, gross negligence, and for knowingly violating the DTPA by both deceptive and unconscionable acts. The jury awarded damages on all causes of action, and the Salinases elected to recover under the DTPA. The trial court entered judgment, awarding the Salinases $659,917.23 in damages, including an additional award of two times the DTPA recovery and attorney's fees of forty percent (40%) of the total DTPA award.
II. Standard of Review
In reviewing a legal sufficiency challenge, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Associated Indem. Corp. v. CAT Contracting, 964 S.W.2d 276, 286 (Tex.1998). We sustain a legal sufficiency challenge when the record discloses: (1) that there is a complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); City of Alamo v. Casas, 960 S.W.2d 240, 249 (Tex.App.Corpus Christi 1997, pet. dism'd by agr.). "More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Associated Indem. Corp., 964 S.W.2d at 286; Merrell Dow, 953 S.W.2d at 711 (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). When confronting a factual insufficiency challenge, we overturn findings only *854 if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).
III. DTPA Claims
We will begin with the appellant's challenges to the findings in appellees' favor on their various theories of liability. In points of error nine through twelve, Norwest challenges the jury's findings of liability for violations of the DTPA. Norwest contends: (1) the Salinases are not "consumers" within the meaning of the DTPA because the injuries they suffered did not occur in connection with the lending of money; (2) the evidence is legally and factually insufficient to support the jury's findings that Norwest knowingly engaged in deceptive acts; (3) the evidence is legally and factually insufficient to support the jury's findings that Norwest engaged in unconscionable acts; and (4) the evidence is legally and factually insufficient to support the jury's finding that Norwest's violations of the DTPA were the producing cause of the Salinases' damages.
To recover under the DTPA, a plaintiff must establish "consumer" status, that the defendant engaged in either false, misleading, or deceptive acts or practices or an unconscionable act, and that the act or acts constituted a producing cause of the plaintiff's damage. TEX. BUS. & COM.CODE ANN. § 17.50(a)(1)(3) (Vernon 1987); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996); Smith v. Herco, Inc., 900 S.W.2d 852, 858 (Tex.App.Corpus Christi 1995, writ denied).
A. Consumer Status
Whether or not a plaintiff is a "consumer" under the DTPA is a question of law to be determined by the trial court from the evidence, and the trial court will not submit issues to the jury as to violations of the DTPA if it has determined that the plaintiff is not a consumer. Holland Mortg. and Inv. Corp. v. Bone, 751 S.W.2d 515, 517 (Tex.App.Houston [1st Dist.] 1987, writ ref'd n.r.e). When the trial court submits a jury issue on DTPA violations, the court has implicitly determined that the complainant is a consumer under the Act. HOW Ins. Co. v. Patriot Fin. Serv. of Texas, Inc., 786 S.W.2d 533, 538 (Tex.App.Austin 1990, writ denied). In the present case, the trial court determined the Salinases were consumers under the Act because it submitted DTPA issues to the jury.
To have standing to sue under the DTPA, a party must establish that he is a consumer, as defined by the DTPA. Brown v. Bank of Galveston, Nat. Ass'n., 930 S.W.2d 140, 143 (Tex.App.Houston [14th Dist.] 1996), aff'd, 963 S.W.2d 511 (Tex.1998) (citations omitted). A party is a consumer under the DTPA if he meets two requirements. Id. (citations omitted). First, the party must seek or acquire goods or services by purchase or by lease. TEX. BUS. & COM.CODE ANN. § 17.45(4) (Vernon 1987). Second, the goods or services sought or acquired must form the basis of the party's complaint. Brown, 930 S.W.2d at 143. In determining whether a plaintiff is a consumer, the focus is on the plaintiff's relationship to the transaction. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 815 (Tex.1997).
Norwest argues that the injuries suffered by the Salinases were not sustained "in connection with" the lending of money. We disagree. The essence of the Salinases' complaint is that Norwest failed to properly supervise funding during construction of their home and failed to abide by its mandatory policy of obtaining lien waivers prior to the disbursement of funds. The injuries suffered by the Salinases were sustained "in connection with" the "services" they acquired from Norwest.
In support of their argument that any injuries suffered by the Salinases were not *855 sustained "in connection with" the lending of money, Norwest directs our attention to Central Tex. Hardware, Inc. v. First City, Texas-Bryan, N.A., 810 S.W.2d 234 (Tex. App.Houston [14th Dist.] 1991, writ denied) and Bank of El Paso v. T.O. Stanley Boot Co., 809 S.W.2d 279 (Tex.App.El Paso 1991) aff'd in part, rev'd in part on other grounds 847 S.W.2d 218 (Tex.1992). We find these cases distinguishable from the present action.
In Central Texas, a business which sought to borrow money from a bank for the purchase of seasonal inventory goods was not a consumer as to the bank because the goods or services sought (the inventory goods) did not form the basis of the complaint. Central Texas, 810 S.W.2d at 237. The court noted that the supreme court has held borrowers to be consumers when the borrower's objective in seeking a loan is the purchase or lease of a good or service and the goods or services sought form the basis of the complaint. Id. (citing Knight v. Int'l Harvester Credit Corp., 627 S.W.2d 382 (Tex.1982); Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705 (Tex.1983)). Similarly, Stanley Boot Co. simply stands for the proposition that a pure loan transaction lies outside the DTPA. See Stanley Boot Co., 809 S.W.2d at 288.
A person who seeks only to borrow money is not a consumer under the DTPA because money is not a good or a service. Brown, 930 S.W.2d at 143 (citing Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169, 174-75 (Tex.1980)). However, where the extension of credit is incident to the sale of goods or services and the conduct of the party extending the credit is intertwined in the transaction, the borrower may be a consumer with respect to the creditor, as well as to the seller, of the goods. Id. (citations omitted). A creditor may be inextricably intertwined in the transaction so as to confer consumer status on a party if the extension of credit forms the means of making the sale or purchase from the buyer's perspective. Id. at 143-44. The DTPA does not impose vicarious liability based on innocent involvement with business transactions. Brown, 963 S.W.2d at 514 n. 1. To hold a creditor liable in a consumer credit transaction, the creditor must be shown to have some connection either with the actual sales transaction or with a deceptive act related to financing the transaction. Brown, 930 S.W.2d at 144 (emphasis supplied).
In the present case, the Salinases purchased a home to be built by Bay Area and financed by Norwest. The evidence shows that Norwest's conduct is inextricably intertwined in the transaction and that a "tie-in" relationship existed between Bay Area and Norwest. Bay Area's promotional sales signs advertised "financing available by Norwest." Bay Area's sales representatives made the initial contact and arranged a meeting, held at Bay Area's offices, between Norwest's Randy Smith and the Salinases. The Salinases, Bay Area, and Norwest were parties to the single closing construction loan agreement, which provided for inspections and, upon receipt of lien waivers, disbursement of funds by Norwest. In Holland, a borrower established consumer status in an action against a mortgagor by showing some evidence of a "tie-in" relationship between the builder and the lender where the builder recommended the services of the mortgage company and arranged an appointment for the borrower. Holland, 751 S.W.2d at 518.
Moreover, the evidence shows that Norwest's own acts violated the DTPA. Norwest acted unconscionably by failing to properly monitor the construction schedule and supervise the disbursement of loan funds. We hold that the trial court did not err in determining that the Salinases were consumers within the meaning of the *856 DTPA. We overrule Norwest's twelfth point of error.
B. Unconscionable Acts
In its ninth and eleventh points of error, Norwest complains the trial court erred in entering judgment for violations of the DTPA because the evidence is legally and factually insufficient to support the jury's findings that Norwest acted unconscionably and knowingly engaged in false, misleading, or deceptive acts. In its tenth point of error, Norwest asserts that the evidence is legally and factually insufficient to show that its actions were a producing cause of damages to the Salinases.
The trial court's DTPA judgment can be supported by sufficient evidence of either deceptive acts or unconscionability. Since we conclude that the evidence adequately supports the jury's finding of unconscionability, we will address only that issue.
Under the applicable version of the DTPA, unconscionability was defined as follows:
"Unconscionable action or course of action" means an act or practice which, to a person's detriment:
(A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or
(B) results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration.
TEX. BUS. & COM.CODE ANN. § 17.45(5) (Vernon 1987).[5]
In the present case, the issue of whether Norwest engaged in unconscionable acts was presented to the jury by the following question:
Did Norwest Mortgage, Inc. engage in any unconscionable action or course of action that were [sic] a producing cause of damages to Jose B. Salinas and Victoria B. Salinas?
INSTRUCTIONS
"Producing cause" means an efficient, exciting, or contributing cause that, in a natural sequence, produced the damages, if any. There may be more than one producing cause.
An unconscionable action or course of action is an act or practice that, to a person's detriment
a. takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree, OR
b. results in a gross disparity between value received and consideration paid in a transaction involving transfer of consideration.
Answer "Yes" or "No."
The jury answered "yes" to this question. Norwest concedes that "[t]he jury was properly instructed" and does not challenge the wording of the question on appeal. Accordingly, the sufficiency of the evidence must be examined in view of the question and instruction as submitted to the jury. Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 107 (Tex.App.Houston [14th Dist.] 1996, n.w.h.) (citing Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985)).
Parts "a" and "b" of the instruction were submitted disjunctively, such that an affirmative finding by the jury on either "a" or "b" was sufficient to support the jury's finding that Norwest engaged in unconscionable conduct. On appeal, Norwest *857 only challenged the sufficiency of the evidence as it applied to part "a" of the instruction.[6] No challenge was raised as to the sufficiency of the evidence as it applies to part "b." Because we find the evidence sufficient to support the jury's finding on the basis of part "b," we do not address the evidence as it applies to part "a."
Under part "b," the Salinases contend the record contains sufficient evidence that a gross disparity existed between the value they received from Norwest under the one-time loan closing program and the consideration they paid. We agree.
The record shows that Norwest failed to properly supervise construction, monitor the construction schedule, control disbursement of the loan funds, and obtain lien waivers prior to the disbursement of funds, all of which resulted in the gross disparity between the value received by the Salinases and the consideration paid. Norwest agreed to inspect the progress of the construction and supervise disbursement of the loan funds upon receipt of lien waivers and in accordance with the "construction loan advance schedule." The single-closing agreement, which delineates the rights and obligations of the parties, provides, in pertinent part:
12. It is understood and agreed that NMI[7] will advance the Construction Funds and Trust Funds only when there is no default hereunder and only in proportion to its inspector's report of progress of construction, retaining at all times sufficient funds which, in the opinion of its inspector, will complete the improvements. NMI may disburse Trust Funds and Construction Funds to Builder or directly to sub-contractors, materialmen and laborers, at NMI's option.
13. NMI retains the right to withhold any disbursement of the Construction Funds or the Trust Funds if, in its sole judgment, any unsatisfactory deviation from the plans and specifications occurs, any defective work or material is not remedied, Builder fails to make payments to sub-contractors, if the work is not performed in a workmanlike manner, if changes are made in the construction plans and specifications without NMI's written consent, if any lien, other than a lien in favor of NMI, is filed against the Property, or if Borrower or builder defaults under this Agreement or any other agreement executed in connection herewith.
....
16. On completion of the construction and each and every stage thereof for which payment is requested and prior to each advance of funds, Builder shall furnish to NMI completed waivers of liens, each executed by the appropriate provider of labor and/or material, together with a certificate that lien waivers have been executed by all parties furnishing labor and materials in connection with the construction of the improvements to the date thereof.
(Emphasis supplied).
In addition, the construction loan advance schedule provides, in pertinent part, that "prior to the disbursement of any funds, lien waivers covering previous advances *858 must have been received by NMI." Moreover, Norwest's "Single Close Construction Loan Manual" provides, in pertinent part:
Lien waivers from all subcontractors and suppliers are required and must be submitted to the LPO Construction Department. Lien waivers from the subcontractors and suppliers who were to be paid from the prior advance must be presented before funds can be disbursed for the current advance request.
....
Each lien waiver must be checked against the inspection report and sworn construction statement for consistency.
....
Inspection reports must be reviewed carefully, especially in states where lien waivers are not required, to ensure that the builder is receiving draws only for work actually completed.
....
[A]n inspection must be completed prior to disbursing funds for each draw request. The inspector must verify that all of the work specified in the draw request has been completed.
....
[L]ien waivers are mandatory on each line item for each draw, regardless of the advance schedule used. The names and amounts, etc., on each lien waiver must be checked against the cost breakdown and inspection report for consistency as well as the previous draws.
Because Norwest was obligated to obtain lien waivers prior to disbursing funds, the lien waivers obtained during construction should total approximately the amount actually disbursed.[8] Norwest made the following advances to Bay Area:
Date Draw Amount
11-8-91 $ 20,216.39
11-14-91 $ 5,429.61
12-4-91 $ 25,246.00
1-8-92 $ 30,520.00
2-3-92 $ 12,999.00
2-21-92 $ 10,191.44
3-30-92 $ 2,400.00
4-17-92 $ 4,188.85
Total $111,191.29
Assuming no lien waivers were required prior to the initial disbursement of $20,216.39, Norwest should have obtained lien waivers totaling approximately $90,974.90 for work through April 1992. However, Norwest can only show lien waivers totaling $43,779.11 for work completed during this period.[9]
As for the gross disparity between the consideration paid and the value received, the Salinases paid $300 to Norwest to perform the required inspections. The Salinases' note in favor of Norwest, in the principal amount of $138,100, calls for regular monthly payments for thirty years. As of the time of trial, the Salinases had made all regular payments as required under the note. Mr. Salinas testified that at the time of trial, there were liens against the home totaling approximately $11,000. The Salinases presented expert testimony that as of June 1, 1995, the estimated cost to repair and complete the home according to the plans and specifications, as it should have been completed in May 1992, was approximately $52,790.[10]
We find the evidence is sufficient to support the jury's finding that the Salinases *859 suffered from a gross disparity between the value they received from Norwest and the consideration they paid in violation of the DTPA. We overrule appellant's ninth point of error.
C. Producing Cause
Norwest contends that all of the Salinases' damages are attributable to the failure of the builders, Bay Area and North Padre, to timely complete the construction of their home in a satisfactory manner and that the Salinases cannot show that any act or omission by Norwest was the producing cause of their injuries. Norwest argues that it "had no right to directly control the builders or the work site" and that the Salinases were responsible for selecting Bay Area prior to any dealings with Norwest. Norwest also contends that it cannot be held responsible for Bay Area's insolvency or the dispute between the Salinases and North Padre, which resulted in North Padre walking off the project.
Producing cause requires that the acts be both a cause-in-fact and a "substantial factor" in causing the injuries. Brown, 963 S.W.2d at 514 (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995); Prudential Ins. Co. v. Jefferson Assocs. Ltd., 896 S.W.2d 156, 161 (Tex.1995)). A producing cause is an efficient, exciting, or contributing cause, which in the natural sequence of events, produces injuries or damages. Id. (citing Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995)); Townsend v. Catalina Ambulance Co., 857 S.W.2d 791, 795 (Tex.App.Corpus Christi 1993, no writ). The first component of producing-cause analysis is a purely fact-based examination, considering whether, but for the defendant's conduct, the plaintiff's injuries would not have occurred. Amstadt, 919 S.W.2d at 655 (Gonzalez, J., concurring in part and dissenting in part) (describing producing-cause analysis) (citations omitted). Under the DTPA, a defendant's acts cannot be the producing cause of a plaintiff's injuries unless the injuries flowed from the defendant's misconduct in connection with a consumer transaction. Id.
The second inquiry in producing-cause analysis is whether the defendant's conduct was the "legal cause" of the plaintiff's injuries; that is, whether it was such a substantial factor in causing the plaintiff's injuries that liability should be imposed. Id. (citations omitted). Policy-based considerations and "common-sense notions of responsibility" should guide the determination of whether the causal connection between the defendant's acts and the plaintiff's injuries merits the imposition of DTPA liability. Id. (citing WILLIAM POWERS, JR., TEXAS PRODUCTS LIABILITY LAW § 6.022, at 6-4, 6-20 (2d ed.1992)).
The jury found the Salinases' damages were: (1) the cost to repair and complete the house; (2) the cost to rent alternative housing while the repairs were in progress; (3) the mental anguish suffered by the Salinases; and (4) the mortgage payments made by the Salinases prior to substantial completion of the home.
In this instance, the Salinases' damages flow from Norwest's unconscionable conduct in failing to obtain lien waivers prior to disbursing funds and failing to properly supervise the disbursement of funds. The evidence shows that Norwest's failure to obtain lien waivers and properly supervise disbursement resulted in improper advances to Bay Area for work which was, in some cases, incomplete, unsatisfactory, and subject to liens because of failure to ensure payment to subcontractors. These acts and omissions can logically be considered an efficient, exciting, or contributing cause of the damages found by the jury. We hold the evidence is sufficient to show that Norwest's acts and omissions were both a cause-in-fact and a "substantial factor" *860 in causing the Salinases' damages. We overrule appellant's tenth point of error.
D. "Knowingly" Engaged in Conduct
After finding, in response to separate questions, that Norwest engaged in false, misleading, or deceptive acts and engaged in unconscionable conduct, the jury answered "yes" to the following question:
Did Norwest Mortgage, Inc. engage in any such conduct knowingly?
INSTRUCTIONS
"Knowingly" means actual awareness of the falsity, deception, or unfairness of the conduct in question. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.
In answering this question, consider only the conduct that you have found was a producing cause of damages to Jose B. Salinas and Victoria B. Salinas.
Norwest only challenged the jury's finding that it knowingly engaged in conduct in violation of the DTPA with respect to the finding that it engaged in a false, misleading, or deceptive act. No challenge was raised to the jury's finding of knowing violations with respect to the finding of unconscionable conduct. The jury could have based its finding of a "knowing" violation on a determination that Norwest knowingly engaged in unconscionable conduct. Because we have found the evidence sufficient to support the jury's finding of unconscionable conduct, we do not address Norwest's eleventh point of error challenging the sufficiency of the evidence with respect to whether it knowingly engaged in a false, misleading, or deceptive act.
IV. Evidentiary Error
In its fourth point of error, Norwest contends the trial court erred in allowing the testimony of Floyd Brown, one of the Salinases' witnesses, regarding the legal consequences of Norwest's assumption of Bay Area's indebtedness. Brown testified that in his opinion, the legal effect of paragraph 26[11] of the single-closing agreement, which provides for assignment of any indebtedness owing to Bay Area under the Builder's and Mechanic's Lien Contract, is that Norwest assumed all of Bay Area's rights and duties.[12] The Salinases claim that Norwest waived any objection *861 to Brown's testimony because it did not timely object and because it allowed similar testimony to be admitted without objection. They also argue that any error in the admission of Brown's testimony was harmless because the testimony concerns the obligations of the parties and is therefore only relevant to the Salinases' contract claims, which are immaterial to the DTPA judgment.
The admission and exclusion of evidence is committed to the trial court's sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. Id. A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. Id. The standard for reversible error is that "the error complained of ... probably caused the rendition of an improper judgment." TEX. R.APP. P. 44.1(a)(1). We determine whether the case turns on the evidence at issue by reviewing the entire record. City of Brownsville, 897 S.W.2d at 753.
In the present case, the record shows that Norwest timely objected to Brown's testimony on the basis that it constituted an improper legal conclusion. We also find Norwest did not waive error by allowing the admission of similar testimony without filing an objection.
We agree with the Salinases, however, that the disputed testimony, which concerns whether Norwest assumed all duties and responsibilities held by Bay Area, is irrelevant to the judgment based on violation of the DTPA. The disputed testimony is relevant to the Salinases' breach of contract claims, but we find the evidence sufficient to show that Norwest's own conduct violated the DTPA. Norwest cannot show, therefore, that Brown's testimony probably caused rendition of an improper judgment and any error by the trial court in admitting the testimony is harmless. We overrule appellant's fourth point of error.
In its fifth point of error, Norwest contends the trial court erred in allowing the testimony of Debra Green, another witness for the Salinases, on the basis that she was not properly identified in response to interrogatories. Norwest's complaint is that the Salinases' interrogatory responses identified Green by name, telephone number, city and state of her last known address, but no street address was provided. Green's testimony recounted her experiences with Bay Area and Norwest. Like the Salinases, she had entered into an agreement for the construction of a home built by Bay Area and financed by Norwest. She testified that she experienced problems similar to those reported by the Salinases; Bay Area stopped construction on the home, liens were filed, and the house was never completed.
The Salinases argue Norwest waived any error regarding the admission of Green's testimony because it waited until she was called to testify at trial before objecting that she was improperly identified. In support, the Salinases direct our attention to Lewis v. Western Waste Industries, 950 S.W.2d 407, 410 (Tex.App. Houston [1st Dist.] 1997, n.w.h.). In that *862 case, the court held that any right to exclude the testimony of an improperly identified witness is waived if the objecting party has not filed a motion for sanctions or a motion to compel, and instead, has intentionally waited until trial to move to strike the testimony of a witness. Lewis, 950 S.W.2d at 410 (citing Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167, 170 (Tex.1993) (failure to obtain pretrial ruling on discovery disputes existing before trial constitutes waiver of any claim for sanctions based on conduct)). We hold that by failing to file a pretrial motion to compel proper identification of Green, Norwest waived any right to exclude her testimony. We overrule Norwest's fifth point of error.
V. Mental Anguish Damages
By its sixth point of error, Norwest contends the evidence was legally and factually insufficient to support the jury's award of $71,364 for mental anguish damages and that the jury improperly attempted to reimburse the Salinases for mortgage payments by awarding the "oddly precise" amount paid on the loan as mental anguish damages.
Norwest also complains that mental anguish damages are not recoverable absent proof of a willful or grossly negligent violation of the DTPA. Under the DTPA, mental anguish damages are recoverable when there is proof of deceptive or unconscionable actions or courses of action committed "knowingly." Sanchez v. Guerrero, 885 S.W.2d 487, 494 (Tex.App.El Paso 1994, no writ). The jury found that Norwest violated the DTPA and that such violations were committed knowingly. We have upheld the finding of a "knowing" violation because the jury could have based its finding on a determination that Norwest knowingly engaged in unconscionable conduct, and no challenge was raised to such a finding. Therefore, the jury's award of $71,364 for mental anguish is proper if supported by legally and factually sufficient evidence.
An award of mental anguish damages requires either "direct evidence of the nature, duration, or severity of [plaintiffs'] anguish, thus establishing a substantial disruption in the plaintiffs' daily routine," or other evidence of "`a high degree of mental pain and distress' that is `more than mere worry, anxiety, vexation, embarrassment, or anger.'" Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996) (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)).
The record in the present case includes the Salinases' testimony that their marriage and their relationships with their daughters suffered a strain. Mrs. Salinas testified that she was unable to sleep, suffered severe stomach cramps, and often was unable to eat lunch because of stomach pain. She testified that the strain affected her work, that the pressure to "keep silent about it" made her feel "kind of desperate," and that she found it difficult to explain the situation to her daughters. Mr. Salinas testified that he sought medical attention and took prescription sleeping pills because he was often unable to sleep. He also testified that the strain of making two mortgage payments was "financially exhausting" and that the mental anguish caused by Norwest was an all-consuming "nightmare" that continued for four years. This testimony reveals the Salinases suffered "a high degree of mental pain and distress" that caused a serious disruption in their daily routine. See Kold-Serve Corp. v. Ward, 736 S.W.2d 750, 756 (Tex.App.Corpus Christi 1987, writ dism'd w.o.j.) (holding evidence of financial and marital strain sufficient to support award of mental anguish damages). We find that the evidence is legally and factually sufficient to support the award of mental anguish damages because it addresses the nature and severity of the mental pain and distress the Salinases suffered over an extended period. Accordingly, *863 we overrule Norwest's sixth point of error.
Norwest contends the jury's award of $71,364 in mental anguish damages improperly attempted to reimburse the Salinases for mortgage payments. Although juries must be given a measure of discretion in finding mental anguish damages, such discretion is limited. "Juries cannot simply pick a number and put it in the blank. They must find an amount that, in the standard language of the jury charge, `would fairly and reasonably compensate' for the loss." Saenz, 925 S.W.2d at 614; see Parkway, 901 S.W.2d at 444. Appellate courts are required to conduct a meaningful evidentiary review of the jury's findings. Saenz, 925 S.W.2d at 614. In the present case, the issue is not whether or how closely the amount awarded by the jury approximates the total paid by the Salinases in mortgage payments. Rather, the issue is whether there is evidence that the amount found is fair and reasonable compensation. We find that the amount awarded was fair and reasonable compensation for the mental anguish suffered by the Salinases.
VI. Damages Awarded for Mortgage Payments
In its eighth point of error, Norwest contends the trial court erred in allowing the award of damages for mortgage payments made by the Salinases before their home was completed. Norwest contends that under the DTPA, the Salinases may only recover "out of pocket" damages or "benefit of the bargain" damages.
The Salinases argue that Norwest incorrectly relies on the most recent version of the DTPA for its view of the damages which may be recovered by a prevailing consumer.[13] They further contend that under the applicable version of the DTPA, they are not limited to recovery of "out of pocket" damages or "benefit of the bargain" damages, but instead are entitled to recovery of all damages necessary to compensate for the total loss sustained.
Under the applicable version of the DTPA, a consumer could recover "the amount of actual damages" caused by the defendant's false, misleading, or deceptive conduct. TEX. BUS. & COM.CODE § 17.50(b)(1) (Vernon 1987); Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex.1992). The amount of actual damages recoverable is "the total loss sustained as a result of the deceptive trade practice." Arthur Andersen, 945 S.W.2d at 816; Henry S. Miller, 836 S.W.2d at 162. Actual damages "includ[e] related and reasonably necessary expenses." Henry S. Miller, 836 S.W.2d at 162 (citations omitted). Therefore, such direct measures as "benefit-of-the-bargain" and "out-of-pocket" are not exclusive. Id. Other damages are permitted to ensure that a plaintiff is made whole. Id.
At common law, actual damages can be either "direct" or "consequential." Id. at 163; Arthur Andersen, 945 S.W.2d at 816. Direct damages are the necessary and usual result of the defendant's wrongful act; they flow naturally and necessarily from the wrong. Arthur *864 Andersen, 945 S.W.2d at 816. For misrepresentation, there are two recognized measures of direct damages. Henry S. Miller, 836 S.W.2d at 163. The "out of pocket" measure, which operates on a restitutionary theory, measures the difference between the value of that which was parted with and the value of that which was received. Id. The "benefit of the bargain" measure, which utilizes an expectancy theory, evaluates the difference between the value as represented and the value actually received. Id. The DTPA allows the injured consumer to recover either the "out of pocket" measure or the "benefit of the bargain" measure of damages, whichever is greater. Id.
Consequential damages, on the other hand, result naturally, but not necessarily, from the defendant's wrongful acts. Id. A consumer may recover consequential damages under the DTPA for a variety of injuries, including related and reasonably necessary expenses. Id. at 164. In order to be recoverable, however, consequential damages must be specifically pled. TEX.R. CIV. P. 56; Henry S. Miller, 836 S.W.2d at 164.
In the present case, the Salinases specifically pled for $17,865 for "mortgage payments made and loss of the use of the home." The jury was asked to consider, as an element of the Salinases' damages, "the mortgage payments made by Jose B. Salinas and Victoria B. Salinas prior to substantial performance." The Salinases presented evidence that from the time they began making mortgage payments in March 1992 until May 1993, when they moved into their (unfinished) home, their mortgage payments totaled approximately $17,841. During this period, the Salinases were required to make two mortgage payments, one for the home in which they were living and one to Norwest for the home which remained incomplete. The Salinases testified that they were required to obtain outside loans to meet the severe financial obligations imposed by the circumstances. We hold that the trial court's award of damages for mortgage payments made by the Salinases was proper and overrule Norwest's eighth point of error.
VII. Attorneys' Fees
In its seventh point of error, Norwest contends the trial court erred by "awarding attorney's fees as a percentage of DTPA damages." The Salinases contend this issue was not preserved for appellate review because Norwest raised no objection to the jury question underlying the award of attorney's fees. Norwest concedes that no objection was raised at trial, but argues no objection was necessary. In support, Norwest cites the supreme court's decision in Arthur Andersen, 945 S.W.2d at 818-19,[14] and contends that the holding in that case should be applied retroactively. We disagree.
To preserve a complaint regarding an improper foundation for an award of attorney's fees, an appellant must object and obtain a ruling from the trial court. TEX. R.APP. P. 33.1(a); see L & F Distributors v. Cruz, 941 S.W.2d 274, 285 (Tex.App. Corpus Christi 1996, writ denied). Norwest cites Ellis County State Bank v. Keever, 888 S.W.2d 790, 799 (Tex.1994), for the proposition that the supreme court's holding in Arthur Andersen is dispositive and should be applied retroactively in this case. In Ellis County, however, the court noted that supreme court holdings should apply retroactively to cases pending in the courts of appeal only when "a party has preserved the complaint." Ellis County, 888 S.W.2d at 799 (emphasis supplied). *865 Because Norwest failed to object to the question which requested the jury to determine an award of attorney's fees calculated as a percentage of recovery, it waived any objection to the basis for the award. We overrule Norwest's seventh point of error.
VIII. Inconsistent Jury Answers
In its fifteenth point of error, Norwest contends the jury's answers to Question 8,[15] reflecting the jury's finding of $45,000 for costs to repair and complete the Salinases' home and $3,000 for alternative housing, and Question 14, reflecting a finding of $34,000 as the difference between value received and purchase price or value given, are inconsistent. The Salinases argue that Norwest waived any objection by accepting the verdict and releasing the jury without objecting to the alleged conflict between the jury's answers.
In order to preserve error, the appellant must object to the conflict or inconsistency before the jury is discharged. Durkay v. Madco Oil Co., 862 S.W.2d 14, 23 (Tex.App.Corpus Christi 1993, writ denied). Norwest failed to preserve error because it did not object to the conflict or inconsistency prior to discharge of the jury. Norwest's fifteenth point of error is overruled.
IX. Recitations in Judgment
In its seventeenth point of error, Norwest contends the judgment improperly contains the jury's findings on issues other than Norwest's violation of the DTPA. The Salinases argue the findings are material because Norwest continues to mischaracterize this dispute as a mere contract case.
When a party tries a case on alternative theories of recovery and a jury returns favorable findings on two or more theories, the party has a right to a judgment on the theory entitling him to the greatest or most favorable relief. Boyce Iron Works, Inc. v. Southwestern Bell Tel. Co., 747 S.W.2d 785, 787 (Tex.1988). When the jury returns favorable findings on two or more alternative theories, the prevailing party need not formally waive the alternative findings, but may seek recovery under an alternative theory if the judgment is reversed on appeal. Id. Because the Salinases elected recovery under the DTPA and the judgment can be supported on that basis, any error as to the inclusion of the jury's findings on issues other than Norwest's violation of the DTPA is harmless. We overrule Norwest's seventeenth point of error.
X. Remaining Points
The remainder of Norwest's points relate to the Salinases' common law causes of action for breach of contract, fraud, negligent misrepresentation, and gross negligence. Norwest's first point concerns submission of a question relating to the Salinases' contract claims; points of error two and three concern the trial court's refusal to submit instructions applicable to causes of action other than violation of the DTPA. Points of error thirteen and fourteen challenge the legal and factual sufficiency of the evidence supporting the jury's findings of fraud and negligent misrepresentation. Because the trial court's judgment can be supported on the basis of the Salinases' DTPA claims, we need not address these remaining points. TEX. R.APP. P. 47.1.
XI. Conditional Cross-points
By two conditional cross-points, the Salinases contend (1) the trial court erred in failing to include prejudgment interest *866 from the calculation of additional damages and (2) that judgment should be entered on the jury's findings of negligent misrepresentation and gross negligence if we reverse the judgment based on the DTPA. Because we affirm the trial court's judgment, and consideration of the Salinases' cross-points is conditioned on our reversal or modification of any part of the judgment, we do not consider the conditional cross-points.
The judgment of the trial court is AFFIRMED.
NOTES
[1] TEX. BUS. & COM.CODE ANN. § 17.41 et seq. (Vernon 1987 and Supp.1999). Unless otherwise noted, all references to the DTPA in this opinion pertain to the Act as it was written before the effective date of the 1993 and 1995 amendments.
[2] The loan amount exceeds the contract sales price, in part, because it includes funds to pay off the remaining balance on the lot, which had been purchased separately by the Salinases.
[3] The Salinases do not dispute that they agreed to pay North Padre an agreed-upon sum for the items and that they have not done so. Some of the items, however, characterized by North Padre as "extra," such as plumbing for a jacuzzi bathtub, were not considered "extra" by the Salinases because those items were not considered "extras" under the contract with Bay Area.
[4] Childers also testified that he "probably" removed the whirlpool motor, range, exhaust fan, and light fixtures from the house because he may have "felt we were going to get burned."
[5] In 1995, the Legislature rewrote § 17.45(5) to eliminate subparagraph (B). Acts 1995, 74th Leg., ch. 414, § 2, effective September 1, 1995. A lawsuit filed on February 12, 1993 is governed by the law applicable to the claim prior to the effective date of the amendments.
[6] We note that appellants cite Home Sav. Ass'n Serv. Corp. v. Martinez, 788 S.W.2d 52 (Tex.App.San Antonio 1990, writ denied) in support of their claim that the evidence is insufficient to support a finding that Norwest violated part (a). We find Martinez distinguishable. In Martinez, the court noted in dicta that no gross disparity in violation of the DTPA existed between the value homeowners received from a lender and the consideration paid, where the lender, in financing a home improvement loan, provided homeowners with checks for $20,000, which homeowners endorsed to a builder, in consideration for a note in the principal amount of $20,400.
[7] Norwest Mortgage, Inc.
[8] According to testimony presented at trial and Norwest's manual, lien waivers are not required prior to the first advance because the first draw typically includes funds to pay off any balance remaining on the borrower's lot. In the present case, the first advance was for $20,216.39 and the Salinases' lot payoff amount was $13,459.20.
[9] Mr. Salinas testified that at the May 1992 meeting with Norwest, he was informed that liens totaling approximately $47,000 were then on file on the property.
[10] This "cost of repairs" estimate included 7% for "contingencies," but did not include any amount for overhead or profit.
[11] Paragraph 26 of the agreement provides as follows:
Assignment of Contract. NMI has no obligation to make the loan until Builder sells the indebtedness owing under the Builder's and Mechanic's Lien Contract of even date herewith together with the mechanic's lien security interest securing the payment thereof and financing statement, if any, (the "Builder's Documents") to NMI by Assignment and endorsement, in form and substance satisfactory to NMI. The purchase price (the "Purchase Price") of the Builder's Documents shall be the contract price (the "Contract Price") set forth in the contract or so much thereof as may be earned thereunder. The Purchase Price shall be payable in installments, in amounts and at times as Borrower and Builder request NMI, as provided in Section 10 hereof, to advance Construction Funds to pay Builder for work which has been performed under the Contract, but in no event shall the total Purchase Price exceed the original contract Price unless otherwise agreed to in writing among Borrower, Builder, and NMI. If the original Contract Price exceeds the Purchase Price, then Builder does hereby subordinate the excess of the Contract Price over the Purchase Price to the lien of NMI."
[12] Specifically, Brown testified, in pertinent part, as follows:
Q: Is it a fair statement to say that Norwest winds up with the rights of the builder under this contract here?
A: They do.
....
Q: [by plaintiffs' counsel] Is there anything that Norwest wasn't in control of on this project?
A: No. When those documents were assigned to Norwest, Norwest took the position of the builder. Now, if they elected to allow that builder to go ahead and construct improvements, that's fine, they make advances; but all the terms and conditions in that original M. & M. contract became their responsibility too.
....
Q: Do you believe your peers would agree with you that when the indebtedness talked about in this agreement is assigned to the lender, that that also means the lender is agreeing to become the builder?
A: I think that they are agreeing to see to all the featured terms and conditions of that contract, that they are going to be fulfilled in order to perfect their lien.
[13] Norwest cites TEX. BUS. & COM.CODE ANN. § 17.50(b)(1) (Vernon 1987 and Supp.1997). In 1995, the Legislature amended § 17.50(b)(1) to permit recovery of "economic damages" and, if the defendant acted knowingly, "damages for mental anguish," instead of "actual damages." Act of May 17, 1995, 74th Leg., R.S., ch. 414, 1995 Tex. Gen. Laws 2992. Under the applicable version of subsection (b)(1), a prevailing consumer was entitled to recover:
the amount of actual damages found by the trier of fact. In addition the court shall award two times that portion of the actual damages that does not exceed $1000. If the trier of fact finds that the conduct of the defendant was committed knowingly, the trier of fact may award not more than three times the amount of actual damages in excess of $1,000 ...
TEX. BUS. & COM.CODE ANN. § 17.50(b)(1) (Vernon 1987).
[14] In Arthur Andersen, the supreme court held that to recover attorney's fees under the DTPA, a plaintiff must prove fees are both reasonably incurred and necessary to the prosecution of the case and must ask the jury to award fees in a specific dollar amount, not as a percentage of judgment. Arthur Andersen, 945 S.W.2d at 819.
[15] Question 8 addresses damages available under the DTPA. Question 14 addresses damages available for negligent misrepresentation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565642/ | 284 S.W.2d 689 (1955)
Charles WHITE
v.
MID-CITY MOTOR CO., Inc., et al.
Court of Appeals of Tennessee, Eastern Section.
March 15, 1955.
Certiorari Denied November 7, 1955.
O.M. Tate, Jr., of Knoxville, for complainant-appellee Charles White.
H.K. Williams, Jr., of Knoxville, for defendant-appellant, Mid-City Motor Co.
McAMIS, Presiding Judge.
The bill was filed to cancel and rescind a conditional sales contract and notes executed by complainant in the purchase from the defendant Mid-City Motor Company of a second-hand automobile and to recover the amount paid under the contract. The theory of the bill, sustained by the Chancellor, is that the failure of the seller to comply with provisions of the Tennessee Motor Vehicle Title and Registration Law, Code, Sec. 5538.148 et seq., constituted a breach of an implied warranty of title under the Uniform Sales Act, Code, Sec. 7206, entitling the buyer to rescind. That Act, Code, Sec. 7262, provides:
"Remedies for breach of warranty. (1) Where there is a breach of warranty by the seller, the buyer may, at his election: * * *
*690 "(d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them to the seller and recover the price or any part thereof which has been paid."
Under Section 7206, there is an implied warranty on the part of the seller that he has the right to sell the goods; that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of sale and that the goods were free of any charge or encumbrance in favor of any third person.
The material facts as found by the Chancellor are: Mid-City Motor Company purchased the automobile in question in January, 1952, from James Lawson who had previously made application for, but had not obtained a certificate of title from the Division of Motor Vehicles. Lawson assigned and delivered a copy of his application to Mid-City. Mid-City promptly paid out of the amount due Lawson the balance owing Commercial Credit Company on the car. However, when Lawson's certificate of title was finally issued on April 22, 1952, the Division of Motor Vehicles mailed it to Commercial Credit Company presumably because it appeared in the application as a lien-holder. For some reason unexplained Commercial Credit Company, though its lien had been satisfied, retained the certificate until June, 1953, a period of more than a year.
In the meantime and in July, 1952, the car was sold by Mid-City to complainant who took title for his son, a minor. The son in January, 1953, took the car to Detroit, Michigan, where he obtained employment. In February, 1953, the Police Department of Detroit seized the car because the son had no certificate of title and impounded it under the authority of Michigan law, and it remained impounded until after complainant discontinued making installment payments owing Mid-City in June, 1953. Thereafter, by agreement, it was brought to Tennessee and sold, the proceeds being applied on complainant's notes. The present action was filed September 19, 1953.
As the Chancellor found, complainant and his son advised Mid-City of the impoundment of the car, as well as the reason therefor, and requested that it clear the title. Mid-City it appears continued to assure complainant that a certificate would shortly be obtained and made some slight efforts to do so but no effective action was taken, with the result that complainant finally lost hope of getting a certificate and refused to make the June, 1953, payment. In the meantime, complainant himself had applied for a certificate based upon his bill of sale from Mid-City and the assigned copy of Lawson's application but his applications were denied by the Division of Motor Vehicles because the title was outstanding in Lawson's name.
Did Mid-City have a lawful right to transfer the car without a title card and with the title outstanding in Lawson's name and showing a lien in favor of Commercial Credit Corporation? The answer is to be found in a proper construction and application of the Motor Vehicle Title and Registration Act. Section 48 of the Act, Code, § 5538.148, is as follows:
"(a) In order to transfer title to any motor vehicle coming within the title provisions of this act, the owner shall endorse an assignment and warranty of title upon the certificate of title, if in his possession, for such vehicle with a statement of all liens or encumbrances thereon, which statement shall be verified under oath by the owner, and he shall deliver the certificate of title and title card to the purchaser or transferee at the time of delivering the vehicle, except as hereinafter provided in section 57.[*]
"(b) Any owner desiring to transfer title to any motor vehicle coming within the title provisions of this act, whose certificate of title is being held by a lien or, may, in lieu of executing the assignment provided *691 on the reverse side of his certificate of title, execute and deliver to the transferee a separate bill of sale which shall show the name and address of the lienor in whose possession his certificate of title is being held and all such other information as may be required by the reasonable rules and regulations of the commissioner, and which bill of sale shall be signed by the seller, whose certificate shall be acknowledged before a notary public, together with his title card." (Italics ours.)
Code, § 5538.152, Section 52 of the Act, in part provides:
"(b) Where the certificate of title is held by a lienor and title has been transferred by bill of sale in lieu of an assignment and warranty as provided on the reverse side of the certificate of title, the division, upon receipt of a properly executed bill of sale accompanied by the transferor's title card and the required fee and when satisfied as to the genuineness and regularity of the said bill of sale and the right of the transferee to a certificate of title, shall procure the said certificate of title from the lienor in whose possession it is being held for the sole purpose of transferring ownership and the division shall then return a certificate of title to the lienor from whom it was obtained and forward the title card to the new owner. (Italics ours.)
"(c) The division, upon proper receipt of all the necessary applications, papers and information required showing title to a motor vehicle to have been transferred as provided by the provisions of section 51, paragraph (b) (5538.151) of this act and upon the payment of the required fee and when satisfied as to the genuineness and regularity of said transfer and the right of the transferee to a certificate of title, shall issue a new certificate of title in the name of the new owner as upon an original application and shall further make demand on the holder or holders of the old certificate of title and title card to surrender the same to the division forthwith, if the said certificate of title and/or title card does not accompany the application. (1951, ch. 70, sec. 52.)"
Section 55 of the Act, Code, § 5538.155, makes it a misdemeanor "for any person to fail or neglect to properly endorse or deliver any certificate of title or title card to the division, a transferee, or other person lawfully entitled thereto."
Under Code, § 5538.152 (b), above quoted, where there is no assignment of the certificate of title because it is being held by a lienor and, in lieu thereof, the seller executes a bill of sale, as in this case, the buyer may obtain a certificate from the Division "upon receipt of a properly executed bill of sale accompanied by the transferor's title card" provided the Division is satisfied as to the right of the transferee to a certificate of title. No such card accompanied the bill of sale from Mid-City to complainant and we think it follows that Mid-City attempted to transfer title in violation of the statute unless, as insisted, it is protected by Code, § 5538.150 providing:
"Transfer to dealers. When the transferee of a vehicle is a dealer who holds the same for resale and lawfully operates the same under dealer's registration plates, such transferee shall not be required to obtain a new registration of said vehicle or be required to obtain a new certificate of title but such transferee, upon transferring his title or interest to another person, shall execute an assignment and warranty of title upon the certificate of title, if in his possession or if in the possession of lienor, or he shall execute a bill of sale and deliver the same to the person to whom such transfer is made, together with his evidence of ownership, which assignment or bill of sale shall be acknowledged before a notary public. (1951, ch. 70, sec. 50.)"
It will be noted that this Section refers to obtaining a new certificate and to the transfer of the dealer's evidence of ownership. We think it is to be inferred that there is contemplated a case where a certificate is in existence and a title card is in the possession of the dealer as a part of his "evidence of ownership". Recognizing *692 that the dealer has the car for sale, this Section relieves him of the duty of obtaining in his own name a new certificate but not of the duty of placing evidence of ownership in the hands of his transferee. Otherwise construed, the Act would relieve a dealer of doing what the Act requires of all other persons and place upon purchasers from dealers the obligation of seeing that the dealer's transferor had proper evidence of title. We will not lightly ascribe to the Legislature a purpose to thus favor dealers at the expense of those with whom they deal.
The Section applying to dealers is followed by Section 5538.152 requiring, in the absence of an assignment of the certificate, that the bill of sale be accompanied by the title card. The latter Section makes no exception in this regard to sales under bills of sale by dealers.
If we are correct in so construing the Act, it results that, under Code, § 5538.155 making it a misdemeanor to fail to deliver a certificate to the transferee, Mid-City had no right to sell the car without such certificate and in attempting to do so it breached an implied warranty, Code, § 7206 (1), that it had the "right to sell the goods."
The breach of such warranty gives the buyer the absolute right to rescind. True v. J.B. Deeds & Son, 151 Tenn. 630, 271 S.W. 41.
As the Chancellor well said, the duty of Mid-City to clear the title was both an initial and a continuing duty. It cannot, in our opinion, rely upon the use of the car by complainant and his failure to give notice of his election to rescind and return the car as cutting off the right of rescission while it defaulted in its duty to perfect the title and continued to assure complainant that the title would soon be cleared. The damaging effect of the sale of the car in violation of the statute was not brought home to complainant until the car was seized and it then became impossible to return it. Mid-City meanwhile continued to benefit by complainant's payments on the notes. (It seems to us complainant showed rather remarkable forbearance in continuing to make payments while getting no benefits from the car.)
Nor can we agree that complainant's loss was due to the act of his son in taking the car without permission of the lien-holder to Michigan, where it was impounded. If the car had remained in Tennessee it could not have been lawfully operated without a certificate of title. Code, § 5538.127.
We find no error and it results that the assignments of error must be overruled and a decree rendered for complainant. Costs will be taxed to defendant and surety on the appeal bond.
HALE and HOWARD, JJ., concur.
NOTES
[*] Section 57 exempts sales of automobiles to be dismantled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579816/ | 12 So. 3d 1223 (2009)
Larry Wade RYLAND
v.
Gwendolyn Pauline RYLAND.
2070146.
Court of Civil Appeals of Alabama.
January 9, 2009.
*1224 James D. Hamlett, Montgomery, for appellant.
Linda S. James, Andalusia, for appellee.
THOMPSON, Presiding Judge.
On May 19, 2004, after 29 years of marriage, Gwendolyn Pauline Ryland ("the wife") filed a complaint against Larry Wade Ryland ("the husband") seeking a divorce. Three children were born of the parties' marriage two daughters and a son. At the time the wife filed her complaint for divorce, the parties' two daughters had reached the age of majority. The parties' son reached the age of majority in March 2006, before the entry of the judgment in this action. In her complaint for a divorce, the wife requested, among other things, that the trial court order the husband to pay $500 per month in temporary child support pending the final hearing in the matter. On May 25, 2004, the husband answered the complaint. On June 1, 2004, the trial court ordered the husband to pay $500 per month in temporary child support. *1225 Following a hearing, the parties agreed to raise the amount of temporary child support paid by the husband to $725 per month; the trial court entered an order on June 30, 2004, adopting the parties' agreement and ordering the husband to pay $725 per month in temporary child support.
The trial court conducted an ore tenus hearing over the course of five days. After the second day of testimony, the trial court entered an order on September 20, 2005, in which it, among other things, ordered the husband to pay the wife $5,000, ordered the husband to continue to pay $725 per month in child support, and continued the case.[1] The final hearing concluded on October 12, 2005, and on October 18, 2007,[2] the trial court entered a judgment divorcing the parties, ordering the husband to pay periodic alimony, and fashioning a property division. The husband timely appealed.
When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So. 2d 1060 (Ala.Civ. App.1995). This "presumption of correctness is based in part on the trial court's unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor." Littleton v. Littleton, 741 So. 2d 1083, 1085 (Ala.Civ.App. 1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So. 2d 141 (Ala.Civ.App.2000).
The lengthy trial transcript and the numerous exhibits admitted into evidence at trial reveal the following pertinent facts. The husband and the wife married on June 7, 1975. At the time of the final hearing, the husband was 58 years old and the wife was 56 years old. The parties' two daughters and son were ages 26, 24, and 18, respectively. The wife worked full-time after the parties married while the husband pursued a doctorate in education. The wife has a masters degree in business education. After the parties' second daughter was born, the wife did not return to work. In 1998, the wife returned to work at the Andalusia Chamber of Commerce. At the time of the final hearing, the wife was employed full-time as an office manager at the Andalusia Chamber of Commerce earning $9.25 per hour. The wife stated that her net monthly income is $1,200. The wife testified that she receives no benefits through her employer. The wife testified that she had applied for a teaching position in Covington County and surrounding counties but that she had had no success in finding a teaching position.
The husband testified that he has an "education specialist" degree. In 1990, the husband applied for and received a commercial driver's license. The husband testified that he is also certified in emergency-management training. In May 2000, the husband retired from a position as an instructor at Lurleen B. Wallace Junior College ("LBW"). At the time of the final hearing, the husband received $2,743.55 in *1226 gross monthly retirement benefits. The husband testified that in June 2000 he began driving an 18-wheel tractor-trailer to generate income. According to the husband, the income he earned as a commercial truck driver varied each month. The husband estimated that he earned an average of $8,000 per month in gross income as a commercial truck driver but that he had to deduct his monthly work expenses (e.g., food and truck maintenance) from that amount. According to the husband, he earned gross income of $96,000, at most, one year as a commercial truck driver. The husband stated that, once his expenses were subtracted from that amount, he earned a net yearly income of only $26,000. The husband testified that in March 2004 he stopped driving the 18-wheel tractor-trailer for medical reasons and that he had not been able to resume driving commercially since that time. The husband later admitted on cross-examination that he had driven the 18-wheel tractor-trailer several months before the final hearing, even though it physically hurt him to do so. The husband testified that he was not employed at the time of the final hearing.
The wife testified that she has no retirement accounts of her own and that she receives no retirement benefits from her current employer. The husband testified that he had a severance plan through his former employer, LBW, valued at $34,707.21. The husband stated that he would not have access to his severance plan, without penalty, until he reached the age of 59½ years.
The husband testified that he believed that he was disabled; he had not applied for disability benefits at the time of the final hearing. The husband testified that he had been diagnosed with diabetes in 1990, that he had suffered from fibromyalgia for the past 15 years, and that he had suffered from depression for the last 25 years. The husband testified that he also suffered from arthritis and had bone spurs in his heels. The husband stated that he had undergone surgery on his shoulders twice and that he intended to have back surgery in the near future. The record does not reveal the nature of the husband's back problems.
Over the course of the parties' marriage, the husband and the wife either purchased or inherited several pieces of real property. In or about 1987, the parties purchased a house on Faulkenberry Street in Andalusia (hereinafter "the Faulkenberry property"). The wife testified that she and the husband had purchased the property for $13,000. According to the wife, the property had been appraised to be worth $26,400. The husband estimated that the Faulkenberry property was worth $49,000.
Also, in 1987, the husband inherited a 22-acre pecan orchard in Conecuh County (hereinafter "the farm") from his parents. The wife testified that the farm had a tax appraised value of $20,380. However, the wife explained that she believed that the farm was more valuable, given the money that could be earned from the pecans, and estimated that the farm was worth $40,000. The husband estimated the value of the farm to be $30,000. The husband admitted that the farm, on occasion, generates income, but he testified that the farm had generated less income in the last two years because of hurricane damage to the pecan trees. The record does not indicate the specific amount of income generated from the production of pecans on the farm.
The wife testified that, during the parties' marriage, the Faulkenberry property had fallen into disrepair. According to the wife, the property had sustained substantial damage following Hurricane Opal in 1995. The wife testified that the husband *1227 had declined to use $6,000 in insurance proceeds to make the necessary repairs to the Faulkenberry property but that he instead had chosen to use the money towards improvements on the farm. The wife testified that she had applied for, and received, a loan in the amount of $6,731 to make the necessary repairs to the Faulkenberry property. At the time of the final hearing, the wife continued to make monthly payments on the balance of that loan. The wife estimated that she owed $4,000 on the loan at the time of the final hearing. The wife testified that she also had used, at the behest of her oldest daughter, an income-tax refund check in 2000 in the amount of $1,200 to make necessary repairs to the Faulkenberry property. The record indicates that the money was used to paint the interior of the house, to repair the floors, and to replace the stove.
The wife testified at length regarding the husband's expenditures for the farm and the investments he had made for the benefit of the farm. According to the wife, after the husband inherited the farm, he made improvements that included adding an irrigation system and pump houses, building two ponds, and planting additional pecan trees. The wife estimated that the husband also had purchased in excess of $50,000 worth of equipment to use on the farm. The husband estimated that he had spent $50,000 on the farm over approximately 15 years. The wife testified that she and the children had worked on the farm almost every weekend. The wife testified that the parties had used money from their joint checking account to fund operations on the farm and that the parties' income-tax return checks had been deposited in the farm bank account. According to the wife, the husband had assured her throughout the marriage that the farm was their "retirement" and was their "future." The husband denied telling the wife that the farm was part of her retirement.
In addition to the Faulkenberry property and the farm, in December 1996 the husband also purchased property from Sara Owens (hereinafter "the Owens property") that was located near the farm. The wife testified that the Owens property consists of approximately 60 acres of land, and, the record indicates, it has two houses on it. The husband lived in one of the houses at the time of the final hearing, and the other house remained vacant. The record does not indicate the value of the Owens property.
The wife testified that in 1982 she and the husband had purchased property in Monroe County consisting of five acres of land with a house on the land (hereinafter "the Monroe County property") for $10,000. The wife testified that she and the husband had rented the Monroe County property and had used the rental income that was deposited into a joint bank account to make any necessary repairs to the property, as well as to pay for some of the children's expenses. The wife testified that the Monroe County property had not generated any rental income since 2001. The wife stated that she had closed the rental bank account, which at the time it was closed had a balance of $1,500, and that she had placed that money in her personal checking account.
According to the wife, the house on the Monroe County property burned in February 2004. The wife testified that the house had been insured for $10,000 with State Farm Insurance Company at the time. According to the wife, the husband had declined to sign a release at the time of the final hearing, so State Farm had not yet paid the money owed under the policy. The wife estimated that the Monroe County property was worth $3,000 to $5,000 *1228 after the house on the property had sustained damage from the fire.
The husband testified that he and the wife had purchased the Monroe County property for $16,000. The husband testified that he and the wife had made improvements to the property and began to rent the property to others in 1983. The husband testified that the wife had received all the rental income from the Monroe County property. The husband estimated that the wife had received $3,600 per year in rental income from the property. The husband admitted that he had refused to sign the release for the insurance funds needed to repair the house on the Monroe County property.
Over the course of the parties' marriage, the husband had purchased approximately 20 pieces of property at tax sales in Covington County and Conecuh County. The husband's testimony reveals that the cumulative appraised value of the property he had purchased totaled $142,470. The husband testified that the property he had purchased at tax sales included a house valued at $50,000. The husband explained that a "trespasser" was living in the house at the time of the final hearing and that, therefore, he was unable to rent the house. The husband testified that he had initiated legal proceedings against the trespasser but had had no success.
In 1990, the wife's parents deeded to the wife a one-third interest in certain real property located in Monroe County. The wife testified that she had not considered the property to be hers at the time her parents deeded a one-third interest in the property to her because her parents were still living at the time and continued to use the property. The husband estimated the fair market value of that property to be $60,000. The record does not indicate if the husband was referring to the total value of the property or the value of the wife's interest in the property.
At the time of the final hearing, the husband and the wife had been living apart for approximately five years. The wife testified that in May 2000 the husband had moved off of the Faulkenberry property and had moved onto the Owens property. The husband lived on the Owens property at the time of the final hearing in this matter. According to the wife, the husband moved out of the Faulkenberry property a two bedroom house after she rearranged the living arrangements so that the two children still living in the house could each have their own room, requiring the husband and her to sleep in the living room.
The wife testified that, after the husband had moved to the Owens property, she had continued to visit the husband on the weekends. The wife stated that she had worked at the farm on the weekends, cooking, cleaning, and washing clothes. The wife testified that she had last visited the farm in March 2003; according to the wife, at that time she had found evidence indicating that the husband was having an affair. The wife testified that the husband had never inquired as to why she had not returned to the farm after March 2003.
The wife testified that in early November 2003 the husband had asked her to sign a deed divesting her of any interest in the Owens property. According to the wife, the husband had explained that he intended to convey the property to the parties' son. The wife testified that she had signed the deed on that basis. The wife testified that the husband also had asked her to sign a deed transferring ownership of the Monroe County property but that she had refused to do so. According to the wife, approximately two weeks later, on November 24, 2003, the husband asked her for a divorce.
*1229 The wife testified at length regarding her monthly expenses. The wife estimated that her monthly living expenses were $1,567. Included in that amount, among other things, was $140 for electricity, $125 for gas for her vehicle, $154 for the son's car insurance, $55 a month for her car insurance, $33 a month for home telephone service, $35 a month for cellular-telephone service, $155 towards the payment of a loan for home repairs, and $200 in miscellaneous expenses. The wife testified that her brother typically gives her $30 to $40 a week to help her buy groceries. The wife explained that she used a credit card to pay for monthly expenses that her employment income would not cover. She testified that she owed approximately $400 on a gas credit card. The wife further testified that she owed the parties' oldest child $5,000 that she had borrowed to pay her attorney fees and that she intended to reimburse the oldest child for the money loaned for the attorney fees.
The wife testified that the husband owed a child-support arrearage in the amount of $9,425. According to the wife, since the trial court entered its June 2004 child-support order, the husband has paid $240 for the son's high-school graduation materials and $465 in uncovered medical expenses for the son. The wife testified that the husband had purchased the son a 1994 Toyota pickup truck for $1,900 during the period that he was not paying child support for the son. The wife estimated the value of the Toyota truck to be $4,000. The wife testified that the truck was the second vehicle the husband had purchased for the parties' son. The wife explained that the husband had also purchased a 2001 Pontiac Firebird for the parties' son. The wife did not testify regarding the value of the 2001 Pontiac vehicle. The wife testified that she drives a 1996 Honda Accord that her oldest child gave to her. According to the wife, the vehicle is titled in the oldest child's name. The wife owns a 1969 Buick Skylark. The husband testified that the Buick is in mint condition and estimated its value to be $10,000.
The wife testified that the husband had numerous guns, a gun vault, and two gun cabinets that she estimated were worth $50,000. The husband explained that the parties' son had taken the guns and declared them to be his and that, therefore, the guns belonged to the son. The wife testified that the husband also had an extensive collection of Craftsmen brand tools that she estimated were worth $5,000.
The wife testified that the parties' son attends community college at LBW and lives with her. According to the wife, at the time of the final hearing the son was a freshman and was working toward a degree in business administration. The wife explained that the son wanted to attend LBW for two years before transferring to another college. The wife testified that the son intends to continue to live with her until he completes his courses at LBW. The wife testified that the son's grades consisted of B's and a couple of C's. According to the wife, the son receives a small band scholarship and is not receiving student loans. The wife testified that the husband has paid for the son's tuition, books, and supplies.
The record contains extensive testimony regarding the husband's sale of the parties' marital assets, including real property and equipment, after the wife initiated divorce proceedings. The husband testified that he had not deeded, as he had told the wife he would, the Owens property to the parties' son. The husband explained that he had sold the Owens property to Joseph Hornady on December 23, 2003, one month after he had asked the wife for a divorce. The husband testified that Hornady had paid $10 and "other valuable consideration" *1230 for the Owens property. The husband explained that the other consideration for the Sara property included the reservation of hunting and fishing rights for the husband and permission for the husband to continue to reside in one of the houses on the Owens property until his death. According to the husband, the sale of the Owens property to Hornady also had relieved him of $60,000 in mortgage indebtedness on that property. The husband estimated that the Owens property had been worth $140,000 at the time he had purchased the property in December 1996. The husband denied that an agreement with Hornady existed that provided for Hornady to deed the property back to the husband once the parties' divorce was final. The husband testified, however, that after the sale he had continued to pay insurance premiums on the two houses on the Owens property, had maintained the property by paying $8,400 to replace the roof on one of the houses, and had paid for the utilities and other expenses. The record indicates that the husband also had paid the monthly mortgage on the Owens property on at least two occasions after he had sold the Owens property to Hornady.
In addition to the Owens property, the husband sold farming equipment that included three tractors, a "bushhog," a trailer, pecan-harvesting equipment, a sprayer, and a backhoe to Francis Windham, whom the husband described as a "real good friend," for $10. The husband testified that Windham was one of his neighbors. According to the husband, Windham let him store the equipment under a shed on the farm and continue to use the equipment. The husband denied having an agreement with Windham to purchase the tractors back after the divorce is finalized. The husband testified that if the three tractors he sold were purchased by someone other than his friend, they would probably sell collectively for $20,000 to $25,000.
In or about 1999, the husband purchased a 1995 International brand 18-wheel tractor-trailer for $21,000. The husband estimated the value of the tractor-trailer to be $6,000 at the time of the final hearing. In 2003, the husband sold the tractor-trailer to Nathan Robinson for $100. The husband testified that he leased the tractor-trailer from Robinson after selling it and that he continued to pay the insurance premiums on the tractor-trailer. The husband explained that he also spent $20,590.26 to make necessary repairs to the tractor-trailer after he had sold it to Robinson.
Income-tax returns for the parties for the tax years 1998, 1999, 2000, 2001, and 2002, were admitted into evidence. The tax returns contain a depreciation schedule that estimated the value of the farm equipment to be $159,000 in 1998, $167,103 in 1999, $134,040 in 2000, $151,660 in 2001, and $139,164 in 2002. The 2000 income-tax return also included a separate depreciation schedule for the tractor trailer and listed its value at $27,847.
The husband testified that he also had sold a travel trailer in the summer of 2003 to Pat Hennigan for $10. The husband testified that after he had sold the trailer he had continued to pay rent for a lot to park the trailer. The husband explained that the trailer was being stored at Windham's house for Hennigan to pick up.
The husband testified that he has several life-insurance policies, a couple of annuities, and a deductible-employee-contribution account with the Retirement Systems of Alabama ("the RSA"). The husband's testimony revealed that he had withdrawn substantial sums from his annuities and the RSA account and had borrowed substantial sums against his life-insurance policies after the wife filed her complaint for divorce. On December 19, 2003, the husband *1231 withdrew $17,551.87 from his AIG Valic account. A September 27, 2005, AIG Valic statement shows a balance in that account of $23,236.84. The husband borrowed $39,746.26 from his Merrill Lynch life-insurance policy on December 22, 2003. He also borrowed $14,713 from his Zurich Kemper account on January 6, 2004, and he withdrew $8,300.63 from his RSA account on December 23, 2003. The husband testified that he also has an account with Nationwide Western Life Insurance Company valued at $14,384.24.
The husband testified that he considered the amounts that he had withdrawn to be loans, and, at the time of the final hearing, he was making quarterly payments to replenish the moneys he had borrowed from the accounts. The husband acknowledged that he was not required to repay the moneys he had withdrawn from those accounts.
The husband was questioned extensively regarding how he had used the money he had withdrawn from his annuities and life-insurance policies. The husband testified that he had spent $4,590 for a prepaid burial policy and $8,000 on a grave marker. The wife submitted copies of numerous checks that the husband had written to "cash." The wife submitted copies of six checks written to "cash" in the amount of $8,000 each. On most of the checks submitted into evidence, the husband had labeled the check as a "gift." The husband testified that, at one point, he had withdrawn $14,000 in cash "put it in [his] pocket" and "went out and had a good time" because he "thought [he] deserved it." The husband testified that he could not recall how he had spent the money, but testified that the money was gone. When asked if he believed it was okay to give money away to prevent the wife from having any part of it, the husband responded "I guess so."
The husband testified that his monthly expenses included $1,889.53 in payments on loans taken against his life-insurance policies and annuities, approximately $200 per month for gas for his vehicles, $107 in auto insurance, approximately $361.94 in health-related expenses, $55 for his cellular-telephone bill, $75 a month for his home telephone service, $163 for his credit-card bill, $70.50 per month for homeowner's insurance, and $94 a month for miscellaneous personal expenses. In addition to those monthly expenses, the husband also included expenses associated with the farm equipment that he no longer owned. The husband testified that he paid $170 per month to Farm Plan, a credit account used to cover repairs made on farm equipment; $34 a month for replacement parts for farm equipment; approximately $105 for welding repairs to the farm equipment; and $62.30 per month for welding supplies.
The husband testified that he owns several vehicles. The husband owns a 1974 Chevrolet pickup truck that was inoperable at the time of the final hearing. The husband testified that the 1974 truck was worth nothing. The husband testified that he also owns a 1978 Chevrolet truck that he values at $100, a 1984 Chevrolet Impala that he values at $100, a 1986 Toyota pickup truck worth approximately $400, and a 1991 Chevrolet Suburban that he believed to be worth $1,000. The husband testified that he primarily drives a 1993 Dodge Caravan that he valued at $1,500. According to the husband, no indebtedness remained on the vehicles.
Kimberly Ryland, the parties' oldest child, testified that she had encouraged the mother to use the 2000 income-tax refund to pay for necessary repairs to the Faulkenberry property. According to Kimberly, the father did not use his money to support the family. Kimberly explained that *1232 she had helped pay several household bills while working and living at the Faulkenberry property. Kimberly testified that the family's money went to paying for the upkeep of the farm. Kimberly testified that the family worked on the farm every weekend.
The husband presented testimony from several witnesses who testified that the wife and the children did not work on the farm every weekend. Patricia Windham, one of the husband's neighbors, testified the children did not work on the farm every weekend and that she rarely observed the wife at the farm for more than one hour. Similarly, Daniel Padgett, the husband's nephew, testified that the children and the wife did not spend every weekend working at the farm.
In its October 18, 2007, judgment, the trial court made the following findings of fact:
"The court finds that the parties were married for over 30 years, with three children, two of which were adults at the time of the hearing, and one a minor (who is now over the age of 19, as well); that the family was supported primarily by the husband, who worked outside the home, while the wife was the homemaker, who worked outside the home very little. Throughout the marriage, the husband systematically entered into investments or purchases of property, both real and personal, at the sacrifice of using the same funds to support his family in a more comfortable fashion. In the instance of the Conecuh County property deeded by the husband's parents, the husband encouraged the wife to believe that it was intended as their retirement and marital funds were used to make expensive improvements, such as building a lake and/or improving a lake, adding an irrigation system, tree planting and the like. The husband led the wife to believe that since this property was intended to fund their retirement, the sacrifice of time, money and energy spent on the Conecuh County property, rather than the family and the family home, was justified. The husband also invested in various brokerage accounts in his name alone consistently during the marriage. While building an estate is admirable, in this instance it was done at the sacrifice of the family's comfort, while they continued to live in a small, crowded, ill furnished home. The court finds that the wife and the two older daughters occasionally used deceitful tactics to make small improvements to the marital home and to their comfort; necessitated by the husband's insistence on building a retirement estate.
"The court further finds that the property in Monroe County in which the wife was deeded a one third interest, along with her brother and sister, is true inherited property and is not a marital asset. As the husband and the wife both testified, neither knew of the existence of the deed until the divorce hearing; the property was in no way comingled or used by the parties during the course of the marriage, unlike the Conecuh County property deeded to the couple by the husband's parents, which the Court finds to be marital property.
"Additionally, the court finds that the husband's actions in selling various valuable pieces of land, equipment and vehicles were an obvious sham intended to preclude the wife from claiming any interest in them; and that the husband will be able to re-acquire any interest he may have conveyed to Nathan Robinson, Francis Windham, Joseph Hornady and Pat Hennigan by returning the various $10 and $100 considerations paid by them to him in an effort to defraud the wife. The court finds that he, shortly *1233 after asking for the divorce, cashed in all accounts and insurance policies that he could, in an effort to convert them to cash, which he has attempted to hide from the wife. The unknown checks made payable to himself in cash total over $78,800. In contrast, the wife closed out two accounts, each with approximately $1,500 in them, and opened new bank accounts in her name alone, totaling $3,000.
"The court further finds that the marital separation occurred after the wife suspected the husband of adultery, a claim which he never denied during the trial.
"The court finds that the marital assets total $791,322.72 and that same should be divided equally between the parties."
Based on those findings, the trial court awarded the wife $395,661.36 of the marital assets. Included in her $395,661.36 portion of marital assets were, among other things, the Faulkenberry house, the Monroe County property, the balance of the AIG Valic account, the State Farm insurance check in the amount of $10,000, the 1969 Buick Skylark, and $3,000 she had withdrawn from two joint bank accounts. The trial court ordered the husband to pay the wife the remaining balance of her portion of the marital assets in cash. The remaining half of the marital assets were awarded to the husband subject to his executing a mortgage on all the property he owns an interest in, or acquires an interest in, to the wife until all payments due the wife under the divorce judgment are paid in full.
The trial court ordered the husband to pay the wife $5,034.75 as a child-support arrearage. Regarding postminority support, the trial court ordered "[t]hat the husband pay postminority support for his son, Corey, including tuition, books, school supplies, fees, medical and dental expenses, room, board, transportation, and reasonable extra-curricular expenses for four continuous years, exclusive of summers."
The trial court also ordered the husband to pay the wife $375 per month in periodic alimony for the next four years, or until the son leaves school, and ordered the husband to pay $1,000 in periodic alimony to the wife after the child leaves school, or after October 23, 2009, whichever comes first. The trial court further ordered the husband to pay the wife's attorney $16,920 as attorney fees.
On appeal, the husband contends that the trial court exceeded its discretion by awarding the wife one-half of the marital assets and periodic alimony.[3] Specifically, the husband argues that the trial court disregarded that he had been primarily responsible for the size and value of the marital estate and that the wife had contributed little to the value of the marital estate. The husband further argues, albeit briefly, that the trial court failed to consider his ability to pay when it provided that the wife's monthly periodic-alimony award be increased by $625 after the parties' son leaves college or after October 23, 2009, whichever comes first.
The issues of property division and alimony are interrelated, and, therefore, they must be considered together on appeal. Albertson v. Albertson, 678 So. 2d 118, 120 (Ala.Civ.App.1996). When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment is presumed correct on appeal *1234 and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So. 2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So. 2d 1036 (Ala.Civ.App. 1993); and Hall v. Mazzone, 486 So. 2d 408 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish v. Parrish, 617 So.2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties' marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So. 2d 729 (Ala.Civ.App.2001).
The evidence presented to the trial court revealed that the parties had been married almost 30 years at the time the wife filed a complaint for divorce. At the time of the final hearing, the husband was 58 years old and the wife was 56 years old. Although the husband claimed to be in poor health, evidence presented at the final hearing revealed that the husband continued to drive tractors and work on the farm, as well as occasionally drive an 18-wheel tractor-trailer. The wife's gross monthly income is approximately $1,480, whereas the husband earns a gross monthly income of $2,743.55. While the wife has no retirement accounts in her name and receives no retirement benefits from her current employer, the husband has access to several retirement accounts, as evidenced by the multiple withdrawals he made from those accounts after the wife filed for divorce. The trial court heard conflicting testimony at trial from which it could have concluded that the husband had represented to the wife that the farm was "her retirement."
The evidence presented at the final hearing called into question the husband's conduct leading up to the day the wife filed her divorce complaint and his conduct following the wife's initiation of divorce proceedings. The trial court heard evidence from which it could have concluded that the husband knew the marriage was in trouble and systematically began removing the wife's name from assets. The record indicates that the husband, under false pretenses, successfully had the wife deed her interest in the Owens property to him under the belief that the parties' son would receive the property, and when the wife did not agree to sign the deed to the Monroe County property, the husband informed her that the marriage was over. After the wife filed for divorce, the husband withdrew large sums from his investment accounts and borrowed from the cash value of his life-insurance policies in an effort to decrease the marital estate. The husband could not explain where the money he had withdrawn went; he testified only that he no longer had that money. The husband sold real property and equipment to friends and neighbors for significantly less than the market value of those assets. Although the husband denied having ulterior motives, the record reveals that the husband sold real property and equipment that were considered marital assets for substantially less than what they were worth. The trial court could have concluded, based on the evidence, that the husband intended to retrieve the property after the parties' divorce was finalized.
Regarding the trial court's award of periodic alimony, the evidence presented to the trial court revealed that many of the husband's monthly expenses were questionable. The bulk of the husband's monthly expenses consisted of the repayment of loans taken by the husband from *1235 annuities and life-insurance policies in an attempt to prevent the wife from receiving a share of the money in those accounts. The husband acknowledged that he was not required to repay the money he had withdrawn from those accounts. The husband's monthly expenses also consisted of expenses associated with the maintenance of property and equipment that he had sold. The trial court could have disregarded the husband's claimed monthly expenses for repaying the loans and the maintenance of property that he purportedly did not own. The trial court could have determined that an increased periodic-alimony obligation would not financially cripple the husband given his reduced monthly expenses.
In its judgment, the trial court made specific findings of fact that are supported by the record on appeal. This court will not reweigh the evidence on appeal. Somers v. McCoy, supra. Given the age of the parties; the length of the parties' marriage; the source, value, and type of marital property; and the conduct of the husband, we cannot say that the trial court exceeded its discretion. Robinson v. Robinson, supra.
The husband also contends that the trial court erred when it ordered him to execute mortgages on all the property he owns an interest in, or acquires an interest in, to the wife until all payments due the wife under the divorce judgment are paid in full. The husband contends that this provision of the trial court's judgment effectively gives the wife total control of the marital estate and that the provision is an "abuse of jurisdiction." The husband cites two cases for the general proposition that matters of property division and alimony rest within the sound discretion of the trial court. The husband, however, cites no caselaw in support of his contention that the trial court erred by ordering him to execute mortgages to property he currently owns and to property he might acquire in the future to the wife. "`[I]t is neither our duty nor [our] function to perform all of the legal research for an appellant.'" McLemore v. Fleming, 604 So. 2d 353, 353 (Ala.1992) (quoting Gibson v. Nix, 460 So. 2d 1346, 1347 (Ala.Civ.App.1984)).
As noted by the husband, it is within the trial court's discretion to fashion a property division in a divorce judgment. Given the evidence elicited at trial indicating that the husband had sold marital property in an effort to prevent the wife from receiving any of that property and the evidence indicating that the husband had attempted to hide marital property, we cannot say that the trial court exceeded its discretion by requiring the husband to mortgage his properties to the wife until he fulfills his obligations under the divorce judgment.
The husband further contends on appeal that the trial court erred by not conditioning the husband's postminority-support obligation on the son's performance in college.[4] In its October 18, 2007, divorce judgment, the trial court ordered "[t]hat the husband pay postminority support for his son, Corey, including tuition, books, school supplies, fees, medical and dental expenses, room, board, transportation, and reasonable extra-curricular expenses for four continuous years, exclusive of summers."
*1236 "[T]his court has held that the trial court must set reasonable limitations on the parent's responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent. See Manring v. Manring, 744 So. 2d 919, 922 (Ala.Civ.App.1999); Hocutt v. Hocutt, 591 So. 2d 881, 882 (Ala.Civ.App. 1991); Kent v. Kent, 587 So. 2d 409, 412 (Ala.Civ.App.1991). These limitations include (1) limiting the support to a reasonable period, (2) requiring the child to maintain at least a `C' average, and (3) requiring that the child be enrolled as a full-time student. Manring v. Manring, 744 So. 2d 919, 922 (Ala.Civ.App. 1999); Ullrich v. Ullrich, 736 So. 2d 639, 643 (Ala.Civ.App.1999) (quoting Bahri v. Bahri, 678 So. 2d 1179, 1181 (Ala.Civ. App.1996))."
Penney v. Penney, 785 So. 2d 376, 379 (Ala. Civ.App.2000).
The trial court's October 18, 2007, judgment placed no academic restrictions on the husband's obligation to pay postminority educational support. We note that the trial court also failed to require the son to be enrolled as a full-time student; however, the husband fails to argue this as a basis for reversal of the trial court's judgment on appeal, and, therefore, any argument as to this issue is waived. See Boshell v. Keith, 418 So. 2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived."). Because the trial court failed to place academic restrictions on the husband's obligation to pay postminority educational support, we must reverse the trial court's judgment as to this issue and remand the case for the trial court to enter an order consistent with this opinion.
The wife's request for an attorney fee on appeal is granted in the amount of $2,500.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] We note that custody of the parties' minor son was not an issue in the case; the parties agreed that the son would continue to live with the wife until he reached the age of majority.
[2] The record contains no explanation for the delay between the conclusion of the final hearing and the trial court's entry of the final judgment.
[3] The husband does not challenge on appeal the trial court's calculation of the parties' marital assets.
[4] The husband does not argue on appeal that the wife failed to establish the actual costs of the son's postminority college expenses or that paying postminority expenses as ordered by the trial court creates an undue hardship on him. The husband also fails to challenge on appeal whether evidence was presented regarding the son's commitment to pursuing a college education. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579830/ | 84 S.W.3d 47 (2002)
79 Ark.App. 43
John VAN CUREN,
v.
ARKANSAS PROFESSIONAL BAIL BONDSMAN LICENSING BOARD.
No. CA 01-1063.
Court of Appeals of Arkansas, Division I.
September 4, 2002.
*51 The Rogers Law Firm, by: Edmundo G. Rogers, Rogers, for appellant.
Mark Pryor, Att'y Gen., by: Kim Evans, Ass't Att'y Gen., Little Rock, for appellee.
SAM BIRD, Judge.
John Van Curen has appealed from the Pulaski County Circuit Court's affirmance of a decision by the Arkansas Professional Bail Bondsman Licensing Board ("Board") revoking his license as a bail bondsman. On January 29, 1999, appellant accepted $3,500 from the family of Hector Aquirre ($3,000 by check from Hector's sister, Sandra Aquirre, and $500 in cash) to secure Hector's release from the Benton County jail on a $35,000 bond. The bond was secured by the titles to three vehicles owned by members of Hector's family. Through administrative error, the bond that was actually written was for $3,500; however, appellant accepted a premium for a $35,000 bond. Within a day, appellant learned that Hector was not bondable because the Immigration and Naturalization Service (INS) had placed a hold on him. Through Hector's attorney, David Bailey, Carlos Vasquez (Hector's sister's live-in boyfriend whom she called her "husband" and whose name and signature appeared on two of the car titles) tried unsuccessfully to get appellant to return the money and collateral.
In the criminal case against Hector, Mr. Bailey moved to cancel the bond and for a refund of the bond premium. A hearing on the motion was held on March 4, 1999. *52 Appellant produced a copy of a receipt dated January 30, 1999, for $3,115 (the difference between premiums on a $35,000 bond and a $3,500 bond) purportedly signed by Mr. Vasquez, but Mr. Vasquez denied having signed it. When the judge realized that the hearing would require more time than the five minutes that had been allotted for it, the hearing was continued.
Another hearing was held on March 12, 1999. Appellant testified that, on Saturday, the day after he had accepted the bond money and collateral, he had returned $3,115 in cash to Mr. Vasquez at the jail and received a receipt from him. Mr. Vasquez, however, denied that appellant had returned any of the money to him and stated that he had not signed the receipt. He also testified that he was not at the jail on Saturday but, instead, was at home waiting for Hector to call. Sandra testified that she and Mr. Vasquez were at home all day on Saturday waiting for Hector to call and that Mr. Vasquez did not go to the jail that day. Sandra's mother also testified that she was at home all day with Mr. Vasquez and Sandra and that Mr. Vasquez did not go to the jail.
The circuit judge compared Mr. Vasquez's signature on the titles used as collateral with his purported signature on the receipt and stated:
I'm not a handwriting expert but the signature on this receipt certainly looks like the signature that's on this bill of sale and on these titles. Itdoesn't just a little bit resemble it, it resembles it a whole lot ... and based on that your motion as for a refund of the bond is denied.
An order denying the motion was entered on March 15, 1999. Holt Bonding Company, appellant's employer, eventually returned the collateral upon being released from the bond.
On March 1, 1999, Mr. Bailey filed a complaint against appellant with the Board, asserting that appellant had failed to refund the bond premium, even though Hector had not been permitted to leave the jail as a result of the INS hold. In his response to the Board, appellant asserted:
Mr. Baily [sic] did a motion to return bond premium on Mr. Aquirre. I went to court in regards to this motion. I had a receipt showing where I had returned money in question to a family member so the motion was denied and judge found in our favor. I am sending with this letter a copy of the court document that shows this proceeding.
The Board held a hearing on December 10, 1999, at which appellant appeared without counsel. Holt Bonding Company was represented by counsel. Mr. Bailey testified that, when he learned on the Monday after the bond was written that Hector had not been released because of the INS hold, he determined that "there was no way that [Hector] was going to hit the street" and he called appellant to request a refund of most, if not all, of the bond premium. Mr. Bailey said that appellant told him that it was not his (appellant's) fault that Mr. Bailey's client was still in jail and referred him to Edmundo Rogers (appellant's attorney in this proceeding), whom, he said, could get Hector out of jail. Mr. Bailey stated that, after talking to Mr. Rogers, he was still convinced that it would be an uphill battle to get Hector out of jail and again called appellant to request a return of the premium, less a small amount for his trouble. According to Mr. Bailey, he informed appellant that they might sue him for the refund and appellant replied, "Bring it on." Mr. Bailey also testified that, before March 4, 1999, appellant never told him that he had a receipt for the $3,115. Mr. Bailey stated that, although he had not had the receipt examined by a *53 handwriting expert, he believed the signature on the receipt was a forgery.
Mr. Vasquez testified that he never received any refund from appellant or his employer and that he did not sign the receipt. He also said that he and his wife were not at the jail on the Saturday in question. Mr. Vasquez testified that he had been unsuccessful in his attempt to obtain a refund of the money within the criminal proceeding. Sandra also testified that appellant never returned the money.
Appellant testified that he met Mr. Vasquez at the jail on Saturday and gave him the cash refund. He said that he did not learn of the INS hold until Sunday or Monday. He stated that he deals strictly in cash and does not have a checking account. He explained the absence of any receipts in his receipt book between May 28, 1998, and January 30, 1999, by stating that the book had been out of his possession. Appellant also discussed the circuit judge's previous ruling in his favor on the matter.
In his closing argument, the attorney for Holt Bonding Company argued that the proceeding before the Board was barred by res judicata and collateral estoppel because the Benton County Circuit Court had already determined that the receipt was not forged and that the bond premium need not be returned.
The Board issued its decision on December 27, 1999, and made the following findings of fact:
3. John Van Curen accepted $3,500.00 (a check for $3000 and $500 in cash) to bond Hector Aquirre out on a $35,000 bond (which turned out through error to be a $3,500 bond). He failed to acknowledge that Hector Aquirre was not bondable due to a hold being placed on him by the Immigration and Naturalization Service, and failed to return payment for said bond after being released from it by the court at his request.
4. John Van Curen accepted things of value ($3,500 plus fees) from a principal other than the permitted premiums ($350 plus fees) which were unreasonable in relation to the amount of the bond.
5. John Van Curen breached his trust relationship with Hector Aquirre by his failure to return money and other collateral to those who put it up as soon as he determined the INS had a hold on Aquirre.
6. John Van Curen signed Mr. Vasquez's name to a receipt for return of $3,115 and never returned the money to Carlos Vasquez. This is supported by the testimony of Carlos Vasquez and Sandra Aquirre and by the physical evidence of the matching signatures on the receipt and title used as collateral. The receipt appeared to be a tracing of the signature on the title. It is further bolstered by the testimony of David Bailey, who requested the return of the money on numerous occasions long after Van Curen testified he had returned it. This finding is further bolstered by John Van Curen's very infrequent use of the receipt book used for the transaction, with the preceding receipt having been used in May, months before. The Board simply did not believe the testimony of John Van Curen and chose to believe the testimony of the other witnesses.
The Board concluded that appellant had violated Arkansas Code Annotated § 17-19-210 (Repl.2001) and voted to revoke appellant's license. It also directed him to reimburse Hector $3,500.
Appellant appealed the Board's decision to the Washington County Circuit Court, arguing that it was based upon insufficient evidence, was arbitrary and capricious, was affected by other error or law, was in *54 excess of the Board's jurisdiction, and was barred by the claim preclusion and issue preclusion (or collateral estoppel) aspects of res judicata. The appeal was transferred to the Pulaski County Circuit Court where, on June 12, 2001, the circuit judge's findings included the following:
2. The Petitioner accepted $3,500 to bond Hector Aquirre out on a $35,000 bond and failed to return payment for said bond after being released from it by the court.
3. The Petitioner signed Carlos Vasquez's name to a receipt for the return of $3,115 and never returned the money to Carlos Vasquez.
4. Bail bondsmen are required to conduct their bail bond business in conformance with the statutes governing the profession, Ark.Code Ann. § 17-19-101 et seq., and the rules and regulations promulgated pursuant to Ark.Code Ann. § 17-19-106(b)(4) by the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board.
....
The decision of the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board is affirmed in part and reversed in part. The Court affirms the Respondents action in revoking the Petitioners license because that decision is supported by substantial evidence and is not arbitrary and capricious. Pursuant to Ark.Code Ann. § 25-15-212, that part of the administrative decision is affirmed.
The part of the administrative decision that directed the Petitioner to immediately reimburse Hector Aquirre $3,500 is reversed because the Respondent had no legal authority to direct the reimbursement.
Appellee has not filed a cross-appeal from the circuit court's reversal of the Board's direction that appellant reimburse Hector $3,500.
Standard of Review
Our review, like that of the circuit court, is limited in scope and is directed not to the circuit court but to the decision of the administrative agency. Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). It is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency's decision. Id. Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture. Id. The challenging party has the burden of proving an absence of substantial evidence. Id. To establish an absence of substantial evidence to support the decision, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. This court reviews the entire record in making this determination. Id.; see also Ark.Code Ann. § 25-15-212 (Repl.2002). In reviewing the record, this court gives the evidence its strongest probative force in favor of the agency's ruling. Arkansas Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001). Between two fairly conflicting views, even if the reviewing court might have made a different choice, *55 the board's choice must not be displaced. Id.
Administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Tomerlin v. Nickolich, supra. Because decisions regarding the licensing of bond companies and their employees turn on executive wisdom, it is appropriate to limit the scope of review on appeal. Id.; Accord Arkansas Prof'l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002).
Res Judicata
In his first, second, and third points, appellant argues that the Board's decision is barred by the claim preclusion and collateral estoppel aspects of res judicata. The Board asserts that appellant failed to raise this argument before the Board. We will not decide an argument raised for the first time on appeal. Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). However, in his response to Mr. Bailey's complaint, appellant did raise the Benton County Circuit Court's previous decision in his favor. Although he did not use the terms "res judicata " or "collateral estoppel," we believe that he preserved these arguments for appeal. Also, a copy of the March 12, 1999, hearing before the Benton County Circuit Court was presented to the Board. The Pulaski County Circuit Court found that appellant had adopted the res judicata arguments made by Holt Bonding Company's attorney at the Board hearing and that appellant deserved to have them heard on appeal. The Pulaski County Circuit judge found that the Benton County Circuit Court's decision was not res judicata as to the licensing issue; he also said that he was not sure that res judicata did not apply as to the refund of the money.
The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Brandon v. Arkansas W. Gas Co., 76 Ark.App. 201, 61 S.W.3d 193 (2001). Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars the plaintiff or his privies from asserting the same claim or cause of action against the defendant or his privies. Id. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994); Coleman's Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Brandon v. Arkansas W. Gas Co., supra.
Appellant argues that the Board's decision is barred by collateral estoppel. The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated in the first suit. Coleman's Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., supra. When an issue of fact or law is actually litigated *56 and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Id. Collateral estoppel is based upon the policy of limiting litigation to one fair trial on an issue. Id. Collateral estoppel may be asserted by a stranger to the first judgment or decree but is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question in the earlier proceeding. Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001); Coleman's Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., supra. For collateral estoppel to apply, the following elements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; (4) the determination must have been essential to the judgment. Id.
Privity of parties in this context means a person so identified in interest with another that he represents the same legal right. Blankenship v. Office of Child Support Enforcement, 58 Ark.App. 260, 952 S.W.2d 173 (1997). The parties need not be precisely the same for a judgment in one action to bar another, as long as there is a substantial identity and the same claim is at stake. Id. Although strict privity in the application of res judicata is not required, there must be a substantial identity of parties to apply the doctrine. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000). We explained the application of this concept in Blankenship v. Office of Child Support Enforcement, supra:
Here, the first case was brought by the State on behalf of the maternal grand-mother, while the second and third cases were brought by the State on behalf of the mother. However, the same State agency represented each claim, the claims were identicalseeking paternity and supportand the basis for all three claims was identicalthe minor child in question. Further, both the grandmother and mother presumably represent the child and its best interests, and it therefore seems logical to hold them in privity on behalf of the child's interest, thus satisfying the fourth element of the res judicata analysis.
This approach is consistent with our holding in Department of Human Servs. ex rel. Davis v. Seamster, 36 Ark.App. 202, 820 S.W.2d 298 (1991). In Seamster, res judicata barred the State from relitigating a paternity action previously brought by the mother. However, we also recognized that paternity actions may be filed by the child as the named party, and that the child's rights in such matters may be different from those of the mother. Id. at 205, 820 S.W.2d 298. In the present case, while the State, the mother, and the maternal grandmother have exhausted their rights under res judicata, our holding here does not bar the child from pursuing her own paternity action.
58 Ark.App. at 264-65, 952 S.W.2d at 176.
Appellant contends that the issues of the forgery of the receipt, his obligation to return the bond money, and the INS hold were determined by the Benton County Circuit Court and, thus, the Board is bound by its findings on those issues. The circuit court agreed with him as to the obligation to return the money. That issue, however, is not before us because the Board has not appealed from the circuit court's reversal of the Board's decision. The Board had the burden of appealing from that aspect of the circuit *57 court's order, and the effect of its failure to do so is to leave that court's decision on this matter intact.
We reject appellant's arguments regarding the forgery of the receipt, appellant's purported cash refund of the money, and his obligation to refund the money when an INS hold is in place. The Board was not a party to the Benton County Circuit Court criminal proceeding, nor could it have been. Because it was not given a full and fair opportunity to litigate these issues, it should not be bound by claim preclusion or collateral estoppel. Also, the Board is not in privity with Mr. Bailey. Mr. Bailey served as Hector's criminal lawyer and brought the complaint before the Board. As to the question of whether appellant should be permitted to keep his bondsman's license, the Board's and Mr. Bailey's interests cannot be deemed to be so closely intertwined that a decision involving one should control the otherthey do not represent the same legal rights. The Board represents the rights of the public.
Appellee correctly points out that there are exceptions to the doctrine of res judicata that are based upon other important reasons of public policy, such as the public's interest in reaching the right result. See 46 AM.JUR. 2d Judgments § 522, at 787 (1994). In Thangavelu v. Department of Licensing & Regulation, 149 Mich.App. 546, 386 N.W.2d 584 (1986), the state's interest in protecting the public was a factor in the court's decision not to apply collateral estoppel in the revocation of a physician's license, even though he had been acquitted of the same criminal charge upon which the revocation was based. The court's statements are relevant here:
In addition to the difference in the degrees of proof required, although the issues involved in the administrative hearing and the criminal proceeding may overlap, the purpose of a revocation proceeding substantially differs from a criminal proceeding. The hearing examiner discussed the remedial nature of revocation proceedings, stating:
"These two cases, when taken together, stand for the proposition that an administrative proceeding against a licensee is a different cause of action than a criminal proceeding against the same licensee, even if based on the same facts which resulted in acquittal of license in the criminal case. This is apparent when the statutes in question are compared since the licensing statute is for the protection of the public at large. As the Appellate Court of Illinois stated in Kaplan v. Dept. of Registration & Education [46 Ill.App.3d 968, 5 Ill. Dec. 303], 361 N.E.2d 626, 631 (1977): `... The practice of medicine, in addition to skill and knowledge, requires honesty and integrity of the highest degree, and inherent in the State's power is the right to revoke the license of those who violate the standards it sets.' This revocation proceeding is not a second criminal proceeding placing the physician in double jeopardy. Rather, the purpose is to maintain sound, professional standards of conduct for the purpose of protecting the public and the standing of the medical profession in the eye of the public."
We find no error in refusing to apply the doctrine of collateral estoppel in this case.
149 Mich.App. at 555-56, 386 N.W.2d at 589.
We affirm the revocation of appellant's license and leave intact the circuit court's reversal of appellant's obligation to repay the money.
*58 Election of Remedies
Appellant also argues in his second point that the election-of-remedies rule bars this action by the Board. The election-of-remedies rule is that, where a party has a right to choose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts of the case and of his rights, he makes a deliberate choice of one, he is bound by his election and is estopped from again electing or resorting to the other remedy, although the judgment obtained in the first action fails to afford relief to the party making the election. Sharpp v. Stodghill, 191 Ark. 500, 86 S.W.2d 934 (1935). The essential elements of the election-of-remedies rule are: (1) both remedies were available; (2) they were inconsistent; (3) they are based on the same state of facts; (4) the same parties were involved in both suits; (5) the party against whom the rule is being raised was not mistaken as to the existence of any material facts. Eastburn v. Galyen, 229 Ark. 70, 313 S.W.2d 794 (1958). Because the Board was not a party to the Benton County Circuit Court criminal proceeding, and because the remedy of revoking appellant's license was not available in that proceeding, we reject this argument.
The Sufficiency of the Evidence
Appellant argues in his fourth point that the Board's decision is not supported by substantial evidence. We disagree. Arkansas Code Annotated § 17-19-210 (Repl.2001) provides that the Board may revoke a bondsman's license if he has violated any applicable statute or regulation or committed any fraudulent or dishonest acts. The Board's Rule and Regulation 1, § 23, requires a bondsman to return the premium if he cannot secure the arrestee's release from custody. No one disputes the fact that appellant refused to refund the premium when he learned that Hector would not be released because of the INS hold.
Additionally, the Board expressly found that it did not believe appellant's testimony that he refunded the $3,115 and that he did not forge the receipt. Mr. Vasquez and Sandra testified that appellant did not refund any of the bond premium and that Mr. Vasquez was not at the jail that Saturday, when appellant claimed he returned the money. Mr. Bailey testified that he first learned of the receipt at the hearing on March 4, 1999, even though he had discussed a refund with appellant on more than one occasion. Also, as the Board noted, the length of time between the dates on the copies in the receipt book casts doubt on appellant's version of the facts. Appellant's behavior in regard to the $3,115 is easily characterized as fraudulent or dishonest. The fact that Holt Bonding Company had actual possession of the collateral, as appellant points out, is of little importance, because appellant clearly refused to return it. We hold that the Board's decision to revoke appellant's license is supported by substantial evidence.
The INS Hold
In his fifth point, appellant contends that the evidence does not support any finding as to his fault in regard to the INS hold. Appellant contends that he was justified in keeping the bond premium until he was discharged by a court of competent jurisdiction and cites Liberty Bonding Co. v. State, 270 Ark. 434, 604 S.W.2d 956 (Ark.1980), and Bobby Cox Bail Bonds, Inc. v. State, 71 Ark.App. 119, 36 S.W.3d 752 (2000). Neither of those cases applies to this situation, because they do not address the bondsman's obligation to refund the premium if he is unable to secure the arrestee's release from jail. Additionally, appellant's argument that a bondsman is *59 obligated to refund a bond premium only upon a surrender without cause, as opposed to one with cause, is not on point: no surrender occurred here.
Even if appellant had no obligation to determine that there was an INS hold on Hector, he cannot deny that he refused to refund the premium after he learned that he could not secure Hector's release because of the INS hold. The Board's Rule and Regulation 1, § 23 provides in pertinent part: "The principal shall be entitled to a refund of his premium when the bondsman fails to secure the defendant's release from actual custody." We therefore reject appellant's arguments in support of this point.
Whether the Board's Decision Was Arbitrary and Capricious
Appellant argues in his sixth point that the Board's decision was arbitrary and capricious. Administrative actions may be considered arbitrary and capricious where they are not supported by any rational basis, Tomerlin v. Nickolich, supra, or hinge on a finding of fact based on an erroneous view of the law. Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (Ark.1980). To set aside an agency decision as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoned action, without consideration, and with a disregard of the facts and circumstances of the case. Tomerlin v. Nickolich, supra. The requirement that an administrative decision not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. Id. An action is not arbitrary simply because the reviewing court would have found differently. Id. Because the Board's decision to revoke appellant's license is supported by substantial evidence, it necessarily follows that it is not arbitrary and capricious.
Without citation to authority, appellant also contends that the Board should not have awarded the return of the bond premium because an offer by him and Holt Bonding Company to return the $385 before the March 1999 hearing had been rejected. We need not address this argument in light of our decision leaving intact the circuit court's reversal of appellant's obligation to repay the money.
Affirmed.
NEAL and BAKER, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2602210/ | 48 P.3d 1099 (2002)
2002 WY 96
Deborah HENSLEY, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
Deborah Hensley, Appellant (Defendant),
v.
The State of Wyoming, Appellee (Plaintiff).
Nos. 00-174, 01-90.
Supreme Court of Wyoming.
June 26, 2002.
Kenneth M. Koski, State Public Defender; Marion Yoder, Senior Assistant Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant in Case No. 00-174.
Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Devon Coleman, Interim Faculty Director of the Prosecution Assistance Program; Vicki K. Johnston, Student Intern for the Prosecution Assistance Program, Representing Appellee in Case No. 00-174.
Kenneth M. Koski, State Public Defender; Marion Yoder, Senior Assistant Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant in Case No. 01-90.
Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. *1101 Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General, Representing Appellee in Case No. 01-90.
Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
*1100 KITE, Justice.
[¶ 1] After being convicted of conspiracy to deliver and delivery of methamphetamine, Deborah Hensley learned the state had failed to disclose evidence she could have used to impeach the prosecution's primary witness. Ms. Hensley filed a motion for a new trial pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which the trial court denied. The related case of Davis v. State, 2002 WY 88, 47 P.3d 981 is controlling and dictates we reverse and remand for a new trial because of the prosecution's failure to disclose potentially exculpatory evidence. We also consider and affirm the trial court's admission of the drug transaction tape as this question will likely recur in any new trial.
ISSUES
[¶ 2] The issues we will address are rephrased as follows:
1. Did the trial court err in denying Ms. Hensley's motion for a new trial?
2. Did the trial court abuse its discretion when it admitted the entire tape of the drug transaction into evidence?
FACTS
[¶ 3] This appeal involves the same controlled methamphetamine buy as Davis, 2002 WY 88, 47 P.3d 981 in which we reversed Rex Davis' conviction. Although the cases were prosecuted separately, Mr. Davis and Ms. Hensley faced identical charges. Mr. Davis challenged the denial of his motion for a new trial based on the same Brady violation as Ms. Hensley alleges occurred in her case. See Davis, 2002 WY 88, ¶ 1, 47 P.3d 981.
[¶ 4] In 1998, the Department of Criminal Investigation (DCI) tape recorded Roberta Morris selling methamphetamine to a DCI confidential informant on three occasions. Ms. Morris subsequently agreed to work as an informant for DCI because she was told DCI would put in a good word for her with the prosecutor if she was officially charged on these methamphetamine sales.
[¶ 5] On June 3, 1999, DCI arranged for Ms. Morris to go to Richard Wilkie's[1] residence as a DCI informant to purchase methamphetamine. In order to prepare her for the controlled buy, the DCI agents searched her car and person, wired her with recording equipment to allow the transaction to be recorded, and gave her money to buy an "eightball"[2] of methamphetamine. The DCI agents then positioned themselves around Mr. Wilkie's residence in order to monitor the transaction.
[¶ 6] When Ms. Morris arrived on Mr. Wilkie's street, she saw him visiting with neighbors at their house. She approached Mr. Wilkie and asked him to "call and see if he could find any meth." Mr. Wilkie made two telephone calls to an unidentified person and left messages. For approximately forty-five minutes, he and Ms. Morris wandered back and forth between the neighbors' house and Mr. Wilkie's place. Ms. Morris testified that one of the neighbors and Mr. Wilkie smoked marijuana during that time but she did not. The tape recording of the encounter was difficult to understand because of disruptive background noise from conversations, barking dogs, a television, and extremely loud music. Mr. Wilkie made a third call and purportedly spoke with Ms. Hensley. Then he and Ms. Morris waited for Ms. Hensley and her friendMr. Davisto arrive.
[¶ 7] Ms. Hensley and Mr. Davis arrived in a pickup truck, and Mr. Wilkie and Ms. Morris walked to the curb in front of Mr. Wilkie's house to meet with them. Ms. Morris spoke to Ms. Hensley at the door of the truck. Two women's voices can be heard on the tape recording. Ms. Morris identified *1102 her voice as the voice requesting a "ball" and Ms. Hensley's voice as the voice responding they had a gram. Ms. Morris asked how much, and Ms. Hensley replied, "eighty." Although Ms. Morris testified Mr. Davis told Ms. Hensley how to respond, his voice cannot be heard on the tape. After the interchange, the women and Mr. Wilkie went into the house to complete the transaction.
[¶ 8] The DCI agents ultimately arrested Ms. Hensley and Mr. Davis and charged each with one count of delivery of methamphetamine and one count of conspiracy to deliver methamphetamine. The state tried them separately. Ms. Morris was the only witness to testify regarding the alleged drug buy because Mr. Wilkie died before the trial and neither Ms. Hensley nor Mr. Davis testified.
[¶ 9] The primary issue at trial was Ms. Hensley's objection to the admission of the tape recording of the buy on the basis that it included the neighbors' and Mr. Wilkie's voices and they were unavailable at trial. Ms. Hensley argued, therefore, the admission of the tape violated the hearsay rule and her constitutional right to confront witnesses. The prosecution contended the tape was akin to a crime scene photograph and merely used to corroborate Ms. Morris' testimony regarding the controlled buy. The defense presented the theory, through cross-examination, that Ms. Morris was not credible because she was a drug user and former drug dealer who knew how to, and did, manipulate the recording device by creating loud background noise to cover up her own drug use during the controlled buy. The trial court admitted the tape into evidence, ruling it was not offered to prove the truth of the matters asserted by the unavailable witnesses and was the best evidence of what occurred at the scene.
[¶ 10] In order for the state to prevail, the jury had to be convinced Ms. Morris was a reliable and credible informant. The prosecution sought to bolster Ms. Morris' credibility through the testimony of a veteran Green River police department officer who worked concurrently as a DCI agent. The agent testified regarding his experience with confidential informants and how Ms. Morris' work compared to others:
Q. How many CIs have you personally worked with?
A. Probablyprobably about ten in the last year. Excuse me, the last year and a half. Almost two years now, I would say ten.
Q. You heard [Ms. Morris] testify, and in fact, she agreed with [the defense's] question regarding how many buys she had made for DCI, and I think that it was somewhere around five, five to ten?
A. Yes.
Q. Do you know how many buys [Ms. Morris] has personally made?
A. It's closer tobetween 10 and 12. I'm not positive. It was between 10 and 12, I believe. Definitely more than 5.
Q. In your experience, does your average CI do that many buys?
A. No. She's probably done the best job so far since I've been here.
Q. In terms of number of buys?
A. And quality and numbers and keeping in touch, yes.
In a further effort to reinforce Ms. Morris' credibility, the prosecution elicited testimony from her that she was trying to address her methamphetamine addiction and extricate herself from the drug lifestyle. Ms. Morris testified that she used methamphetamine only once during the two years she worked for DCI. The jury convicted Ms. Hensley, and the trial court sentenced her to concurrent four- to eight-year prison terms on each count with credit for presentence confinement.
[¶ 11] Shortly after Mr. Davis' sentencing was reported in the local newspaper, Charlotte Shepard, formerly known as Charlotte Powell,[3] an informant for the Rock Springs police department and former DCI informant, contacted Mr. Davis' defense counsel and told him she had taped a conversation with Ms. Morris in February of 2000, approximately two months before Ms. Hensley's *1103 trial, in the context of a murder investigation. Ms. Morris was not a suspect in the murder case but was thought to have some relevant information.[4] Ms. Powell advised the defense that Ms. Morris was recorded on the tape using narcotics. On this evidence, the defense filed a motion for a new trial alleging a Brady violation.
[¶ 12] At the hearing on the motion, the defense contended Ms. Morris could be heard on Ms. Powell's tape consuming methamphetamine which proved, contrary to her trial testimony and the prosecution's trial contentions, she was actively using illegal drugs at the time of trial. Ms. Powell testified that DCI personnel were angry with her when they learned she had worn a wire to record her conversation with Ms. Morris. She stated that she went to Ms. Morris' apartment where she saw methamphetamine and drug paraphernalia. She also testified that both her conversation with Ms. Morris about the murder investigation and sounds of Ms. Morris and another person consuming methamphetamine were recorded on the audio tape. She also had observed Ms. Morris using drugs on several other occasions after February 2000. Ms. Powell further testified Ms. Morris told her, after Mr. Davis' trial, that Mr. Davis had not been involved in the drug transaction but she felt compelled to testify against him because of her desire to have DCI assist her in retaining custody of her children. Ms. Powell claimed Ms. Morris told her, again contrary to Ms. Morris' trial testimony, she knew how to manipulate the recording device to prevent DCI from hearing what actually occurred during a controlled buy and had provided perjured testimony regarding her drug use.
[¶ 13] The trial court determined that no Brady violation had occurred and denied Ms. Hensley's motion for a new trial. This appeal followed.
DISCUSSION
A. Brady Violation Analysis
[¶ 14]
We must determine ... whether the government's failure to disclose evidence favorable to the defendant deprived the defendant of a fair trial under Brady by considering whether the "favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." [Strickler v. Greene, 527 U.S. 263,] 290, 119 S.Ct. [1936,] 1952, 144 L. Ed. 2d 286 [(1999) ] (quoting Kyles [v. Whitley ], 514 U.S. [419,] 435, 115 S.Ct. [1555,] 1566, 131 L. Ed. 2d 490 [ (1995) ] ). In order to establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. We have previously decided that the materiality of withheld evidence and its possible effect on the outcome of the trial are mixed questions of fact and law. Generally, the denial of a motion for a new trial is reviewed for an abuse of discretion; however, a claim of failure to disclose evidence in violation of Brady is properly reviewed de novo.
Davis, 2002 WY 88, ¶ 16, 47 P.3d 981 (some citations omitted).
[¶ 15] The analysis of the Brady issue in Ms. Hensley's trial is indistinguishable from our analysis of the same issue in Davis. Therefore, our decision in Davis governs and provides in relevant part:
The first element requires that we determine whether [the defendant] showed that the prosecution suppressed evidence. [The defendant] presented testimony showing that DCI knew about the Powell tape before trial. When the prosecution learned about it after trial, it did disclose. A prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. Kyles, 514 U.S. at 437-38, 115 S. Ct. at 1567. In this case, the Powell tape is admissible (FN3)[5] to *1104 impeach Morris' testimony at [the defendant's] trial that she had used drugs two months before trial when she had actually used drugs more recently and to impeach the DCI agents' testimony vouching for Morris' credibility. The discovery of the Powell tape directly led to the defense's discovery of Powell's post-trial conversation with Morris where Powell alleges that Morris said she had intentionally shut off the tape recorder, and stated different motives for testifying .... Powell's version of Morris' post-trial statements contradicts Morris' trial testimony and could potentially be recognized as improperly suppressed Brady evidence. See Paradis v. Arave, 240 F.3d 1169, 1178-79 (9th Cir.2001). These post-trial contradictions obviously could not have been disclosed before trial, however, and, because they were not in existence before trial, cannot be part of an analysis as to whether the suppression of the Powell tape was a Brady violation. Strickler, 527 U.S. at 283, 119 S. Ct. at 1949. Nevertheless, by showing that the State failed to disclose the Powell tape which did exist before trial, [the defendant] has met [her] burden on this element.
The next element, that [the defendant] prove the evidence would have been favorable to [her], is also established by the record. Favorable evidence includes impeachment evidence, and the undisclosed Powell tape of Morris' use of drugs is impeachment evidence, particularly so when her use was at a time different than that to which she had testified. The Powell tape is also impeachment evidence because, at trial, the defense had no evidence and could only suggest that Morris' motives were not as pure as she testified. Further, the defense at trial had no evidence with which to challenge the prosecution's bolstering (FN4)[6] of Morris' credibility with the testimony of [the] DCI agent[] who vouched for Morris' credibility [stating she was the best CI he had worked with both as to quality and quantity of her work]. (FN5)[7] In the hands of defense counsel, the Powell tape's disclosure indicating that DCI knew that Davis was engaging in illegal activities would have been most useful for challenging all of this testimony.
The final element requires that we focus on the materiality of the undisclosed evidence, mindful that favorable evidence is material if "its suppression undermines confidence in the outcome of the trial." [United States v.] Bagley, 473 U.S. [667,] 678, 105 S.Ct. [3375,] 3381, 87 L. Ed. 2d 481 [(1985) ]. In Kyles, the Court further reviewed the meaning of materiality as it relates to the final result of the trial: "Bagley's touchstone of materiality is a `reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair *1105 trial, understood as a trial resulting in a verdict worthy of confidence. A `reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial.'" Kyles, 514 U.S. at 434, 115 S. Ct. at 1566 (citing Bagley, 473 U.S. at 678, 105 S. Ct. at 3381) (emphasis added).
In Strickler, the Court distinguished between finding a "reasonable probability" that the outcome might have been different requiring a reversal and finding a "reasonable possibility" requiring that the conviction be affirmed. 527 U.S. at 291, 119 S.Ct. at 1953. The dissent in Strickler cautioned that the continued use of the term "probability" promoted the likelihood that courts would apply the forbidden "more likely than not" determination and thus violate Kyles, and it proposed that the term be deemed "inevitably imprecise," thus warranting changing the term to a "significant possibility." Id. at 298, 119 S. Ct. at 1956 (Souter and Kennedy, JJ., concurring and dissenting). The differing conclusions on materiality reached by Strickler's majority and dissent in analyzing the particular facts illustrate not only that the preceding discussion is not idle intellectualizing but also that a conclusion regarding materiality may well be entirely subjective when credibility judgments are at issue.
The subjectivity presented when evaluating the significance of credibility determinations is particularly troublesome in this case where Morris' credibility was the critical issue. Perhaps we could simply dispose of this case by simplistically concluding that had the Powell tape been disclosed, Morris would not have testified that she had used drugs two months earlier, but would have testified that she used them one month earlier; or by agreeing with the trial court that Morris had admitted that she had used drugs on a single occasion and a new trial is not required; or by deciding that the difference in time frames relating to Morris' drug use does not undermine our confidence in the verdict.
However, our review indicates that ... portions of the Morris tape [were] inaudible, and, therefore, [the defendant's] trial was dependent entirely upon Morris' testimony. Impeachment evidence that could be used to discredit such an important witness or cast doubt on her veracity is usually material. As previously discussed, the prosecution presented DCI agent testimony that bolstered Morris' credibility.... The Powell tape could have been used to discredit that testimony also. "The question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same." Kyles, 514 U.S. at 453, 115 S. Ct. at 1575.
Davis, 2002 WY 88, ¶¶ 17-22, 47 P.3d 981.
[¶ 16] The only evidence implicating Ms. Hensley in the controlled buy was Ms. Morris' testimony and an exceptionally bad tape recording. We must, therefore, conclude the undisclosed evidence, which could have been used to impeach Ms. Morris, was material. We reverse Ms. Hensley's conviction and remand this case for a new trial.
B. Admission of Audio Tape
[¶ 17] We address the admissibility of the audio tape of the drug transaction because that issue will likely arise again in the event of a new trial.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
W.R.E. 403. "The balancing test required by Rule 403 is assigned to the sound discretion of the trial court." Prindle v. State, 945 P.2d 1180, 1183 (Wyo.1997), abrogated on other grounds by Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).
" `Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.'" *1106 Oldman v. State, 998 P.2d 957, 960 (Wyo.2000) (quoting [Martin v. State, 720 P.2d 894, 897 (Wyo.1986) ]).
Stout v. State, 2001 WY 114, ¶ 7, 35 P.3d 1198, ¶ 7 (Wyo.2001).
[¶ 18] "[T]his Court [has] said that tape recordings of drug transactions are non-testimonial, and `should be made available for a jury's review as any other exhibit.' Warner v. State, 897 P.2d 472, 475 (Wyo.1995)." Contreras v. State, 7 P.3d 917, 919 (Wyo.2000). The court has stated further
"a trial court's ruling permitting a jury to review the tapes should not be disturbed on appeal absent a clear abuse of discretion.... In addition, the exercise of that discretion should be upheld so long as the audio recording is otherwise admissible, and where the state introduces something more than a minimal amount of other evidence of culpability."
Id. (quoting Warner, 897 P.2d at 475).
[¶ 19] Ms. Hensley objected to the tape of the controlled buy, arguing it violated the hearsay rule and her constitutional right to confront witnesses because the neighbors' and Mr. Wilkie's voices could be heard on the tape and they did not testify at trial. The trial court overruled the objection, concluding the tape was not offered to prove the matters asserted by the unavailable witnesses and was the best evidence of what was said that day by Ms. Hensley and Ms. Morris.
[¶ 20] We conclude admission of the tape was within the trial court's broad discretion. Ms. Morris' eyewitness testimony and the DCI witnesses' testimony laid a proper foundation for the tape, assuring its trustworthiness.
The informant explained how she had been equipped with the portable recording device by the DCI agents, and she described the transaction ... in detail. The DCI agent testified that he assisted in equipping the informant with the tape recorder; monitored the informant throughout the transaction; and retrieved the micro cassette from the informant after the transaction was completed. "Admission is especially appropriate where a witness who heard the statements also testifies and the recording gives independent support to his testimony." U.S. v. Davis, 780 F.2d 838, 846 (10th Cir.1985), followed by, U.S. v. Hanif, 1 F.3d 998, 1002 (10th Cir.1993). The testimony from the informant and the DCI agent who monitored the transaction laid more than sufficient foundation to insure the trustworthiness and accuracy of the tape recordings. They were properly admitted into evidence ....
Crisp v. State, 944 P.2d 1165, 1168 (Wyo.1997). The tape was difficult to understand and, consequently, may not have been of significant benefit to the state's case. Discerning what was said by Mr. Wilkie and the neighbors is difficult, but none of what was said by them appears to implicate Ms. Hensley in any criminal activity. The tape was relevant to the proceedings, and the trial court had the discretion to allow its admission. The tape was properly admitted and played for the jury. See Contreras, 7 P.3d at 919-20.
[¶ 21] Affirmed in part, reversed in part, and remanded.
NOTES
[1] Mr. Wilkie died prior to Ms. Hensley's trial.
[2] Ms. Morris testified that an "eightball" was short for one-eighth of an ounce of methamphetamine.
[3] Consistent with the references in Davis, we shall refer to Ms. Shepard as Ms. Powell throughout the remainder of this opinion.
[4] Mr. Wilkie's death was unrelated to the murder investigation.
[5] Footnote three reads:
"Prior inconsistent statements by a witness are admissible under W.R.E. 613(b): `(b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).'" Monn v. State, 811 P.2d 1004, 1006 (Wyo. 1991).
Davis, 2002 WY 88, ¶ 17 n. 3, 47 P.3d 981.
[6] Footnote four reads:
"The jury is charged with resolving the factual issues, judging the witnesses' credibility, and ultimately determining whether the accused is guilty or innocent. Gayler v. State, 957 P.2d 855, 860 (Wyo.1998); Zabel v. State, 765 P.2d 357, 362 (Wyo.1988). A witness may not, therefore, vouch for the credibility of another witness or a victim. Gayler, 957 P.2d at 860; Curl v. State, 898 P.2d 369, 373-74 (Wyo.1995)." Newport v. State, 983 P.2d 1213, 1215 (Wyo.1999). Whether [the defendant] can be heard on the tape making the precise statements that Morris alleged [she] made is a question of fact for the jury to determine.
Davis, 2002 WY 88, ¶ 18 n. 4, 47 P.3d 981.
[7] Footnote five reads in pertinent part:
In its presentation of its case, the prosecution established Morris as an informant whom the jury could find trustworthy in several ways. First, Morris testified that her motives for acting as a DCI informant were to cooperate for favorable treatment regarding her own arrests for drug violations; to avoid the possibility of losing custody of her children; and to escape her life as a drug addict in the drug world although she forthrightly disclosed that since becoming a DCI informant, she had used drugs once two months before trial. Second, a DCI agent testified and vouched for Morris' credibility.
Davis, 2002 WY 88, ¶ 18 n. 4, 47 P.3d 981. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579914/ | 12 So.3d 236 (2009)
CLARK
v.
STATE.
No. 5D09-248.
District Court of Appeal of Florida, Fifth District.
June 23, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579931/ | 324 N.W.2d 471 (1982)
Harry J. OSBORN and Gwendolyn R. Osborn, Appellants,
v.
CITY OF CEDAR RAPIDS, Iowa, Donald J. Canney, Harold G. Schaefer, Wayne A. Murdock, Floyd T. Bergen, and Stanislavs Reinis, Appellees.
No. 66913.
Supreme Court of Iowa.
September 29, 1982.
*472 Minor Barnes of Pickens, Barnes & Abernathy, Cedar Rapids, for appellants.
Lynda E. Thomsen, Asst. City Atty., for appellees.
Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.
HARRIS, Justice.
The city brought three successive eminent domain proceedings to acquire plaintiffs' real property located in a residential area of Cedar Rapids. All were dismissed and the city thereafter condemned only two easements across the property. This mandamus action thereafter was brought on a theory that the property had in effect been "taken" and the city should be compelled to follow through with its earlier plans to acquire the land and pay compensation. The trial court held there had been no taking of the land and refused to issue the writ. On our de novo review we conclude there was a taking. Hence we reverse the trial court and remand the case for issuance of the writ.
Plaintiffs do not claim that the taking came about by physically possessing or using the land. Their argument is that the conduct of the city, especially in the series of condemnation suits, deprived them of the land's practical use. The city contends plaintiffs can use the property any way they could have previously. In a sense this is true but this is not conclusive. The principal, almost the exclusive, value of the property to plaintiffs did not lie in the use plaintiffs then made of it. They held the property mainly for its development potential.
Plaintiffs have owned their property since 1955. It is presently zoned as single family residential but is located in an area containing multiple family dwellings and commercial buildings. An apartment complex is adjacent to it. A shopping center adjoining the apartment complex is just 146 feet to the west.
During the 1950's the development of Cedar Hills, an extensive residential area to the west of plaintiffs' property, greatly increased the flow of surface water into Vinton ditch which traverses plaintiffs' land. The increased surface water prompted the city in 1971 to pass a resolution known as the Vinton ditch project. The resolution provides that a building permit will not be issued within an area 200 feet of each side of the center line of Vinton ditch unless approved by the city council after recommendation of the city engineer.
Although some construction has occurred within the proscribed area, the city has from time to time conveyed the impression that the resolution absolutely prohibits construction in the area. The city started acquiring properties in the project area in the 1960's and as early as 1973 expressed an intention to acquire the north 1.57 acres of plaintiffs' property.
The first of the condemnation suits was brought in 1976. According to the city's assertions the property was needed for "park purposes." But it does not seem that the city or its departments had any real intention of establishing a park. The park department was involved in the proceedings because it was expected to maintain the area as what was described as a "green belt."
After widely different valuations were placed on the property by the appraisers the *473 original condemnation proceedings were dropped. Plaintiffs suggest they were dropped because of the valuation evidence they would offer. The city, on the other hand, argues the original proceedings were dropped because of ongoing negotiations between it and plaintiffs for a settlement and because plaintiffs and a neighboring property owner were seeking to have the property rezoned so as to allow multiple family structures to be built. We think the city was prompted, at least in part, to drop the proceedings because of the risk of a high award.
The second proceedings were brought in 1977. Again a park was the stated reason for the acquisition. And again the proceedings were dismissed without trial after unsuccessful settlement negotiations. This time, however, negotiations did not center on the widely divergent appraisals. Rather, the parties were considering another proposal for rezoning.
An agreement was nearly reached between the plaintiffs and city which would have allowed development of a portion of plaintiffs' property in return for dedication to the city of most of the area which was the subject of the condemnation proceeding. Plaintiffs were willing to donate the agreed portion of their land to the city so long as it would be used for park purposes and so long as the city would give them R-4 zoning on the rest of the property. This was the arrangement worked out by the plaintiffs' neighbors and the city. On the neighboring property the land was donated, the property rezoned R-4, and an apartment complex was built.
In plaintiffs' case, however, the city agreed only to R-3G zoning which would not permit construction of the type of apartment buildings desired by the plaintiffs. Accordingly plaintiffs withdrew their rezoning petition in the fall of 1977. The second condemnation suit was dismissed and no further action was taken by either party until 1979.
In 1979 the city renewed its effort to acquire a large portion of plaintiffs' property; 1.364 acres were sought together with two additional sewer easements, one fifty to one hundred feet wide and another ten feet wide. The city, in conformity with its usual practice, obtained two assessments. One fixed the damages for the taking at $34,750. The other set the damages at $10,000. In advising of the renewed efforts to condemn the property the city engineer advised plaintiffs of the lower appraisal but not of the higher. This was misleading to plaintiffs because the city, in notifying them of the intended acquisition, stated it would pay "on the highest appraisal." The city's final offer to plaintiffs, in the amount of $11,000, based on the lower appraisal, was forwarded by a letter which again did not indicate the existence of the higher appraisal.
When the $11,000 offer was not accepted the third condemnation proceedings were brought. This time the stated purpose of the taking was for "sanitary sewer and drainage." The condemnation commission was scheduled to meet on January 24, 1980, to assess damages. Two days before the hearing plaintiffs and their attorney met with the city engineer and advised him that an earlier appraisal by plaintiffs' expert witness had been updated and damages to the property were now set at $147,000. This was substantially higher than the earlier estimate of the same witness. When the city engineer reported this to the council the condemnation proceedings were dropped by the city.
Following cancellation of the third proceedings the plaintiffs served a written demand on the city to condemn the real estate described in the third condemnation notice. The city did not comply with the demand and advised plaintiffs that the city "has decided not to acquire the parcel of property which we have discussed with you in the past, at this time, but instead intends to acquire only a sanitary sewer easement. . . ."
The fourth condemnation proceedings were brought to acquire an easement over plaintiffs' property "for sanitary sewer and drainage." These proceedings resulted in an award of $9400 including attorney's fees. There was no appeal.
*474 Plaintiffs' tract and that of a neighbor to the east are the only properties within the Vinton ditch project which the city has not acquired in fee. The project extends a distance of about one mile. Any prospective purchaser of the property would discover the condemnation proceedings in the past and the susceptibility of the property to such proceedings in the future. In effect, then, the city has gained the practical use of the northern part of plaintiffs' property. Yet the city has paid only for easements.
I. . . . [M]andamus will lie to compel condemnation proceedings where there has been a taking of private property for public use within the constitutional sense without compensating the owners. Where a condemning authority did not acquire the rights to property taken later, the property remedy may be by mandamus to compel further condemnation. [Authorities.]
Hammer v. County of Ida, 231 N.W.2d 896, 902 (Iowa 1975). Mandamus is an equitable action. Phelps v. Board of Supervisors of Cty. of Muscatine, 211 N.W.2d 274, 277 (Iowa 1973); Iowa Code § 661.3 (1981). Our review is de novo. Iowa R.App.P. 4. Our de novo review does not extend to the extent of the taking or the amount of damages. Phelps, 211 N.W.2d at 276.
II. Under art. I, § 18 of the Iowa Constitution "private property shall not be taken for public use without just compensation first being made." Plaintiffs' claim comes down to an assertion that they are in effect left with a hollow title to some of their land, that the public has in effect taken its use away from them. Although this is not the most routine claim for condemnation disputes it is far from unique. As we explained in Phelps:
. . . [A] "taking" does not necessarily mean the appropriation of the fee. It may be anything which substantially deprives one of the use and enjoyment of his property or a portion thereof. [Authorities.] In the present [Phelps] case, there has been a taking if, as plaintiffs contend, there has been a substantial interference with their use and enjoyment of their property. . . .
211 N.W.2d at 276.
Just what constitutes "substantial interference" is essentially a fact question. Donohoe Construction Co. v. Montgomery County Council, 567 F.2d 603, 608 n. 13 (4th Cir. 1977), cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1148 (1978). There is no set formula; each case turns on its own particular circumstances. E.g., Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631, 648 (1978). Under the facts here, we find there was substantial interference with plaintiffs' use and enjoyment of their property.
The city's repeated bringing and dropping proceedings certainly qualifies as interference under Phelps. The city argues that the proceedings were dropped because of settlement negotiations. But we think the effect of repeated condemnation efforts cannot be dismissed so easily. Settlement negotiations are commonly undertaken in these, as they are in most, proceedings. Moreover, these proceedings were always reinstituted so there was a nearly continuous threat against the property. The "unreasonable protraction of condemnation proceedings or abandonment thereof after and extended period of time" is a municipal practice with little to commend it. See Skaff v. Sioux City, 168 N.W.2d 789, 793 (Iowa 1969).
The plaintiffs held their property primarily for its development potential. This potential has been suppressed by the city's actions. It seems plain that prospective buyers will be discouraged from buying the plaintiffs' property for development when the city's intentions are stated to be temporary. The city has decided not to acquire the property but only "at this time." The loss of such potential investment-backed expectations is a factor to be considered in determining whether there has been a taking. See, e.g., Richmond Elks Hall Ass'n v. Richmond Redevelopment, 561 F.2d 1327, 1330 (9th Cir. 1977).
*475 The city's tactics in acquiring the easement seem unduly oppressive. The city failed to disclose the larger appraisal to the plaintiffs, although it was the city's stated practice to "pay on the highest appraisal." Similarly, while the Vinton ditch project was already an established city goal, the first two condemnation proceedings said the acquisition of plaintiffs' land was for "park purposes." Significantly, the city seems to have singled out these plaintiffs in claiming that mere easements across their land were sufficient for the public. Virtually all other land along the ditch was acquired in fee by the city. This is a strong indication that plaintiffs' property also has been taken for public use.
We conclude there was a taking of plaintiffs' property, described in the third condemnation proceedings. A writ of mandamus should have issued compelling the city to proceed in the regular manner and to pay plaintiffs accordingly. The case is reversed and remanded for a trial court order in conformance with the views here expressed.
REVERSED AND REMANDED.
All Justices concur, except McCORMICK, J., who dissents.
McCORMICK, Justice (dissenting).
The first two condemnation proceedings were dismissed because of settlement negotiations between the parties. Only the third proceeding was dismissed because the City wished to avoid the risk of a high award. It then condemned only an easement. Its evidence at trial established it had no plan to acquire any greater right in the property. I do not believe the evidence shows the City ever purported to bargain with the Osborns or other property owners with its zoning power. Nor do I believe the Osborns were misled by the City's offer to pay on the basis of the lower appraisal in the third proceeding.
For mandamus to be warranted it was necessary for Osborns to prove that the City's conduct constituted a taking in the constitutional sense. I agree with the trial court that they did not meet this burden. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579953/ | 84 S.W.3d 176 (2002)
STATE of Missouri, Plaintiff-Respondent,
v.
Christopher R. HUGHES, Defendant-Appellant.
No. 24142.
Missouri Court of Appeals, Southern District, Division Two.
September 18, 2002.
*177 Nancy S. McKerrow, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., for respondent.
NANCY STEFFEN RAHMEYER, Judge.
Christopher R. Hughes ("Appellant") appeals from his conviction of second-degree murder and armed criminal action in the death of Tracy Joseph Hayes ("Hayes"). We affirm.
On May 1, 1999, Appellant, who was one month away from his eighteenth birthday, and three of his friends were gathered at the home of Robert Ross ("Ross"). They were drinking and playing cards. Ross' mother came home complaining about the way Tracy Hayes, Jr. ("Hayes Jr.") was treating Ross' sister, Melody, at school. Ross' mother suggested that the boys teach Hayes Jr. a lesson. There was conflicting information concerning Appellant's participation in the discussion, but the end result was that Appellant, the three friends, and a fifth person went to the Hayes home. One of Appellant's friends, Dennis Kraus ("Kraus") had just returned from military service and was the oldest of *178 the group. He indicated that he would be the leader and that they were going just to "talk."
Upon arriving at Hayes' property, the five boys, with Kraus in front, started walking toward Hayes, who was outside working on a lawnmower. When Hayes saw them, he took his shirt off and walked toward the boys. When they met, Kraus was out front with the others fanned out around him. Hayes asked if there was a problem, and Kraus responded that he hoped not and that they were looking for Tracy Hayes.[1] At some point Hayes told him he was Tracy Hayes and to leave his property. Kraus and others testified that Hayes then asked for somebody in the house to get a gun. Hayes then took his hand, put it on the back of Kraus' head and told Kraus he had "messed with the wrong motherf____ now." Kraus looked shaken and the discussion quickly escalated to angry words. The evidence indicates that Hayes told Kraus he was going to kill him.
There is no dispute that Kraus and the other boys began retreating to the car, with Kraus initially backing up to the car. Hayes then kicked Kraus as Kraus turned with his back to Hayes to leave. Kraus indicated that he turned around ready to fight after the first kick, but refrained. After the second kick, Kraus indicated "If you want to do it, let's do it." Hayes charged Kraus and they tumbled down, stopping in a ravine with Hayes on top of Kraus.
It appeared to some of the observers that Hayes was hitting Kraus while he had Kraus pinned to the ground. While the rest of the group was watching what was going on in the ravine, Appellant returned to the car, found a hunting knife, and returned to the scene with it. At the same time, Hayes Jr. was going toward the group carrying a long wooden chair leg. Appellant initially stabbed Hayes in the right shoulder area, a superficial wound that would not have killed him. A second stab that sliced the lower left back was the fatal wound. Hayes Jr. testified that he hit Appellant with the chair leg several times in the head as soon as he saw the first knife wound. Appellant did have a concussion, was incoherent and claims not to remember anything concerning the second wound. Hayes Jr. testified that the second wound occurred when Hayes was on his back, Kraus was on top of him, and Appellant was reaching around to stab Hayes. There was no further testimony regarding the infliction of the second wound; however, Appellant maintained control of the knife until his friends took the knife from him and took him from the scene.
Appellant's two points on appeal both claim error with Instructions 17 and 18, which were modeled after MAI-CR3d 306.06 and 306.08. MAI-CR3d 306.06 concerns justification of the use of force in situations of self-defense and MAI-CR3d 306.08 concerns justification of the use of force in defense of third persons. In his first point on appeal Appellant contends that Instructions 17 and 18 misstated the evidence and took away from the jury the issue whether Kraus in Instruction 17 or Appellant in Instruction 18 instigated the fight that caused Hayes' death in that the instructions included language regarding the "initial aggressor." Although Instruction number 17 was based on MAI-CR 3d 306.08 and Instruction number 18 was based on MAI-CR 3d 306.06; Appellant claims the instructions were not in conformity with MAI-CR 3d and the accompanying Notes on Use, nor were they supported by the evidence.
*179 Generally, § 563.031.1[2] allows a person to use physical force upon another person to defend himself or a third person from what he perceives to be the use or imminent use of unlawful force by the other person. This defense is not available, however, if the defendant was the initial aggressor, unless he withdrew from the conflict § 563.031.1(1)(a). An initial aggressor is one who first attacks or threatens to attack another. Denson v. State, 31 S.W.3d 166, 179 (Mo.App. W.D. 2000); MAI-CR3d 306.06, Part A[1]. If there is contradictory evidence as to who was the initial aggressor, it is a question of fact for the jury to decide. Denson, 31 S.W.3d at 180.
Deviation from an applicable MAI instruction or its Notes on Use is presumptively prejudicial unless the contrary is clearly demonstrated. State v. Presley, 694 S.W.2d 867, 872 (Mo.App. S.D.1985). In reviewing the adequacy of jury instructions, this court determines whether sufficient evidence existed for that instruction, viewing all facts and inferences in the light most favorable to the state, and ignoring all adverse inferences. State v. Abdul-Khaliq, 39 S.W.3d 880, 883-84 (Mo.App. W.D.2001). A jury instruction constitutes reversible error only when there was error in submitting the instruction and that error prejudiced the defendant. Id. at 884. The failure to give an instruction as stated in an applicable MAI CR instruction constitutes error, and the prejudicial effect must be determined. Rule 28.02(f).[3]
We will discuss Instruction 17, which involves justification of use of force in defense of third persons.[4] MAI-CR3d 306.08, concerning the justification of the use of force in the defense of third persons, states:
A person can lawfully use force to protect another person against an attack unless, under the circumstances as he reasonably believes them to be, the person he seeks to protect would not be justified in using such force to protect himself. [Insert brief description of the basis whereby the person being protected would not be justified in using force to protect himself. See Notes on Use 3(b) for examples.] If, under the circumstances as a person reasonably believed them to be, the person he seeks to protect (was the initial aggressor (and had not withdrawn)) (was being arrested by a law enforcement officer) ([other basis for lack of justification ]), then he is not entitled to use force to protect the other person.
The instructions on use indicate that the above paragraph is to be used "ONLY if there is evidence that the person being defended was not justified in using force in self-defense and that such was apparent to the defendant." Instruction 17 included the additional language, "A person who is an initial aggressor, that is, one who first attacks or threatens to attack another is not justified in using force to protect himself from the counter-attack that he provoked." The instruction, thus, did not give the option to the jury to find that the initial aggressor "had not withdrawn." Further, the instruction continued,
If, under the circumstances as the defendant reasonably believed them to be, *180 Dennis Kraus was not the initial aggressor in the encounter with Tracy Joseph Hayes and if the defendant reasonably believed Dennis Kraus was in imminent danger of death or serious physically injury from the acts of Tracy Joseph Hayes and he reasonably believed that the use of deadly force was necessary to defend Dennis Kraus, then he acted in lawful defense of another person.
Again, there was no option for the jury to determine that Kraus had indicated to Hayes his withdrawal from the encounter. The Notes on Use indicate that if there is further evidence the person being protected withdrew so as to regain the privilege of using force, then a sentence setting those facts should be added.
Appellant's point on appeal only claims there was no evidence that Kraus or Appellant was the initial aggressor.[5] The point of error addressed by Appellant is related to evidence of who was the initial aggressor, and not to whether there was any withdrawal from the conflict. Review on appeal is limited to the issues framed by the Appellant's point relied on. Helmig v. State, 42 S.W.3d 658, 666 (Mo.App. E.D. 2001); Rule 84.04(e).
Although there was evidence supporting an inference that Kraus and his friends withdrew from the conflict or that Hayes was the initial aggressor,[6] there was also ample evidence supporting a theory that Appellant or Kraus was the initial aggressor. A group of five boys descending upon Hayes' private property could be a basis for believing any member of the group, or the group as a whole, was the initial aggressor of the events that later occurred. There was evidence that the boys were looking for a fight. One witness described the boys prior to going to the property as "feisty." The group went to the school earlier that day looking for another boy to either talk out a problem or fight. Hayes Jr. had heard that there were boys looking for him because he had pushed Melody down the hallway. Melody had shouted an obscenity at Hayes and his family the day before, and Hayes confronted her about it that evening. In addition, there was some evidence that Hayes Jr. and Appellant almost got into a fight at a basketball game in the past. Kraus testified at trial that he realizes that with the history of problems between Hayes Jr. and the boys, five boys walking onto Hayes' property might upset him.
Hayes Jr. testified that while his father was calm, Kraus was arrogant, cocky, loud, and obnoxious. There was testimony that *181 Kraus told Hayes that he would "kick his ass," although there was conflicting testimony as to at what point in the altercation Kraus first made this statement. Thus, the evidence would have supported a jury believing that the boys' advance onto Hayes' property was the initial aggressive act that led to Hayes' death. See, e.g., State v. White, 738 S.W.2d 590, 593 (Mo. App. E.D.1987)(finding that evidence that without provocation a person and his friends advance on another person in a threatening manner could support finding the first person to be the initial aggressor). Although Instruction No. 17[7] did not give the jury the option of deciding that Kraus or Appellant had "clearly indicated to Tracy Joseph Hayes his withdrawal from the encounter," the issue of withdrawal from the conflict was not raised by Appellant. Point I is denied.[8]
In Appellant's second point on appeal he claims two more errors with Instructions 17 and 18 concerning the use of deadly force and Appellant's reputation for being violent. Neither of these claims of error were properly preserved at the trial court level in that Appellant did not raise these specific objections to the instructions, and, recognizing that fact, Appellant requests plain error review. For instructional error to constitute plain error, "the trial court must have so misdirected or failed to instruct the jury such that the error affected the jury's verdict, resulting in manifest injustice or miscarriage of justice." Morrow, 41 S.W.3d at 58-59. Review of instructions for plain error is discretionary and for Appellant to be entitled to plain error review the claim must facially establish substantial grounds for believing that manifest injustice occurred. State v. Lewis, 955 S.W.2d 563, 566 (Mo.App. W.D.1997).
Appellant contends that there was instructional error in the inclusion of a statement as to Appellant's reputation for being violent. Appellant's contention is based on his belief that "[t]here was no evidence at trial of [Appellant's] reputation for violence and turbulence...." This contention is contrary to the evidence that indicated Appellant was a violent person. For example, Appellant testified that he pled guilty to assault in March 1999 and received probation. Kraus testified that Appellant would not shy away from fights and had been involved in physical confrontations. Hayes Jr. testified that he almost got into a fight with Appellant at a basketball game. Charlie Daniels, one of the boys who went to Hayes' home on May 1 with Appellant, testified that he was aware that Appellant had been in fights before. Because it does not facially appear that Appellant's claim of error has any basis, plain error review of the point is not warranted.
Next, Appellant addresses language in the jury instructions that Appellant used deadly force. The portion of Instruction 17 of which Appellant complains states:
[I]f the defendant reasonably believed Dennis Kraus was in imminent danger *182 of death or serious physical injury from the acts of Tracy Joseph Hayes and he reasonably believed that the use of deadly force was necessary to defend Dennis Kraus, then he acted in lawful defense of another person.[9]
The instructions must be compared to MAI-CR3d 306.06 and MAI-CR3d 306.08.
The specific instruction for MAI-CR3d 306.06 states that the language should be used only when the evidence is clear that the defendant used deadly force and there is no dispute as to that issue.[10] Deadly force is defined as "physical force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious physical injury." § 563.011(1). Appellant's intent to cause death or serious injury is essential. MAI-CR3d 306.06, Notes on Use 4(b). "If the defendant did not have as his purpose the causing of death or serious physical injury and was not aware that such injuries were likely, he has not used `deadly force.'" Id. "Serious physical injury" is defined as "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body[.]" § 565.002(6).
Appellant argues that he did not intend to use deadly force based on the following testimony where he discussed the upper stab wound:
Q Why did you stick the knife in [Hayes'] shoulder?
A Because it wasn't an area that is vital, it wasn't I knew he wouldn't get a serious injury out of it. If anything, I was trying to demobilize him for long enough to get my friend out from underneath him and get back to the Jeep.
Earlier in his testimony Appellant testified, "And I knew it wasn't nothing fatal, nothing serious...." The state responds that this testimony is irrelevant because it concerned the upper, non-fatal stab wound, not the lower, fatal wound. Appellant's position as to the fatal wound was that he did not remember making that wound, and so he must not have done it. He testified that he thought he only stabbed Hayes once and he assumed that the second wound was an accident.
In reviewing this evidence as it relates to Instruction 17 the evidence must be viewed in the light most favorable to the theory advanced by Appellant, with all reasonable inferences being made therefrom and keeping in mind that he is entitled to an instruction on any theory which the evidence tends to establish. State v. Jones, 921 S.W.2d 154, 155 (Mo.App. E.D. 1996). With that standard being applicable, it would be reasonable to infer that Appellant was saying he did not intend to stab Hayes the second time. Appellant contends the instruction should have contained language to give the jury the option of deciding that Appellant used non-deadly force. Appellant's argument is misplaced.
*183 Regardless of whether Appellant remembers or witnesses recall the second stab wound, the issue of whether Appellant inflicted the second, fatal stab wound was resolved by the jury in Instruction No. 7, when the jury found that "the defendant caused the death of Tracy Joseph Hayes by stabbing him." As to Appellant's intent to cause deadly force, the evidence was undisputed that Appellant left the area of the confrontation with the purpose of finding a weapon in his friend's jeep. He then put the knife in the waistline of his shorts, returned to the scene and stabbed an unarmed man in the back with such force to cause a wound six inches in length, which subsequently killed the man. Deadly force was used and it was not error for the court to so instruct that deadly force was used. There was no error, plain or otherwise. Point II is denied.
Judgment affirmed.
GARRISON, P.J., and PARRISH, J., concur.
NOTES
[1] Kraus was referring to Hayes Jr.
[2] All references to statutes are to RSMo 2000, unless otherwise indicated.
[3] All rule references are to Supreme Court Rules (2002), unless otherwise stated.
[4] Appellant raises identical issues regarding Instruction 18. Because the evidence is minimal that Appellant was justified in use of any force in his own defense, we will concentrate our discussion of the justification for the use of force in defense of a third person.
[5] Appellant's Point I reads:
The trial court erred in giving Instructions # 17, and # 18, the instructions on defense of another and self-defense because those instructions were not in conformity with MAI CR3d 306.08 and 306.06 and thereby deprived [Appellant] of due process, a properly instructed jury and a fair trial, as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10 and 18(a) of the Missouri Constitution, as well as Rule 28.02, in that there was no evidence that Dennis Kraus or [Appellant] were the initial aggressors. [Appellant] was prejudiced by the giving of Instructions # 17 and # 18 because they misstated the evidence and made it appear that the Court believed, in giving these instructions to the jury, that Dennis or [Appellant] may have instigated the fight that resulted in Hayes' death and therefore [Appellant] was not justified in using force against Hayes to defend Dennis or himself which thereby undermined [Appellant's] defense.
[6] Hayes took off his shirt, threw it to the ground, approached Kraus, made the initial threat to Kraus, and threatened to kill him. At this point Kraus and his group retreated. Hayes kicked Kraus twice as Kraus was leaving the property, tackled him and had him pinned to the ground as he was hitting him. There was also evidence that Hayes had asked someone to bring him a gun.
[7] For some reason, one part of Instruction 18 on the issue of self-defense did not give the jury the option of finding that "the defendant clearly indicated to Tracy Joseph Hayes his withdrawal from the encounter." In another section of Instruction 18, the jury was given the option of determining that Appellant had withdrawn from the conflict by stating, "If the defendant was not the initial aggressor in the encounter with Tracy Joseph Hayes, or if he was the initial aggressor and clearly indicated to Tracy Joseph Hayes his withdrawal from the encounter...."
[8] The same facts under which Instruction 17 was appropriate regarding Appellant being the "initial aggressor" result in Instruction 18 being appropriate as well.
[9] The portion of Instruction 18 of which Appellant complains states as follows:
[I]f the defendant reasonably believed he was in imminent danger of death of serious physical injury from the acts of Tracy Joseph Hayes and he reasonably believe[d] that the use of deadly force was necessary to defend himself, then he acted in lawful self-defense.
Again, the analysis concerning deadly force is the same for both instructions, and in effort toward brevity, we will specifically discuss Instruction 17.
[10] MAI-CR3d 306.08 refers to MAI-CR3d 306.06 for an explanation regarding deadly force under that instruction; therefore, the discussion of deadly force under MAI-CR3d 306.06 is equally applicable to MAI-CR3d 306.08. MAI-CR3d 306.06, Part B[2][B]; MAI-CR3d 306.08, Part B[2][B]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579958/ | 84 S.W.3d 8 (2002)
Printiss Raymon DORSEY, Appellant,
v.
The STATE of Texas, Appellee.
No. 06-01-00087-CR.
Court of Appeals of Texas, Texarkana.
Submitted April 11, 2002.
Decided April 26, 2002.
Rehearing Overruled May 21, 2002.
*9 Clement Dunn, Attorney at Law, Longview, for Appellant.
Andy Porter, Assistant District Attorney, Longview, for Appellee.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
Opinion by Justice ROSS.
Printiss Dorsey appeals the trial court's revocation of his community supervision and assessment of six years' imprisonment. Dorsey contends the trial court committed reversible error when it proceeded with the hearing that resulted in the revocation of his community supervision without adequate notice to him of the specific violations of the terms of community supervision. Dorsey contends the lack of notice amounted to a violation of due process, equal protection, and due course of law. The State, in its counter-issue, contends Dorsey waived his right to appeal, thereby denying this Court jurisdiction to review Dorsey's point of error.
Dorsey was indicted in March 1994 on two counts of robbery committed in a single criminal episode. On September 15, 1994, he waived a jury trial and pled guilty to the lesser offense of theft from the person. Following a plea agreement, the trial court deferred a finding of guilt for a period of three years and placed Dorsey on community supervision.
The State filed its first application for adjudication of guilt on February 2, 1995. The State amended the application on March 24, 1995, and again on March 30, 1995. On the same date as the State's second amendment, the trial court adjudged Dorsey guilty and placed him on ten years' community supervision. A condition of Dorsey's community supervision was that he support all dependents.
The trial court modified Dorsey's community supervision on June 21, 1999, and again on March 27, 2000. On July 14, 2000, the State filed an application for revocation of Dorsey's community supervision, alleging seven violations, including failure to support all dependents. At the August 17, 2000, hearing on the State's application, Dorsey pled true to all seven violations. At this hearing, the trial court stated it would take the matter under advisement, but amended the terms and conditions of community supervision to require "that all child support that is delinquent as of this moment for both of these children be brought current within six months from today,...." The trial court resumed the hearing on the July 14 application on February 19, 2001. As of the date of the resumption of the hearing, Dorsey was not current on his delinquent child support and the trial court revoked his community supervision and sentenced him to six years' imprisonment.
On February 19, 2001, Dorsey and his attorney signed a waiver of a right to file a motion for new trial and right to appeal. Dorsey filed a motion for new trial on March 20, 2001, which was overruled by operation of law. He filed a notice of appeal on May 18, 2001. The record does not affirmatively show the trial court granted permission to appeal.
We first address the question of whether we have jurisdiction to consider the merits of the appeal. Lenox v. State, 56 S.W.3d 660, 661 (Tex.App.-Texarkana 2001, pet. ref'd). Under Texas law, a defendant in a noncapital criminal case "may waive any rights secured him by law...." *10 TEX.CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon Supp.2002). The record shows Dorsey waived his right to appeal after the pronouncement of judgment and sentence. Such a waiver is valid and binding. Blanco v. State, 18 S.W.3d 218, 220 (Tex.Crim. App.2000) (affirming 996 S.W.2d 345 (Tex. App.-Texarkana 1999)); Littleton v. State, 33 S.W.3d 41, 43 (Tex.App.-Texarkana 2001, pet. ref'd). Dorsey contended at oral argument his notice of appeal acted to override his written waiver of appeal. However, Dorsey's notice of appeal, after having waived his right to appeal, does not confer full subject matter jurisdiction on this Court. Clayburn v. State, 985 S.W.2d 624, 625 (Tex.App.-Waco 1999, no pet.) (Clayburn's waiver of appeal found valid when he neither received permission of trial court to appeal nor disavowed waiver). Subsequent notice of appeal does not withdraw or affect a prior waiver of appeal. Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.Crim.App.1978).
No attack on the waiver of the right to appeal will be entertained in the absence of factual allegations supporting the claim that the waiver was coerced or involuntary. Id. Dorsey has not challenged the validity or voluntariness of his waiver of appeal. He contended at oral argument his waiver should be treated differently from those waivers made pursuant to a plea agreement. We disagree. In Tabor, there is no indication the waiver of appeal was made in connection with a plea agreement. According to the opinion, the defendant pled guilty and punishment was assessed. There is nothing indicating a plea agreement. Id. at 945. We find Dorsey's waiver of appeal is valid.
Even if Dorsey had not waived his right to appeal, he failed to object to any due process violations by the trial court and therefore failed to preserve any error. Rogers v. State, 640 S.W.2d 248, 263-64 (Tex.Crim.App. [Panel Op.] 1982) (op. on reh'g).
The appeal is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581158/ | 42 So. 3d 801 (2010)
Frank SALONKO, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-4879.
District Court of Appeal of Florida, First District.
February 12, 2010.
Rehearing Denied April 1, 2010.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Frank Salonko, Appellant, seeks reversal of his convictions for second-degree murder and aggravated assault. He raises several issues on appeal, only one of which merits discussion. Citing this Court's opinion in Montgomery v. State, ___ So.3d ___ (Fla. 1st DCA 2009), review granted, 11 So. 3d 943 (Fla.2009), Appellant argues that the trial court fundamentally erred in instructing the jury that to prove manslaughter by act, the State had to show that he intentionally caused the death of the victim. The State concedes error on this point. However, we find the instant case distinguishable from Montgomery, and because this Court does not accept improper concessions of error by the State in criminal cases,[1] we affirm.
Appellant was charged with first-degree murder. At trial, the court instructed the jury on second-degree murder and manslaughter as lesser-included offenses as follows:
To prove the crime of manslaughter the State must prove the following two elements beyond a reasonable doubt: Number one, [the victim] is dead; 2A, *802 Frank Salonko intentionally caused the death of [the victim] or, 2B, the death of [the victim] was caused by the culpable negligence of Frank Salonko.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.
I will now define culpable negligence for you.
Each of us has a duty to act reasonably toward others. If there is a violation of that duty without any conscious intent to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care towards others.
In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury.
Based on these instructions, the jury returned a verdict for second-degree murder, rather than manslaughter or first-degree murder.
In Montgomery, the defendant was charged with first-degree murder, and the trial court instructed the jury on second-degree murder and manslaughter by act as lesser-included offenses. ___ So.3d at ___. Although the instruction the trial court gave was the standard instruction at the time, we found it erroneous because it stated that an element of manslaughter by act was that the defendant "intentionally caused the [the victim's] death." Id. at ___, ___. We viewed this language as requiring the jury to find that the defendant intended to kill the victim in order to convict him of manslaughter by act. Id. at ___ - ___. Bound by this Court's prior opinion in Hankerson v. State, 831 So. 2d 235 (Fla. 1st DCA 2002), we held that the addition of the intent-to-kill element to manslaughter by act was fundamental error because the jury's finding that the defendant did not intend to kill the victim, as evidenced by the second-degree murder verdict, precluded it from returning a verdict for manslaughter under the instructions given. Montgomery, ___ So.3d at ___. We explained that the fundamental nature of this error resulted from the fact that because the jury found that the defendant did not intend to kill the victim, the instructions the trial court gave essentially directed a verdict for second-degree murder, precluding the jury from choosing the lesser-included offense one step removed. Id. This situation does not exist when the trial court gives an instruction on manslaughter by culpable negligence. See Nieves v. State, 22 So. 3d 691, 692 (Fla. 2d DCA 2009) (distinguishing Montgomery where the trial court gave an instruction on manslaughter by culpable negligence).
*803 Here, the trial court's erroneous instruction did not interfere with the jury's deliberative process in a way that tainted the underlying fairness of the entire proceeding because it instructed the jury on manslaughter by culpable negligence. Although the jury found, by its second-degree murder verdict, that Appellant did not intend to kill the victim, based on the instructions given, it could have returned a verdict for the lesser-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill. Unlike in Montgomery, the jury in the instant case was not directed to choose the greater offense simply because the lesser-included offense would have improperly required a more depraved level of intent. Therefore, Appellant has not shown that fundamental error occurred under this Court's opinion in Montgomery. Because Appellant has shown no reversible error, we AFFIRM.
KAHN, LEWIS, and WETHERELL, JJ., concur.
NOTES
[1] See Fichera v. State, 688 So. 2d 453, 453 (Fla. 1st DCA 1997) (affirming in part, despite the State's concession of error); accord Strickland v. State, 437 So. 2d 150, 151-52 (Fla. 1983) (acknowledging that it was erroneous to accept an improper concession of error in a prior case). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581170/ | 147 N.W.2d 358 (1966)
MINNEAPOLIS FEDERATION OF TEACHERS LOCAL 59, AFL-CIO, Respondent,
v.
Peter OBERMEYER, State Labor Conciliator, and Board of Education, Special School District No. 1 of Minneapolis, Respondents,
City of Minneapolis Education Association, Appellant.
BOARD OF EDUCATION OF SPECIAL SCHOOL DISTRICT NO. 1, Respondent,
v.
MINNEAPOLIS FEDERATION OF TEACHERS LOCAL 59, AFL-CIO, Respondent,
City of Minneapolis Education Association affiliated with Minnesota Education Association, Appellant.
Nos. 40477 & 40478.
Supreme Court of Minnesota.
December 9, 1966.
*360 Howard, Peterson, LeFevere, Lefler & Hamilton, Minneapolis, Sanborn, Jackson & Rice and William E. Holcomb, St. Paul, for appellant.
Donald C. Savelkoul, Fridley, Roger A. Peterson, Minneapolis, Peterson & Popovich and James E. Knutson, St. Paul, amicus curiae.
Robert W. Mattson, Atty. Gen., John Casey, Deputy Atty. Gen., for Obermeyer.
Vennum, Newhall, Ackman & Goetz and Melvin I. Orenstein, Minneapolis, for Board of Education of School Dist. No. 1.
Samuel I. Sigal, Minneapolis, for Minneapolis Federation of Teachers.
OPINION
MURPHY, Justice.
These are appeals from judgments entered in declaratory judgment actions. Error is assigned in the trial court's holding that L.1965, c. 839, § 7 (Minn.St. 179.572), which excepts teachers from the application of the rest of c. 839, is unconstitutional and severable. Chapter 839 amended and added new provisions to the so-called Public Employees Labor Relations Act (Minn.St. 179.50 to 179.58).
The parties involved in this appeal are rival groups of public school teachers. Respondent Minneapolis Federation of Teachers, Local 59, is a trade-union-oriented organization affiliated with the AFL-CIO and hereinafter referred to as "Local 59." Appellant, City of Minneapolis Education Association, a nonunion organization, is *361 affiliated with the Minnesota Education Association and the National Education Association. These two organizations have deep and irreconcilable differences which give rise to a conflict between them as to the manner in which teachers should communicate and treat with school boards on subjects relating to wages and conditions of employment.[1] We gather from the extended arguments submitted, the original files which constitute the record, briefs of the parties, and briefs amicus curiae that both groups seek the same objective but differ as to means. A review of the attempts of public school teachers to attain some satisfactory basis for meaningful communication with school boards by which their demands might be made known, considered, and resolved in a manner consistent with individual dignity and the ethics of their calling is a study of frustration.
Some background references should be noted. The threat of a strike as a means of dealing with employer-employee relationships in the public educational system came to the surface in January 1951, when the Board of Education of the city of Minneapolis sought an injunction restraining a threatened strike by a union composed of school maintenance employees. Board of Education of City of Minneapolis v. Public School Employees' Union, 233 Minn. 144, 45 N.W.2d 797, 29 A.L.R. 2d 424. The disposition of that dispute turned upon the interpretation of a procedural statute and contributed nothing to the law with which we are here concerned aside from raising a spectre of the dangers of strikes by public employees, a subject which the legislature promptly acted upon at its next session. By L.1951, c. 146, the legislature adopted an act "to prohibit strikes by certain public employees; to provide certain disciplinary action with respect thereto; to provide for the adjustment of grievances and reporting the facts relative thereto; and to provide conditions of reemployment." This act was amended by L.1957, c. 789, which provided that public employees "shall have the right to form and join labor organizations" and prohibited intimidation or coercion in such activity. Apparently, the act was also intended to aid public employees in their dealings with heads of government agencies. The act comprehended that the services of the labor conciliator should be utilized to investigate controversies and to ascertain representatives of employee groups by means of a secret ballot. By our decision in Richfield Federation of Teachers v. Richfield Education Assn. 263 Minn. 21, 27, 115 N.W.2d 682, 686, this provision of the act was found to be lacking in vitality. We there held that "the Conciliator has no implied authority to specify units of representation for purposes of implementing the provisions of the act governing meetings between public employers and public employees under § 179.52."
The next development occurred when President Kennedy promulgated an executive order on January 17, 1962, on "Employee-Management Cooperation in the Federal Service." Exec. Order No. 10988, 27 F.R. 551. This order provided definite means of communication between associations of Federal government employees and agency heads, which would make it possible to focus public attention upon the merits of employee claims. Apparently, the Minnesota Legislature intended that the 1965 Public Employees Labor Relations Act should be patterned after the proposals contained in President Kennedy's executive order. In amending prior laws on the subject, the legislature in L.1965, c. 839, recognized in its statement of policy that "adequate means should be provided for preventing controversies between governmental agencies and public employees, and for resolving them when they occur." Because the nature of governmental service required "special limitations upon public employment," it was incumbent upon the *362 state to provide "orderly procedures for the participation by public employees and their representatives in the formulation of personnel policies and plans to insure the fair and considerate treatment of public employees, to eliminate employment inequities, and to provide effective means of resolving questions and controversies with respect to terms and conditions of employment." The legislature expressed the policy that governmental agencies should "enter into discussions with affirmative willingness to resolve grievances and differences" and that there was a "mutual obligation to endeavor in good faith to resolve grievances and differences * * * within the framework of laws and charter provisions." It is unnecessary to go into the various provisions of c. 839 except to say that in substance it provides for a collective bargaining arrangement for meaningful negotiations subject to the limitation that it does not insure binding arbitrationa limitation inherent in the nature of governmental employment. The act reaffirms denial of the right to strike; affirms the right of public employees to form and join labor or employee organizations; and provides for the election of a representative who may bargain and treat with agency heads as the representative of all employees if the organization represents a majority of the employees.
The part of c. 839 which gives rise to this controversy is § 7 (Minn.St. 179.572), which states that the act shall not apply to public school teachers as defined in Minn.St. 125.03, subd. 1. The reason for this exception was that the legislature intended to make special provision for the manner in which school teachers should treat with school boards with relation to questions growing out of their employment. Simultaneously with the enactment of c. 839, the legislature enacted a bill which provided teachers with grievance and representation machinery differing from that provided for other public employees. The bill, House File 1504, was entitled "A BILL FOR AN ACT RELATING TO THE TEACHING PROFESSION AND PROVIDING FOR THE SETTLEMENT OF DISPUTES BETWEEN SCHOOL BOARDS AND CERTIFICATED SCHOOL PERSONNEL IN THE PUBLIC SCHOOLS OF THIS STATE." This bill expressed the policy that it would be in the best interests of public education "that a legal procedure be established on a professional level for the orderly, equitable and expeditious settlement of * * * disputes." The bill affirmed the right of teachers "to join and form organizations" to deal with the terms and conditions of professional public education and their right "not to join and form such organizations." It affirmed the right of certificated school personnel "to designate representatives for the purpose of meeting with the school board or any committee thereof in an effort to reach a solution to problems" arising from terms and conditions of employment. It recognized the right of representatives to meet and to confer "in good faith" with school boards or their committees and recognized that the parties should make every reasonable effort to resolve disputes. It imposed upon the school board the duty to provide an opportunity for hearing upon requests and delegated to the boards the right to establish procedures "for carrying on meetings and for reaching agreement." The bill provided for a form of appeal to the commissioner of education under circumstances where a school board would refuse to meet and confer. In the event of failure to reach a settlement, the commissioner of education was to "act to resolve such disputes by appointing a mediator who shall be qualified, trained and experienced in the field of public education." The bill delegated to the commissioner the power to "prescribe rules regulating the time and manner" of taking such appeals. The bill provided that if conferences with the mediator were not satisfactory, at the request of a majority of the "certificated school personnel" an adjustment panel should be constituted to hear the dispute.
The bill passed both the house and the senate, but was vetoed by the governor. Both it and c. 839 were part of a package *363 relating to an entire field, but, because of the governor's veto, only one became law. In his letter informing the secretary of state that he would not sign the bill, the governor said:
"Since good results were achieved by the non-partisan committee appointed by me to recommend improvements to the public employees labor relations law, I see no reason that a similarly constituted committee could not work out answers to the problems with which we are faced. I will appoint such a committee and charge it with the responsibility of investigating these problems and making recommendations to the 1967 session of the Legislature."
With the legislation in this freak posture, where one of two concurrent bills relating to the entire field of public employees labor relations was vetoed and the other signed into law, Local 59 insisted upon proceeding to have elections held and a representative determined to negotiate in behalf of the school teachers pursuant to the provisions of c. 839. In the proceedings before the lower court, it was held that this could be done. The trial court held that § 7 was unconstitutional as an unreasonable and arbitrary classification of teachers separate and apart from other state employees and concluded therefore that in spite of the clear intent of the legislature, the governor's veto of the concurrent bill fortuitously brought the teachers within the compass of c. 839.
1. Since we hold that § 7 is a constitutional classification, it is unnecessary for us to discuss the issue of severability (Minn.St. 645.20) upon which the decision of the lower court rests. If there is anything clear from the standpoint of legislative intent and contemporary history of this legislation, it is that the teachers were not to be included in the provisions of c. 839 and that they were to be governed by other provisions. It may be said by way of dicta that even if it is assumed that § 7 is unconstitutional, we have been cited to no authority to the effect that the court may extend the application of the statute beyond the limits of its provisions. To construe a statute so as to extend its provisions to cover that which is specifically excluded by the legislature seems to us to be an exercise of lawmaking power which courts do not possess. 16 Am.Jur.2d Constitutional Law, § 192.
2. The principal issue presented is raised by the contention that § 7 is unconstitutional as denying to public school teachers employed by boards of education the statutory benefits granted to all other employees, including teachers employed by the state university and state colleges. We find no definite rule of universal application to determine whether a particular classification is reasonable or unreasonable. It must be recognized that all legislation involves classification since the very idea of legislation implies distinctions and categories of one sort or another. The mere presence of inequality does not in itself determine the question of constitutionality. 16 Am.Jur.2d Constitutional Law, § 494; 3B Dunnell, Dig. (3 ed.) § 1669. The standards of the equal protection clause of the Fourteenth Amendment of the United States Constitution are the same as the standards of equality under art. 1, § 2, and art. 4, §§ 33 and 34, of the Minnesota Constitution. C. Thomas Stores Sales System, Inc. v. Spaeth, 209 Minn. 504, 297 N.W. 9.
When the legislature has determined that a sufficient distinction exists between two classes of persons to justify applying rules to one class which do not apply to the other, such determination is binding upon the courts unless it appears that the distinction is purely fanciful and arbitrary and that no substantial or logical basis exists therefor. Classification can never be a judicial question except for the purpose of determining, in a given situation, whether the legislative action is clearly unreasonable. In the matter of classification courts have viewed the action of the legislature with great liberality. Courts *364 are not to weigh the merits of a classification in the judicial balance and to reject it merely because they might favor a different standard. These principles are supported in numerous Minnesota authorities, including Fairview Hospital Assn. v. Public Bldg. Serv. Union, 241 Minn. 523, 64 N.W.2d 16; State ex rel. Ging v. Board of Education, 213 Minn. 550, 7 N.W.2d 544; Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71; Eldred v. Division of Employment and Security, 209 Minn. 58, 295 N.W. 412; State v. International Harvester Co., 241 Minn. 367, 63 N.W.2d 547, appeal dismissed, 348 U.S. 853, 75 S. Ct. 78, 99 L. Ed. 672; Arens v. Village of Rogers, 240 Minn. 386, 61 N.W.2d 508, appeal dismissed, 347 U.S. 949, 74 S. Ct. 680, 98 L. Ed. 1096; Dimke v. Finke, 209 Minn. 29, 295 N.W. 75; Anderson v. City of St. Paul, 226 Minn. 186, 32 N.W.2d 538; Fabio v. City of St. Paul, 267 Minn. 273, 126 N.W.2d 259; Kaljuste v. Hennepin County Sanatorium Comm., 240 Minn. 407, 61 N.W.2d 757; Williams v. Rolfe, 262 Minn. 284, 114 N.W.2d 671. It is unnecessary to discuss the numerous points of comparison and differences suggested by the opposing parties in support of their contentions. Our authorities support the proposition that the provisions of the State and Federal Constitutions which apply to classification of subject matter prohibit only unreasonable or arbitrary classification. Police and fire department employees have been recognized in separate classifications for various purposes. Fabio v. City of St. Paul, supra; Kellerman v. City of St. Paul, 211 Minn. 351, 1 N.W.2d 378. This court has repeatedly recognized the right of the legislature to treat classes of employees separately and differently for purposes of legislation in granting privileges or imposing burdens on members of the same general class. Fabio v. City of St. Paul, supra (police retirement); Kellerman v. City of St. Paul, supra (occupational diseases of firemen); Burns v. City of St. Paul, 210 Minn. 217, 297 N.W. 638 (police retirement); Kaljuste v. Hennepin County Sanatorium Comm., supra (workmen's compensation for public hospital employees who contract tuberculosis in the course of their employment).
It is well recognized that the legislature may classify professions, occupations, and businesses according to natural and reasonable lines of distinction, and if such legislation affects alike all persons of the same class, it is not an invalid classification. Legislation with reference to the teaching profession has generally been sustained as a valid classification. 16A C.J.S., Constitutional Law, § 496. The Supreme Court of Illinois has held that a classification of public school teachers as a distinct class for appropriate legislation "cannot be successfully challenged." Gorham v. Teachers' Retirement System, 27 Ill. 2d 593, 599, 190 N.E.2d 329, 332. The court said in Krebs v. Board of Trustees, 410 Ill. 435, 443, 102 N.E.2d 321, 325, 27 A.L.R. 2d 1434, 1441:
"The State legislature is charged with the duty of providing the residents of this State a free and public educational system. Such a system requires qualified and competent teachers. The legislature requires these teachers to have certain qualifications. The legislature, by tax laws, provides the means by which these teachers are paid during their teaching careers and thereby, at least indirectly, fixes the amount of their compensation. Under these circumstances, for the legislature to determine that the welfare of the public school system required that a system of retirement allowances be set up for them as a group does not seem unreasonable, and there seems ample justification to distinguish them as a class for that purpose."
In Minnesota, teachers have been treated as a separate group for the purpose of classification in numerous instances. Separate classification has occurred in the Teachers Tenure Act, Minn.St. 125.17. Public school teachers in school districts outside cities of the first class are covered by the Continuing Contract Law, § 125.12. Public school teachers in cities of the first class are included in local teacher retirement associations *365 established pursuant to §§ 354.15 to 354.23. Public school teachers outside cities of the first class come under §§ 354.05 to 354.14 and 354.31 to 354.61 of the Teachers Retirement Association Law. It should be noted that while the Continuing Contract Law and the Teachers Tenure Act of the cities of the first class apply to public school teachers, they do not apply to the University of Minnesota or state college faculty members. Public school teachers are required to be certificated under the Certification Act, § 125.03. On the other hand, the legislature has chosen to group other employees apart from public school teachers by the Civil Service Act, Minn.St. c. 43, which applies to state employees; the Veterans Preference Act, §§ 197.45 and 197.46; and the Public Employees Retirement Act, c. 353. Accordingly, it seems to us that the most persuasive argument in support of the constitutionality of L. 1965, c. 839, § 7, is that the legislature has historically treated teachers as a distinct classification, and this unique historical recognition is sufficient to classify the teachers for the purpose of this legislation.
Finally, we are committed to the principle that unless a law is unconstitutional beyond a reasonable doubt, it must be sustained. The burden of proof in this respect is on the party seeking to set the law aside. In re Taxes on Property of Cold Spring Granite Co., 271 Minn. 460, 136 N.W.2d 782; Williams v. Rolfe, supra. Under all the circumstances, including the past and contemporary history of the legislation before us, we cannot say that the claim that § 7 is unconstitutional has been sustained.
3. This brings us to the present status of the law as it bears upon the statutory rights of teachers with relation to bargaining or negotiation of wages and working conditions. As we view c. 839, it repeals prior laws dealing with public employee labor relations as it affects teachers, except §§ 179.51 and 179.53 to 179.56, which include the "no strike" section and provisions imposing sanctions in the event of strikes. Counsel for respondent school board suggests in his brief that c. 839 should be construed so as to preserve for teachers the provisions of Minn.St. 1961, § 179.52, which provided for an election to select representatives to meet with the school board. We fail to discern what purpose would be served by the innocuous provisions of that section which could not be attained by discussions or conferences conducted in good faith between the school board and representatives of the two teacher organizations. In any event, we are confronted here with a situation where c. 839 covered some of the same subject matter as that dealt with in the previous act. It revised the former method of procedure and provided a different manner of conducting negotiations with heads of state agencies. It is well established that "[w]hen a law purports to be a revision of all laws upon a particular subject, or sets up a general or exclusive system covering the entire subject matter of a former law and is intended as a substitute for such former law, such law shall be construed to repeal all former laws upon the same subject." State v. Elam, 250 Minn. 274, 281, 84 N.W.2d 227, 232; 17 Dunnell, Dig. (3 ed.) § 8928.
As we view the provisions of c. 839, it covers the whole subject matter of those earlier provisions of the Public Employees Labor Relations Act which it amended; plainly shows that it was intended as a substitute for them; and consequently operates as a repeal of them. State v. Roselawn Cemetery Assn., 259 Minn. 479, 108 N.W.2d 305.
4. It is also argued that c. 839 should be construed so that with respect to teachers the provisions of the Public Employees Labor Relations Act amended by c. 839 remain in effect. It is asserted that if the provisions of the former act are construed as having been repealed, public school teachers will be left with the denial of the right to strike without the benefit of the right to join labor or other organizations.[2]*366 On this point it should be observed that provisions relating to the denial of the right to strike and the affirmation of the right to join labor organizations neither added to nor detracted from existing rights of state employees. Even in the absence of a statute, we know of no authority which gives a public employee the right to strike. In Norwalk Teachers' Assn. v. Board of Education, 138 Conn. 269, 274, 83 A.2d 482, 484, 31 A.L.R. 2d 1133, 1138, President Franklin D. Roosevelt, who was certainly no enemy of labor unions, is quoted as saying:
"* * * [A] strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable."
Nor did repeal of the statute affirming the right to join labor unions or other associations operate to their prejudice. The law in its present posture does not prohibit membership in a labor union. The right of freedom to assemble granted under the First Amendment permits teachers to join unions or associations organized to promote their mutual interest. Obviously, membership in a union which is committed to the use of a strike as a weapon in negotiations with the school board violates the spirit of the law and according to some authorities would justify prohibitory sanctions. Annotation, 31 A.L.R. 2d 1142, 1159 to 1164. In the absence of a prohibitory statute or regulation, no good reason appears why school teachers should not organize as a labor union. Norwalk Teachers' Assn. v. Board of Education, supra; 1961 Wis.L.Rev. 609.
We gather from the briefs that there is no serious controversy on these points. The teachers' problem arises from the denial of proper means for communication. The right to join a union or other organization is of little benefit if there are no means by which teachers can communicate with school boards through representatives of such organizations.
5. The next point raised is whether the school board has implied power to conduct an election and bargain with elected representatives of teacher organizations. The school board possesses only such powers as are granted by statute. Board of Education v. Sand, 227 Minn. 202, 34 N.W.2d 689. There is no authority, either express or implied, by which the school board can hold an election for the purpose of designating an exclusive representative of the teachers. This subject is dealt with in an extensive annotation contained in 31 A.L.R. 2d 1142. The decisions generally hold that the manner in which public authorities must determine the wages, hours, and working conditions of public employees is governed entirely by the Constitution, statutes, municipal charters, civil service rules and regulations, and resolutions setting out the authority of the public employer. Public employees do not have collective bargaining rights in the same sense that private or industrial employees enjoy them. There must be some statutory provision authorizing collective bargaining. The reason is that the public employer cannot abdicate or bargain away continuing legislative discretion and is not authorized to enter into collective bargaining agreements without specific authority. The fact that statutory provisions grant the right of collective bargaining to employees in private industry does not confer such right on public employers and employees. Richfield Federation of Teachers v. Richfield Education Assn., supra; Annotation, 31 A.L.R. 2d 1170.
*367 There is nothing to prevent the heads of governmental agencies from meeting with, or discussing wages, hours, and conditions of employment with, groups or individuals representing groups of the employee class. The question of collective bargaining for public employees generally, and school teachers particularly, was considered in Norwalk Teachers' Assn. v. Board of Education, supra. The Norwalk teachers' association had a membership consisting of all but two of the teachers in the school system. In the absence of express statutory procedures, the association and the board had in fact entered into an agreement. In this context the court laid down its rules as to recognition and collective bargaining in this statement (138 Conn. 277, 83 A.2d 486, 31 A.L.R. 2d 1140):
"* * * There is no objection to the organization of the plaintiff as a labor union, but if its organization is for the purpose of `demanding' recognition and collective bargaining the demands must be kept within legal bounds. What we have said does not mean that the plaintiff has the right to organize for all of the purposes for which employees in private enterprise may unite, * * *. Nor does it mean that, having organized, it is necessarily protected against unfair labor practices * * * or that it shall be the exclusive bargaining agent for all employees of the unit, * * *. It means nothing more than that the plaintiff may organize and bargain collectively for the pay and working conditions which it may be in the power of the board of education to grant."
The court there held that it was permissible to have a teachers' organization recognized as a representative as long as it was not the exclusive representative for teachers.
It would appear that even without express statutory authority, there is nothing to prevent collective bargaining when it is entered into voluntarily and no prohibitory state statute exists. Even though courts may sanction voluntary bargaining in the absence of statute, satisfactory results can hardly be expected.[3] A statute is needed to spell out procedures to be used in the determination of majority representatives in an appropriate unit. But this is a legislative concern. It may be assumed from the statement expressed in the governor's veto message that H.F. 1504, or some law similar to it, will at the next legislative session provide teachers with rights correlative to those given to other employees of the state. In the meantime, there is nothing to prevent the school board from meeting with representatives of both teacher groups. Certainly, in the past the school board has not dealt individually with its more than 3,000 teachers. Until the legislature provides a better method, the parties must resort to the former methods employed to solve their differences.
Reversed.
THOMAS GALLAGHER, Justice (dissenting).
1. The right to strike is not involved in this case. Respondent Minneapolis Federation of Teachers, Local 59, AFL-CIO, in a separate action brought in the district court was enjoined from engaging in any strike. The federation did not appeal from this injunction and no issue is now presented involving the constitutionality of Minn.St. 179.51, prohibiting strikes; or of §§ 179.54 and 179.55, imposing forfeitures and penalties upon public employees who strike.
It is undisputed that some 1,613 employees of Minneapolis Special School District No. 1, including clerks, stenographers, nurses, building tradesmen, part-time teacher aides, janitor-engineers, and others, are covered by the 1965 Public Employees Labor Relations Act, L.1965, c. 839. In addition, it is not disputed that some 6,500 faculty members of the University of Minnesota and several thousand faculty *368 members of the five state colleges and all classified employees of the state's public school boards are included within the act. But by virtue of c. 839, § 7 (Minn.St. 179.572), all public elementary and high school teachers are excluded from its terms.
2. In my judgment this exclusion constitutes a discrimination against such public elementary and high school teachers and is therefore unconstitutional. The majority seeks to uphold the validity of the exclusion upon the theory that "[a] statute should not be construed so as to extend its provisions to cover that which is specifically excluded by the legislature." While this principle is well established, it can have no application where the constitutionality of the specific exclusion is in issue. Certainly if the exclusion is of itself unconstitutional, it cannot be upheld upon the theory that the language creating it is clear and definite.
The Minnesota Public Employees Labor Relations Act, L.1965, c. 839, provides a mechanism whereby all public employees, except elementary and high school teachers, may participate in the formulation of personnel policies governing their employment. The purposes of the act and the public policy are defined in § 1 (Minn.St. 179.50) as follows:
"Unresolved disputes in the public service are injurious to the public, the governmental agencies, and public employees; therefore, adequate means should be provided for preventing controversies between governmental agencies and public employees and for resolving them when they occur. Because the paramount interest of the public and the nature of governmental processes make it necessary to impose special limitations upon public employment, it is incumbent upon governmental agencies to provide orderly procedures for the participation by public employees and their representatives in the formulation of personnel policies and plans to insure the fair and considerate treatment of public employees, to eliminate employment inequities, and to provide effective means of resolving questions and controversies with respect to terms and conditions of employment. It is the public policy of the state of Minnesota that governmental agencies, public employees and their representatives shall enter into discussions with affirmative willingness to resolve grievances and differences. Governmental agencies and public employees and their representatives shall have a mutual obligation to endeavor in good faith to resolve grievances and differences relating to terms and conditions of employment, acting within the framework of laws and charter provisions, and giving consideration to personnel policies, position classification and compensation plans, and other special rules governing public employment."
Under these clearly expressed purposes and public policies I find no justification for differentiating between the benefited public employees and the excluded public school teachers. Many of the former are lawyers, doctors, professors, assistant professors, instructors, and administrators employed by the university and by the state colleges. They are professionals who may or may not have an interest in utilizing the protection and rights afforded by the act, but if they desire its protection, they may seek it. What valid reason is there for excluding public school teachers from these same benefits? Certainly they are in the same professional class as are teachers and instructors employed by the university or other state educational institutions.
To justify the exclusion of any particular group of citizens from the benefits of a legislative enactment, it must be shown that there is a substantial difference or distinction between the group excluded and the groups covered by the enactment. As stated in State ex rel. Bd. of Courthouse & City Hall Com'rs v. Cooley, 56 Minn. 540, 550, 58 N.W. 150, 153:
"The fundamental rule is that all classification must be based upon substantial *369 distinctions, which make one class really different from another. * * * [I]t must be based upon some natural reason,some reason suggested by necessity, by some difference in the situation and circumstances of the subjects placed in the different classes, suggesting the necessity of different legislation with respect to them. By necessity is meant practical, and not absolute, necessity; but the characteristics which will serve as a basis of classification must be substantial, and not slight or illusory." (Italics supplied.)
3. Chapter 839 created a new public policy which made sweeping changes in the laws relative to public employees by establishing for the first time certain rights and privileges for them. Obviously, the enactment was based upon the legislature's carefully considered conclusion that public employees, including public school teachers, like their counterparts in private enterprise are subject to the same vicissitudes of rising prices, accident, illness, and old age. Everywhere people are seeking to assert a measure of control over the conditions under which they work and live. By its enactment of c. 839, the legislature recognized this and the right of some 160,000 public employees of the state to be represented by labor organizations of their choice in matters pertaining to their employment contracts. The exclusion of public school teachers from the benefits of this enactment, while at the same time leaving them subject to the forfeitures and penalties provided for in other statutory enactments now in effect, in my judgment constitutes a discriminatory treatment of this group which is entirely without a valid basis.
4. The majority seeks to justify this special classification for public school teachers on the ground that the "legislature has historically treated teachers as a different classification," citing Minn.St. 125.17; 125.12; 354.05 to 354.14; 354.31 to 354.61; 125.03; the Civil Service Act, Minn.St. c. 43; the Veterans Preference Act, §§ 197.45 and 197.46; and the Public Employees Retirement Act, c. 353, as statutes illustrative of this. While these statutes demonstrate that teachers, like most classifications of public employees, have working conditions distinct to them with respect to tenure, continuing contract rights, retirement benefits, and the like, if the validity of statutory classifications under a public employees labor relations act is to be tested by such factors, then the same distinctions as applied to hundreds of other classifications of public employees, each with distinctive working conditions, would justify the exclusion of any one of such classifications from the benefits of the act, and the possible loss of the benefits to be derived from a general enactment covering all public employees.
5. It also seems clear to me that the exclusionary provision embodied in section 7 of the act constitutes a violation of the Fourteenth Amendment of the Federal Constitution, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Under this amendment, it is well settled that all residents of a state have the right to equal treatment and that a state must act without discrimination as to any of them. While a state is not under a duty to provide specific benefits, privileges, or services for its people, if it chooses to do so it must do so on an equal basis for all of them. Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208; McCabe v. Atchison, T. & S.F. Ry. Co., 235 U.S. 151, 161, 35 S. Ct. 69, 71, 59 L. Ed. 169, 174. As stated in Quaker City Cab Co. v. Commonwealth of Pennsylvania, 277 U.S. 389, 400, 48 S. Ct. 553, 554, 72 L. Ed. 927, 929:
"* * * The equal protection clause does not detract from the right of the State justly to exert its * * * power or prevent it from adjusting its legislation to differences in situation or forbid classification in that connection, "but it *370 does require that the classification be not arbitrary but based on a real and substantial difference having a reasonable relation to the subject of the particular legislation.'" (Italics supplied.)
Here I can find no real and substantial difference between public elementary and high school teachers, and many of the other classifications of public employees now covered by c. 839.
6. Collective bargaining between public employees and local, state, or Federal government agencies is no longer a novelty. Under presidential executive order,[1] 531 exclusive recognitions covering over 700,000 Federal workers were given by Federal agencies to various unions representing Federal employees by November 1965 and it was recognized that such workers were authorized to bargain collectively through unions of their choice. Weisenfeld, Public EmployeesFirst or Second Class Citizens, 16 Labor L.J. 685, 691. The American Federation of Teachers, AFL-CIO, with which the respondent local is affiliated, has conducted collective bargaining elections in school systems in Philadelphia, New York, Detroit, and Cleveland, as well as in numerous smaller cities and communities. The Minnesota Legislature by its enactment of c. 839 has recognized this trend and adopted it as a part of the public policy of the state. No reason whatever exists for excluding public school teachers from this public policy, or for granting other public employees of a similar professional character rights and privileges denied to public school teachers.
In my judgment § 7 of c. 839 is unconstitutional. Such a determination, of course, would not invalidate the remaining provisions of the act. State ex rel. Foster v. Naftalin, 246 Minn. 181, 74 N.W.2d 249; Hunter v. Zenith Dredge Co., 220 Minn. 318, 19 N.W.2d 795.
NOTES
[1] Procedural aspects of this litigation are discussed in a recent decision of this court. Minneapolis Federation of Teachers v. Obermeyer, 275 Minn. 46, 144 N.W.2d 789.
[2] Authorities dealing with this area of the law are collected and discussed in numerous articles, including Note, 45 Minn.L.Rev. 249; Anderson, Labor Relations in the Public Service, 1961 Wis.L.Rev. 601; Note, 55 Col.L.Rev. 343; Note, 75 Harv.L.Rev. 391; and Seitz, Legal Aspects of Public School Teachers Negotiating and Participating in Concerted Activities, 49 Marquette L.Rev. 487.
[3] Seitz, supra, 498.
[1] Exec.Order No. 10988, 27 F.R. 551. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579992/ | 392 F. Supp. 375 (1975)
PPS, INC., Plaintiff,
v.
JEWELRY SALES REPRESENTATIVES, INC., et al., Defendants.
No. 74 Civil 3789.
United States District Court, S. D. New York.
March 11, 1975.
*376 *377 Alfred W. Vibber, Arthur Klein, Klein & Levine, New York City, for plaintiff; Arnold B. Christen, Fisher, Christen & Sabol, Washington, D. C., of counsel.
Ernest F. Marmorek, New York City, for defendants.
OPINION
EDWARD WEINFELD, District Judge.
Plaintiff PPS, Inc. ("PPS") claims copyright, trademark, and "dress of goods" rights in a line of "I Like You" products manufactured and sold by its licensee, Rosecraft, Inc. The line of *378 products includes costume jewelry in the shape of an apple and bearing the mark "I Like You," and other products containing the apple and "I Like You" design. PPS alleges that the defendants in their various capacities have engaged and intend to engage in the manufacture and sale of a line of costume jewelry copied from its "I Like You" line, and seeks injunctive relief and monetary damages for copyright and trademark infringement, and for unfair competition.
Plaintiff PPS moves for a preliminary injunction, and defendant Nu-Style Company, Inc. ("Nu-Style") moves to dismiss the complaint for lack of personal jurisdiction and improper venue, or to transfer the action under 28 U.S.C., section 1404(a), to the District of Massachusetts.
Nu-Style's Motion to Dismiss for Lack of Jurisdiction and Improper Venue
Only Nu-Style urges lack of jurisdiction and improper venue. The other defendants, Jewelry Sales Representatives, Inc. ("Jewelry Sales"), Aberbach, and Puccini Jewelry Co. ("Puccini"), concede jurisdiction and venue.
Plaintiff claims to have effected service on Nu-Style by serving Aberbach and Jewelry Sales as its "managing or general agents"[1] in this district, and also by personal service in Massachusetts upon Nu-Style's president.[2]
The question of Nu-Style's amenability to jurisdiction, service of process, and venue in this district turns largely upon the relationship between Nu-Style and Jewelry Sales. Jewelry Sales, of which Aberbach is its president, director, and controlling shareholder, is a New York corporation and conducts its business in this district. It is the exclusive distributor or sales representative for costume jewelry manufactured by Nu-Style.[3] Jewelry Sales does not buy the jewelry and resell it; rather, it solicits customers, shows them the items, takes the orders, and sends the orders to Nu-Style, which manufactures the items, ships them to the customers, and bills the customers directly. Jewelry Sales does not make any binding commitments to sell; Nu-Style decides whether to accept the orders forwarded by Jewelry Sales and whether to extend credit. Nu-Style also controls the prices: while Jewelry Sales occasionally gives a customer a small discount to induce it to buy, Nu-Style has the right to refuse the order or notify the customer of the acceptable price. In addition to taking orders for Nu-Style, Jewelry Sales provides showroom space for Nu-Style's products. For all these services, Jewelry Sales is paid a commission of 7½%. Defendant Aberbach sums up the relationship of Jewelry Sales to Nu-Style as follows: "We [Jewelry Sales] are strictly sales representatives, nothing more and nothing less, subject to anything they may tell us to do."
The responsibilities assumed by Jewelry Sales in its position as exclusive sales representative for Nu-Style are sufficient, in this court's view, to warrant the assumption that notice to Jewelry Sales would be effective notice to Nu-Style, and to justify the conclusion that Jewelry Sales is a "managing or general agent" within the meaning of Rule 4(d)(3) of the Federal Rules of Civil Procedure.[4] If, then, Nu-Style is *379 amenable to jurisdiction, service upon Jewelry Sales is sufficient to subject it to the court's jurisdiction. In addition, if, as the court hereafter concludes,[5] Nu-Style is amenable to the "long-arm" jurisdiction of the New York courts, personal service of its president in Massachusetts is sufficient to enable this court to acquire jurisdiction over Nu-Style.[6]
In determining Nu-Style's amenability to jurisdiction, the court is faced at the outset with the question whether amenability to personal jurisdiction on the copyright claim is to be tested by state or federal law. While the Second Circuit has specifically left open the question whether state of federal jurisdictional principles are applicable in federal question litigation,[7] several courts, relying on language of the Supreme Court in Angel v. Bullington,[8] have resolved the question in favor of federal law.[9] Federal law appears to be more appropriate, particularly with respect to a copyright claim, over which the subject matter jurisdiction of the federal courts is exclusive.
In this case, the view of federal law taken by most courts that have applied a federal standard would permit jurisdiction over Nu-Style. Nu-Style's contacts with the State of New York[10] are sufficient to satisfy the due process standards of International Shoe Co. v. Washington[11] and its progeny, and valid service was made upon Jewelry Sales as managing agent under Rule 4(d) (3).
It is not necessary, however, to rely solely on any such federal standard of amenability to jurisdiction, since Nu-Style is also subject to personal jurisdiction under New York's "long-arm" statute, C.P.L.R., section 302, which provides in pertinent part:
"(a) Acts which are the basis of jurisdiction.
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state; or
*380 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce . . .." [emphasis added]
Whether Nu-Style is amenable to jurisdiction under this provision depends upon whether Aberbach and Jewelry Sales are "agents" whose activities are attributable to Nu-Style for jurisdictional purposes. A formal agency relationship is not necessary to impute to a non-resident defendant for jurisdictional purposes the activities of another.[12] In determining whether a local sales representative like Jewelry Sales is for jurisdictional purposes an "agent" whose activities are attributable to the manufacturer, rather than an independent entity whose activities are not so attributable, a significant factor is the degree of control that the manufacturer retains to accept or reject orders secured by the local representative, to set the terms of the sale, and to establish the conditions of payment.[13] The court is of the view that Nu-Style maintained sufficient control over sales activities in which Jewelry Sales was involved,[14] that the activities of Jewelry Sales within the State of New York are properly attributable to Nu-Style, and that Nu-Style is properly held to have transacted business in New York "through an agent."[15] Since the various causes of action in this case arose out of that transaction of business, Nu-Style is subject to personal jurisdiction under section 302(a)(1).
Since the court has concluded that the activities of Jewelry Sales within the State of New York are attributable to Nu-Style for jurisdictional purposes, Nu-Style is also subject to personal jurisdiction under section 302(a)(2) by virtue of the commission of tortious acts within the state.[16] In addition, Nu-Style is subject to long-arm jurisdiction under section 302(a)(3)(i). Its manufacture of the allegedly infringing articles in Massachusetts and its shipping them into the state for distribution *381 constitute the commission of a "tortious act without the state causing injury to person or property within the state," and Nu-Style regularly solicits business and engages in other persistent conduct in New York through Jewelry Sales.
The venue provision relating to copyright actions, 28 U.S.C., section 1400(a), provides that such actions "may be instituted in the district in which the defendant or his agent resides or may be found." Since Nu-Style's agent, Jewelry Sales, maintains its office in Manhattan, there can be no question that it is found in this district. Venue is therefore proper as to Nu-Style.[17]
Nu-Style's Motion to Transfer
As an alternative to its motion to dismiss, Nu-Style moves to have this case transferred to the District of Massachusetts pursuant to 28 U.S.C., section 1404(a), which permits a transfer of a civil action "to any other district . . . where it might have been brought." It is not at all clear that this action could have been brought in the District of Massachusetts, since it does not appear that jurisdiction and venue exist in Massachusetts as to Jewelry Sales, Aberbach, and Puccini. But apart from this, there is no sufficient showing to warrant relief under section 1404(a) for the convenience of parties and witnesses. The motion to transfer is denied.[18]
Plaintiff's Motion for a Preliminary Injunction
Copyright Claims: Turning to the merits of plaintiff's request for preliminary relief, the court first considers the claims of copyright infringement. Plaintiff has three certificates of registration from the Copyright Office: one for a published book entitled "I Like You & Design" the design consisting of the apple and the words "I Like You"; a second for a work of art (sculpture) entitled "I Like You," consisting of a 3-dimensional design based on the original 2-dimensional print; and a third for a reproduction of a work of art, entitled "I Like You & Design," consisting of a drawing on a T-shirt, the design for which was based on the original copyrighted work.
Plaintiff is entitled to a preliminary injunction if it establishes a prima facie case of copyright infringement; it need not provide detailed proof of irreparable harm.[19] A prima facie case of infringement can generally be established by proof of (1) ownership of a valid copyright; and (2) copying by the alleged infringer, which can be inferred from evidence of access and substantial similarity between the copyrighted material and the alleged infringer.[20]
Plaintiff's certificates of registration suffice to prove plaintiff's ownership of valid copyrights, in the absence of a challenge by the defendants.[21]*382 The defendants do claim that the copyrights are invalid because plaintiff's design lacks creativity. But the required level of creativity is minimal,[22] as is the required level of originality.[23] Both requirements are clearly met in this case.[24] For purposes of its motion for a preliminary injunction, plaintiff has amply demonstrated its ownership of valid copyrights.
The defendant Nu-Style's access to plaintiff's design is established by the testimony of its president and its plant manager that Nu-Style's sample maker purchased one of plaintiff's "I Like You" pins and that they told the sample maker to "make up a line of jewelry keeping this idea in mind."
Plaintiff is entitled to a preliminary injunction only if the defendant has appropriated those characteristics of plaintiff's design that are entitled to copyright protection. That defendants' costume jewelry is similar to plaintiff's, and that it was based upon plaintiff's design is not by itself dispositive.[25] A copyright protects only the expression of an idea, not the idea itself.[26] As Judge Learned Hand noted, however: "Obviously, no principle can be stated as to when an imitator has gone beyond copying the `idea,' and has borrowed its `expression.' Decisions must therefore inevitably be ad hoc."[27] The distinction between an idea and its expression is largely one of degree,[28] and "[t]he guiding consideration in drawing the line is the preservation of the balance between competition and protection reflected in the patent and copyright laws."[29]
Two recent cases involving costume jewelry suggest the difference between an idea and its expression. In Herbert Rosenthal Jewelry Corp. v. Kalpakian,[30] the Ninth Circuit held that a jeweled bee pin is an "idea" that others are free to copy, and in Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co.,[31] our Circuit reached the same conclusion with respect to gold turtle pins. In the latter case, the Second Circuit observed that a manufacturer "cannot, by obtaining a copyright upon one design of a turtle pin, exclude all others from manufacturing gold turtle pins on the ground that they are substantially similar in appearance."[32] In this case, plaintiff cannot exclude all others from manufacturing costume jewelry in the form of an apple or other fruit, nor can it exclude all others from manufacturing such fruit jewelry with the words "I Like You" attached. Another manufacturer may produce such items so long as the visual effect of its items is sufficiently different from that of plaintiff's. In short, fruit jewelry with the words "I Like You" attached is an "idea" that the defendants were free to copy; it is only the plaintiff's particular expression *383 of that idea that enjoys copyright protection.
In determining whether one expression of an idea is a copy of another, the test has been stated generally to be "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work."[33] More specifically, the test for determining whether a design has been copied is whether an ordinary observer, who has not set out to detect disparities, "would be disposed to overlook them, and regard their aesthetic appeal as the same."[34]
The court is called upon to determine whether the plaintiff's copyrights, all of which incorporate the design of an apple with "I Like You" attached, are infringed by the defendants' products, which include a similar "I Like You" inscription attached to the following fruits:
(1) an apple (Exhibits N-1, N-2, N-3, N-8);
(2) a cherry (Exhibit N-4);
(3) a pear (Exhibits N-5, N-6, N-9);
(4) an orange (Exhibit N-7);
(5) a cluster of grapes (Exhibits N-10, N-12);
and
(6) a strawberry (Exhibit N-11).
For each of these six basic designs, Nu-Style manufactures four items earrings, a bracelet, a pin, and a pendant.
Applying the standards set forth above, the court finds that Nu-Style's apple items Exhibits N-1, N-2, N-3, and N-8 infringe plaintiff's copyrights. No lengthy list of similarities and differences is necessary to justify this finding.[35] It suffices to say that these items are strikingly similar in their essential features: a red apple pin; the words "I Like You" printed one above each other in gold on the upper portion of the apple where a bite was presumably taken from the apple; a gold border; a smooth enamel finish; and raised bars beneath the enamel finish evidently representing the reflection of light. The similarity of these features is immediately apparent and overshadows the differences between the plaintiff's and Nu-Style's products, which are discernible only upon closer examination. The similarities are such that the overall aesthetic effect is the same. In addition, the court finds that Exhibits N-4 (the cherry) and N-11 (the strawberry) infringe plaintiff's copyrights. While the fruits differ, their shape, color, and other essential features are so similar to plaintiff's design that the overall effect is the same.
Nu-Style's other items contain many of the same features as are present in plaintiff's apple jewelry. But the court finds in those other items sufficient distinguishing features primarily shape and color to warrant the withholding of a preliminary injunction against their manufacture and distribution.
Trademark and Unfair Competition Claims: In addition to its copyright claims, plaintiff asserts claims of unfair competition for infringement of its common law trademark, use of its unique dress of goods, and palming off. As to these common law claims, plaintiff is entitled to relief only upon a basic showing that certain nonessential elements of its products are so distinctive that they have become or will become[36] associated *384 in the public mind as identifying a particular manufacturer who thereby has earned a good will right thereto.[37] While there may be some confusion between plaintiff's and defendants' jewelry, there is no showing at this stage of the proceeding that the public has or will come to know and recognize products bearing the claimed design as those put out by the plaintiff. Indeed, the evidence so far presented provides no basis for an affirmative answer to "[t]he critical question of fact . . . whether the public is moved in any degree to buy the article because of its source."[38]
Put another way, plaintiff has not made a sufficient showing that the copied elements of its design are "nonfunctional" elements or mere indicia of origin, which may not be imitated, rather than "functional" elements, which contribute directly to the general sale of the product, and which may be freely copied.[39] A potential buyer of one of plaintiff's or defendants' items may be more motivated by the item's design and aesthetic features than by its source. And if this is so, those aesthetic features would be functional elements and could therefore be appropriated.[40] Plaintiff's showing in this regard is insufficient to warrant preliminary injunctive relief.[41]
In sum, defendant Nu-Style's motions to dismiss and to transfer are denied; plaintiff's motion for a preliminary injunction is granted only to the extent that the defendants are preliminarily enjoined from manufacturing and distributing Exhibits N-1, N-2, N-3, N-4, N-8, N-11, and any other costume jewelry embodying the designs of those exhibits.
NOTES
[1] Fed.R.Civ.P. 4(d)(3). See also N.Y.C.P. L.R. § 311(1) (McKinney's Consol.Laws 1972).
[2] Fed.R.Civ.P. 4(d)(7), (e), (f); N.Y.C.P. L.R. §§ 311(1), 313 (McKinney's 1972).
[3] The jewelry is manufactured by Nu-Style and shipped to the customers by Sir Richard Company. The jewelry bears the mark "SIR-R." Sir Richard is not a corporation, but simply a division of Nu-Style. Sir Richard's acts, therefore, are clearly attributable to Nu-Style, and the court will hereafter refer to Nu-Style to include its division Sir Richard.
[4] See Bomze v. Nardis Sportswear, Inc., 165 F.2d 33 (2d Cir. 1948); Diapulse Corp. v. Birtcher Corp., 362 F.2d 736, 739-41 (2d Cir.), cert. denied, 385 U.S. 801, 87 S. Ct. 9, 17 L. Ed. 2d 48 (1966); Boryk v. DeHavilland Aircraft Co., 341 F.2d 666, 668-69 (2d Cir. 1965); Lone Star Package Car Co. v. Baltimore & O. R.R., 212 F.2d 147, 152 (5th Cir. 1954).
[5] Text accompanying notes 12-16 infra.
[6] Fed.R.Civ.P. 4(d)(7), (e), (f); N.Y.C.P. L.R. §§ 311(1), 313 (McKinney's 1972).
[7] Aquascutum of London, Inc. v. S. S. American Champion, 426 F.2d 205, 211 n. 4 (2d Cir. 1970); Arrowsmith v. United Press Int'l, 320 F.2d 219, 228 n. 9 (2d Cir. 1963) (en banc). Cf. Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1339-40 (2d Cir. 1972).
[8] 330 U.S. 183, 192, 67 S. Ct. 657, 91 L. Ed. 832 (1947).
[9] Fraley v. Chesapeake & O. Ry., 397 F.2d 1 (3d Cir. 1968); Hartley v. Sioux City & New Orleans Barge Lines, Inc., 379 F.2d 354, 356 (3d Cir. 1967); Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 440 (1st Cir.), cert. denied, 385 U.S. 919, 87 S. Ct. 230, 17 L. Ed. 2d 143 (1966); Gkiafis v. Steamship Yiosonas, 342 F.2d 546, 549 (4th Cir. 1965); Lone Star Package Car Co. v. Baltimore & O. R.R., 212 F.2d 147 (5th Cir. 1954); Holt v. Klosters Rederi A/S, 355 F. Supp. 354, 358 (W.D.Mich., S.D.1973); Edward J. Moriarty & Co. v. General Tire & Rubber Co., 289 F. Supp. 381, 389-90 (S.D. Ohio, W.D.1967); Goldberg v. Mutual Readers League, Inc., 195 F. Supp. 778 (E.D.Pa. 1961). See Time, Inc. v. Manning, 366 F.2d 690, 694 (5th Cir. 1966); Ostow & Jacobs, Inc. v. Morgan-Jones, Inc., 178 F. Supp. 150 (S.D.N.Y.1959). But see Manchester Modes, Inc. v. Lilli Ann Corp., 306 F. Supp. 622 (S. D.N.Y.1969); Metropolitan Staple Corp. v. Samuel Moore & Co., 278 F. Supp. 85 (S.D. N.Y.1967).
[10] For comment on the anomaly of examining contacts with the state in applying a federal standard, see Edward J. Moriarty & Co. v. General Tire & Rubber Co., 289 F. Supp. 381, 389-90, esp. n. 2 (S.D.Ohio, W. D.1967). See also Holt v. Klosters Rederi A/S, 355 F. Supp. 354, 358 (W.D.Mich., S. D.1973), in which the court examined contacts with the United States.
[11] 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). See Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957).
[12] Galgay v. Bulletin Co., 504 F.2d 1062 (2d Cir., 1974); Elman v. Belson, 32 A.D.2d 422, 302 N.Y.S.2d 961 (2d Dep't 1969); Legros v. Irving, 77 Misc. 2d 497, 354 N.Y.S.2d 47 (Sup.Ct.1973).
[13] Compare Dolly Toy Co. v. Bancroft-Rellim Corp., 97 F. Supp. 531 (S.D.N.Y.1951); Backer v. Gonder Ceramic Arts, Inc., 90 F. Supp. 737 (S.D.N.Y.1950), Hodom v. Stearns, 32 A.D.2d 234, 301 N.Y.S.2d 146 (4th Dep't), appeal dismissed, 25 N.Y.2d 722, 307 N.Y.S.2d 225, 255 N.E.2d 564 (1969) with Standard Wine & Liquor Co. v. Bombay Spirits Co., 20 N.Y.2d 13, 281 N.Y. S.2d 299, 228 N.E.2d 367 (1967), aff'g 25 A.D.2d 236, 268 N.Y.S.2d 602 (1st Dep't 1966) (local representative bought goods from nonresident corporation and resold them), A. Millner Co. v. Noudar, Lda., 24 A.D.2d 326, 266 N.Y.S.2d 289 (1st Dep't 1966) (court found that sales representative was "in no way under the defendant's control.") See also Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 18-19, 308 N.Y.S.2d 337, 341-42, 256 N.E.2d 506 (1970); DelBello v. Japanese Steak House, Inc., 43 A.D.2d 455, 352 N.Y.S.2d 537, 540 (4th Dep't 1974); John De Nigris Associates, Inc. v. Pacific Air Transport Int'l, Inc., 38 A.D.2d 363, 329 N.Y.S.2d 939 (1st Dep't 1972); Elman v. Belson, 32 A.D.2d 422, 302 N.Y.S.2d 961, 964 (2d Dep't 1969).
[14] See text following note 2 supra.
[15] In addition to the New York cases already cited, see Samson Cordage Works v. Wellington Puritan Mills, Inc., 303 F. Supp. 155 (D.R.I.1969); Denis v. Perfect Parts, Inc., 142 F. Supp. 259, 260-61 (D.Mass.1956).
[16] See R.F.D. Group Ltd. v. Rubber Fabricators, Inc., 323 F. Supp. 521, 526-27 (S.D.N. Y.1971).
[17] See Dolly Toy Co. v. Bancroft-Rellim Corp., 97 F. Supp. 531, 536 (S.D.N.Y.1951). See also Droke House Publishers, Inc. v. Aladdin Distributing Corp., 352 F. Supp. 1062, 1065 (N.D.Ga.1972); Fooshee v. Interstate Vending Co., 234 F. Supp. 44, 48 (D. Kan.1964); Gauvreau v. Warner Bros. Pictures, Inc., 178 F. Supp. 510 (S.D.N.Y.1958); Geo-Physical Maps, Inc. v. Toycraft Corp., 162 F. Supp. 141, 146-47 (S.D.N.Y.1958); Backer v. Gonder Ceramic Arts, Inc., 90 F. Supp. 737 (S.D.N.Y.1950); McDevitt v. Dorsey, 67 F. Supp. 818 (N.D.Ohio, E.D. 1946); cf. People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 84, 38 S. Ct. 233, 62 L. Ed. 587 (1918).
[18] See Hoffman v. Blaski, 363 U.S. 335, 80 S. Ct. 1084, 4 L. Ed. 2d 1254 (1960).
[19] Robert Stigwood Group Ltd. v. Sperber, 457 F.2d 50, 55 (2d Cir. 1972); Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852 n. 1 (2d Cir.), cert. dismissed, 389 U.S. 801, 88 S. Ct. 9, 19 L. Ed. 2d 56 (1967); Joshua Meier Co. v. Albany Novelty Mfg. Co., 236 F.2d 144, 147 (2d Cir. 1956); Rushton v. Vitale, 218 F.2d 434, 436 (2d Cir. 1955); American Code Co. v. Bensinger, 282 F. 829, 935 (2d Cir. 1922).
[20] Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971); Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966); Joshua Meier Co. v. Albany Novelty Co., 236 F.2d at 147.
[21] Herbert Rosenthal Jewelry Corp. v. Zale Corp., 323 F. Supp. 1234, 1238 (S.D.N.Y. 1971).
[22] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S. Ct. 298, 47 L. Ed. 460 (1903).
[23] Herbert Rosenthal Jewelry Corp. v. Grossbardt, 436 F.2d 315, 316 (2d Cir. 1970); Trifari, Krussman & Fishel v. Charel Co., 134 F. Supp. 551 (S.D.N.Y.1955).
[24] Defendants' attorneys also made vague references in their papers submitted on these motions to their belief that plaintiff's registration certificates are defective, but these references are insufficient to raise an issue as to plaintiff's ownership of valid copyrights.
[25] Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d at 741.
[26] E. g., Mazer v. Stein, 347 U.S. 201, 217, 74 S. Ct. 460, 98 L. Ed. 630 (1954); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960); National Comics Publications v. Fawcett Publications, 191 F.2d 594, 600 (2d Cir. 1951).
[27] Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d at 489.
[28] Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d at 742; see Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902, 51 S. Ct. 216, 75 L. Ed. 795 (1931).
[29] Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d at 742.
[30] 446 F.2d 738 (9th Cir. 1971).
[31] 509 F.2d 64 (2d Cir., 1974).
[32] Id. at 65.
[33] Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966) and cases cited therein.
[34] Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d at 489; United Merchants and Mfrs., Inc. v. Sutton, 282 F. Supp. 588, 590 (S.D.N.Y.1967).
[35] Fristot v. First American Natural Ferns Co., 251 F. Supp. 886, 888 (S.D.N.Y.1966).
[36] See, e. g., Edward G. Budd Mfg. Co. v. C. R. Wilson Body Co., 7 F.2d 746, 748-49 (E.D.Mich., S.D.1925), aff'd, 21 F.2d 803 (1927); Hemingway v. Film Alliance, 174 Misc. 725, 21 N.Y.S.2d 827 (1940); 3 Callmann, Unfair Competition, Trademarks and Monopolies § 77.3, at 356-57 (1967).
[37] See, e. g., G. B. Kent & Sons, Ltd. v. P. Lorillard Co., 114 F. Supp. 621 (S.D.N.Y. 1953), aff'd on opinion below, 210 F.2d 953 (2d Cir. 1954).
[38] Crescent Tool Co. v. Killborn & Bishop Co., 247 F. 299, 300 (2d Cir. 1917).
[39] See Application of Deister Concentrator Co., 289 F.2d 496 (C.C.P.A.1961); American-Marietta Co. v. Krigsman, 275 F.2d 287, 289 (2d Cir. 1960); Speedry Prods., Inc. v. Dri Mark Prods., Inc., 271 F.2d 646, 648 (2d Cir. 1959); West Point Mfg. Co. v. Detroit Stamping Co., 222 F.2d 581, 591 (6th Cir.), cert. denied, 350 U.S. 840, 76 S. Ct. 80, 100 L. Ed. 749 (1955); J. C. Penney Co. v. H. D. Lee Mercantile Co., 120 F.2d 949, 954 (8th Cir. 1941); Lovell-McConnell Mfg. Co. v. American Ever-Ready Co., 195 F. 931 (2d Cir. 1912).
[40] See Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952); Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (2d Cir. 1929); Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F. Supp. 670, 691-94 (S.D.N.Y. 1963); Flagg Mfg. Co. v. Holway, 178 Mass. 83, 59 N.E. 667 (1901).
[41] See also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S. Ct. 784, 11 L. Ed. 2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S. Ct. 779, 11 L. Ed. 2d 669 (1964). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580752/ | 59 N.W.2d 171 (1953)
157 Neb. 176
BENNETT
v.
EMERALD SERVICE, Inc.
No. 33332.
Supreme Court of Nebraska.
June 12, 1953.
*172 John McArthur and Robert D. Zimmerman, Lincoln, for appellant.
Perry & Perry, Lincoln, for appellee.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
YEAGER, Justice.
This is an action at law by the plaintiff and appellant against the defendant and appellee for the recovery of the purchase price of a corn sheller purchased under a written warranty. The action was predicated upon a claimed rescission by plaintiff on account of an alleged breach of warranty.
The action came on for trial to a jury and at the conclusion of the evidence of the plaintiff the defendant moved for a directed verdict in its favor. This motion was sustained and the action was dismissed. The plaintiff thereafter filed a motion for new trial which was overruled. From the judgment *173 of dismissal and the order overruling the motion for new trial the plaintiff has appealed.
Plaintiff has set forth in his brief four assignments of error as grounds for reversal. The first generally charges that the court erred in dismissing the action. The second asserts that the court erred in holding that the defendant was not placed in status quo by the tender of the corn sheller by the plaintiff. The third asserts that the court erred in holding that the plaintiff failed to make a valid tender of the corn sheller to the defendant. The fourth is substantially a contention that it was error to allow the defendant to assert as a defense on the trial that the tender was not valid and complete on the ground that the corn sheller was encumbered by a chattel mortgage in favor of a third party at the time the purported tender was made, for the reason that at the time the alleged tender back of the corn sheller was made the defendant did not refuse the tender on this ground.
The conclusion as to the first assignment, as is apparent, depends upon the determination made upon the other three, therefore it will not receive separate consideration.
The petition charges that on December 28, 1950, the plaintiff purchased the corn sheller from the defendant for $2,227 with a written warranty. The warranty as it appears in an exhibit adduced in evidence is as follows:
"The Seller agrees to furnish free of cost at Seller's place of business a new part to replace any part which, with proper use, proves defective during the first ninety (90) days after delivery, provided the defective part is promptly returned.
"The Purchaser agrees to give each item of equipment a fair trial as soon as possible after receiving and within two (2) days after the first use. If it then fails to work properly and prompt notice is given, the Seller will send a man within a reasonable time to put it in order, the Purchaser agreeing to render friendly assistance. If it still fails to work properly and the Purchaser promptly returns it to the Seller at the Seller's place of business, the Seller will refund the amount paid, which shall constitute a settlement in full. Retention of possession or continued use shall constitute an acceptance and satisfaction of warranty and further assistance rendered the Purchaser shall not be considered a waiver of this provision. The Purchaser agrees to pay the expense or remedying any trouble due to improper handling.
"No agent of the Seller has authority to alter, add to or waive the above warranties, which are agreed to be the only warranties given and in lieu of all implied warranties.
"The Seller makes no warranty whatever in respect to tires, rims, ignition apparatus, starting devices, generators, batteries or other trade accessories, inasmuch as they are usually warranted separately by their respective manufacturers.
"The Seller agrees to deliver the equipment as ordered unless prevented by causes beyond his reasonable control.
"After delivery all of the equipment shall be held and used at the Purchaser's risk and expense, but title with right of repossession for default is reserved to the Seller until the full purchase price has been paid in cash."
The petition further charges that the plaintiff gave the corn sheller a fair trial but it failed to work properly, whereupon the defendant was duly notified, and that the defendant attempted to fix it but was unable to do so. On January 26, 1951, after failure of the defendant to fix the sheller the plaintiff returned it to defendant at its place of business and demanded a return and refund of the purchase price. The prayer is for $2,227 with interest from January 26, 1951, and costs.
By answer the defendant admitted the sale of the corn sheller to plaintiff and the warranty but said that the sale price was $1,845 instead of $2,227. It denied that plaintiff gave the corn sheller a fair trial. It said that it promptly serviced the corn sheller and that thereafter it worked properly and met the requirements of the warranty. It said that the plaintiff waived his right to return the corn sheller by the extended retention and use of the corn sheller. It further said that there was no *174 valid rescission for the reason that plaintiff had mortgaged the corn sheller to a third party for $1,845 which mortgage encumbered it at the time of the attempted rescission, thus preventing defendant from being placed in status quo.
A reply was filed which contained a general denial. Also the reply alleged that at the time of the attempted rescission the plaintiff was ready and willing to pay off the mortgage and obtain a release thereof.
It appears that the fourth assignment of error should be considered first. The basic contention of this assignment is that when the plaintiff made his tender the defendant refused and declined it on grounds other than that the plaintiff could not make a valid tender because of the fact that the corn sheller was encumbered by a chattel mortgage, thus precluding a defense that no valid tender was made because of the existence of the mortgage.
The rule that a person who has given a reason for his conduct and decision concerning a matter involved in controversy cannot, after litigation has begun, change his position and place or explain his conduct upon a different consideration is applicable in cases of rescission. Garbark v. Newman, 155 Neb. 188, 51 N.W.2d 315.
The record discloses that the plaintiff delivered the corn sheller to the premises of the defendant and that the tender made was refused. What occurred on the date of the tender is reflected in the following questions propounded by plaintiff's attorney and the answers thereto of plaintiff: "QNow what did you do with the machine after you finished out there at the O'Brien place AI took the machine back to the Emerald Service and I pulled it into their yard at the back of their building and then I went in to Mr. Becker and I told him that `there was the cornsheller' and he said `all right.' QWas that all that happened at that time? AYes." Becker was the representative of the defendant.
No one contends that this response of Becker amounted to an acceptance of the tender. It was treated as a refusal.
It becomes clear therefore that at the time the tender was made no specific reason was given on behalf of the defendant for refusal of the tender.
Two or three days later the plaintiff called upon Becker. The plaintiff testified as follows as to what occurred: "* * * and Mr. Becker said no he wouldn't have anything to do with it and the warranty was no good because it didn't apply to any machine that wasn't International, and it should have been written up on a usedmachinery form." There was other testimony of like purport relating to the warranty.
At the same time plaintiff gave testimony in response to questions by his attorney relating to the chattel mortgage as follows: "QWhen you asked for your money, was anything said about this mortgage? A No. I said he could make the check out to State Securities, if he wanted to. QThe mortgage was still on the machine, wasn't it? AYes. QWhat did he say about that? AHe said he wasn't going to do nothing about it, he wouldn't pay it off, and that the contract was no good."
From this record it becomes readily inferable that the defendant would have refused the tender if there had been no mortgage, but it cannot be said that the existence of the mortgage was not one of the grounds of refusal.
This specific refusal to accept the tender burdened with the condition with regard to the mortgage which the plaintiff testified that he imposed must be regarded as a permissible defense to the contention of plaintiff that he made a valid and sufficient tender.
From this it becomes apparent that the tender as made was not to the extent reasonably possible under the circumstances entire and complete and it did not place the parties in status quo. If the plaintiff had arranged with the holder of the mortgage for its release upon payment of a fixed sum which was within the amount owing to him if rescission was proper and which he was willing for the seller to pay to the mortgagee, there would *175 have been a restoration to the extent reasonably possible insofar as the chattel mortgage is concerned. A seller is not required to take back property upon which a purchaser has placed a mortgage which the mortgagee may be unwilling to release and which cannot be immediately paid off according to its terms out of the purchase money or necessary additions thereto supplied by the purchaser. A contract of purchase cannot be rescinded in part and in part remain executed. The corn sheller remained encumbered to the extent of $1,845. The rescission of a contract must be in toto and the parties must be placed in status quo so far as the circumstances will permit. Section 69-469, R.R.S.1943; Alfree Mfg. Co. v. Grape, 59 Neb. 777, 82 N.W. 11; Perry v. Meyer, 110 Neb. 347, 193 N.W. 717; Rasmussen v. Hungerford Potato Growers Ass'n, 111 Neb. 58, 195 N.W. 469; Aron v. Mid-Continent Co., 141 Neb. 806, 4 N.W.2d 884. The decision in Aron v. Mid-Continent Co., supra, was reversed in 143 Neb. 87, 8 N.W.2d 682, but this legal principle was not disturbed.
This disposes of the second and fourth assignments of error adversely to the plaintiff and also his third assignment unless the facts and circumstances as disclosed by the record excused him from making a full and complete tender within the meaning of the decisions.
It is true that the law does not require vain things, and a formal tender of property is not required if it appears that it would have been futile. Garbark v. Newman, supra.
As already indicated, it is reasonable to infer from the record that if a sufficient tender had been made it would have been refused. This however is not sufficient upon which to base an adjudication that there was a valid rescission and to base an award for damages.
In addition, in order to sustain his case it was necessary that the plaintiff adduce evidence that at the time the tender was made he had the present and immediate ability to make his tender good. Baird v. Union Mutual Life Ins. Co., 103 Neb. 609, 173 N.W. 686, on rehearing, 104 Neb. 352, 177 N.W. 156; Linch v. Nebraska Buick Automobile Co., 120 Neb. 819, 235 N.W. 456; Garbark v. Newman, supra; Adams v. Adams, 156 Neb. 540, 57 N.W.2d 131.
There was no such evidence as regards the mortgage. The showing that plaintiff authorized the defendant to satisfy the mortgage out of the demanded refund of the purchase price of the corn sheller did not satisfy the deficiency. The satisfaction of this mortgage was the burden of the plaintiff and he could not shift it to the defendant without its consent.
The facts and circumstances of this case did not excuse the plaintiff from making a full and complete tender. The third assignment of error is therefore without merit.
For the reasons herein set forth the judgment of the district court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580816/ | 264 Wis. 556 (1953)
ESTATE OF BAUER: BAUER, Appellant,
vs.
BOSSER, Respondent.
Supreme Court of Wisconsin.
June 6, 1953.
July 3, 1953.
*557 For the appellant there was a brief by Joseph Witmer and Bradford & Gabert, all of Appleton, and oral argument by Mr. Alfred S. Bradford and Mr. Witmer.
For the respondent there was a brief and oral argument by David L. Fulton of Appleton.
MARTIN, J.
The only question raised on this appeal is whether, on September 15, 1943, Anton Bauer had sufficient mental capacity to make a valid will.
Anton Bauer was a native of Bohemia. He had three children by his first wife: Annie, who was incompetent and confined in an institution in Seattle for may years prior to decedent's death; Cecelia, who died in 1922; and John, unmarried, who lived with the testator in Appleton. His first wife died; he married again and was divorced in 1900. There was one son, Arthur, the issue of the second marriage, whose custody was given to the mother at the time of the divorce and whose whereabouts are unknown.
Testator owned the homestead in which he and John lived and rented the upstairs fiat. In 1922 he purchased property on Spencer street, which he improved and rented. In 1927 he acquired a one-half interest in property on Packard street, John owning the other half. He borrowed $1,200 from the bank, giving a mortgage on the Spencer-street and the Packard-street properties, and using some of the proceeds for the purchase of his interest in the Packard-street property. The latter was also rented. In 1930 the Spencer-street property was sold to the De Nobles, who assumed the mortgage thereon. In 1940, having defaulted on the mortgage, the De Nobles conveyed the property to John who then remodeled the place in an attempt to realize an income from rents. The plan failed and the property was lost. The Packard-street property was also lost and John went into bankruptcy.
The will of October 7, 1931, left most of testator's property to John. On September 15, 1943, he made the will here *558 in question, leaving his entire estate to the children of his daughter Annie.
Alfred C. Bosser testified that he had known the testator for fifty years; that Anton Bauer called upon him two or three times prior to September 15, 1943, and discussed the making of a new will. On these occasions he complained to Bosser that John had lost the Spencer and Packard-street properties; that John had been drinking and gambling and unable to keep up the payments on the properties. He thought John had probably lost between $2,500 and $3,500 for him in this way and that the remainder of his property should therefore go to the children of his daughter. Anton felt he was justified in the view that John had mismanaged the properties and in view of what he told his lawyer, Bosser did not think the 1943 will unfair. It was Bosser's testimony that Anton Bauer came into the office alone, and sober, and was of sound mind when the will was executed. He dictated the will in Bauer's presence:
"I am sure the will wasn't read over by him. I might have read it over but I can't remember that. I do know that he was there when I dictated the will and that I stopped and asked him a few times if that was what he wanted and he said `Yes.'"
Andrew W. Parnell, then an associate of Mr. Bosser, and Ilene Sprister Deltgen, Bosser's secretary, were witnesses to the execution of the will. They both testified that the testator was sober and was, in their opinion, of sound mind; that although he spoke a mixture of German and English, they understood him and knew what he wanted.
In our opinion, the testimony of the scrivener, an attorney of high standing in his profession and of many years of experience, and that of Mr. Parnell, now a judge of the circuit court, cannot be lightly brushed aside. In any event, it must be outweighed by evidence on the part of the contestant which *559 is clear, convincing, and satisfactory. It was said in Estate of Bickner (1951), 259 Wis. 425, 433, 49 N. W. (2d) 404:
"To bar the will of a testator requires proof, and the burden of proof rests with the contestant to show by clear, convincing, and satisfactory evidence that the mind of the testator was deranged. The legal presumption is in favor of sanity and sufficient legal capacity to make a valid will, and the burden of showing such insanity or incapacity is upon the contestants. Will of Emerson, 183 Wis. 437, 198 N.W. 441; Estate of Scherrer, 242 Wis. 211, 7 N. W. (2d) 848; Will of Szperka, 254 Wis. 153, 158, 35 N. W. (2d) 209, 35 N. W. (2d) 911."
John Bauer testified that he thought his father's mind slipped or changed during the five years before he died. Some attempt was made to offer evidence that Anton would listen to the radio, jump up and say they were talking about him. The contestant also presented the testimony of Mrs. Alex Mignon who stated that "His mind just wasn't so good. . . . Several years back that he talked to me so funny. I couldn't even understand what he would say when he talked to me." But she admitted that she did not get along with Anton Bauer; that she rarely talked to him; that he talked mostly German and she couldn't understand German. These opinions do not constitute clear, convincing, and satisfactory evidence of mental incapacity. On the other hand, there was testimony by Mrs. Lloyd Braun, who lived in the upstairs flat of decedent's home from 1943 to 1945, to the effect that Anton Bauer was mentally competent. She said that there were times when she had him sit with her baby and "I think Mr. Bauer was all right mentally while I was there because I wouldn't let my baby with him if I didn't think he was."
Contestant argues that testator was suffering from an insane delusion when he believed that he had lost valuable properties through mismanagement by his son John.
*560 From the facts in the record regarding the history of testator's Spencer and Packard-street properties, it is not difficult to understand that a man of almost ninety years might believe what he did, whether it was actually true or not. Those properties had produced income for the testator for many years. After some time during which John had managed them for him, they were lost and the old man was left without the properties and without the income they had afforded him. Moreover, various transactions were involved in the history of these properties, which presented a rather complicated picture, difficult for an elderly man of limited education to understand. We cannot attribute such lack of understanding to insanity.
In Estate of Bickner, supra, where the contention was made that the testator suffered from insane delusions because he believed that the contestants whom he saw taking boxes and rugs from his home were stealing such article, when in fact the articles belonged to the contestants, the court said that, there being some basis for his belief, his conclusion, however erroneous or unjust, was not an insane delusion, and quoted from 68 C. J., Wills, p. 433, sec. 30, as follows:
"A mere mistaken belief or an erroneous or unjust conclusion is not an insane delusion if there is some foundation in fact or some basis on which the mental operation of the testator may rest, even though the basis may be regarded by others as wholly insufficient. Similarly, even though the testator may be in error in his reasoning, undue or unnatural prejudice or aversion, if based on any kind of reasoning, is not an insane delusion."
There were facts and circumstances from which Anton Bauer could have reasoned that his son John had lost his properties, and we cannot hold that such belief constituted an insane delusion even if it was erroneous.
As pointed out above, in the testimony of Mr. Bosser, it was that belief which prompted the testator to provide in *561 his 1943 will that his grandchildren should receive all his estate. Under these circumstances, it was not an unnatural will, as contestant argues. Anton Bauer knew that he had a daughter, Annie, who was incompetent and that she was being cared for in an institution. It was not unnatural that he should want her share to go to her children. He had provided a home for John all his life; and believing that John had dissipated his estate to the extent that the Spencer and Packard-street properties were lost, it was not unnatural that he should want to make the grandchildren his beneficiaries. It is undisputed in the record that he knew what his possessions consisted of at the time he made the 1943 will and that he also knew who were the natural objects of his bounty. Mr. Bosser testified that he discussed these matters with him on a number of occasions and that the old man knew what he wanted to do.
"There is the high place, in contemplation of the fundamental principles of civil life, which the right of individual liberty to dispose of one's property by contract or will, holds. It is not the business of courts to undo what an old person may have done with his property, because of judicial notions of propriety or moral obligation, in a case of this sort, or the wishes of relatives, however deserving. Did the man do freely what he wanted to do and was competent to decide upon? Those are the sole questions." Boardman v. Lorentzen (1914), 155 Wis. 566, 579, 145 N.W. 750.
There is considerable testimony in the record regarding Anton Bauer's drinking habits. John stated that his father drank heavily and was violent when intoxicated. Mrs. Mignon, the neighbor, said he would sometimes come home drunk and was noisy and quarrelsome. These matters are immaterial to the issue; we are concerned only with the testator's mental competency when he executed his will on September 15, 1943, and it was shown by the testimony of *562 Mr. Bosser, Mr. Parnell, and Mrs. Deltgen, the only persons present, that Anton Bauer was sober at that time.
The will of September 15, 1943, was the testator's last will, and in our opinion he was mentally competent when he made it. The contestant has failed to prove his objections by clear, convincing, and satisfactory proof, and the judgment of the trial court is affirmed.
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580930/ | 919 F. Supp. 691 (1996)
John DOE, Richard Roe and Samuel Poe, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
Hon. George E. PATAKI, in his official capacity as Governor of the State of New York, et al., Defendants.
No. 96 Civ. 1657 (DC).
United States District Court, S.D. New York.
March 21, 1996.
*692 *693 Robert M. Baum, Attorney-in-Charge, Criminal Defense Division, Legal Aid Society by Thomas M. O'Brien, Susan L. Hendricks, Michele Maxian, Special Litigation Unit, Norman Siegel, Donna Lieberman, New York Civil Liberties Union Foundation, New York City, for plaintiffs.
Dennis C. Vacco, Attorney General of State of New York by Christine E. Morrison, Assistant Attorney General, New York City, for defendants.
Mary Jo White, United States Attorney for Southern District of New York by Gideon A. Schor, Assistant United States Attorney, New York City, for amicus curiae United States.
Roger L. Stavis, New York City, for amicus curiae Assemblyman Daniel L. Feldman.
OPINION AND ORDER
CHIN, District Judge.
In this constitutional challenge to the New York State Sex Offender Registration Act, N.Y.Correction Law § 168 et seq. (McKinney Supp.1996) (the "Act"), commonly referred to as New York's "Megan's Law," plaintiffs move for a preliminary injunction enjoining retroactive application of the Act's registration and notification provisions.
This case presents a vivid example of the conflict that often arises between the rights of individuals and the needs of society as a whole. Defendants present compelling arguments in support of a registration and notification system for those who would victimize children and commit sex crimes. Indeed, defendants poignantly argue that it is a "sad commentary" on our society that we continue to name laws after children who have been murdered or abducted. (Tr. 45).[1] Nonetheless, no matter how compelling the reasons, no matter how pure the motive, constitutional protections for individuals even unsympathetic ones cannot be cast aside in the name of the greater good.
Would-be child abusers, rapists, and other sex offenders are on notice, and have been since the Act was passed, that if they commit these crimes now, they will subject themselves not only to possible imprisonment but also to strict registration requirements and perhaps intense public scrutiny. Those who committed their crimes before the Act took effect, however, have a right not to be punished on an ex post facto basis. The public notification provisions of the Act constitute punishment, and if their implementation is not enjoined, plaintiffs will suffer irreparable harm. Hence, plaintiffs' motion for a preliminary injunction is granted with respect to the public notification provisions of the Act. Because I find, however, that plaintiffs will not suffer irreparable harm if they are required to register during the pendency of this lawsuit, their motion is denied with respect to the registration provisions.[2]
*694 STATEMENT OF THE CASE
A. The Act
1. Background
The Act was passed on July 25, 1995 and became effective on January 21, 1996. It requires individuals convicted of certain sex offenses to register with law enforcement officials, and it authorizes those officials, in some circumstances, to notify the public of the identity and whereabouts of registrants.
At least 46 states have enacted laws requiring convicted sex offenders to register with law enforcement authorities. Many of these statutes also provide for public notification of the presence of registered sex offenders in local communities. The statutes resulted from growing public concern over the substantial threats presented by sex offenders and a belief that sex offenders as a group are more likely to repeat their crimes.
In enacting these laws, legislatures have articulated two goals: (i) enhancing law enforcement authorities' ability to fight sex crimes and (ii) protecting communities, and particularly children, by notifying them of the presence of individuals who, because of their history of committing sex crimes, may present a danger. Although some of these registration and notification laws have been in existence for a number of years, the laws are now commonly known as "Megan's Laws" because of the case of seven-year-old Megan Kanka, who was raped and murdered in 1994 by someone who lived across the street from her home. Unbeknownst to Megan and her family, the individual was a twice-convicted sex offender.
In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071 et seq. (the "Federal Act"), which was named for an 11-year-old boy who was abducted when he was returning home from the store. The Federal Act encourages states, through funding incentives, to enact laws requiring individuals convicted of crimes against children or sexually violent offenses to register with state law enforcement agencies. The Federal Act permits law enforcement authorities to release certain information in certain limited circumstances. Id. at § 14071(d). The Federal Act, however, does not require states to apply their particular laws retroactively.
To date, a number of registration statutes have been challenged in state courts. See, e.g., Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995) (upholding New Jersey law); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994) (upholding Washington law); State v. Noble, 171 Ariz. 171, 829 P.2d 1217 (1992) (upholding Arizona law). Only two federal courts have ruled on the constitutionality of sexual offender registration and notification acts. See Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J.1995); Rowe v. Burton, 884 F. Supp. 1372 (D.Alaska 1994). Both federal courts found constitutional infirmities with the statutes at issue. Judge Politan of the District of New Jersey and Judge Sedwick of the District of Alaska both held, in substance, that retroactive application of public notification provisions violated the Ex Post Facto Clause. Artway, 876 F.Supp. at 692; Rowe, 884 F.Supp. at 1380; cf. Young v. Weston, 898 F. Supp. 744 (W.D.Wa.1995) (holding unconstitutional, on ex post facto and other grounds, Washington's "Sexually Violent Predator" statute, which provided for involuntary commitment of "sexually violent predators" after they completed their sentences).
The New York State legislature used New Jersey's registration statute as a model, but attempted to cure the flaws noted by the court in Artway. The Act's preamble contains the following statement of the Legislature's purpose or findings:
The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and ... the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies' efforts to protect their communities, conduct *695 investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.
The preamble then states that "[t]he system of registering sex offenders is a proper exercise of the state's police power regulating present and ongoing conduct" and "will bring the state into compliance with the federal crime control act."
2. Registration
The Act establishes two categories of offenses that require registration: "Sex offense[s]," § 168-a(2), and "Sexually violent offense[s]," § 168-a(3). Sex offenses include, for example, convictions for rape in the second or third degree, sodomy in the second or third degree, or sexual abuse in the second degree, and convictions for attempt thereof. § 168-a(2) (citing N.Y.Penal Law §§ 130.25 130.30, 130.40, 130.45, 130.60 (McKinney 1987 & Supp.1996)). Sexually violent offenses include, for example, convictions for rape in the first degree, sodomy in the first degree, and sexual abuse in the first degree, and convictions for attempt thereof. § 168-a(3) (citing N.Y. Penal Law §§ 130.35, 130.50, 130.65 (McKinney 1987 & Supp.1996)).
Under the Act, a "sex offender" is any person convicted of a "sex offense" or a "sexually violent offense." § 168-a(1). Sex offenders are required to register with the Division of Criminal Justice Services (the "DCJS") within 10 days after discharge, parole, or release. § 168-f(1). Sex offenders who were "on parole or probation" on the effective date of the Act, i.e., January 21, 1996, are required to register, § 168-g(2), even though the conduct that led to the conviction occurred before the Act was passed. Sex offenders must register annually for ten years as well as "within ten calendar days prior to any change of address."[3] §§ 168-f(2), (4), 168-h.
To register, sex offenders must provide such identifying information as name, date of birth, sex, race, height, weight, eye color, driver's license number, and home address. They must also provide a description of the offense, the date of conviction, and the sentence imposed as well as a photograph and fingerprints. §§ 168-b, 168-i.
The failure to register as required by the Act is a crime. § 168-t. Any sex offender required to register under the Act may petition the sentencing court to be relieved of the duty to register. § 168-o.
3. Notification
The Act provides for three levels of notification to law enforcement agencies and/or the public that increase as the risk of a "repeat offense" and danger to the public increases. § 168-l(6).
If the risk of a repeat offense is "low," the sex offender is assigned risk level one and only notification to law enforcement agencies is authorized. § 168-l(6)(a). Thus, this risk level does not provide for any public notification.
If the risk is "moderate," the offender is assigned risk level two. Under this level, the appropriate law enforcement agencies are notified and are authorized, in turn, to disseminate an "approximate address based on the sex offender's zip code," a photograph, and background information to "any entity with vulnerable populations." § 168-l(6)(b). The Act does not define the term "any entity with vulnerable populations," but the Act does provide that "[a]ny entity receiving information on a sex offender may disclose or further disseminate such information at [its] discretion." Id.
If the risk is "high" and there exists a "threat to the public safety," the offender is deemed a "sexually violent predator" and assigned risk level three. The level of notification *696 authorized for level two is also authorized for level three, except that law enforcement agencies are permitted to disclose not just an "approximate address" but the offender's "exact address." § 168-l(6)(c). Moreover, a level three offender is also to be included in a "subdirectory of sexually violent predators," which is to be maintained by the Division, that contains an exact address, other identifying information, and a photograph. The subdirectory will have listings by county and zip code, and a copy is to be distributed annually to local police departments for public access. A written request, however, will be required before access to the subdirectory is given. §§ 168-l(6)(c), 168-q.
Identifying information about all registrants whether level one, two, or three also will be available to the public through a special "900" telephone number, which was scheduled to become operational on March 8, 1996. Callers to the 900 number will not be able to obtain information about any person, however, unless they first provide some identifying information that reasonably identifies the person in question as a registrant. Moreover, the telephone calls will be recorded and callers will be required to identify themselves. § 168-p. The unauthorized release of any information constitutes a crime. § 168-u.
As to individuals who were still incarcerated on January 21, 1996, the Act provides that the sentencing court is to determine, prior to discharge, parole, or release, whether the offender is a sex offender or sexually violent predator and, if so, whether the offender is a risk level one, two, or three. § 168-n. The Act provides for the creation of a "board of examiners of sex offenders" (the "Board"), which is to make recommendations to the sentencing court regarding the appropriate risk levels. §§ 168-l(6), 168-n.
As to individuals who were on parole or probation on January 21, 1996, the Division of Parole and the Division of Probation and Correctional Alternatives are to "determine the duration of registration and notification." § 168-g(1). As to individuals who were "released on probation or discharged upon payment of a fine" based on a conviction after January 21, 1996, the sentencing court is to determine the "duration of registration ... and notification." § 168-d(2), (3).
B. The Facts
1. Plaintiffs
Plaintiff John Doe was convicted of attempted rape in the first degree in 1990 and was sentenced to a period of incarceration. He was released on parole in 1994 and has remained on parole since then without incident. On February 5, 1996, he was notified that he had been classified as level 3. (Cmplt. ¶ 6).
Plaintiff Richard Roe was convicted of sexual abuse in the first degree in 1995. He was sentenced to probation and has remained on probation without incident. On February 21, 1996, he was notified that he had been classified as level 3. (Cmplt. ¶ 7).
Plaintiff Samuel Poe was convicted of attempted sodomy in the first degree in 1989 and was sentenced to a period of incarceration. He apparently is entitled to immediate conditional release from prison and will be paroled upon the Division of Parole's approval of his residence. In accordance with the Act, he will be required to appear before the state court for classification. (Cmplt. ¶ 8).
Plaintiffs sue on behalf of themselves as well as all others similarly situated all persons in New York State who are or will be in the future incarcerated or on parole or probation after having been convicted of a sex offense or sexually violent offense committed prior to the effective date of the Act, January 21, 1996, and who have been or will be subject to the Act's registration and notification provisions. (Cmplt. ¶ 35).
2. Defendants
Named as defendants in this lawsuit, in their official capacities, are Governor Pataki; Paul Shechtman, the Commissioner of DCJS; Brion Travis, Chairman of the Board of Parole of the New York State Division of Parole Services; George Sanchez, Director of the New York State Division of Probation; and Elizabeth M. Devane, Chairperson of the New York State Board of Examiners of Sex Offenders. Defendants are the individuals *697 responsible for the implementation of the Act and the agencies involved in its operation.
3. Application of the Act
In support of their application for a preliminary injunction, plaintiffs have cited a number of incidents involving individuals who were required to register under the Act. At least three individuals in New York have been subjected to the Act's notification procedures. An individual who pled guilty to statutory rape and was sentenced to five years probation was apparently the first person to register under the Act. As reported in The New York Times, the Westchester County District Attorney's Office issued a news release and the registration process became "a media event." (O'Brien Aff. Exh. A).
In a second incident, a New York sex offender who is on parole was the subject of a mass mailing. After being informed by local police of the offender's release from prison, the superintendent of the school district in which the parolee resides, which includes several towns, sent a mass mailing to all residents of the district, identifying the parolee by name and address. The mailing consisted of a letter on the letterhead of the Superintendent of Schools addressed to "Parents, Guardians and Community Members." The parolee and his family including family members who do not reside with him have been subjected to harassment, including anonymous telephone calls, and the parolee lost his job as a result of the controversy generated by the mailing. (Hendricks Aff. ¶¶ 6-8 & Exh. A).
In a third incident, another New York sex offender who is on parole was also the subject of a mass mailing. On February 26, 1996, the Superintendent of Schools for the Cornwall Central School District sent a letter to all parents and guardians, stating that "a sex offender was released from prison back into the Cornwall community." (Id. at Exh. B). The letter did not identify the sex offender's name or address. Two days later, however, a local newspaper published a story containing the following bold-face headline in large type: "Sex offender's ID eludes Cornwall." (Id.). Not surprisingly, on February 29, 1996, several newspapers published stories containing the sex offender's name, picture, address, crime, and other information. (Id.).
Similar incidents occurred in New Jersey subsequent to the enactment of its Megan's Law. In one instance, a father and son broke into the home of a released child molester and mistakenly attacked the wrong person. (O'Brien Aff. Exh. B). In Englewood, New Jersey, the Guardian Angels passed out leaflets warning residents to "Beware" of a sex offender, "E.B.," who was challenging Megan's Law in federal court and resided in Englewood. Later, stating that "this should be a lesson to other sex offenders," a New Jersey resident traced E.B.'s name through court records and announced it on the steps of Englewood City Hall and on a radio program hosted by Guardian Angels leader Curtis Sliwa. (Id. at ¶ 26 & Exh. C).
C. Prior Proceedings
On March 6, 1996, plaintiffs filed their complaint and moved by order to show cause for a preliminary injunction and a temporary restraining order. The next day, after hearing preliminary arguments on the issues raised by plaintiffs' motion, I issued a temporary restraining order, enjoining defendants from enforcing the notification provisions of the Act.
On March 18, 1996, counsel for the parties presented full arguments on the issues presently before me. At the conclusion of the hearing, I continued the restraining order until I issued a decision on plaintiffs' motion.
DISCUSSION
A. Standards for Issuance of a Preliminary Injunction
A plaintiff seeking a preliminary injunction or temporary restraining order usually must show (a) that it is likely to suffer irreparable harm if temporary injunctive relief is not granted and (b) either (i) likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly *698 in its favor. Polymer Technology Corp. v. Mimran, 37 F.3d 74, 77 (2d Cir.1994). Where the moving party "seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme," however, that party must satisfy the likelihood of success on the merits prong of the test. Able v. United States, 44 F.3d 128, 131 (2d Cir.1995) (quoting Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989)). Accordingly, in this case plaintiffs must show irreparable harm and a likelihood of success on the merits.
B. Irreparable Harm
I find that plaintiffs have shown, in part, that they are likely to suffer irreparable harm if immediate injunctive relief is not granted. It is well settled in this circuit that a moving party must show that the injury it may suffer is likely and imminent, not remote or speculative, and that this injury is not capable of being fully remedied by money damages. NAACP v. Town of East Haven, 70 F.3d 219, 224 (2d Cir.1995). Here, plaintiffs have demonstrated that the injuries they will suffer are not speculative, for instances of irreparable harm have already been documented. Individuals registered with local authorities pursuant to the Act have faced public ridicule and harassment, have lost their jobs, and have been threatened with physical harm. (See Hendricks Aff. Exhs. A, B; O'Brien Aff. Exhs. A-C). Furthermore, the public stigma that has been placed on these individuals cannot be fully compensated through money damages. Thus, this type of injury satisfies the irreparable harm prong of the preliminary injunction test. See Jolly v. Coughlin, 76 F.3d 468, 481 (2d Cir.1996) (money damages inadequate to compensate physical injuries resulting from defendant's conduct); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440, 447-48 (N.D.Ill.1988) (money damages inadequate to compensate emotional and psychological injury resulting from defendant's conduct).
Moreover, plaintiffs allege a violation of their constitutional right to be free from ex post facto laws. Such a constitutional injury is per se irreparable harm. Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984). In each of the reported incidents concerning released sex offenders, the State's public notification of an individual's identity and his status as a sex offender triggered the harm. Accordingly, with respect to the public notification provisions of the Act, plaintiffs have satisfied their burden of showing irreparable harm.[4]
In contrast, plaintiffs have not satisfied their burden of showing irreparable harm with respect to the registration aspects of the Act. Merely informing the local police of their address, information that the police could obtain through other means, does not irreparably harm plaintiffs. Indeed, plaintiffs moved for a temporary restraining order only with respect to the public notification provisions of the Act. Because plaintiffs have not satisfied their burden with respect to the registration provisions, I need only discuss whether plaintiffs have demonstrated a likelihood of success on the merits regarding the public notification provisions of the Act.
C. Likelihood of Success on the Merits
Plaintiffs' primary argument is that the Act imposes punitive measures that were not in effect at the time they committed their offenses. Thus, plaintiffs claim that the Act's retroactive application violates the Ex Post Facto Clause of the Constitution. Defendants respond that, while the Act imposes some burden on plaintiffs, it is not a punitive measure but is merely a regulatory scheme. Because the Act is purportedly regulatory, defendants argue that it cannot violate the Ex Post Facto Clause.
Thus, the parties agree that the critical issue before me is whether the Act is punitive *699 or regulatory. If the Act is punitive, then its retroactive application violates the Ex Post Facto Clause. If the Act is regulatory, then its retroactive application is permissible. Because I hold that the public notification aspects of the Act impose additional punishment on plaintiffs, plaintiffs have demonstrated a likelihood of success on the merits.
1. Ex Post Facto Laws
Article I, § 10, of the Constitution forbids the States from enacting any "ex post facto Law." The Supreme Court first interpreted this phrase in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798). There, Justice Chase explained that the Ex Post Facto Clause prohibited state governments from passing laws that had the effect of punishing citizens for conduct after the fact. Specifically, Justice Chase noted four types of laws that the Ex Post Facto Clause prohibited:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Id. 3 U.S. at 390. This definition has remained relatively constant through time and has been repeatedly reaffirmed by the Supreme Court. See, e.g., Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30 (1990); Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68-69, 70 L. Ed. 216 (1925); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L. Ed. 162 (1810). Indeed, this prohibition against ex post facto laws was critically important to the drafters of our Constitution and remains a fundamental "constitutional bulwark in favor of personal security and private rights." The Federalist No. 44 at 301 (James Madison) (Jacob E. Cooke ed. 1961).
The Ex Post Facto Clause serves two basic purposes. First, the clause is designed to ensure that legislative acts "`give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.'" Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 963, 67 L. Ed. 2d 17 (1981)). Second, the clause is designed to prevent legislatures from imposing arbitrary or vindictive legislation on individuals or classes of individuals. Miller, 482 U.S. at 429, 107 S.Ct. at 2450; Weaver, 450 U.S. at 29, 101 S.Ct. at 964; see also James v. United States, 366 U.S. 213, 248 n. 3, 81 S. Ct. 1052, 1070 n. 3, 6 L. Ed. 2d 246 (1961) (Harlan, J., concurring in part and dissenting in part); Malloy v. South Carolina, 237 U.S. 180, 183, 35 S. Ct. 507, 508, 59 L. Ed. 905 (1915). As the Court stated in Weaver:
The presence or absence of an affirmative, enforceable right is not relevant ... to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Weaver, 450 U.S. at 30, 101 S.Ct. at 965.
Here, plaintiffs argue that the Act offends the third prong of Justice Chase's formulation and contend that the Act changed the punishment for certain sex crimes, inflicting greater punishment than what existed when these crimes were committed.
2. Punitive v. Remedial Measures
The first step in determining whether a statute is punitive or regulatory is to review the legislature's intent in creating the measure. See Austin v. United States, 509 *700 U.S. 602, 113 S. Ct. 2801, 2811, 125 L. Ed. 2d 488 (1993); United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 2641-42, 65 L. Ed. 2d 742 (1980). If the legislature's intent is clearly punitive, then no further inquiry is required and the Ex Post Facto Clause applies. The mere fact that the legislature's intent is regulatory, however, does not end the inquiry. See Department of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S. Ct. 1937, 1945, 128 L. Ed. 2d 767 (1994); Collins, 497 U.S. at 46, 110 S.Ct. at 2721. As defendants essentially concede (Tr. 33), a court must further undertake a historical and functional analysis to determine if the statute's effect is punitive. Ward, 448 U.S. at 249, 100 S.Ct. at 2641-42; but see DeVeau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 1154, 4 L. Ed. 2d 1109 (1960) (suggesting that analysis should be limited to legislative intent).
In United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), the Supreme Court set forth various factors that courts should consider in determining whether a civil sanction constitutes punishment for purposes of the Double Jeopardy Clause. These factors are relevant here. The Court noted that a sanction "constitutes punishment when the sanction as applied in the individual case serves the goals of punishment." Id. at 448, 109 S.Ct. at 1901. The Court continued that
[t]hese goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives." From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.
Id. (citations omitted); see also Kurth Ranch, ___ U.S. at ___, 114 S.Ct. at 1944-45; Austin, 113 S.Ct. at 2806.
In addition, the Court has looked at other factors in determining whether a sanction is punitive or regulatory. Specifically, in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), the Court set forth "the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character." Id. at 168, 83 S.Ct. at 567. These tests include
[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned....
Id. at 168-69, 83 S.Ct. at 567-68.[5]See Rowe, 884 F.Supp. at 1378-80 (applying Kennedy factors); Artway, 876 F.Supp. at 688-92 (applying Kennedy factors); see also Doe v. Poritz, 662 A.2d at 388-90 (discussing Kennedy factors, and concluding that courts should look at both "intent" and "effects," but suggesting that if effects are so "excessive" that they cannot be justified as "regulatory," a punitive intent must be inferred).
3. The Public Notification Provisions Are Punitive
After examining the Act's public notification provisions in light of all the foregoing factors, I hold that the public notification *701 provisions of the Act are punitive. Thus, retroactive application of these provisions violates the Ex Post Facto clause.
Initially, I note that the New York State legislature plainly described the Act as regulatory in its preamble. As discussed above, however, "simply by labeling a law [regulatory], a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause." Collins, 497 U.S. at 46, 110 S.Ct. at 2721. Thus, I must review the Act's practical function and effect.
Five factors in particular convince me that the public notification aspects are punitive. First, public notification of one's crime has traditionally been viewed as punitive. See People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 108, 655 N.E.2d 146 (1995) ("[P]ublic disclosure of a person's crime, and the attendant humiliation and public disgrace, has historically been regarded strictly as a form of punishment."). Indeed, as Judge Politan noted in Artway, the punitive nature of public notification of one's crime dates back to biblical times, as illustrated by the phrase "the Mark of Cain." 876 F.Supp. at 689. Accordingly, this factor favors a finding that public notification constitutes punishment.
Second, public notification serves at least one of the traditional goals of punishment deterrence. "[P]unishments aim to deter future undesired conduct by visiting some significantly unpleasant consequence upon the criminal." Rowe, 884 F.Supp. at 1379. See also Artway, 876 F.Supp. at 689. Here, the Act's public notification provisions impose a "significant unpleasant consequence" upon plaintiffs. Dissemination of an offender's address and identity will inevitably cause him, at a minimum, to be ostracized by the community. Such public humiliation certainly would deter future criminal conduct. In fact, as noted above, because public notification may lead to more substantial harm, such as economic or physical harm, it arguably also serves the punitive goal of retribution. Because it serves either retributive or deterrent purposes, public notification should be considered punishment. Halper, 490 U.S. at 448, 109 S.Ct. at 1901.
Third, public notification imposes an affirmative disability or restraint on plaintiffs. Again, as has been well documented, public notification places a public stigma on plaintiffs. This stigma has a potentially devastating effect on plaintiffs' personal and professional lives. Rowe, 884 F.Supp. at 1378. Moreover, this impact is much broader than what could be expected through public access to judicial proceedings and criminal records. See Artway, 876 F.Supp. at 688-89; see also Whalen v. Roe, 429 U.S. 589, 605-06, 97 S. Ct. 869, 879-80, 51 L. Ed. 2d 64 (1977) (distinguishing between the government's collection of personal data and the "unwarranted disclosure" thereof). Thus, this factor also favors a finding that public notification is punitive.
Fourth, the Act contains features that are classic indicia of a punitive scheme. Its provisions are triggered, of course, by behavior that is "already a crime." Kennedy, 372 U.S. at 168-69, 83 S.Ct. at 567-68. It provides for the sentencing judge to determine the level of notification. § 168-n. It also provides for consideration of victim impact statements in determining the public notification level. § 168-l(5)(i). These provisions certainly suggest that the public notification provisions are punitive in nature.
Finally, although defendants have articulated legitimate regulatory purposes for public notification, namely combatting recidivism, aiding law enforcement, and protecting the public, the Act's public notification provisions have already led to excessively harsh results. Individuals who have been subjected to community notification provisions have been publicly ostracized. They have been threatened with physical harm. Their families have been harassed. They have lost their jobs. And their crimes have been featured in newspapers for all to see. One could argue, depending on the crime involved, that these individuals deserved this treatment. One cannot argue, however, that this treatment was necessary to serve the Act's stated goals. Hence, the effect of the public notification provisions is to punish. See Artway, 876 F.Supp. at 692; but see Doe v. Poritz, 662 A.2d at 405 (holding that New Jersey Megan's Law has only a "regulatory *702 purpose" and that its provisions are "not excessive but are aimed solely at achieving, and, in fact, are likely to achieve, that regulatory purpose").
For these reasons, I hold that the public notification provisions of the Act, including the 900 number and all forms of public dissemination of information obtained from plaintiffs, constitute punitive, not regulatory, measures. Thus, application of these measures to individuals who committed their crimes before the Act was passed violates the Ex Post Facto Clause. Accordingly, plaintiffs have demonstrated a likelihood of success on the merits of their claim.
4. Due Process and Statutory Claims
Because I am granting plaintiffs' motion for a preliminary injunction on the grounds that the public notification provisions violate the Ex Post Facto Clause, I need not reach their due process and statutory arguments.
CONCLUSION
Plaintiffs have demonstrated that they are likely to suffer irreparable harm and have demonstrated a likelihood of success on the merits. Accordingly, their motion for a preliminary injunction is granted. Defendants, their agents, employees, and all persons acting in concert with them are hereby preliminary enjoined from enforcing the public notification provisions of New York's Sex Offender Registration Act, Article 6-C of the New York Correction Law, including §§ 168-l(6)(b, c), 168-p, and 168-q, against persons whose "sexual offense" occurred before January 21, 1996.
SO ORDERED.
NOTES
[1] References to "Tr." are to the transcript of the argument on March 18, 1996.
[2] Plaintiffs also seek an order granting class action certification and permitting plaintiffs to file this action under pseudonyms. Defendants do not oppose the latter request; hence, plaintiffs may prosecute this case under pseudonyms, although they may be required, subject to a protective order, to reveal their identities in discovery. I need not decide the request for class certification, for defendants have agreed to be bound by the decision in this case with respect to other members of the proposed class.
[3] A "[s]exually violent predator," defined as a person convicted of a "sexually violent offense" or a "sex offender" who suffers from a "mental abnormality" that makes him or her "likely to engage in predatory sexual conduct," must register annually and personally verify his or her registration at "the local law enforcement agency" every 90 days for at least ten years and potentially for life. §§ 168-a(7), 168-f(3), 168-h, 168-l(6)(c).
[4] Counsel for defendants suggested at oral argument that, in evaluating the irreparable harm element, I should consider the potential irreparable harm to the community at large that an injunction may cause. (Tr. 44-45). I am acutely aware of the tragic events, most notably the death of Megan Kanka, that have led to the passage of the registration and notification laws. The argument is compelling. Nonetheless, the harm that plaintiffs will suffer by virtue of the ex post facto application of the Act's public notification provisions cannot be ignored.
[5] Although the Supreme Court, somewhat confusingly, stated in a footnote in Austin that courts should not apply these factors in determining whether a statute violates the Ex Post Facto Clause, Austin, 509 U.S. at ___ n.6, 113 S.Ct. at 2806 n. 6, these factors plainly aid in the overall inquiry. In fact, the Supreme Court relied on some of these factors in reaching its decisions in Kurth Ranch, Austin, and Halper. See Kurth Ranch, ___ U.S. at ___, 114 S.Ct. at 1946 (analyzing whether tax serves goals of punishment, whether tax was conditioned on commission of a crime, and whether behavior to which tax applies is already a crime); Austin, 509 U.S. at ___, 113 S.Ct. at 2806-08 (analyzing whether forfeiture was historically regarded as punishment); Halper, 490 U.S. at 435, 109 S.Ct. at 1894 (analyzing whether fine was punishment because it was excessive in relation to regulatory purpose asserted by the government). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342322/ | 507 F. Supp. 2d 1 (2007)
XCALIBER INTERNATIONAL LIMITED, LLC, Plaintiff,
v.
Charles C. FOTI, Jr., in his official capacity as Attorney General, State of Louisiana, Defendant.
Misc. Action No. 06-545 (JMF).
United States District Court, District of Columbia.
April 2, 2007.
Xcalibur International Limited LLC, Pro se.
Robert P. Fletcher, Nixon Peabody LLP, Washington, DC, for Defendant.
MEMORANDUM OPINION and ORDER
FACCIOLA, United States Magistrate Judge.
This is a miscellaneous action involving a subpoena served upon the Attorney General of the State of Louisiana. In an action pending in Louisiana, plaintiff XCaliber International Limited, LLC, has challenged a 2003 amendment to a Louisiana statute that concerns state escrow accounts required to be maintained by certain cigarette manufacturers (including Plaintiff) to cover potential health care costs associated with smoking cigarettes. This statute and a related Allocable Share Amendment are in turn, related to the 1998 Master Settlement Agreement between major cigarette manufacturers and 46 settling States, the District of Columbia, Puerto Rico, and four territories.
Movant, the National Association of Attorney Generals ("NAAG"), has the responsibility of coordinating and facilitating the implementation and enforcement of the Master Settlement Agreement on behalf of the governmental entities that are parties to it.
Plaintiff has served upon NAAG a subpoena that NAAG feared would cause it to produce "confidential and sensitive commercial and trade information of the type protected from disclosure by Fed.R.Civ.P. 26(c)(7)." Motion for Entry of Protective Order in Response to Subpoena for Production of Confidential Documents, ¶ 4 at 2.
*2 The parties have negotiated a protective order pertaining to the subpoena but have reached an impasse as to one term. There is in existence another protective order, entered by a United States Magistrate Judge in the Eastern District of Louisiana, that provides that the Magistrate Judge will determine whether a document should be filed under seal or made a part of the court record and, if the judge concludes that a document is not to be filed under seal, it cannot be filed under seal and must be Made a part of the court record. NAAG, concerned that there is no provision for review of the magistrate judge's determination, proposes that this Court enter a protective order that would permit movant to come before this Court "for a determination of non-confidentiality." Motion for Entry of Protective Order in Response to Subpoena for Production of Confidential Documents, ¶ 11(a). Specifically, the proposed paragraph provides:
If a document designated as containing NAAG Confidential Information is determined not to be confidential by the Eastern District of Louisiana, the submitting party may seek the removal of the confidential designation in this Court pursuant to the provisions of this Order, or shall refrain from filing such documents in the Eastern District of Louisiana.
Id.
Thus, NAAG would have me create an ersatz appeal of the Louisiana court's determination not to permit a certain document to be filed under seal, giving NAAG a "second crack at the apple" and, failing success, granting it the right not to file the document at all even though it is subject to the subpoena.
Since the parties do not agree on this provision, I cannot force it upon the one party who will not agree, and I will therefore not sign the order. Movant will therefore have to comply with the subpoena or seek whatever remedies are available to it under Federal Rule of Civil Procedure 45(c)(3)(b)(i).
Conclusion
For the reasons stated herein, NAAG's Motion for Entry of Protective Order in Response to Subpoena for Production of Confidential Documents is hereby DENIED. SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580030/ | 324 N.W.2d 245 (1982)
In re the Matter of the COMMODORE HOTEL FIRE AND EXPLOSION CASES.
No. 81-827.
Supreme Court of Minnesota.
September 17, 1982.
*246 Austin D. Ditzler and Timothy J. Adler, Minneapolis, for appellant Summit Court, Inc.
Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Clyde F. Anderson and Laura S. Underkuffler, Minneapolis, for NSP & Grudem Bros. Co.
Suzanne E. Flinsch, City Atty., St. Paul, for City of St. Paul.
Considered and decided by the court en banc without oral argument.
KELLEY, Justice.
In this action, appellant Summit Court, Inc. (Summit) seeks to recover from respondents damages, in excess of those damages reimbursed by its own property damage fire insurance, it sustained as a result of the Commodore Hotel fire and explosion on February 15, 1978. Following a verdict of the jury assessing damages, appellant's motion in the Ramsey County District Court for an additur or, alternatively, for a new trial was denied. Appellant claims the trial court erred (1) in admitting evidence pertaining to negotiations between its representative and a representative of its property damage fire insurer shortly after the *247 fire; (2) in ruling that structural damages should be measured by estimated rather than actual cost of restoration; and (3) in limiting loss-of-use damages to "loss of profits." We affirm in part, reverse in part and remand the case to the trial court for a trial on the issue of loss-of-use damages.
Summit owned the Commodore Hotel in St. Paul. Business operations in the hotel included bar and restaurant facilities as well as room rentals. The hotel was severely damaged as the result of a fire and explosion on February 15, 1978. Following the fire, a number of lawsuits were commenced against the appellant and against the respondents. Those cases were consolidated for trial, and the liability issues were tried separately by the court without a jury. Subsequently, Summit commenced this action to recover damages not covered by its own property damage fire insurance.
Shortly after the fire loss, appellant made claim for personal property damage and for restoration damages against Commercial Union Insurance Company (Commercial Union), its property damage fire insurer. Appellant hired Supornick and Associates, a fire adjusting firm, to assess the fire loss. Ultimately, a settlement was reached with Commercial Union by which restoration damages to be paid by Commercial Union to appellant were determined to be $851,721.61.[1] Because appellant was underinsured at the time of the fire, it did not receive the full negotiated amount for restoration damages. Instead, it was paid $108,971.61 less than the negotiated amount.[2]
1. Summit first contends the trial court erred in permitting various witnesses to testify about the negotiations and the resulting settlement of appellant's fire loss restoration claim against Commercial Union. It argues that Rule 408, Minnesota Rules of Evidence,[3] bans the admission of evidence of negotiations to compromise, or the compromise itself, to prove the amount or invalidity of its claim against respondents. Appellant relies on Frey v. Snelgrove, 269 N.W.2d 918 (Minn. 1978), wherein we stated that as a general rule the amount paid in settlement should never be submitted to a jury. Id. at 923. In our view, Frey is not applicable to this case. Rule 408 does not render inadmissible evidence of settlement unless there existed a dispute as to the validity or amount of the underlying claim. We note the Committee Comment 1977 on Rule 408 indicates a prerequisite to exclusion is the existence of a genuine dispute.[4] This court and others *248 have held offers of settlement are inadmissible only when there existed an actual controversy at the time of the offer. See Hiram Ricker & Sons v. Students International Meditation Society, 501 F.2d 550, 553 (1st Cir. 1974); Daltex, Inc. v. Western Oil & Fuel Co., 275 Minn. 509, 514-15, 148 N.W.2d 377, 382 (1967); Person v. Bowe, 79 Minn. 238, 239, 82 N.W. 480, 481 (1900).
At the time the negotiations were taking place between Supornick and Gene Nelson, representing respectively Summit and Commercial Union, there was no dispute concerning the amount of appellant's building loss it was approximately $851,000. There was no dispute or lawsuit pending. The loss figure was communicated to Thomond R. O'Brien who was 97% owner of the common stock of Summit. He never disavowed the figure. Subsequently, an attorney representing Summit wrote two letters to the Commissioner of Insurance advising that the parties had agreed to $851,000 as its Commodore Hotel building loss.
Here, the evidence does indicate that while appellant and its insurer each attempted to negotiate a favorable settlement, there is no showing that either accepted a "high" or "low" figure with a view toward avoiding litigation. Hiram Ricker & Sons v. Students International Meditation Society, 501 F.2d 550, 553 (1st Cir. 1974). In this case, the factors set out in Frey have been largely negated by the evidence concerning the motivation and bargaining positions of Summit and its insurer.
Moreover, the agreement by Summit to accept the figure might be construed as an admission by Summit as to the building loss sustained or as impeachment of O'Brien's trial position with respect to that loss.
Finally, it was not until after substantially all of the pertinent negotiation and settlement evidence had been admitted over the only objection of "relevance,"[5] that appellant made objection relying on Rule 408.[6]
2. Appellant next contends that the trial court abused its discretion and was overly restrictive in limiting plaintiff in its proof of damages. When property is not totally destroyed, the ordinary measure of damages is the difference in value before and after the loss, or the cost of restoration, whichever is less. Rinkel v. Lee's Plumbing & Heating Co., 257 Minn. 14, 20, 99 N.W.2d 779, 783 (1959). The parties agree the trial court was correct in electing to have appellant's property damages measured by "restoration" the reasonable cost of repairing the Commodore Hotel to its pre-fire condition. The two contractors who made repair cost estimates shortly after the fire on behalf of Summit's insurance representative and the adjuster for Commercial Union were permitted by the court to testify as to the building loss. When the building was rebuilt after the fire, it was converted into a condominium complex. Appellant sought to call the architect who drew the condominium plans and the president of the construction corporation which carried out restoration and conversions for the purpose of establishing the total cost of repair and *249 conversion. Because the restoration and conversion resulted in a building which was substantially different from the destroyed structure and more valuable than it would have been if merely restored to its pre-fire condition, appellant then sought to have those witnesses "back out" the restoration and conversion cost items associated solely with the conversion to condominiums. They contended the result would establish the actual cost of restoration of the building to its original condition.
The court excluded the evidence because its relevance was outweighed by its tendency to confuse the jury the actual restoration and conversion being so dissimilar to mere reconstruction to pre-fire conditions and because the actual figures of cost of reconstruction and conversion were inflated by lapse of time.[7]
Even if evidence had some probative value, if its introduction may confuse or mislead the jury, the trial judge has discretion to exclude it. Minn. R. Evid. 403; Rose v. Koch, 278 Minn. 235, 249, 154 N.W.2d 409, 420 (1967). See also E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 237 N.W.2d 627 (1976); Fulsom v. Egner, 248 Minn. 156, 79 N.W.2d 25 (1956). In our view, the record amply sustains the trial court's exercise of discretion in excluding the proffered testimony.
3. Appellant next argues that the trial court erred in restricting damages for loss of use of the damaged property to loss of profits. Appellant requested an instruction that would have instructed the jury, in effect, that loss-of-use damages could be computed by deducting from the gross revenue which would have been received during the period of business interruption caused by the fire and explosion the operating costs that would have been incurred. Moreover, appellant offered to prove the specific on-going "overhead" expenses it incurred while the Commodore Hotel building was being repaired such as real estate taxes, insurance premiums, mortgage interest, food and beverage license fees and other non-operating expenses. This offer was denied. In its instructions, the court gave a definition of lost profits which encompassed the narrow accounting definition of net profits.[8] As the result of being given that instruction, it is understandable that the jury failed to find any "loss of profits."
Appellant sought to show that these ongoing expenses amounted to more than $200,000 during the 18 months of restoration. Appellant sought to show that from 1975 through 1977 the Commodore Hotel was a deficit operation in the true accounting sense, losing in excess of $140,000 each year.[9] Therefore, in the accounting sense, appellant has no claim for lost profits if that means net profits. Nevertheless, appellant claimed it had sustained a loss as a result of the fire and explosion, to-wit, a loss of contribution to fixed overhead from loss of revenue from appellant's bar, hotel and rental facilities. This loss, if appellant's contention is correct, amounted to approximately $10,000 per month.[10]
The trial court relied on Northern Petrochemical Co. v. Thorsen & Thorshov, Inc., 297 Minn. 118, 211 N.W.2d 159 (1973), *250 where, in holding that the plaintiff there could recover excess operating costs encompassing extra employee, transportation, warehousing and other expenses incurred by plaintiff because of its inability to have use of a new building, we stated that such costs were "an element of lost profits rather than a conceptually distinct measure of damages." Id. at 125, 211 N.W.2d at 166. In our view, Northern Petrochemical is distinguishable from the present case. The issue raised here continuing fixed overhead expenses was not there raised. That was an action on a building contract. The delay in completion had no effect on the plaintiff's fixed overhead expenses of the kind here claimed by the appellant in this tort action. Nonetheless, in that contract action the owner was allowed to recover certain additional expenses caused by the delay.
In this case, even though Summit could show no loss of net profit in the accounting sense, it did seek to show that prior to the fire its gross profits met substantially all of its fixed unabatable overhead expenses which continued post-fire and during restoration. Summit was forced to find other sources to pay these unabatable continuing overhead expenses. The debt incurred by it to meet such expenses was a direct result of the February 15, 1978 fire and explosion. Summit claims that since it can recover for loss of use these items are part of its claim for loss of use.
Minnesota apparently has not addressed the issue of whether costs of continuing overhead are part of loss of use damages recoverable in a tort action to recover for injuries or destruction of real property. Other jurisdictions have allowed continuing costs of fixed overhead to be recoverable.[11] The rationale of those courts which have allowed recovery for on-going unabatable fixed overhead costs is that such allowance puts a proper share of those costs upon the tortfeasor who damaged the property rather than upon the innocent person whose property was damaged.
We have, however, spoken to the issue in the context of an action for damages arising as a result of a breach of contract. In Northern Petrochemical, we recognized that loss of use is properly a measure of damage where the loss is a direct result of the injury and where such damages are within the contemplation of the parties at the time of making the contract. 297 Minn. at 124, 211 N.W.2d at 166. In Indianhead Truck Line, Inc. v. Hvidsten Transport, Inc., 268 Minn. 176, 195-96, 128 N.W.2d 334, 348 (1964), we approved recovery of damages which included, among other elements, clerical and office expense, interest on an escrow deposit, and attorneys fees incurred by plaintiff as a result of the defendant's refusal to perform a contract. We there noted that these items were definite and susceptible of proof, whereas alleged savings in operating costs which plaintiff there claimed were remote and speculative. See also Bergquist v. Kreidler, 158 Minn. 127, 196 N.W. 964 (1924).
When a chattel is damaged, not amounting to total destruction in value, the damages include compensation for loss of use. Restatement (Second) of Torts § 928 (1979). Comment (b) to this section states that in addition to damages for dimunition in value, the claimant is entitled to loss of use of which the defendant's tort is the legal cause.
*251 We see no reason why similar rules should not apply in a tort action seeking recovery for damage sustained by the owner of income-producing real property. Therefore, we hold that if an owner of income-producing real property which has been damaged by a tortfeasor can establish by a fair preponderance of the evidence that, but for the tort, his gross income would have been sufficient to pay all or part of his fixed unabatable overhead costs during the reasonable time of restoration or repair, as an element of loss of use of the property the owner may recover from the tortfeasor those costs that would have been paid from the lost income.
Since the trial court ruled that evidence of those costs could not be considered by the jury, and since the court limited recovery to loss of net profits, we remand this case for a new trial on the sole issue of damages for loss of use sustained by appellant as the result of loss of gross income to pay fixed and unabatable overhead costs.
Affirmed in part, reversed in part and remanded for a new trial on loss-of-use damages.
COYNE, J., took no part in the consideration or decision of this case.
NOTES
[1] The settlement also included personal property damages. However, those damages are not in dispute in this litigation.
[2] Both Supornick and General Adjustment Bureau, which represented Commercial Union, hired contractors to estimate the cost of repair. Both projected estimates of repair in excess of $1 million, but since the available insurance coverage was only $850,000, appellant agreed to settle for the policy limits. Later Commercial Union invoked the co-insurance clause because the building was substantially underinsured. Following arbitration, appellant was assessed a penalty in the stated amount. This was the exact amount the jury found the appellant's loss to be for damage to the building.
[3] Rule 408, Minnesota Rules of Evidence, provides:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the court of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
[4] Committee Comment 1977 on Rule 408, Minnesota Rules of Evidence, provides:
This rule will substantially alter present practice in Minnesota affording more protection to compromise discussions than presently exist. The increased protection is justified to the extent that it will encourage frank and free discussion to compromise negotiations and avoid the necessity for parties to speak in terms of hypotheticals. Not only are offers of compromise or the acceptance of compromise inadmissible but also all statements made in compromise negotiations. Contra, Esser v. Brophey, 212 Minn. 194, 196-99, 3 N.W.2d 3, 4, 5 (1942). Before the rule of exclusion is applicable there must be a genuine dispute as to either validity or amount. Absent such a dispute there is no real compromise. The rule does not immunize otherwise discoverable material merely because it was revealed within the context of an offer of compromise. Finally the rule only excludes evidence of compromise on the issue of liability, not for other possible purposes as suggested in the rule. See Esser, id. at 199, 200, 3 N.W.2d at 6. (emphasis added)
[5] Obviously, the evidence was relevant either as constituting an admission by Summit as to building loss sustained or as impeachment of O'Brien's trial position with respect to Summit's claimed loss. Appellant raises the point that Supornick could not bind Summit by his value opinion. That issue need not be addressed since it is clear that O'Brien, Summit's president, made the adjuster's acts those of Summit under the principle of ratification.
[6] Subsequent to the settlement a dispute did arise between appellant and Commercial Union when the latter sought to invoke the co-insurance clause so as to reduce the dollar figure which Summit and Commercial Union had previously agreed to be the amount of the loss.
[7] Before so ruling, the court had allowed some of the "conversion" testimony. The testimony so heard by the court convinced him that such evidence was unduly confusing to the jury.
[8] The sole instruction of the court on this question was: "Part (c) `Loss of profits?' Net profits means the gain which remains from gross sales after deduction of all expenses and costs incurred." Prior to giving this instruction in chambers counsel discussed the submission. While there is some indication appellant's counsel acceded to this definition, a full reading of the proceedings clearly indicates that at all times he contended on-going fixed costs were recoverable.
[9] The losses actually were: 1975 $137,600; 1976 $141,800; and 1977 $165,200.
[10] John McCarthy, appellant's accountant, prepared a forecast of gross income and expenditures during the time of restoration assuming the fire had not occurred. Based on the figures of November-December 1977, this forecast indicated that in the 18 months following the fire appellant would have had $14,300 left after subtracting costs of goods sold and operating expenses, to cover fixed unabatable monthly expenses of taxes, licenses, insurance premiums and mortgage interest payments.
[11] Baltimore & Ohio Railroad Co. v. Commercial Transport, Inc., 273 F.2d 447, 449 (7th Cir. 1960) (railroad allowed to recover overhead expenses in making repairs to property damaged by negligent motorist); Hartford Electric Light Co. v. Beard, 3 Conn.Cir. 323, 213 A.2d 536, 537 (1965) (reasonably certain overhead costs of repair are a proper element of damage and recoverable); New Jersey Power & Light Co. v. Mabee, 41 N.J. 439, 442, 197 A.2d 194, 196 (1964) (no reduction in damages for depreciation of damaged pole); Warren Telephone Co. v. Hakala, 105 Ohio App. 459, 460, 152 N.E.2d 718, 719 (1957) (indirect cost of on-going overhead, in addition to the direct costs for labor and materials, recoverable); Polk v. Oklahoma Gas & Electric Co., 410 P.2d 547, 549 (Okl. 1966) (utility allowed to recover from negligent motorist that damaged its utility pole on-going overhead costs of employees who had to repair the damage). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580036/ | 117 Mich. App. 770 (1982)
324 N.W.2d 496
FELDMAN
v.
M. J. ASSOCIATES
Docket No. 52302.
Michigan Court of Appeals.
Decided July 13, 1982.
Donald A. Turner, for M.J. Associates.
*772 William L. Elson, P.C., for Indian Hills Land Associates.
Before: R.M. MAHER, P.J., and BEASLEY and P.J. MARUTIAK,[*] JJ.
PER CURIAM.
Plaintiffs instituted this action on August 14, 1977, in Oakland County Circuit Court, seeking foreclosure of the defendants' land contract vendee's interests. The trial court granted summary judgment on the foreclosure claim and scheduled a judicial sale, stating that any defendant could redeem the property during the redemption period, which would end six months after the sale. Accordingly, after the sale, defendant M.J. Associates (M.J.) redeemed the property and received a warranty deed. Shortly thereafter, defendant Indian Hills Land Associates (Indian Hills) filed a motion for removal of the deed from record, issuance by the plaintiffs of a warranty deed to Indian Hills, and to order payment by M.J. as a reduction in the land contract balance. The trial court refused to grant this motion, ruling that M.J.'s redemption of the property had cut off Indian Hills's right to redeem. However, the court declared the existence of an equitable mortgage on the property in favor of Indian Hills. M.J. appeals and Indian Hills cross-appeals those rulings.
This case began with the sale by land contract of a parcel of real estate by the plaintiffs to David J. Wood on January 22, 1971. Wood assigned his land contract vendee's interest to Indian Hills some six months later. Indian Hills subsequently assigned its interest to Freeland Investment Company, Inc., which in turn assigned its interest to Fentown *773 Associates, who subsequently assigned their interest to M.J.
When the dust had cleared, M.J. held the land contract vendee's interest subject to five vendor's liens held by the previous sellers.
The trouble began when M.J. stopped making payments to Indian Hills, which in turn stopped making payments to the plaintiffs, who thereupon sought foreclosure of their vendor's lien. Plaintiffs bought the property at the judicial sale for $55,300.28. The sale took place on June 30, 1978. On December 20, 1978, M.J. redeemed the property. Nine days later, Indian Hills attempted to redeem the property.
The trial court found that at the time of foreclosure, Indian Hills owed the plaintiffs $54,401 and M.J. owed Indian Hills $205,000. The court ruled that M.J.'s indebtedness to Indian Hills should be reduced by the amount M.J. had paid for the redemption. The court then declared an equitable mortgage in favor of Indian Hills as security for the remaining indebtedness.
On cross-appeal, Indian Hills contends that the trial court erred in ruling that Indian Hills had lost its right to redeem by virtue of M.J.'s redemption.
Redemption after land contract foreclosure is governed by MCL 600.3140; MSA 27A.3140, which provides in part:
"The vendee of a land contract, his heirs, executors, administrators, or any person lawfully claiming from or under him or them may redeem the entire premises sold within 6 months from the time of the sale by paying to the purchaser, his executors, administrators, or assigns or to the register of deeds in whose office the deed of sale is deposited as provided in the court rules, for the benefit of the purchaser, the sum which was bid *774 with interest from the time of the sale at the rate percent borne by the land contract. * * * After these sums have been paid the deed of sale is void and of no effect, * * *."
The statute on redemption is silent on the problem of priority between parties entitled to redeem. Absent overriding equitable considerations, we believe that the fairest approach is to grant priority to the first party to exercise its right of redemption. Indian Hills had 5 months and 20 days to redeem before M.J., and did not attempt to redeem until 2 days before the expiration of the redemption period.
We hold that a valid redemption of property generally operates to cut off the redemption rights of other parties entitled to redeem.
On appeal, M.J. contends that the trial court erred in declaring an equitable mortgage in favor of Indian Hills. The court issued its ruling in the following manner:
"Equitable considerations also dictate that there exists on the property, an equitable mortgage in favor of Indian Hills. As the court clearly held in the July 3rd opinion, the redemption by M.J. Associates did not operate to extinguish their debt on the land contract to Indian Hills, rather the debt was reduced by the count [sic] paid by M.J. Associates for the redemption.
"The Supreme Court in Judd v Carnegie, 324 Mich 583 [37 NW2d 558] (1949), noted that:
"`The power of a court of equity to decree an equitable mortgage under proper circumstances * * * is well established.' Id., 587.
"The court finds the `proper circumstances' to be present in the case at bar. Inasmuch as an equitable mortgage vests the grantee-mortgagee with the right to bring an action for foreclosure, in the event that the obligation of the grantor as mortgagor is not performed, In re VanDuzer, 390 Mich 571 [213 NW2d 167] (1973), Indian Hills's interests are protected."
*775 We agree with the trial court's determination that equitable considerations dictated the imposition of an equitable mortgage. Prior to M.J.'s default on its obligation to Indian Hills, Indian Hills held a vendor's lien on the property. We do not believe that, under the circumstances of this case, M.J. should be permitted to utilize its redemption of the property to defeat Indian Hills's security interest. A vendor's lien was provided for in the original contract between M.J. and Indian Hills; as between those two parties, the contract remains in force.
According to McAlpine v Meehan, 312 Mich 107; 19 NW2d 765 (1945), a purchaser at a tax sale merely restores the chain of title and equity will enforce all contracts that existed prior to the tax sale where the sale is necessitated by a breach of a covenant to pay taxes. The McAlpine rationale is persuasive in the present context where the judicial sale occurred as a result of M.J.'s failure to make payments on its land contract.
We recognize that the McAlpine holding was based on a particular statutory provision governing tax sales, 1948 CL 211.353, and that no analogous provision exists with respect to redemptions. For that reason we must concede that McAlpine is distinguishable from the present situation. Nevertheless, we believe that the statute on tax sales or property was shaped by equitable considerations and that the same considerations justify application of a similar approach to the case at bar.
We find the equities approximately equal in this case and believe that justice would be best served by restoration of the parties to their original positions. Because that is precisely what the trial court did, its judgment is affirmed.
Affirmed. No costs, neither party having prevailed in full.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580038/ | 392 F.Supp. 813 (1975)
T. S. ALPHIN and Alphin Aircraft, Inc.
v.
Richard HENSON and Henson Aviation, Inc. and City of Hagerstown, Maryland.
Civ. No. 73-449-T.
United States District Court, D. Maryland.
March 14, 1975.
*814 *815 Robert M. Beckman, Frank K. Smith, Washington, D. C., and Norman I. Broadwater, Hagerstown, Md., for plaintiffs.
George J. Goldsborough, Jr., and Broughton M. Earnest, Easton, Md., for defendants Henson and Henson Aviation, Inc.
Robert E. Kuczynski, City Atty., Daniel W. Moylan and William P. Nairn, Hagerstown, Md., for defendant City of Hagerstown.
THOMSEN, District Judge.
The several claims in this action under the antitrust laws, 15 U.S.C. 2, 15 and 26, originally brought by T. S. Alphin, d/b/a Alphin Aircraft (Alphin), against Richard Henson (Henson), and Henson Aviation, Inc. (HInc.), deal with the furnishing of aviation supplies and services on the Hagerstown Regional Airport, formerly called the Hagerstown Municipal Airport (the airport). By subsequent pleadings Alphin has added the City of Hagerstown as a defendant and Alphin, Inc. (AInc.) as a plaintiff, and has added a pendent jurisdiction claim. Henson and HInc. have filed a counterclaim against Alphin and a cross claim against the City.[1]
The following facts are found from the evidence admitted at the trial and inferences drawn therefrom, giving consideration to the credibility of the several witnesses.
FINDINGS OF FACT
1. Hagerstown is the county seat of Washington County, in the narrow part of Western Maryland, where the Potomac River runs close to the Mason-Dixon line. The population of the City itself has been relatively static, 31,000 in *816 1930 and 36,000 in 1970. The "Hagerstown area", however, which runs into both Pennsylvania and West Virginia, has about 100,000 persons. The airport is some five miles north of the City and one mile south of the Mason-Dixon line.
The Airport
2. In 1930 defendant Henson was employed as a test-pilot by Kreider-Reisner Aircraft Co., Inc., a manufacturer of aircraft and aircraft parts, now part of Fairchild Industries (Fairchild). In 1930 Henson "opened" a 40-acre airport on land then owned by Fairchild.
3. In 1934 the City purchased the airport from Fairchild. For some years the business of Fairchild expanded, but in more recent years it has declined. Over the years Fairchild has cooperated with the City by selling to it some parcels of land adjacent to the airport. Other land has been acquird by the City, and the airport has grown to 360 acres.
4. A plan of the airport and adjacent properties as they now exist is attached to this opinion as Exhibit A. The instrument runway runs east and west; the non-instrument runway runs roughly north and south. Exhibit A is based upon a preliminary layout plan which has been prepared by consulting engineers employed by the City in March 1973, whose final report is expected early in the present year. Exhibit A also shows some of the land which the engineers propose should be added to the airport, and which the City has the power to condemn under Art. 1A, § 7-701, Anno.Code of Md., Vol. 1, 1974 Cum.Supp.[2]
Henson's Activities Through 1971
5. In 1931, while he was still employed by Fairchild, Henson began to operate a flying service at the airport. At that time, and in 1934, when the City bought the airport property from Fairchild, the only hangar at the airport was an old wooden hangar built in the 1920's, which Henson had leased from Fairchild, but which has since been torn down.
6. In 1936 the City built a hangar (no. 1 on the plan) and leased it to Henson. It is now being used as the airport terminal.
7. Henson's activities on the airport, most of which have been carried on through HInc.,[3] expanded over the years, although Henson also continued to work for Fairchild until 1964, when he began to devote his full time to his airport interests. For some time before as well as after 1964 Henson and HInc. had a fixed base operation (fbo)[4] on the airport. They provide line service (sale of fuel, oil and lubricants),[5] flight training, ground school training, aircraft rental, tie down service, aircraft parking, aircraft repair and maintenance, avionics, a small amount of aircraft sales, air taxi and charter services, and a commuter service operated in connection with Allegheny Airlines.[6]
*817 8. By a lease executed in 1948, modified in 1949, the City leased the airport to Henson. In 1952 a new lease for a period of three years was executed, this time to HInc., wherein, for a rental of $2,000 a year, HInc. was given the right to control all selling privileges and concession rights on the airport and in the City hangar, subject to various provisions.[7] The lease specifically provided: that it should not be construed as granting HInc. any exclusive right to conduct any activity at the airport involving the use of the landing area contrary to Section 303 of the Civil Aeronautics Act of 1938; and that the lease "shall be subordinate to the provisions of any existing or future agreement between the City and the United States, relative to the operation or maintenance of the airport, the execution of which has been or may be required as a condition precedent to the expenditure of Federal funds for the development of the airport". After the expiration of the lease, HInc. held over as a tenant, at rentals increased from time to time, until a new lease was executed in 1972. Until 1972 no one else asked the City officials for a lease of the airport or any part thereof, or complained to the City of the terms of the arangement with Henson or HInc.
9. In 1954, HInc., the Landis Tool Company and the City worked out an unusual arrangement whereby Landis built a hangar (no. 2 on the plan) on the airport, conveyed its interest in the hangar to HInc, and leased it back, with a provision that the City might purchase the hangar at any time at its depreciated value, in which event HInc. would make a specified adjustment with Landis. The arrangement was satisfactory to all three parties and was repeated in 1961-2, when Landis built a larger hangar (no. 3 on the plan) and terminated its lease of the smaller hangar, which became the avionics building.
10. In 1959 Henson built a T-hangar (no. 4 on the plan) on airport land leased by the City to Henson, who borrowed the money to build the hangar. Henson agreed to pay the City rent based on his receipts from its use. In 1961 Henson purchased from Fairchild a plot of land just west of the first T-hangar, and over a period of several years built four more T-hangars thereon (Nos. 5, 6, 7 and 8 on the plan). In 1971, those hangars and the land on which they were built were deeded to the City, along with Henson's interest in other hangars on City land.
11. Henson acted as airport manager, with the knowledge and approval of the City officials, in dealings with the Federal Aviation Administration and with other persons and corporations, although no written agreement formally designating an "airport manager" was signed until May 1972, when HInc. (the corporate defendant) was so designated.
12. It is the usual practice, in Maryland and elsewhere, for cities of the size of Hagerstown or somewhat larger, to have the fixed base operator act as airport manager; the evidence does not show, however, that it is the general practice for such fixed base operator to negotiate on behalf of the City with potential competitors.
13. The agreement between Henson and the Magazine brothers (see n. 3, *818 above), under which a holding company, in which Henson has a 45% interest, acquired all of the stock of HInc., became effective in April 1971.
FAA
14. Since the City obtains financial assistance from the federal government for the airport, the Federal Aviation Administration (FAA) has the responsibility to see that applicable federal laws and regulations are complied with, including the preservation of minimum standards and the policy against the granting of exclusive rights at an airport. Representatives of FAA visited the airport from time to time, and the Regional Office of FAA was familiar with the arrangements between Henson and the City. Over the years FAA has dealt with Henson as the representative of the City on the airport and has not found that the relationship of Henson with the City, nor the operations which Henson and HInc. conducted on the airport, violated the "non-exclusivity" provisions of any applicable law or policy. The relevant laws and policies which FAA is charged with enforcing are set out in Exhibit B, at the end of this opinion.[8]
Alphin's Activities Through 1971
15. Alphin is a capable aircraft mechanic. He worked for the Government from 1942-1946, then moved to Hagerstown to work for Fairchild. Shortly thereafter Henson employed Alphin to do maintenance and repair work for Henson on the airport and to be manager of that part of Henson's business.
16. In 1948 that work dropped off; Alphin wished to do aviation maintenance and repair work on his own, and Henson was glad to turn over his repair work to Alphin, with the understanding that Alphin would give it prompt attention. Accordingly, Henson subleased to Alphin the old wooden hangar which Henson had leased from Fairchild.
17. In late 1952 Henson's lease of the wooden hangar terminated, and Fairchild reoccupied it. Alphin would have liked to build a shop on the airport, but Henson told him there was no space available at that time. Alphin did not take the matter up with any City official, but arranged with Henson to do part of his (Alphin's) maintenance and repair work in the City hangar (then the only hangar on the airport except the wooden hangar) and to store his materials there. He moved some of his tools and equipment to his home, where he did maintenance and repair work on aircraft which he brought to that location, working at first in the basement of his home and shortly thereafter in a garage which he built.
18. At about the same time Alphin discussed with Henson the possibility of Alphin acquiring privately owned property (no. 9 on the plan, now occupied by the Civil Air Patrol), adjacent to the north boundary of the airport, a short distance north of the City hangar. Henson said that he would not allow Alphin access to the airport from that site, and Alphin did not attempt to go over Henson's head to any City official in connection with his request.
19. Alphin returned to work for Fairchild in March 1953, but continued to do maintenance and repair work on his own, in the City hangar and in his own garage. He is particularly skillful in the repair and rebuilding of badly damaged aircraft, which are hauled to his shop. He continued this operation after he was laid off by Fairchild in 1959. He would have liked to have a shop on the airport property, but Henson told him that no suitable space was available. It is true that no suitable space in a building was available except the space Alphin already had in the City hangar, and Alphin did not ask the City or any City official to rent him space to build a shop.
20. In 1962 Alphin leased from Henson the northern portion of the first *819 T-hangar which Henson had built on the land he had purchased from Fairchild (no. 5 on the plan). Henson caused that portion of the hangar to be built wider than the other parts, so that Alphin could use it more effectively for the maintenance and repair work he was doing.
21. In 1966 Alphin purchased a portion of a tract of land (nos. 10a and 10b on the plan) extending from Oaks Road to Route 11 as it now runs. The western portion of the tract (10a), which is immediately across Oaks Road from the airport property, is now occupied by six buildings, five of which were built by Alphin between 1966 and 1973.[9] Alphin conducts his maintenance, repair and reconstruction activities from that location, although he still uses the portion of the T-hangar which he first rented from Henson in 1962.
22. When Alphin purchased his present location in 1966, there was a rough road on the airport leading from a point on Oaks Road opposite the west side of Alphin's property to the south side of the east-west runway. The road had been prepared for trucks hauling fill on the airport.
23. With Henson's permission, Alphin placed gravel on the road, and later, with the permission of and supervision by Van Eykelbosch, the City Engineer, Alphin employed a contractor to grade and surface the road, making it a reasonably satisfactory taxiway from the east-west runway to Alphin's property, and also suitable for hauling materials to and from the portion of the T-hangar leased to Alphin.
24. Alphin ties down planes on which he is working, has worked or is about to work, either on his own property or on the airport property on both sides of the taxiway just across Oaks Road from his property (nos. 11a and 11b on the plan). He pays very little in tie-down fees to the City, because he contends that tie-down fees are not payable on aircraft waiting repair or under repair. The City officials disagree with that position and the dispute has not been resolved.
The Interim Airport Authority and The Research Group, Inc. (1969-1971)
25. Neither the citizens of Hagerstown nor its officials showed much interest in the development or management of the airport until 1969. In that year, at the suggestion of the Chamber of Commerce, a Hagerstown-Washington County Interim Airport Authority was appointed to "function as a liaison unit to the City and County governmental units . . . (and) study . . . the airport operations and problems". Henson was an adviser to the interim authority.
26. The Maryland Department of Economic Development assisted the City of Hagerstown and Washington County by obtaining funds from the Appalachian Regional Commission to finance this study, and then entered into a contract with The Research Group, Inc. to render the necessary professional and technical services. FAA concurred in the general arrangement.
27. The Research Group, Inc. submitted two progress reports, and in May 1971 presented an 80-page report, with two appendices, and an introduction, overview and summary of recommendations. The recommendations included the following:
"1. To adequately and effectively maintain and expand the airport serving Hagerstown and Washington County, new ownership policy, management and financial arrangements should be adopted. Transfer of airport ownership and primary support to Washington County is recommended."
*820 "2. A development policy and plan should guide decisions on public and private investment in the airport area."
"10. Terminal facilities for Hagerstown air carrier service are inadequate and a new terminal structure should be designed and constructed."
"12. Four new leases should be drawn and executed. One should describe the responsibilities of the Fixed Base Operator in business at Hagerstown Municipal Airport and his ground and structure rents, duties, and obligations. Another should describe the agreement between Allegheny Commuter Airlines and the airport policy board for new terminal and terminal area space. A third lease should be executed between Alphin Aircraft and the airport policy board for ground rent and taxiway access. The fourth lease should describe the privileges and payment arrangements with Fairchild Hiller Corporation for property and access."
28. With respect to Alphin, that report stated: "A lease for $1,000 annually is recommended for rental of city land and taxiway access for Alphin Aircraft, provided no change in present aircraft rebuilding operations is anticipated.[10]
29. On September 30, 1971, the Interim Airport Authority wrote to the Mayor and City Council and the County Commissioners enclosing copies of the report, stating that there had been some fundamental differences in concepts, and referring to a meeting to be held to discuss the report. The Interim Airport Authority stated "that two items deserve careful consideration regardless of how the ownership of the airport finally evolves". Those items are set out in the margin.[11]
Events Between October 1971 and the Filing of the Original Complaint in this Action in May 1973
30. The proposals in the report of the Research Group (see Findings 27, 28, above) and those in the letter of the Interim Airport Authority (see Finding 29 *821 and note 11) received wide publicity in the Hagerstown newspapers. Mayor Mills was negotiating a management contract with Henson, and a public meeting was held by the City Council on February 14, 1972, to discuss the proposed contract.
31. At the February 14 meeting various views were advanced.[12] Alphin expressed concern that his "rights" might not be protected if Henson were appointed airport manager, and was told by members of the Council that Henson would be acting as a City agent and that any disagreements could be taken up with the Council.
32. Two agreements between the City and HInc. were drafted during the early part of 1972 and executed under date of and effective May 1, 1972, pursuant to a resolution of the Council.
(i) One was a lease to HInc. as a "fixed base operator", granting it the exclusive use of specified portions of the airport for fixed base operations, and non-exclusive use for other activities theretofore conducted by HInc., with certain specified requirements to be observed by it. Under that agreement HInc., as the fixed base operator, obligated itself to furnish all items generally included in a full fbo. FAA assisted in drafting portions of this agreement and did not object to it.
(ii) The other was a contract between the City and HInc. for the services of that corporation as a "Management Corporation to fully manage financially and operationally all aspects of responsibilities" in designated areas. It is an elaborate document, which is not illegal (see Conclusion 2, below), nor unreasonable except insofar as it might be interpreted to permit the management corporation to negotiate on behalf of the City with persons who would be prospective competitors of the management corporation in its own operations under its lease. The provisions of the management contract set out in the margin[13] would appear to discourage, even if they do not expressly prohibit, such negotiations by the management corporation with potential competitors. (See Finding 14 above, and Exhibit B at the end of this opinion). Nevertheless, during 1972 and 1973, with the knowledge of the then Mayor, Henson, as president of the management corporation, negotiated with Alphin and other persons desiring space on the airport for various activities which would compete with HInc., although final decision on any such application was to be left with the City officials. FAA knew that Henson was conducting such negotiations and did not object to his doing so.
33. On May 8, 1972, Alphin, through John M. Colton, Esq., of Hagerstown, an experienced attorney, wrote Henson with respect to a proposed lease he and Alphin had discussed with Henson a *822 few days before. In substance, Alphin asked only for a lease permitting him to do what he was already doing without a lease, except that he wished to enlarge the area which he was using for tie-downs. The letter requested that six items be included in the lease.
"1. Access on and off the airport property to Alphin's hangar and place of business for Alphin, his employees, invitees and customers.
"2. Mr. Alphin would like space for tie-downs for his own aircraft as well as aircraft of his customers and invitees, as may be necessary. He would like use of the parcel of land lying west of his property and between his present taxiway and the Fairchild fence. It would be his responsibility for any damage to planes in this tie-down area, and not the responsibility of the airport operator.
"3. Naturally, the Lease will provide for abiding by the provisions of the Airport Master Plan.
"4. Mr. Alphin has already graded and laid gravel on the taxi-way leading to his hangar. The Lease will provide for his black-topping this taxi-way, to be completed over the next five years. The maintenance and upkeep of this taxi-way would be his responsibility. He would also be responsible for snow removal from his taxi-way and cutting grass on the tie-down area, which would include the grass immediately adjacent to his taxi-way.
"5. We suggest the duration of the Lease be for a period of twenty (20) years at an annual rental of One Thousand ($1,000.00) Dollars per year for all items enumerated above.
"6. This Lease will contemplate Alphin's carrying proper insurance and being governed by FAA regulations."
34. Colton enclosed with his letter Alphin's check for $85 payable to Henson as "Airport Manager" to be applied for the month of May on the proposed $1,000 a year rental agreement. Alphin has continued to make the monthly payments ($75 for the eleventh and twelfth months) ever since. They have been forwarded to the City and placed in the Airport Trust Fund, as other moneys were. See n. 16, below. Alphin made no other request of Henson or the City at that time. Alphin continues to conduct the various operations referred to in Colton's letter.
35. On November 30, 1972, Henson sent Alphin a form of lease which contained a number of provisions to which Alphin objected.[14]
36. Sometime during December 1972, Alphin retained his present counsel, who on December 26, 1972, wrote Mayor Mills applying for lease of space and grant of privileges to conduct a fixed base operation at the airport, including the sale of fuel and oil. The letter referred to the proposed operation as a "full" fixed base operation; in fact, it asked for the space and privilege to conduct any of the activities included in a full fbo, although Alphin intended to perform only the more profitable ones.
The letter erroneously stated that there was "a heavy demand for additional service and facilities on the airport" and that "[e]xisting facilities [were] inadequate to meet the demand". The only unsatisfied demand which the Court finds to have been proved was for additional hangar space for inside parking of private aircraft, and Alphin did not intend *823 to build any hangars for that purpose.
The letter requested information as to what space was available and the terms and conditions which the City proposed to include in a lease.
The letter stated: "It is obviously improper for Henson Aviation, Inc., to act on behalf of the City in negotiating the contract for a competitive service", and argue that "the purported delegation by the City to Henson Aviation, Inc., of such authority is void under Maryland law". The letter requested a meeting with a duly authorized official of the City to negotiate immediately for a competitive fixed base operation.
37. Prior to the December 26, 1972 letter, Alphin had never requested a full fixed base operation nor the right to sell fuel on the airport.
38. The income tax returns of Alphin and his wife show that during the years 1968 through 1972 Alphin's net profit from his business ran from $6,638 to $15,332.
39. The Court observed Alphin on the stand for three days, and finds that, although he is an excellent mechanic, he is not a good business man.
40. Alphin offered the testimony of three men who said that they were willing to finance him in a fixed base operation at a suitable location on the airport. None of them testified whether they intended to lend the money or buy stock in a corporation.[15] The Court finds that it is unlikely that any of them would finance the suggested venture.
41. The Court finds that the December 26, 1972, letter (see Finding 36) was principally intended to help establish a claim for violation of the antitrust laws.
42. Mayor Mills sent the letter to Henson, who in turn sent it to the City Attorney. On January 3, 1973, Henson sent to the Mayor and all Councilmen an elaborate statement of the factors which he believed important in considering Alphin's new request. He recommended that the proposal be rejected for reasons which he stated, including: (1) that Alphin wanted the right to engage in the more profitable portions of a full fixed base operation (particularly the sale of fuel), without agreeing to furnish the less profitable services which HInc. was required to furnish under the terms of its lease agreement; and (2) that it was desirable to update the master plan before leasing to anyone space for a full fixed base operation.
43. The Court finds on all the evidence that the City was and is justified in not accepting the proposal contained in Beckman's letter of December 26, 1972, and in not making any long term commitments with respect to space on the airport until a final layout plan is adopted.[16]
44. On the other hand, the Court finds that Henson's objection to Alphin's proposal was based in part upon Henson's reluctance to have competition for the more profitable services which were a part of the package of services which HInc. was then furnishing.[17]
45. A city election was impending; it resulted in a new Mayor, who took office early in April 1973.
46. Meanwhile, on January 26, 1973, Henson met with Alphin and his present counsel, and discussed possible sites for an fbo, as well as the proposal Alphin had made through his previous counsel in 1972. At that meeting and ever since Alphin and his present counsel have *824 insisted that Alphin be allowed to rent at once the large area designated as nos. 12a and 12b on the plan (Exhibit A), which is and has been for some time reserved for other uses, at one time for an administration building, and more recently partly for corporate hangars (12a) and partly for automobile parking (12b), because it is adjacent to the road and is near the terminal building and the motel.[18] The Court finds that the demand by Alphin's counsel for a lease of that space at that time or at this time is unreasonable, in view of the fact that an airport layout plan was in January 1973 and is still under preparation. A preliminary airport layout plan, dated October 4, 1974, was offered in evidence and the final plan is expected early this year (1975).[19]
47. On February 6, 1973, Beckman wrote Mayor Mills a letter, asking again to deal directly with the City, suggesting that the Mayor and his "colleagues on the City Council" were "acting in violation of Federal law and State law and were exposing the City and themselves personally to penalties for such violation". Beckman also wrote a similar letter to Henson. Henson replied on February 19, outlining his view of the negotiations he had had with Alphin and Alphin's attorneys, and expressing a willingness to continue negotiations "in relation to his original desires or that of a full fixed base operation". Beckman replied to Henson, again objecting to having to deal with him rather than a City official.
48. At a meeting held on February 26, 1973, attended by Alphin, Beckman, Henson, Mayor Mills, City Attorney Oswald and two men from FAA, complaints were voiced by Alphin's attorney against the City and by the City Attorney against Alphin. Henson suggested an area north of the western portion of the east-west runway for Alphin's operation (no. 14 on the plan). Alphin rejected it. The absence of a road or taxiway leading to that area justified Alphin's rejection.
49. FAA did not conclude that the City was being unreasonable in not leasing to Alphin the area which Alphin was seeking, and in wishing to wait for the completion of the master plan and a determination of how new facilities would be financed before entering into long term leases.
50. Other persons were interested in leases on the airport for various commercial activities, ranging from an engine repair shop to a full fixed base operation. Letters from three such persons written in 1973 were offered in evidence
From the Filing of the Original Complaint Herein on May 7, 1973, to Trial in January 1975
51. On May 7, 1973, Henson sent Alphin a form of lease, similar to proposed leases he was offering or prepared to offer to other applicants for space on the airport to conduct a full fixed base operation. Alphin testified that it was this letter and proposed lease which prompted him to direct his attorney to file suit. In fact, however, Alphin's original complaint against Henson and HInc. had been filed in this Court on May 4, 1973. Service of process was made on May 10.
*825 52. The proposed lease was for a full fbo, granting the operator the right to conduct and requiring him to conduct the operation for a period of 20 years. No specific location nor amount of rent was specified. Most of the requirements in the proposed form of lease were not inherently unreasonable, although Alphin reasonably objected to some of them. Basically, Alphin did not want to be required to conduct the same fbo as was being conducted by Henson. He wanted to be able to sell fuel and conduct the other profitable operations, without the obligation to offer the less profitable services which Henson was offering.
53. On the other hand, the terms which Henson proposed in the drafts of leases sent to Alphin in November 1972, and to Alphin and one or more others in May 1973, would have handicapped if not prevented Alphin and the others from effectively competing with HInc. and were intended by Henson to have such effect.
54. On May 17, 1973, Beckman wrote Mayor Paddock, who had taken office in April, stating his objections to the lease proposed by Henson and calling on the Mayor to establish a Municipal Airport Board to operate the airport, with whom Alphin "can negotiate a fixed base agreement in the best interests of the City".
55. Mayor Paddock replied on July 24, explaining the delay in answering the letter and stating: that the airport matter had been reviewed and discussed with FAA and with airport personnel; that he understood Beckman had some reluctance in dealing with Henson; and that the Mayor and Council, as the ultimate authority, were more than willing to discuss Beckman's request at his earliest convenience. The Mayor suggested that Beckman prepare a specific proposal.
56. Alphin's proposal was not submitted to the City until May 1974, after Alphin had joined the City as an additional defendant in this case in February 1974.[20] Alphin blames the delay in submitting his proposal to the failure of the City to tell Alphin what land would be available for him. This Court finds, however, that the City was justified in not selecting a particular area to be leased to Alphin: (1) because it is in the public interest not to enter into any long term leases with anyone until the layout plan has been finally submitted and discussed; (2) because other persons are interested in obtaining a lease or other contract to furnish some or all services on the airport which would be included in a fixed base operation; (3) because Alphin wishes to have the right to furnish only those services which he believes would be profitable, and it has not been shown that a full fixed base operation, such as HInc. now furnishes, could be conducted profitably if a competitor were allowed to furnish only the more profitable elements thereof; and (4) the City has the duty to consider the public interest in these and other questions.
57. In the latter part of 1973 the Grove Manufacturing Co., a large employer in the Hagerstown area, approached Henson in an effort to obtain a lease of a part of the land which Alphin wants. Grove wished to lease the land to *826 build a corporate hangar, with adjacent parking area, which is the use for which the land is tentatively assigned. Grove tendered to Henson a check for $2,000 for an option, which the City refused to grant. By agreement of Grove and the City, the check was deposited in the Airport Trust Fund, without obligation on the part of the City to enter into the proposed lease.
58. In 1974, Smith, one of Alphin's present counsel, complained to the FAA that the proposed location of the glide slope (a component of the instrument landing system) south of the east-west runway would require the relocation of the taxiway used by Alphin, and that the location was chosen by Henson and the City for an improper purpose. FAA investigated and found that the taxiway would have to be relocated even if the glide slope were located north of the runway, as Alphin requested and as it was finally located. FAA found no violation of its rules and this Court finds no improper motivation for any position taken by the City or Henson in connection with the location of the glide slope.
DISCUSSION AND CONCLUSIONS
The general principles established by the courts in construing the antitrust laws are well known and need not be repeated. See United States v. Grinnel Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); United States v. First Nat. Bank & Trust Co., 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964); United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); United States v. du Pont & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951); Schine Theatres v. United States, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245 (1948); American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); United States v. Aluminum Co. of America, 148 F.2d 416 (2 Cir. 1945).
It has been held that the antitrust laws are aimed at private action, not at governmental action; that states, cities and governmental agencies cannot be held liable for violations of the antitrust laws; and that restraints of trade which arise from valid governmental action cannot give rise to private antitrust liability. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943); Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1 Cir. 1966); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1 Cir. 1970); Ladue Local Lines, Inc. v. Bi-State Development Agency, 433 F.2d 131 (8 Cir. 1970); Padgett v. Louisville and Jefferson County Air Board, 492 F.2d 1258 (6 Cir. 1974); and cases cited in those opinions.
In Wiggins Airways, supra, the Massachusetts Port Authority entered into an exclusive lease with a private corporation for the fixed base operations at Logan Airport in Boston, thereby precluding other private corporations from participating in those activities. The First Circuit concluded: "It is clear that in [executing the lease, the Port Authority] was acting as an instrumentality or agency of the state, pursuant to the legislative mandate imposed upon it to operate and manage the airport and establish rules and regulations for its use". 362 F.2d at 55.
In the instant case the City has been operating the airport under Art. 1A, § 13 (now § 7-701) of the Maryland Code.
The Monopoly Issue Contracts Between the City and Henson or HInc.
Henson developed over the years a monopoly, in the popular sense of the term (see United States v. Griffith, 334 U.S. 100, 106, 68 S.Ct. 941, 92 L.Ed. *827 1236), in some but not all commercial aeronautical activities on the airport.[21]
Conclusion 1. Insofar as any monopoly which Henson and HInc. have enjoyed is the result of the leases which the City entered into over the years with Henson individually or with HInc.; it is not a monopoly which is unlawful under the antitrust laws; the City had and has the right to decide whether it is in the best interest of the public to enter into such leases with one or with two or more persons or corporations. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1 Cir. 1966); and other cases cited in the second paragraph under the heading "Discussion and Conclusions", above.
Conclusion 2. Moreover, the City had the right to designate Henson or HInc. as the airport manager. The evidence shows that it is common practice in Maryland and elsewhere for cities the size of Hagerstown to have the fixed base operator act as airport manager. FAA has been familiar with the agreements which the City has had with Henson and HInc. over the years, including the 1972 agreements, and no objection thereto has been made by FAA officials or other personnel. For a further description of the management contract, see Finding 32(ii).
The Conspiracy Issue
The fbo lease between the City and Henson Aviation, Inc., did not grant Henson or HInc. any exclusive right to furnish fbo services on the airport. Plaintiffs have failed to prove that the contract designating HInc. as airport manager was intended by the City to authorize Henson or HInc. to prevent other persons desiring to furnish fbo services on the airport from dealing directly with the City for such privileges. City officials knew that Henson was negotiating with Alphin and others, including Fairchild, Grove, Colaluca and Van Tries, during 1972 and 1973, but it has not been shown that any of the applicants except Alphin objected to negotiating with Henson. Alphin, through his new attorney, made his first such objection to the City during the last month of the old administration. When the objection was renewed in the first days of the new administration, and the new Mayor had had a reasonable time to investigate the matter, he invited Alphin and his counsel to deal directly with the City officials rather than with Henson with respect to the proposed lease to Alphin of space on the airport.
Conclusion 3. Plaintiffs have failed to prove any conspiracy in violation of the antitrust laws between the City or any of its officials and Henson or HInc.[22]
Attempt to Monopolize
Conclusion 4. When Henson, as airport manager, undertook to represent the City in negotiating a lease with Alphin and others who wished to furnish some fbo services on the airport in competition with Henson or HInc. (which Henson did during a period of a year or so before July 1973) and proposed to Alphin and others terms which would have tended to protect from competition *828 the business which Henson Aviation, Inc. then had on the airport, he went beyond the limits permitted by the antitrust laws. Cf. George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1 Cir. 1970).
Conclusion 5. The Court has found that the terms which Henson proposed in the drafts sent to Alphin in November 1972 and to Alphin and one or more others in May 1973 would have handicapped if not prevented Alphin and the others from effectively competing with HInc., and were intended by Henson to have such effect. The Court finds and concludes that the submission of these proposed leases in 1972 and 1973 was an attempt by Henson to monopolize the furnishing of fbo services on the airport, in violation of 15 U.S.C. 2.
Injunction Against Henson and HInc.
Conclusion 6. Alphin and others who wish to render some fbo services on the airport have the legal right to try to persuade the City officials: (a) that it would be in the public interest to have more than one fixed base operator on the airport; or (b) if the City decides that it is in the public interest to have only one fixed base operator, that the applicant should be the one rather than HInc.[23] Eastern Railroad Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); Whitten v. Paddock Pool Builders, Inc., 424 F.2d 25 (1 Cir. 1970).
Conclusion 7. Alphin is entitled to an injunction restraining Henson and HInc. from attempting to monopolize any part of the business they now conduct on the airport under their existing lease, by negotiating on behalf of the City, as airport manager or otherwise, or using the position of airport manager in an effort to prevent others from establishing competitive operations, or in any other way that would violate § 2 of the Sherman Act.
Injunction Against the City
It is at best very doubtful whether an injunction may be issued against a City under 15 U.S.C. 26. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), and other cases cited above. However, it is not necessary to decide that question in this case, because this Court has concluded that an injunction can be and should be issued against the City (a) under the general equitable jurisdiction of this Court, and (b) under its pendent jurisdiction, invoked in Count II of the amended complaint.
(a)
The "non-exclusivity" provisions of 49 U.S.C. 1349(a) and of the applicable FAA Advisory Circular, dated 4 April 72, are set out in Exhibit B. This Court has found (Finding 14) that FAA was familiar with the arrangements between Henson and the City, has dealt with Henson as the representative of the City on the airport over the years, and has not found that the relationship of Henson with the City, nor the operations which Henson and HInc. conducted on the airport, violated the "non-exclusivity" provisions of any applicable law or policy. It is not clear, however, that FAA approved the action of the former Mayor in authorizing Henson in late 1972 to negotiate on behalf of the City with Alphin and other persons who wanted to conduct operations on the airport which would compete with those being conducted by HInc. Although it does not appear from the evidence that the present City administration has permitted such negotiations, the position of Henson, as president of HInc., the airport manager, and the need of the City to consult Henson individually and as the president of the Airport Manager, *829 requires the City to draw a line between what is permissible and what is not permissible under 49 U.S.C. 1349.
Conclusion 8. This Court has concluded that no broad injunction restraining the City in its operation of the airport should be granted, but that the history of the relationship of Henson with the City justifies and requires the issuance of a narrow injunction, restraining the City and its officials from permitting Henson to negotiate on behalf of the City with persons seeking leases or contracts permitting them to engage in activities on the airport which would compete with those engaged in by Henson, HInc., or any other corporation in which Henson is an officer or a stockholder.[24]
(b)
The facts also justify such an injunction under Maryland law, particularly Article 41 of the Declaration of Rights, a part of the Maryland Constitution, as expounded in an elaborate opinion by the late Judge Offutt of the Court of Appeals of Maryland in Raney v. County Commissioners of Montgomery County, 170 Md. 183, 183 A. 548 (1936), which resulted in an injunction against the County based on Article 41. In the course of his opinion Judge Offutt said:
"Article 41 of the Maryland Declaration of Rights declares that `monopolies are odius, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.' Apart from that declaration, the instrument contains no denunciation of special privileges, except such as may be implied from the form of government which it erects. But when the democratic nature of that government, and the care and foresight exercised, in the formulation of that instrument, to safeguard the citizen in the enjoyment of privileges and immunities which were regarded as of common right, are considered, it is manifest that its people never intended that so highly important a right as that of equality before the law should be without protection. So that when the meaning to be given the word `monopoly,' as used in article 41, is considered, great weight is to be given to the fact that but for that article the Constitution affords to the citizen no express protection against special and oppressive privileges.
"The word itself ordinarily connotes a privilege connected with commerce in commodities because, historically, it was more often used to describe a condition which resulted from an exclusive privilege to engage in such commerce, but it has long had a broader meaning, more in harmony with the spirit of the Constitution, and, in determining the sense in which it is used in that instrument, it should be given that meaning, that its general intent may be served, rather than thwarted or confined by any narrow or overnice construction." 170 Md. at 190, 183 A. at 551.
The Issue of Damages
Conclusion 9. It is clear that Alphin is not entitled to recover any damages against the City.[25]
However, if Alphin had proved that he suffered any damage as a result of any *830 attempt to monopolize by Henson during the period of three years before May 4, 1973, he would be entitled to recover damages against Henson and HInc.
Conclusion 10. The Court finds and concludes, however, that Alphin has failed to prove that he has suffered any pecuniary loss as a result of any such attempt to monopolize, either during the three year period before May 4, 1973, or since that time. The facts which form the basis for this conclusion are set out in Findings Nos. 25 to 58. In summary, the Court has found that the City was and is justified in not entering into any long term leases or other agreement for a second fixed base operation on the airport until the final layout plan has been approved. Meanwhile, Alphin has been doing exactly what he asked to be allowed to do in May 1972 (see Findings 33 and 34).
Conclusion 11. The Court finds and concludes that even if Henson had not attempted to impede Alphin's efforts to obtain the type of lease Alphin wanted, the City would not, up to the present time, have entered into a lease or other agreement with Alphin permitting him to conduct the type of operation outlined in Beckman's letter of December 26, 1972 (see Finding 36) and/or in Alphin's proposal of May 1974 (see Finding 56).
The Court finds and concludes that Alphin has not proved that any false statements were made to or material facts withheld from any public officials by Henson. Such cases as Woods Exploration & Pro. Co. v. Aluminum Co. of America, 438 F.2d 1286 (5 Cir. 1971), and Walker, Inc. v. Food Machinery, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), are no authority for relief in this case.
Moreover, Alphin has not proved that he has suffered any damage as a result of Henson's attempt to monopolize. The Court has considered such cases as Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946), which hold that juries are allowed to act upon probable and inferential, as well as direct and positive proof of damages. However, applying the liberal standard of such cases, this Court finds and concludes that Alphin has not shown that he could have financed and operated profitably a full fbo on the airport, if he had been given such a lease or contract by the City.
Attorney's Fee
Although there is no Supreme Court case directly in point, the opinions of the lower federal courts are apparently unanimous in concluding that no attorney's fee may be allowed a plaintiff who obtains an injunction but no damages in a case brought under the antitrust laws. Byram Concretetanks, Inc. v. Warren Concrete Products Co., 374 F.2d 649 (3 Cir. 1967), and cases cited therein.
Conclusion 12. In this case, not only the denial of the claim for damages, but also the narrowness of the injunction which will be issued and the findings with respect to the negotiations and correspondence before the filing of the action (see particularly Findings 33-37, inclusive) justify, if they do not require, the denial of an attorney's fee to Alphin as part of his costs.
Counterclaim
Conclusion 13. Judgment will be entered in favor of Alphin, the counterclaim defendant, on the counterclaim filed by Henson and HInc. against him for malicious abuse of process.
Cross Claim
Henson and HInc. dismissed their cross claim against the City after the Court stated it would deny plaintiffs' claims for damages.
Costs
Conclusion 14. Alphin should recover his taxable costs[26] against Henson and HInc. Henson, HInc. and the City should each bear his or its own costs.
*831 EXHIBIT A
*832 Exhibit B
Title 49 U.S.C. 1349(a) provides in pertinent part: "There shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended."
FAA has issued policy statements and advisory circulars from time to time. The seven page Advisory Circular dated 4 April 72 contained the following statements, inter alia:
"6.a. Exclusive Right. A power, privilege, or other right excluding or debarring another from enjoying or exercising a like power, privilege, or right. An exclusive right may be conferred either by express agreement, by imposition of unreasonable standards or requirements, or by any other means. Such a right conferred on one or more parties but excluding others from enjoying or exercising a similar right or rights would be an exclusive right.
"7. POLICY. The grant of an exclusive right for the conduct of any aeronautical activity, on an airport on which Federal funds, administered by the FAA, have been expended, is regarded as contrary to the requirements of applicable laws, whether such exclusive right results from an express agreement, from the imposition of unreasonable standards or requirements, or by any other means. * * *
"a. Agency Position. The agency considers that the existence of an exclusive right to conduct any aeronautical activity limits the usefulness of an airport and deprives the using public of the benefits of competitive enterprise. Apart from legal considerations, the agency believes it clearly inappropriate to apply Federal funds to improvement of an airport where full realization of the benefits would be restricted by the exercise of an exclusive right to engage in aeronautical activities.
"b. Application of Law. The exemption contained in a surplus property deed permitting the grant of an exclusive right for the sale of gas and oil does not operate to confer a positive privilege. If the airport was already obligated by a prior agreement prohibiting an exclusive right, the deed does not relieve the owner from such obligation. Conversely, where such an exemption for gas and oil is in effect, any subsequent grant of Federal funds, administered by the agency, requires the airport owner to agree not to permit the establishment of an exclusive right to engage in aeronautical activities, including the sale of gas and oil, in the future and to terminate any existing agreement which permits such an exclusive right as soon as possible.
"8. INTERPRETATION OF POLICY. The circumstances involved in arranging for the availability of adequate aeronautical services vary widely from airport to airport. The following material has been prepared in an effort to furnish general guidance based on experience with exclusive rights problems.
"a. Single Activity. The presence on an airport of only one enterprise conducting aeronautical activities does not necessarily mean that an exclusive right has been granted. If there is no intent by express agreement, by the imposition of unreasonable standards, or by other means to exclude others, the absence of a competing activity is not a violation of this policy. This sort of situation frequently arises where the market potential is insufficient to attract additional aeronautical activities. So long as the opportunity to engage in an aeronautical activity is available to those who meet reasonable and relevant standards, the fact that only one enterprise takes advantage of the opportunity does not constitute a grant of an exclusive right.
*833 "b. Space Limitations. The leasing of all available airport land or facilities suitable for aeronautical activities to a single enterprise will be construed as evidence of an intent to exclude others. This presumption will not apply if it can be reasonably demonstrated that the total space leased is presently required and will be immediately used to conduct the planned activity. The amount of space leased to a single enterprise should be limited to that for which it can clearly demonstrate an actual, existing need. If additional space becomes necessary at a later date, it must be made available, not only to an incumbent enterprise, but at the same time to all qualified proponents or bidders. The advance grant of options or preferences on future sites to a single incumbent is evidence of an intent to grant an exclusive right. On the other hand, nothing in this policy should be construed as limiting the expansion of a single enterprise when it needs additional space, even though it may ultimately reach complete occupancy of all space available.
" * * *
"9. ENFORCEMENT.
"* * *
"c. Application to Preexisting Agreements. On 17 July 1962, the agency defined the aeronautical activities by section 308(a) of the Federal Aviation Act. Prior to the publication of this definition, exclusive rights to conduct certain activities not involving the actual use of public landing areas were considered not to be in violation of the statute. * * * The termination date will in no event be later than the earliest renewal or cancellation date specified in the lease or agreement covering such an exclusive right agreement. However, in no case will ADAP participation in airport improvement be authorized where there exists an exclusive right which was prohibited under the interpretation prior to 17 July 1962."
Paragraph 11a (1) requires all applicants for assistance to certify that there is no grant of an exclusive right which would preclude expenditure of funds by the agency under applicable law and agency policy at any public airport owned or controlled by the applicant, and 11a (2) requires that none will be granted on any airport owned or controlled by the applicant. Para. 11b states:
"It is the intent of this policy to promote fair competition at public airports and not to expose those who have undertaken to provide commodities and services to irresponsible competition. Prudent airport owners will adopt and enforce minimum standards to be met by those who propose to conduct a commercial aeronautical activity. Such standards, by expressing minimum levels of service that must be offered, relate primarily to the public interest, but appropriate requirements uniformly applied discourage substandard enterprises, thereby protecting both the established aeronautical activity and the airport patrons. The application of any unreasonable requirement, or standard not relevant to the proposed activity, or any requirement that is applied in a discriminatory manner shall be considered a constructive grant of an exclusive right contrary to applicable law and provisions of agency policy."
NOTES
[1] The original complaint was filed on May 4, 1973, by Alphin against Henson and HInc. In February 1974 an amended complaint was filed, adding the City as a defendant, and adding a pendent jurisdiction claim based on Art. 1A, § 13(e) of the Annotated Code of Maryland, now Art. 1A, § 7-701(e). The original defendants then filed a cross-claim against the City for indemnity or contribution. A second amended complaint was filed on May 23, 1974, elaborating the pendent claim against the City. Alphin incorporated his business on April 1, 1974, and on July 12, 1974, the Court authorized that corporation to be added as a party plaintiff.
After elaborate discovery, the case came on for trial before the Court without a jury on January 6, 1975. At the conclusion of plaintiffs' case, the several defendants moved for judgment under Rule 41(b), F.R.Civ.P. The Court ruled that plaintiffs had failed to prove that they were entitled to recover any damages from any of the defendants; but the Court denied defendants' motions for judgment with respect to the injunctive relief sought by plaintiffs. Henson and HInc. then dismissed their cross claim against the City. The findings of fact and conclusions of law set out herein deal with plaintiffs' pendent claim, as well as their claims under the antitrust laws, and with the counterclaim against Alphin filed by defendants Henson and HInc.
[2] Formerly Art. 1A, § 13. See Friendship Cemetery v. City of Baltimore, 197 Md. 610, 81 A.2d 57 (1951).
[3] In the 1950's Henson formed a corporation to conduct his operations on the airport. That corporation, which is the corporate defendant herein, first called Henson, Inc., and later Henson Aviation, Inc., will be referred to herein as HInc. In 1971, Henson and the Magazine brothers formed a holding company, in which Henson has a 45% interest, which acquired all the stock of HInc. The holding company also operates the Friendship Flying Service at the Baltimore-Washington International Airport.
[4] "A fixed base operation is one that provides facilities, fuel, equipment, supplies and services at an airport which are used by aircraft, crews, passengers and in handling freight connected therewith. It is vital to air transporation." E. W. Wiggins Airways, Inc. v. Massachusetts Port. Auth., 362 F. 2d 52, 53 n. 2 (1 Cir. 1966). The evidence in the instant case supports that definition, although what is encompassed in an fbo has changed somewhat over the years.
[5] Henson and HInc. have used trucks to carry fuel to the aircraft. In some airports of comparable size the aircraft go to the pumps.
[6] All the operations of Henson and HInc. have been conducted on the airport except the carrier operation, which has an office on the airport, but also serves four other cities.
[7] HInc. agreed during the term of the lease: to furnish good, prompt and efficient service adequate to meet all demands for its service at the airport; to furnish such service on a fair, equal and nondiscriminatory basis to all users; and to charge fair, reasonable and nondiscriminatory prices for each unit of sale or service, subject to the right to make reasonable and nondiscriminatory discounts, rebates or price reductions to volume purchasers. Henson allowed substantial discounts to Alphin for material purchased by Alphin from HInc. over the years.
The lease also prohibited the granting of concessions which (a) would extend beyond the term of the lease, or (b) were not reasonably necessary in the operation of the airport, or (c) were not in accord with the usual standards of good airport management.
[8] FAA is not charged with the enforcement of the antitrust laws.
[9] Alphin has a gentleman's agreement with the seller not to build any commercial buildings on the east half of the land. There is still a little room, however, for some additional building on the western half, but not enough for a hangar.
[10] Those operations were, as indicated in Findings 19-24, the tie-down on airport property opposite Alphin's plant of aircraft under repair or awaiting repair or being otherwise worked on by Alphin, and the use of the taxiway and other portions of the airport for bringing aircraft and supplies from other places on the airport to Alphin's property or to the portions of the airport then being used by Alphin for tie-down of aircraft, as aforesaid. Alphin also rents storage space in a T-hangar.
[11] Those recommendations of the Interim Airport Authority were:
"1. We recommend that a citizens type Airport Commission be appointed by the governmental body owning the airport for the study of programs needed, negotiating contracts with airport tenants, overseeing commitments to these contracts, and in general be responsible to the elected officials for the proper progress and operation of the airport. (As examples, a program of this type has been successful at Salisbury, Maryland, and our own Washington County Economic Development Commission.)
We recommend that the present Interim Airport Authority be dismissed and the new Airport Commission be appointed with its membership to include representatives as follows:
a. 1 Representative from Hagerstown City Council.
b. 1 Representative from Washington County Commissioners.
c. 1 Representative from General Aviation Users of the Airport.
d. 4 Representatives from Business Community at Large.
This Commission should be given definite guidelines for operation by the governing bodies and instructed to begin implementing the `Outline for Action' not later than January 1, 1972.
"2. We recommend that the Fixed Base Operator be considered the Resident Airport Manager and that his lease be negotiated on this basis.
In such an arrangement, the airport management would be serving at no out-of-pocket cost to the airport owner(s). This type of arrangement has been, and continues to operate in all of our neighboring cities, including Cumberland, Winchester, Martinsburg, Chambersburg, Frederick, Easton and Salisbury.
We cannot afford to experiment with programs less professional than that which has proven successful at our and other communities in our area."
[12] On December 14, 1971, the President of Fairchild had written Herman L. Mills, then Mayor of Hagerstown, recommending that Henson be appointed airport manager, stating that a proposed lease arrangement between Fairchild and the City appeared fair and reasonable, and suggesting that the City consider some financial participation from other corporate users of the airport. He referred to the need for improving the existing airport operation, to keep abreast of the growing community, and stated that "the proposed operational plan may be considered our first step toward that goal".
[13] "3. This Contract Agreement shall be subordinate to the provisions of any existing or future agreement entered into between the City and the United States to obtain Federal aid for the improvement or operation and maintenance of the airport.
"4. It is agreed that the Federal Aviation Administration will at all times look to the airport owner for effecting such actions as may be required to conform to the owner's compliance obligations. This Management Corporation which is authorized to perform the owner's management responsibilities, shall be considered as resident agents of the airport owner and not as responsible principles.
"5. It is understood that this Contract Agreement is made subject to such approval by the Federal Aviation Administration as required by law."
These provisions limit the duty given the airport manager to negotiate contracts between the City and commercial enterprises using the airport.
[14] The provisions to which Alphin objected included:
A rental of $2,000 a year.
"Privileges not granted:
"(A) The storage and sale of aviation fuels and oils. (Alphin had been selling oil in connection with his maintenance and repair work but had not been selling fuel.)
"* * *
"(G) Retail sale and installation of aircraft radio and other accessories. (Alphin had been doing this off the airport, sometimes buying avionics and other accessories from Henson at a substantial discount.)
"(H) Any and all operations not specifically granted."
[15] Alphin's present counsel caused Alphin to incorporate his business in April 1974.
[16] It should be noted that when the Grove Manufacturing Company sought in November 1973 an option to rent land for a corporate hangar in the area now designated for corporate hangars on the preliminary layout plan, the City refused to grant such an option, but by mutual agreement between the City and Grove placed the check for $2,000 which Grove tendered in the airport trust fund.
[17] The propriety of the designation by the City of Henson as the person to negotiate with Alphin will be discussed below.
[18] It is so designated on the preliminary airport layout plan prepared by the consulting engineers.
[19] During the negotiations between Alphin, his present attorney and Henson, Henson suggested that Alphin might be able to purchase or rent a part of the Schindel farm (no. 13 on Exhibit A), and offered to see whether the Schindels, who are related to him, would be willing. The Schindels, however, are unwilling to sell or lease part of their farm. The City, reasonably, does not wish to condemn any property until the final layout plan is adopted. Alphin's present counsel questions the power of the City to condemn land outside the City, despite Art. 1A, § 7-701, Anno. Code of Md., Vol. 1, 1974 Cum.Supp., and Friendship Cemetery v. City of Baltimore, 197 Md. 610, 81 A.2d 57 (1951).
[20] Alphin's proposal to the City was made in the name of his newly chartered corporation, Alphin Aircraft, Inc. (AInc.). After a preliminary history and discussion, the proposal sought a lease of the land east of the Landis hangar (see Findings 46 and 57), as well as the existing taxiway and the parking and tie down area which AInc. now uses (see Finding 24). The proposal was that AInc. agree to erect hangars and support facilities on the airport, said buildings being valued at no less than $300,000, and upon completion deed them to the City in consideration of AInc.'s right to occupy the buildings for 30 years, and to have the right to engage in specified aeronautical activities and other services to be rendered to the public as the need for such services is recognized. Findings 39 and 40 apply to this proposal; but see n. 23, below.
[21] Alphin and others, including Fairchild, used the airport property to some extent in various ways, e. g., for tying down aircraft and storing supplies in connection with some fbo services or other commercial activities which they rendered or conducted, principally off the airport, but to a limited extent on the airport.
[22] In the recent case of United States v. Standard Oil Co. of California, 362 F.Supp. 1331 (N.D.Cal.1973), aff'd 412 U.S. 924, 93 S.Ct. 2750, 37 L.Ed.2d 152 (1973), an injunction was issued against Standard Oil of California because the Court concluded that So. Cal. had violated the Sherman Act by engaging in a continuing combination and conspiracy with various persons, including certain officials of the Government of American Samoa and to private corporations (Van Camp and Star-Kist) to unreasonably restrain and monopolize the distribution and sale of petroleum products in American Samoa.
[23] Despite Findings 39 and 40, Alphin should be given a fair opportunity to demonstrate to the City officials his claimed ability to finance his most recent or any future proposal.
[24] "In exercising its equitable jurisdiction, `[a] federal court has broad power to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future unless enjoined, may fairly be anticipated from the defendant's conduct in the past.' NLRB v. Express Publishing Co., 312 U.S. 426, 435, 61 S.Ct. 693, 699, 85 L.Ed. 930 (1941). See also United States v. National Lead Co., 332 U.S. 319, 328-335, and n. 4, 67 S.Ct. 1634, 1638-1641, 91 L.Ed. 2077 (1947)." Zenith Corp. v. Hazeltine, 395 U.S 100, 132, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).
[25] The amended complaint does not ask for damages against the City. A state, city or governmental agency may not be held liable for damages under the antitrust laws. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).
[26] See Advance Business Systems & Supply Co. v. SCM Corporation, 287 F.Supp. 143, at 161 et seq. (D.Md.1968), aff'd, 415 F.2d 55 (4 Cir. 1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580039/ | 414 Mich. 369 (1982)
324 N.W.2d 753
WIEDMAYER
v.
THE MIDLAND MUTUAL LIFE INSURANCE COMPANY
Docket No. 67766.
Supreme Court of Michigan.
Decided October 5, 1982.
Lilly & Domeny, P.C. (by Paul Z. Domeny), for plaintiff.
Little & Geary (by James H. Geary) for defendant.
PER CURIAM:
This case presents the question whether an insurer's failure to include a provision in an insurance policy which reserves the right to avoid liability in the event of a material misrepresentation by the insured precludes the insurer from doing so. The trial court answered this question in the negative, but the Court of Appeals reversed the judgment of the trial court. We conclude that the trial court was correct.
I
H. Richard Wiedmayer was employed by Schoolmaster Plumbing & Heating. On October 31, 1975, Wiedmayer applied through his employer for group life and health insurance with the defendant, Midland Mutual. He signed the application directly beneath the declaration which stated in part that: "[t]he above representations are true and complete to the best of my knowledge and belief and this application shall not be binding upon the company until the policy is issued by the company and the first premium has been paid while any conditions affecting insurability are as described herein". He checked the answer box "no" to the question "Have you or any of the *371 above-named family members been hospitalized, consulted or been treated by a physician for any reason during the past five years?" Mr. Wiedmayer's application was accepted by the defendant, and the insurance policy went into effect on December 1, 1975. Accompanying the certificate of insurance was a letter from the defendant stating in part that:
"Your coverage is issued on the basis of the information shown on the application. Should the information be incomplete or incorrect in any way, please notify the home office immediately since any omissions or misstatements may affect your benefits and the validity of your policy."
Also attached to the letter forwarding the certificate was a captioned "Important Notice", with the following statement:
"Your policy or certificate was issued on the basis that the answers to all questions and the information shown on your application are correct and complete. Please read the copy of your application, which is attached to and a part of the policy, and check it carefully.
"If there are any misstatements in the application, or in [sic] any information concerning the past medical history of any insured person has been omitted, you should write to The Midland Mutual Life Insurance Company within 10 days of receipt of this notice and advise it of the incorrect or omitted information. Otherwise, your policy may not be a valid contract or your coverage may not be effective."
On January 13, 1976, Mr. Wiedmayer entered a hospital and was diagnosed as having chronic congestive heart failure. On July 16, 1976, the defendant refused to pay Wiedmayer's claim for health care treatment on the ground that Weidmayer *372 had falsely answered the question in the application with regard to whether he had consulted or had been treated by a physician during the past five years. Defendant enclosed a refund check and stated that the policy was void. Mrs. Wiedmayer subsequently required medical treatment, and Mr. Wiedmayer eventually died in April, 1977, of the heart problem. Mrs. Wiedmayer sued to recover the benefits for her husband's hospitalization, her medical treatment, and the life insurance proceeds under a provision of the policy. The suit was filed on March 13, 1978. After completion of discovery, the defendant moved for summary judgment, alleging that no genuine issue of material fact existed and attaching, among other things, the affidavit of the defendant's director of group claims to the effect that no policy would have been written at any price if the facts were known. Those facts included the allegation that, during the five years prior to his application, Mr. Wiedmayer, on at least nine occasions, had seen a physician who had diagnosed him as suffering from cardiac enlargement with evidence of pulmonary passive congestion and had prescribed medication, digitoxin. There was also evidence that Mr. Wiedmayer gave a history to his physician when entering the hospital in January, 1976, which included the fact that: "The patient states that he was first aware that he had an enlarged heart two or three years ago after he sought consultation from Dr. Rigterink regarding a chronic sore throat. At that time he was placed on digitoxin 0.1 and then improved and remained improved without change in his medical program up until November 1975". There was also deposition testimony from Mr. Wiedmayer's employer, Schoolmaster, to the effect that he had seen Mr. Wiedmayer take medication regularly in the month before the application *373 for the insurance was filed and that Mr. Wiedmayer had also taken time off from work to see a doctor when he complained of not feeling well and being short of breath. Although the Wiedmayers did not cash the refund check for the premium, the defendant sent another refund check directly to Schoolmaster Plumbing, the owner of the policy, which was negotiated.
The plaintiff, Mrs. Wiedmayer, opposed the motion for summary judgment on a theory that the defendant had to show fraudulent intent to avoid the policy because of a material misrepresentation. The trial judge ruled that under statutory and case law the defendant did not have to show fraud to avoid a major medical or life insurance policy as long as there was a material misrepresentation. The trial judge found that there was no genuine dispute, that there was a material misrepresentation, and that the insurer would not have issued the policy had it been aware of the misrepresentation. On January 16, 1980, the trial judge entered an order granting summary judgment for the defendant. The plaintiff appealed, and the Court of Appeals reversed. Wiedmayer v Midland Mutual Life Ins Co, 108 Mich App 96; 310 NW2d 285 (1981).
II
In reversing the trial court's grant of summary judgment in favor of the defendant, the Court of Appeals concluded:
"Interpreting the above provisions of the insurance policy, we find that they do not permit cancellation of the policy in the event of a misstatement in the application. Rather, these provisions permit defendant only to adjust the premium or benefits under the policy in the *374 event of a misstatement on the application. Construing these provisions strictly against defendant, we hold that the lower court erred in granting summary judgment to defendant. Defendant cannot void the policy where its provisions do not give it that authority.
"To the extent that the statute relied upon by the lower court and by defendant would permit the voiding of a contract where an applicant has made a material misstatement of fact, we find that that statute and its provisions are not self-effectuating. That is, the statute permits, but does not require, an insurance company to void a policy where a material misstatement has occurred in the application. Inasmuch as defendant did not reserve to itself this power, it cannot rely upon this statute.
"The lower court erred in granting summary judgment to defendant. Defendant was not entitled to void the policy. Rather, the only authority that is reserved to itself under the policy was to adjust either the premiums or benefits in the event of a misstatement of facts. As a consequence, we reverse the lower court order granting summary judgment and remand this cause for trial." 108 Mich App 102.
III
There can be no doubt that insurers are permitted by MCL 500.2218; MSA 24.12218 to void a policy where there has been a material misrepresentation of fact which affected either the acceptance of the risk or the hazard assumed by the insurer. Must the insurer, in order to avail itself of the option extended by this statute, place a provision reserving this option in the insurance policy? We think not.
The Court of Appeals, in reversing, emphasized the fact that the insurance policy did provide for an adjustment of premiums or benefits in the event of a misstatement of fact. Since, however, no *375 mention was made of voiding the policy for a misstatement of fact, the Court of Appeals reasoned that the insurer could not void the policy. We fail to see the logic of such a position.
In Bendford v National Life & Accident Ins Co, 356 Mich 52, 59; 96 NW2d 113 (1959), we addressed the question whether an application for insurance which was not a part of or attached to the policy was nevertheless admissible as evidence to establish fraud in the procurement of the policy. We held that:
"One seeking to void an agreement for fraud is not limited, in proving such fraud, to the provisions of the agreement itself."
Moreover, in General American Life Ins Co v Wojciechowski, 314 Mich 275, 281; 22 NW2d 371 (1946), we stated:
"A false representation in an application for insurance which materially affects the acceptance of the risk entitles the insurer to cancellation as a matter of law." (Emphasis supplied.)
The fact that the insurance policy did not affirmatively provide for cancellation under such circumstances does not operate as a bar to the insurer's ability to void the policy in the face of fraud. Common law has always permitted the avoidance of a contract procured by means of fraud. New York Life Ins Co v Buchberg, 249 Mich 317; 228 NW 770 (1930).
In Government Employees Ins Co v Chavis, 254 SC 507, 516-517; 176 SE2d 131 (1970), the South Carolina Supreme Court upheld the right of an insurer to rescind an automobile liability policy *376 because of fraudulent statements made in the procuring of it, although the insurer had not secured the right to do so in the policy. In doing so, the Court observed:
"We know of no authority which requires the insurer to reserve the right to rescind its policy for fraud or material misrepresentation."
We agree with the South Carolina Supreme Court.
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court. The motion by the Minnesota Mutual Life Insurance Company for leave to file a brief amicus curiae is denied as moot.
COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580043/ | 12 So.3d 760 (2009)
BODNER
v.
STATE.
No. 4D09-1197.
District Court of Appeal of Florida, Fourth District.
August 5, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580063/ | 84 S.W.3d 675 (2002)
Robert FLORES, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 01-01-00390-CR.
Court of Appeals of Texas, Houston (1st Dist.).
March 21, 2002.
Rehearing Overruled July 25, 2002.
*677 Lewis Dickson, DeGuerin & Dickson, Houston, for Appellant.
Calvin Hartmann, Asst. Dist. Atty., Houston, for State.
Panel consists of Chief Justices SCHNEIDER and Justices RADACK and *678 DUGGAN.[*]
OPINION
SHERRY J. RADACK, Justice.
Appellant pleaded guilty to the offense of possession with intent to deliver of 400 grams or more of cocaine. See Tex. HEALTH & SAFETY CODE ANN. § 481.112(a), (f) (Vernon Supp.2002). In accordance with the agreed recommendation regarding punishment, the trial court assessed punishment at 15 years in prison. The trial court granted appellant the right to appeal the trial court's ruling on the issue of entrapment, and appellant now argues in six points of error that: (1) appellant proved entrapment as a matter of law, or, in the alternative, the evidence is legally and factually insufficient to sustain the conviction because the State did not disprove entrapment beyond a reasonable doubt and (2) for several reasons, the trial court erred in admitting, over appellant's objections, evidence of an alleged prior uncharged extraneous theft offense. We affirm.
Background
Appellant was a police officer who was a friend of Miguel Angel Gonzalez. In 1996, Gonzalez was indicted for dealing in marihuana in Harris County, Texas. He received seven years deferred adjudication and a $1,000 fine for that offense. Subsequently, in late 1997, Gonzalez was indicted in federal court in Florida for conspiracy to possess marihuana with intent to distribute it and for the substantive crime of actually doing so. In connection with the federal offenses, Gonzalez admitted he had continuously trafficked in drugs from 1993 until the date of his arrest in 1997. In fact, Gonzalez admitted he had drivers who were delivering drugs for him in California, Florida, Indiana, and Tennessee, even when he was assuring the Texas state trial court which afforded him deferred adjudication for his 1996 state offense, that he would not violate the laws of any state or the United States.
Because Gonzalez was detained without bond on the Florida federal case and faced a minimum of 10 years imprisonment without parole and a $4,000,000 fine, he decided to cooperate with government agents to receive a more lenient sentence. Gonzalez began "debriefing" a Drug Enforcement Agency agent regarding his multistate drug dealings. As a result of his cooperation, Gonzalez was never charged with other offenses, such as tax fraud or money laundering. In addition, he did not forfeit property or pay a fine. His sentence was discounted to 36 months. Following sentencing, Gonzalez was sent to federal prison in Seagoville, Texas and, later, to a halfway house in Houston for the last six months of his sentence. With respect to the adjudication of his prior state drug offense, Gonzalez received the minimum sentence (two years) to run concurrently with his federal time, which meant he effectively received no additional prison time. Gonzalez admitted that he knew that the State of Texas could have "stacked" his prison time, which would have resulted in him going to state prison after he was released from federal custody; it was his understanding that he received leniency because he had become an informant.
During his debriefing sessions, Gonzalez told the DEA agent he had done a "money rip" with appellant, during which appellant and Gonzalez stole $17,000 from a *679 third party.[1] While Gonzalez was in federal custody in Florida, Sergeant Lopez of the Houston Police Department's Internal Affairs Division (IAD) visited Gonzalez regarding appellant's role in the theft. During this visit, Gonzalez described the details of the theft. After Gonzalez returned to Texas from Florida, he and Sgt. Lopez had additional conversations about Gonzalez assisting IAD in making a case against appellant. Gonzalez was ultimately paid $10,000 for his assistance in the case against appellant that is the subject of this appeal.
After Gonzalez was released from prison, Sgt. Lopez visited him in December 1999 at the restaurant owned by Gonzalez's family. During this meeting, Sgt. Lopez asked about a "deal" or "rip" involving a Colombian individual that appellant and Gonzalez had planned before Gonzalez went to prison. Gonzalez and Sgt. Lopez then formulated a "cover story" with which Gonzalez could approach appellant. In the cover story, Gonzalez would tell appellant he had an idea for a "money rip" involving the same Colombian individual they had discussed targeting before Gonzalez was incarcerated.
During February and March 2000, appellant and Gonzalez met several times, both in person and by telephone. Sgt. Lopez was able to record several of the conversations between appellant and Gonzalez because Gonzalez had agreed to wear a hidden microphone. With respect to his instructions regarding how to deal with appellant, Gonzalez's testimony was somewhat contradictory. Gonzalez testified he "never thought about" the fact he was standing in the shoes of the State of Texas when appellant told him "no" about handling cocaine. Sgt. Lopez told Gonzalez not to try to persuade appellant to do anything, but told him to "keep control" of the conversation. When asked if he heeded the admonition against resorting to persuasion, Gonzalez stated he "kept that in mind." However, Gonzalez also testified he "did what came naturally" in his dealings with appellant. Gonzalez stated the police never told him to back off if appellant was unwilling to be involved in the plan. Instead, he said he "didn't think much of it" when he continued his efforts to persuade appellant to participate in the transaction.
On February 23, 2000, March 6, 2000, and March 9, 2000, Sgt. Lopez recorded conversations between Gonzalez and appellant that generally contained small talk typical among friends.[2] On March 23, 2000, however, Sgt. Lopez recorded a conversation between appellant and Gonzalez that clearly referred to the proposed plan to "rip off" money from a third party. Appellant contends that although he was willing to steal money, he did not want to be involved with stealing or possessing drugs, and that during this conversation, Gonzalez improperly persuaded him to do so (a complete transcript of this conversation, which was admitted into evidence at the entrapment hearing without objection, is attached to this opinion as appendix A). During the conversation, Gonzalez emphasized that the rip-off would be a "sweet" deal and would involve at least $4,000 to $5,000 dollars and a kilo of cocaine. Appellant *680 emphasized he was willing to steal the money, but did not want to "mess with" drugs because two officers had recently been discovered with drugs and he considered drugs too "hot." Later in the conversation, appellant stated again he was willing to "do the car with money," but did "not want to mess with the dope where I get it and I bring it to you and all that or I drop it somewhere." However, appellant then asked Gonzalez, "How are we going to transfer the dope into a car," and the two discussed the mechanics of how to accomplish the theft.
At the hearing on the entrapment motion, Gonzalez testified that after he and appellant left the restaurant on the night of March 21, 2000, they drove by Love Elementary School. Appellant pointed out a "no parking" zone where their target could park his car. The two men apparently planned for Gonzalez to direct the target to that location for the phony drug deal. Once the target arrived, appellant would have a reason to approach him because the car was parked illegally. Gonzalez claimed that appellant wanted the deal to be done at night. Gonzalez also testified that appellant stated he "had two of the kilos sold already" and that appellant would drop the remainder in a car that was to be parked in an empty lot near the school.
On March 31, 2000, the night selected for the "rip," appellant saw the target's car parked in the planned location. He verified, by calling Gonzalez, that the car belonged to the target of their plan. The "dealer" who was their target was actually a confidential informant, and appellant's conversation with him was recorded. Appellant took possession of the bag that contained $5,000 and cocaine. Gonzalez spoke with appellant over the telephone afterwards, and appellant confirmed he had gotten the bag from the car. Police then stopped appellant and recovered the money and cocaine.
Appellant was charged with theft by a public servant of cash money (i.e., the $5,000 that was with the cocaine) and possession with intent to deliver 400 grams or more of cocaine.[3] After the trial court ruled against him on his entrapment claim, appellant pleaded guilty to both the theft and possession offenses. The trial court assessed punishment against appellant at 15 years in prison on the possession offense. He was sentenced to 10 years for the theft offense, to run concurrently with the possession sentence. Appellant does not appeal the theft conviction. However, his guilty plea with respect to the possession offense was conditioned on his right to appeal the trial court's ruling on his entrapment motion.
Entrapment
In point of error one, appellant argues the trial court erred when it refused to find that appellant was entrapped as a matter of law. In point of error two, appellant contends the evidence is legally insufficient to support his conviction because the State did not disprove entrapment beyond a reasonable doubt and, therefore, viewing the evidence in the light most favorable to the State, no rational trier of fact could have found against appellant on the issue of entrapment. Finally, in point of error three, appellant argues the evidence is factually insufficient to sustain *681 his conviction because the State did not disprove appellant's showing of entrapment beyond a reasonable doubt and, therefore, appellant's conviction for the offense would work a manifest injustice. Because these points of error are related, we will consider them together.
A. Burden and Standard of Review
Under Texas law, entrapment is a defense to prosecution. Tex. Penal Code Ann. § 8.06(a) (Vernon 1994). Procedurally, an accused is entitled to a pretrial determination of a claim of entrapment. Tex.Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). When making its determination, the trial court must follow the provisions as outlined in Penal Code section 2.03. Tex. Penal Code Ann. § 2.03 (Vernon 1994); see Taylor v. State, 886 S.W.2d 262, 265 (Tex.Crim.App.1994). At the pretrial hearing, the defendant has the burden of producing evidence raising the defense; after the defendant has met this initial burden, the burden of persuasion falls on the State to disprove entrapment beyond a reasonable doubt. Tex. Penal Code Ann. § 2.03(c) (Vernon 1994); England v. State, 887 S.W.2d 902, 908-09 (Tex.Crim.App. 1994); Taylor, 886 S.W.2d at 265; Sebesta v. State, 783 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd).
When conflicting evidence exists on the issue of entrapment, the trial court does not err in overruling a motion to dismiss. Cook v. State, 646 S.W.2d 952, 952 (Tex.Crim.App.1983). The trial court, as the trier of fact, must weigh the evidence and determine whether the defendant was entrapped as a matter of law. Soto v. State, 681 S.W.2d 602, 604 (Tex. Crim.App.1984); Bush v. State, 611 S.W.2d 428, 430-31 (Tex.Crim.App.1980). On review, the issue of entrapment centers on the legal sufficiency of the evidence. Torres v. State, 980 S.W.2d 873, 875 (Tex. App.-San Antonio 1998, no pet.). The sufficiency of the evidence turns on whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against the defendant on the issue of a defense beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim.App.1992) (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991)).
In this case, appellant moved for acquittal based on his defense that he had been entrapped as a matter of law. The trial court denied the motion, and appellant pleaded guilty to the offense conditioned on his right to appeal the denial of his motion. Therefore, we consider only whether the trial court erred when it denied appellant's motion on entrapment as a matter of law; as we note above, this is essentially a review of whether the evidence is legally sufficient to support the trial court's ruling. See Torres, 980 S.W.2d at 875. We determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against the appellant on the issue of a defense beyond a reasonable doubt. Adelman, 828 S.W.2d at 421.[4]
*682 We review the legal sufficiency of the trial court's ruling in the light most favorable to the ruling. Adelman, 828 S.W.2d at 421. We resolve any inconsistencies in favor of the factfinder's determination. Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).
B. The Defense of Entrapment
Penal Code section 8.06 provides: (a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
(b) In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.
TEX. PENAL CODE ANN. § 8.06 (Vernon 1994).
The State does not contest that Gonzalez was acting as a law enforcement agent in his dealings with appellant. Therefore, the only question is whether Gonzalez "induced" appellant to commit the offense. To raise entrapment, a defendant must produce evidence that (1) he was actually induced to commit the offense and (2) the inducement "was such as to cause an ordinarily law-abiding person of average resistance nevertheless to commit the offense." England v. State, 887 S.W.2d 902, 913-14 (Tex.Crim.App.1994). The first prong is a subjective test; the defendant must show that because of police persuasion he was induced to act. Torres, 980 S.W.2d at 876. The second prong is an objective test. Id.
With respect to the objective standard, prohibited police conduct usually includes, but is not limited to, matters such as extreme pleas of desperate illness in drug cases, appeals based primarily on sympathy, pity, or close personal friendship, offers of inordinate sums of money, and other methods of persuasion which are likely to cause the otherwise unwilling person rather than the ready, willing and anxious personto commit an offense. Sebesta v. State, 783 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (quoting Ramos v. State, 632 S.W.2d 688, 691 (Tex.App.-Amarillo 1982, no pet.)).
Appellant argues that the uncontested evidence shows that Gonzalez resorted to numerous prohibited tactics in persuading appellant to commit the offense: (1) a plea that Gonzalez needed the money so he could keep the family restaurant from going bankrupt and could continue to support his elderly mother; (2) a play on their close, personal friendship; (3) an offer of an inordinate sum of money; (4) repeated, specific requests to commit the offense; (5) a disregard of appellant's statements that he did not want to "mess with" drugs; (6) a false assurance to appellant that there was no difference between stealing money and stealing drugs; (7) a characterization of the money "rip" as a "sure deal;" (8) constant interruptions of appellant in an attempt to keep control of the conversation; (9) gestures and clapping to "create excitement and enthusiasm" about the plan; (10) use of emphatic tones and changes in tone of voice to encourage and *683 persuade; and (11) pleas and begging for appellant to commit the offense.
Based on our review of the record, we disagree that the evidence regarding several of the alleged improprieties was uncontested. We also disagree that the alleged improprieties rise to the level of persuasion that would have induced an ordinary, law-abiding citizen to commit the offense. Although the recording of the March 21, 2000 conversation between appellant and Gonzalez speaks for itself, there are several areas in which the trial court could have, and apparently did, conclude that Gonzalez's conduct was not as appellant describes. First, the tape indicates that Gonzalez did discuss a loan he was seeking to keep his restaurant running and also mentioned he needed to hire music groups as entertainment. However, there are no statements that indicate he used this information to pressure appellant to commit the offense. Further, the closeness of the friendship between appellant and Gonzalez was contested. Gonzalez testified that he and appellant were merely acquaintances. Even though they had known each other for approximately six years before the date of the offense, Gonzalez had been in federal prison for three of those years. Moreover, there was evidence that appellant often ignored Gonzalez's telephone messages and did not attend meetings the two men had scheduled. Next, the record does not indicate Gonzalez offered the appellant an inordinate sum of money to commit the offense. Although the recording indicates Gonzalez told appellant he could keep all the money that was in the car, even if it was $20,000, Gonzalez repeatedly told appellant that he believed $4,000 to $5,000 would be the amount of money involved in addition to the cocaine. Finally, appellant's statements that he did not want to "mess with" drugs are not, as appellant argues, an unequivocal rejection of the idea of committing the offense. Looking to the entire March 21, 2000 conversation, the trier of fact could have concluded that appellant wanted to participate in the "rip," but did not want to physically handle the drugs because of the consequences involved if he were caught.
Turning to the appellant's remaining complaints about Gonzalez's conduct, appellant's complaints that Gonzalez (1) used repeated, specific requests that he commit the offense, (2) falsely assured appellant that there was no difference between stealing money and stealing drugs, (3) characterized the money "rip" as a "sure deal," (4) constantly interrupted appellant in an attempt to keep control of the conversation, (5) gestured and clapped to "create excitement and enthusiasm" about the plan, (6) used emphatic tones and changes in tone of voice to encourage and persuade, and (7) pleaded and begged appellant to commit the offense, the record again (including Gonzalez's testimony and the transcript of the March 21, 2000 conversation on which appellant relies) indicates that the trial court could have concluded the alleged improprieties simply did not rise to a level of persuasion that would have induced an ordinary, law-abiding citizen to commit the offense. In connection with these specific complaints, however, an additional consideration remains: whether these tactics actually induced appellant to commit the crime. With reference to this subjective prong of the test, the trial court could have concluded beyond a reasonable doubt that appellant, a police officer, knew the difference between stealing drugs and money (as evidenced by his statements that indicate he was reluctant to personally handle the drugs), knew the risks involved, and made an informed decision to proceed with the plan.
We hold that a rational trier of fact could conclude beyond a reasonable doubt, *684 viewing the evidence in the light most favorable to the trial court's ruling, that Gonzalez's conduct would not likely cause an otherwise unwilling person to deliver drugs and or that his conduct actually induced appellant to do so.
Accordingly, we overrule points of error one, two, and three.
Admission of an Uncharged, Prior Offense
In points of error four, five, and six, appellant argues the trial court erred in admitting, over his objection, Gonzalez's testimony that appellant had been involved in a "money rip" with Gonzalez in 1996 and statements from the March 21, 2000 taperecorded conversation regarding that previous act because: (1) the evidence was not relevant to prove either prong of the test for entrapment; (2) the evidence was insufficient to prove that the alleged crime had been committed beyond a reasonable doubt; and (3) even if the prior offense was relevant and sufficiently proved, the trial court improperly considered the evidence in connection with the objective prong of the entrapment test.
A. Standard of Review
We review a trial court's evidentiary rulings under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Pierre v. State, 2 S.W.3d 439, 442 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). We recognize that a trial court must be given wide latitude to admit or exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim.App.1992); Pierre, 2 S.W.3d at 442. If the trial court's evidentiary ruling is within the zone of reasonable disagreement, we may not disturb its ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990); Sunbury v. State, 33 S.W.3d 436, 441 (Tex.App.-Houston [1st Dist] 2000, no pet.)
B. Analysis
In England v. State, the Court of Criminal Appeals held that Penal Code section 8.06 requires a defendant who claims entrapment to produce evidence that he was actually induced to commit the charged offense; that is to say, that he committed the offense "because he was induced to do so." For that reason, prior, extraneous offenses are relevant to the question of whether a defendant was actually induced by law enforcement to commit the charged offense and, therefore, are admissible. 887 S.W.2d at 913. However, the State may not simply invoke "context" of the offense to justify admission of "other crimes, wrongs or acts." Id. at 915. Instead, the State must show the previous misconduct has some tendency to make more or less probable a fact of consequence to the determination of the issue of persuasionor at the very least, that the character or degree of persuasion the police used cannot be fully comprehended absent evidence of the past misconduct. Id.
In this case, evidence that Gonzalez and appellant had engaged in a similar "money rip" in 1996 was relevant to the question of whether Gonzalez's conduct actually induced appellant to engage in similar conduct at issue in this case. Further, the fact that Gonzalez and appellant had a pre-existing relationship that included similar[5]*685 conduct assisted the trier of fact in comprehending the degree and nature of the persuasion that the police, through Gonzalez, employed. The fact that Gonzalez and appellant had stolen money in a similar manner on a prior occasion explained why Gonzalez was able to approach appellant a second time. Therefore, the evidence was relevant and admissible.
Next, appellant argues the State did not establish the extraneous offense beyond a reasonable doubt. See George v. State, 890 S.W.2d 73, 75-76 (Tex. Crim.App.1994). We disagree. Appellant did not contradict Gonzalez's testimony regarding the 1996 theft. Further, the transcript of the March 21, 2000 tape recording corroborates Gonzalez's testimony that appellant and Gonzalez had engaged in a previous theft. When Gonzalez mentions the previous offense, appellant did not deny that he had taken part in the theft or that he did not know to what Gonzalez referred. Any of appellant's statements on the March 21, 2000 tape recording regarding the prior offense were admissible because a criminal defendant's own statements, when being offered against him, are not hearsay. TEX.R.CRIM. EVID. 801(e)(2)(A); see Trevino v. State, 991 S.W.2d 849, 853 (Tex.Crim.App.1999). Additionally, the fact that he did not dispute Gonzalez's statements regarding the previous scheme operates as an adoptive admission and, therefore, is evidence of appellant's guilt. Tex.R.Crim. Evid. 801(e)(2)(B); Alvarado v. State, 912 S.W.2d 199, 215 (Tex.Crim.App.1995). Therefore, the trial court did not abuse its discretion when it impliedly concluded the State had proved the prior offense beyond a reasonable doubt.
Finally, we reject appellant's argument that the trial court must have improperly considered the prior conduct in connection with the objective prong of the entrapment analysis based on the statements the trial court made when it ruled on the entrapment motion. In order to prove entrapment as a matter of law, appellant was required to prove both prongs of the test. See England, 887 S.W.2d at 913-14. We have concluded the evidence was relevant to the subjective, actual inducement, prong of the test. Therefore, it was admissible. The fact that the trial court stated it believed there was a fact issue for the jury to decide regarding the objective prong of the test is not a basis for concluding that the trial court considered the extraneous offense evidence for an improper purpose.
We overrule points of error four, five, and six.
Conclusion
We affirm the trial court's judgment.
Appendix A
Robert: What all you got there?
Miguel: These are my proposals that I been doing ... you know, that I been telling you I was working on ... there's this business company that I deal with ... a small business ... they do my, uh ... everything's on here ... that what I'm trying to borrow. But, I went up to 300,000 ... yea, I went up to 200,000 ... they programmed it real good.
Robert: So, what'd they say?
Miguel: That guy ... that guy hadn't told me nothing yet. He hadn't told me anything. And uh, but I'm going to see what, what's up with that shit, man. So, if we do it, it'll be good, Junior, real good.
Robert: That's a lot of cheese there, buddy.
*686 Miguel: Yeah, but I got a lot of equity here ... cat dad, cat daddy over there (laughing).
Robert: Man, you lost a lot of weight there, man.
Miguel: Yea, I gained three pounds already. But, I been working out ... working out again.
Robert: How are your kids?
Miguel: Shit, they're getting big, bro... my little girl ... (interruption) and Iris ... she, she saw you ...
Robert: (inaudible)
Miguel: Uh, at the carnival, I think. At the carnival at the, uh ...
Robert: Rodeo? I didn't ...
Miguel: At the rodeo. No, she didn't talk to you but, she did ... she saw you there.
Robert: Did she see me with my little boy?
Miguel: Let me tell you what's going to happen. It's Bar-B-Que, OK? It's the sweetest deal ... real sweet, OK? I'll ... next week ... I mean, I know for a fact it's going to happen. When I was trying to call you ... hey look, the guy's got ... he had keys and had $5000 in it. That's no problem. But, he probably had a little bit more. Supposedly, he's coming next week again, el camarado mio ... like taking... you know how we did it the first time. It's even sweeter. The guy gets in the room ... (inaudible) ... I know where the car is at ... I tell you the color of the car. When he pulls out, bro, the guy no tiene juevos ... nada, a peon. You pull him over. He gots it under the seat ...
Robert: What's under the seat?
Miguel: Una llave.
Robert: (whispering) But, uh, I don't want to mess with that ... (interrupted)
Miguel: Listen. Listen ... I mean, eso... and the money ... you keep the money ... and ... it's over $5000.
You keep the money. Don't worry about that.
Robert: But, but, I got to get that bag out of the car.
Miguel: Yea, but it'll be alright. It'll be in the bag, man. It would be nothing.
Just like we got that other money, man.
Robert: (Starts to speak but, is cut off)
Miguel: Umm, hey, look ... and this is the beauty of it. You set the time you can do it. You set it.
Robert: Yea, but, man, I don't even want to mess with that, man. I don't want to mess with that. I thought it was the money we did the last time. I don't want to mess with that shit. I'm not lying to you. Man, let me tell you, it's so hot right now. They already popped two officers doing that.
Miguel: Yea, I heard about that. One constable and then a sheriff ... something... couple of months back?
Robert: They're officers. They popped them on that shit. I don't want to mess with nothing, if we gotta mess with that shit. OK, just like the last time ... it was easy. Man, I'm not lying.
Miguel: You doing the same thing.
Robert: But, I gotta go grab that thing.
Miguel: OK.
Robert: (Inaudible)
Miguel: The guy has ... he has to ask me. He has to ask me if I could take the money from him ... mandato ... (inaudible) ... that's not a problem.
Robert: What you mean, it's not a problem?
*687 Miguel: It's a lot better for me. Me entiendes?
Robert: I know but ... (interrupted)
Miguel: Ok, now, OK, now ... just say (inaudible) ...
Robert: We can't do it like that.
Miguel: What, the money? Oh, we can. I'll set it up. I'll say, "Look, man, I don't want to do it, I don't want to do it." I, I want the money quick. He'll give me maybe a couple of thous, two thousand, whatever ... but ...
Robert: What happened there when we were gonna set up your sister and she was gonna have the money and all that?
Miguel: (clearing his voice): She was going to have the weed ... I was going to have her ... you were gonna... you were gonna pull her over ... she was going to have the weed in the car, remember?
Robert: And we were gonna have a wrecker pick up the car?
Miguel: No ...
Robert: What happened?
Miguel: Well, that dude never came through. But, this other dude, the Colombiano, is coming through.
Robert: How many llaves can he give you?
Miguel: Oh, man, probably about one or two, easy. See, they're gett'n a feel... a feel of me. I know that's what it is, Junior.
Robert: They want to give you a whole little.
Miguel: They will, they will, Junior. That's not a fucking problem. They will, they will.
Robert: I don't wanna ... (interrupted)
Miguel: It's nothing, Junior. It's nothing.
Robert: I don't wanna mess with that shit ... that shit, man. I mean, the way ... the money ... the way the money, man ... it was ... to me that was a piece of cake. (inaudible) ... Say if he has 5,000 dollars in the car. We could do that. We could do the car with money ... but, I don't want to mess with the dope where I get it and I bring it to you and all that or I drop it somewhere. I don't even want to touch that. It was just scary when I got ... that shit, threw it to you and I took off, remember?
Miguel: Yea. (laughing).
Robert: But, I mean ... like it's easier cause it's money. If it's dope ... I don't even want to fool with no dope.
Miguel: Man!
Miguel: (continuing): Man, what about if the mother fucker has 50 keys, man? ... (inaudible). Just say if we have 50, 40 keys and I tell him, fuck... that's a lot of fucking cheese, Junior.
Robert: I don't mind doing it, but not... (inaudible)
Miguel: Yea, but the guy ... (inaudible)... the guy that's doing the dope gives him the rundown. This guy, el bato es como otro, OK? ... (inaudible)...
Robert: OK, say about 5000, right?
Miguel: Yea.
Robert: What's going to happen to that car that has the dope?
Miguel: Nothing. You let the mother fucker ... you just ask for his driver's license and after you get the money... the guy is going to get paranoid. I know.
Robert: What I'm saying is, how are we going to transfer that dope into a car?
Miguel: ... (inaudible) ... whatever you wanna do. I can ... I can have *688 "Chorte" and, uh, uh, hang so quick along wherever you're gonna pull him over ... (inaudible) ... I'll tell you what hotel he's at when he gets here, right? Just for an example ... just say ... just say for an example ... (inaudible) ... He's have to do it ... (inaudible) ... OK? Alright, OK, Junior. You're gonna pull him over someplace in there. You more or less know a guy like that ... I'm gonna tell you when he's gonna come, cause I know what's he's gonna come to. He may be coming this way towards uh,
Robert: Uh-huh
Miguel: (continuing): ... into 45, right? You're gonna pull him over ... say you pull him over on the freeway. The next thing you're gonna check... let's just say that ... it's a good example ... just an example, bro. You get up to the vehicle. The guy is gonna give you his fucking driver's license. He ain't gonna wanna do ... no va pidar.
Robert: I know but ... (interrupted)
Miguel: You get it ... no, no, just a second ... "you being terco" ... Let's say we do the one's right now. Let's say we do for a couple of thousands apiece. Just say he's got a key... (inaudible) ... thousand ... come on, bro ... (inaudible) ... that's why it's fucking gravy, bato. You gotta... you have that little bag ... lock him up for a little bit of, uh, uh ... look, you don't have to ... whatever you want to do. I don't care. How you want it. The money will be in there ... the money's gonna be in there. You take the fucking money and you stay with it. It's gonna be over 4,000 dollars, I guarantee you that ... guarantee. That you stay with practically automatically. No hay pedo. I make a little extra something, you te doy tambien alli ... (clapping). Yea, fuck it. You get it, you take it over ... you go to tour car... (inaudible) ... (clapping) ... just drop it in the car ... that's it. You don't have to worry about it. Nobody's gonna know but you and me... I'll have another car, cause I can't
...
Robert: You know, you know what I can do is, uh, tell you the vicinity where I'm gonna pick it up and come meet me there and just drop it off.
Miguel: Como? Como?
Robert: Remember what we did the last time ...?
Miguel: ... (inaudible) at the church?
Robert: No, where ... (interrupted)
Miguel: Yea, yea, yea, yea, yea.
Robert: Where ... you know, I'm not going to pull him over on the freeway.
Miguel: No, no, no, no ... I know.
Robert: Somewhere on the street.
Miguel: You tell me, guy.
Robert: I'd rather it be at night.
Miguel: That's not a problem. Look, I can set it ... I can set it up the way you want it but, check this out. Say he's at a hotel. You tell me what time and I can set it up. You tell me which way you want him to go and I'll say, "hey, meet me this way, but, go this way ... go down ... go to, uh, go six streets up. I'm talking about Puro pedo. (clapping). I'm just using an example. You tell me, bro ... I want him to go through ..." Fine! Alright, I'll set him up. That's as simple as that. He'll do what I say, bro. Just like it. And it's safer. This is more easier than what you did with me. This guy is nothing. This guy ... when he see you ... (chuckling) ... *689 easy, Junior. He's coming ... he's coming this fucking weekend. On Monday, he'll fly in. We'll set it up for a Thursday of next week or Wednesday of next week. Easy, Junior! The money will be in there ... you get the money and ... (interrupted)
Robert: And it's only going to be one?
Miguel: It's only going to be one, Junior... one key. And if it's two, I'll let you know ... you'll feel it. I'm not going to lie to you. I didn't lie to you the last time ... If it's more, you check it out and I'll give you the rest. But you are gonna have over ... over 4 or 5 thousand dollars in there ... and if there's more than 5,000, you keep it. Just give me a thousand dollars. If he gots 10 thousand, 20 thousand ... you keep it. It's yours. Hey, that's my call. I don't care. I know there's gonna be some money in there. All of it'll be yours. It ain't gonna be no 500 grand and I'm not that ... I know it's gonna be in there. It's easy, Junior, easy!
Robert: Well, I'll think about it.
Miguel: (at the same time): Easy!
Miguel: Don't think about it! Tell me dawg! ... Junior, it's easy, Junior. Junior, it's easy, junior ... and I need to get that because I want to get the fucking groups going here, man. Please, Junior ... It's that fucking simple.
Robert: Let's go over there and sit down at the table ... (inaudible)
Miguel: (laughing). OK. You got all this week to fuck with it, Junior.
Robert: No, I know ... let's eat at the table ... (inaudible)
Miguel: Come on. (laughing).
NOTES
[*] The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
[1] Gonzalez described a "money rip" as a transaction in which an individual informs a police officer about the plans of a third party such as a drug dealer who is known to have money. The police officer then pulls over the third party and steals the money the third party is carrying. A "drug rip" follows the same scenario, but drugs, rather than money, are stolen.
[2] During the February 23, 2000 conversation, Gonzalez asked appellant if he was still "game," but it is not clear to what Gonzalez referred.
[3] Several months after appellant was indicted, the State obtained a superceding indictment that alleged the same possession offense, but added the aggravating claims of use or exhibition of a deadly weapon and that the alleged offense occurred within 1000 feet of a school. The State later abandoned the aggravating claims when appellant pleaded guilty to the possession offense.
[4] Defenses such as entrapment are subject to a factual sufficiency challenge in the event the defense has been submitted to a jury. See Tex. Penal Code § 2.03 (Vernon 1994); see, e.g., Liggins v. State, 979 S.W.2d 56, 60 (Tex. App.-Waco 1998, pet. ref'd) (rejecting State's argument that entrapment defense was not subject to factual sufficiency challenge in case in which the trial court submitted the issue to the jury). However, in this case, appellant pleaded guilty after the trial court denied his motion on entrapment as a matter of law, so the issue was never submitted to a jury. Therefore, we review only whether the trial court was correct in determining that appellant did not establish entrapment as a matter of law.
[5] We acknowledge that the 1996 "rip" involved money alone. However, the fact that the scheme for which appellant was charged in this case apparently followed the same scenario as the previous plan carried out by Gonzalez and appellant (but for the fact that drugs and money were involved in the more recent theft) renders the distinction insignificant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580073/ | 117 Mich. App. 517 (1981)
324 N.W.2d 19
DENNY
v.
KOSTADINOVSKI
Docket No. 49774.
Michigan Court of Appeals.
Decided August 24, 1981.
Bockoff & Zamler, P.C., for plaintiff.
Thomas, Garvey & Garvey, for defendants.
Before: V.J. BRENNAN, P.J., and N.J. KAUFMAN and E.E. BORRADAILE,[*] JJ.
PER CURIAM.
Defendants appeal by leave granted from the decision of the Workers' Compensation Appeal Board awarding compensation for a slip and fall injury occurring in a public alleyway behind defendant's premises.
On December 4, 1972, plaintiff was employed as a cashier and sales clerk at defendants' bakery. She left work that day through the rear entrance of the establishment which led into the alley. Plaintiff lived about five houses away. The ground was covered with ice and snow, and plaintiff fell 10 or 20 feet from the bakery, fracturing her right leg.
In an opinion dated April 13, 1977, a workers' compensation referee held that plaintiff sustained a disabling personal injury arising out of and in the course of her employment. In affirming, the WCAB wrote:
"I find as fact that 10 feet from the door, or even the defense story of 20 feet from the door, is still within the bakery's `zone, environments and hazards'. While plaintiff may not have been standing on the bakery's doorsill, she was on the threshold of her trip home and not on the journey proper, albeit short. The Fischer [v Lincoln Tool & Die Co, 37 Mich App 198; 194 NW2d 476 (1971)] Court observed that `no parking facilities were *519 provided for employees and those who drove to work were expected to park upon the street.' 37 Mich App 198, 200. Similarly, although plaintiff walked home from work, her launching pad extended beyond said doorsill. According to Mrs. Kostadinovski, the alley is only two feet from the bakery's premises: * * *. It cannot be said that this separates the curtilage from the twilight zone and the hazard of the icy alley in the liberal interpretation of remedial legislation. 37 Mich App 198, 202."
On appeal, defendants contend that the board erred in its determination that plaintiff's injury arose out of and in the course of her employment. We agree and reverse.
MCL 418.301(2); MSA 17.237(301)(2)[1] provides:
"(2) Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."
This "coming and going" provision was added by the 1954 amendment to the compensation statute. 1954 PA 175. While it acts to ameliorate the requirement that an injury arise out of and in the course of employment, it indicates that, as a general rule, an injury occurring while an employee is going to or returning from work must take place upon the employer's premises to be compensable. Dyer v Sears, Roebuck & Co, 350 Mich 92, 96; 85 NW2d 152 (1957), Brink v J W Wells Lumber Co, 229 Mich 35, 36; 201 NW 222 (1924).
This general rule is not without exceptions. For example, in Jean v Chrysler Corp, 2 Mich App 564; 140 NW2d 756 (1966), compensation was *520 awarded where an employee was killed while crossing a public highway between his employer's parking lot and factory. See, also, Adair v Metropolitan Building Co, 38 Mich App 393; 196 NW2d 335 (1972). Likewise, in Lasiewicki v Tusco Products Co, 372 Mich 125; 125 NW2d 479 (1963), a compensation award was affirmed where the employee was injured in a slip and fall in an employee parking area. Although the area was publicly owned, lying between the street and the employer's building, it was maintained by the employer and, therefore, was considered to be within the statutory term "premises". Id., 130-131. The Court wrote, quoting Hills v Blair, 182 Mich 20, 27; 148 NW 243 (1914):
"`In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. One of the tests sometimes applied is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act.'" (Emphasis in Lasiewicki.) Id., 131.
The "zone, environment, and hazards" test was also utilized in Fischer v Lincoln Tool & Die Co, 37 Mich App 198; 194 NW2d 476 (1971). In Fischer, the employee slipped and fell on an icy sidewalk between the employment premises and the street where he parked his car. Because the employer *521 provided no alternative parking and expected the workers to park along the public streets, the sidewalk area was determined to be a part of the premises. Id., 202.[2]
Although a close question is involved, we believe the present situation is distinguishable from these exceptions to the premises rule. Plaintiff was not traversing between areas owned by defendants, nor was the alleyway maintained or otherwise under the control of defendants. The zone, environment, and hazards test does not provide for a "twilight zone", "threshold", or "launching pad" around an employer's property within which an employee is protected while traveling home. Rather, the test applies to particular situations where the employer has held out to employees designated parking areas and adjacent unowned property to be traveled over. This Court must avoid judicial reform of the legislative conditions to compensability. McClure v General Motors Corp (On Rehearing), 408 Mich 191, 204; 289 NW2d 631 (1980).
Application of these principles to the present situation mandates the conclusion that plaintiff's injuries did not occur in the course of her employment and were not compensable. The fall took place off the defendants' property while plaintiff was on her way home.
Reversed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Amended by 1980 PA 357, effective January 1, 1982; see now MCL 418.301(3); MSA 17.237(301)(3).
[2] For a criticism of the Fischer analysis, see Tedford v Stouffer's Northland Inn, 106 Mich App 493; 308 NW2d 254 (1981), 1 Larson, Workmen's Compensation Law, § 15.12, pp 4-8 4-10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580076/ | 84 S.W.3d 447 (2002)
Hazel DAVIS
v.
William DAVIS.
No. CA 02-156.
Court of Appeals of Arkansas, Division IV.
September 25, 2002.
*448 J.W. Green, Jr., Stuttgart, for appellant.
Russell D. Berry, DeWitt, for appellee.
*449 JOSEPHINE LINKER HART, Judge.
Hazel Davis has appealed from three aspects of a divorce decree that ended her forty-nine-year marriage. She contends that the trial judge should have awarded her a one-half interest in a farm to which appellee William Davis acquired title before the parties were married and that the judge awarded an insufficient amount of alimony. She also argues that the judge should have awarded an increased amount of child support for the parties' disabled adult daughter, for whom appellant provides full-time care. We affirm the child-support award and reverse and remand as to alimony and the division of the farm.
The parties married in 1952, when appellant was fifteen years old. Throughout the marriage, appellant did not work away from the home. The parties had four children during the marriage; one child died in infancy and another, Vicki, was born in 1956 with a serious mental handicap. Vicki mentally performs at the level of a seven-year-old and requires full-time care; there is no dispute that her needs prevent appellant from working outside the home.
In 1951, about six months before the marriage, appellee purchased a 211 acre farm in Arkansas County for $21,500, and borrowed the entire purchase price. The first payment on this debt was made after the parties married. The debt was satisfied by income that appellee generated from farming. Both parties later signed applications for loans that were used to improve the farm. On the loan applications, the farm was listed as belonging to both of them. At the time of trial, their son farmed this property and paid rent to appellee. The parties' son-in-law, George Juhl, testified that the farm now has a value of between $1,500 and $2,000 per acre. Appellee's brother, Johnny Davis, testified that its value was between $1,800 and $2,000 an acre.
In addition to the 211 acre farm, the parties acquired a significant amount of other property, both real and personal, during the marriage. One item of personal property that was not litigated was appellee's acquisition of stock in a family farm corporation, Davis Farms, Inc. According to the parties' daughter, Cynthia Juhl, appellee inherited some of this stock and purchased the rest. Appellant presented evidence, and appellee admitted, that he had taken steps to transfer marital property, including his stock in Davis Farms, to their son before the divorce. Although appellee explained that he did so to enable his son to use the stock as collateral for a loan, he denied having any further interest in this stock. Cynthia stated that appellee had told her that he had loaned the stock, and had not given it, to her brother. Additionally, Johnny Davis testified that appellee had stated on more than one occasion before the divorce that he was "getting everything fixed" to protect his assets from appellant and Vicki.
On his affidavit of financial means, appellee listed his total monthly expenses as $1,370. Appellant listed her and Vicki's monthly expenses as $2,526.50. Appellant and Vicki each draw $441 in social security benefits, and Vicki receives $90 in Supplemental Security Income (SSI) benefits. Appellee receives social security benefits of approximately $930 per month. In addition to his social security income, his affidavit reflected an annual income of $18,500 from the rental of the farm and $10,000 from machinery rental.
In the decree, the trial judge found that Vicki is in need of support and set appellee's child-support obligation at $180 per month, noting that this amount is in addition to the social security benefits that she receives. The judge awarded appellant alimony in the amount of $300 per month. The judge found that the farm is nonmarital *450 property. However, he awarded appellant the right to occupy the house on this property because she is Vicki's primary caregiver. He ordered appellant to pay for the utilities and normal maintenance on the house, and made appellee responsible for major maintenance and repairs, taxes, and insurance on it.
The judge ordered the parties' marital property, both real and personal, to be divided equally. This property included two parcels of real estate in Jefferson County, life insurance policies, an IRA, stock certificates, several bank accounts, a 1994 Lincoln Town Car, farm equipment, a GMC truck, and four guns. The judge ordered the real property in Jefferson County to be sold and the proceeds divided equally.
Arguments
Appellant makes the following arguments on appeal: (1) the judge erred in failing to award her a one-half interest in the farm; (2) the judge set her alimony too low; (3) the judge set child support too low.
The Property Division
Appellee asserts that appellant cannot argue on appeal that she was entitled to an interest in the farm because she failed to make this argument at trial. We disagree. Appellant presented extensive testimony about the parties' residence on the farm throughout their long marriage and introduced as exhibits copies of the loan applications upon which she and appellee had listed the farm as a joint asset. Our review of the record reveals that, at trial, it was clear that appellant was asserting an interest in the property. Appellant adequately preserved this issue for purposes of appeal.
The burden was on appellee to establish that the farm was his separate nonmarital property. Aldridge v. Aldridge, 28 Ark.App. 175, 773 S.W.2d 103 (1989). The trial judge's findings as to the circumstances warranting a property division will not be reversed unless they are clearly erroneous. Dennis v. Dennis, 70 Ark.App. 13, 13 S.W.3d 909 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Parker v. Parker, 75 Ark.App. 90, 55 S.W.3d 773 (2001). We are left with such a conviction in this case. We believe that the trial judge clearly erred in finding that the farm is appellee's nonmarital property. It is true that Ark. Code Ann. §§ 9-12-315(b)(1), (5), and (7) (Repl.2002) provide that all property acquired prior to the marriage, its increase in value, and its income are not marital property. See Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999).[1] However, a spouse's earnings acquired subsequent to marriage are classified as marital property. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993).
Appellee's earnings from farming were, therefore, undisputably marital property. When dividing the parties' marital and nonmarital property, the trial court should consider that marital property was used to pay a debt that one spouse incurred prior to the marriage. Id.; Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984); see also Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). In this case, all of the debt was paid from *451 income that appellee produced while farming. In Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), the supreme court held that marital property does not include passive appreciation of nonmarital property but that active appreciation of such property as a result of a spouse's contribution of substantial time, effort, or skill over an extended period of time should be classified as marital property.
Layman clearly applies here. When the parties married, appellee owned nothing more than bare legal title to the farm; all of the equity was accumulated during the marriage. For over forty years, appellee devoted virtually all of his work efforts toward producing income from the farm, and through his labors, appellee satisfied the debt on the farm and increased its value. Additionally, appellant provided decades of services to the family in running the household and rearing the children. Until the mid 1970's, appellee had serious health problems that required appellant's care and attention. Appellant frequently had to take appellee to the doctor at night. Without a doubt, her efforts also contributed to the farm's appreciation in value. The court is required to consider the services of a homemaker in dividing the marital property. See Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001); see also Ark.Code Ann. § 9-12-315(1)(A)(viii) (Repl.2002).
The trial court's award of the farm to appellee must, therefore, be reversed and remanded. Although the burden was on appellee to establish the value of the farm prior to the parties' marriage, Aldridge v. Aldridge, supra, he failed to present any such evidence. Accordingly, the farm should be treated as marital property in the entirety and divided equally between the parties.
Alimony
Appellant argues that the total award of alimony and child support is insufficient to meet her and Vicki's monthly expenses of $2,526.50. These awards, however, should be considered separately.
Alimony and property divisions are complementary devices that a chancellor employs to make the dissolution of a marriage as equitable as possible. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). A trial judge's decision whether to award alimony is a matter that lies within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. Ellis v. Ellis, 75 Ark.App. 173, 57 S.W.3d 220 (2001); Mitchell v. Mitchell, 61 Ark.App. 88, 964 S.W.2d 411 (1998); Anderson v. Anderson, 60 Ark.App. 221, 963 S.W.2d 604 (1998). The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Anderson v. Anderson, supra. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Id. The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; and (4) the earning ability and capacity of both parties. Id. In Mitchell v. Mitchell, supra, this court explained that the amount of alimony should not be reduced to a mathematical formula and that the need for flexibility outweighs the need for relative certainty. However, the court should consider the total income, from whatever source, including social security payments, of both parties in making the determination. *452 See Cochran v. Cochran, 7 Ark.App. 146, 644 S.W.2d 635 (1983).
Our decision that appellant should receive a one-half interest in the farm substantially reduces appellee's assets; therefore, we find that the amount of alimony awarded should be reconsidered by the trial judge on remand.
Child. Support
The general rule is that, once a child reaches majority, the legal duty of the parents to support that child ceases. Kimbrell v. Kimbrell, 47 Ark.App. 56, 884 S.W.2d 268 (1994). An exception to this rule, however, exists when a child is mentally or physically disabled in any way at majority. Id. Arkansas Code Annotated § 9-12-312(a)(5)(B) (Repl.2002) provides that the "court may also provide for the continuation of support for an individual with a disability which affects the ability of the individual to live independently from the custodial parent." The determination of whether continued support for an adult child is proper has to be made on the basis of the facts of each particular case. Kimbrell v. Kimbrell, supra. Under these circumstances, the amount of child support a trial court awards lies within the court's sound discretion, and this court will not disturb the court's award absent an abuse of discretion. Id.
Appellee receives social security and rental income. As a result of our opinion, his farm rental income will be reduced by one-half. Arkansas Code Annotated § 9-14-201 (4)(A) (Supp.2001) defines "income" as "any periodic form of payment due to an individual, regardless of the source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest." The Arkansas Supreme Court expanded this definition in In re: Administrative Order No. 10: Arkansas Child Support Guidelines § II, 331 Ark. 581, 582 (1998) as follows: "Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker's compensation, disability, payments pursuant to a pension or retirement program, and interest...." In section IIIc., the guidelines state: "For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient's spouse and/or children on account of the payor's disability."[2]
Appellee has not appealed from the award of child support and does not dispute that his social security benefits should be considered as income for the purpose of computing his obligation. See Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002); Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000). Even if appellee's social security benefits are included in his take-home pay for the purposes of calculating his child-support obligation, the amount awarded need not be increased. In Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), the supreme court stated that a parent should be credited with the full amount of social security *453 payments made to the child. See also Cantrell v. Cantrell, 10 Ark.App. 357, 664 S.W.2d 493 (1984). Vicki receives $441 in monthly social security benefits, which is more than the amount of child support required by the chart. Therefore, we cannot say that the judge abused his discretion in setting monthly child support at $180.
Affirmed in part; reversed and remanded in part.
STROUD, C.J., and ROBBINS, J., agree.
NOTES
[1] We note, however, that the farm's income was marital property until the General Assembly amended Ark.Code Ann. § 9-12-315 in 1989. See Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987).
[2] The Guidelines were amended on January 31, 2002, effective February 11, 2002, and now state in section IIIc.: "For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient's spouse and children on account of the payor's disability. SSI benefits shall not be considered as income." In re: Administrative Order Number 10-Child Support Guidelines, 347 Ark. ____ (2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580092/ | 12 So.3d 531 (2009)
RAY
v.
BLOCKBUSTER, INC.
No. 2007-CT-00744-COA.
Supreme Court of Mississippi.
May 14, 2009.
Petition for writ of certiorari. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580108/ | 84 S.W.3d 272 (2002)
WOMCO, INC., W.O. Marquess, C.L. Hall, Doris Hall, Lori Claxton, Douglas Wayne Hall, NE-TEX AG Transportation Company, Inc. and Miller Grove Farm Supply, Inc., Appellants,
v.
NAVISTAR INTERNATIONAL CORPORATION, Price International, Inc. and Mahaney International, Inc., Appellees.
No. 12-01-00045-CV.
Court of Appeals of Texas, Tyler.
June 20, 2002.
*275 William Cornelius, for appellants.
Mark M. Donheiser, Michele R. Sowers & Kurt C. Kern, Dallas, for appellees.
Panel consisted of WORTHEN, J., and GRIFFITH, J.
OPINION ON APPELLEES' MOTION TO CLARIFY
SAM GRIFFITH, Justice.
On May 22, 2002, we delivered our opinion in this case in which we affirmed the trial court's order granting summary judgment as to some of Appellants' claims and reversing and remanding the trial court's order as to certain other claims. On June 10, 2002, Appellees requested that we clarify our original opinion to further delineate those claims remanded to the trial court for further proceedings. Appellees' motion is hereby granted, our opinion dated May 22, 2002 is withdrawn, and the following opinion is substituted.
Appellants, Womco, Inc.("Womco"), W.O. Marquess ("Marquess"), C.L. Hall, Doris Hall, Lori Claxton, Douglas Wayne Hall, NE-TEX AG Transportation Company, Inc. and Miller Grove Farm Supply, Inc., appeal the trial court's order granting summary judgment in favor of Appellees, Navistar International Corporation ("Navistar"), Price International, Inc. ("Price") and Mahaney International, Inc. ("Mahaney").[1] Appellants raise eight issues on appeal. We affirm in part, and reverse and remand in part.
BACKGROUND
In 1993, the Womco Appellants purchased thirty 1993 International model 9300 tractor trucks manufactured by Navistar through Price, a dealer. Also, in 1993, the Hall Appellants purchased sixteen 1994 International model 9300 tractor trucks also manufactured by Navistar through Mahaney, another dealer. Almost immediately after the trucks were put into service, Appellants each had problems with their respective trucks' engines overheating. As the problems occurred, Appellants took their trucks, which were still covered under warranty, to their respective dealerships for diagnoses and repairs related to the overheating problem. Although repeated attempts were made, the dealership's mechanics were unable to correct the problem.
In June 1995, Marquess, the president of Womco, had one of the trucks inspected by an independent source, Rodieck Welding & Radiator Service ("Rodieck"). Rodieck found nothing wrong with the truck's radiator, but replaced the core of the radiator to be certain. Rodieck also informed Marquess that the truck's radiator appeared to be unusually small. Despite Rodieck's efforts, the overheating problem in the Womco Appellants' trucks continued. Soon thereafter, Marquess contacted Price and spoke to Les Miller ("Miller"), informing him that he wanted to install larger radiators in his trucks. Miller responded that Price did not make a larger radiator for that particular truck and further, that *276 the hood of the truck would not accommodate a larger radiator. Following this conversation, Marques had an audit conducted of the cooling system of one of the trucks in July 1995 by the Tyler Truck Center, which revealed that the trucks were overheating due to insufficient radiator capacity.
The Womco Appellants filed suit on April 23, 1997. The Hall Appellants joined the suit on or about May 22, 1997 after learning of the results of the audit. In January 2000, Appellees filed a motion for summary judgment based on their affirmative defenses of limitations, accord and satisfaction, disclaimer of warranty and the economic loss rule. Appellants responded. The motion was set for oral hearing. On the day of the hearing on Appellees' motion for summary judgment, Appellees filed and served Appellants with their motion to strike the affidavit of Marques. Appellees raised the motion to strike during the hearing. At the conclusion of the hearing, the trial judge stated that he would rule on the motions in 21 days. The trial court granted Appellees' motion to strike and motion for summary judgment in November 2000.
STANDARD OF REVIEW
In reviewing a 166a(c) motion for summary judgment, we must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true;
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
See Nixon, 690 S.W.2d at 548-49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). A movant must either negate at least one essential element of the non-movant's cause of action, or prove all essential elements of an affirmative defense. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the non-movant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The only question is whether or not an issue of material fact is presented. See Tex.R. Civ. P. 166a(c).
Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Civ. P. 166a(c).
*277 THE DISCOVERY RULE
Twenty-seven of the thirty trucks purchased by the Womco Appellants and ten of the sixteen trucks purchased by the Hall Appellants were delivered more than four years prior to the filing of the instant lawsuit. Appellees contend that any cause of action concerning these thirty-seven trucks is barred by limitations. In their fifth issue, Appellants contend that the discovery rule operates to toll the running of limitations until they discovered that the radiator was the cause of overheating. Appellees contend that the discovery rule does not apply to Appellants' claims, but that even if it does, it runs from the time Appellants discovered that the trucks were overheating.
The primary purpose of statutes of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988); see also Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex.2001), citing Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996); S.V. v. R.V., 933 S.W.2d 1, 3 (Tex.1996). It is in society's best interest to grant repose by requiring that disputes be settled or barred within a reasonable time. Horwood, 58 S.W.3d at 734. Generally, a cause of action accrues when a wrongful act causes a legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. See S.V., 933 S.W.2d at 3; see also Li v. University of Tex. Health Sci. Center at Houston, 984 S.W.2d 647, 651 (Tex.App.Houston [14th Dist.] 1998, pet. denied). The discovery rule is the legal principle which, when applicable, provides that limitations run from the date the plaintiff discovers or should have discovered, in the exercise of reasonable care and diligence, the nature of the injury. See Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.1998); Willis, 760 S.W.2d at 644. Discovering the "nature of the injury" requires knowledge of the wrongful act and the resulting injury. See Childs, 974 S.W.2d at 40.
Appellants argue that the discovery rule tolls limitations until they discovered the specific cause of the overheating-namely, as they allege, that the radiator was too small to properly cool the trucks. We disagree. In Bayou Bend Towers Council of Co Owners v. Manhattan Constr. Co., the Fourteenth Court of Appeals held that the discovery of an injury and its general cause, as opposed to the exact cause, is sufficient to commence the running of the limitations period. 866 S.W.2d 740, 742 (Tex.App.-Houston [14th Dist.] 1993, writ denied). The court of appeals' holding comports with the Texas Supreme Court's opinion in Childs, in which the court stated, "when the discovery rule applies, accrual is tolled until a claimant discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another." Id. at 40; see also KPMG Peat Marwick, 988 S.W.2d at 749 (statute tolls until plaintiff knew or should have known of the wrongfully caused injury); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 224 (Tex.1999) (issue characterized as whether plaintiff knew or should have known, through the exercise of reasonable diligence, that the injury was likely work-related); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990) (discovery rule tolls the running of the limitations period until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the nature of the injury). Thus, if the discovery rule applies to a case such as this one, it would begin to run *278 from the point where Appellants discovered, or in the exercise of reasonable care and diligence should have discovered, the "nature of the injury" as that term has been defined by the Texas Supreme Court. See La Gloria Oil and Gas Co. v. Carboline Co., 84 S.W.3d 228 (Tex.App.-Tyler 2001), citing Childs, 974 S.W.2d at 40.
Even assuming arguendo that the discovery rule does apply, Appellants' cause of action would still be barred by limitations. Appellants analogize their case to medical malpractice cases, in which a person could not have been expected to know that his symptoms were caused by the wrongful conduct of his treating physician. But as Appellees declare with deft simplicity in their brief, "a [truck] is not a person." That is to say, a truck is manufactured to function properly. Thus, when a truck, upon being put into use, malfunctions almost immediately, it follows that the problem is caused by the wrongful conduct, be it design, manufacture or otherwise, of another. On the other hand, when a person gets sick, it does not necessarily follow that the ailment is the cause of the wrongful conduct of another as the illness could be naturally occurring. In the instant case, it is undisputed that the trucks began overheating almost immediately after being put into service. Given the immediacy of the overheating and the noted distinction between a human being and a piece of machinery, we conclude that Appellants discovered, or, in the exercise of reasonable care and diligence, should have discovered that the overheating problem was caused by the wrongful conduct of another upon its first occurrence. Indeed, it is undisputed that Appellants sought to have their trucks repaired under the warranty, which necessarily implies that they knew that the problem was caused by the wrongful conduct of another. Thus, we conclude that, assuming arguendo that the discovery rule applies, Appellants claims as to thirty-seven trucks are barred by limitations because the undisputed facts indicate that Appellants either discovered, or in the exercise of reasonable care and diligence, should have discovered the "nature of their injury" more than four years prior to the date they filed suit. Appellants fifth issue is overruled.[2]
DISCLAIMER OF WARRANTY
It is undisputed that Appellants' breach of implied warranty claims as to nine trucks are not barred by limitations.[3] However, in their sixth issue, Appellees contend that such implied warranties were disclaimed. The Texas Uniform Commercial Code allows sellers to disclaim both the implied warranty of merchantability as well as the implied warranty of fitness for particular purpose. See Tex. Bus. & Comm. Code Ann. § 2.316(b) (Vernon 1994); *279 Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 577 (Tex.1991). In order to disclaim an implied warranty of merchantability in a sales transaction, the disclaimer must mention the word "merchantability." The disclaimer may be oral or written, but if in writing, the disclaimer must be conspicuous. See La Bella v. Charlie Thomas, Inc., 942 S.W.2d 127, 131-32 (Tex.App.-Amarillo 1997, writ denied); TEX. BUS. & COMM.CODE § 2.316(b). To disclaim an implied warranty of fitness for a particular purpose, the disclaimer must be in writing and must be conspicuous. See Tex. Bus. & Comm.Code § 2.316(b); W.R. Weaver Co. v. Burroughs Corp., 580 S.W.2d 76, 81 (Tex.Civ.App.-El Paso 1979, writ ref'd n.r.e.). Whether a particular disclaimer is conspicuous is a question of law to be determined by the court. See Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex.1990). A term or clause is conspicuous if it is written so that a reasonable person against whom it is to operate ought to have noticed it. See TEX. BUS. & COMM.CODE ANN. § 1.201(10) (Vernon Supp.2002); W.R. Weaver Co., 580 S.W.2d at 81. Language is "conspicuous" if it is in larger type or other contrasting font or color. Id. Conspicuousness is not required if the buyer has actual knowledge of the disclaimer. See Cate, 790 S.W.2d at 561-62.[4]
Appellants, citing Texas Business and Commerce Code, section 2.316(a), argue that Appellees are also required to prove the reasonableness of the disclaimers at issue. However, section 2.316(a) concerns the disclaimer of express warranties. In the instant case, Appellants have only pleaded that Appellees breached implied warranties. Thus, section 2.316(a) and its requirement of reasonableness are inapplicable.
Further, Appellants argue that Appellees were required to offer proof of the context of the purported disclaimers, contending that in order for a disclaimer of an implied warranty to be effective, the plaintiffs must have had an opportunity to examine it prior to consummation of the contract for sale. See Klo-Zik Co. v. General Motors Corp., 677 F.Supp. 499, 508 (E.D.Tex.1987). In Klo-Zik Co., the court, in reaching its conclusion, relied on Mercedes-Benz of N. Am., Inc. v. Dickenson, 720 S.W.2d 844, 852 (Tex.App.-Fort Worth 1986, no writ). In Dickenson, the court held that a disclaimer of an express warranty was ineffective where the buyer was not given the opportunity to read the warranty or warranties made until after the contract is signed. Id. Although the instant case concerns a converse situation to Dickenson, the rationale applied by the Dickenson court is helpful. One of the underlying purposes of Texas Business and Commerce Code section 2.316 is to protect a buyer from surprise by permitting the exclusion of implied warranties. See TEX. BUS. & COMM.CODE § 2.316, comment 1 (Vernon 1994). We fail to see how section 2.316 can fulfill such a purpose unless a disclaimer is required to be communicated to the buyer before the contract of sale has been completed, unless the buyer afterward agrees to the disclaimer as a modification of the contract. See Weintraub, "Disclaimer of Warranties and Limitation of Damages for Breach of Warranty Under the UCC," 53 Tex. L.Rev. 60, 69 (1975), citing Dessert Seed Co. v. Drew Farmers Supply, Inc., 248 Ark. 858, 454 S.W.2d 307 (1970); Dougall v. Brown Bay Boat Works & Sales, Inc., 287 Minn. 290, *280 178 N.W.2d 217 (1970). We adopt the rationale espoused in Dickenson and the holding set forth in Klo-Zik Co., and likewise hold that in order to be effective, a disclaimer of either an express or an implied warranty is required to be communicated, in the manner described in section 2.316(b), to the buyer before the contract of sale has been completed.
In support of their motion for summary judgment, Appellees offered six disclaimers, all of which were deposition exhibits. None of these six disclaimers is probative as to the issue of whether the disclaimer was communicated prior to the completion of the contract of sale. Appellees also offered the deposition testimony of Marquess, C.L. Hall, Douglas Hall and Lori Parham. In each deposition transcript, the witness testified that he or she had received the paperwork containing the corresponding disclaimer with delivery of the trucks. However, no evidence concerning the disclaimer issue raised by Appellees in their motion for summary judgment demonstrates that the disclaimer was communicated to Appellants prior to their respective completions of the contract for sale. Therefore, we hold that since Appellant failed to conclusively prove that they were entitled to judgment as a matter of law on the disclaimer issue, summary judgment was not appropriate on that issue. Appellants' sixth issue is sustained.[5]
ACCORD AND SATISFACTION
In their seventh issue, Appellants argue that the trial court erred in granting summary judgment based on Appellees' affirmative defense of accord and satisfaction. Accord and satisfaction is a defense to a breach of warranty claim. See Jenkins v. Steakley Bros. Chevrolet Co., 712 S.W.2d 587, 590 (Tex.App.-Waco 1986, no writ). Accord and satisfaction, as a defense to a claim based upon a contract, exists when the parties have entered into a new contract, express or implied, which discharges the obligations under the original contract in a manner otherwise than as originally agreed. See Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979). In other words, the person with the right of action accepts some performance in satisfaction of the right of action. See Priem v. Shires, 697 S.W.2d 860, 863 n. 3 (Tex.App.-Austin 1985, no writ). The new agreement need not state that it is intended to be an accord and satisfaction. See Jenkins, 712 S.W.2d at 590. Rather, we may look to the circumstances surrounding the execution of the new agreement to determine if there has been an agreement to discharge the original obligation. Id., citing Harris, 593 S.W.2d at 306.
In the case at hand, Appellees, in their motion for summary judgment, argue that a letter agreement dated September 12, 1995 between Price and the Womco Appellants operated as an accord and satisfaction. There are no allegations of an accord and satisfaction operating as to the Hall Appellants. Although the letter agreement does not specifically state that it is in satisfaction of the previous obligation, Appellees contend that the circumstances of the transaction are indicative of an accord and satisfaction. Specifically, Appellees argue that the following facts establish accord and satisfaction as a matter of law: (1) Womco returned all thirty trucks and received fifty new trucks; (2) Womco received $50,000.00, thirty days free interest on thirty of the *281 new trucks, 100% financing on all fifty new trucks, a 9.4% interest rate, and waiver of $11,000.00 in late charges. However, Appellants point out that in Marquess's affidavit, which was part of Appellants' summary judgment evidence, Marquess expressly denies that he, on behalf of Womco, ever agreed to release any claim he had against Price or anyone else for the problems with Womco's trucks.[6] Thus, even assuming that these circumstances are indicative of an accord and satisfaction, taking the evidence favorable to Appellants as true, we conclude that there is a material issue of fact as to whether the letter agreement dated September 12, 1995 was an accord and satisfaction. Appellants' seventh issue is sustained. Furthermore, Appellant's third issue, as it relates to paragraph of Marquess's affidavit, is sustained.[7]
Accordingly, the trial court's order granting summary judgment is reversed as to Appellants' claims for breach of warranty filed less than four years after the delivery of the truck upon which the claim is based, and is remanded to the trial court for further proceedings. As to all other claims of Appellants, the trial court's order granting summary judgment is affirmed.
NOTES
[1] Womco and Marquess are referred to collectively as the "Womco Appellants." C.L. Hall, Doris Hall, Lori Claxton, Douglas Wayne Hall, NE-TEX AG Transportation Company, Inc. and Miller Grove Farm Supply, Inc. are referred to collectively as the "Hall Appellants." The Womco Appellants and the Hall Appellants are referred to collectively as "Appellants." Navistar and Price are referred to collectively as "Appellees."
[2] In their fifth issue, Appellants also raise the issue of the deferred accrual exception based on fraudulent concealment. Although our analysis above refers to the "discovery rule" in the traditional sense, it is equally applicable to cases involving the deferred accrual exception. See La Gloria Oil and Gas Co., 84 S.W.3d 228, 233, n. 4 (Tex.App.-Tyler 2001), citing Rodessa Resources, Inc. v. Arcadia Exploration and Production Co., 5 S.W.3d 363, 366 (Tex.App.-Texarkana 1999, no pet.); S.V., 933 S.W.2d at 6.
[3] The record reflects that three trucks owned by the Womco Appellants were delivered within four years of their filing the instant lawsuit. The record further reflects that six trucks owned by the Hall Appellants were delivered within four years of their filing suit. The statute of limitations for breach of implied warranty is four years. See Tex. Bus. & Comm.Code. Ann § 2.725(a) (Vernon 1994).
[4] We recognize that there are certain exceptions to the aforementioned rules regarding disclaimers. However, these exceptions have not been raised on appeal and therefore, a review of these exceptions is not necessary for the purposes of this opinion.
[5] As it was not raised as a ground for summary judgment, in reaching our holding on this issue, we did not consider whether the implied warranties at issue could have been properly excluded by prior course of dealing or course of performance between the parties. See TEX. BUS. & COMM.CODE ANN. § 2.316(c) (Vernon 1994).
[6] We note that this paragraph of Marquess's affidavit, paragraph eleven, was one of the subjects of Appellees' motion to strike, which is contested by Appellants' in their third issue on appeal. In their motion to strike, Appellees state, "Defendants object to Paragraph 11 of W.O. Marquess' affidavit because it contains unsubstantiated legal conclusions." Defects in the form of affidavits or attachments must be specifically pointed out by objection by an opposing party. See Tex.R. Civ. P. 166a(f); Knetsch v. G.V. Gaitonde, M.D., 898 S.W.2d 386, 389 (Tex.App.-San Antonio 1995, no writ). A specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling and affords the offering party an opportunity to remedy the defect, if possible. See In the Interest of N.C.M., 66 S.W.3d 417, 420 (Tex.App.-Tyler 2001, no pet.). In the instant case, Appellees objection that paragraph 11 contains unsubstantiated legal conclusions is itself conclusory. Appellees do not in their objection identify which statements in paragraph eleven are objectionable on such grounds, nor do they offer any explanation to the trial court as to the precise bases for their objection. We conclude that Appellees' objection to paragraph eleven of Marquess's affidavit in their motion to strike does not meet the criteria set forth by Texas Rule of Civil Procedure 166a(f).
[7] As our consideration of issues five, six and seven is dispositive of all of Appellants' claims, we do not reach Appellants' issues one, two, three, four and eight, other than a portion of issue three as discussed above. Moreover, even if the issues one through four related to Appellants' motion to strike had been sustained, our determination of Appellants' issue five would not change as there was no dispute about the fact that the trucks began overheating almost immediately after being put into service. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581841/ | 469 F.Supp. 987 (1979)
HUDSON HARBOR 79TH STREET BOAT BASIN, INC., Plaintiff,
v.
SEA CASA, her engines, tackle, apparel, furniture, equipment and all other necessaries thereunto appertaining and belonging, Defendant.
No. 79 Civ. 2074(CLB).
United States District Court, S. D. New York.
May 1, 1979.
*988 Donna M. Gilligan, Peter Fishbein, Schupak, Rosenfeld & Fishbein, New York City, for plaintiff.
Donald Olman, Rassner, Rassner & Olman, New York City, for defendant.
MEMORANDUM AND ORDER
BRIEANT, District Judge.
In this in rem action, plaintiff seeks to enforce a maritime lien for wharfage rendered at its marina to the yacht SEA CASA, currently being used as a houseboat. On April 20, 1979 the houseboat was arrested by the U.S. Marshal pursuant to an ex parte order issued pursuant to Rule C(3) of the Supplementary Rules for Certain Admiralty and Maritime Claims. Thereafter, by motion by order to show cause, claimant John Boldt, as owner or agent for the houseboat SEA CASA, in rem defendant, has mounted an attack upon the powers and jurisdiction of this Court granted under Article III, § 2 of the United States Constitution, by which the federal courts assert judicial power extending "to all Cases of admiralty and maritime Jurisdiction."
The jurisdictional facts are not in dispute. The defendant SEA CASA is a 35 foot fiberglass houseboat built in 1971. Since June of 1977 and until the events described below, the SEA CASA was berthed at the 79th Street Marina in the Hudson River, operated by plaintiff as a public wharf, under a lease or concession agreement from the City of New York, which fixes the charges for dockage and marine services.
Mr. Boldt asserts, and the plaintiff does not deny, that the vessel has been his "sole residence and home since June of 1977." He states that City and New York State officials recognize the 79th Street Marina as his legal place of residence, as does the United States Post Office, that his residence on the vessel at this pier has been recognized by the Board of Elections as a legal voting residence, and on one occasion, City Housing Authorities relocated a person whose apartment house had been destroyed by fire, to a residence aboard another houseboat. He avers that he has no other residence or place to live other than the houseboat. Unmarried, and age 35, he is employed as a bartender, and prior to June of 1977 had lived for some time at plaintiff's Marina aboard another vessel.
Plaintiff claims to have furnished what it describes as transient dockage service of the reasonable value of $3,888 to the SEA CASA. This claim represents an account for wharfage or dockage. Claimant admits owing $665 as dockage and asserts that there are set-offs available to the vessel. Asserting a maritime lien against the SEA CASA, in rem, plaintiff caused an ex parte warrant for the arrest of this vessel to be issued by the Clerk of this Court on April 20, 1979, and the warrant was delivered to the United States Marshal, who seized the vessel. An ex parte order was signed the same date authorizing the Marshal to deliver the vessel to a custodian appointed for possession and safekeeping of the arrested vessel by this Court.
*989 Mr. Boldt asserts that because of the nature and current use of this particular vessel, the furnishing of dockage services to her will not provide a basis for a maritime lien, or the exercise by this Court of its maritime jurisdiction. This assertion has no legal basis.
The SEA CASA is a "vessel" within the statutory definition of Title 1, United States Code, § 3, which reads as follows:
"§ 3. `Vessel', as including all means of water transportation.
The word `vessel' includes every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water."
Cases referring to houseboats have uniformly held that a houseboat is a vessel in the context of a claim against the houseboat in rem asserting a lien for dockage under the Maritime Lien Act, 46 U.S.C. § 971. The best analysis of the rule is found in Miami River Boat Yard, Inc. v. 60' Houseboat, Ser. # SC-40-2860-3-62, 390 F.2d 596, 597 (5th Cir. 1968). There, Chief Judge Brown of that Circuit expressed the rule as follows:
"A houseboat is nonetheless a boat because, as its name implies, it affords a water-borne place to live with the added advantage of at least some maritime mobility. That she has no motive power and must, as would the most lowly of dumb barges, be towed does not deprive her of the status of a vessel.
* * * * * *
The Houseboat was a vessel capable of being subjected to a maritime lien and the District Court was in error in holding that it lacked subject-matter jurisdiction over the vessel in rem. Pleason v. Gulfport Shipbldg. Corporation, 5 Cir., 1955, 221 F.2d 621, 1955 A.M.C. 794; Campbell v. Loznicka, 5 Cir., 1950, 181 F.2d 356, 359, 1950 A.M.C. 756; The Showboat, D.Mass., 1930, 47 F.2d 286, 1931 A.M.C. 19; The Ark, S.D.Fla., 1926, 17 F.2d 446, 1927 A.M.C. 38; cf. The Jack-O-Lantern, 258 U.S. 96, 42 S.Ct. 243, 66 L.Ed. 482."
Section 971 of Title 46, United States Code, provides as follows:
"§ 971 Persons entitled to lien
Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel."
In M/V MARIFAX v. McCrory, 391 F.2d 909 (5th Cir. 1968) the contention raised here by the owner of the SEA CASA, that a vessel, for purposes of § 971 must be currently employed in navigation or engaged in commerce was expressly rejected. As the Court in MARIFAX pointed out, the obsolete Navy vessel in that case "was not navigably impotent at the time of the appellee's repair work, and certainly she was capable of being used in navigation. Even fifteen years of resting inertia does not necessarily destroy navigability." (Emphasis in original.) Here the SEA CASA was capable of being used at least to the extent that a "dumb barge" is capable of being used. That the front of the Marina was protected from floating ice by camels which prevented egress from the slip is of no consequence. These could be moved, and the SEA CASA could have been towed from her berth during the winter season. See City of Erie v. S.S. NORTH AMERICAN, 267 F.Supp. 875 (W.D.Pa.1967). Traditionally, claims for dockage against yachts have been held to be a proper basis for maritime lien under the statute mentioned above.
From the foregoing analysis it is clear that a floating houseboat capable of being towed from one location to another is a vessel within the admiralty and maritime jurisdiction of this Court. It is not a house or apartment, and the contentions to the contrary asserted by claimant Boldt are without legal basis.
We then turn to the effect, if any, of the order appointing a substitute custodian, made by this Court ex parte, effective only after the Marshal had arrested and seized *990 the vessel, thereby acquiring jurisdiction. The sole purpose of this safekeeping order was to reduce the costs and expenses to the successful claimant of maintaining this rather modest craft which is sought to be subjected to a maritime lien, which is also of relatively modest amount. Practices followed in merchant shipping cases where the U.S. Marshal posts a full-time deputy on the vessel on a 24 hour basis would be prohibitive in cost. In order to obtain a more favorable rate of $6.00 per day, this Court, upon the filing of adequate insurance and a bond protecting the U.S. Marshal against any damages or injury to the vessel, authorized the Marshal to turn possession over to the substitute custodian "Marinas of the Future, Inc.", located in Flushing, New York.
This was done. The vessel, in the hands of "Marinas of the Future," was, and is, in contemplation of law, in the hands of the Marshal and subject to the continued order of this Court. This Court could and can now change the location and custody of the vessel from time to time as the needs of justice may require. The custodian has its marina on navigable water at 125th Street and Northern Boulevard, Flushing, New York, in Queens County. It has extensive wharfage at that location and apparently has adequate facilities and supervision for the safekeeping of this vessel. Few if any equivalent facilities exist closer in distance to the 79th Street Marina.
Claimant Boldt now argues that because the County of Queens is in the Eastern District of New York, this Court, by authorizing a substitute custodian to take possession of the vessel from the Marshal and place it in a marina in Queens, surrendered subject matter jurisdiction thereby, and the action should be dismissed. This argument overlooks the statutory provisions concerning the geographic jurisdiction of this District. Section 112(b) of Title 28, United States Code reads in relevant part as follows:
"[§ 112](b) The Southern District comprises the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester and concurrently with the Eastern District, the waters within the Eastern District." (Emphasis added.)
This District Court has concurrent jurisdiction over the waters at which the wharfage operated by "Marinas of the Future" is located.
Claimant asserts further that following transfer of possession to Marinas of the Future, that organization caused the vessel to be lifted out of the navigable waters and placed on dry land in Queens County. This Court does not know for what reason the vessel was taken out of the navigable waters by the custodian. Certainly no provision in this Court's custodial order of April 20, 1979 can be read to allow such action on the part of the custodian, except if in response to an emergency. The Court regards such action as being unauthorized, unless an emergency, such as leakage or damage threatening the vessel required that she be removed from the water. If so, any custodian would have the implied power, and indeed the duty to take such action with respect to the vessel as a reasonably prudent owner would take to protect the vessel from damage. If the act of the custodian was unauthorized and not in response to an emergency, this Court will regard that act as a nullity, ineffective to divest jurisdiction.
It is finally claimed that the assertion of this maritime lien constituted harassment and the warrant should be vacated for want of equity. However, claimant does not deny that the vessel was docked at plaintiff's Marina, and it appears likely that she is indebted. A federal statute gave the maritime lien, and federal law provides for its enforcement. The creditor had the right to invoke the processes of this Court under the applicable statute and rules to adjudicate its past due bill. The Court has been informed that various persons having vessels at the plaintiff's facility may have withheld payment of wharfage as a result of ongoing disputes concerning the condition of the facility. Apparently the City of New York, as owner of the pier, *991 authorized this plaintiff to render wharfage services. The terms of the concession granted to the Marina operator by the City could have provided that the Marina operator collect his past due account by recourse to the Civil Court of the City of New York, and refrain from asserting its maritime lien. The City did not do so. Accordingly, as a maritime lienor, plaintiff may proceed in this Court, notwithstanding that the underlying issue may arise from disputes concerning the performance or not of the concession terms.
The motion by order to show cause issued April 27, 1979 to dismiss the complaint and vacate the attachment is denied.
Bond for release of the vessel is fixed in the amount of $4,000 by cash or good certified check deposited in the registry of the Court or by approved surety bond. If claimant cannot or will not bond the vessel, the interests of justice require an immediate trial. Claimant shall file his pleadings on or before May 8, 1979, and plaintiff shall respond within two days thereafter. The issues in this case will be tried May 14, 1979 at 10:00 A.M. in Courtroom 2704.
So Ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580129/ | 392 F.Supp. 659 (1975)
Enoch D. CHISM, Petitioner,
v.
Theodore KOEHLER, Individually and as Warden of Marquette Branch Prison, Respondent.
No. M-74-29CA-2.
United States District Court, W. D. Michigan, N. D.
April 18, 1975.
*660 Peter H. Shumar, Marquette, Mich., for petitioner.
William S. Easton, A.C.L.U., Marquette, Mich., amicus curiae.
Joel M. Shere, A.C.L.U., Detroit, Mich., amicus curiae.
Frank J. Kelley, Atty. Gen., Patrick O. Landy, Asst. Atty. Gen., Lansing, Mich., for respondent.
OPINION
RALPH M. FREEMAN, District Judge.
This is a petition for a Writ of Habeas Corpus by Enoch D. Chism who has been convicted of first-degree murder in connection with the death of one Mrs. Nola Puyear. The decedent was killed on August 18, 1967 as she opened a package which had just been delivered to her through the mail. It was an innocent looking package marked "books", but which in fact contained an explosive device. Trial evidence showed that the package had been mailed in Marshall, Michigan and was delivered to Mrs. Puyear at the restaurant owned and operated by her and her husband in that city.
During the police investigation which followed her death, handwriting samples were taken from a number of persons in the community, including the petitioner. As a result of that investigation Enoch Chism was arrested and charged with first-degree murder on October 11, 1967. At the time of his arrest, both petitioner and his wife gave written consent to a search of their home which was conducted at about ten o'clock that morning. A roll of masking tape, a red marking pencil and a "Fiske" brand "C" battery were seized as a result of that search. These items were admitted at trial in conjunction with expert testimony that they had similarities to fragments found at the explosion site. During the afternoon of the following day, October 12th, two officers returned to the Chism residence and requested Mrs. Chism to turn over certain cancelled checks and a note book which had been seen in the Chisms' bedroom during the search of the previous day. Mrs. Chism did so. Together with the pre-arrest handwriting samples these items were used at trial as evidence that the address label on the *661 bomb package was in the handwriting of Enoch Chism.
As will be set forth below, the trial of this matter did not commence until January 20, 1970, some twenty-seven months after petitioner's arrest, during which time he was continuously incarcerated without bond in the Calhoun County Jail. For more than 15 months of this period he was also without the assistance of counsel.
Petitioner has exhausted his state remedies by appeals to the Michigan Court of Appeals, People v. Chism, 32 Mich.App. 610, 189 N.W.2d 435 (1971), as well as the Michigan Supreme Court, People v. Chism, 390 Mich. 104, 211 N. W.2d 193 (1973). His conviction was upheld in both instances.
Two independent grounds are asserted in support of this petition. First, that the twenty-seven month delay between his arrest and trial worked a denial of his constitutional right to a speedy trial. Secondly, that his wife's delivery of the checks and note book to the police on the day following his arrest violated his right to be free from warrantless searches and seizures. The American Civil Liberties Union of Michigan, as amicus curiae, has briefed and argued this matter in support of the petitioner on the speedy trial issue.
The Search and Seizure Issue
As set forth briefly above, items were removed from the petitioner's home on two separate occasions, the morning of October 11, 1967, and the afternoon of October 12, 1967. The items taken on October 11th were seized during a consent search immediately following petitioner's arrest. A quantity of cancelled checks and a notebook taken on October 12th were delivered to the police by Mrs. Chism at the request of two of the officers who had participated in the consent search the previous day.
Petitioner claims that the checks and notebook were improperly admitted at trial because, (1) his wife had no authority to consent to a seizure, and (2) his consent to the search of October 11th did not justify the return for items on the following day.
Several facts are especially pertinent. First, the checks and notebook had been seen by a police officer during the search of October 11th. It is clear that there was no actual search on October 12th, but merely a request for these specific items. Second, the home was jointly owned and occupied by Mr. and Mrs. Chism. Third, the items in question were kept in a bedroom shared by petitioner and his wife. Finally, it appears that the checks in question were from an account handled jointly by Mr. and Mrs. Chism.
In view of these facts the case of McCravy v. Moore, (6th Cir. 1973) 476 F.2d 281, is dispositive. That case squarely holds that where the wife of an accused, having equal rights of access and occupancy, consents to a search of the premises, there is no violation of the rights of the accused. There, as here, the wife was under no suspicion as a party to the crime, and there was also the factor of animosity between husband and wife which has been pointed out in this case.
It is therefore concluded that the petitioner's Fourth Amendment claim is without merit.
The Speedy Trial Issue
On October 18, 1967, one week after his arrest, petitioner made application for appointed counsel as an indigent. In considering this request the trial judge conducted hearings on October 18, 27 and December 26, 1967 concerning the defendant's financial condition. During this time counsel was appointed for the limited purpose of a preliminary examination on November 16, 1967 after which the defendant was bound over on the first-degree murder charge.
On January 9, 1968 the trial court ruled against the defendant's request for appointed counsel, but shortly thereafter *662 did appoint counsel for the limited purpose of taking an interlocutory appeal on the question of defendant's right to appointed counsel. Such appeals may be taken to the Michigan Court of Appeals only upon leave granted. On February 10, 1968 the newly appointed counsel filed an application for leave to appeal which was granted on March 29, 1968 together with an order allowing the Prosecuting Attorneys Association of Michigan to intervene as amicus curiae. By order of that same date the Court of Appeals also shortened by one-half the time allowed to all parties for the submission of their briefs. Upon the understanding that the Court would be unable to hear oral arguments until after its summer recess all parties stipulated to submission on briefs. On July 1, 1968 petitioner moved for an advancement on the Court of Appeals' calendar citing his incarceration. Although both the state and amicus stipulated to this motion, it was denied by order of the Court of Appeals on July 10, 1968. The Court offered no explanation for the denial.
During this period the defendant, proceeding in pro per, filed a motion in the trial court on June 20, 1968 seeking dismissal on speedy trial grounds. One month later the prosecutor filed his answer to the motion, but it was nearly another month before a copy of this answer was served upon the defendant on August 19, 1968. Notwithstanding the nature of the motion and the defendant's circumstances, the trial court did not set this motion for hearing until April 10, 1969. On April 16, 1969, exactly 300 days after filing, the motion was denied.
Despite the waiver of oral argument and the filing of petitioner's reply brief on July 1, 1968, it was not until November 13, 1968 that the Court of Appeals announced that it was then taking the interlocutory appeal under advisement. More than five months later the court filed its opinion on April 23, 1969. In finding the trial court to have been in error for refusal to grant appointed counsel the Court said in part:
"At the outset, this Court must affirmatively declare that no one charged with the crime of murder in this State who demands counsel for assistance in his defense may be forced to trial in propria persona. We read Am. VI of the amendments to the United States Constitution, made applicable to the various States by Am. XIV, to mean exactly what it says. Questions relating to financial ability to provide counsel, effect of refusal of a spouse to cooperate in obtaining counsel, deliberate transfer of property to effect indigency, are all subsidiary to the prime principle, i. e., one on trial for murder who wants a lawyer shall have one."
* * * * * *
"Defendant Chism is at this moment financially unable to provide counsel for his defense. Whether this resulted from a deliberate transfer of property, his neglect to enforce an equitable property settlement with his wife in the pending divorce case, or his wife's unwillingness to cooperate in obtaining an attorney for his defense, are all beside the point." People v. Chism, 17 Mich.App. 196, 199, 169 N. W.2d 192, 193.
In response to this ruling the trial court made a prompt appointment of counsel and informed him that the matter could be brought on for a jury trial during the following month (May) or in August. Understandably, the newly appointed counsel advised the court that there were certain pre-trial matters he wished to resolve and declined the immediate trial date.
The speedy trial issue was raised for the second time when petitioner's counsel filed a motion to quash the information on June 19, 1969. The trial court heard arguments on the motion July 23rd and ruled against it on August 7, 1969. The case was then set down for trial during the October term but was continued to the January term on defendant's motion after the trial court granted a prosecution motion to endorse *663 a scientific expert on October 15, 1969. Petitioner's trial was finally commenced on January 20, 1970 and after a ten-day trial the jury returned a verdict of guilty as charged.
Petitioner and amicus have both framed their arguments on the speedy trial question within the four factor analysis established by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In searching for criteria by which to assess the right, the Court rejected two rigid tests which were urged upon it in that case. The first such proposal would have established a specific time period within which a criminal defendant must be offered a trial date. The second would have established the "demand-waiver" doctrine imposing a prior demand for trial as a strict condition precedent to any consideration of a defendant's later contention that he had been denied his right to a speedy trial.
In rejecting the fixed time proposal the Court was careful to note that it was not disapproving the supervisory rules adopted by various courts establishing a period within which a criminal case must normally be brought to trial. Barker, supra, at 530, fn. 29, 92 S.Ct. 2182. In rejecting the "demand-waiver" proposal the Court pointed to its prior rulings that the waiver of fundamental rights cannot be presumed from the mere inaction of a defendant.
"This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." 407 U.S. at 528, 92 S.Ct. at 2191.
The Court thus came to its adoption of a balancing test "in which the conduct of both the prosecution and the defendant are weighed." 407 U.S. at 530, 92 S.Ct. at 2192. Four factors, not intended as exclusive, were identified for application on a case by case basis as: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. at 2192. However, as the Court was careful to point out:
"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution." 407 U.S. at 533, 92 S. Ct. at 2193.
Length of Delay
The Barker opinion characterized the first factor as a "triggering mechanism". "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." 407 U.S. at 530, 92 S.Ct. at 2192. In the case at bar respondent admits that the twenty-seven month delay between arrest and trial is sufficient to raise the issue.
Defendant's Assertion of His Right
Respondent has also admitted that petitioner made a timely demand for a speedy trial. This Court finds that concession well founded. It is noted that petitioner proceeded in pro per with a motion to dismiss on speedy trial grounds during the pendency of his interlocutory appeal on the question of his right to appointed counsel. It might be argued that petitioner's motion was merely aimed at a possible dismissal and *664 did not necessarily evidence a real desire for an immediate trial. But it would be just as reasonable to infer that his real motive for the dismissal was to cause a reexamination of his case in hopes that the trial court would initiate some action leading to a resolution of his problem of lack of trial counsel.
With the first two factors in this perspective, attention must be focused on the reason for the twenty-seven month delay and the prejudice, if any, suffered by petitioner as a result of that delay.
Reason for Delay
When balancing the reason for delay against the other factors,
". . . different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192.
Here, as in all cases, the real reason for delay must be identified before it can properly be weighed against the other factors. Respondent lays responsibility for the delay at petitioner's feet. "[T]he petitioner initially caused the problem by voluntarily transferring all his assets to his wife, who was already seeking a divorce, after being charged with first degree murder. The trial court can hardly be faulted for seeking guidance under these circumstances." Respondent's Brief at p. 3. The Court of Appeals took a similar position in holding that, "[T]he flaw in defendant's position, and which is dispositive of the issue, is the fact that the delay was caused by his repeated recourse to the appellate process." 32 Mich.App. 610, 618, 189 N.W.2d 435, 439 (1971). The Court's use of the word "repeated" cannot be explained since the record clearly shows that the petitioner took only one interlocutory appeal.
Even though the trial court could not have envisioned the extraordinary delay which was to be caused by the interlocutory appeal, a delay of at least five or six months must have been expected. Petitioner insisted that he was without means to pay the $5,000 retainer required by an attorney of whom he had inquired about his defense. It was also quite clear that Mrs. Chism had taken a firm position in refusing to help her husband in any way. In light of the seriousness of the charge and petitioner's non-bailable status, it seems that the trial court should not have put the petitioner to a pre-trial appeal on the question of his right to appointed counsel. It certainly would have been better to appoint counsel on a conditional basis, as the Court of Appeals finally directed.
On September 19, 1969, petitioner's appointed counsel filed notice that he was ready for trial and demanded an immediate trial date. Trial was then scheduled for the October term. Prior to this, on August 20, 1969, the prosecution had filed a motion to endorse further witnesses including an expert in the field of neutron activation analysis. Over petitioner's objection the trial court granted this late endorsement motion on October 13, 1969. Thereupon the defense immediately asked for a continuance of the trial then set for the following week and moved that a similar expert be appointed at public expense. This motion was granted and the case was then set down for the January term. The prosecution's motion to endorse further witnesses came more than 18 months after the filing of the information. This motion could have been brought and considered at least several months earlier. Thus, the further delay of the trial date from October, 1969 to the following January was highly unreasonable under the circumstances. Responsibility *665 for this delay must be charged against the state.
Of the whole twenty-seven month period, the remaining period to be considered is from July 1, 1968, the date of filing of the last brief in the Court of Appeals, to April 23, 1969, the date of the Court's opinion.
In its consideration of the petitioner's speedy trial claim the Michigan Court of Appeals termed the twenty-seven month delay "lamentable", but failed to acknowledge its own role in that delay. The Court quoted People v. Den Uyl, 320 Mich. 477, 31 N.W.2d 699 (1948) for the proposition that a criminal defendant's right to a speedy trial is "modified" upon the filing of an interlocutory appeal as follows:
"One of the circumstances which will constitute good cause for delay, again within reasonable limits of time, is the taking of an appeal, whether by the State or another party." (emphasis supplied by the Court of Appeals) 32 Mich.App. 610, 619, 189 N.W.2d 435, 439.
While the quoted language is a correct statement of the law, the proper emphasis must be given to the phrase, "within reasonable limits of time." That is the essence of the balancing test. A criminal defendant cannot be heard to complain about pre-trial delay which is reasonably necessary for a decision on an interlocutory appeal. But this does not mean that his right to speedy trial is modified. The right remains inviolate. In such cases the appellate court shares the affirmative duty of the trial court to bring the pending criminal charges to a reasonably prompt resolution.
In the case at bar the interlocutory appellate delay was far too long. Certainly the Court of Appeals cannot be faulted for any time which elapsed prior to the filing of the appellant's reply brief on July 1, 1968, but at that point in time it became incumbent upon the Court to act with dispatch. It is unclear from the record as to what effect the Court's summer recess had on its work schedule. Whatever the effect, this cannot be assigned as a justifiable reason for delay. Totally aside from the Court's recess there was an inordinate period of more than five months while the case was formally under advisement.
Justice Levin's concurring opinion in People v. Chism, 390 Mich. 104, 211 N.W.2d 193, states that the average disposition time for all cases in the Court of Appeals at that time was two to three months. Id. at 144, 211 N.W.2d 193. This statement makes no distinction between criminal and civil cases, or between final questions and interlocutory appeals. Given the nature and circumstances of petitioner Chism's case, this Court must conclude that the unjustified delay in the Michigan Court of Appeals was at least eight months. Bearing on the weight to be given this factor is the fact that at the time all parties stipulated to an advancement on the appellate calendar, more than eight months had already elapsed since arrest. Regardless of the reasonableness or unreasonableness of this prior delay, the mere passage of that much time made prompt action by the Court of Appeals even more imperative.
Prejudice to the Defendant
The Barker case noted three aspects of the prejudice factor which must be considered in every case.
"Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." 407 U.S. 514, 532, 92 S.Ct. 2182, 2193.
Just as none of the four factors of the Barker test are indispensible to a finding that the right to speedy trial has been denied, neither are any of these three aspects of the prejudice factor absolutely *666 essential to a finding of prejudice. The obvious importance of the defense impairment aspect can not be allowed to obscure the "personal prejudice" aspects of oppressive incarceration and anxiety generated by a pending criminal charge. This was recognized by the Supreme Court in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) where it said:
"Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." Id. at 320, 92 S.Ct. at 463.
The case of United States v. Dyson, (5th Cir. 1972) 469 F.2d 735, involved the speedy trial claim of a selective service registrant who had been convicted for failure to report for civilian duty as a conscientious objector. Although the case was decided on the basis of a statute which directed the Justice Department to give such cases priority, the Court considered the case in light of the speedy trial case law saying, ". . . we start with the proposition that the maximum delay permissible under the statute cannot exceed the minimum delay allowed by the constitutional norm." Id. at 738. Despite, in the Court's view, an "air-tight" case for the Government, there had been an unexplained pretrial delay of nearly twenty-two months. In assessing the prejudice factor the Court said:
"It is undisputed that the delay in the present case did not impair the defense, as such, of defendant Dyson. But that is not the sole constitutional norm. Klopfer [382 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)], Barker [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972)]. `The prophylactic effect of the clause as a protection of the innocent is substantially eroded if the fact of conviction in unimpaired trials removes from appellate consideration the interest of minimizing the consequences of incarceration and public accusation.' Godbold, supra [24 Ala.L.Rev. 265] at 285." 469 F.2d at 741.
It would be difficult to imagine circumstances creating greater "prejudice to the person" of an accused than did the case at bar. There can be no question that petitioner's incarceration was "oppressive" within the Supreme Court's use of that term. The record portrays a man refused help by his wife and who, without counsel, waited in a county jail for more than fifteen months while the legal system took its time to decide that he should have had counsel in the first place. During this time his case progressed not one inch. It was, as the Barker Court termed it, "dead time". If the petitioner wasn't overwhelmed with anxiety and concern in the face of the charge and potential life sentence facing him, then this aspect of prejudice will never be found in any case.
Turning to the question of defense impairment prejudice an issue arises as to the burden of proof. Respondent contends that petitioner has failed to demonstrate any actual prejudice in the preparation of his defense. The Michigan Supreme Court likewise allocated this burden to the petitioner.
"There is no testimony relevant to prejudice to defendant's defense because of the length of the case such as loss of witnesses, etc.
* * * * * *
*667 Finally, on the matter of prejudice to defendant because of the length of time before his trial, the most important thing is that there is no evidence that a fair trial was jeopardized by delay . . ." People v. Chism, 390 Mich. 104, 115, 211 N.W.2d 193, 198.
Petitioner and amicus contend that the Michigan Supreme Court misassigned this burden and that it is for the respondent to prove that petitioner was not prejudiced in the preparation of his case. They rely on authority from the Fifth, Seventh and District of Columbia Circuits. United States v. Dyson (5th Cir. 1972), 469 F.2d 735; United States v. Macino (7th Cir. 1973), 486 F.2d 750; United States v. Rucker (1972), 150 U.S.App.D.C. 314, 464 F.2d 823; United States v. Perry (D.C.1973), 353 F.Supp. 1235. Research reveals that the Sixth Circuit has not had occasion to consider the question. After reviewing the above-cited cases, and others on which they rely, this Court believes a fair statement of their holdings on this question is as follows: Upon a showing of excessive and unjustified delay, and some showing by the defendant that there is a reasonable possibility that the defense was impaired, the burden then shifts to the state to show that the defendant was not in fact prejudiced by the delay.
In this case the petitioner claims actual defense impairment by (1) loss of memory, (2) deterioration of certain physical evidence and (3) extended denial of counsel which resulted in lost opportunity to investigate and establish possible motive of another person or persons. Petitioner cites several instances of memory loss in the trial transcript. [TR 834, 839, 854, 855, 866]. The cold record gives little insight into whether these lapses were materially detrimental to the defense, but as the Barker Court observed "Loss of memory . . . is not always reflected in the record because what has been forgotten can rarely be shown." 407 U.S. at 532, 92 S.Ct. at 2193.
A major factor in the prosecution of this case was the motive ascribed to the petitioner. There was conflicting testimony on whether Mr. Chism had ever directly or indirectly expressed any interest in purchasing the sandwich shop owned by the decedent and her husband. However, the prosecution postulated that an offer by petitioner had been refused and that as a result he resorted to murder. Certainly the passage of time involved in securing counsel may well have obscured the equally plausible motives of others.
During the fifteen months that petitioner was incarcerated without the assistance of trial counsel, he was without means to effectively marshall his defense. He had no way of locating and interviewing witnesses while their memories were fresh. There was no one to gather and preserve evidence which might have been favorable to the defense. Meanwhile, the State was proceeding in the case with all the investigative expertise and resources at its disposal. Such an imbalance strikes at the very essence of evenhanded criminal justice.
This Court finds that petitioner has made a reasonable showing of possible defense impairment. The respondent has offered no proof that petitioner was not actually prejudiced in his defense and therefore this factor must be weighed in favor of petitioner.
By all of the foregoing, this Court has endeavored to methodically and fairly analyze this case within the guidelines set down by the Supreme Court in Barker. After so doing it must be concluded that petitioner Enoch Chism was denied his Sixth Amendment right to speedy trial by the State of Michigan. Viewed piecemeal some of the delays can be seen as reasonable, but viewed in the aggregate they constitute an excessive amount of time. In testing a speedy trial claim the broad perspective must be taken. A series of "reasonable" delays become increasingly less reasonable when allowed to cumulate. *668 In the final analysis, the overriding factors in this case were the inordinate delay on the interlocutory appeal and the prejudice caused by petitioner's lack of counsel during that time. These factors alone would support a conclusion that the right was denied.
In light of this conclusion the remedy is absolute. The petition for Writ of Habeas Corpus must be granted. Strunck v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1972).
An appropriate order may be submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580169/ | 12 So.3d 927 (2009)
Robert Lee OSTEEN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-1351.
District Court of Appeal of Florida, Second District.
July 22, 2009.
Robert Lee Osteen, pro se.
Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
FULMER, Judge.
Robert Lee Osteen appeals from the order denying his motion for postconviction relief after evidentiary hearing. We reverse and remand for a new evidentiary hearing because the trial court abused its discretion in denying Osteen's request for appointed counsel. We also reverse the summary denial of Ground Two and direct that Osteen be given an evidentiary hearing on this claim.
Osteen was sixteen when he and two codefendants committed the robbery at issue in this case. Osteen pleaded guilty and was sentenced to two years' community control followed by eight years' probation in 2003. The sentence was an agreed-upon downward departure. In imposing sentence, Judge Langford stated: "The Score Sheet calls for a minimum sentence *928 of 75 months State Prison. You can add six months to that, which will be 81 months, if he violates the conditions of Community Control and/or probation that you are going to be put on."
In 2005, the community control officer filed an affidavit of violation alleging that Osteen failed to remain confined to his approved residence and failed to report as directed. At the revocation hearing, the community control officer recommended that the supervision be restored and Osteen be placed in a residential probation restitution center. She advised that Osteen was twenty years old and that he lacked direction. One of the codefendants had previously violated his community control and had received ninety-six months in prison. Judge Shinholser accepted Osteen's open admission to the violation and imposed a forty-year sentence. The sentence was affirmed on direct appeal. Osteen v. State, 939 So.2d 1071 (Fla. 2d DCA 2006) (table).
Osteen filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in January 2007. In Ground One, he alleged that his counsel was ineffective for failing to convey a plea offer before the revocation hearing. In Ground Two, he alleged that his counsel was ineffective for failing to object and preserve for review the issue of Judge Shinholser's bias and prejudice as evidenced by the presumptively vindictive forty-year sentence and the comments of the judge at the revocation hearing.
The postconviction court entered an initial order on January 26, 2007, directing a response from the State on Ground One and summarily denying Ground Two. The court reasoned that Osteen failed to allege any facts that would demonstrate vindictiveness in sentencing and that because the forty-year sentence was within the sentencing authority of the trial court, there was no basis for an objection by counsel. Osteen filed an addendum to his motion in August 2007 (Ground Three) claiming that his open plea to the violation of community control was not voluntary because his counsel had failed to inform him that he could have entered a plea to a cap of ninety-six months in an agreement with the State.
In October 2007, the postconviction court ordered an evidentiary hearing for Grounds One and Three. In November 2007, Osteen moved for appointment of counsel for the evidentiary hearing. The postconviction court entered an order denying the motion for appointment of counsel on the basis that the issues were not complex and did not require substantial legal research.
Osteen filed a second addendum to his postconviction motion on November 7, 2007, in which he alleged that counsel was ineffective for failing to discover "the stipulation" by the original judge, Judge Langford, that upon violation of community control, Osteen would receive ninety months (or the low end of the sentencing guidelines). The postconviction court entered an order on December 13, 2007, denying this claim after finding that it was refuted by the transcript of the original sentencing hearing in August 2003 before Judge Langford.
The evidentiary hearing occurred in December 2007. The transcript shows that Osteen first renewed his request for appointed counsel. Osteen told Judge Shinholser that a jailhouse lawyer had prepared his postconviction motion for him and had advised him to object to proceeding without appointed counsel for the hearing. The judge again denied the request for counsel. Osteen indicated that he was unable to proceed without the assistance of counsel. The State moved for directed *929 verdict but also asked the court to reserve ruling until the State put on its case.
The State then called Christopher Boldt, the defense attorney for the violation of community control. Boldt indicated that he had received an offer from the State for a ninety-six month sentence, which was in parity with what the codefendant had received. Boldt had some recollection of a conversation with Osteen immediately preceding the revocation hearing and he remembered using the words "known quantity" with respect to a plea offer. Osteen had responded that he wanted to go home, which Boldt perceived to be a "no" to a negotiation that would involve further incarceration. Boldt met with Osteen the day before the hearing, and Osteen made no indication that he would be willing to accept significant amounts of further incarceration.
The postconviction court stated that the directed verdict was granted. But for the sake of the appellate record, the court found that Boldt provided effective representation, that Boldt did convey the plea offer, and that Osteen rejected the offer because he did not want to serve any more jail time and wanted to go home and the only way he could do that was to enter a straight-up plea. The court found that the plea was voluntary.
Osteen argues on appeal that the postconviction court erred in denying his request for appointed counsel at the evidentiary hearing. We agree that this was an abuse of discretion in that the record does not reflect that Osteen had the capability of representing himself. See Bynum v. State, 932 So.2d 361 (Fla. 2d DCA 2006).
We also conclude that the summary denial of Ground Two was error. The court rejected this claim after concluding that Osteen's counsel would have no basis to object to the forty-year sentence. This court has recognized that an allegation of counsel's failure to object to a vindictive sentence presents a cognizable claim under rule 3.850. St. Pierre v. State, 966 So.2d 972, 975 (Fla. 2d DCA 2007). The sentencing hearing on the revocation shows that Osteen entered his admission after a lengthy discussion wherein Judge Shinholser discussed whether he could modify Osteen's probation in accordance with the probation officer's recommendation without an admission to the violation. Osteen entered his admission to the violation with the impression that the judge would consider modifying the probation as requested. However, after a number of witnesses spoke in Osteen's favor, the court stated: "The real debate here today is not whether I should follow the recommendation of your attorney or follow the recommendation of the State Attorney but whether I should impose a Life sentence. That's the real debate." The court made this comment after the State argued at length that a ninety-six month sentence was appropriate because Osteen and the codefendant were equally culpable and the codefendant had received ninety-six months.
Given the disparity between the sentence imposed and the recommendations of the State and probation officer, we are unable to say that the record conclusively refutes the allegation that counsel was ineffective for failing to challenge the sentence on the basis of bias, prejudice, or vindictiveness. Therefore, we reverse the summary denial of this claim. Because Judge Shinholser has already ruled that Osteen's claim is without merit and a reasonable person in Osteen's position might well fear that Judge Shinholser would not fairly and impartially determine this claim, a different judge shall be assigned to the case on remand. Cf. St. Pierre, 966 So.2d at 975-76 (issuing writ of prohibition disqualifying *930 judge from further participation in case).
We reject without discussion the other issues raised by Osteen on appeal.
Affirmed in part, reversed in part, and remanded for further proceedings.
KHOUZAM, J., and CASE, JAMES R., Associate Senior Judge, Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580228/ | 108 Wis. 2d 675 (1982)
324 N.W.2d 289
STATE of Wisconsin, Plaintiff-Respondent,
v.
Janet E. BRITZKE, Defendant-Appellant.
No. 81-1490-CR.
Court of Appeals of Wisconsin.
Submitted on briefs April 8, 1982.
Decided August 24, 1982.
*677 For the defendant-appellant the cause was submitted on the briefs of John E. Tradewell, assistant state public defender.
For the plaintiff-respondent the cause was submitted on the brief of Bronson C. La Follette, attorney general, *678 and Stephen J. Nicks, assistant attorney general and Richard A. Victor, assistant attorney general.
Before Gartzke, P.J., Bablitch, J. and Dykman, J.
GARTZKE, P.J.
Following a jury trial, appellant was convicted of interfering with the legal custody of a child, contrary to sec. 946.71 (2), Stats.[1] She appeals from the judgment of conviction and from the order refusing to vacate the judgment. The issues are whether the state established that another person had "legal custody" of appellant's children when she took them out of Wisconsin, and that she knew that "legal custody" had been transferred. We affirm.
It is undisputed that in February 1980 appellant's mother, Rosie Grasley, commenced an action in Circuit Court for Sauk County to obtain custody of appellant's minor children. Appellant appeared in person at the temporary custody hearing held May 8, 1980. May 14, 1980, the court awarded temporary custody to Mrs. Grasley during the pendency of the action. In September *679 1980 appellant took her children to Florida without Mrs. Grasley's consent. Appellant was later charged with violating sec. 946.71 (2), Stats.
[1]
A court may separate legal and physical custody of a child. In Matter of K.H., 98 Wis. 2d 295, 298, 296 N.W.2d 746, 747 (1980); Termination of Parental Rights to Kegel, 85 Wis. 2d 574, 577-78, 271 N.W.2d 114, 115-16 (1978). Appellant contends that absent proof that the order transferred legal rather than physical custody, the state failed to meet its burden of proof.
Although the custody action undoubtedly was brought under ch. 767, Stats.,[2] now entitled "Actions Affecting the Family,"[3] the record does not disclose the precise nature of the action in which the order was entered. To avoid making prohibited factual findings, Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n. 3, 293 N.W.2d 155, 159 (1980), we approach the issue with no assumptions as to the statutory basis for the custody action. We determine, as a matter of law, whether custody under any *680 order of a court constitutes "legal custody" within the meaning of sec. 946.71 (2), Stats. We conclude that it does.
[2, 3]
We undertake statutory construction only if the wording of the statute is ambiguous. State ex rel. Milwaukee County v. WCCJ, 73 Wis. 2d 237, 241, 243 N.W.2d 485, 487 (1976). Ambiguity exists when well-informed individuals could understand the statute in two or more different senses. Hurst v. State, 72 Wis. 2d 188, 195, 240 N.W.2d 392, 397 (1976). A statute may also be rendered ambiguous by its relation to other statutes. State v. White, 97 Wis. 2d 193, 198, 295 N.W.2d 346, 348 (1980).
[4]
As appellant points out, ch. 48, Stats., distinguishes "legal custody" from "physical custody."[4] Section 946.71 (2), Stats., does not indicate on its face whether the "legal custody" to which it refers means the same as "legal custody" in sec. 48.02 (12). Consequently, the meaning of "legal custody" in sec. 946.71 (2) is ambiguous and requires statutory construction.
[5-8]
Statutory construction is a question of law and is subject to our independent review. Wis. Bingo Supply & Equipment Co. v. Bingo Control Board, 88 Wis. 2d 293, 308, 276 N.W.2d 716, 723 (1979). Criminal statutes are *681 strictly construed, but not so as to defeat the legislature's intent. State v. Tollefson, 85 Wis. 2d 162, 170, 270 N.W.2d 201, 205 (1978). The statute should be construed to reach a common sense meaning and to avoid unreasonable and absurd results. Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 766, 300 N.W.2d 63, 71 (1981). We may look to legislative history for guidance. Vandervelde v. Green Lake, 72 Wis. 2d 210, 214, 240 N.W.2d 399, 402 (1976).
The term "legal custody" first appeared in sec. 946.71 (2), Stats., in 1955 and was first defined in the Children's Code that same year. Sec. 1, ch. 696, Laws of 1955; sec. 7, ch. 575, Laws of 1955. The Children's Code defined "legal custody" as "the right to the care, custody and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education and discipline for a child." Sec. 48.02 (10), Stats. 1955. Physical custody was not separately defined. Although the definition of "legal custody" in the Children's Code was modified to its present form by sec. 5, ch. 354, Laws of 1977, sec. 946.71(2) has not been materially amended since 1955.[5]
[9, 10]
"Statutes dealing with the same subject matter must be construed together and harmonized if possible." State v. Campbell, 102 Wis. 2d 243, 252, 306 N.W.2d 272, 276 (Ct. App. 1981). Employing that principle, we conclude *682 that the legislature intended "legal custody" to have the same meaning in 1955 for both the purposes of ch. 48, Stats., and as it then existed in the criminal statute. The definition of legal custody in sec. 48.02 (10), Stats., 1955, as evidenced by the words "care, custody and control," indicates that legal custody included physical custody. Because sec. 946.71 (2), Stats., has not been materially amended since 1955, we hold that "legal custody," as used in sec. 946.71 (2), includes physical custody.
[11, 12]
The elements of the crime created by sec. 946.71 (2), Stats., include enticing or taking away a child from a person having legal custody under an order or judgment. If "legal custody" in sec. 946.71(2) did not include physical custody, it would be impossible to entice or take away a child from a party who had legal custody but not physical custody of the child. Accordingly, the only reasonable and common sense interpretation of "legal custody under a order" in sec. 946.71 (2) is that legal custody is lawful custody under any court order in one of the specified types of actions.[6]
Appellant asks us to assume that the custody order could have been intended to vest physical custody in Mrs. Grasley and legal custody in appellant. The assumption is unavailing. The purpose of sec. 946.71 (2), Stats., is to prevent persons from interfering with the custody of a child granted to another person by a lawful order in one of the specified types of actions. Even if Mrs. Grasley had only physical custody under that order, that custody was legal custody for purposes of sec. 946.71 (2).
Appellant's second contention is that the state failed to prove beyond a reasonable doubt that she knew legal *683 custody had been transferred by the temporary order. Appellant contends that absent such evidence the state could not prove intent as required by sec. 946.71 (2), Stats. She argues that her conduct has not been shown to be intentional, as defined by sec. 939.23 (3), Stats.,[7] without proof that she knew legal custody had been transferred to her mother.
[13, 14]
"An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime." Sec. 939.43 (1), Stats. (emphasis added). Appellant concedes she knew the court order existed but asserts she did not know that the order granted "legal custody" to Mrs. Grasley. Failure to know that one's conduct is criminally punishable is not a defense. State v. Collova, 79 Wis. 2d 473, 488, 255 N.W.2d 581, 588 (1977). To meet its burden of proving intent, the state has only to prove knowledge of the court order, not knowledge of its effect.
We conclude that the judgment and order must be affirmed.
By the Court. Judgment and order affirmed.
NOTES
[1] Section 946.71, Stats., provides in material part:
Except as provided under ch. 48, whoever intentionally does any of the following is guilty of a Class E felony:
. . . .
(2) Entices away or takes away any child under the age of 18 from the parent or other person having legal custody under an order or judgment in an action for divorce, legal separation, annulment, custody, paternity, guardianship or habeas corpus with intent to take the child out of the state for the purpose of depriving the parent or other person of the custody of the child without the consent of such parent or other person, unless the court which awarded custody has consented that the child be taken out of the state by the person who so takes the child. The fact that joint custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this subsection.
. . . .
[2] An action for custody is an "action affecting marriage" under sec. 247.02(1) (e), Stats. 1977 (renumbered sec. 767.02(1) (e), Stats., by sec. 50, ch. 32, Laws of 1979). A grandparent has standing to bring a custody action under ch. 767. See LaChapell v. Mawhinney, 66 Wis. 2d 679, 680-81, 225 N.W.2d 501, 502 (1975) (grandparents served father with order to show cause why custody of minor children should not be placed with them). The title of the custody action commenced by Mrs. Grasley conforms to that of a ch. 767 custody action as provided by sec. 767.05(5). It does not conform to the title of a ch. 48, Stats., action, as provided in sec. 48.255. Finally, appellant was charged under sec. 946.71(2), Stats., which concerns orders entered under ch. 767. She was not charged under sec. 946.71(1), which concerns orders entered under ch. 48. Appellant has never disputed that she was properly charged.
[3] The title of ch. 767, Stats., was amended to "Actions Affecting the Family" from its former title, "Actions Affecting Marriage," by sec. 19, ch. 352, Laws of 1979, effective July 1, 1981.
[4] Section 48.02 (12), Stats., provides:
"Legal custody" means a legal status created by the order of a court, which confers the right and duty to protect, train and discipline the child, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to the rights, duties and responsibilities of the guardian of the child and subject to any existing parental rights and responsibilities and the provisions of any court order.
Section 48.02 (14) defines physical custody as "actual custody of the person in the absence of a court order granting legal custody to the physical custodian."
[5] None of the three amendments to the langauge of sec. 946.71 (2), Stats., is material to this appeal. See sec. 47, ch. 196, Laws of 1979 (adding sentence "[t]he fact that joint custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this subsection" to the statute); sec. 1, ch. 161, Laws of 1977 (making section applicable to custody orders entered in actions for "custody, paternity, [and] guardianship"); and sec. 31, ch. 226, Laws of 1967 (making section applicable to custody orders entered in actions for legal separation).
[6] Appellant does not contend on appeal that the custody order was not entered in one of the actions specified in sec. 946.71 (2), Stats. Nor does appellant attack the validity of the order.
[7] Section 939.23 (3), Stats., provides in material part:
"Intentionally" means that the actor either has a purpose to do the thing or cause the result specified or believes that his act, if successful, will cause that result. In addition . . . the actor must have knowledge of those facts which are necessary to make his conduct criminal and which are set forth after the word "intentionally". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583672/ | 427 So. 2d 852 (1983)
Thomas WRIGHT
v.
Eloise O'NEAL and New Orleans Public Service, Inc.
No. 82-C-1804.
Supreme Court of Louisiana.
February 23, 1983.
G. Patrick Burvant, Bradford R. Roberts, II, Roberts, Katz & Baudier, New Orleans, for applicant.
Floyd F. Greene, New Orleans, for respondents.
DENNIS, Justice.
On October 30, 1978 a New Orleans Public Service bus collided with the rear of a taxi cab parked on North Rampart near the corner of Canal Street. Plaintiff, Thomas Wright, who was the operator of the cab, suffered personal injuries and brought this suit against the transit company and its bus driver. After a trial and a new trial by a judge, the trial court rendered judgment for plaintiff. On appeal, the court of appeal reversed because it found the cab driver had been guilty of contributory negligence by parking his vehicle in a no parking zone. We reverse and reinstate the trial court judgment. The trial court's judgment was not clearly wrong. Because the bus driver was negligent *853 in running into the rear of the taxi cab, the defendants had the burden of proving that the cabby was guilty of contributory negligence which was a legal cause of the accident. Although the trial judge did not fully articulate the reasons for his decision, the evidence provides a reasonable basis for a determination either that the cab driver parked legally or that the accident did not result from a particular risk from which the cabby's duty to park correctly was imposed to protect.
In both this court and the court of appeal, the defendant complained that the trial court erred or abused its discretion in granting plaintiff a new trial for the purpose of introducing the testimony of newly discovered witnesses. The decisions by the previous courts rejecting defendant's arguments on this issue were correct and are affirmed for the reasons stated by the court of appeal. 414 So. 2d 880 (1982).
In our opinion, the trial court also reasonably determined either that the cab was properly parked or that the cabby's infraction of the parking ordinance was not a legal cause of the accident. The cabby and his two passengers testified that the taxi was stationary when it was struck by the bus. The bus driver and one of the bus passengers testified that the taxi cab backed into the bus. The trial judge found that the cab was parked and motionless at the time of the accident. However, the trial judge did not state whether he found that the cab was parked in a no parking zone. The cab driver testified that his vehicle was parked in the no parking zone but that its rear end was fifteen feet away from the corner. The two taxi passengers testified that the cab was parked a good distance from the corner. One cab fare stated that the vehicle was parked by a cab stand and that there were pay telephones between it and the corner. The evidence was undisputed that the NOPSI bus rounded the corner and collided with the rear of the cab.
The conflicting evidence is susceptible to at least two reasonable interpretations, either of which requires a reviewing court to sustain the trial court judgment. First, the trial judge was warranted in resolving the conflicting evidence by finding that the cab was lawfully parked at a cab stand outside the no parking zone and therefore that the cab operator was not guilty of any negligence. Second, and more likely, the evidence indicates that, although the cab was parked inside the no parking zone, the cab was not parked sufficiently near the corner to constitute a hazard to cornering vehicles or a legal cause of the accident. Only this second possible basis of the trial court's decision requires further explanation.
Since it was clear that the bus driver's negligence was a legal cause of plaintiff's injuries, the defendants bore the burden of proving that plaintiff's own contributory negligence was a legal cause of the accident in order to bar his recovery. This requires proof that the risk which resulted in the accident was one from which the duty violated by plaintiff was imposed to protect. Tucker v. Lirette, 400 So. 2d 647 (La.1981); See Laird v. Travelers Ins. Co., 263 La. 199, 267 So. 2d 714 (1972); Briethaupt v. Sellers, 390 So. 2d 870 (La.1980). See generally, Stone, Louisiana Civil Law Treatise, Tort Doctrine, § 53, p. 73 (1977). In deciding the issue of whether the risk resulting in a person's harm was within an imposed duty, we have adopted an approach which first requires us to answer two principal questions: (1) was the conduct complained of a cause in fact of the harm? and (2) if so, did the actor breach a legal duty imposed to protect against the particular risk involved? Carter v. City-Parish Government of East Baton Rouge Parish, 423 So. 2d 1080 (La.1982); LeBlanc v. Department of Highways, 419 So. 2d 853 (La. 1982); Hill v. Lundin Associates, Inc., 260 La. 542, 256 So. 2d 620 (1972).
When the rule relied upon for imposing responsibility is based upon a statute, the court must attempt to interpret the legislative intent as to the risk contemplated by the legal duty, often resorting to the court's own judgment of the scope of protection intended by the legislature. Hill v. Lundin, supra. Pierre v. Allstate, 257 La. *854 471, 242 So. 2d 821 (1970); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962). The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. Hill v. Lundin, supra, at pp. 622, 623. See also, Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin and Associates, Inc., 34 La.L.Rev. 1, 8 (1973).
The cabby's parking violation was a cause in fact of the accident because the mishap would not have occurred if his vehicle had not been there. Furthermore, he violated a duty derived from the ordinance which was imposed to prevent the risk of an accident due to the obstruction of an area reasonably necessary for safe and efficient cornering by other vehicles. However, because the evidence justifies an inference that the encroachment of plaintiff's cab upon the designated no parking zone did not impede safe and efficient negotiation of the corner by others, we believe that the defendant has failed to show that the risk created by the violation was a legal cause of the accident.
The defendants failed to prove exactly where the cab was parked at the moment of impact. No evidence was offered to show the width of North Rampart Street or to establish the area needed for a turning bus. On the other hand, evidence was offered to show that the plaintiff took precautions to avoid becoming involved in a collision with a turning vehicle by parking at least 15 feet from the corner and very near the curb on North Rampart. Two witnesses testified that the cab was, in fact, properly parked much further from the corner than the cabby himself estimated. Moreover, the defendant bus driver's version of the entire episode was called into serious doubt by the testimony of the plaintiff's witnesses, who placed the vehicle many feet away from the intersection and who directly contradicted the bus driver's story by unequivocally testifying that the cab was not moving when the bus collided with it.
Accordingly, the trial court judgment in favor of the plaintiff was not clearly wrong. The judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.
REVERSED; TRIAL COURT JUDGMENT REINSTATED.
WATSON, J., concurs being of the opinion that the parking was not an operative cause in fact of the accident.
BLANCHE, J., dissents and assigns reasons.
BLANCHE, Justice (dissenting).
I must respectfully dissent. The trial court abused its discretion in granting the plaintiff's motion for a new trial. Counsel waited until the day before trial to subpoena his witnesses off the accident report. La.C.C.P. art. 1972 requires that the evidence forming the basis for the motion must have been unavailable despite "due diligence". These witnesses were readily available. In my view, waiting so long before attempting to ascertain the whereabouts of witnesses, despite having more than two years to prepare for trial, cannot be described as "due diligence".
Further, I cannot subscribe to the majority ruling that the negligence of the cab driver in parking his cab illegally did not violate the duty of the driver to protect against the particular risk which was the cause of the accident. The driver admitted that he had brought the cab to a stop in a "no parking" zone at the corner of the street where the accident occurred, an area marked off with yellow lines behind an area designated as a "taxi zone". As noted by the court of appeal, this action was in violation of several city ordinances. I agree with the court of appeal that the purpose of these ordinances in establishing such "no parking" zones is to protect against this specific type of accident.
It is important that intersections be reasonably free of parked vehicles in order to allow for a free flow of traffic and to give larger turning vehicles, such as trucks or buses, sufficient room to complete a turn.
*855 The purpose of a "taxi zone" is to provide a safe area from which passengers may embark or disembark the vehicles. In my opinion, the defendants established that the driver had parked in a "no parking" zone, thereby bringing about the particular risk which the city ordinances were designed to protect against. The hazard created by this negligent act contributed to the cause of the accident, and the plaintiff's contributory negligence should bar his recovery of damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515804/ | 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
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 12, 2020
Plaintiff-Appellee,
v No. 346046
Van Buren Circuit Court
LEON EUGENE JACKSON, JR., LC No. 2018-021474-FH
Defendant-Appellant.
Before: MURRAY, C.J., and METER and K. F. KELLY, JJ.
PER CURIAM.
Defendant appeals by right his jury convictions of carrying a concealed weapon (CCW),
MCL 750.227, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and
possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The
trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve 16
months to 15 years in prison each for his convictions of CCW and felon-in-possession and two
years in prison for the felony-firearm conviction consecutive to and preceding his sentence for
being a felon-in-possession. Finding no errors requiring reversal, we affirm, but remand the case
to the trial court for the ministerial task of correcting the clerical error on the judgment of sentence.
I. BASIC FACTS
In April 2018, Sergeant Patrick Carlotto of the South Haven Police Department had a home
under surveillance using a remotely operated video camera. Sergeant Carlotto knew defendant by
sight from previous interactions.
Sergeant Carlotto saw defendant drive up to the home, park, get out of the car, and speak
to two other men, Fletcher Clark and Leon Harris, who were also known to Sergeant Carlotto.
Defendant returned to his car, retrieved an object, which he tucked into his belt, and walked back
to the other men. Sergeant Carlotto believed that the object that defendant tucked into his waistline
was a handgun. He recorded the video feed and dispatched two officers, Antwan Bell and Shawn
Olney, to investigate further. Officers Bell and Olney proceeded to the scene, arrested defendant,
and recovered a .380 caliber semiautomatic Cobra from the car that defendant drove to the home.
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II. SERGEANT CARLOTTO’S TESTIMONY
A. STANDARD OF REVIEW
Defendant first argues that Sergeant Carlotto should not have been allowed to testify that
it was “painfully obvious” to him that defendant had a handgun tucked into his waistband, among
other things. He complains that Sergeant Carlotto’s testimony impermissibly invaded the province
of the jury.
This Court reviews a trial court’s decision to admit evidence for an abuse of discretion.
People v McFarlane, 325 Mich. App. 507, 517; 926 NW2d 339 (2018). A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes. People
v Fomby, 300 Mich. App. 46, 48; 831 NW2d 887 (2013). This Court reviews de novo constitutional
questions and whether the trial court properly applied the law applicable to the admission of
evidence. McFarlane, 325 Mich. App. at 517. Because defendant’s trial counsel did not object
before the trial court on the same grounds that defendant now asserts on appeal, his claim is
unpreserved. People v Aldrich, 246 Mich. App. 101, 113; 631 NW2d 67 (2001). This Court reviews
unpreserved claims of error for plain error affecting the defendant’s substantial rights. People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). In order to establish a plain error, the
defendant must show that there was a plain or obvious error and that the error affected the outcome
of the lower court proceeding. Id.
B. ANALYSIS
Generally, a witness may not testify about a matter unless he or she has personal knowledge
of it. MRE 602. A witness who is not testifying as an expert may testify as to his or her opinion
or inferences if his or her opinion or inference were “(a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of
a fact in issue.” MRE 701. However, a lay witness invades the province of the jury if the witness
offers an opinion or inference when the witness is in no better position than the jury to evaluate
the evidence. Fomby, 300 Mich. App. at 52-53. In such cases, it is error to allow the witness to
give his or her own opinion or interpretation of the facts because it is for the jury to decide the
facts. People v Drossart, 99 Mich. App. 66, 80; 297 NW2d 863 (1980). If the lay witness has some
special knowledge that gives the witness a better ability to interpret the video evidence, the
witness’s testimony is admissible because it is helpful to a clear understanding of the witness’s
testimony or it is helpful to the determination of a fact at issue. Fomby, 300 Mich. App. at 52-53;
MRE 701.
At trial, Sergeant Carlotto testified generally about his own involvement in the
investigation and arrest at issue. Specifically, he testified that he had been monitoring a
surveillance camera and saw defendant drive up to the location on the live-feed video. He stated
that he saw defendant conversing with two individuals and saw him return to his car and retrieve
an object that he tucked into his waistband. He testified further that he “knew it to be a firearm.”
He explained that he knew that from “years of experience in law enforcement” and also from
carrying his own firearms. Sergeant Carlotto testified that defendant’s manner of carrying the
object was referred to as an “appendix carry” and stated that he had arrested numerous individuals
carrying a firearm in the same manner. He informed the jury that he “could clearly see from the
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video that it was a firearm.” It was that belief that led him to radio other officers to proceed to the
location of the home and approach defendant.
Sergeant Carlotto’s initial testimony did not involve a mere narration of events that he
observed on the video. Sergeant Carlotto testified at that point as both a fact witness and a lay
opinion witness. He told the jury the factual circumstances that caused him to create the video that
the jury saw. In that sense, he testified from personal knowledge. MRE 602.
Sergeant Carlotto also described for the jury his contemporaneous interpretation of the
video and his reaction to it. He identified the key persons depicted in the video using his personal
knowledge of those persons. Additionally, without his testimony, the jury would not have
understood how it came to be that Officers Olney and Bell were asked to respond to the scene and
investigate. He further testified that he had had years of experience with handling handguns and
had interacted with persons who carried handguns. His experience with persons who carried
handguns in the same manner that defendant appeared to do in the video was helpful to the jury’s
interpretation of the video evidence—especially given that some jurors may be unfamiliar with
handguns and the various ways in which they might be carried on one’s person. Sergeant
Carlotto’s testimony also explained to the jury why Officers Olney and Bell were looking for a
handgun on defendant or inside the Ford Taurus that he had been driving. Sergeant Carlotto’s
testimony about his interpretation of the video was rationally based on his perception and was
helpful to a clear understanding of his role in events and to the determination whether the video
showed defendant carrying a handgun. MRE 701. Moreover, the fact that Sergeant Carlotto’s
testimony implicated an ultimate issue did not render it improper if otherwise admissible under
MRE 701. MRE 704. Consequently, Sergeant Carlotto’s initial testimony did not improperly
invade the jury’s function as the sole determiner of the facts. Drossart, 99 Mich. App. at 80.
At trial, it was the defense theory that the officers involved did not conduct a thorough
investigation, but rather jumped to the conclusion that defendant was guilty and only collected
evidence that fit that predetermined view. The prosecution recalled Sergeant Carlotto to the stand
after defense counsel cross-examined Officers Bell and Olney about the limited nature of their
investigation. The prosecution sought to have Sergeant Carlotto explain why he did not collect
fingerprint or DNA evidence from the gun. Sergeant Carlotto stated that he did not have
fingerprints taken from the gun found in the Ford Taurus because “it was painfully obvious from
the video that [defendant] was in possession of a firearm”; he explained that “it’s clear to me that
there’s a firearm in his waistband um on that video and then afterwards there is not a firearm in
his waistband so that it would logically be inside the car.” He also opined that the “operator of a
motor vehicle is responsible for everything that is within the motor vehicle so whether the gun was
on his person or not he was in possession of it by merely operating the motor vehicle.” He similarly
stated that he did not collect DNA evidence because DNA was an expensive option and again it
was “painfully obvious that that [was] a firearm in his waistband.” He said too that he knew that
defendant was associated with the weapon from his follow-up investigation at On Target Firearms,
which showed that defendant used a “straw purchase” to get the gun.
Sergeant Carlotto’s opinion that it was “painfully obvious” to him that the video showed
defendant with a handgun was offered in the context of explaining why he did not order the
collection of fingerprint and DNA evidence—that is, he offered his interpretation of the video
evidence as the explanation for his subsequent acts. This testimony was rationally based on his
-3-
perception and helpful to a clear understanding of his reasons for his decision to circumscribe the
investigation in the way that he did. MRE 701. Accordingly, it did not amount to an improper
invasion of the jury’s province as the fact-finder, Drossart, 99 Mich. App. at 80, even though it
embraced the ultimate issue whether defendant possessed a firearm, MRE 704. The jury already
understood that Sergeant Carlotto acted on the assumption that the video that he saw showed
defendant with a handgun tucked into his waistband, and the jury was free to accept or disregard
his interpretation of the video evidence after its own review.
Sergeant Carlotto’s testimony about the inferences that he drew from the evidence that was
collected from On Target Firearms was also not improper. The parties stipulated that defendant
was ineligible to possess a firearm, and it followed that he would be unable to purchase a handgun
from a retailer. Sergeant Carlotto’s testimony about his experience with the use of straw
purchasers and his opinion that the video from On Target Firearms involved a straw purchase were
helpful to the jury’s understanding of the events depicted on that video as well as testimony and
evidence showing that defendant’s girlfriend, Summer Bowman, purchased the handgun at issue.
Consequently, that testimony was also proper under MRE 701.
On cross-examination, Sergeant Carlotto admitted that the reason he did not order the
examination of the handgun for fingerprints was because he believed he had defendant “dead to
rights” such that nothing else was required. And on recross-examination defense counsel asked
Sergeant Carlotto whether he told Officer Bell that the gun must be in the car. Sergeant Carlotto
answered that he did tell Officer Bell that he thought the gun must be in the car because to him “it
was painfully obvious” that defendant had a firearm and it was “extremely logical” that it would
be in the car because that was the only other place that defendant had been. For the reasons already
discussed, Sergeant Carlotto’s statement of the inferences that he then drew from the evidence was
relevant and admissible to explain his actions on the day at issue. MRE 701. While we agree that
Sergeant Carlotto’s testimony that the driver of a motor vehicle was legally responsible for
everything found in the car was incompetent and irrelevant as a statement of the law, to the extent
that his understanding of the law—mistaken or not—he could inform the jury of his view as the
explanation for his acts or omissions. MRE 701.
Additionally, the trial court cured whatever confusion Sergeant Carlotto’s statement might
have caused by instructing the jury to disregard his statement of the law. The court cautioned the
jury that, “to the extent that any witnesses may have provided you some information about their
version of what the law is[,] at the end of this case[,] I will provide you final instructions about the
law [and] as noted earlier the law is as I give it to you, not as any witnesses as it relates to
possession or any other matters not as they may have opined[.]” The court further admonished
that the jury was “to follow my instructions on the law.” It then repeated that the jury was required
to follow its instructions when the jury asked the court during deliberations whether it was true
that “the operator of the vehicle” was “responsible for everything in the car?” Finally, the trial
court properly instructed the jury, in relevant part, that it had to find that defendant knowingly
carried the handgun to be found guilty of carrying a concealed weapon and had to find that he
carried or possessed the handgun to find him guilty of the remaining offenses. These instructions
cured any prejudice occasioned by Sergeant Carlotto’s explanation that he did not order the
collection of additional evidence because the law made defendant responsible for anything found
in the car. See People v Abraham, 256 Mich. App. 265, 279; 662 NW2d 836 (2003).
-4-
The trial court did not plainly err by allowing Sergeant Carlotto to testify about the
inferences that he contemporaneously drew from the video evidence on the day at issue. It also
did not plainly err when it elected to instruct the jury to disregard statements of the law made by
the witnesses in response to Sergeant Carlotto’s statement that the operator of a car is responsible
for anything found in the car. Carines, 460 Mich. at 763.
III. JUROR MISCONDUCT
A. STANDARD OF REVIEW
Defendant next argues that he was deprived of a fair trial by a juror’s failure to disclose
that she had had a contentious relationship with him when he was in middle school. Generally, a
defendant must raise claims of error involving the empaneling of the jury in the trial court in order
to preserve the claim for appellate review. People v Eccles, 260 Mich. App. 379, 385; 677 NW2d
76 (2004). In this case, defense counsel did not question the juror at issue after she disclosed that
she had had a teacher-student relationship with defendant, and she did not move to exclude her for
cause or otherwise challenge her ability to sit on the jury. Therefore, this claim of error has not
been preserved for appellate review. Id.
This Court reviews de novo whether the trial court properly applied the law applicable to
jury selection. People v Fletcher, 260 Mich. App. 531, 554; 679 NW2d 127 (2004). This Court
reviews a trial court’s handling of voir dire for an abuse of discretion. People v Tyburski, 445
Mich. 606, 619; 518 NW2d 441 (1994) (opinion by MALLET, J.). A trial court abuses its discretion
when it selects an outcome that falls outside the range of reasonable and principled outcomes.
People v Unger, 278 Mich. App. 210, 259; 749 NW2d 272 (2008). This Court reviews unpreserved
errors for plain error that prejudiced the defendant’s trial. Carines, 460 Mich. at 763.
B. ANALYSIS
Defendant has the right to be tried by an impartial jury. People v Rose, 289 Mich. App. 499,
529; 808 NW2d 301 (2010). “A juror’s failure to disclose information that the juror should have
disclosed may warrant a new trial if the failure to disclose denied the defendant an impartial jury.”
Id. In order to warrant a new trial, defendant must show, at the very least, that there was a
reasonable doubt about a juror’s impartiality. Id.
In this case, a juror informed the trial court during voir dire that she was a recently retired
teacher and that she knew defendant, Officer Olney, and Clark from teaching. She later explained
that defendant was one of her students and that she remembered talking to him many times. The
prosecutor asked her whether there was anything about her past experience that would prevent her
from “being fair to one side or the other whether that be the defense side or the prosecution,” and
she replied that she did not “think so.” She explained that she was “trying to remember the
personality you know of—of um [defendant] and,” she stated, “you know it[’]s I think pretty
balanced I although I might have a little sympathy.” When the prosecution asked whether her
sympathy for him might prevent her from finding him guilty, the juror stated that she was “fair”
and “would have to go with the evidence.” She agreed that she would make her decision on the
basis of the evidence and not out of sympathy.
-5-
On appeal, defendant maintains that the juror failed to disclose that she had had a
contentious relationship with him that might have affected her impartiality. He does not, however,
present any evidence from which it could be inferred that she had had a contentious relationship
with him. Presumably, he would have known about any difficulties that they might have had
during his time as a student and he could have raised those issues with defense counsel who then
could have further explored their relationship through examination. Defendant did not raise the
matter during voir dire, and the juror cannot be faulted for his failure to do so. People v Johnson,
245 Mich. App. 243, 253; 631 NW2d 1 (2001) (stating that a potential juror cannot be faulted for
defense counsel’s failure to ask more specific questions). Moreover, the juror was presumed
impartial, and her statement that she would be fair and make a decision on the basis of the evidence
was sufficient to protect defendant’s right to a fair trial. Id. at 256.
Defendant has not established a reasonable doubt about the juror’s impartiality. Rose, 289
Mich. App. at 529. Accordingly, he has not shown plain error. Carines, 460 Mich. at 763.
IV. ENLARGED AND SLOWED VIDEO
A. STANDARD OF REVIEW
Defendant also argues that the trial court abused its discretion when it allowed the
prosecution to introduce an excerpt of the video made from the pole camera, which had been
enlarged and slowed. This Court reviews a trial court’s decision to admit evidence for an abuse
of discretion. McFarlane, 325 Mich. App. at 517. A trial court abuses its discretion when its
decision falls outside the range of reasonable and principled outcomes. Unger, 278 Mich. App. at
259. This Court reviews de novo constitutional questions and whether the trial court properly
applied the law applicable to the admission of evidence. McFarlane, 325 Mich. App. at 517.
B. ANALYSIS
Defendant argues that the trial court should not have admitted the altered version of the
video because it never found that the copy was an accurate reproduction of the original and, in any
event, the jury did not need the assistance of the enlarged and slowed video because the original
was clear enough for the jury’s review. The rules of evidence define a duplicate of an electronic
recording to be a “counterpart produced by the same impression as the original, or from the same
matrix, or by means of photography, including enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other equivalent techniques, which
accurately reproduces the original.” MRE 1001(4). A duplicate is admissible to the same extent
as an original unless there is a “genuine question . . . as to the authenticity of the original” or where,
under the circumstances, it would be unfair to admit the duplicate in lieu of the original. MRE
1003. Because a duplicate is admissible to the same extent as the original, its admission is not
precluded under MRE 1002.
In this case, the original video recording was admitted at trial and available to the jury.
Moreover, there was no dispute about the authenticity of the original and the duplicate shown to
the jury as People’s Exhibit (PEX) 2 was not offered in lieu of the original. Rather, the prosecutor
offered the duplicate to focus in on the moment when defendant returned to the Ford Taurus,
retrieved an object, tucked the object into his waistband, and then walked back to Clark and Harris.
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Sergeant Carlotto testified that the prosecutor was “correct” when the prosecutor asked whether
PEX 2 was “the same as the pole cam video um nothings been done to it except it’s just been
enlarged and slowed down.” And a review of the videos shows that PEX 2 was in fact a zoomed
and slowed duplicate of the original video.
Contrary to defendant’s contention on appeal, the trial court did find that the second video
was an accurate reproduction of the original. The court viewed the video before it was shown to
the jury and stated that, from its review of the “short segment,” it appeared that the video was a
“duplicate” as defined under MRE 1001(4): “Here it simply is an enlarged version of the original
event designed I assume to assist the jury in their review of the facts of this case so the objections
overruled.” As a duplicate, PEX 2 was admissible to the same extent as the original. MRE 1003.
Moreover, the mere fact that the jury had the original did not preclude the prosecution from
presenting the enlarged and slowed version.
Here, the enlarged version cropped out the distracting background material and focused the
viewer’s attention on defendant for the few seconds after he went back to the Ford Taurus to the
moment that he returned to the company of Clark and Harris. Because it was enlarged from the
original, the second video had more pixilation, but it still more clearly focused on defendant and
gave the jury an opportunity to better examine the video evidence of the object tucked into
defendant’s waistline. It also gave the jury a clearer view of defendant’s demeanor and his
gestures, which tended to permit an inference that he was showing the object to Clark and Harris.
As such, the duplicate was relevant and admissible, MRE 401; MRE 402, as a duplicate of the
original, MRE 1001(4); MRE 1003.
The trial court did not abuse its discretion when it admitted the enlarged and slowed video
segment made from the original. McFarlane, 325 Mich. App. at 517.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
Defendant also argues that his trial counsel did not provide effective assistance. Because
the trial court did not hold an evidentiary hearing on this claim of error, there are no factual findings
to which this Court must defer, and this Court’s review is for mistakes that are apparent on the
record alone. People v Gioglio (On Remand), 296 Mich. App. 12, 20; 815 NW2d 589 (2012),
remanded on other grounds 493 Mich. 864 (2012). This Court reviews de novo whether defense
counsel’s acts or omissions fell below an objective standard of reasonableness under prevailing
professional norms and prejudiced his trial. Id. at 19-20.
B. ANALYSIS
In order to establish ineffective assistance of counsel, defendant must identify an act or
omission by defense counsel that fell below an objective standard of reasonableness under
prevailing professional norms and must show that there is a reasonable probability that, but for the
act or omission, the outcome of his trial would have been different. Gioglio, 296 Mich. App. at 22-
23. There is a strong presumption that defense counsel acted within the wide range of reasonable
professional assistance. Id. at 22. Indeed, this Court will conclude that defense counsel’s acts or
-7-
omissions fell within the range of reasonable professional assistance if this Court can conceive of
a legitimate strategic reason for the act or omission. Id. at 22-23.
Defendant complains on appeal that defense counsel offered no evidence at his trial and
notes that he did not testify. He further complains that there was no indication that he knowingly
waived his right to testify or even knew that he had the right to testify. He does not, however,
identify any evidence that he believes should have been presented at trial, and he does not offer
any indication as to his understanding concerning the decision whether he should testify. He also
does not state that he was ready and willing to testify, and he does not indicate what the content of
his testimony would have been had he testified. By failing to offer any meaningful discussion of
the proposed evidence about which he now complains, defendant not only failed to establish the
factual predicate for his claim, People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001), he
abandoned it on appeal, People v Martin, 271 Mich. App. 280, 315; 721 NW2d 815 (2006); see also
People v Simmons, 140 Mich. App. 681, 685-686; 364 NW2d 783 (1985) (rejecting a claim of
ineffective assistance of counsel premised on defense counsel’s purported failure to advise the
defendant about his right to testify because the defendant failed to allege that he was in fact
unaware of the right, failed to allege that he would have testified, and failed to state what his
testimony would have been).
In any event, the record supports that defense counsel did discuss with defendant whether
or not he would testify. After the prosecution indicated that the next witness was his last witness,
the trial court inquired whether defense counsel intended to call any witnesses. She responded that
she did not know whether defendant was going to testify, but she stated that she had no other
witnesses. After a recess and the defense’s motion for a directed verdict, defense counsel informed
the court and jury that the defense did not intend to call any witnesses. The defense then rested.
The fact that there was a break before defense counsel indicated that she would not be putting on
any witnesses further supports that defendant and defense counsel resolved the matter in favor of
him not testifying during the break. On this record, there is no indication that would support
defendant’s contention that defense counsel somehow provided ineffective assistance with regard
to his decision whether to testify. There is no obligation to create a record as to whether a
defendant has made a knowing and intelligent waiver of the right to testify. People v Harris, 190
Mich. App. 652, 661-662; 476 NW2d 767 (1991).
Defendant also faults defense counsel for not objecting to Sergeant Carlotto’s testimony
on the ground that his testimony invaded the province of the jury and for failing to request that his
testimony be stricken or, at the very least, to ask for a curative instruction. The trial court did give
a cautionary instruction addressing Sergeant Carlotto’s statement of his opinion concerning the
law of possession after the lawyers held a brief bench conference. As already discussed, Sergeant
Carlotto’s testimony other than his statement about the law, was admissible and did not invade the
province of the jury. As such, defense counsel cannot be faulted for failing to raise such a
challenge or seek relief related to that testimony. People v Riley, 468 Mich. 135, 142; 659 NW2d
611 (2003) (“Ineffective assistance of counsel cannot be predicated on the failure to make a
frivolous or meritless motion.”).
Additionally, defense counsel had a legitimate strategic reason for handling Sergeant
Carlotto’s testimony as she did. It was defense counsel’s theory of the case that the officers rushed
to judgment and did not adequately investigate whether defendant in fact had a gun on him during
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the events depicted by the video evidence. Indeed, she cross-examined Sergeant Carlotto and got
him to admit that he made the decision not to request additional evidence and that he did so because
he felt that he had defendant “dead to rights” and so nothing more needed to be done. She also
had him clarify that he was not at the scene, but that he was making decisions remotely. This line
of questioning was consistent with defense counsel’s theory of the case and that her handling of
Sergeant Carlotto’s testimony was a matter of trial strategy. As such, defendant has not overcome
the presumption that defense counsel acted within the range of reasonable conduct in handling his
testimony. McFarlane, 325 Mich. App. at 528 (stating that it cannot be said that the failure to object
fell below an objective standard of reasonableness under prevailing professional norms where
there is a plausible strategic reason for the decision).
Defendant has not established that defense counsel provided ineffective assistance.
VI. SUFFICIENCY AND WEIGHT OF THE EVIDENCE
A. STANDARDS OF REVIEW
Defendant also challenges the sufficiency and weight of the evidence that he carried a
concealed weapon, and he argues that the trial court should have granted his motion for a directed
verdict on the ground that there was insufficient evidence to support the prosecution’s contention
that he carried or possessed a firearm.
This Court reviews de novo whether a defendant established grounds for a directed verdict.
People v Chelmicki, 305 Mich. App. 58, 64; 850 NW2d 612 (2014). “In challenges to the
sufficiency of the evidence, this Court reviews the record evidence de novo in the light most
favorable to the prosecution to determine whether a rational trier of fact could have found that the
essential elements of the crime were proved beyond a reasonable doubt.” People v Roper, 286
Mich. App. 77, 83; 777 NW2d 483 (2009). The same standard applies to a motion for directed
verdict except that this Court considers only the evidence presented up to the time of the motion.
People v Schultz, 246 Mich. App. 695, 702; 635 NW2d 491 (2001). This Court reviews a claim
that the verdict was contrary to the great weight of the evidence by determining whether the
evidence so preponderates against the verdict that it would be a serious miscarriage of justice to
allow the conviction to stand. People v Lemmon, 456 Mich. 625, 642; 576 NW2d 129 (1998).
B. ANALYSIS
The Legislature prohibited a person from carrying a “pistol concealed on or about his or
her person . . . without a license to carry the pistol . . . .” MCL 750.227(2). To prove that
defendant committed this crime, the prosecution had to present evidence that defendant knowingly
carried a concealed weapon on his person or in a car. People v Hernandez-Garcia, 266 Mich. App.
416, 418; 701 NW2d 191 (2005), aff’d in part and vacated in part on other grounds 477 Mich. 1039
(2007); MCL 750.227(2). The prosecutor does not have to prove that the pistol was totally
concealed; a pistol is concealed for purposes of CCW when it is not discernable by the ordinary
observation of persons casually observing the person carrying it. Hernandez-Garcia, 266 Mich
App at 421-422.
When evaluating a challenge to the sufficiency of the evidence, this Court must consider
the inferences that can be fairly drawn from the evidence in the light most favorable to the
-9-
prosecution. People v Wolfe, 440 Mich. 508, 514-515; 489 NW2d 748 (1992). Further, “it does
not matter that the evidence gives rise to multiple inferences or that an inference gives rise to
further inferences.” People v Hardiman, 466 Mich. 417, 428; 646 NW2d 158 (2002). In such
cases, it is for the fact-finder alone to “determine what inferences may be fairly drawn from the
evidence and determine the weight to be accorded those inferences.” Id.
In this case, there was video evidence that showed defendant returning to his car and
retrieving an object. While at the door to his car, it appeared that defendant tucked the object into
his waistband. In the moments depicted before he appeared to tuck the object into his waistband,
the video showed that his shirt fell over his waist. Afterward, his shirt appeared to be caught on
the object and no longer fell over his waist. The video showed defendant walk to the vicinity of
Clark and Harris. While walking, his unzipped hoodie moved from side to side and revealed what
appeared to be a pistol tucked into his waistband just to his right side. The object was at times in
the video concealed by defendant’s hoodie. However, to the extent that there could be any doubt
about whether the object was concealed from casual observation during those moments, the video
showed that defendant zipped up his hoodie, which then fully concealed the object. Testimony
and evidence also established that officers found a handgun in the car driven by defendant after
their arrival, which handgun was consistent with the object depicted in the video.
Consequently, the prosecution presented sufficient evidence from which a reasonable jury
could conclude that defendant knowingly carried a concealed pistol. Hernandez-Garcia, 266 Mich
App at 418. For the same reason, the trial court did not plainly err to the extent that it failed to sua
sponte conclude that the jury’s finding that defendant carried a concealed pistol was contrary to
the great weight of the evidence.1
Finally, defendant argues that the trial court erred when it denied his motion for a directed
verdict on the ground that the prosecution failed to present sufficient evidence to establish that the
1
On appeal, defendant does not discuss the evidence that showed that he had the pistol at issue
tucked into his waist and that it was ultimately concealed by his zipped hoodie. Instead, he cites
Sergeant Carlotto’s testimony that it was obvious to him that defendant had a gun. He concludes
on that basis that the object, even if a handgun, was plainly not concealed. The evidence that the
handgun was visible at some points does not preclude a finding that it was concealed at a different
time. See, e.g., People v Iacopelli, 30 Mich. App. 105, 106-107; 186 NW2d 38 (1971) (stating that
the trial court properly submitted the question whether the weapon was concealed to the jury
because there was evidence that the defendant removed the weapon from plain sight and placed it
in his coat pocket). The mere existence of potential flaws in the evidence also does not permit a
trial court to set aside that evidence as contrary to the great weight of the evidence; conflicts in the
evidence or questions as to the credibility of witnesses are not sufficient grounds for granting a
new trial unless the testimony or evidence contradicts undisputable physical facts or laws or is so
patently incredible or inherently implausible that no reasonable juror could believe it. Lemmon,
456 Mich. 643-644.
-10-
object in his waistband was the handgun later found in the car that he drove. Contrary to
defendant’s contention, there was ample evidence to support the jury’s verdict.
In order to establish the elements of being a felon-in-possession of a firearm and felony-
firearm, the prosecution had, in relevant part, to present evidence that defendant carried or
possessed a firearm. MCL 750.224f; MCL 750.227b. Similarly, to establish that defendant
committed CCW, the prosecution had to prove in relevant part that defendant knowingly carried a
pistol concealed on his person. MCL 750.227(2). The prosecution could establish each of these
elements by presenting evidence that defendant carried a handgun concealed on his person.
At trial, the prosecutor presented evidence that defendant went to a store two days before
the day at issue and browsed firearms. He spoke to a store clerk about a .380 caliber Cobra
semiautomatic handgun. After speaking with the store clerk, defendant left the store and Bowman
came inside and immediately purchased a .380 caliber Cobra in her own name. Although the
evidence showed that defendant asked about the firearm ostensibly on behalf of his girlfriend, a
reasonable jury could find from the evidence that defendant had been convicted of a specified
felony. Further, he was ineligible to purchase a firearm, that he knew he could not purchase the
handgun in his own name, and that he got Bowman to purchase the .380 caliber Cobra for him.
Hardiman, 466 Mich. at 428. The jury also heard testimony and saw evidence that, shortly after
the police officers arrived on the scene, they discovered the same .380 caliber Cobra in the car that
defendant had been driving just moments earlier. The jury also saw video evidence that appeared
to show defendant retrieving an object from that same car just minutes earlier, tucking it into his
waistband, and then gesturing to it in front of Clark and Harris. The video itself strongly suggested
that the object that defendant tucked into his waistband was a black semiautomatic handgun.
Taken together, the evidence established that defendant tucked the .380 caliber Cobra into his waist
during the events at issue. Because there was evidence from which a reasonable jury could
conclude that defendant carried the .380 Cobra tucked into his pants and then fully concealed it by
zipping up his hoodie, the trial court did not err when it denied defendant’s motion for a directed
verdict. Iacopelli, 30 Mich. App. at 106-107 (stating that whether the weapon was concealed from
ordinary observation is normally a matter for the trier of fact).
The trial court did not err when it denied defendant’s motion for a directed verdict, Riley,
468 Mich. at 139-140 (stating that the test for a directed verdict is whether a rational trier of fact
could have found the essential elements of the crime were proved beyond a reasonable doubt), and
the prosecutor presented sufficient evidence to establish the disputed elements and the evidence in
support was not contrary to the great weight of the evidence.
VII. MOTION FOR A NEW TRIAL
A. STANDARD OF REVIEW
Defendant next argues that the trial court abused its discretion when it denied his motion
for a new trial. This Court reviews a trial court’s decision on a motion for a new trial for an abuse
of discretion. People v Russell, 297 Mich. App. 707, 715; 825 NW2d 623 (2012). A trial court
abuses its discretion when it selects an outcome that falls outside the range of reasonable outcomes.
Id.
-11-
B. ANALYSIS
On appeal, defendant argues that the trial court erred when it denied his motion for a new
trial, but he does not address the trial court’s actual reason for denying the motion. He also does
not substantively address the grounds for a new trial that he originally asserted before the trial
court. By failing to offer any meaningful analysis of the trial court’s actual decision and the merits
of his underlying motion, defendant has abandoned this claim of error on appeal. Martin, 271
Mich. App. at 315. In any event, the claim is meritless.
When considering defendant’s motion, the trial court elected not to decide the issue on the
merits. The trial court was concerned that defendant had not filed a copy of the motion with this
Court as required by MCR 7.208(B)(2), but more importantly it worried that defendant’s appointed
appellate lawyer should have the opportunity to examine the motion and make additions or changes
as appropriate from an appellate standpoint. For those reasons, the trial court chose to dismiss the
motion without prejudice to give defendant’s appellate lawyer the opportunity to pursue his own
postjudgment strategy.
The trial court has the inherent authority to manage its docket to achieve the orderly and
expeditious disposition of cases. Maldonado v Ford Motor Co, 476 Mich. 372, 376; 719 NW2d
809 (2006); see also MCR 1.105. Upon review of the record, the trial court’s concern that
defendant might be better served if appellate counsel reviewed trial counsel’s motion was well-
founded. Trial counsel did not support the motion with an affidavit or any other documentation.
Moreover, the claims involved some issues that appellate counsel raised in this Court: a claim of
juror misconduct, a claim that it was error to admit the enlarged and slowed video, and a claim of
insufficient evidence. Trial counsel also did not ask the trial court to hold an evidentiary hearing
to develop the record. Under the circumstances, the trial court’s decision to dismiss the motion
without prejudice to give appellate counsel the opportunity to file a better supported motion or
incorporate the issues into an appeal fell within the range of reasonable outcomes. Russell, 297
Mich. App. at 715.
VIII. CLERICAL ERROR ON THE JUDGMENT OF SENTENCE
As the prosecution concedes on appeal, defendant has identified a clerical error on the
judgment of sentence. Defendant’s conviction of felony-firearm was predicated on being in
possession of a firearm while ineligible to do so under MCL 750.224f. As such, the trial court was
required to order him to serve his sentence for felony-firearm consecutive to and preceding his
sentence for being a felon-in-possession, see MCL 750.227b(3), which it did. However, the
judgment of sentence provided that defendant must serve his sentence for being a felon-in-
possession “consecutive and preceding” his sentence for felony-firearm, and required him to serve
his sentence for felony-firearm “consecutive and preceding” his sentence for being a felon-in-
possession. Being logically impossible, it is evident that the judgment contains a clerical error.
Accordingly, we remand this case to the trial court for the ministerial task of amending the
judgment of sentence to delete the provision requiring defendant to serve his sentence for being a
felon-in-possession consecutive to and preceding his sentence for felony-firearm. See MCR
7.216(A)(1).
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Affirmed, but remanded for correction of the judgment of sentence. We do not retain
jurisdiction.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
-13- | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1580449/ | 12 So.3d 237 (2009)
J.P.
v.
STATE.
No. 5D08-3330.
District Court of Appeal of Florida, Fifth District.
June 23, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583613/ | 427 So.2d 452 (1982)
Mary N. SCHILLING, et al.
v.
BIGELOW LIPTAK CORP., et al.
No. 82 CA 0139.
Court of Appeal of Louisiana, First Circuit.
November 16, 1982.
Rehearing Denied March 14, 1983.
*453 L.B. Ponder, Jr., Amite, for plaintiffs-appellants.
France W. Watts, III, Franklinton, for Bigelow Liptak Corp.
Stanley E. Loeb, New Orleans, for Fireman's Fund Ins. Co.
David Donnell Moss, Hebert, Moss & Broussard, Baton Rouge, for Ragan Chemical, Inc.
Madison C. Moseley, New Orleans, for Reintjes Indus. Services and George P. Reintjes Co., Inc.
Donald D. Bann, Metairie, for St. Paul Fire & Marine Ins. Co.
Daniel R. Atkinson, Baton Rouge, for Allstate Ins. Co.
Wood Brown, III, Montgomery, Barnette, Brown & Read, New Orleans, for the Pennwalt Corp.
Robert E. Leake, Jr., Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for Ameron, Inc.
R.K. Christovich, New Orleans, for Federal Ins. Co.
Glenn T. Cambre and Gordon R. Crawford, Gonzales, for Controlled Maintenance Inc.
Before ELLIS, PONDER and SAVOIE, JJ.
SAVOIE, Judge.
These tort and workmen's compensation claims result from Henry Schilling's death on October 5, 1977. Originally, decedent's wife, individually and on behalf of her minor son, filed suit against Bigelow Liptak Corporation, Schilling's employer prior to his death. Supplemental pleadings added as defendants Bigelow's insurers, and several of Bigelow's management personnel. Further, plaintiff alleged that Schilling used a dangerous product manufactured by Pennwalt Corporation in his work.
In answer thereto, Bigelow and its insurer, Travelers Insurance Company, filed an "Answer and Third Party Demand," joining as third party defendants, Ameron Corporation, Pennwalt Corporation, Controlled Maintenance, Inc. (CMI) and a host of others. Other pleadings and exceptions were filed among these third party defendants but none are at issue on appeal except as noted below.
CMI, a past employer of decedent, third partied its insurers, St. Paul Fire and Marine Insurance Co. and Allstate Insurance Co. It claimed that despite amicable demand each insurer refused to defend CMI although contractually obligated to do so.
The trial court concluded plaintiff failed to prove Schilling's death resulted from a work-related accident. Therefore, judgment was rendered in favor of Bigelow and its third party defendants. Further, it rendered judgment in favor of CMI and against St. Paul and Allstate for failing to defend under their policies.
Both St. Paul and plaintiff appeal. Plaintiff claims the trial court erred in: (1) concluding she failed to establish a work-related accident; and (2) accepting the opinions of two non-treating doctors rather than the attending physician. St. Paul contends the court erred by failing to: (1) grant its motion for summary judgment; (2) consider the specific policy exclusions; and (3) conclude it had no duty to defend because Schilling's claim against CMI had prescribed.
CMI answers St. Paul's appeal and requests an increase in its award. It seeks an increase of $1,000 in attorney's fees as costs for handling this appeal. Further, third parties answer plaintiff's appeal, contending the trial court committed no manifest error. Alternatively, they claim no appeal was taken from the third party dismissals and, therefore, those dismissals are not properly before the court.
We find no manifest error on the part of the trial court in concluding plaintiff failed to prove a work-related accident. Therefore, we affirm the trial court's judgment in favor of defendant Bigelow and its third *454 party defendants. This holding relieves us of the necessity of deciding whether the third party dismissals are properly before us on appeal. Further, we conclude St. Paul had no duty to defend CMI under its policy. Accordingly, we amend the trial court's judgment in this respect and deny CMI's request for additional attorney's fees.
Mr. Schilling contracted a rash while employed by Bigelow. He sought medical attention from Dr. Edmond Faulkenberry, a general practitioner, on August 23, 1977. At that time, his hands and wrists were swollen. Further, he informed Dr. Faulkenberry that he had been handling an acid concrete mortar. Decedent was seen by Dr. Faulkenberry again on the morning of the 26th. Decedent's neck, legs, and hands were red, irritated and raw-looking. Later that day, Dr. Faulkenberry diagnosed decedent as having renal failure and sent him to Ochsner Hospital. Decedent was treated at Ochsner and subsequently transferred to the Veterans Administration Hospital where he died on October 5, 1977, of a massive heart attack.
In a workmen's compensation proceeding, the employee has the burden of establishing by a preponderance of the evidence that he is disabled and that his disability is causally related to the employment accident. Allor v. Belden Corporation, 393 So.2d 1233 (La.1981); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). To judicially determine probability, medical testimony must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982). The trial court concluded that plaintiff failed to carry her burden of proof. The record supports this conclusion.
The autopsy report states that Mr. Schilling died of an acute heart attack. The primary cause of the attack was arteriosclerosis heart disease, associated with infection in the mitral valve of the heart.
Plaintiff and Dr. Faulkenberry contend the infection entered decedent's body through his irritated skin. In contrast, the defendants claim the infection resulted from decedent's infected ear and secondly, from decedent's bad teeth. Defendants' claim is supported by the testimony of their two expert witnesses, Dr. Monroe S. Samuels and Dr. Richard Green.
Dr. Samuels was qualified as an expert in the field of pathology, which includes clinical, anatomical, and forensic pathology. He is chief of the Toxicology Section at Charity Hospital in New Orleans. Further, he maintains the chief consulting position at the Orleans Parish Coroner's office in the area of the performance of autopsies as well as in the supervision of the Coroner's Office Toxicology Laboratory. Dr. Green was qualified as an expert in internal medicine and occupational medicine.
Not only did Drs. Samuels and Green consider decedent's infected ear and bad teeth, respectively, to be the most likely source of the infection, each stated there was no medical evidence to connect decedent's activities with his cause of death.
Both doctors stated that a breakage in the skin was the only possible way a connection could be found between the rash and the infection. Neither the hospital reports nor the autopsy reports noted any cut or skin breakage on decedent's body. Further, both decedent's wife and step-daughter testified decedent had no cuts on his body. In addition, they, as did decedent's son, testified that decedent had bad teeth.
It is noteworthy that only four days lapsed between decedent's first visit to Dr. Faulkenberry and his second visit, at which time decedent was hospitalized for renal failure. Upon decedent's first visit, Dr. Faulkenberry treated decedent by prescribing medrol. Dr. Samuels testified that this drug is a steroid and should not be given when treating a localized infection. If given under such circumstances, there is a great possibility it will generalize the infection. Further, he testified the steroids were a possible contributing factor to the spread of the disease.
*455 Secondly, plaintiff contends that Dr. Faulkenberry's testimony is entitled to greater weight since he was the attending physician. It is true that the diagnosis and the opinions of the treating physician and specialist to whom referred by the original treating physician are entitled to more weight than those doctors examining plaintiff for consultation for litigation purposes only. Schouest, supra. The basis for this preference is that the treating physician has the benefit of repeated examinations and sustained observation of the injured person. Irvine v. Sentry Insurance Company, 415 So.2d 467 (La.App. 1st Cir.1982); Meshell v. Rivers, 348 So.2d 203 (La.App. 3rd Cir.1977), writ refused, 350 So.2d 1210 (La.1977); Babin v. Highlands Insurance Company, 290 So.2d 720 (La.App. 1st Cir. 1974).
In the instant case, Dr. Faulkenberry saw decedent only twice within a four-day period. He treated the decedent for a rash. Upon ascertaining that decedent was in renal failure, Dr. Faulkenberry sent decedent to Ochsner Hospital for treatment. Dr. Faulkenberry did not see decedent again. Therefore, under the facts in this case, the testimony entitled to greater weight is that of the treating physicians at Ocshner and Veterans. However, the record lacks such testimony. Consequently, it was not manifest error for the trial court to accord the same weight to all the medical testimony in evidence.
The trial court's decision that St. Paul is liable to CMI for failing to defend on its behalf is also before this court. Generally, the insurer's obligation to defend suits against its insured is broader than its liability for damage claims. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969), rehearing denied, Jan. 20, 1970. Its duty is based on the allegations of the injured plaintiff's petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. American Home Assurance Company, supra.
In its third party demand against CMI, Bigelow and its insurer alleged that decedent's employment activities with CMI contributed to the conditions causing his death. Based upon this allegation, Bigelow and its insurer contend CMI is liable. As a result of this claim of liability, CMI joined St. Paul, its insurer, into the suit for failing to defend on CMI's behalf.
St. Paul contends that the trial court erred in rendering judgment against it for failing to defend CMI. St. Paul argues it had no duty to defend in that it was not the insurer when the disability manifested itself nor at the time of the last exposure. Further, it claims that the specific provisions of the policy exclude coverage because the accident did not occur during the policy period nor was the last exposure during the policy period. Lastly, St. Paul contends that it had no duty to defend because Schilling's claim against CMI had prescribed.
St. Paul cites Fazande v. Continental Grain Company, 363 So.2d 1253 (La.App. 4th Cir.1978) as supportive of its first two arguments. In that case, Continental Grain's insurer, Travelers, claimed that if plaintiff was entitled to receive benefits, then the previous insurers who provided coverage to plaintiff's employer during the 15 years of his employment were liable for their pro-rata share or in solido with defendant. The court pointed out that the cases relied on by defendants which held all insurers solidarily liable were cases where a claimant's disability was caused by a combination of two or more accidents, with different insurers at the times of the contributing accidents. The court distinguished Fazande since it involved a disability resulting from an occupational disease rather than two distinct work-related accidents. However, the court held Travelers to be solely liable under the provisions of its policy.
In the present case, as in Fazande, supra, the insurance policy contains a restriction on coverage for occupational disease. It reads as follows:
"IV. Application of Policy
"This policy applies only to injury (1) by accident occurring during the policy period *456 or (2) by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occurs during the policy period."
The medical evidence in Fazande, supra, established the date of disability and the date of last exposure at times when Travelers' policy was in effect. Based on this evidence and the application of the policy provisions, the Fourth Circuit concluded that the disability from the disease occurred within the term of Travelers' policy and held Travelers solely responsible for compensation payments.
The case at bar is similar to Fazande, supra, in that it involves an alleged disability resulting from an occupational disease. However, it differs from Fazande in that Fazande was a case determining the insurer's liability to pay compensation, whereas, here the issue is the insurer's duty to defend the insured. In either situation, an examination of the policy provisions is in order. It is the application of the policy provisions which will determine whether the insured is covered thereunder and, consequently, whether the insurer owes a duty to defend. American Home Assurance Company, supra.
St. Paul's policy restricted coverage for occupational disease disabilities to those disabilities resulting when the last day of the last exposure to the condition causing the disease occurs during the policy period. St. Paul insured CMI from 1971 through 1973. Schilling worked for CMI for short periods of time in 1971, 1973, and 1975. He was last employed by CMI from July 8 through July 22, 1975. Therefore, July 22, 1975 is the last possible date on which Schilling could have been exposed to the acid mortar while in the employ of CMI. By CMI's third party demand, it states that during the period of March 1, 1975 through March 1, 1978, its insurer was Allstate. Thus, the last possible day of last exposure did not occur during the term in which CMI was insured by St. Paul but when it was insured by Allstate. Consequently, St. Paul owed no duty to defend CMI in this action under its policy provisions.
This holding makes it unnecessary for us to address St. Paul's third assignment of error.
The last issue is CMI's request for an increase in its award against St. Paul as costs for handling this appeal. This increase is not warranted as we have determined that St. Paul did not owe CMI a duty to defend.
For the foregoing reasons, we affirm the trial court's dismissal of defendant Bigelow and the third-party defendants. Further, we amend as to the liability of St. Paul Insurance Company to CMI. Cost of the appeal to be borne equally by appellant Schilling and appellee CMI.
AMENDED AND AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583601/ | 427 So. 2d 1135 (1983)
WALT DISNEY WORLD CO., Etc., Appellant,
v.
Edith W. ALTHOUSE, Appellee.
No. 82-665.
District Court of Appeal of Florida, Fifth District.
March 16, 1983.
John L. O'Donnell, Jr. and John H. Ward, of DeWolf, Ward & Morris, P.A., Orlando, for appellant.
Kocha & Houston and Larry Klein, West Palm Beach, for appellee.
SHARP, Judge.
Walt Disney World Co. appeals the trial court order which granted Edith W. Althouse a new trial. Althouse moved for a new trial after the jury returned a verdict finding no negligence on the part of Disney. The impropriety which formed the basis for the motion was a contact which occurred between a juror and a Disney witness and employee, Steve Farina, in the midst of the trial. Under the circumstances which occurred in this case, we think the trial court erred in granting a new trial, and we reverse.
The jurors were excused for a coffee break during the afternoon on the second day of the trial. The bailiff saw the jurors leave the jury room, and he followed them *1136 into the hall next to the courtroom. A few minutes later he saw that the jury room was open and a young man (Farina) was putting on his shoes in that room. A juror came out of the jury room. The bailiff removed Mr. Farina and reported the incident to the court.
The trial judge was very upset with Disney, not only because of the juror-witness contact, but because Disney had failed to produce a record or report. The court asked counsel for Althouse what he wanted to do. He replied:
Well, your Honor, I want to continue the trial because it's gone this far but for the record, I would, I would say this, that the court instructed the lawyers at the beginning of the case as to how to handle our witnesses and that's all I have to say.
Farina was placed under oath and questioned by the court and the attorneys for the parties. He explained that he had not slept much the night before, and his new shoes, which he wore that day, were tight and hurting his feet. He had been waiting in the hall to testify for a day and a half. He noticed an empty room (the jury room) and someone told him he could go in there and rest. He went into the room, took off his shoes, and rested some fifteen to twenty minutes. Then a woman came into the room, and Farina asked her how things were going in the trial. She said she could not discuss it. Because Farina thought she was a witness, he began putting his shoes on, so he could walk out of the room. At that point the bailiff found him and asked what he was doing in the jury room. He denied that he knew the woman was a juror or that he knew he was in the jury room.
The court and attorney for Althouse conducted most of the questioning of Farina. They both were apparently satisfied with his explanations. No one suggested that the juror be also questioned. The court indicated it was ready to hear the rest of the case. Counsel for Althouse stated:
I do not move for a mistrial at this time but I would, Your Honor, ask that I be permitted to reserve the right to, to interview the jurors posttrial.
The court said it would take his request up after the trial. However, no other inquiry was made nor testimony taken after the jury verdict.
We are well aware that a trial court has very broad discretion to grant a new trial. Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959). But such decisions are not unreviewable by the appellate courts, and the reasons for the need for a new trial must be set forth in the order and supported by the record. Wackenhut Corporation v. Canty, 359 So. 2d 430 (Fla. 1978).
Here the trial court's new trial order stated that "the circumstances surrounding the entry of the defendant's witness into the jury room in this case are such as to cast a shadow of impropriety over the result of the jury in this case." He did not find any actual improper contact had occurred, but relied solely upon the "appearance" of impropriety. Atlantic Coastline Railroad Company v. Seckinger, 96 Fla. 422, 117 So. 898 (1928).
Had counsel for Althouse requested a mistrial when the juror-witness contact was discovered, either before or after Farina testified, perhaps he would have been entitled to one. However, counsel for Althouse elected to let the trial proceed. This decision must be given its due consequences. Althouse cannot be allowed to proceed on a "heads I win; tails you lose" basis.[1]
Further, counsel for Althouse made no additional showing or effort to show the witness-juror contact was anything other than innocent and momentary in a post-trial proceeding, as he reserved the right to do, when he waived his right to request a mistrial. Had he done so, and had the contact been shown to have been different than testified to by Farina, again the result might be different. However, based on this record, we hold it was an abuse of discretion to grant a new trial for an "appearance of evil" known at mid-trial, when counsel *1137 elected not to request a mistrial. See, e.g., Miller v. Pace, 71 Fla. 274, 71 So. 276 (1916); Eastern Air Lines, Inc. v. J.A. Jones Construction Company, 223 So. 2d 332 (Fla. 3d DCA 1969), cert. denied, 229 So. 2d 868 (Fla. 1969).
REVERSED.
DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur.
NOTES
[1] Robbins v. Graham, 404 So. 2d 769 (Fla. 4th DCA 1981); Cameron v. Sconiers, 393 So. 2d 11 (Fla. 5th DCA 1980); Nadler v. Home Ins. Co., 339 So. 2d 280 (Fla. 3d DCA 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583605/ | 427 So. 2d 221 (1983)
David DeBOLT, Individually, and As Father and Next Friend of Douglas DeBolt, a Minor, Appellant,
v.
The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellee.
No. AL-19.
District Court of Appeal of Florida, First District.
February 14, 1983.
Rehearing Denied March 18, 1983.
*222 Stan Trappe, Brian A. Dusseault and Pamela Dru Sutton, Panama City, for appellant.
John A. Bussian, III of Isler, Brown, Smoak, Harrison, Nabors & Bussian, Panama City, for appellee.
ERVIN, Judge.
In this appeal we are asked to determine whether the trial court erred in granting summary judgment in favor of appellee, the Florida Department of Health and Rehabilitative Services (HRS), thus precluding appellants, Douglas and David DeBolt, from proceeding against HRS on a negligence theory. Appellants contend that the trial court erred, first, in finding that HRS enjoys complete tort immunity by operation of Section 402.34, Florida Statutes (1981), and, second, in concluding that no genuine issues of material fact remain in dispute. We agree with appellants on both points and reverse the summary judgment entered below.
In 1978, Douglas DeBolt, then a minor, was placed under the temporary custody of HRS after being accused of committing a delinquent act.[1] Determining that some form of detention was warranted, DeBolt was placed by HRS in the custody of George Martin, a Panama City policeman, whose home had been designated an "attention home"[2] by virtue of a contract entered into by HRS, Martin, and his wife on June 23, 1978.[3] While DeBolt was in the Martins' *223 custody at their home, he was shot in the leg with a .22 caliber rifle by the Martins' three-and-a-half year old son.[4]
A complaint seeking damages on behalf of the minor, Douglas DeBolt, and his father, David DeBolt, alleging negligence on the part of HRS and its agents or employees, the Martins, followed. HRS subsequently moved for summary judgment or judgment on the pleadings on the grounds that: (1) the selection of "attention home" parents was a discretionary, planning level decision for which HRS is immune from tort liability;[5] (2) HRS cannot be vicariously liable for the negligence of "attention home" parents,[6] and (3) HRS is completely immune from tort liability by operation of section 402.34, Florida Statutes. The record shows that the trial court based its decision to grant summary judgment on the second and third grounds raised by HRS, and on that court's conclusion that no material issues remained in dispute.
Appellants first contend that HRS does not enjoy complete tort immunity under Section 402.34, Florida Statutes, which provides:
The department is a body corporate and shall adopt and have a corporate seal. It shall have the power to contract and be contracted with, to sue and be sued in actions in ex contractu but not in torts, and to have and to possess corporate powers for all purposes necessary to administer this chapter. The department shall have the power to accept payment for services rendered pursuant to rules and regulations of the department.
(e.s.) The issue of HRS' sovereign immunity is instead governed, they argue, by Section 768.28, Florida Statutes (1981), which in general terms provides that the State of Florida has "waive[d] sovereign immunity for liability for torts" for itself as well as for "its agencies or subdivisions." They further contend that the court's construction of section 402.34 as authorizing HRS to be barred from an action in tort, when neither the state nor its subdivisions are so exempt, constitutes a denial to them of their rights to equal protection of the laws and access to the courts. HRS responds that the legislature clearly intended that it be excluded from the state's general waiver of sovereign immunity and that section *224 402.34, being a statute specifically relating to its immunity from tort liability must prevail over section 768.28, a statute limiting sovereign immunity only in general terms. We agree with appellants' position on the non-constitutional grounds advanced and reject HRS' claim of complete immunity from tort liability.[7]
Where, as in this case, two statutes are found to be in conflict, rules of statutory construction must be applied to reconcile, if possible, the conflict. We are aided in this task by the maxim that "legislative intent is the pole star by which we must be guided in interpreting the provisions of a law." Parker v. State, 406 So. 2d 1089, 1092 (Fla. 1981). In our attempt to discern the legislative intent behind the conflicting statutes, we must consider "the history of the Act, the evil to be corrected, the purpose of the enactment, and the law then in existence bearing on the same subject." State Board of Accountancy v. Webb, 51 So. 2d 296, 299 (Fla. 1951). A review of the legislative history of section 402.34, as well as the wording of the statute, convinces us that the legislature's purpose was not to grant unlimited immunity to HRS from actions in tort but rather to provide the then newly created department with the "corporate" powers essential to its functioning.[8] Our interpretation of section 402.34 is consistent with our recent recognition that section 402.34 does nothing more than define HRS' capacity to sue or be sued. See Bergen Brunswig Corporation v. State, Department of Health and Rehabilitative Services, 415 So. 2d 765 (Fla. 1st DCA 1982).[9] The lack of a clear legislative intent is certainly not evident from a reading of section 768.28, which exposes the state and its subdivisions to tort claims "in cases where a private person would be liable." See Jetton v. Jacksonville Electric Authority, 399 So. 2d 396, 397 (Fla. 1st DCA 1981).[10]*225 The "evil" to be corrected by section 768.28's sweeping changes was unquestionably the prior system of absolute sovereign immunity which denied, to anyone having the misfortune of being injured due to the negligence of a governmental entity or its agents, the right to recover damages for such injuries in court. The obvious inequities of the old system led the Florida Supreme Court to observe that
[i]n our view, section 768.28, rather than denying equal protection, has in fact brought fairness, equality, and consistency to an area of the law which for over one hundred years has been beset with contradiction, inconsistency, and confusion... . Clearly, the even-handed application of immunity under section 768.28 furthers equal protection of the law under our constitution rather than denies it.
* * * * * *
It is our decision that, in this state, sovereign immunity should apply equally to all constitutionally authorized governmental entities and not in a disparate manner.
Cauley v. City of Jacksonville, 403 So. 2d 379, 385, 387 (Fla. 1981) (e.s.).
In considering the different legislative purposes behind both statutes, it is next our task to reconcile their conflicts, if possible. We are urged by appellants to find section 402.34 unconstitutional on the grounds of equal protection and access to the courts. We will decline to do so if the relief requested may be granted on nonconstitutional grounds. See, Curless v. County of Clay, 395 So. 2d 255 (Fla. 1st DCA 1981). Because we conclude that the conflict between sections 768.28 and 402.34 may be resolved by application of the rule of "implied repeal," we do not reach the constitutional issues presented by appellants. The interpretative rule of "implied repeal," generally stated, means that a
general statute covering an entire subject-matter, and manifestly designed to embrace all the regulations of the subject, may supersede a former statute covering a portion only of the subject, when such is the manifest intent, even though the two are not wholly repugnant.
Sparkman v. State ex rel. Bank of Ybor City, 71 Fla. 210, 71 So. 34, 39 (1916) (e.s.). Mindful that a "repeal by implication is not favored," State v. Dunmann, 427 So. 2d 166, 168 (Fla. 1983), we nevertheless conclude that the implied repeal rule is particularly applicable in this case in which a specific statute (section 402.34), purportedly dealing with the sovereign immunity of a particular agency, conflicts with a general statute (section 768.28) that expresses the legislative intent to revise completely the law of Florida regarding sovereign immunity. Our conclusion is particularly influenced by the Florida Supreme Court's decision in Oldham v. Rooks, 361 So. 2d 140 (Fla. 1978), wherein the rule of implied repeal was applied to resolve a similar statutory conflict. At issue in Oldham were two statutes, one specific and one general, relating to standards of conduct for public officials and employees. That court refused, as do we, to reach the constitutional issues presented, but instead determined that the more specific statute had been "repealed by implication" by the enactment of Chapter 112, Florida Statutes, which was intended to "deal pervasively with the subject matter of conflict between the official duties and private interests of public officials and employees." Id. at 142. Recognizing the general presumption that the legislature, in enacting a statute, is aware of prior statutes on the same subject, it was nevertheless found that
when the legislature makes a complete revision of a subject it serves as an implied repeal of earlier acts dealing with the same subject unless an intent to the contrary is shown. Orange City Water Co. v. Town of Orange City, 255 So. 2d 257 (Fla. 1971); State v. Newell, 85 So. 2d 124 *226 (Fla. 1956); Brevard County v. Board of Public Instruction of Brevard County, 159 Fla. 869, 33 So. 2d 54 (1947).
Id. at 143. The continuing vitality of the Oldham decision was evidenced by the court's recent opinion in State v. Dunmann, which relied on Oldham in finding that Florida's Anti-Fencing Act, Chapter 77-342, Laws of Florida, which was intended to revise completely the law concerning a broad range of criminal activities, had impliedly repealed section 812.041, the so-called "joy-riding statute." 427 So.2d at 168.
An application of the above principles convinces us that the enactment of section 768.28, a general revision of Florida's law of sovereign immunity, impliedly repealed section 402.34 insofar as it purports to immunize HRS, a particular agency, from tort liability.[11] The trial court's grant of summary judgment, based as it was upon an erroneous conclusion of law, is therefore reversed.
The trial court's determination that no material issues of fact remain in dispute was likewise erroneous and requires reversal. Several areas of factual dispute are suggested and we are persuaded, by the limited record developed at this stage of the proceedings, that a material factual dispute does remain regarding the Martins' status as independent contractors. The decisive factor in determining whether individuals are independent contractors, agents, or employees is of course the degree of control exercised by the employer. See Crawford v. Department of Military Affairs, 412 So. 2d 449 (Fla. 5th DCA 1982). If there is no question as to the existence or non-existence of a master/servant or employer/employee relationship, the issue is one then for the court to determine. If, however, the issue is unclear, it becomes a question of fact for the trier of fact to decide based on the evidence presented. See Gregg v. Weller Grocery Co., 151 So. 2d 450 (Fla. 3d DCA 1963). In this case, although the Martins are identified in the contract as "independent contractors," the terms of the contract appear to impose a number of conditions and limitations[12] upon them which, at the *227 very least, create a factual dispute as to their status, thus precluding summary judgment.
The trial court's entry of summary judgment is therefore reversed and this case is remanded for further proceedings consistent with this opinion.
MILLS and LARRY G. SMITH, JJ., concur.
NOTES
[1] HRS is authorized, by Chapter 39, Florida Statutes, to take custody of and to detain juveniles, such as DeBolt, who have been accused of committing delinquent acts. See, § 39.03, Fla. Stat. (1981). Such detention may be in a "detention home or nonsecure detention program, including home detention and attention homes...." § 39.01(14), Fla. Stat. (1981) (e.s.).
[2] An "attention home" is defined as "a residence in the community to house one or more, but not exceeding six, children in a physically unrestricting environment, pending adjudication." § 959.001(10), Fla. Stat. (1981).
[3] The contract between the Martins and HRS states that HRS "wishes to provide, through independent contractors, Attention Home facilities separate and apart from its Secure Detention facilities..." and further represents that the Martins' home "has been inspected and approved for these services." In return for compensation at the rate of $8.50 per day, per bed, attention home parents must agree to a number of conditions dealing with the providing of shelter, food and the medical needs of the children in their custody. They must also maintain, and submit to HRS, various reports regarding their charges and are restricted, to some degree, in the manner in which they may care for the children. See note 12, infra.
[4] The facts surrounding the shooting are in dispute. Martin, who was playing Monopoly with DeBolt and another juvenile in his custody, evidently spotted a rabbit in the family garden and brought out a loaded rifle with which to shoot it. The rifle, which was left leaning against the dining room wall, either fell or was discharged by Martin's small son, and the bullet struck DeBolt, causing, it is alleged, serious injury.
[5] Although HRS presented lengthy legal argument on the issue of whether the decision to place DeBolt in the Martin's care was a "discretionary, planning level decision," which would preclude tort liability, the trial court chose not to decide that issue, and it is therefore not before us on appeal. See note 11, infra.
[6] In support of its argument that HRS cannot be vicariously liable for the negligence of its attention home parents, HRS and the trial court relied upon an order entered in the case of Lewis v. State, Department of Health and Rehabilitative Services, ___ Fla. Supp. ___, No. 80-2314 (Fla. 2d Cir.Ct., April 28, 1981). A review of that order, entered by the Honorable Donald O. Hartwell of Leon County, indicates that only Count III of a seven-count complaint was dismissed, thus leaving the other six counts intact. Although we will not comment on the merits of a case which is apparently still pending before the circuit court, we would note that the position taken by HRS, that it can never be vicariously liable for the acts of individuals such as the Martins, is contrary to the clear language of section 768.28 which makes the state, its agencies and subdivisions liable, vicariously to be sure, for tortious acts of its employees or agents while they are acting within the scope of their employment. The fact that vicarious liability is contemplated is further bolstered by the 1981 amendments to section 768.28, which preclude the naming of state officers, employees or agents as party defendants to suits, and provides that the exclusive remedy, in most situations, is an action against the governmental entity. See Ch. 80-271, § 1, Laws of Florida. The obvious issue, whether an employer/employee relationship exists, has not yet been resolved in this case. See note 3, supra.
[7] The issue of HRS' immunity from tort liability has been raised in several prior cases with conflicting results. In an action occurring prior to the effective date of section 768.28, it was held that the department was immune from tort liability. See Loucks v. Adair, 312 So. 2d 531 (Fla. 1st DCA 1975). In a later action, occurring after 1973, this court, in affirming a jury verdict adverse to HRS, concluded that section 768.28 had waived sovereign immunity for HRS as well as other state subdivisions. See, Department of Health and Rehabilitative Services v. McDougall, 359 So. 2d 528 (Fla. 1st DCA 1978). In 1976, the Florida attorney general was called upon to determine if HRS was immune from potential tort liability relating to the swine flu immunization program. He concluded that the state, by its enactment of section 768.28, had "waived its immunity with respect to tort liability for state agencies including executive departments such as the Department of Health and Rehabilitative Services." 1976 Op. Att'y Gen. Fla. 076-188 (September 10, 1976). Finally, in two recent cases before this court, HRS has not asserted its claimed immunity from tort liability. See, Bergen Brunswig Corporation v. State, Department of Health and Rehabilitative Services, 415 So. 2d 765 (Fla. 1st DCA 1982), and Kirkland v. State, Department of Health and Rehabilitative Services, 424 So. 2d 925 (Fla. 1st DCA 1983). The only case cited by HRS in which it has been held to have complete sovereign immunity by virtue of section 402.34 is the case of Swain v. Walker, ___ Fla. Supp. ___, No. 80-12326 (Fla. 11th Cir.Ct., August 27, 1981), wherein the Honorable Jack M. Turner of Dade County dismissed a tort action against HRS after concluding that section 402.34 deprived that court of subject matter jurisdiction. We do not find that case, which of course has no precedential value, persuasive.
[8] Section 402.34, first enacted in 1969 as section 409.055 was part of a general effort to restructure Florida's executive branch by, among other things, creating the Department of Health and Rehabilitative Services. See, Ch. 69-106, Laws of Florida. Although that section was renumbered as section 402.34 in 1978, see Ch. 78-433, § 17, Laws of Florida, no substantive changes have been made since its initial enactment.
[9] In Bergen, HRS brought an action in conversion and prevailed in the trial court. On appeal, the corporation first raised the issue of HRS' lack of capacity to sue in tort based on section 402.34. Because that issue was not properly before or considered by the trial court, we declined to consider it on appeal.
[10] Section 768.28 was enacted in 1973 for the purpose of allowing actions "against the state or any of its agencies or political subdivisions for the tortious acts of their employees." Ch. 73-313, Laws of Florida. That section was then amended in 1974 to include "agents" as well as employees. See, Ch. 74-235, Laws of Florida. When confusion arose over whether counties and municipalities were to be included, the section was again amended in 1977 to demonstrate that, in "enacting section 768.28, Florida Statutes, the Legislature clearly intended to make the state, the counties, and the municipalities liable for tort claims in the same manner and to the same extent as a private individual under like circumstances... ." Ch. 77-86, Laws of Florida. Additional amendments have been added to Section 768.28 since 1977 which are unrelated to this issue. See Ch. 79-139, Ch. 79-253, Ch. 79-400, Ch. 80-271 and Ch. 81-317, Laws of Florida.
[11] Our finding that HRS is governed by section 768.28, as are all other governmental agencies in Florida, does not subject it in all cases to tort liability. It is clear that there are two types of sovereign immunity: (1) sovereign immunity for negligent tortious conduct which has been waived by section 768.28, and (2) "official or governmental immunity" which has not been waived. The latter form of sovereign immunity is absolute and attaches to "policy-making, planning or judgmental governmental functions." Department of Transportation v. Neilson, 419 So. 2d 1071, 1075 (Fla. 1982) (citing Commercial Carrier Corporation v. Indian River County, 371 So. 2d 1010, 1020 (Fla. 1979)). This second type of sovereign immunity was raised by HRS as its first ground for summary judgment before the trial court but, because that court did not decide that issue, it is not before us at this time.
[12] For example, the contract requires the attention home parents to provide twenty-four hour facilities for the children assigned to their care and further provides that the parents must agree to abide by the conditions outlined in the "Non-secure Detention" program manual as follows:
a. To report illnesses or need for medical care for children under their care promptly.
b. To report behavioral problems of children under their care immediately.
c. To refrain from entering into arrangements for care of other children unless agreed to or ordered by the Agent.
d. To secure advanced permission from the Agent or his designated representative of any plans whereby the child would be out of home and out of the County eight hours or more.
e. To accept the removal of the child from the home in accordance with the orders of the Agent or his designated representative.
f. Not to take adults or other children into the home to live without first notifying the Agent, and to report any change of address immediately.
g. Not to make any attempt to indoctrinate the child with a particular religious belief.
h. To keep all information concerning the child and the child's family confidential.
i. To cooperate regarding visits between the child and the child's family as arranged by the Agent or his designated representative.
j. That no expenses shall be incurred in behalf of the child other than those set forth in this agreement without first requesting and receiving the approval of the Agent or his designated representative. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580337/ | 12 So. 3d 173 (2007)
KENNETH PRICE
v.
KATHERINE SMITH PRICE.
No. 2060277.
Court of Civil Appeals of Alabama.
June 5, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Dismissed on motion of appellant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580361/ | 12 So. 3d 761 (2009)
BOLES
v.
STATE.
No. 5D07-3638.
District Court of Appeal of Florida, Fifth District.
July 9, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2304023/ | 302 F. Supp. 2d 672 (2004)
WEST ALABAMA QUALITY OF LIFE COALITION, Plaintiff,
v.
UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, et al., Defendant.
No. CIV.A. H-03-5591.
United States District Court, S.D. Texas, Houston Division.
February 9, 2004.
*673 *674 James B. Blackburn, Jr., Blackburn & Carter, Houston, TX, for Plaintiff West Alabama Quality of Life Coalition.
Myesha Braden, U.S. Department of Justice, Environment & Natural, Resources Division, Washington, D.C., for Defendants United States Federal Highway Administration, Curtis Dan Reagan, Mary E. Peters, United States Department of Transportation, and Norman Y. Mineta.
Jack Foster Gilbert, Office of the Attorney General, State of Texas, Austin, TX, for Defendants Texas Transportation Commission and John W. Johnson.
ORDER ON REQUEST FOR PRELIMINARY INJUNCTION
HITTNER, District Judge.
Pending before the Court is the Motion for Preliminary Injunction filed by Plaintiff West Alabama Quality of Life Coalition. After considering the motion, submissions, argument of counsel at a hearing on February 2 and 3, 2004, and applicable law, the Court determines that the motion should be denied.
INTRODUCTION
West Alabama Quality of Life Coalition ("WALQ") is a Texas non-profit corporation currently involved in a project to protect neighborhoods from freeway traffic diversions in and around the Richmond/West Alabama Corridor. Defendants are various federal and state transportation officials and agencies, including the Federal Highway Administration ("FHWA") and the Texas Department of Transportation ("TxDOT"). Plaintiff filed the instant lawsuit against Defendants asserting violations of federal law and requesting the issuance of a preliminary injunction to halt the impending U.S. 59/Spur 527 construction project scheduled to begin on February 13, 2004 at 9:00 p.m. The purpose of a preliminary injunction is to prevent irreparable injury to the parties and "preserve the court's ability to render a meaningful decision on the merits." Meis v. Sanitas Serv. Corp., 511 F.2d 655, 656 (5th Cir.1975).
BACKGROUND REGARDING U.S. 59/SPUR 527 PROJECT
Since 1961, Spur 527 has provided access to and from Houston's central business district from U.S. 59, also known as the Southwest Freeway.[1] However, Spur *675 527 is aged, shows signs of deterioration, requires extensive costly annual maintenance, and is not within current TxDOT design guidelines as it lacks the proper sized shoulders in its travel lanes and sufficient vertical clearance on its bridges. Additionally, as the Houston metropolitan population continues to increase, TxDOT anticipates increased use of both U.S. 59 and Spur 527. Thus, TxDOT plans to begin a major reconstruction project on Spur 527.
The Spur 527 project is a component of the larger "Southwest Freeway Project" that began in the mid-1980's to reconstruct U.S. 59 from Beltway 8 to State Highway 288. The reconstruction of U.S. 59 and Spur 527 from Mandell to Smith Street[2] involves depressing a portion of U.S. 59 to a level 20 feet below grade, extending the existing High Occupancy Vehicle ("HOV") lanes into downtown, and reconstructing the travel lanes and bridges of Spur 527. On completion, U.S. 59 will be expanded to a 12 lane facility, including 5 lanes in each direction with a 2 lane HOV facility that will divert from U.S. 59 onto Spur 527 into downtown, and there will be two additional arched bridges over the freeway at Graustark and Montrose.
The overall Southwest Freeway Project was approved in October 1985[3] when TxDOT submitted and the Federal Highway Administration approved a 1985 Environmental Impact Statement ("EIS").[4] In the early 1990's, TxDOT prepared an Environmental Assessment ("EA") detailing a plan to construct elevated HOV lanes along side Spur 527 into downtown.[5] However, after presentations at public hearings and community workshops, TxDOT redesigned this portion of the project due to significant public opposition concerning the project's lack of aesthetic appeal. Based on public comment, TxDOT's new design extends the depressed section of U.S. 59 to the intersection of Spur 527 and places HOV lanes at the same grade as the main lanes on the Spur, which now requires reconstruction of Spur 527 to align the two roadways. Additional public meetings were held to discuss TxDOT's new design plans.
In September 1997, TxDOT prepared a revised EA to address the new design. The 1997 EA stated that the proposed construction would not detour or divert significant levels of traffic onto neighborhood streets. As part of the EA, TxDOT provided documentation from the State Historical Preservation Officer ("SHPO") that stated the project would not have an adverse impact on neighborhood historical properties. On February 25, 1998, the FHWA issued a finding of no significant impact ("FONSI").[6]
*676 TxDOT divided construction on the U.S. 59/Spur 527 project into three phases. In 1999, TxDOT began construction on Phase One, which involved reconstructing and depressing the travel lanes of U.S. 59 from Shepard to Mandell. That segment is substantially complete. Phase Two primarily involves construction of the following: (1) southern half of the U.S. 59 main lanes, (2) temporary bridges at Graustark and Montrose, (3) northbound Spur 527 main lanes, (4) southbound Spur 527 frontage road, and (5) permanent Main Street exit ramp.[7] Phase Three is essentially a mirror image of Phase Two and provides for the construction of: (1) the northern half of the U.S. 59 main lanes, (2) southbound Spur 527 main lanes, and (3) permanent Graustark and Montrose arch bridges.[8]
In 2002, TxDOT submitted to the FHWA a re-evaluation of the U.S. 59/Spur 527 project that addressed further design considerations for Phase Two, the Mandell to Smith Street portion of the project. TxDOT sought the FHWA's concurrence regarding the 1998 FONSI that "no further environmental documentation or public involvement is required for this project," and the FHWA concurred in July 2002. Accordingly, TxDOT awarded the construction contract to a private contractor in August 2002 pursuant to its bidding process.[9]
At the time the contract was awarded, TxDOT's construction plan called for complete closure of Spur 527 for the duration of the project.[10] However, based on public requests, TxDOT reconsidered its decision to completely close Spur 527 and revised the project. By October 2002, TxDOT developed a plan which would allow at least one outbound lane to remain open at all times and two outbound lanes to remain open for half of the project.[11] Construction was scheduled to commence in February 2003 and last approximately 33 months. However, the City of Houston requested TxDOT suspend the project until after the Super Bowl festivities on February 1, 2004, and TxDOT accommodated the City's request. The start date for Phase Two of the U.S. 59/Spur 527 project was reset for February 13, 2004.
In anticipation of the upcoming construction project, TxDOT prepared a Supplemental Report detailing its U.S. 59/Spur 527 traffic control plan in January 2004. Under this plan, inbound traffic is detoured to a new Main Street exit off U.S. 59, a temporary ramp that is currently under construction.[12] From this ramp, *677 traffic can flow into downtown on Main or connect with several other downtown streets, such as Fannin and San Jacinto. In addition, a U-turn lane from the Main Street ramp onto Garrott Street provides access to Travis Street. Inbound U.S. 59 traffic proceeding past the Main Street exit may use exits at Gray and Polk Streets. Spur 527 will continue to be accessible to outbound downtown traffic. Additionally, TxDOT and the City of Houston worked in conjunction to facilitate the flow of traffic onto U.S. 59 southbound via Webster Street. Pursuant to its revised traffic control plans, TxDOT does not purposefully direct the detour of traffic onto any adjacent arterial or neighborhood streets.[13]
To evaluate its traffic control plans and the resulting impact on traffic in the area, TxDOT requested the Texas Transportation Institute ("TTI"), which is affiliated with Texas A & M University, conduct a level-of-service ("LOS") study.[14] TTI's study concluded that, under the current traffic control plan, the LOS on arterial streets in the neighborhoods near Spur 527 will remain relatively the same during construction as prior to construction.[15] TxDOT provided a Supplemental Report to the FHWA outlining its revised traffic control plan. TxDOT also submitted the revised traffic control plan to the State Historical Commission for review. Subsequently, on January 29, 2004, the State Historic Preservation Officer concurred that TxDOT's traffic control plan would not have significant adverse effects on neighborhood historical properties.
TxDOT publicized its initial and revised traffic control plan via a series of informational meetings and talks during late 2002 through January 2004. After thorough evaluation of the traffic control plan and other possible alternatives, TxDOT's 2004 Supplemental Report concluded that the current traffic control plan minimizes construction impacts to the extent practicable and is consistent with the FHWA's FONSI, such that no further environmental evaluation is required. Therefore, TxDOT is prepared to proceed with construction of Phase Two.
CURRENT LAWSUIT
Plaintiff West Alabama Quality of Life Coalition ("WALQ") filed the instant action on December 8, 2003, alleging that Defendants United States Federal Highway Administration; Curtis Dan Reagan in his Official Capacity as Division Administrator of the U.S. Federal Highway Administration, Texas Division; Mary E. Peters in her Official Capacity as Administrator of the U.S. Federal Highway Administration; United States Department of Transportation; Norman Y. Mineta, in his Official Capacity as Secretary of Transportation of the United States Department of Transportation; Texas Transportation Commission; John W. Johnson in his Official Capacity as Commissioner of the Texas Transportation Commission; the City of Houston; Lee P. Brown in his Official *678 Capacity as Mayor of Houston; Metropolitan Transit Authority of Harris County, and Shirley A. Delibero in her Official Capacity as President and Chief Executive Officer of the Metropolitan Transit Authority of Harris County failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f(2000), the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470-470x-6(2000), and the Administrative Procedures Act ("APA"), 5 U.S.C. § 706 et seq. (2000).[16] As relief, Plaintiff seeks a permanent injunction to halt the construction project on U.S. 59/Spur 527 until Defendants comply with the NEPA, NHPA, and APA statutory requirements. On January 20, 2004, WALQ filed its First Amended Complaint.
Specifically, WALQ argues that Defendants failed to comply with the NEPA and NHPA by failing to fully analyze all impacts of TxDOT's traffic control plan on neighboring communities and failing to involve the public in the formation of the construction plan. WALQ contends that the project will cause a major disruption of traffic flow in and out of the central business district. WALQ also claims that the FHWA and TxDOT failed to evaluate the impact of that traffic on the surrounding neighborhoods. Accordingly, on January 26, 2004, WALQ filed its Motion for Preliminary Injunction seeking to enjoin Defendants from proceeding with Phase Two of the U.S. 59/Spur 527 reconstruction project either permanently or until additional environmental and historical analyses, including indirect and/or secondary impacts of traffic diversion, are completed.
In response, Defendants contend that they are in full compliance with all the NEPA, NHPA, and APA statutory requirements and oppose WALQ's preliminary injunction request. In support of their position that they have fully complied, Defendants submitted a partial Administrative Record including the 1985 Final Environmental Impact Statement ("FEIS"), July 1991 EA[17], 1997 Revised EA, 1998 FONSI, 2002 Re-Evaluation, and January 15, 2004 Supplemental Report.
LAW AND ANALYSIS
As stated previously, a preliminary injunction's purpose is to preserve the status quo, prevent irreparable injury to the parties, and "preserve the court's ability to render a meaningful decision" after a trial on the merits. Meis, 511 F.2d at 656 (5th Cir.1975); see also Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92, 93 (5th Cir.1974). Thus, a court may grant a preliminary injunction, even though the outcome of the lawsuit itself is uncertain. See Meis, 511 F.2d at 656; Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991). A preliminary injunction is an extraordinary remedy and must be supported by specific findings of the court. Placid Oil Co. v. United States Dept. of Interior, 491 F. Supp. 895, 904 (N.D.Tex.1980).
In this case, Plaintiff WALQ has the heavy burden to clearly show that a preliminary injunction should be granted. Lakedreams, 932 F.2d at 1107; Kern River Gas Transmission v. Coastal Corp., 899 F.2d 1458, 1462 (5th Cir.1990); Allied Mktg. Group, Inc. v. CDL Mktg., Inc., 878 *679 F.2d 806, 809 (5th Cir.1989); Hardin v. Houston Chronicle Publ'g Co., 572 F.2d 1106, 1107 (5th Cir.1978). Thus, to successfully obtain a preliminary injunction, WALQ must demonstrate: (1) a substantial likelihood of success on the merits of its claim; (2) a substantial threat of irreparable injury or harm for which there is no adequate remedy at law; (3) that the threatened injury to WALQ outweighs any harm that the injunction might cause to Defendants; and (4) that the injunction will not disserve the public interest. DSC Communications Corp. v. DGI Techs., Inc., 81 F.3d 597, 600 (5th Cir.1996); Cherokee Pump & Equip., Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir.1994); Canal Auth. of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974).
The decision over whether to grant or deny a preliminary injunction is within the discretion of the district court and may be reversed on appeal only for an abuse of discretion. Allied Mktg. Group, Inc., 878 F.2d at 809; Canal Auth. of Florida, 489 F.2d at 572. Relief must be denied unless the facts and law clearly favor the moving party. See id. at 573. Therefore, if WALQ fails to meet its burden on any one of the four required elements, this Court must deny injunctive relief. Miss. Power & Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir.1985); see also Clements Wire & Mfg. Co. v. NLRB, 589 F.2d 894, 897 (5th Cir.1979). The Court will address each element of a preliminary injunction in turn.
A. Success on the Merits
To obtain a preliminary injunction, Plaintiff must first show a substantial likelihood that it would succeed on the merits of its claims once the case proceeds to a full and complete trial. Lakedreams, 932 F.2d at 1107. To clarify, "[a] party seeking a preliminary injunction does not have to prove its claims at this stage of the proceedings, only that it is likely to succeed on the merits." Puerto Rico Conservation Found. v. Larson, 797 F. Supp. 1066, 1070 (D.Puerto Rico 1992). Therefore, WALQ must demonstrate to this Court a substantial likelihood that it would succeed on the merits of its National Environmental Policy Act, National Historic Preservation Act, and Administrative Procedures Act claims at trial.
1. National Environmental Policy Act
The goal of NEPA is to protect the environment by requiring federal agencies to evaluate significant environmental impacts before undertaking major actions. See 42 U.S.C. § 4321 (2000); 42 U.S.C. § 4332(2) (2000). Therefore, NEPA endeavors to "ensure that government agencies act on full information and that interested groups have access to such information." Sierra Club v. Forest Serv., 46 F.3d 835, 837 n. 2 (8th Cir.1994). NEPA requires federal agencies to take a "hard look" at the environmental consequences of their actions and consider reasonable alternatives. See 42 U.S.C. §§ 4321-4370f; Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976); see also Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir.2000) (indicating the court's role is to ensure that agencies take a "hard look" at the environmental consequences of their actions by disclosing all of the environmental impacts).
During the NEPA process, agencies may prepare an EIS, which includes a review of all the reasonably foreseeable environmental impacts associated with the federal agency's contemplated actions. 42 U.S.C. § 4332(2)(C). To determine whether an EIS is called for, agencies often prepare an EA, which is not as detailed as an EIS, but includes an examination of the environmental impacts of the project and *680 potential alternatives. See 40 C.F.R. § 1508.9. If the EA concludes that the impacts of the proposed action will be significant, an EIS is required. Id. If the impacts are not significant, a finding of no significant impact ("FONSI") may be issued allowing the project to begin, and no additional NEPA analysis is required by the agency unless the conclusions of the EA are successfully challenged. See 40 C.F.R. §§ 1508.9, 1508.13.
Thus, NEPA mandates the procedures by which agencies must consider the environmental impacts of their actions, but it does not dictate the substantive results of that consideration. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989); see also Tillamook County v. United States Army Corps of Eng'rs, 288 F.3d 1140, 1143 (9th Cir.2002); Goos v. I.C.C., 911 F.2d 1283, 1293 (8th Cir.1990). As a procedural statute, NEPA requires that federal agencies assess the environmental consequences of federal actions. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978). While the procedural requirements of NEPA are to be strictly complied with, the court has discretion to decline an injunction even where deviations from prescribed procedures have occurred. Town of Huntington v. Marsh, 884 F.2d 648, 653 (2d Cir.1989).
2. National Historic Preservation Act
The NHPA was enacted to encourage the preservation and protection of the United States' historic and cultural resources. See 16 U.S.C. § 470 (2000). The Act recognizes that historic properties are being lost or substantially altered and preservation is in the public interest. Id. However, like the NEPA, the NHPA is a procedural statute. See 16 U.S.C. §§ 470-470x-6. The statute does not create an obligation to preserve or mitigate damage to any historic property. See id. The NHPA process merely requires Defendants assess the adverse effects of any "undertaking." 16 U.S.C. § 470f (2000).
Specifically, the Act mandates that agencies involved in expending federal funds on a project must, prior to the utilizing the funds, "take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register." Id. NHPA analyses may be conducted simultaneously with NEPA analyses. 36 C.F.R. § 800.8. If an undertaking will affect historical properties, agencies are to consult with the State Historic Preservation Officers ("SHPO"). 16 U.S.C. § 470a(b)(3)(I) (2000). If a federal agency fails to comply with NHPA's procedural steps, affected individuals may seek judicial enforcement. See 16 U.S.C. § 470; Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1158-60 (9th Cir.1998).
3. Administrative Procedures Act
While Plaintiff's complaint alleges that Defendants' proposed actions violate the NEPA and NHPA, these statutes do not provide independent causes of action. 5 U.S.C. § 701 et seq. (2000); see, e.g., Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 882, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132, 1135 (9th Cir.1998). Therefore, this Court must review Defendants' conduct under the guise of the Administrative Procedures Act ("APA"). Id.
The APA provides for judicial review of challenges to final agency action. See 5 U.S.C. § 701 et seq., Sierra Club v. Glickman, 67 F.3d 90, 96 (5th Cir.1995); Sierra Club v. Yeutter, 926 F.2d 429, 439-40 (5th Cir.1991); Avoyelles Sportsmen's *681 League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983); Nat'l Wildlife Fed'n v. Coleman, 529 F.2d 359, 371-72 (5th Cir.1976). Section 706(2)(A) of the APA directs a reviewing court to affirm final agency action, unless that action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accord with the law." 5 U.S.C. § 706(2)(A) (2000); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). Furthermore, the APA places the burden of proof on the plaintiff to show the defendant agency's action should be overturned. See Public Citizen v. U.S. E.P.A., 343 F.3d 449, 455 (5th Cir.2003); Sierra Club v. Marita, 46 F.3d 606, 617 (7th Cir.1995).
Under the APA, judicial review of agency action is narrow in scope and designed to determine whether the agency has examined all relevant data and provided a reasoned explanation of its decision. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989); Di Vosta Rentals, Inc. v. Lee, 488 F.2d 674, 678 (5th Cir.1973). In a broad sense, courts are not to determine the correctness of an agency's action, but whether the challenged action is legal. See Di Vosta Rentals, Inc., 488 F.2d at 678. Thus, a reviewing court may not substitute its own judgment for that of the agency. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 555, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978); Citizens to Pres. Overton Park, Inc., 401 U.S. at 410, 91 S. Ct. 814. If the Court is satisfied with the agency's review of the issue, no further inquiry is required. See Stop H-3 Assoc. v. Dole, 740 F.2d 1442, 1464-65 (9th Cir.1984).
Here, Plaintiff WALQ argues Defendants must evaluate the environmental impacts of their proposed action, including the diversion of traffic, either intentionally or unintentionally, from the U.S. 59/Spur 527 construction zone onto city streets and failure to do so violates 5 U.S.C. § 706(2)(A). Plaintiff asserts that traffic will inevitably divert and impact residential areas as well as institutions, businesses, and historical districts adjacent to the affected city streets. WALQ contends that Defendants wholly failed to analyze this increase in traffic in any of their NEPA or NHPA documentation, which was a reasonably foreseeable impact of the proposed project. Further, Plaintiff argues that, under NEPA, transportation impacts caused by construction activities are required to be analyzed in the environmental documentation.[18] WALQ contends that Defendants' 1991 EA and its 2002 Re-Evaluation are insufficient because they do not address the indirect or secondary impacts of the construction project on traffic. Thus, Plaintiff maintains these allegations illustrate violations of NEPA and the APA.
Plaintiff refers the court to two federal regulations, 40 C.F.R. § 1502.16(b) and 40 C.F.R. § 1508.8(b), to support its position that NEPA requires the agencies to present and analyze a detailed traffic control plan as part of the indirect or secondary construction impacts set out in an EIS. Section 1502.16 generally sets forth the types of considerations and discussions that must be addressed in an EIS, and section (b) specifically illustrates that "[i]ndirect effects and their significance" must be addressed. 40 C.F.R. §§ 1502.16 & 1502.16(b). "Effects" includes both direct and indirect effects. 40 C.F.R. § 1508.8. *682 Indirect effects are those "which are caused by the action and are later in time or father removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8(b). Indirect effects includes "growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." Id. The terms "effects" and "impacts" are used interchangeably in the regulations and include ecological, aesthetic, historic, cultural, economic, social, or health effects, whether direct, indirect, or cumulative. Id.
Defendants counter that neither of these regulations require agencies to present and analyze a detailed traffic control plan as an indirect or secondary construction impact. Defendants rebut the cases cited by Plaintiff arguing they do not address the issue of temporary construction impacts.[19] Defendants direct the Court to its multiple revisions of the U.S. 59/Spur 527 project as evidence that it did consider the impact of traffic diversion. TxDOT argues that it made extensive efforts to address temporary construction impacts including the 1985 EIS, 1997 EA, 2002 Re-Evaluation, and TTI analysis, which all showed that there will be no significant deterioration in the LOS on the arterial streets adjacent to Spur 527 during the reconstruction project. Defendants maintain these activities exceed the minimum requirements called for by NEPA.
Defendants also refer the Court to 23 C.F.R. § 771.113(a), which states that "final design activities ... shall not proceed until" either the action is classified as a categorical exclusion, a FONSI has been approved, or a final EIS has been approved. Because Defendants argue that traffic control plans fall within the auspices of final design activities, they were not required to analyze this information in an EA or EIS. Further, Defendants maintain that NEPA does not require the setting forth of detailed traffic control plans in environmental documents. See City of Alexandria v. Slater, 198 F.3d 862, 869-70 (D.C.Cir.1999); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989) (stating "it would be inconsistent with NEPA ... to demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act").
Judicial review of the agencies' EA, EIS, or FONSI under the APA is limited to determining whether the agencies' decisions were arbitrary, capricious, or an abuse of discretion. See TOMAC v. Norton, 240 F. Supp. 2d 45, 46-47 (D.D.C.2003) (citing Public Citizen v. Nat'l Highway Traffic Safety Admin., 848 F.2d 256, 266-67 (D.C.Cir.1988)). Based on the partial administrative record provided, arguments of counsel at hearing, and applicable law, this Court determines that Defendants complied with the NEPA process. Accordingly, Defendants' decisions regarding the preparation and contents of their EA, EIS, or FONSI cannot be classified as arbitrary, capricious, or an abuse of discretion.
In addition to NEPA violations, Plaintiff also contends that Defendants' failure to assess the adverse effects of the construction project on the surrounding historical districts violates the NHPA, 16 U.S.C. § 470f (2000). Plaintiff argues Defendants *683 lack of analysis is arbitrary and capricious under the APA.
Defendants cite to the 1985 EIS, 1991 EA, 1997 EA, and 2002 Re-Evaluation as evidence that the agencies addressed and demonstrated compliance with NHPA requirements. In addition, Defendants received approval from the State Historical Preservation Officer ("SHPO") and provided a recent letter to the Texas Historical Commission that Defendants will continue to assure compliance with 16 U.S.C. § 470f. In its analysis, Defendants identified areas listed on the National Historic Register and considered the impact of the project on those areas.
This Court finds that Defendants' NHPA analysis appropriate. Plaintiff failed to present any evidence that Defendants' acts would have an adverse impact on any sites or objects listed on the National Historic Register. Further, at the hearing, Plaintiff presented only one witness, Mr. Peter Brown, to briefly address land use impacts and the potential harm that an increase in traffic level-of-service ("LOS") would cause. At no time did Plaintiff address specific issues related to historic properties or sites other than to argue that the increase in traffic and resultant environmental consequences may have an impact on historical areas. In essence, Plaintiff did not show that Defendants' NHPA analyses were violative of § 706 of the APA.
Furthermore, an agency's acts satisfy the statutory requirement that the federal agency take into account the effect of the undertaking on any registered site or objects when the agency receives a concurrence by the State Historical Preservation Officer ("SHPO") as well as implemented efforts to mitigate the impacts. See, e.g., Sierra Club v. Clark, 774 F.2d 1406, 1410 (9th Cir.1985). Here, the Defendants received a concurrence from the Texas SHPO. Based on the foregoing, this Court determines that Defendants properly evaluated the effect of the undertaking as required by 16 U.S.C. § 470f, and Defendants' decisions regarding the NHPA process were not arbitrary, capricious, or an abuse of discretion.
4. Conclusion Regarding Success on the Merits
Despite Plaintiff WALQ's arguments to the contrary, this Court determines that Defendants have fully complied with both NEPA and NHPA. Defendants' actions were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and, thus, not in violation of § 706(2)(A) of the APA. Therefore, the Court finds Plaintiff has not shown it is substantially likely to succeed on the merits of its claims once the case proceeds to a full and complete trial. Notwithstanding this determination, the Court will also address the parties' remaining arguments with respect to a preliminary injunction.
B. Irreparable Harm
In addition to showing success on the merits of its claim, WALQ must also show that it will suffer irreparable harm if an injunction is not granted. DSC Communications Corp., 81 F.3d at 600; Cherokee Pump & Equip., Inc., 38 F.3d at 249. To establish a substantial threat of irreparable injury or harm, WALQ must clearly show some concrete injury or environmental harm resulting from the Defendants' actions. See Fund for Animals v. Clark, 27 F. Supp. 2d 8, 14 (D.D.C.1998); George Washington Home Owners Ass'n v. Widnall, 863 F. Supp. 1423, 1427 (D.Colo.1994). To be considered irreparable, the injury must be permanent or of long duration. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987); see also Canal Auth. of Florida, 489 F.2d at 577. Irreparable *684 harm is also considered to be a harm that cannot be redressed by either an equitable or legal remedy following trial. Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.1994). Irreparable harm is neither speculative nor remote, but is actual and imminent. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). This element is met if WALQ can prove it is likely to suffer this type of harm before a trial on the merits. Puerto Rico Conservation Found., 797 F.Supp. at 1071.
Here, Plaintiff represents that irreparable harm will occur because it will be impossible to revert to the status quo once Phase Two of the construction project is underway.[20] Plaintiff also represents that the increased level of traffic on city streets as a side-effect of the construction project will result in permanent damage to neighborhoods adjacent to West Alabama and Richmond streets. Plaintiff further contends that the resultant increase in traffic on adjacent city streets may lead to sudden, irreversible impacts to land uses adjacent to city streets. Last, Plaintiff states that the potential increase in traffic raises the likelihood that citizens working and residing in these adjacent neighborhood areas may suffer personal injury or death, which amounts to irreparable harm.
Plaintiff argues these are the harms that NEPA is designed to prevent, especially when agencies, like Defendants, make decisions without considering the information that the NEPA and NHPA seeks to place before the decision-maker and the public. Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir.1989). When the opportunity to review environmental factors is lost, WALQ asserts that the harm is irreparable and an injunction is necessary to preserve the decision-making process. Ass'n Concerned About Tomorrow, Inc. v. Dole, 610 F. Supp. 1101, 1119 (N.D.Tex.1985). Thus, WALQ contends there is a presumption of harm because of Defendants' alleged violation of NEPA's procedures requiring informed decision-making. Marsh, 872 F.2d at 500.
This Court notes that in environmental litigation, other courts have granted preliminary injunctions. Canal Auth. of Florida, 489 F.2d at 574 (citing W. Va. Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir.1971); Boston Waterfront Residents Ass'n, Inc. v. Romney, 343 F. Supp. 89 (D.Mass.1972); Scherr v. Volpe, 336 F. Supp. 882 (W.D.Wis.1971)). However, "preliminary injunctions have been issued not merely because some impact upon the environment has been alleged, but because the threatened harm has been properly shown to be irreparable." Id. If the plaintiff does not allege and prove an irreparable harm, the court may deny injunctive relief. Id.
Here, while there may be temporary effects of the construction project such as inconvenience, increased traffic, and increased noise and air pollution felt by both citizens who work and reside within proximity of the project and commuters who traverse U.S. 59 and Spur 527, the project has a life expectancy of 33 months, which is not permanent or of long duration. Aside from its arguments concerning traffic congestion, WALQ did not present any evidence that Defendants failed to fully assess other potential environmental harms. Furthermore, WALQ failed to clearly show a concrete injury or environmental harm that would result from the Defendants' actions. WALQ presented no evidence of increased air or noise pollution. Therefore, the Court determines that *685 WALQ failed to establish the second prong necessary for a preliminary injunction by not showing that the alleged harm created by Defendants proceeding with the U.S. 59/Spur 527 project is irreparable.
C. Balancing of the Equities
The third element required for a preliminary injunction is the balancing of the equities. DSC Communications Corp., 81 F.3d at 600; Cherokee Pump & Equip., Inc., 38 F.3d at 249. Here, the court evaluates the severity of the impact on Defendants if the temporary injunction be granted and the hardship that would occur to WALQ if the injunction is denied. See id. Likewise, in balancing the interests of the parties, courts consider the competing claims of injury and must balance the hardships on each party of either granting or withholding the requested relief. Pappan Enters. v. Hardee's, 143 F.3d 800, 805 (3d Cir.1998).
In the case-at-hand, Plaintiff WALQ argues that the balance of equity favors granting a preliminary injunction because environmental injury is likely to occur. In contrast, Defendants contend that the harm suffered by WALQ does not clearly outweigh the harm suffered by Defendants. At the hearing, Defendants testified that, if an injunction is granted, TxDOT will lose $7.5 million dollars as a result of a six month to one year delay in the construction project due to increased cost of contract materials from the time of contract negotiation.[21] In addition, Defendants' testimony at the hearing plainly stated that this Phase Two portion of the entire Southwest Freeway Project will need to be completed at some point due to aging bridges, increasing costs to repair existing structures,[22] inadequate shoulder space on Spur 527, lack of appropriate clearance levels under existing bridges, and the need to extend the HOV lanes to accommodate the city's growth and expected increased traffic flow on the Southwest Freeway.
After weighing the potential injury and hardships of each party, the Court determines that Plaintiff fails to demonstrate that the balance of equities affirmatively tips in its favor. Therefore, Plaintiff has failed to establish the third element needed for a preliminary injunction.
D. Public Interest
The final factor a court considers in its decision to grant or deny a preliminary injunction is whether an injunction is in the public interest. DSC Communications Corp., 81 F.3d at 600; Cherokee Pump & Equip., Inc., 38 F.3d at 249. Thus, WALQ must show that it is in the public interest to enjoin construction on Phase Two of the U.S. 59/Spur 527 project.
When deciding whether to issue an injunction, courts must remain mindful of the public consequences. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982). While courts have generally found that the public interest in requiring agencies to comply with NEPA prior to a project proceeding is sufficient to warrant an injunction, "there is no general presumption that an alleged NEPA violation will in all cases outweigh other public interests." Provo River Coalition v. Pena, 925 F. Supp. 1518, 1525 (D.Utah 1996) (citing Fund for Animals, *686 Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.1992); Concerned Citizens, etc. v. Sec'y of Transp., 641 F.2d 1, 7-8 (1st Cir.1981); Thompson, 811 F.Supp. at 641); see also Realty Income Trust v. Eckerd, 564 F.2d 447, 456 (D.C.Cir.1977); S. Utah Wilderness Alliance v. Thompson, 811 F. Supp. 635, 641 (D.Utah 1993).
Here, Plaintiff WALQ argues it is in the public interest to halt construction so that Defendants may more fully comply with NEPA, NHPA, and APA requirements. Defendants respond that they have fully complied with the respective statutory procedures. Defendants also argue that traffic control plans are not a crucial step in the NEPA process.
In support of their position, Defendants adequately demonstrated a thorough review of all available options regarding construction design and minimizing construction impacts. Defendants provided the Court with a partial administrative record, informal studies, and a formal study from TTI, all of which indicate the effect of this project on traffic in the adjacent areas will not drastically increase from its present level-of-service. While Defendants are unable to assure this Court or the community that traffic will not divert into the surrounding city streets, Defendants indicated that their overall construction management plan will attempt to prevent that occurrence by continuously providing information via various media outlets to educate the driving public regarding alternate routes, additional exits available on U.S. 59, available lanes on Spur 527, and mass-transit options.[23] Defendants will also maintain availability of an internet website displaying up-to-date traffic conditions, routes available, and current construction status.[24]
After considering the public consequences of halting this project as a whole and not just the consequences to the individual parties before the Court, this Court determines that a preliminary injunction is not in the public interest at the present time. Thus, Plaintiff failed to establish the final prong essential to a preliminary injunction.
CONCLUSION
From the outset, Plaintiff WALQ had the burden of proof to establish all four prerequisites of a preliminary injunction. Initially, WALQ had to demonstrate to the court that it would likely succeed on the merits of its lawsuit, and, to do so, WALQ also carried the burden of demonstrating Defendants' acts were a violation of the Administrative Procedures Act ("APA"). Because this Court found that Defendants' acts are not a violation of the APA, Plaintiff failed to show a substantial likelihood of success on the merits. Therefore, Plaintiff is not entitled to a preliminary injunction. Despite this initial failure, the Court further determined that Plaintiff did not meet its burden on the three remaining elements necessary to obtain a preliminary injunction. Accordingly, the Court hereby
ORDERS that Plaintiff's Motion for Preliminary Injunction is DENIED.
NOTES
[1] Approximately 84,000 vehicles per day currently use Spur 527.
[2] The reconstruction of Spur 527 involves a 1.75 mile stretch of the overall 13.4 miles of the Southwest Freeway Project.
[3] At that time, specific plans regarding reconstruction of Spur 527 did not exist.
[4] An EIS is a detailed written statement as required by section 4332(2)(C) of NEPA, which specifically obligates all federal agencies to develop an EIS for any "major [f]ederal action" that will significantly affect "the quality of the human environment." 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11.
[5] An EA is a concise public document prepared by the federal agency that serves to: (1) briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact ("FONSI"); (2) aid the agency in complying with NEPA when no EIS is necessary; and (3) facilitate preparation of an EIS when one is necessary. 40 C.F.R. § 1508.9.
[6] A FONSI is a document prepared by the federal agency that presents the reasons why an action "will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared." 40 C.F.R. § 1508.13.
[7] During Phase Two, all U.S. 59 traffic will be moved to the north side of the freeway. Spur 527 northbound will be closed until the end of the project. The Blodgett entrance ramp to westbound U.S. 59 will be closed. At the hearing, TxDOT indicated that outbound Spur 527 will have two lanes open for one-half of the project and one lane open for the entire project.
[8] During Phase Three, all U.S. 59 traffic will be moved to the south side of the freeway. All southbound Spur 527 lanes will be closed. However, one lane will be temporarily open for southbound traffic on the northbound Spur 527 roadway.
[9] Williams Brothers Construction Company was awarded the contract as it submitted the lowest bid, $71,109,488.10. To date, Williams Brothers has completed approximately 40% of the project.
[10] In April 2002, TxDOT developed a traffic control plan based on complete closure of Spur 527 that diverted traffic through the adjacent arterial streets. However, the April 2002 plan was later withdrawn when TxDOT revised the construction project to allow for at least one outbound lane to be available on Spur 527 at all times.
[11] The additional cost of the revisions was over $3,000,000.00.
[12] In order to open the Main Street exit ramp, TxDOT must remove support columns from underneath Spur 527. Therefore, a test period to determine the effect of this project on traffic is not possible as both the new Main Street exit and the inbound section of Spur 527 cannot be utilized simultaneously. TxDOT stated that some outbound lanes will remain open on Spur 527, but all inbound lanes will be closed during the project.
[13] At the hearing, TxDOT conceded that drivers may, of their own accord, choose arterial or neighborhood streets as an alternative to TxDOT's proposed routes. However, TxDOT's January 2004 traffic control plan does not call for the diversion of traffic onto adjacent streets.
[14] The LOS scale grades traffic from A (free flowing) to F (extreme congestion).
[15] The arterial streets at issue are primarily those running parallel to U.S. 59 and providing access to the central business district, such as Westheimer, West Alabama, Richmond, and Bissonnet.
[16] On January 29, 2004, Plaintiff filed a Notice of Dismissal Without Prejudice as to the following Defendants: (1) City of Houston; (2) former Mayor Lee P. Brown in his Official Capacity; (3) Metropolitan Transit Authority of Harris County; and (4) Shirley A. Delibero in her Official Capacity as President and Chief Executive Officer of the Metropolitan Transit Authority of Harris County.
[17] The July 1991 EA was revised in March 1992, August 1992, and October 1992.
[18] As support for its position, WALQ cites to 40 C.F.R. § 1508.8(b); § 1502.16(b); and Cobble Hill Ass'n v. Adams, 470 F. Supp. 1077, 1088 (E.D.N.Y.1979) (stating that the federal defendants were obligated to consider, assuming any NEPA obligations attached, traffic detour and dispersion plans to mitigate the effects of a possible increase in local traffic).
[19] Plaintiff cites to the following cases as support for its evaluation of indirect impacts: See Coalition for Canyon Pres. v. Bowers, 632 F.2d 774 (9th Cir.1980); N. Crawfish Frog v. Fed. Highway Admin., 858 F. Supp. 1503 (D.Kan.1994); Rankin v. Coleman, 394 F. Supp. 647 (E.D.N.C.1975).
[20] However, the Court notes that Plaintiff's primary complaint is not with the construction project itself, but with the resultant effects of the construction project on traffic in the U.S. 59/Spur 527 vicinity.
[21] This Court notes that some courts have utilized excessive delay or costs as a factor in denying a preliminary injunction. Half Moon Bay Fishermans' Mktg. Ass'n v. Carlucci, 857 F.2d 505, 512-14 (9th Cir.1988); Southwest Williamson County Cmty. Ass'n Inc. v. Slater, 67 F. Supp. 2d 875, 885-86 (M.D.Tenn.1999); Texas v. United States Forest Serv., 654 F. Supp. 289, 295 (S.D.Tex.1986).
[22] At the hearing, TxDOT estimated maintenance and repair costs on Spur 527 at approximately $350,000 in 2002 and $400,000-$450,000 in 2003.
[23] The Court found the testimony of Mr. Gilbert Johnson, Director of Transportation Planning and Development for TxDOT's Houston District, regarding the overall construction project and TxDOT's commitment to ongoing monitoring of traffic management and construction management to be especially credible. TxDOT's counsel, Mr. Jack F. Gilbert, assured the Court that Mr. Johnson will personally continue to honor that commitment during the entire evolution of this 33 month project.
[24] The website address is http://traffic.houstontranstar.org/us59-spur527/. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/391143/ | 650 F.2d 1124
UNITED STATES of America, Plaintiff-Appellee,v.Tommy Duane TUNNELL, Defendant-Appellant.
No. 80-1597.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted April 8, 1981.Decided July 13, 1981.
Mark Healy Bonner, Asst. U. S. Atty., Los Angeles, Cal. (argued), Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., on brief, for defendant-appellant.
Stephen E. Hoffman, Frank & Milchen, San Diego, Cal., for ch. plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before TUTTLE,* ALARCON and REINHARDT, Circuit Judges.
TUTTLE, Circuit Judge:
1
Tommy Duane Tunnell appeals his conviction under 21 U.S.C. § 176a.1 On January 10, 1968, Tunnell and four other individuals were indicted for violations of federal narcotics laws. In Count Five2 of the indictment Tunnell and a co-defendant, Hoover, were charged with having "knowingly received, concealed and facilitated the transportation and concealment" of marihuana which they knew had theretofore "been imported and brought into the United States contrary to law."
2
On February 29, 1968, the jury found Tunnell3 guilty as charged. The matter was continued for sentencing until March 25, 1968. Tunnell, however, failed to appear at the sentencing hearing; consequently, his bond was forfeited and a bench warrant was issued for his arrest. Tunnell remained a fugitive until May, 1980. On August 18, 1980, he was sentenced to five years' imprisonment.4
3
On appeal, Tunnell contends that he was denied due process at trial because the jury was instructed in accordance with the presumption contained in 21 U.S.C. § 176a. This presumption, which permitted the jury to presume or infer that the marihuana had been illegally imported from proof that the defendant was in possession of the marihuana, was declared unconstitutional in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1960). The Leary decision was given full retroactivity in United States v. Scott, 425 F.2d 55, 59 (9th Cir. 1970) (en banc). Appellant argues that he is entitled to a reversal of his conviction because the jury was given this unconstitutional instruction. We agree.
4
In United States v. Scott, supra, we held that where an instruction permitting the inference was given in a jury trial, the conviction must be reversed unless the giving of the instruction under the circumstances of the case was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This Circuit has consistently taken this approach to convictions under § 176a. See e. g., United States v. Tapia-Lopez, 521 F.2d 582 (9th Cir. 1975); United States v. Teran, 434 F.2d 605 (9th Cir. 1970); Feldstein v. United States, 429 F.2d 1092 (7th Cir. 1970); United States v. Mahoney, 427 F.2d 658 (9th Cir. 1970). Thus, the issue before this Court is whether the giving of the jury instruction on the § 176a presumption in Tunnell's case was harmless beyond a reasonable doubt.
5
The government's evidence that Tunnell had possession of the marihuana and had knowledge of its illegal importation was contained primarily in the testimony of one government agent, Lusardi. Lusardi testified that he had a conversation with Tunnell, co-defendant Hoover, and an individual named Peter Amaranthus, who was deceased by the time of trial, during which Lusardi arranged to purchase from them some marihuana which Tunnell told him had been imported from Lebanon. Lusardi testified further that he met with Tunnell and Amaranthus later that day to consummate the prearranged purchase, saw the marihuana between them and was handed the marihuana by Tunnell. He testified that he then left the room, ostensibly to get money, but returned with several other government agents and made the arrests. When Tunnell took the stand, he flatly denied having told Lusardi that he could sell him some marihuana which was imported from Lebanon, having had possession and having handed the marihuana to Lusardi. Despite Tunnell's denial, the jury returned a verdict of guilty. The jury, therefore, must have at least believed Lusardi's testimony on the issue of possession.
6
The government contends that the fact that the jury must have believed Lusardi's testimony on the issue of possession means that they also had to have believed Lusardi's testimony regarding the issue of knowledge. They argue that instructing the jury on the presumption, therefore, had no impact on the outcome of the case and was harmless beyond a reasonable doubt. The government analogizes United States v. Feldstein, supra, where the Court held the instruction on the § 176a presumption to be harmless beyond a reasonable doubt because the testimony the jury must have believed in order to have found possession proved the requisite knowledge and intent.
7
Feldstein, however, is distinguishable from the case at hand. In Feldstein, the court found that the particular evidence that the jury must have believed in order to have found possession unequivocally showed knowledge on the defendant's part that the marihuana would be acquired in Mexico, smuggled into the United States and then concealed and transported in the United States. In contrast, Lusardi's testimony regarding knowledge of importation was entirely separate from his testimony regarding possession; therefore, the jury could have believed Lusardi's testimony on the issue of possession and relied on the presumption in order to find against Tunnell on the issue of knowledge of importation.
8
Instructing the jury in the § 176a presumption has been held consistently to be harmless error in smuggling cases where the defendant was apprehended with undeclared marihuana while in the process of crossing, or after having just crossed, the border into the United States. See, e. g., United States v. Teran, supra; Zaragoza-Almeida v. United States, 427 F.2d 1148 (9th Cir. 1970); United States v. Simon, 424 F.2d 1049 (9th Cir. 1970). The rationale underlying these decisions, like the rationale in Feldstein, was that the jury had to have believed the government's evidence of possession in order to have found the defendant guilty and that knowledge that the marihuana had been illegally imported was clearly inferable from the fact of possession.
9
These smuggling cases, however, are closer to Feldstein and distinguishable from the case at hand. Here there was no close link between the fact of possession and the fact that the marihuana was imported. The jury would have had to decide first whether they believed Lusardi's testimony regarding the fact of possession and then whether they believed his testimony or that of Tunnell regarding Tunnell's alleged statement that the hashish had come from Lebanon. We simply have no way of knowing whether the jury resolved this second credibility issue in favor of the government or relied on the presumption as they had been instructed they were entitled to do. Since there is no way of knowing how the jury resolved the issue of knowledge of importation, we can not say that the giving of the instruction was harmless beyond a reasonable doubt. United States v. May, 431 F.2d 678, 683 (9th Cir. 1970); United States v. Scott, supra, at 60.
10
The government argues additionally that the defendant should not be able to bring this appeal in light of the fact that he disappeared after a verdict of guilty was handed down and reappeared for sentencing twelve years later. Cf., Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (appellate court may dismiss an appeal, with final prejudice, if the defendant flees after filing a notice of appeal). The government is justifiably concerned about their potential difficulty in retrying a case after twelve years; however, such does not suffice to warrant sustaining a conviction which might have been based on an unconstitutional presumption. In a similar case, United States v. Tapia-Lopez, supra, this Court reversed and remanded the conviction where the jury had been instructed on the § 176a presumption despite the fact that the defendant failed to appear at the scheduled sentencing hearing but was sentenced after he reappeared five years later.
11
REVERSED and REMANDED.
*
Honorable Elbert P. Tuttle, Senior Circuit Judge, U. S. Court of Appeals, Fifth Circuit, sitting by designation
1
The section was repealed by Pub.L. 91-513, Title III, § 1101(a)(2), (9), Oct. 27, 1970, 84 Stat. 1291, 1292
21 U.S.C. § 176a provided in relevant part:
Notwithstanding any other provision of law, whoever knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned
Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.
2
Tunnell was also charged in Count Four with conspiracy to conceal, transport, and sell hashish. Prior to opening statements, a government motion to dismiss the conspiracy count was granted
3
Tunnell had proceeded to trial alone as several other defendants had pled guilty as charged
4
At the time of this appeal, Tunnell is serving concurrently the five years' sentence imposed in this case and an additional sentence of one year and one day for a passport violation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1545412/ | 128 F.2d 457 (1942)
SWEENEY
v.
PATTERSON et al.
No. 7932.
United States Court of Appeals for the District of Columbia.
Argued February 11, 1942.
Decided May 25, 1942.
Rehearing Denied June 30, 1942.
Mr. John O'Connor, of Washington, D. C., with whom Mr. William F. Cusick, of Washington, D. C., was on the brief, for appellant.
Mr. R. H. Yeatman, of Washington, D. C., for appellee Eleanor M. Patterson. Mr. Edgar Turlington, of Washington, D. C., with whom Mr. William A. Roberts, of Washington, D. C., was on the brief, for appellees Drew Pearson and Robert S. Allen. Messrs. O. Max Gardner, Harold F. McGuire, and Seymour Sheriff, all of Washington, D. C., also entered appearances for appellees Drew Pearson and Robert S. Allen.
Mr. Edmund D. Campbell, of Washington, D. C., by special leave of Court, filed a brief on behalf of American Civil Liberties Union as amicus curiae.
Messrs. Louis Ottenberg, of Washington, D. C., and Milton Handler, Ira W. Hirshfield, and Emil Schlesinger, all of New York City, by special leave of Court, filed a brief on behalf of American Jewish Committee, B'nai B'rith, the Jewish Labor Committee and the American Jewish Congress, as amici curiae.
Before MILLER, VINSON, and EDGERTON, Associate Justices.
EDGERTON, Associate Justice.
This is one of a series of libel suits which appellant brought, in various courts and against various defendants, because of an article which was written by appellees Pearson and Allen and published in appellee Patterson's newspaper, among others. The complaint states that appellant is a member of Congress from Ohio and a member of the Ohio bar. It alleges, in the usual language of libel suits, that appellees intended to and did injure his reputation; but it alleges no special damage. Appellees, in their answers, defended on grounds of privilege and truth. This appeal is from an order granting appellees' motion for judgment on the pleadings.
The article follows. We italicize those sentences which appellant says are false:[1]
"A hot behind-the-scenes fight is raging in Democratic congressional ranks over the effort of Father Coughlin to prevent the appointment of a Jewish judge in Cleveland. The proposed appointee is Emerich Burt Freed, U. S. District Attorney in Cleveland and former law partner of Senator Bulkley, who is on the verge of being elevated to the U. S. District Court. This has aroused the violent opposition of Representative Martin L. *458 Sweeney, Democrat of Cleveland, known as the chief congressional spokesman of Father Coughlin. Basis of the Sweeney-Coughlin opposition is the fact that Freed is a Jew, and one not born in the United States. Born in Hungary in 1897, Freed was brought to the United States at the age of 13, was naturalized 10 years later. Justice Department officials say he has made an excellent record as U. S. Attorney, is able, progressive, and was second on the list of judicial candidates submitted by the executive committee of the Cleveland Bar Association. First on the list was Carl Friebolin, whom Justice Department officials say they would have gladly appointed despite his age of 60, had he not eliminated himself voluntarily for physical reasons. Two others on the Bar Association's list, Walter Kinder and Harry Brainard, were eliminated because of big business or reactionary connections. Last on the list was Dan B. Cull, a former Common Pleas Court judge, and an excellent appointment except that he happens to be a Catholic and the last two judicial appointments in Ohio have been Catholics. So the Justice Department returned to the No. 2 man on the list, a Jew. Irate, Representative Sweeney is endeavoring to call a caucus of Ohio Representatives December 28 to protest against Freed's appointment."
Even if the italicized statements are false, appellant has stated no claim on which relief can be granted. The cases are in conflict, but in our view it is not actionable to publish erroneous and injurious statements of fact and injurious comment or opinion regarding the political conduct and views of public officials, so long as no charge of crime, corruption, gross immorality or gross incompetence is made and no special damage results. Such a publication is not "libelous per se."[2] We need not consider whether it is privileged. Appellant might be entitled to relief if he had lost his seat in Congress, or had lost employment, as a lawyer or otherwise, or had been put to expense, or had suffered any other economic injury, by reason of appellees' statements. We do not decide that question, since it is not before us. Appellant alleges no such injury.
Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. Since Congress governs the country, all inhabitants, and not merely the constituents of particular members, are vitally concerned in the political conduct and views of every member of Congress. Everyone, including appellees and their readers, has an interest to defend, and any one may find means of defending it. The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. Information and discussion will be discouraged, and the public interest in public knowledge of important facts will be poorly defended, if error subjects its author to a libel suit without even a showing of economic loss. Whatever is added to the field of libel is taken from the field of free debate. If other public interests are thought to outweigh, in respect to some utterances, the public interest in knowledge and debate, they call for legislative changes in public *459 law rather than judicial changes in the law of libel.
A. S. Abell Co. v. Ingham[3] and Washington Times Co. v. Bonner,[4] on which appellant relies, involved publications which charged officials with crime or gross immorality. Since no such charges are involved here, those cases are not in point. The later case of Sullivan v. Meyer[5] more than covers the present case, for the plaintiff Sullivan was not a public official; he was a representative of unofficial Citizens' Associations of the District of Columbia. His complaint stated that he had asked the Board of Education (1) to drop from the school curriculum a book which he said gave a false picture of Russian communism and (2) to give the pupils the truth about the matter instead. It alleged that the defendant's newspaper had so distorted the facts as to make it appear that the plaintiff sought to prevent pupils from knowing anything about Russia. The defendant demurred. Since his article represented Sullivan as an advocate of ignorance, and the whole matter as "farcical", it was obviously injurious to Sullivan's reputation. But this court sustained the defendant's demurrer, on the ground that the article was not "libelous per se." Though the court characterized the article as criticism or comment, the opinion and the record show that the complaint charged the defendant with injurious distortion of the facts. If, as was necessarily assumed on demurrer, the complaint was true, the defendant did distort the facts. Accordingly the case decided, though the opinion did not say, that injurious distortion of the facts, when it relates "exclusively to plaintiff's attitude towards a question of public interest" and does not "impugn his character or motives,"[6] is not libelous per se.
Affirmed.
NOTES
[1] The first and third of the italicized sentences are said to be false "insofar as the plaintiff is concerned."
[2] Sillars v. Collier, 151 Mass. 50, 23 N.E. 723, 6 L.R.A. 680; Lydiard v. Wingate, 131 Minn. 355, 359, 155 N.W. 212. Cf. Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L.R.A.,N.S., 361, 130 Am. St.Rep. 390; Ross v. Ward, 14 S.D. 240, 85 N.W. 182, 86 Am. St. Rep. 746; Snively v. Record Publishing Co., 185 Cal. 565, 198 P. 1.
The article in suit has repeatedly, though not uniformly, been held not to be libelous per se, e. g., Sweeney v. Philadelphia Record Co., 3 Cir., 126 F.2d 53; Sweeney v. Newspaper Printing Corp., 177 Tenn. 196, 147 S.W.2d 406; Sweeney v. Beacon Journal Publishing Co., 66 Ohio App. 475, 35 N.E.2d 471, appeal dismissed 138 Ohio St. 330, 34 N.E.2d 764; Sweeney v. Caller-Times Pub. Co., D.C.S.D.Tex., 41 F. Supp. 163; Sweeney v. Capital News Pub. Co., D.C.S.D.Idaho, 37 F. Supp. 355. The Court of Appeals for the Second Circuit, by a divided vote, held that it was libelous per se under the law of New York; Sweeney v. Schenectady Union Pub. Co., 122 F.2d 288; and an even division in the Supreme Court sustained that result. 62 S. Ct. 1031, 86 L.Ed. ___, rehearing denied, 62 S. Ct. 1266, 86 L.Ed. ___. But the Supreme Court wrote no opinion, and the question before it, according to our understanding, was whether the Second Circuit had correctly interpreted New York law.
[3] 43 App.D.C. 582.
[4] 66 App.D.C. 280, 86 F.2d 836, 110 A. L.R. 393.
[5] 67 App.D.C. 228, 91 F.2d 301. The court did not cite the Bonner case, which it had recently decided.
[6] 67 App.D.C. 228, 229, 91 F.2d 301, 302 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580388/ | 12 So. 3d 225 (2009)
RUDDICK
v.
McNEIL.
No. 1D09-0376.
District Court of Appeal of Florida, First District.
July 2, 2009.
Decision without published opinion Certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580507/ | 240 Minn. 60 (1953)
RUTH J. SAAF AND ANOTHER
v.
DULUTH POLICE PENSION RELIEF ASSOCIATION.[1]
No. 36,013.
Supreme Court of Minnesota.
July 24, 1953.
*61 Harry T. Lathrop, for appellant.
Smythe & Lindquist, for respondents.
MATSON, JUSTICE.
Appeal by defendant from a judgment awarding plaintiffs certain pension benefits as dependents of a deceased member of the police force of the city of Duluth.
Plaintiffs are the surviving spouse and minor child of Donald Saaf, decedent. They brought this action to recover dependency pension payments from the defendant, the Duluth Police Pension Relief Association. The district court found that plaintiffs were entitled to recover and entered a judgment from which defendant appeals.
The defendant association is operating pursuant to L. 1943, c. 267, which provides that police pension associations such as defendant may pay disability and dependency pensions in such amounts and in such manner as its articles of incorporation, constitution, and bylaws shall designate but not exceeding certain limitations prescribed in the statute. Section 1 of c. 267 provides for the payment of a disability pension when a member of such an association "has been permanently disabled physically or mentally because of any injury received or suffered while a duly authorized member of such paid municipal police department so as to render necessary his retirement from active police service." (Italics supplied.) Section 3 of c. 267 provides that dependency pensions "shall be paid to any widow, or child under 16 years of age, of any such pensioned and retired member of the police department, or to any widow, or child under 16 years of age, of any member who dies while in the service of the police department of any such city, * * *." (Italics supplied.) The defendant association's purpose is to provide its members and their widows and children with pensions. The defendant concedes *62 that plaintiffs are entitled to receive a dependency pension if any injury suffered by decedent while a member of the Duluth police force caused him permanent mental or physical disability or if decedent was a member of the defendant association at the time of his death. The trial court made findings that decedent's permanent disability and resulting death was caused by an injury received while decedent was on duty with the Duluth police department and also that the defendant association was estopped to deny that decedent was a member of the defendant at the time of his death.
We are concerned only with the issues (1) whether the evidence supports a finding that decedent, while a member of the police force, received a physical injury which was a proximate cause of his death and (2) whether upon the evidence the defendant association is estopped to deny that decedent at the time of his death was one of its members.
On March 7, 1947, the decedent, while on active duty as a police officer, was struck a stiff shoulder punch or blow on the right cheek or jaw by a person who was under the influence of liquor. The blow received had no immediate disabling effect, and decedent continued his work as a police officer during the months following the accident. Early in the summer of 1947 decedent's partner, who had been with him on the night of March 7, 1947, noticed that decedent's left eye-lid began to flicker and that decedent began to talk about his health, saying that it was good. About the middle of April 1948 decedent was seized with a convulsion. More convulsions followed, and decedent consulted Dr. S.E. Urberg on or about May 2, 1948, who made a diagnosis of a brain tumor. An operation followed for the removal of the tumor on May 17, 1948. Decedent convalesced at home for several months after the operation and then returned to his work as a patrolman on August 18, 1948.
Decedent continued to work until September 28, 1948, when he again was required to leave work because of a convulsive seizure. Ray Keating, then chief of police, suggested that decedent apply for a leave of absence. Keating brought the petition for leave to decedent's home for him to sign and presented the signed petition to *63 the civil service board for the city of Duluth. The leave of absence was granted by the board for a period of one year commencing November 3, 1948. Decedent's wife, Mrs. Ruth J. Saaf, testified that when Keating brought the petition to her home for her husband to sign he stated that he would extend the leave if necessary. Therefore, sometime in October 1949, when it became apparent that decedent would not be able to return to work prior to the expiration of his leave of absence on November 3, Mrs. Saaf wrote Keating requesting that the leave be extended if possible. She received an answer from the chief's office stating that the appointing authority had no power to extend the leave of absence. No application for further leave was ever made to the civil service board. The decedent died on November 18, 1949.
1. We turn to the first issue which concerns the proximate cause of decedent's death. There is much medical testimony in the record on the question of whether the brain tumor, which was the immediate cause of decedent's death, was influenced in its development or aggravated by the blow received on the night of March 7, 1947. The evidence, however, clearly does not sustain a finding that the blow was the originating cause of the tumor. Dr. Urberg, plaintiffs' medical witness, testified repeatedly that the cause of brain tumors is unknown. He stated that the area of an injury from a blow might provide a favorable situs for the development of a brain tumor and could influence a tumor's rate of growth. He definitely could not say that the blow could have been an originating cause. On the other hand, Dr. Gordon J. Strewler, while corroborating Dr. Urberg's statement that the cause of brain tumors is unknown, testified that it has been definitely ascertained through experimentation that certain things will not cause brain tumors and that an astrocytoma tumor the type which caused decedent's death could not be caused by a trauma or blow on the head.
The question remains, however, whether the evidence sustains a finding that the blow aggravated a latent or pre-existing tumor and accelerated its growth. This question presupposes that the existence of the tumor, at least in latent form, antedated the blow sustained *64 on March 7, 1947. The evidence is wholly speculative as to the time of its inception. Its inception may have been at a time even prior to 1941 when the decedent was discharged from the navy for medical reasons.[2] For the purpose, however, of deciding the issue of whether the evidence sustains a finding that the blow to decedent's jaw aggravated a latent tumor and contributed proximately to its development so as to establish a causal connection between the injury to the jaw and the subsequent death, we need only assume that the tumor existed prior to March 7, 1947.
In passing upon the specific evidence regarding aggravation, it is to be noted that we are not here concerned with a case where death is so immediately, directly, or naturally and probably the proximate result of the injury that any layman of average intelligence, without the aid of a medical expert, would know from his own knowledge and experience that the injury was the cause of death.[3] Instead we have a case wherein, if the brain tumor as the immediate cause of death is to be causally connected with a blow to decedent's jaw as an initiating and proximate cause of death, we are dealing with obscure and abstruse medical factors of which a layman can reasonably have no well-founded knowledge and concerning which, without adequate expert medical testimony to provide a proper foundation, he can do no more in making a finding than indulge in mere speculation. Furthermore, the mere fact that the injury from the blow to the jaw might have been a possible contributing cause of death does not of itself justify a finding of a causal relation. Where expert testimony must be solely relied on *65 to show the causal connection between the alleged cause and a certain subsequent result either disability or death , medical testimony which does nothing more than show a mere possibility, suspicion, or conjecture that such causal relation exists, without any foundation for the exclusion of other admittedly possible causes, provides no proper foundation for a finding of a causal connection.[4] Affirmatively stated, in order to have a proper foundation for a finding of causal connection, in cases where such connection must be established solely by expert testimony, the medical expert must upon an adequate factual foundation[5] testify not only that in his professional opinion the injury in question might have caused or contributed to the subsequent death of the injured person but further that such injury did cause or contribute to his death, but such medical testimony need not be couched in any particular words.[6] As applied to the facts of the particular case, it need only appear from the testimony of the medical witness as a whole that he is of the opinion that the injury not only could but did cause the injured person's death but such expert opinion need not be expressive of absolute certainty. In Hiber v. City of St. Paul, 219 Minn. 87, 93, 16 N.W. (2d) 878, 881, we said:
"* * * It is not necessary that the truth of an expert's opinion be capable of demonstration; it is sufficient that it is probably true. `He [an expert witness] is not required to speak with such confidence as to exclude all doubts in his mind, but may render his testimony in the form of an estimate of opinion, couched in expressions that fall short of absolute conviction of accuracy. Such qualification affects merely the probative force of the testimony.' 20 Am. *66 Jur., Evidence, § 768. See, Kundiger v. Metropolitan L. Ins. Co. 218 Minn. 273, 15 N.W. (2d) 487."[7]
Applying these principles, we find that Dr. Urberg never ventured an opinion as to whether the blow did in fact aggravate decedent's brain tumor. He testified only generally with respect to similar cases and not with respect to the specific facts of this case that an injury of some magnitude could perhaps alter the natural course of a pre-existing condition. The supposition that a blow or severe bruise could at least aggravate a latent condition he said had been accepted as a reasonable probability in a number of instances. He stated that the phrase "an injury of some magnitude" could refer to an injury as little as a stunning of the victim not involving a loss of consciousness. With respect to the facts herein, he said nothing more than that, if an injury of some reasonable magnitude has taken place, "it may have some bearing on the development of a condition such as Mr. Saaf had." Taking Dr. Urberg's testimony as a whole, it can be reasonably construed only to the effect that his opinion went no further than that the blow to decedent's jaw might or could possibly have aggravated a pre-existing tumor.
Contrasted with Dr. Urberg's testimony is that of Dr. Strewler, a specialist in the field of brain tumors. Upon a hypothetical question, Dr. Strewler stated that in his opinion the blow suffered by decedent could not have aggravated an astrocytoma brain tumor. He based his opinion on the fact that the lapsed time between the trauma and the first objective evidence that decedent was suffering from a tumor was of such duration as to indicate no causal connection between the trauma and the development of the tumor. The medical testimony and the remainder of the record in this case is such that we must hold that the evidence is insufficient to support a finding that the blow to decedent's jaw aggravated a pre-existing brain tumor which resulted first in his permanent disability and then in his death.
*67 2. We have here concluded that expert testimony must be solely relied upon to show the causal connection because the evidentiary facts aside from such expert testimony are equally consistent with a finding either way. The flickering of decedent's eyelid in the early summer of 1947 does not justify an inference that it was any more symptomatic of a tumor caused or aggravated by an injury to the jaw than a tumor which had no connection with such injury. Like considerations apply to decedent's health before and after the injury. Where two opposing inferences can be drawn with equal justification from the same circumstantial evidence so that one inference cannot reasonably be preferred over the other, neither is of evidentiary weight in support of a court's finding even though consistent with it and both must be rejected as purely speculative.[8] We do not here have circumstantial facts which so closely and directly connect the trauma with the immediate cause of death as to lead to the reasonable and probable inference that the trauma was the originating and proximate cause of death, in corroboration of expert medical opinion, as was the case in Jorstad v. Benefit Assn. of Ry. Employees, 196 Minn. 568, 265 N.W. 814.
3-4. We come to the second issue which is whether the defendant association is estopped to deny that decedent was one of its members when he died. Defendant concedes that if decedent was a member plaintiffs are entitled to a dependency pension irrespective of the cause of death. Membership in the defendant association is contingent upon membership in the Duluth police department. It is clear that decedent was not a member of the police force of that city at the time of his death. Under § 156 of the civil service rules for the city of Duluth, decedent was presumed and considered to have resigned from the police department when he did not notify the secretary of the civil service board within five days after the expiration of his leave of absence on November 3, 1949, of his readiness to resume his duties. Plaintiffs assert, however, and the trial court so found, that defendant was estopped to deny that decedent *68 was a member of the association at the time of his death. The court's finding in estoppel is predicated upon the representation made by chief of police Keating when he brought the petition for a leave of absence to decedent's home for him to sign. Plaintiff testified that at that time Keating stated that he would extend the leave of absence if necessary. We fail, however, to see how this representation can provide the basis for an estoppel in this case.
One of the essential elements of equitable estoppel, or estoppel in pais, is that the party asserting the estoppel acted, or failed to act, in reliance upon the representation claimed to give rise to the estoppel whereby he has changed his position for the worse.[9] Here the plaintiff Mrs. Saaf did not act, or fail to act, in reliance on Keating's statement whereby her position was in any way changed from that which she would otherwise have occupied. In the absence of Keating's statement, she would nevertheless have had to make an application for an extension of her husband's leave of absence. This is exactly what she did in this case. Sometime in October 1949 she wrote a letter to Keating asking if it was "possible" to extend the leave. She received an answer from Keating's office that the appointing authority had no power to grant an additional special leave of absence. Apparently neither Keating as the appointing authority, nor the civil service board, nor both together, had power under § 114 of the civil service rules for the city of Duluth to extend a special leave of absence or grant an additional leave once an applicant had used a full year's leave without subsequently returning to his duties for a period of time. We need not, however, construe § 114 to determine whether the board upon proper application had power to grant an additional special leave of absence to the decedent. There is no allegation in the pleadings, or evidence in the record, to indicate that anyone made a representation to Mrs. Saaf or decedent that induced her or the decedent to refrain from applying *69 to the civil service board for an additional leave for her husband. A change of position for the worse as a basis for estoppel cannot be presumed and is a matter calling for proof. Schaefer v. Nylin, 162 Minn. 170, 202 N.W. 439.
We have a further contention in the nature of an alleged estoppel by delay. The record discloses that early in April 1949 decedent applied in writing to the defendant association for a disability pension. On April 20, 1949, the defendant appointed a committee to investigate the merits of decedent's application. At a special meeting of defendant's governing board on October 28, 1949, decedent's pension application was discussed, but the matter was laid over for final decision until after November 6, 1949, which was a date subsequent to the expiration of decedent's one-year leave of absence from the police department. Plaintiff asserts that defendant's failure to grant promptly, or at least deny, decedent's application for a disability pension provides an additional ground for the recovery of dependency benefits. Such delay obviously has no bearing upon the issue of whether defendant is estopped to deny that decedent was a member of the association since the right to a dependency pension solely on the basis of membership at the time of death is separate and distinct from any right to a pension on the basis that decedent qualified for a pension for disability on the date of his death. Plaintiffs further contend, however, that the delay denied decedent an opportunity to take such steps during his lifetime as might be necessary to obtain his pension had defendant promptly denied his application. Although plaintiffs' theory is not clear, apparently they urge that the doctrine of estoppel by delay be uniquely applied in this case.[10] Even assuming that the delay of the governing board was unreasonable here, plaintiffs cannot prevail on this theory because they have made no showing of prejudice occasioned by the delay. What prejudice could there possibly be under the circumstances? If the board had promptly denied decedent's application, decedent's only recourse would have been a possible *70 resort to the courts for relief, and a court would then most likely have had to consider the identical question of proximate cause that was raised on this appeal. It does not appear that decedent could have, at a trial conducted during his lifetime, produced evidence in court more favorable to the allowance of a disability pension than the evidence produced in the trial below. The facts surrounding the blow to decedent's head are undisputed. The cause and nature of his subsequent illness and disability were before death, as well as after, a matter to be determined by expert medical testimony. It is not to be presumed that decedent could have added anything material in the form of admissible evidence on the issue of the proximate cause of his disability. His subjective symptoms would have to be evaluated by a medical expert, and in this connection it is not to be overlooked that plaintiffs' medical witness on the trial below was decedent's attending physician who undoubtedly had knowledge of any such subjective symptoms. Furthermore, plaintiffs cannot now be heard to complain when neither decedent nor Mrs. Saaf took any steps during decedent's lifetime to procure a more prompt determination on decedent's application for a disability pension.
The evidence is insufficient to support the trial court's finding that decedent's fatal brain tumor was the result of, or was aggravated by, the injury sustained when he was struck on the jaw. The evidence also fails to sustain a finding of the essential elements for an estoppel.
The judgment of the trial court is reversed.
Reversed.
MR. JUSTICE NELSON, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.
NOTES
[1] Reported in 59 N.W. (2d) 883.
[2] In connection with decedent's medical discharge from the navy in 1941 long prior to his connection with the Duluth police force the discharge records show that during his naval service he had suffered from dizziness and high blood pressure, and this fact led Dr. Urberg to believe that the inception of the tumor possibly antedated these symptoms and therefore also antedated the blow to decedent's jaw.
[3] See, Burton v. Holden & Martin Lbr. Co. 112 Vt. 17, 20 A. (2d) 99, 135 A.L.R. 512; McCoy v. Spriggs, 102 Pa. Super. 500, 157 A. 523; Honer v. Nicholson; 198 Minn. 55, 59, 268 N.W. 852, 854; Annotation, 135 A.L.R. 516.
[4] See, Wallstedt v. Swedish Hospital, 220 Minn. 274, 19 N.W. (2d) 426; 20 Am. Jur., Evidence, § 1178.
[5] Hiber v. City of St. Paul, 219 Minn. 87, 16 N.W. (2d) 878; Mageau v. G.N. Ry. Co. 106 Minn. 375, 119 N.W. 200; Smith v. Twin City Motor Bus Co. 228 Minn. 14, 36 N.W. (2d) 22; 7 Dunnell, Dig. (3 ed.) § 3334.
[6] As to the lack of necessity for the use of any particular words, see Hiber v. City of St. Paul, 219 Minn. 87, 16 N.W. (2d) 878; Annotation, 135 A.L.R. 516, 541 to 546.
[7] See, Ripani v. Dittman, 297 Pa. 124, 146 A. 562; 7 Dunnell, Dig. (3 ed.) § 3334.
[8] See, Burke v. B.F. Nelson Mfg. Co. 219 Minn. 381, 18 N.W. (2d) 121; 7 Dunnell, Dig. (3 ed.) § 3234.
[9] Kavalaris v. Cordalis, 219 Minn. 442, 18 N.W. (2d) 137; Schaefer v. Nylin, 162 Minn. 170, 202 N.W. 439; see, Union Public Service Co. v. Village of Minneota, 212 Minn. 92, 98, 2 N.W. (2d) 555, 558; 6 Dunnell, Dig. (3 ed.) §§ 3187, 3191; 19 Am. Jur., Estoppel, § 84.
[10] For a general discussion of estoppel by delay, see 19 Am. Jur., Estoppel, § 59. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580509/ | 59 N.W.2d 395 (1953)
157 Neb. 312
MESSER
v.
MESSER.
No. 33278.
Supreme Court of Nebraska.
July 3, 1953.
*396 Bernard S. Gradwohl, Charles Lloyd Dort, Lincoln, White, Lipp & Simon, Omaha, for appellant.
Chambers, Holland & Groth, Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
SIMMONS, Chief Justice.
In this action plaintiff, alleging extreme cruelty, sought a divorce from the defendant, and that defendant have no award of permanent alimony. The defendant answered, admitting the marriage and residence of the parties, and denied generally. Defendant by cross-petition alleged extreme cruelty and prayed for a decree of separate maintenance, or in the alternative, an absolute divorce, and for property division, alimony, and attorney's fees. During the trial and here defendant sought an absolute divorce.
The trial court granted the plaintiff an absolute divorce, awarded the defendant $45,000 alimony payable in installments, and awarded the defendant all wedding gifts, jewelry, clothing, and personal effects, and an attorney's fee of $4,500. The court further ordered the defendant to surrender the home of the parties and a Cadillac automobile to the plaintiff.
Defendant appeals, assigning error in refusing her the decree of divorce, and contending that the award of alimony and attorney's fees is inadequate. Plaintiff joins issue as to those contentions here, and by cross-appeal contends that the award of alimony was excessive and that additional attorney's fees should not be allowed.
We affirm in part and reverse in part.
These parties were married in April 1946. Each had been previously married; each had a minor child. No children were born to this union. At the time of the marriage plaintiff owned a furnished home. There the parties began living together as man and wife. Almost from the beginning their married life was one of periods of tranquility and tumult. The disagreements and discords center around things said and written to each other and to third parties about each other, and around things done in the presence of each other and third parties. Each party complains as to things not done or tardily done by the other. The periods of discord increased as the years passed, and culminated in a physical assault, by the defendant on the plaintiff. This event is amply corroborated. The separation came in December 1951.
For almost 1,000 pages of the bill of exceptions the parties and their witnesses detail these occurrences. At times there is agreement on things said and disagreement as to what was meant, and there is disagreement as to what was said and done. The trial court heard and saw most of the witnesses. We have the cold record. No proper purpose could be served by detailing the evidence.
The applicable rules are: "Divorce cases are tried de novo on appeal to this court, subject to the rule that when credible evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite." Killip v. Killip, 156 Neb. 573, 57 N.W.2d 147, 148.
"Extreme cruelty may consist of personal injury or physical violence, or it may be acts or omissions of such character as to destroy the peace of mind or impair the bodily or mental health of the one upon whom they are inflicted or toward whom they are directed, or be such as to destroy the objects of matrimony." Killip v. Killip, supra.
Testing the evidence by these rules we reach the same conclusion as did the trial court. We affirm the decree of the trial court, granting an absolute divorce to the plaintiff.
This brings us to the question of alimony. At the time of the marriage plaintiff was the majority stockholder and in direct management and control of a corporation doing a substantial and successful *397 business. His net worth is shown at that time to be about $300,000. At the time of the trial his net worth is shown to be about $800,000. Defendant contributed little, if anything, to the successful conduct of the business. There is evidence that her conduct had the opposite effect; nevertheless, the net worth of plaintiff is not seriously disputed here.
The parties are each in early middle life. The plaintiff has had during these years a substantial and increasing salary from his business, which was, after income tax deductions, about the sum of $24,500 for the year 1947, increasing to about $35,000 for the year 1951. Plaintiff has some income from other sources.
Defendant was self-supporting prior to the marriage. Evidence as to her present earning ability was not developed. Defendant has a relatively small amount of personal property.
There is no particular showing of ill health on the part of the plaintiff. There is a showing of not too good health of the defendant, although it appears that she did have the health ability to go and do many of those things common to women of her age and station in life.
During the period of the marriage plaintiff paid for the education of defendant's child and furnished her a home and material benefits in a way consistent with his financial ability. About that defendant makes no complaint. Plaintiff made an allowance to his wife for home and personal use in the sum of $250 a month at the beginning of the marriage, which was increased from time to time to the sum of $550 a month during the last months of the marriage. To this should be added various expenditures during the years for labor-saving conveniences in the home, the use of an automobile by the defendant during the latter years, and throughout payments, in addition to the regular allowance, for extra purposes, clothing and vacation trips of defendant. Plaintiff maintained the home and the defendant on a standard of living consistent with his financial ability, although not at all times in the manner desired by the defendant.
The rule is: "The court in deciding the amount of alimony or in making a division of property in a divorce case will consider the age of the parties, their earning ability, the duration of and the conduct of each during the marriage, their station in life, the circumstances and necessities of each, the physical condition of each, the property owned by them and whether or not it was acquired by their joint efforts, and any other pertinent facts." Killip v. Killip, supra.
This is not a rule that permits of mathematical certainty in arriving at the answer as to alimony or a division of property.
Considering all matters shown in the evidence we have concluded that the award of alimony made by the trial court was insufficient. The defendant is awarded alimony in the sum of $100,000, payable $20,800 on August 1, 1953, and the remaining $79,200, payable in payments of $600 on the first day of each and every month, commencing August 1, 1953, until said sum of $79,200 is paid.
The trial court awarded the home to the plaintiff. It is shown to be worth $25,000. The defendant is shown to have been dissatisfied with it, because of the problem of stairs in a two-story and basement home. The award of the home to the plaintiff is affirmed, together with all items of furniture and appurtenances therein. This award is taken into consideration in determining the amount of alimony above set out. The possession of the home, furniture, and appurtenances is to be surrendered by the defendant to the plaintiff on August 1, 1953.
The trial court awarded the defendant all wedding gifts and all jewelry, clothing, and personal effects customarily worn and used by the defendant. That award is affirmed.
It appears from the evidence that during the latter years of this marriage, and during the pendency of this action, defendant has had the use of a Cadillac automobile. The trial court awarded the automobile to plaintiff. That part of the decree is reversed and it is awarded to the defendant.
*398 The trial court awarded defendant an attorney's fee for $4,500. On motion here an award of $2,500 was allowed. An award of $10,000 is made to defendant as attorney's fees. This sum is to be inclusive of and not in addition to awards heretofore made. Any payments made on previous awards are to be credited on the $10,000 here made, and the difference only is to be paid. All costs are taxed to the plaintiff. Temporary awards heretofore made are to continue to August 1, 1953, and thereafter to cease.
The judgment of the district court is affirmed in part, and in part is reversed and the cause remanded to the trial court with directions to enter a decree in accord with this opinion.
Affirmed in part, and in part reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645145/ | 40 So.3d 882 (2010)
Lorenzo HERRERA, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D10-1247.
District Court of Appeal of Florida, Third District.
July 21, 2010.
Lorenzo Herrera, in proper person.
Bill McCollum, Attorney General, for appellee.
Before GERSTEN, WELLS, and LAGOA, JJ.
PER CURIAM.
Lorenzo Herrera appeals the denial of a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate his sentence. An order denying a 3.800(c) motion is not appealable. Thomas v. State, 19 So.3d 431 (Fla. 3d DCA 2009). Accordingly, we dismiss the appeal.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580479/ | 12 So. 3d 283 (2009)
Dogan M. BENGISU, Appellant,
v.
Renee BENGISU, Appellee.
No. 4D08-5117.
District Court of Appeal of Florida, Fourth District.
June 3, 2009.
Matthew S. Nugent and Adam M. Zborowski of Law Offices of Matthew S. Nugent, North Palm Beach, for appellant.
*284 Christopher R. Jette of Goldstein & Jette, P.A., West Palm Beach, for appellee.
POLEN, J.
Appellant, Dogan Bengisu, appeals the trial court's non-final order awarding his wife and Appellee, Renee Bengisu temporary child support and alimony. Husband and wife were married in 1997 and have two children, born in 1998 and 2001. On May 30, 2008, wife filed a petition for dissolution of marriage with minor children.
On September 9, 2008, wife filed a motion for temporary relief seeking shared parental responsibility, designation as the primary residential parent, temporary periodic alimony, temporary exclusive use and possession of the marital residence, child support, the maintenance of her and the children's health and dental insurance, and attorney's fees. The trial court held an initial hearing on wife's motion on November 19, 2008 and continued that hearing on December 12, 2008.
Prior to the second hearing, husband filed a motion for temporary relief on December 8, 2008 seeking open and liberal timesharing with the children pursuant to the Model Timesharing Schedule for Parents Who Reside No More than 45 Miles Apart, contribution to the children's support from wife, imputed income for the wife, the transfer to husband of $10,000 of the $20,000 withdrawn from the home equity line of credit by wife, and a monthly payment of the fair rental value of the marital residence. Husband also filed a Proposed Temporary Parental Responsibility and Temporary Timesharing Schedule. Husband's motion for temporary relief was heard in conjunction with wife's motion on December 12, 2008.
Wife's financial affidavit stated that she was unemployed and claimed total monthly expenses of $11,898.00. The affidavit also listed her net worth as $744,123.00. Husband's financial affidavit stated that he was a lawyer employed as a solo practitioner, that his office had just reopened after being closed for four months, and that his pay was based on the income of his office. Husband listed gross monthly income of $3031.00, net monthly income of $2585.00, total monthly expenses of $4886.58, and a monthly deficit of $2720.29. Finally, husband listed a net worth of $322,230.00.
Both wife and husband listed a home equity line of credit on their affidavits. Husband's affidavit indicated that the home equity line of credit balance was $47,659.21 and that he made a monthly payment of $476.59. Wife testified that she had withdrawn $20,000 from the home equity line of credit which she had spent on household expenses, caring for the children, legal fees and paying her accountant.
Wife testified that her household had around $12,600 in monthly expenses, that throughout the marriage husband was responsible for all of the expenses, that bills had never been left unpaid, and that she did not believe the couple had ever accrued any debt to cover their monthly obligations. Wife testified that during the marriage, she was never clear how much husband was earning. Wife stated that husband left his solo practice to work for a law firm for four months leading up to the divorce and, while there, his salary was $85,000.
Wife's accountant, William Mitchell, testified that he had been retained by wife to ascertain whether the discovery responses provided by husband were accurate but that he was not a certified forensic accountant. Mitchell testified that based on his review of wife's financial affidavit and household expenses, he believed she needed $5,500 undifferentiated monthly support *285 during the pendency of the divorce. Mitchell explained that husband's 2006 and 2007 tax returns stated income of $42,505 and $48,115, respectively but that he did not believe the returns accurately reflected husband's income for those two years.
Husband testified that his law practice had a gross annual income of between $70,000 and $80,000 and had net income of between $25,000 and $42,000. Husband stated that his big client, who represented two-thirds of his monthly income, died in 2005 after which his income had significantly decreased. Husband stated that the family accrued $3,000-$5,000 of debt per year, that his clients did not pay him in cash, and that his $85,000 salary while at the law firm just before the divorce was the highest salary he had earned in his life. Despite listing a monthly deficit of $2,270, husband only had $6,750 in credit card debt, $5,000 of which was spent on wife's attorney's fees. Husband explained that his parents had helped them with their expenses in previous years, that they were currently unable to help them, and that he had an additional $6,000 of credit card debt which he had neglected to list on his affidavit.
Husband's forensic accountant, Alan Wagner, testified that husband's current gross monthly income from all sources was $3,221.00 which was similar to his historical income. Wagner stated that husband ran a one-man law office and that he had reviewed husband's business ledgers, bank accounts, and cancelled checks in reaching his determinations. Wagner explained that there was no indication that any of husband's clients paid him in cash, that all of his current clients were businesses, and that businesses typically paid all of their expenses by check. Husband had been paying the entire first mortgage and home equity line of credit on his own but within the two months prior to the hearing had been unable to afford the home equity line of credit payments.
The parties both informed the court that they had agreed to husband's proposed timesharing schedule. In its order awarding wife temporary support, the trial court found:
During the history of the intact marriage, the Husband was exclusively responsible for the payment of all the parties' individual and household expenses. The Court finds he is underemployed based upon his historical earnings. Further the Court was persuaded by the evidence the parties had historically paid their ongoing monthly expenses without accruing debt.
Thus, the court entered an order requiring the parents to use the Model Parental Timesharing Schedule for Parents Who Live within 45 Miles of Each Other when they do not otherwise agree, ordering husband to continue paying the mortgage, taxes, and insurance for the marital residence, allowing wife to continue to exercise exclusive use and possession of the marital residence, awarding wife undifferentiated support in the amount of $5,500 per month, requiring husband to pay wife's attorney's fees, and requiring husband to maintain the family's major medical insurance coverage. The court also permitted each party to use $10,000 of the remaining $20,000 home equity line of credit.[1] Husband now timely appeals.
Husband argues that the trial court erred in awarding wife temporary alimony and child support in the amount of $5,500 per month because the award exceeds *286 his monthly income, the court made no findings as to husband's monthly net income, and the court lacked competent substantial evidence to impute additional income to husband. Wife replies that there was no error because the evidence showed that husband was not reporting all of his income and that her monthly expenses required an award of $5,500 undifferentiated monthly support. "[T]emporary relief awards are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances." Pedraja v. Garcia, 667 So. 2d 461, 462 (Fla. 4th DCA 1996). In determining whether and to what extent temporary alimony is required, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony. Stern v. Stern, 907 So. 2d 701, 702 (Fla. 4th DCA 2005). Finally, both the requesting spouse's need and the other spouse's ability to pay must be supported by competent, substantial evidence. Driscoll v. Driscoll, 915 So. 2d 771, 773 (Fla. 2d DCA 2005).
There was evidence below that husband had historically paid the couple's monthly expenses without accruing debt, and the trial court found, accordingly, that husband was underemployed and should continue to be responsible for the monthly expenses of the family. However, there was also evidence that the couple's parents had helped them financially in the past, were unable to continue helping them, and that husband had recently reestablished his solo law practice. Wife's accountant stated that he believed husband's actual income exceeded his stated income, and husband's accountant testified that he believed husband's stated income was accurate.
Husband's financial affidavit reflects a monthly deficit of nearly $3,000, and the trial court awarded wife undifferentiated support in the amount of $5,500. Despite evidence that husband had historically made sufficient income to pay the family's expenses, the trial court abused its discretion in awarding monthly support which greatly exceeds husband's monthly income without competent substantial evidence that husband's actual monthly income exceeds his stated monthly income.
Moreover, the trial court failed to make specific findings indicating the source and amount of husband's imputed income. Schram v. Schram, 932 So. 2d 245, 249 (Fla. 4th DCA 2005) ("When imputing income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income."). Therefore, we reverse and remand for the trial court to make the necessary findings based on competent substantial evidence of husband's income and to award an appropriate amount of temporary support based on those findings. Whether additional testimony and evidence is required or whether the current record contains sufficient evidence, we leave for the trial court to determine.
Reversed and remanded.
STEVENSON and DAMOORGIAN, JJ., concur.
NOTES
[1] Here, the trial court's order ignores the fact that the home equity line of credit does not have $20,000 remaining. The credit line was for $50,000 and husband's affidavit and testimony reveal that the current balance is $47,659.21. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580466/ | 45 S.W.3d 118 (2000)
Christine Hazel TULLIS, Appellant,
v.
GEORGIA-PACIFIC CORPORATION, Appellee.
No. 2-98-351-CV.
Court of Appeals of Texas, Fort Worth.
September 28, 2000.
*119 Bourland, Kirkman, Seidler & Evans, L.L.P., David L. Evans, Thomas M. Michel, Fort Worth, for Appellant.
Dehay & Elliston, L.L.P., Mel D. Bailey Dallas, for Appellee.
Panel B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
OPINION
GARDNER, Justice.
I. INTRODUCTION
This appeal is from an order dismissing a personal injury suit under the Texas *120 forum non conveniens statute and the Texas borrowing statute. Presenting five issues, Appellant Christine Hazel Tullis contends the trial court abused its discretion in dismissing her suit against Appellee Georgia-Pacific Corporation. Tullis contends that: (1) Georgia-Pacific failed to establish Tullis's status as a non-resident of Texas, which is necessary to invoke either the forum non conveniens statute or to apply the Tennessee one-year statute of limitations pursuant to the borrowing statute; (2) the forum non conveniens statute controls over the borrowing statute; (3) Georgia-Pacific failed to present legally or factually sufficient evidence to support the trial court's findings of fact; (4) Georgia-Pacific failed to meet its burden of proof as to the elements of the doctrine of forum non conveniens; and (5) the trial court failed to condition its dismissal on an agreement by Georgia-Pacific to waive the defense of limitations under the law of Tennessee. We reverse and remand.
II. FACTUAL AND PROCEDURAL BACKGROUND
Tullis filed this suit on March 17, 1998, alleging she sustained personal injuries on or about March 19, 1996, as the result of an automobile collision in Memphis, Tennessee, involving a truck owned by Georgia-Pacific. She named Georgia-Pacific as a defendant, alleging that company was a Georgia corporation authorized to do business in Texas. She also named the driver of the truck, Michael Anthony DeGraffin Reid, as a defendant, alleging he was a resident of Tennessee at the time of the accident.
Georgia-Pacific filed a motion to dismiss based on forum non conveniens, a motion to transfer venue, special exceptions, and an answer. The entirety of Georgia-Pacific's motion to dismiss consisted of the following:
Defendant moves to dismiss this case upon forum non conveniens. More specifically, the accident forming the basis of this cause of action occurred in Tennessee. Consequently, Tennessee courts constitute the appropriate forum for litigation of the issues asserted before this Court. Maintenance of this action in Tarrant County would work a substantial injustice to Georgia-Pacific. Dismissal based upon forum non conveniens will not result in duplication or proliferation of this litigation.
Georgia-Pacific subsequently filed a supplemental motion to dismiss based on the Texas borrowing statute, section 71.031(a)(3) of the Texas Civil Practice and Remedies Code. Under that statute, a non-resident plaintiff whose cause of action arose in another state must file suit within the period required by Texas law, as well as any shorter period required by the other state's law. Tex. Civ. Prac. & Rem. Code Ann. § 71.031(a)(3) (Vernon Supp.2000). Georgia-Pacific's supplemental motion sought dismissal on the ground that because the accident occurred in Tennessee on March 19, 1996, Tullis's cause of action was barred by the one-year statute of limitations in Tennessee for personal injury claims. See Tenn. Code Ann. § 28-3-104 (1997).
Following a hearing and consideration of post-hearing evidence, the trial court granted Georgia-Pacific's motion to dismiss and filed the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On or about March 19, 1996, Plaintiff Christine Tullis was involved in a motor vehicle collision in Memphis, Shelby County, Tennessee with Defendant driver Michael Anthony DeGraffin Reid.
*121 2. Plaintiff is a resident of Colorado Springs, Colorado.
3. Defendant Georgia-Pacific is a Georgia Corporation registered to do business in Tennessee, with a registered agent located in Tennessee and principle [sic] places of business located in Tennessee, as alleged in Plaintiff's Original Petition.
4. Defendant Michael Anthony DeGraffin Reid is an individual who is a resident of Memphis, Shelby County, Tennessee, as alleged in Plaintiff's Original Petition.
5. Plaintiff filed her Original Petition in Tarrant County, Texas on or about March 17, 1998.
6. None of the facts giving rise to this cause of action occurred in the state of Texas.
7. Defendant Reid has not made an appearance before this Court and is not subject to this Court's jurisdiction.
CONCLUSIONS OF LAW
1. The State of Tennessee is an alternate forum in which this claim or action may be tried.
2. Anthony DeGraffin Reid is within the jurisdiction of Tennessee only.
3. The entire case and all the parties are within the jurisdiction of Tennessee and this Court lacks jurisdiction over defendant Anthony Michael DeGraffin Reid.
4. Georgia-Pacific has sufficient minimum contacts with Tennessee to be amenable to process in that state since the accident formed [sic] the basis of this lawsuit occurred in Tennessee.
5. The alternate forum provides an adequate remedy pursuant to the laws of Tennessee.
6. Maintenance of this action in the Courts of this state would work a substantial injustice to the Defendant, Georgia-Pacific Corporation.
7. The forum state and the governing law in this case is Tennessee.
8. Tennessee, the alternate forum, can exercise jurisdiction over Defendants Anthony Michael DeGraffin Reid and Georgia-Pacific Corporation since the accident forming the cause of action occurred in Tennessee.
9. The interests of the Parties and the State predominate in favor of the action being brought in Tennessee.
10. The dismissal of this case in Texas will not result in unreasonable duplication or proliferation of the litigation.
III. STANDARD OF REVIEW
Appellate courts review dismissals based on forum non conveniens under an abuse of discretion standard. See, e.g., Adams v. Baxter Healthcare Corp., 998 S.W.2d 349, 356 (Tex.App.-Austin 1999, no pet.); Baker v. Bell Helicopter Textron, Inc., 985 S.W.2d 272, 277 (Tex.App.-Fort Worth 1999, pet. denied). The trial court abuses its discretion when it acts without reference to any guiding rules or principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). However, under the abuse of discretion standard, legal and factual sufficiency of evidence to support findings underlying its decision are relevant factors in assessing whether the trial court abused its discretion. See Baker, 985 S.W.2d at 277.
In determining a legal sufficiency issue, we are to consider all of the evidence in *122 the light most favorable to the party in whose favor the judgment has been rendered, and to indulge every reasonable inference from the evidence in that party's favor. See Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998) (op. on reh'g); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). If there is more than a scintilla of such evidence to support the finding, the claim is sufficient as a matter of law. See Formosa Plastics Corp., 960 S.W.2d at 48; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996).
A legal sufficiency issue may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharm., 953 S.W.2d at 711 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). There is some evidence when the proof supplies a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. See Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992).
An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998).
IV. APPLICABLE STATUTES
Forum non conveniens is an equitable doctrine exercised by courts to resist imposition of an inconvenient jurisdiction on a litigant, even if jurisdiction is supported by the long-arm statute and would not violate due process. See Baker, 985 S.W.2d at 274. Forum non conveniens was traditionally applied in Texas as a common law rule in all types of cases. See Dow Chem. Co. v. Alfaro, 786 S.W.2d 674, 676-78 (Tex.1990), cert. denied, 498 U.S. 1024, 111 S. Ct. 671, 112 L. Ed. 2d 663 (1991). However, in Alfaro, the Supreme Court of Texas ruled that the version of section 71.031 of the Texas Civil Practice and Remedies Code then in effect gave an absolute right to non-residents to bring suit in Texas courts for injuries and wrongful death occurring in other states and statutorily abolished the doctrine of forum non conveniens in those types of cases.[1]Id. at 679.
*123 In 1993, the 73rd Legislature responded to the decision in Alfaro by enacting section 71.051 of the Texas Civil Practice and Remedies Code, effectively reinstating the doctrine of forum non conveniens in suits involving personal injury and death.[2]See House Comm. On Civil Practices Bill Analysis, Tex. S.B. 220, 75th Leg., R.S. (May 23, 1997) (discussing history of section 71.051). Through section 71.051, the legislature provided a procedural framework, as well as substantive elements that must be met, for a defendant to obtain a dismissal based on forum non conveniens.[3]See Tex. Civ. Prac. & Rem. Code Ann. § 71.051 (Vernon Supp.2000). Section 71.051 now provides the forum non conveniens law in Texas governing all actions for personal injury or wrongful death. See Owens Corning v. Carter, 997 S.W.2d 560, 564 (Tex.), cert. denied, 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999).
In 1997, the legislature enacted Senate Bill 220 to address concerns that Texas courts were becoming crowded by personal injury suits brought by non-resident plaintiffs. See House Comm. On Civil Practices, Bill Analysis, Tex. S.B. 220. Effective May, 1997, Senate Bill 220 amended section 71.051 in a number of respects and added a new section 71.052 that specifically addressed asbestos-related claims of non-residents brought in Texas courts.[4]See id.
As a further forum shopping deterrent, Senate Bill 220 amended section 71.031 by adding a new subsection. Subsection (a)(3) of section 71.031 now "borrows" the statute of limitations of the state where the cause of action arose with respect to a non-resident plaintiff. See Tex. Civ. Prac. & Rem. Code Ann. § 71.031(a)(3); Owens Corning, 997 S.W.2d at 566. A non-resident plaintiff whose cause of action for personal injury or wrongful death accrued in another state with a shorter statute of limitations than Texas's must file within the limitations period imposed both by Texas law and by that state's law. See Owens Corning, 997 S.W.2d at 566. Thus, the legislature sought to remedy the problem that Texas had become a popular forum for plaintiffs whose claims were time-barred by shorter statutes of limitations in the states where those claims arose. See id. at 574.
V. THE BORROWING STATUTE
The borrowing statute, added as subsection (a)(3) to section 71.031 in 1997, reads, in pertinent part, as follows:
*124 (a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect or default causing the death or injury takes place in a foreign state or country, if:
....
(3) for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect or default took place
Tex. Civ. Prac. & Rem. Code § 71.031(a)(3).
Tullis first contends Georgia-Pacific failed to plead that Tullis was a non-resident of Texas when her cause of action accrued or when she filed her suit. She contends that this pleading requirement is essential to obtain a dismissal under section 71.031(a)(3), the section that is relied upon by Georgia-Pacific in its supplemental motion to dismiss. The only mention of Tullis's residency by Georgia-Pacific is in its Reply to Plaintiff's Brief in Support of Motion to Dismiss filed after the hearing on the motion. In that reply, Georgia-Pacific asserted only that Tullis "is currently a resident of Colorado Springs, Colorado." Tullis made no complaint in the trial court by any timely request, objection, or motion about a pleading defect by Georgia-Pacific. Therefore, her complaint about pleading deficiencies regarding residency is not preserved for appeal. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 90.
Tullis next asserts that there is no evidence that she was a non-resident of Texas at the time her cause of action accrued or at the time she filed suit, and that the trial court's finding that she "is a resident of Colorado Springs, Colorado" will not support the judgment of dismissal based on the borrowing statute. Tullis claims the critical time for determining her residency for purposes of the borrowing statute is when her cause of action accrued. Tullis alleged in her original petition that she was a resident of Texas when her cause of action accrued in Tennessee. In opposition to the motion to dismiss, Tullis submitted an affidavit stating that she was raised in Tarrant County, Texas; that she was a resident of this state when her cause of action accrued; that she subsequently moved to Colorado to accept employment; and that it was her intention to return to Texas if she quit or lost her job.
Georgia-Pacific submitted no evidence controverting Tullis's affidavit establishing her Texas residency at the time the cause of action accrued. The only evidence offered by Georgia-Pacific was attached to its reply filed after the hearing. That evidence consisted of Tullis's answers to interrogatories dated April 24, 1998, in which she listed a Colorado address and a Colorado driver's license number existing at the date of her answers, after suit was filed.
Tullis contends that evidence of non-residency at a time after suit was filed is not determinative under the Texas borrowing statute. We agree. To read that statute as turning on a plaintiff's non-residency in Texas after suit is filed would lead to the absurd result of subjecting Texas plaintiffs to dismissal of their lawsuits if they leave the state after filing suit to establish a residence elsewhere. Moreover, such an interpretation would also permit plaintiffs to avoid the borrowing statute by simply moving to Texas after suit is filed, thereby defeating a purpose of the statute, which is to avoid forum shopping.
We decline to interpret the borrowing statute to be triggered by a plaintiff's non-residency *125 at a time after suit is filed. The evidence of Tullis's residence in Colorado after filing suit does not support application of the Tennessee one-year statute of limitations under the Texas borrowing statute to bar Tullis's claim. For the same reason, the finding of fact that Tullis "is" a resident of Colorado does not support the judgment of dismissal.
Georgia-Pacific argues that the borrowing statute nevertheless applies because Tullis was a non-resident of Texas at the time she filed her suit. Georgia-Pacific contends that its evidence supports dismissal under this interpretation of the statute because an inference may be drawn from Tullis's possession of a Colorado driver's license at the time of her answers to interrogatories that she was residing in Colorado when she filed the suit. It is unnecessary to determine whether such an inference is either permissible or legally sufficient to establish non-residency when suit was filed. We disagree that the borrowing statute is invoked by a plaintiff's non-residency at the time of filing, where that plaintiff was a Texas resident when the out-of-state cause of action accrued.
Section 71.031(a)(3) says nothing about the time of filing suit. In construing a statute, our objective is to determine and give effect to the legislature's intent. See Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999). In determining legislative intent, we look to the language of the statute, legislative history, the nature and object sought to be obtained, and the consequences that would follow from alternate constructions. See In re BACALA, 982 S.W.2d 371, 380 (Tex.1998, orig.proceeding); see also Tex. Gov't Code Ann. § 312.005 (Vernon 1998) ("In interpreting a statute, a court shall ... consider at all times the old law, the evil, and the remedy.").
The Supreme Court of Texas recently traced the rather convoluted history of section 71.031. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-78, & nn. 5-7 (Tex.2000). The original version was enacted in 1913 to allow Texas courts to hear wrongful death or personal injury actions for injuries occurring outside the state.[5]See id. at 77. As described in Dubai, "[t]his statute allowed suits for out-of-state injuries to Texans or citizens of countries having equal treaty rights with the United States if the law of the place of injury provided for such an action and the action was filed within the limitations period provided by Texas law." Id. (emphasis added). In 1917, a similar statute was passed to allow suits to be brought in Texas for out-of-state injuries to citizens of other states.[6]See id.
In 1925, the two statutes were combined. See Tex. Rev. Stat. art. 4678 (1925). In 1975, article 4678 was amended to allow an action if permitted either by Texas law or by the law of the place of the injury.[7]See Dubai, 12 S.W.3d at 77. In 1985, article 4678 was recodified as section 71.031.[8]See id. In 1997, the legislature added the requirement that actions for out-of-state injuries to non-residents be brought within the limitations period provided by the place of the injury. Act of May 24, 1997, 75th Leg., R.S., ch. 424, § 3, 1997 Tex. Gen. Laws 1680, 1683 (codified at TEX. CIV. PRAC. & REM CODE ANN. § 71.031(a)(3)).
*126 As explained in Dubai, the main purpose of the original statute "was to allow Texas citizens to sue in Texas for injuries occurring outside Texas." Dubai, 12 S.W.3d at 78 (citing Alfaro, 786 S.W.2d at 692 (Gonzalez, J., dissenting)); see also Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 185 (Tex.1968) (explaining purpose). That this was the Act's main purpose is apparent from its title, expressly stating that the Act was "for the protection of persons of this State who may be injured in a foreign country ..." and its emergency clause, stating that the impetus for the statute was "[t]he fact that there is now no law permitting citizens of this State who receive injuries in a foreign country from bringing an action for said injuries under the laws of this State ...." Dubai, 12 S.W.3d at 78 (quoting Act of April 1, 1913, 33rd Leg., R.S., ch. 161, § 1, 1913 Tex. Gen. Laws 338, 338-39).
The introductory paragraph of section 71.031 retains the gist of the wording of the 1913 statute in providing that "[a]n action for damages for the death or personal injury of a citizen of this state ... may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country ...." Tex. Civ. Prac. & Rem. Code Ann. § 71.031 (emphasis added). That citizenship status is to be viewed as of the time of the death or injury seems self-evident from the statute's history and wording.
In the years since 1913, it does not appear that any Texas court has been called upon to construe the statutory language otherwise. The question remains as to whether a different interpretation is called for today by the addition of subsection (a)(3) in 1997, requiring that "for a resident of a foreign state or country, the action [must be] begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect or default took place." Tex. Civ. Prac. & Rem. Code Ann. § 71.031(a)(3).
Subsection (a)(3), called a "borrowing statute" because it borrows the statute of limitations of the state where the injury occurred, is "essentially a codified choice-of-law rule." Owens Corning, 997 S.W.2d at 564, 573; see also Sautter v. Interstate Power Co., 567 N.W.2d 755, 760 n. 2 (Minn. Ct.App.1997) (noting that term "borrowing statute" is defined as the law of one state or jurisdiction used by another state in deciding conflicts questions involved in choice of law, citing Black's Law Dictionary 97 (5th ed.1983)); Miller v. Stauffer Chem. Co., 99 Idaho 299, 581 P.2d 345, 349 (1978) (describing borrowing statute as "choice of law" rule).
Most other states have borrowing statutes. See Owens Corning, 997 S.W.2d at 574; see generally, Ibrahim J. Wani, Borrowing Statutes, Statutes of Limitations and Modern Choice of Law, 57 UMKC L. Rev. 681, 715 & n. 38 (1989). Most of those statutes consider residency a factor. See Miller v. Lockett, 98 Ill. 2d 478, 75 Ill. Dec. 224, 457 N.E.2d 14, 17-18 (1983); see generally, J. Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev. 33, 69, 80-81 (1962) (noting that all but eight states' borrowing statutes have express provisions relating to the plaintiff's or the defendant's residence); Donna Mae Endreson, Winconsin's Borrowing Statute: Did We Shortchange Ourselves?, 70 Marq. L. Rev. 120, 123 n. 23 (1986). Some provide an express exception for resident plaintiffs. See Miller v. Lockett, 75 Ill. Dec. 224, 457 N.E.2d at 18 (citing, e.g., Cal. [Civ. Proc.] Code § 361 (West 1982); Idaho Code § 5239 (1979); N.Y. C.P.L.R. 202 (McKinney 1972)).
*127 In cases involving post-injury changes of residency by plaintiffs, courts have consistently interpreted their states' borrowing statutes not to apply where the plaintiff was a resident of the forum state at the time the cause of action accrued. See, e.g., Miller v. Stauffer, 581 P.2d at 346-47 (noting Idaho borrowing statute exception for one "who has been a citizen of this state" interpreted to mean when the cause of action accrues, not at the time of filing suit); Biewend v. Biewend, 17 Cal. 2d 108, 114, 109 P.2d 701, 705 (1941) (interpreting California borrowing statute not to apply if plaintiff was California resident at time cause of action accrued); Dugan v. Schering, 86 N.Y.2d 857, 635 N.Y.S.2d 164, 164, 658 N.E.2d 1037, 1037 (1995) (holding "exception" to New York borrowing statute for local residents applicable only to residents of state when cause of action accrued, not to one who subsequently moved to state); Savage v. Kramer, 95 Or.App. 166, 768 P.2d 425, 426 (1989) (holding residence at time cause of action accrued, not when suit filed, governed whether Oregon would borrow Nevada statute of limitations); Glynn v. Stoneville Furn. Co., 85 N.C.App. 166, 354 S.E.2d 552, 553 (1987) (holding plaintiff's subsequent change of residency did not render that state's borrowing statute inapplicable).
The Idaho Supreme Court, in Miller v. Stauffer, found "linguistic support" in that state's borrowing statute, as well as in other cases construing similar statutes, for its interpretation that plaintiff's residency in the forum state at the time the cause of action accrued would render the statute inapplicable. 581 P.2d at 347. Likewise, the Oregon appellate court in Savage v. Kramer noted that the plain language of its statute "linked" non-residency status to "when the cause of action has arisen" in order for the statute to apply. 768 P.2d at 426. The same linguistic support exists in the Texas borrowing statute.
The subject matter of the Texas borrowing statute is "[a]n action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country." Tex. Civ. Prac. & Rem. Code Ann. § 71.031(a). Subsection (3) then provides that "for a resident of a foreign state or country," the action must be begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect or default took place. Id. § 71.031(a)(3). The "action" in subsection (3) clearly refers to the same "action" described in (a), i.e., an action "for damages for the death or personal injury of a citizen of this state, of the United States or of a foreign country." Id. (emphasis added). We believe the language sufficiently links the residency of the "citizen" to the accrual of that citizen's cause of action to make the time of the accrual of the cause of action the critical time for determining residency.
Mindful that borrowing statutes are codified choice-of-law rules, we also find support in decisions holding that a plaintiff's residence at the time the cause of action accrued is a relevant factor under common-law choice-of-law analysis. See e.g., Miller v. Lockett, 75 Ill. Dec. 224, 457 N.E.2d at 17 (finding decisions recognizing plaintiff's residence as relevant in determining choice of law persuasive as to validity of borrowing statute exception in favor of resident injured outside state). It appears courts have consistently held, in determining which state's law should apply under a common-law choice-of-law analysis, that it is the plaintiff's residence at the time of the injury, not the time of filing, that is relevant. See, e.g., Summers v. Interstate Tractor & Equip. Co., 466 F.2d 42, 48, n. 3 (9th Cir.1972) (noting plaintiffs' subsequent relocation to Oregon not considered in choice-of-law analysis); Perloff v. Symmes Hosp., 487 F. Supp. 426, 428 *128 (D.Mass.1980) (applying Massachusetts law although plaintiff relocated to California after accident); Hall v. Gen. Motors Corp., 229 Mich.App. 580, 582 N.W.2d 866, 870 (1998) (holding North Carolina statute of "repose" for actions based upon defects in products barred suit brought in Michigan, where plaintiff did not become a resident of Michigan until after injury); Reich v. Purcell, 67 Cal. 2d 551, 555, 63 Cal. Rptr. 31, 34, 432 P.2d 727, 730 (1967) (declining to treat survivors in wrongful death suit as residents because they moved to California after accident); Ferren v. Gen. Motors Corp., 137 N.H. 423, 425, 628 A.2d 265, 267 (1993) (declining to consider post-accident move to forum state as relevant consideration in choice-of-law analysis).
As noted in Hall v. General Motors, the rationale underlying decisions refusing to consider a plaintiff's post-accident change of residence in a choice-of-law analysis is to prevent forum shopping by such post-injury moves. 582 N.W.2d at 870. The Supreme Court of California in Reich v. Purcell succinctly observed: "[I]f the choice of law were made to turn on events happening after the accident, forum shopping would be encouraged." 63 Cal. Rptr. 31, 432 P.2d at 730. Borrowing statutes, including that of Texas, reflect a legislative intent to achieve the same objective, i.e., to prevent forum shopping. To make a plaintiff's residence at the time of filing suit determinative for purposes of the Texas borrowing statute would disserve the legislative purpose underlying the statute.
We hold that Tullis's Texas residency when her cause of action accrued renders Section 71.031(a)(3) inapplicable. Tullis's action is for damages for personal injury to a Texas citizen. Therefore, the Texas borrowing statute does not apply to make the Tennessee statute of limitations applicable to bar her claim against Georgia-Pacific. Thus, the trial court abused its discretion in dismissing Tullis's suit to the extent that it based the dismissal on section 71.031(a)(3). We sustain Tullis's first issue.
In her second issue, Tullis contends that the forum non conveniens statute, section 71.051, "controls" over the borrowing statute if either statute applies to the dismissal. In view of our holding that the dismissal was an abuse of discretion under the borrowing statute, it is unnecessary to reach Tullis's second issue. However, we note that section 71.031(a)(3) is simply not a forum non conveniens statute, nor are its requirements jurisdictional. See Dubai, 12 S.W.3d at 76-77 (overruling Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926), to the extent that case characterized a plaintiff's failure to satisfy a prerequisite listed in section 71.031 as jurisdictional). As previously discussed, it is a codified choice-of-law rule for determining which state's statute of limitations applies for out-of-state injuries. Applicability of a statute of limitations to bar a plaintiff's claim is an affirmative defense. See Tex. R. Civ. P. 94. A defendant seeking a dismissal based on an affirmative defense such as a statute of limitations must first file a special exception or a motion for summary judgment giving the plaintiff an opportunity to respond. See, e.g., Hunter v. Johnson, 25 S.W.3d 247, 248-49 (Tex. App.El Paso 2000, no pet.) (holding motion to dismiss not proper vehicle to raise statute of limitations); cf., Toubaniaris v. American Bureau of Shipping, 981 S.W.2d 858, 860-61 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (addressing but not deciding whether motion to dismiss based on prior version of section 71.031 was appropriate). Therefore, the trial court could not have granted a dismissal of this suit based on the borrowing statute.
*129 VI. FORUM NON CONVENIENS
As to a plaintiff who is a legal resident of the United States, the 1997 version of section 71.051 provides that a claim or action may be stayed or dismissed under the doctrine of forum non conveniens if the party seeking the stay or dismissal proves, by a preponderance of the evidence, that: (1) an alternate forum exists in which the claim or action may be tried; (2) the alternate forum provides an adequate remedy; (3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party; (4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claim; (5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in the alternate forum; and (6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b).
A plaintiff's claim may not, however, be dismissed under section 71.051(b) if the plaintiff "is a legal resident of this state." Id. § 71.051(e). A "legal resident" is defined by the statute as a person "who intends the specified political subdivision to be his permanent residence and who intends to return to the specified political subdivision despite temporary residence elsewhere or despite temporary absences, without regard to the individual's country of citizenship or national origin." Id. § 71.051(h)(1).
1. Plaintiff's Residency
The forum non conveniens statute is worded differently from the borrowing statute and specifically provides that "[t]he court may not stay or dismiss a plaintiff's claim [based on forum non conveniens] if the plaintiff is a resident of this state." Tex. Civ. Prac. & Rem. Code Ann. § 71.051(e) (emphasis added). Tullis contends this statute, like the borrowing statute, should be construed to make the date the cause of action accrued determinative of whether the court may stay or dismiss a suit based on forum non conveniens. Under her interpretation, Tullis's suit is not subject to dismissal because she was a resident of this State when her cause of action accrued.
Tullis makes the same argument with respect to the forum non conveniens statute as she did with respect to the borrowing statute, arguing that the trial court's finding that she "is a resident of Colorado Springs, Colorado" does not support the order of dismissal based on forum non conveniens.
As originally passed by the Senate, the amendments to section 71.051 contained in Senate Bill 220 included a proposed section requiring the court "to determine whether a claim is filed by a resident or nonresident of this state from facts existing at the time the claim accrued."[9] That provision was absent from the House Civil Practices Committee substitute and as finally enacted.[10] The deletion *130 of a provision in a pending bill indicates a legislative intent to reject the proposed provision. See Texas Water Comm'n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 23 (Tex.1996); Trans. Ins. Co. v. Maksyn, 580 S.W.2d 334, 337 (Tex.1979). It is unclear from the deletion in this instance, however, whether the legislature meant that residency of a plaintiff could be determined either from facts existing at the time the cause of action accrued or at the time of filing, or whether it meant to make non-residency determinable exclusively by facts existing at the time of filing.
In contrast to the language at issue in section 71.051, we also note that section 71.052, passed as part of the same bill and dealing specifically with harm caused by asbestos fiber exposure, expressly applies only to a plaintiff who "was not a resident of this state at the time the claim arose." Tex. Civ. Prac. & Rem. Code Ann. § 71.052(a)(1). Arguably, the legislature could have used the same language in the forum non conveniens statute if it had desired to limit its application only to plaintiffs who were not residents of this state at the time their claims arose.
Whatever the legislature may have meant to say, we need not embark upon an analysis of legislative intent regarding the critical time for determining residency of a plaintiff under Section 71.051(e). Even assuming Georgia-Pacific sufficiently established that the forum non conveniens statute is applicable because Tullis "is" not a legal resident of this state but, rather, is a resident of Colorado, as found by the trial court, Georgia-Pacific failed to carry its burden to prove the substantive requirements for dismissal under the statute.
2. Forum Non Conveniens Analysis
Tullis's third issue challenges the legal and factual sufficiency of evidence to support the trial court's findings of fact. Her fifth issue asserts that the dismissal was an abuse of the trial court's discretion because Georgia-Pacific failed to meet its burden of proof on the forum non conveniens grounds. We consider these issues together. The factors to be considered in applying the doctrine of forum non conveniens are set forth in section 71.051(b) and are similar to those applied under the common law in Texas, which are adopted from Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08, 67 S. Ct. 839, 842-43, 91 L. Ed. 1055, (1947). See Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b); Baker, 985 S.W.2d at 277 n. 2.[11] It was Georgia-Pacific's burden to prove by a preponderance of evidence each of the six factors listed under section 71.051(b).
a. Available Forum
Under the common law, the defendant has the initial burden to determine that an available, alternate forum exists. See Sarieddine v. Moussa, 820 S.W.2d 837, 841 (Tex.App.-Dallas 1991, writ denied). A "foreign forum is available when the entire case and all the parties can come within the jurisdiction of that forum." Id. (quoting Quintero v. Klaveness Ship Lines, 914 F.2d 717, 727 (5th Cir.1990), cert. denied, 499 U.S. 925, 111 S. Ct. 1322, 113 L. Ed. 2d 255 (1991)). Subsection (1) of section 71.051(b) requires that an "alternate forum exist in which the claim or action may be tried." Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b)(1). Subsection (4) requires that the alternate forum, "as a result of the submission of the parties or otherwise, can exercise jurisdiction over all of the defendants properly joined." Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b)(4). *131 Georgia-Pacific contends that Tennessee is an alternate "available" forum, as required by sections 71.051(b)(1) and (4).
Georgia-Pacific points out that the trial court found it is a corporation with a registered agent and principal place of business in Tennessee, and also found the driver, Reid, is a resident of Tennessee. Thus, Georgia-Pacific argues, all of the parties are amenable to process in Tennessee and come within the jurisdiction of that court. The trial court's findings, based solely on the allegations of Tullis's original petition, are in error.
Tullis alleged that Georgia-Pacific has a registered agent and a regional office in Texas, not Tennessee. Moreover, Tullis alleged only that Reid was a resident of Tennessee at the time of the accident. Reid has never been found for service. There is no evidence of Reid's current residency in the record. Georgia-Pacific thus produced no evidence that Tennessee is an "available" forum in which all parties are amenable to service and subject to jurisdiction.
b. Adequate Remedy
Georgia-Pacific next argues Tullis had the burden of proof to establish that Tennessee is not an "adequate" forum. However, Georgia-Pacific cites pre-1997 law for this proposition. Senate Bill 220 shifted the burden of proof from the plaintiff, where it had been placed under the common law and by statute prior to 1997,[12] to the defendant to establish by a preponderance of the evidence that "the alternate forum provides an adequate remedy." Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b)(2). An alternate forum is "adequate" when the parties will not be deprived of all remedies or treated unfairly. See Sarieddine, 820 S.W.2d at 837 (correctly defining "adequate," but incorrectly cited by Georgia-Pacific for pre-1997 burden of proof). Georgia-Pacific has not proved that Tullis would not be deprived of a remedy in Tennessee. To the contrary, it is undisputed that Tullis has no remedy at all in Tennessee because her claim would be barred in that state by the Tennessee one-year statute of limitations.
Georgia-Pacific says this fact should be given no weight, citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 247, 102 S. Ct. 252, 261, 70 L. Ed. 2d 419 (1981). Georgia-Pacific correctly notes that, in Piper, the United States Supreme Court only stated that the possibility of a change in substantive law should not be given "substantial weight." Id. However, the Piper Court also stated that "dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute." Id. at 255 n. 22, 102 S.Ct. at 265 n. 22. Georgia-Pacific has offered no evidence that Tennessee courts would permit litigation of the subject matter of Tullis's claim, nor has Georgia-Pacific offered to waive its right to assert the Tennessee statute-of-limitations defense. See Direct Color Servs., Inc. v. Eastman Kodak Co., 929 S.W.2d 558, 565 (Tex. App.Tyler 1996, writ denied) (holding alternate forum was "adequate" where defendant stipulated against assertion of limitations as condition of dismissal). Georgia-Pacific has wholly failed to meet its burden with respect to the requirement that an alternative forum afford an "adequate remedy." See Mercier v. Sheraton Int'l., Inc., 935 F.2d 419, 425 (1st Cir.1991) (holding dismissal was abuse of discretion where defendant's evidence failed to address limitations bar to plaintiff's claim in alternate forum).
*132 c. Substantial Injustice
Tullis submitted records, unobjected to by Georgia-Pacific, as evidence that Georgia-Pacific is a Georgia corporation authorized to do business in Texas and with a registered agent in Texas. Georgia-Pacific has not shown that the driver, Reid, is still in Tennessee, nor has it identified any other material witness located in Tennessee. Although it points out that the site of the collision is located in Tennessee, we do not find this fact persuasive in light of the availability of photography, videotape, and accident reconstruction technology. As a Georgia corporation, Georgia-Pacific has offered no evidence that requiring it to litigate in Texas, as opposed to Tennessee, would cause a substantial injustice resulting in detrimental harm to its ability to mount a viable defense.
d. Balance of Interests
Subsection (5) of section 71.051 requires the defendant to prove that the "balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in the alternate forum." Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b)(5). In Gilbert, the private interest factors to be considered were listed as: the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; cost of obtaining attendance of willing witnesses; possibility of view of the premises, if appropriate; and "all other practical problems that make trial of a case easy, expeditious and inexpensive." 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947).
Tullis desires the suit to be in Texas. A plaintiff has an interest in selecting a forum in which to bring his or her suit. See A.P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502, 505 (Tex.App.-El Paso 1994, no writ). The only defendant served, Georgia-Pacific, does business in Texas. Because Reid has not been served and limitations has already run as to him, his absence from the suit is not a factor. Additionally, Tullis submitted evidence that she resided in Texas at the time of the accident, she was a resident of Texas at the time of her injuries, and that she received medical treatment for her injuries in Texas. Her other treating doctors are in Colorado. The remaining private factors have been discussed previously. Texas would at least have an interest in a suit involving injuries to one of its own residents and Georgia-Pacific has offered no evidence that Tennessee has an interest in a suit between a Colorado resident and a Georgia corporation. Georgia-Pacific has not shown that the public and private interests strongly predominate in favor of dismissal.
Forum non conveniens is rooted "in considerations of fundamental fairness and sensible and effective judicial administration." Alfaro, 786 S.W.2d at 703. The doctrine should be applied "with caution, exceptionally, and only for good reasons." Van Winkle-Hooker Co. v. Rice, 448 S.W.2d 824, 827 (Tex.Civ.App.-Dallas 1969, no writ). Under the common law, Texas courts held that dismissal was appropriate when a trial court determined that, for the convenience of the litigants and witnesses and in the interest of justice, the action should be instituted in another forum. See id. at 826. However, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Sarieddine, 820 S.W.2d at 840 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. at 843).
Not only has Georgia-Pacific failed to demonstrate that the balance is "strongly" in favor of dismissal, but there is a total absence of evidence produced by Georgia-Pacific to support the factors required by *133 section 71.051(b). A trial court abuses its discretion when there is no evidence to support its ruling. See Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989); D.N.S. v. Schattman, 937 S.W.2d 151, 155 (Tex. App.Fort Worth 1997, orig. proceeding); Van Winkle-Hooker Co. v. Rice, 448 S.W.2d at 828 (holding dismissal based on forum non conveniens abuse of discretion in absence of evidence other than plaintiff's non-residence in Texas). We sustain Tullis's third and fifth issues and hold that the trial court abused its discretion in granting Georgia-Pacific's motion to dismiss based on forum non conveniens.[13]
VII. CONCLUSION
The order of the trial court is reversed and remanded with instructions that the order of dismissal be set aside and the cause of action be reinstated on the court's docket for further proceedings consistent with this opinion.
NOTES
[1] The version of Section 71.031 in effect in 1991 provided:
§ 71.031 Act or Omission Occurring Out of State
(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect or default causing the death or injury takes place in a foreign state or country, if: (1) a law of the foreign state or country or of this state gives a right to maintain an action for the death or injury; (2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and (3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.
(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.
(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.
Act of May 17, 1985, 69th Leg., 1st R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3292, 3297, amended by Act of May 24, 1997, 75th Leg., R.S., ch. 424, § 3, 1997 Tex. Gen. Laws 1680, 1683 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 71.031).
[2] Act of Feb. 23, 1993, 73rd Leg., R.S., ch. 4, § 1, 1993 Tex. Gen. Laws 10, 10, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 567, § 1, 1995 Tex. Gen. Laws 3363, 3363, amended by Act of May 24, 1997, 75th Leg., R.S., ch. 424, § 1, 1997 Tex. Gen. Laws 1680, 1680 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 71.051).
[3] See generally, Carl Christopher Scherz, Section 71.051 of the Texas Civil Practice and Remedies CodeThe Texas Legislature's Answer to ALFARO: Forum Non Conveniens in Personal Injury and Wrongful Death Litigation, 46 Baylor L. Rev. 99, 122-34 (1994).
[4] See Tex. Civ. Prac. & Rem. Code Ann. § 71.031, 71.051, 71.052 (Vernon Supp.2000); added by Act of May 24, 1997, 75th Leg. R.S., Ch. 424, §§ 1-3, 1997 Tex. Gen. Laws 1680-83.
[5] See Act of April 1, 1913, 33rd Leg., R.S., ch. 161, § 1, 1913 Tex. Gen. Laws 338, 338.
[6] See Act of March 30, 1917, 35th Leg., R.S., ch. 156, § 1, 1917 Tex. Gen. Laws 365, 365.
[7] See Act of May 29, 1975, 64th Leg., R.S., ch. 530, § 2, 1975 Tex. Gen. Laws 1381, 1382.
[8] See Act of May 17, 1985, 69th Leg., 1st R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3297.
[9] Senate Research Comm., Bill Analysis, Tex. S.B. 220, 75th Leg., R.S. (Feb. 19, 1997) (emphasis added).
[10] Act of Feb. 23, 1993, 73rd Leg., R.S., ch. 4, § 1, 1993 Tex. Gen. Laws 10, 10, amended by Act of May 24, 1995, 74th Leg., R.S ., ch. 567, § 1, 1995 Tex. Gen. Laws 3363, 3363, amended by Act of May 24, 1997, 75th Leg., R.S., ch. 424, § 1, 1997 Tex. Gen. Laws 1680, 1680 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 71.051); House Comm. On Civil Practices, Bill Analysis, 75TH Leg., R.S., Tex. C.S.S.B. 220 (Committee Report) (Substituted) (May 20,1997).
[11] See Sherz, 46 Baylor L. Rev. at 129.
[12] Act of Feb. 23, 1993, 73rd Leg., R.S., ch. 4, § 1, 1993 Tex. Gen. Laws 10, 10, amended by Act of May 24, 1995, 74th Leg., R.S ., ch. 567, § 1, 1995 Tex. Gen. Laws 3363, 3363.
[13] Because we hold that the borrowing statute does not apply and the trial court's dismissal was an abuse of discretion as not supported by evidence satisfying five of the six enumerated factors in section 71.051(b), it is unnecessary to consider Tullis's fourth issue regarding whether the trial court should have conditioned the dismissal on an agreement not to assert the Tennessee statute of limitations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580497/ | 12 So. 3d 26 (2009)
Anthonie HENDERSON a/k/a Anthonie Jermaine Henderson a/k/a Anthonie J. Henderson, Appellant
v.
STATE of Mississippi, Appellee.
No. 2008-CP-01286-COA.
Court of Appeals of Mississippi.
May 19, 2009.
*28 Anthonie Henderson, appellant, pro se.
Office Of The Attorney General, by W. Glenn Watts, attorney for appellee.
Before KING, C.J., ROBERTS and CARLTON, JJ.
ROBERTS, J., for the Court.
¶ 1. In August 2000, Anthonie Henderson went before the Panola County Circuit Court and pled guilty to possession of marijuana with intent to sell. The circuit court sentenced Henderson to ten years in the custody of the Mississippi Department of Corrections (MDOC) to run consecutively to a previous three-year sentence. However, the circuit court suspended all ten years of Henderson's sentence.
¶ 2. Two revocation hearings followed. The first revocation hearing occurred in December 2003. After that hearing, the circuit court revoked Henderson's suspended sentence, ordered Henderson to serve two years of his ten-year sentence, and suspended the remaining eight years. In February 2006, Henderson's suspended sentence was revoked again. The circuit court ordered Henderson to serve the remaining eight years of his suspended sentence.
¶ 3. Henderson filed a motion for post-conviction relief, but the circuit court summarily dismissed Henderson's motion. Aggrieved, Henderson appeals and claims: (1) he received ineffective assistance of counsel when he pled guilty; (2) the circuit court violated his right to representation during his second revocation hearing; (3) the circuit improperly revoked his suspended sentence; (4) his sentence was unlawfully excessive; and (5) his guilty plea was not made knowingly, voluntarily, and intelligently. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 4. On August 9, 2000, Henderson pled guilty to possession of more than one *29 ounce of marijuana with intent to sell in violation of Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2005). The circuit court accepted Henderson's guilty plea and sentenced Henderson to ten years in the custody of the MDOC with all ten years suspended. The circuit court specified that Henderson's ten-year suspended sentence was to run consecutively to a three-year sentence for a previous conviction for possession of less than one ounce of marijuana with intent to sell.
¶ 5. On December 11, 2003, the circuit court conducted a revocation hearing. Henderson was represented by counsel. Ultimately, the circuit court revoked part of Henderson's suspended sentence and ordered Henderson to serve two years in the custody of the MDOC. However, the remaining eight years of Henderson's ten-year original sentence were still suspended.
¶ 6. In March 2007, the State filed an amended petition to revoke Henderson's remaining eight-year suspended sentence.[1] Within that amended petition, the State claimed that Henderson failed to pay assessments as ordered. The State also claimed that Henderson violated the terms of his suspended sentence when he engaged in criminal conduct. According to the State, by pleading or being found guilty of the following violations, Henderson engaged in criminal conduct:
November 2, 2005: possession of marijuana and failure
to obey a police officer
June 14, 2006: "loud music"
June 28, 2006: possession of marijuana in a motor
vehicle, no seatbelt in use, and an
open-container violation
September 6, 2006: expired tag and no seatbelt in use
September 13, 2006: expired tag
September 27, 2006: expired tag
January 17, 2007: possession of marijuana and failure
to obey a police officer
January 24, 2007: failure to obey a police officer and
expired tag
Henderson was not represented by counsel during the second revocation hearing. On April 27, 2007, the circuit court "revoked all of the remaining suspended sentence" and ordered Henderson to serve the eight years that remained.
¶ 7. On May 13, 2008, Henderson filed a motion for post-conviction relief. Henderson claimed that: he received ineffective assistance of counsel during his guilty plea; he was deprived of the assistance of counsel during his second revocation hearing; his sentence was unlawful; and his probation was unlawfully revoked. The circuit court found no merit to Henderson's motion and dismissed it without conducting an evidentiary hearing.
STANDARD OF REVIEW
¶ 8. A trial court's dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court's decision was clearly erroneous. Williams v. State, 872 So. 2d 711, 712(¶ 2) (Miss.Ct.App.2004). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So. 2d 595, 598(¶ 6) (Miss. 1999).
ANALYSIS
¶ 9. As a preliminary matter, it bears mentioning that Henderson claims that the circuit court could not have revoked his suspended sentence because the circuit court never placed him on probation. Henderson is correct in the sense that the circuit court never placed him on supervised probation. That is, the circuit court never ordered the MDOC to assign a field officer to Henderson or charged the MDOC with monitoring Henderson's behavior to ensure that Henderson was following the conditions of probation. However, by suspending Henderson's sentence and placing conditions on Henderson's behavior, without more, the circuit court *30 committed itself to monitoring Henderson's behavior. Johnson v. State, 925 So. 2d 86, 93 n. 5 (Miss.2006) (holding that "`[u]nsupervised probation' is the functional equivalent to `a straight suspended sentence' to the extent that the sentence is not under the supervision of the [MDOC], but under the watchful eye of the sentencing judge"). The Mississippi Supreme Court clarified and endorsed the circuit court's authority to suspend a sentence and subsequently revoke the suspended feature of that sentence. Id. Accordingly, a circuit court may suspend a sentence, in whole or in part, and in so doing, burden itself with "monitoring a defendant's behavior while the defendant is serving a suspended sentence, `unsupervised' probation, or `non-reporting' post-release supervision." Id. at 102(¶ 30). It follows that the circuit court acted well within its authority when it suspended Henderson's sentence and later reinstated it based on violations of the conditions of the suspension. That the circuit court did not place Henderson on supervised probation is of no moment. We now turn to the substantive issues on appeal.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 10. Henderson claims he received ineffective assistance of counsel when he pled guilty on August 9, 2000. Henderson filed his motion for post-conviction relief on May 13, 2008. When there has been a guilty plea, a petition for post-conviction relief must be filed within three years of the entry of a judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Rev. 2007). Henderson filed his motion more than seven years after he had pled guilty. Accordingly, Henderson's claim for post-conviction relief under this issue is untimely. Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996).
II. DEPRIVATION OF COUNSEL
¶ 11. Next, Henderson claims the circuit court violated his right to counsel when it did not provide him with an attorney during his second revocation hearing. There is no per se right to appointed counsel at a revocation hearing. Riely v. State, 562 So. 2d 1206, 1209 (Miss. 1990). "Whether probationers have a right to counsel must be answered `on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.'" Id. (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). The supreme court has set forth a general presumption that counsel should be provided in revocation cases that are "complex or otherwise difficult to develop." Id. Additionally, counsel should be provided in cases where a convicted individual has been informed of his right to request counsel and then "makes such a request, based on a timely and colorable claim." Id.
¶ 12. We cannot find that the circuit court abused its discretion when it declined to appoint an attorney for Henderson sua sponte. Henderson's revocation hearing was not complex or otherwise difficult to develop. The State claimed that Henderson violated the terms of his suspended sentence by committing numerous offenses. Henderson was represented by counsel at his first revocation hearing, and he never requested an attorney at or before his second revocation hearing. We find no merit to this issue.
III. IMPROPER BASIS FOR REVOCATION
¶ 13. Next, Henderson claims that the circuit court improperly revoked his suspended sentence during the second *31 revocation hearing. Henderson reasons that his suspended sentence should not have been revoked because none of the convictions listed in the amended petition to revoke were felonies. The State was not required to prove that Henderson committed new felonies. As previously mentioned, by suspending Henderson's sentence and not placing Henderson in supervised probation, the circuit court essentially placed Henderson in unsupervised probation. A circuit court may revoke probation upon "actual proof that the defendant engaged in ... criminal conduct." Grayson v. State, 648 So. 2d 1129, 1134 (Miss.1994). It follows that the circuit court could also revoke Henderson's suspended sentence upon actual proof that he engaged in criminal conduct. Henderson never contested the truth of the State's allegations of convictions as stated in its amended revocation petition.
IV. EXCESSIVE SENTENCE
¶ 14. Henderson claims the circuit court's ten-year sentence is excessive. Henderson claims that "because the crime lab report was 108.4 grams[,]" the maximum sentences allowable were either one year in the county jail or a maximum of three years in the state penitentiary. Henderson concludes that his ten-year sentence was excessive.
¶ 15. First and foremost, Henderson's claim is untimely. Henderson should have raised this issue within three years from the entry of his judgment of conviction. Miss.Code Ann. § 99-39-5(2). Because Henderson raised this issue more than seven years after the circuit court entered his judgment of conviction, this issue is time-barred.
¶ 16. The time bar notwithstanding, there is no merit to this issue. Henderson's reasoning is based on the mistaken concept that he pled guilty to simple possession of more than thirty grams but less than two hundred and fifty grams of marijuana in violation of Mississippi Code Annotated section 41-29-139(c)(2)(C) (Rev.2005). However, Henderson pled guilty to possession of more than thirty grams but less than two hundred and fifty grams of marijuana with the intent to sell in violation of Mississippi Code Annotated section 41-29-139(a)(1). The maximum sentence allowable for such a violation is thirty years in the custody of the MDOC. Miss.Code Ann. § 41-29-139(b)(1) (Rev.2005). Henderson's ten-year sentence is obviously less than that maximum possible sentence. This issue has no merit.
V. VOLUNTARY AND INTELLIGENT GUILTY PLEA
¶ 17. Henderson claims he did not plead guilty knowingly, voluntarily, and intelligently. As in Issues I and IV, Henderson should have raised this issue within three years of entry of his judgment of conviction. Miss.Code Ann. § 99-39-5(2). Because Henderson failed to raise this issue within that three-year time period, this issue is time-barred.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
NOTES
[1] The original petition does not appear in the record currently before this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1581164/ | 42 So. 3d 233 (2010)
GETER
v.
STATE.
No. SC10-1344.
Supreme Court of Florida.
July 12, 2010.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1580929/ | 42 So. 3d 429 (2010)
In re REINSTATEMENT OF CBG INVESTMENT GROUP, L.L.C.
No. 2009 CA 2150.
Court of Appeal of Louisiana, First Circuit.
June 3, 2010.
*430 Scott E. Frazier, Christopher R. Rutzen, Baton Rouge, LA, for Plaintiffs-Appellees, Brett Barousse, Bruce Grizzaffi, John Capone & CBG Investment Group, L.L.C.
Larry M. Roedel, Joshua B. Zeldon, Baton Rouge, LA, for Intervenor-Appellant, George Dane Broussard.
Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
PETTIGREW, J.
The question presented by this appeal is whether the trial court's ex parte order to reinstate the corporate status of a limited liability company voluntarily dissolved by affidavit pursuant to La. R.S. 12:142.1 constituted an abuse of discretion.
FACTS
In early 2005, Brett Barousse, Bruce Grizzaffi, and John Capone formed CBG Investment Group, L.L.C. ("CBG") (collectively "defendants"), for the purpose of purchasing, investing in, and/or developing certain pieces of real estate, and, hopefully, selling those properties later for a profit. Barousse, Grizzaffi, and Capone were the sole members of CBG, with Barousse and Grizzaffi designated as managers of the company.
At some point, it appears Barousse, Grizzaffi, and Capone offered George Dane Broussard, a long-time acquaintance of Barousse, an opportunity to purchase an uncompleted home in the Wilderness at White Oak Subdivision. Relying apparently on assurances given to him by Barousse, Grizzaffi, and Capone, Broussard purchased the uncompleted home situated at 19423 River Breeze Drive, Baton Rouge, Louisiana, from CBG on November 22, 2005, for $507,494.00. After depositing a substantial down payment and financing the balance of the purchase price, Broussard evidently hoped to promptly "flip" or resell the home and reap an immediate profit.
Following his purchase of the uncompleted home, Broussard allegedly discovered substantial defects including unfinished and substandard construction, a large crack in the foundation, a crack in the brick wall of the attached garage, and a surrounding neighborhood generally unfinished and abandoned. Due to these defects, Broussard claimed he was unable to obtain Certificates of Occupancy, and the property remained uninhabitable, unrentable, and unsellable. Broussard eventually *431 defaulted on his notes, and the property was ultimately foreclosed upon and sold at Sheriff's sale.
With no ownership interest in the property, a sizeable deficiency judgment, and other losses, Broussard filed suit in the 19th Judicial District Court on August 24, 2006, alleging defendants sold him a materially defective house and, thereafter, failed to live up to promises and assurances made to him regarding payment of the notes.[1]
Alleging its financial ventures had been unsuccessful, CBG ceased developing real estate for financial gain in 2006. Claiming CBG was devoid of any assets, owned no immovable property, and owed no debts, Grizzaffi, in his capacity as manager of CBG, voluntarily dissolved CBG on April 15, 2008, by filing an affidavit of dissolution with the Louisiana Secretary of State, pursuant to La. R.S. 12:142.1(A).
ACTION OF THE TRIAL COURT
Evidently realizing that dissolution of CBG's company charter exposed them to potential personal liability pursuant to La. R.S. 12:142.1, the members of CBG instituted the present litigation on July 14, 2009, by filing an ex parte Petition for Reinstatement of CBG Investment Group, LLC together with an attached order directing the Secretary of State to reinstate CBG as a viable Louisiana limited liability company. As part of their petition for reinstatement, the members of CBG disclosed that at the time of CBG's dissolution, Broussard's lawsuit was pending in the 19th Judicial District and remained unresolved.
Thereafter, counsel of record for defendants informed Broussard, through his attorney, that a Petition for Reinstatement had been filed, and forwarded him a courtesy copy of said petition. The order directing the Secretary of State to reinstate CBG as a viable Louisiana limited liability company was signed by the trial court on July 21, 2009, and then forwarded to the Secretary of State, who reinstated CBG on July 28, 2009.
On July 30, 2009, Broussard filed a Petition of Intervention, pursuant to La.Code Civ. P. art. 1091, claiming the unilateral reinstatement of CBG would have a substantial impact on his ongoing lawsuit against defendants. Broussard was thereafter granted leave of court to intervene in this matter.
In response to Broussard's intervention, the members of CBG filed a peremptory exception urging that as there was no pending action, Broussard had no legal authority to intervene in this matter, and as thus, possessed no cause of action. In the interim, Broussard moved for, and on September 30, 2009, was granted, a devolutive appeal from the order of reinstatement signed by the trial court on July 21, 2009.[2]
Despite opposition from Broussard, the trial court, following a contradictory hearing, signed a judgment granting defendants' exception on October 15, 2009.
LAW AND DISCUSSION
The Louisiana Business Corporation Law (LBCL) authorizes two methods for voluntarily dissolving a corporation out-of-court: (1) by action of the corporation *432 pursuant to La. R.S. 12:142, with the appointment of a liquidator; or (2) by affidavit executed by the shareholders pursuant to La. R.S. 12:142.1, when the corporation is not doing business and has no debts. This case involves the simplest and most convenient method of voluntary corporate dissolutionby affidavit.
Louisiana Revised Statute 12:142.1 provides:
§ 142.1. Dissolution by affidavit
A. In addition to all other methods of dissolution, if the corporation is not doing business, owes no debts, and owns no immovable property, it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, or by the incorporator if no shares have been issued, attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, or the incorporator if no shares have been issued, shall be personally liable for any debts or claims, if any, against the corporation in proportion to their ownership in the shares of the corporation.
B. The secretary of state shall reinstate a corporation which has been dissolved pursuant to this Section only upon receipt of a court order directing him to so reinstate the corporation.
As this court has noted in two earlier opinions, La. R.S. 12:142.1 is silent regarding several pertinent issues: i.e., what supporting evidence is necessary and/or sufficient in order for a court to reinstate corporate status; and if a reinstatement is ordered, whether a corporation is entitled to have the reinstatement declared to be retroactive. See In re Reinstatement of Venture Associates, Inc. of Louisiana, 00-0711, p. 4 (La.App. 1 Cir. 5/11/01), 808 So. 2d 650, 653 (hereafter referred to as "Venture I"); In re Reinstatement of Venture Associates, Inc. of Louisiana, 04-0439, pp. 4-5 (La.App. 1 Cir. 2/11/05), 906 So. 2d 498, 500 (hereafter referred to as "Venture II"). In both of these prior opinions, this court respectfully suggested that the legislature address the points left unanswered by La. R.S. 12:142.1.
It should be noted that unlike the facts presented to this court in the Venture cases, defendants in the present case apparently do not seek retroactive reinstatement of CBG's corporate status. In the present case, Broussard questions (1) whether Barousse, Grizzaffi, and Capone possessed the requisite authority to reinstate CBG, and (2) whether the trial court abused its discretion in issuing an order for CBG's reinstatement without an evidentiary or adversarial hearing.
In his brief to this court, Broussard cites and relies on Venture I as authority for the proposition that an ex parte motion for reinstatement of corporate status should not be granted absent an evidentiary hearing when there is an adversarial interest involved. See, Venture I, 00-0711, p. 8; 808 So.2d at 655.[3]
The opinion of this court in Venture I reveals following Venture's incorporation on June 3, 1987, several of its employees *433 filed Jones Act claims. On May 18, 1989, Venture filed a declaratory action in Iberia Parish seeking a determination on the issue of insurance coverage, and later, in 1992, amended its petition to name various insurance entities, including the appellants, as defendants. After settling with certain insurance entities, Venture continued to pursue its case against appellants.
On August 11, 1993, Venture's two shareholders filed an affidavit to dissolve the corporation pursuant to La. R.S. 12:142.1(A). Upon learning of Venture's dissolution, appellants filed exceptions raising the objection of no right of action, and the district court in Iberia Parish granted appellants' exceptions as to no right of action based upon proof of Venture's dissolution.
Thereafter, Venture's shareholders filed a written "Motion for Reinstatement of Corporate Status" in St. Mary Parish, on January 12, 2000. Said motion together with various attachments was submitted ex parte, and no evidence was submitted in support of the motion. The trial court signed an order the same date directing the reinstatement of Venture's corporate status retroactive to August 11, 1993, the date of its dissolution by affidavit.
The appellants assigned as error the trial court's granting of the ex parte motion for Venture's retroactive reinstatement absent evidence in support of the motion. In its opinion in Venture I, this court noted La. R.S. 12:142.1 was "silent, not only as to the need for supporting evidence, but more importantly, as to the stockholders' right to procure a retroactive reinstatement." Venture I, 00-0711, p. 4; 808 So.2d at 653. Finding there was no statutory support for or against Venture's entitlement to the ex parte order for retroactive reinstatement, this court then determined there was no controlling jurisprudence directly on point.
This court concluded Venture was not "clearly entitled", pursuant to La.Code Civ. P. art. 963, to the order of retroactive reinstatement issued ex parte by the trial court, and further ruled that as the pleadings disclosed the existence of an adversarial interest, the trial court should have held an evidentiary hearing. Venture I, 00-0711, p. 8; 808 So.2d at 655. Accordingly, this court vacated the order of reinstatement and remanded the matter for further proceedings.
Broussard asserts this court should follow its earlier decision in Venture I, and similarly vacate CBG's order of reinstatement and remand to the trial court for further proceedings.
Defendants respond with the argument that upon remand, the parties in Venture I filed a new motion for reinstatement wherein an evidentiary hearing was conducted. On hearing the new motion for reinstatement, the trial court determined there was sufficient evidence to allow for reinstatement of the corporation retroactive to the date of dissolution. This court, in Venture II, upheld that determination finding "that the desire to maintain a pending lawsuit in a corporation's name is a valid and lawful purpose for ordering the reinstatement of a corporation." Venture II, 04-0439, p. 7; 906 So.2d at 501. This court, in Venture II, further recognized,
[A]lthough Venture's right of action may have ended when the corporation was dissolved by affidavit, the cause of action against the appellants survived because the lawsuit was pending prior to the effective date of the dissolution. One of two things must happen in order to maintain the Iberia Parish case originally brought by Venture against the appellants. Either the proper party plaintiff must be substituted in the Iberia Parish case pursuant to [La.Code Civ. P.] arts. 692 and 700, or Venture's corporate status *434 must be retroactively reinstated so that Venture can maintain the lawsuit. Because we have already found that the trial court did not err when it issued the order reinstating Venture's corporate status, we likewise find that it was not error to order that the reinstatement be retroactive to the date of the dissolution. Venture II, 04-0439, pp. 9-10; 906 So.2d at 503 (Footnotes omitted).
Defendants further point out that CBG acknowledged the adversarial interest of Broussard in its Petition for Reinstatement, and cite and rely upon La. R.S. 12:148(C), which provides as follows:
C. Upon issuance of the certificate of dissolution, the corporate existence shall cease as of the effective date stated in the certificate, except for the sole purpose of any action or suit commenced theretofore by, or commenced timely against, the corporation.
As Broussard's litigation had commenced against CBG at the time CBG was dissolved by affidavit pursuant to La. R.S. 12:142.1, defendants claim the corporate existence of CBG remained "technically" in effect pursuant to La. R.S. 12:148(C) and never ceased for purposes of Broussard's suit against CBG. At the close of their brief to this court, defendants argue, for the first time, that "there is no reason the reinstatement of CBG should not be reinstated retroactively to the date of dissolution." (Bold emphasis supplied).
After a thorough review of the record in this case, we are mindful that the primary issue before this court is whether the trial court abused its discretion when it ordered reinstatement of CBG without conducting an evidentiary or adversarial hearing. Accordingly, we reject defendants' contention that the holding of this court in Venture II can similarly be applied to the current stage of the present litigation for the reason that an evidentiary or adversarial hearing has not been held.[4] For the reasons previously expressed by this court in Venture I, we conclude CBG was not "clearly entitled" pursuant to La.Code Civ. P. art. 963 to the order of retroactive reinstatement issued ex parte by the trial court, and as the pleadings disclosed the existence of an adversarial interest, the trial court should have held an evidentiary hearing. Accordingly, the trial court's order directing reinstatement of CBG's corporate status is hereby vacated, and this matter is remanded to the trial court for further proceedings consistent with this opinion.
In the event reinstatement of CBG's corporate status is ordered following an evidentiary or adversarial hearing, we express no opinion as to whether CBG is entitled to have said reinstatement declared to be retroactive, but instead direct the trial court's attention to Butcher v. Keith Hebert Carpentry/Vinyl Siding, Inc., 06-672 (La.App. 3 Cir. 12/20/06), 945 So. 2d 914, 916-917, and In re Reinstatement of North Louisiana Well Servicing Co., Inc., 597 So. 2d 160, 162 (La.App. 2 Cir.1992).
CONCLUSION
For the above and foregoing reasons, the trial court's order directing reinstatement *435 of CBG's corporate status is hereby vacated, and this matter is remanded to the trial court for further proceedings consistent with this opinion. All costs associated with this appeal shall be assessed against defendants, Brett Barousse, Bruce Grizzaffi, and John Capone.
ORDER VACATED; MATTER REMANDED.
NOTES
[1] George Dane Broussard v. CBG Investment Group, L.L.C., Brett Barousse, Bruce Grizzaffi, and John Capone, Docket No. 546,724, Section 24, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
[2] As Broussard was an interested third person who could have intervened in the trial court prior to its signing of the order of reinstatement, Broussard was granted a devolutive appeal pursuant to La.Code Civ. P. art. 2086.
[3] In Venture I, this court found "[o]ur examination of the jurisprudence interpreting [La. R.S.] 12:142.1(B) and related statutory provisions reveals there is no jurisprudential support for the proposition that Venture was "clearly entitled" to the ex parte order of retroactive reinstatement issued herein. [La. Code Civ. P.] art. 963." Venture I, 00-0711, p. 8; 808 So.2d at 655 [Bold emphasis supplied]. Earlier in its opinion in Venture I, this court noted, "[w]e do not address prospective reinstatement as that issue is not before us in this appeal." Venture I, 00-0711, n. 2; 808 So.2d at 651.
[4] We further note that as this court observed in Venture II,
Some distinctions exist in the case before us. For example, the pending lawsuit is not one that was filed against Venture [as is the case with the present litigation], but rather was brought by Venture [against appellants]... Most importantly, Venture has no apparent corporate creditors that are protesting the reinstatement of its corporate status [as is also the case with the present litigation].
Venture II, 04-0439, pp. 6-7; 906 So.2d at 501 (Italics found in original). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582467/ | 31 So. 3d 332 (2010)
Mary Ann Charles CALBERT
v.
Orlando J. BATISTE.
Nos. 2009-C-2646.
Supreme Court of Louisiana.
March 12, 2010.
PER CURIAM.[*]
Finding the Court of Appeal erred in reversing the district court's judgment sustaining defendants', Lafayette City-Parish Consolidated Government's (Lafayette) and State through Department of Transportation and Development's (DOTD), exceptions of lis pendens, we grant this writ to reinstate the District Court's judgment.
On July 23, 2007, Raymond Calbert (Raymond) passed away from injuries he sustained earlier that day when struck by a vehicle driven by Orlando Batiste (Batiste). On July 14, 2008, Mary Ann Charles Calbert (Mary Ann), as the surviving spouse and on behalf of Raymond's and her minor son, Rashaun Calbert, filed the instant wrongful death action against Batiste in the 15th Judicial District Court, docket number 2008-4022-B. On August 28, 2008, Major Calbert (Major), as Raymond's surviving son, filed his own wrongful death and survival action against Batiste, DOTD, and Lafayette in the 15th Judicial District Court, docket number 2008-4932-A. In response, DOTD and Lafayette filed exceptions of prescription, vagueness, and improper service.[1] Then on December 1, 2008, Major filed a petition of intervention, seeking to intervene in the present suit filed by Mary Ann and to add DOTD and Lafayette as defendants. In response, DOTD and Lafayette brought exceptions of lis pendens, claiming the existence of Major's first filed suit, docket number 2008-4932-A, prevented him from intervening in the present matter, docket number 2008-4022-B.[2]
The District Court sustained the exceptions of lis pendens, dismissing Major's claims with prejudice.[3] The Court of Appeal reversed, finding because the first filed suit existed in name only, multiple suits were not pending.
Under the provisions of La.Code Civ. Proc. art. 531, "[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto...." In the instant matter, Major has pending in the 15th Judicial District Court two virtually identical civil tort suits, alleging the same causes of action on the same occurrence against the same defendants in the same capacities. In accordance with *333 Article 531, DOTD and Lafayette are entitled to have all but the first suit dismissed. Therefore, we find the District Court properly sustained the exceptions of lis pendens, and the Court of Appeal erred in its reversal. Accordingly, the judgment of the Court of Appeal is reversed, and the judgment of the District Court sustaining the exceptions of lis pendens is reinstated and rendered.
REVERSED and RENDERED.
NOTES
[*] Kimball, C.J., did not participate in the deliberation of this opinion.
[1] On January 12, 2009, the district court heard these exceptions and ordered the suit be transferred to the instant suit, docket number 2008-4022-B.
[2] DOTD and Lafayette also filed exceptions of prescription, vagueness, and no cause of action.
[3] The District Court sustained the exceptions of prescription as well. However, our finding the exceptions of lis pendens were properly sustained renders all other issues moot, and therefore, we pretermit discussion of these issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/238183/ | 228 F.2d 494
Gordon DEITZv.UNITED STATES of America, Appellant.
No. 11679.
United States Court of Appeals Third Circuit.
Argued Dec. 21, 1955.Decided Dec. 29, 1955.Rehearing Denied Feb. 7, 1956.
Thomas E. Byrne, Jr., Philadelphia, Pa. (W. Wilson White, U.S. Atty., Robert Cox, Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellant.
Philip Dorfman, Philadelphia, Pa. (Dorfman & Pechner, Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
PER CURIAM.
1
This is an appeal from a judgment rendered in favor of the plaintiff who, at the time of his alleged accident, was employed as a seaman in the capacity of an oiler on board the respondent's vessel 'James Fergus.' The libellant has been awarded damages totaling $45,573.72. By separate findings these are divided as follows: for lost wages $573.72; for maintenance $108.00; for loss of future earning power $35,000; and for pain, worry, fear and anxiety $10,000.
2
In seeking review here, the appellant seems to suggest to us a different view from that we hold about the effect of McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 8. It seems to us that the Supreme Court gave us a rule in as clear words as the English language affords. It was said: 'In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure (28 U.S.C.) * * *.' This forthright statement requires no gloss from us.
3
The appellant urges three main points. One is to cast doubt upon the libellant's version of his accident. There is no basis for disputing the categorical findings of fact made by the trial court as to this. The court found that the libellant was struck in the face and eye by paint which fell from the brush of persons working above him and that this was due to the negligence of the painters.
4
Appellant also challenges the causal connection between the macular chorioretinitis from which the libellant suffers and the accident. There was medical testimony supporting the libellant's case on this point but it is called insufficient by the appellant. This phase of the case greatly resembles the situation we dealt with in Brett v. J. M. Carras, Inc., 3 Cir., 1953, 203 F.2d 451 and what we said with regard to proof of cause of diseases where the medical knowledge is not well settled will apply here.
5
Finally, the appellant complains of the award for $35,000 for loss of future earnings. Deitz is twenty-six years old, the court found, and has a life expectancy of forty-five years. It is proved as a fact that he has lost practically all the sight of one eye and that this loss is permanent. It is also shown how much oilers were making at the time of the accident and since. True, libellant has worked as an oiler since the accident although he is evidently not qualified under Coast Guard regulations cited to us. He has also had a job operating a crane in a factory. Nevertheless, we think that the loss of an eye is a pretty serious impairment and, while we would be glad if there were something more definite in the testimony as to its financial effect, we do not think we can call the award clearly erroneous.
6
The judgment of the district court will be affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1496320/ | 282 S.W.3d 767 (2008)
Eric FLOWERS, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 07-319.
Supreme Court of Arkansas.
April 10, 2008.
*769 Robert L. Depper, Jr., El Dorado, AR, for appellant.
Dustin McDaniel, Att'y Gen., by: Leaann J. Irvin, Ass't Att'y Gen., for appellee.
TOM GLAZE, Justice.
On September 26, 2006, a Miller County jury found Flowers guilty of capital murder by committing or attempting to commit the felony of robbery, and that in the course of and in furtherance of robbery he caused the death of Obie Watson under circumstances manifesting extreme indifference to the value of human life. On appeal, Flowers argues that the trial court erred by denying his motion for a directed verdict and by allowing the testimony on the part of three State witnesses: Jason Green, Detective Marc Sillivan, and Detective Shawna Yonts. Flowers's conviction for capital murder under Ark.Code Ann. § 5-10-101(a)(1) was supported by substantial evidence, and the trial court did not err in its evidentiary rulings. Accordingly, we affirm Flowers's conviction.
The record reveals the following. On August 25, 2004, at approximately 11:00 p.m., Jason Green was riding his motorcycle on a street in Texarkana, when he observed a pickup truck in a ditch. Green stopped to render aid and called out, asking if the occupants were injured. A voice responded from the dark and told Green "we are fine" and asked him not to call the police "because we've been drinking." Green asked once again if anyone was hurt and needed help, and the person again responded, saying everything was fine. Nevertheless, based on the nature of the responses, Green called 911 and reported the apparent accident. Green went home, got his own truck and returned to the scene of the accident. Green then used his headlights to illuminate the pickup in the ditch and called out to the occupants. There was no response so he approached and climbed into the bed of the wrecked truck and saw a man, later identified as Obie Watson, lying face down in the floorboard, with blood covering the passenger compartment. Officers from the Texarkana Police Department, responding to Green's earlier 911 call, arrived at the scene, and found Watson's body in the pickup truck.
After Watson was pronounced dead at the scene, the initial investigation revealed the back glass of his truck had been shattered. Officers found no skid marks, sliding marks, or any other indication of a cause of the accident. Evidence collected from Watson's truck included a brick found in the floorboard of the truck, shattered glass, and DNA samples. A gun and shell casings were later found near Watson's truck and fibers found in the hammer of the gun were determined to match fibers from nylon sacks containing wood that were in the bed of Watson's truck. Forensic tests of a bullet recovered from Watson's chest indicated that it was fired from the recovered gun. Lottery tickets were found inside Watson's truck and scattered along the ditch where Watson's truck stopped.
For his first point for reversal, Flowers argues that the trial court erred by denying his motion for a directed verdict. An appeal from a denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful evidence enough to compel a conclusion one way or the other beyond speculation *770 or conjecture. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004). The reviewing court views the evidence in the light most favorable to the verdict, and considers only evidence that supports the verdict. Clem v. State, 351 Ark. 112, 117, 90 S.W.3d 428, 430 (2002).
Circumstantial evidence may constitute substantial evidence to support a conviction. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.
A person commits capital murder if acting alone or with one or more other persons, he or she commits or attempts to commit robbery "and in the course of and in furtherance of" robbery "or in immediate flight therefrom, he or she or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life." Ark.Code Ann. § 5-10-101(a)(1) (Repl. 2006).
Flowers specifically argues that the jury's verdict was based on speculation because there was no testimony that Watson had a wallet or anything else in his pocket when he was killed, nor was there evidence that the lottery tickets, found scattered some distance from Watson's truck, belonged to Watson. There was testimony that Watson regularly purchased lottery tickets with very particular numbers, and lottery tickets that matched these numbers were found along the ditch where Watson's truck was located and inside the truck itself. Watson's pant's pocket was turned inside out and investigators found neither a wallet nor any other identification on Watson's person. The store clerk who sold the lottery tickets testified that Watson had purchased the tickets the night he was killed. The clerk further averred that Flowers had told the clerk that Flowers would pay back money the clerk loaned Flowers as soon as he was able to perform a robbery. DNA profiles taken from inside Watson's truck matched Flowers's DNA profile, and on the night Watson was murdered Flowers was picked up by another witness who testified that Flowers told her that he shot and killed Watson because Watson had seen Flowers's face. Finally, a witness testified that Flowers had possession of a gun at the time of Watson's murder that was later established as the murder weapon, and told the owner of the gun where it could be found after Watson's murder. Based on the direct and circumstantial evidence presented at trial, the jury's verdict was supported by substantial evidence without the need to resort to speculation and conjecture.[1]
For his second point for reversal, Flowers argues that the trial court erred by allowing Jason Green to testify regarding a person's voice and the person was unknown, *771 unseen, and unidentified at the scene of the crime. The Arkansas Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ark. R. Evid. 801(c) (2007). This court has held that an out-of-court statement is not hearsay under Rule 801(c), where the statement is offered to show the basis for the witness's actions. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984).
Here, Jason Green's testimony that a voice responded "Yes, we are fine. We are not hurt. We will be coming right up. Please do not call the police as we have been drinking"explained why Green left the scene to get his truck so he could offer help and also why he called 911 for assistance. Because Green's testimony was provided in order to show his basis of action, the trial court did not err in overruling Flowers's hearsay objection.
For his third point for reversal, Flowers argues that the trial court erred in allowing Officer Sillivan's opinion testimony that the rear glass window of Watson's truck appeared to be broken from the outside. Flowers contends that "[a]t trial, there were no facts articulated by [ ] Sillivan that would permit him to give his opinion as to the direction from which the glass had been broken."
Under Ark. R. Evid. 701, a witness not testifying as an expert may provide testimony in the form of opinions and inferences if those opinions and inferences are rationally based on the perception of that witness and are helpful to a clear understanding of the witness's testimony or a determination of a fact in issue. This court reviews a trial court's decision to allow lay opinion testimony under Rule 701 for abuse of discretion. Bridges v. State, 327 Ark. 392, 398, 938 S.W.2d 561, 564 (1997).
Our court held in Robinson v. State, 353 Ark. 372, 383, 108 S.W.3d 622, 628 (2003), that a trial court did not abuse its discretion when it allowed lay opinion testimony by an investigator regarding a victim's blood loss from a gunshot wound based on his experience as a homicide investigator. Similarly, in the case before us now, the trial court overruled Flowers's objection and allowed Sillivan to testify and give his lay opinion based on his work experience and observations. Sillivan testified that his opinion was that the truck's back glass window had been broken from the outside. He based his opinion on the shattered glass found inside Watson's truck and a brick found inside the truck. The circuit court ruled this testimony was rationally based on Sillivan's prior law enforcement experience, forensic training, and personal observation; we believe the circuit court was correct in doing so under Rule 701. Therefore, the trial court did not abuse its discretion.
For his final point, Flowers argues the trial court erred when it allowed Officer Shawna Yonts to provide expert testimony on the direction of blood spatters found inside Watson's truck. Whether a witness qualifies as an expert in a particular field is a matter within the trial court's discretion, and this court will not reverse such a decision absent an abuse of discretion. See, e.g., Jackson v. State, 359 Ark. 297, 302, 197 S.W.3d 468, 472 (2004). Ark. R. Evid. 702 provides the following:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may *772 testify thereto in the form of an opinion or otherwise.
In Farm Bureau Mutual Insurance Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), this court adopted the rule from Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held that trial courts must first determine whether an expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. Such a determination will require an assessment of whether the reasoning or methodology the testimony is based on is scientifically valid and whether it is applicable to the facts in issue. Id. This court has also adopted the subsequent Supreme Court decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), which determined that Rule 702 applies equally to all types of expert testimony and not simply to scientific expert testimony, and that they must be shown to be both reliable and relevant. See Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).
Here, the trial court concluded that Yonts's specialized training in "blood-spatter analysis" provided sufficient basis to qualify her to give expert testimony. Further, the trial court stated that it was uncontradicted that Yonts's training provided her with "knowledge in this field that a person would receive that would enable them to qualify to testify and give their opinion in this field of expertise."
This court has held that "if some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony" under Rule 702. Flowers v. State, 362 Ark. 193, 210, 208 S.W.3d 113, 127 (2005). Because Yonts had received specialized training that would have provided her with more than "ordinary knowledge" in blood-spatter analysis, the trial court did not abuse its discretion in admitting Yonts's testimony as that of an expert witness.
The record has been reviewed for all objections, motions, and requests adversely decided against Flowers as required under Ark. Sup.Ct. R. 4-3(h). See, e.g., White v. State, 370 Ark. 284, 259 S.W.3d 410 (2007). We find no prejudicial error.
NOTES
[1] Flowers also argues that the evidence was insufficient to support his conviction because there was no testimony that he killed Watson with premeditation or for pecuniary gain. However, the jury convicted Flowers for causing Watson's death in the furtherance of a robbery, not for a premeditated, deliberate killing. Pecuniary gain is an aggravating circumstance that a jury may use for consideration of whether to impose the death penalty under Ark.Code Ann. § 5-4-604 (Repl. 2006)which was not imposed. Accordingly, the court does not address these arguments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/391071/ | 650 F.2d 749
D. D., a Juvenile, Petitioner-Appellant,v.Honorable Bill WHITE, District Attorney of Bexar County,Texas, et al., Respondents-Appellees.
No. 80-2341
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Unit A
July 16, 1981.
Cobb, Thurmond & Clark, Earle Cobb, Jr., San Antonio, Tex., for petitioner-appellant.
Mark White, Atty. Gen., Nancy M. Simonson, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, POLITZ and TATE, Circuit Judges.
JOHN R. BROWN, Circuit Judge:
1
The petitioner, a juvenile whose probation was revoked, appeals from an order denying application for writ of habeas corpus. The District Court, relying upon 28 U.S.C.A. § 2254(b), dismissed the petition because all state remedies available to petitioner were not exhausted prior to application for writ of habeas corpus. As to petitioner's claims of (i) double jeopardy, (ii) failure of due process and right to confront witnesses, and (iii) concealment by prosecutor and others of material evidence, the record clearly reveals that the petitioner has not exhausted his state remedies. The District Court, therefore, properly dismissed those claims.
2
On the petitioner's claim of denial of his Sixth Amendment right to a speedy trial, however, it appears that petitioner has technically exhausted state remedies by his application for a writ of mandamus and, in the alternative, writ of habeas corpus, in the appropriate Court of Civil Appeals (unpublished order).1 Following denial there, petitioner pursued his complaint regarding speedy trial to the Texas Supreme Court where leave to file the petition was denied. Despite this apparent exhaustion of state remedies on the single issue of speedy trial, the District Court's dismissal of the "mixed" petition remains proper in this Circuit.2
3
The petitioner also claims that, because an attorney was not appointed or available after discharge of his first attorney, the judgment against him has now become final. The petitioner concludes that all state remedies to his claims are thereby exhausted. We are unpersuaded by this reasoning.
4
At the present time, we need not address the issues raised in the respondent's brief regarding (i) whether speedy trial requirements are applicable to juvenile probation revocations, (ii) the proper respondent(s) in this petition, or (iii) the merits of petitioner's various contentions. The District Court acted properly in dismissing without prejudice the petitioner's application for writ of habeas corpus because of petitioner's failure to exhaust available state remedies.
5
AFFIRMED.
1
Concerning habeas for juvenile delinquents, see In re Torres, 476 S.W.2d 883 (Tex.Civ.App. El Paso 1972, no writ); see also Comment, State Habeas Corpus for Juvenile Delinquents in Texas, 12 Hous.L.Rev. 1126, 1132-49 (1975)
2
Galtieri v. Wainwright, 582 F.2d 348, 355 (5th Cir. 1978) (en banc)
The policy in this Circuit is that a federal district court must dismiss without prejudice a "mixed" petition for a writ of habeas corpus filed by a state prisoner. A "mixed" petition is one that asserts both exhausted claims and unexhausted claims that do not fit an exception to the exhaustion doctrine; that is, some of the claims have not been presented to the state court system so that the custodial state has not yet had an opportunity to correct all of the alleged constitutional errors.
Id. (citations omitted). Although there are exceptions to this policy, such as absence, futility, or inefficiency of state remedies, see id. at 354-55 n.13,
(c)onsiderations of comity, avoidance of piecemeal litigation, economy of judicial energy, and the fullest consideration of a petitioner's claims are best served if all of a petitioner's claims are presented to the state court system at one time. If he is not afforded relief, then he may petition the federal court for a review of all his claims. The goal is to have a petitioner travel through each system only once, at most, in his quest for vindication of alleged constitutional errors.
Id. at 356. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/391155/ | 650 F.2d 1174
81-2 USTC P 9487
LIBERTY NATIONAL BANK AND TRUST COMPANY, Trustee of OharcoLiquidating Trust, Plaintiff-Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Defendant-Appellant.
No. 79-1891.
United States Court of Appeals,Tenth Circuit.
June 10, 1981.
Peter B. Bradford, Oklahoma City, Okl. (Judson S. Woodruff, Frank D. Hill, and Terry R. Hanna of McAfee, Taft, Mark, Bond, Rucks & Woodruff, a Professional Corp., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee.
Michael L. Paup, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Jonathan S. Cohen, and Helen A. Buckley, Tax Division, Dept. of Justice, Washington, D. C., with him on the brief), for defendant-appellant.
Before McWILLIAMS and McKAY, Circuit Judges, and WEST, District Judge.*
McWILLIAMS, Circuit Judge.
1
The only issue on appeal is whether the Tax Court erred in holding that a corporation, after electing to liquidate under the provisions of Internal Revenue Code (I.R.C.) § 337 (1954), is entitled to recognize a loss because it accepts less than face value as the sale price for its trade accounts and notes receivable.1 We conclude that the Tax Court did not err in so ruling.
2
The essential facts are not in dispute and were stipulated to in the Tax Court. They are fully set forth in the Tax Court's Memorandum Opinion and will not be repeated here. See Liberty National Bank and Trust Co. v. Commissioner, 38 T.C.M. (CCH) 314 (1979).
3
I.R.C. § 336 states the general rule that, except as provided in I.R.C. § 453(d) relating to the disposition of installment obligations, no gain or loss shall be recognized to a corporation on the distribution of property in partial or complete liquidation. I.R.C. § 337(a) provides that no gain or loss is recognized to a corporation from the sale or exchange of "property" within a twelve-month period beginning with the adoption of a plan of complete liquidation, if the corporation distributes all of its assets, not counting those retained to meet claims, during the twelve-month period.2
4
The term "property" is not defined in section 337. However, section 337(b) (1) excludes certain items from the nonrecognition provision of 337(a). Section 337(b)(1) states that, for the purposes of 337(a), the term "property" does not include the following: (1) the stock in trade of the corporation held primarily for sale to customers; (2) installment obligations acquired in the sale of stock in trade, regardless of whether the sale was before or after the adoption of a plan of liquidation; and (3) installment obligations acquired in the sale of all classes of property other than stock in trade where such sale was made prior to the adoption of a plan of liquidation.
5
In the instant case, after adopting its liquidation plan, the taxpayer3 sold its accounts receivable for $50,000 less than their face or book value. These accounts were generated from the sale of the taxpayer's stock in trade to customers in the ordinary course of its business. The accounts originated prior to taxpayer's adoption of its plan of liquidation.
6
The Commissioner does not dispute the fact that the taxpayer realized a loss of $50,000 in the sale of its trade accounts and notes receivable. The Commissioner contends, however, that the loss is not recognizable under the provisions of section 337(a), which, as indicated, provides that no gain or loss shall be recognized from the sale or exchange of property by a corporation in the process of complete liquidation. The taxpayer contends that the loss realized must be recognized notwithstanding the provisions of section 337(a), since accounts receivable are a type of installment obligation, which, under section 337(b)(1)(B), are specifically excluded from the nonrecognition provision of section 337(a).
7
As earlier mentioned, the Tax Court held that the loss was recognizable since, under section 337(b)(1)(B), installment obligations acquired in the sale of stock in trade do not constitute "property" as that term is used in the nonrecognition provision of section 337(a). Specifically, the Tax Court found that the "sale of accounts receivable qualifies for recognition under the exception in section 337(b)(1)(B) as an installment obligation." 38 T.C.M. at 317.
8
We agree with the result reached by the Tax Court. Since we are in general accord with the Tax Court's rationale, such will not be repeated in any detail here.
9
In this Court the Commissioner's main argument is that the term "installment obligation" is a term of art, and is limited to obligations received in connection with sales made on the installment plan, i. e., periodic payments spread out over a period of time, and reported in the manner permitted by section 453. The taxpayer in the instant case did not report its non-cash sales in the manner permitted by section 453, and, from this fact, the Commissioner argues that taxpayer's trade accounts and notes receivable cannot therefore be deemed to be "installment obligations" under section 337(b)(1) (B). We do not agree.
10
The term "installment obligation" is not defined in the Code. Section 453 merely prescribes a method by which a taxpayer "who regularly sells or otherwise disposes of property on the installment plan" may report such income. The wording of section 453 suggests that there may be income from installment obligations which will not be reported in the manner permitted by that section. Hence, the fact that a taxpayer elects not to use the method of reporting permitted by section 453 does not necessarily mean that obligations in the form of trade accounts and notes receivable are not "installment obligations" as that term is used in section 337(b)(1)(B).
11
Our disposition of the present matter finds support in Coast Coil Co. v. Commissioner, 50 T.C. 528 (1968), aff'd, 422 F.2d 402 (9th Cir. 1970), and Family Record Plan, Inc. v. Commissioner, 36 T.C. 305 (1961), aff'd on other grounds, 309 F.2d 208 (9th Cir. 1962), cert. denied, 373 U.S. 910, 83 S.Ct. 1297, 10 L.Ed.2d 411 (1963).
12
In Coast Coil, the Tax Court rejected the argument made here by the Commissioner that "installment obligations," as that term is used in section 337(b)(1)(B), means only those obligations resulting from the sale of property which the seller has elected to report under the installment method provided in section 453. In so holding, the Tax Court was of the view that the intent of section 337(b)(1)(B) "is much broader than the ground covered by section 453 and is designed to embrace accounts receivable arising under the sale of stock in trade by an accrual basis corporation as well."4 The Tax Court noted that, as is true in the instant case, the taxpayer had previously reported and paid income taxes on its sales and then suffered a loss when it sold those accounts. 50 T.C. at 533-34. As indicated, on appeal Coast Coil was affirmed by the Ninth Circuit in a 2-1 decision.5
13
In Family Record, there was a gain, not a loss, realized in the sale of accounts receivable, and in that situation the Commissioner's position was that the gain was taxable, and did not come within the nonrecognition provision of section 337(a). In other words, it was the taxpayer in Family Record who advanced the argument made here by the Commissioner that failure to report under section 453 precludes a finding that the obligations were "installment obligations" under section 337(b)(1)(B).6 In Family Record, the Tax Court rejected the taxpayer's argument and upheld the Commissioner's position that gain realized on the sale of the accounts receivable was taxable.7
14
On appeal in Family Record, the Ninth Circuit affirmed, using an anticipatory assignment of income theory. In thus holding, however, the Ninth Circuit did not disapprove of the reasoning of the Tax Court. And, of course, in Coast Coil, the Ninth Circuit approved of the Tax Court's holding that accounts receivable are included within the broader term "installment obligations."
15
Judgment affirmed.
*
Honorable Lee R. West, United States District Judge of the Western District of Oklahoma, sitting by designation
1
There were two issues in the Tax Court. The issue of whether the taxpayer may deduct a loss as a result of a settlement of a lawsuit involving a sale of trade accounts and notes receivable is not before this Court on appeal. The Tax Court also decided that issue in favor of the taxpayer
We note at the outset that section 337 was passed in response to two Supreme Court decisions, Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945), and United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 (1950), cases in which the Court appeared to adopt conflicting rules. There is a good exploration of the history of section 337, including a discussion of the holdings in these two cases, in Central Tablet Mfg. Co. v. United States, 417 U.S. 673, 677-83, 94 S.Ct. 2516, 2519-22, 41 L.Ed.2d 398 (1974).
2
I.R.C. § 337 provides in pertinent part:
§ 337. Gain or loss on sales or exchanges in connection with certain liquidations
(a) General rule. If, within the 12-month period beginning on the date on which a corporation adopts a plan of complete liquidation, all of the assets of the corporation are distributed in complete liquidation, less assets retained to meet claims, then no gain or loss shall be recognized to such corporation from the sale or exchange by it of property within such 12-month period.
(b) Property defined.
(1) In general. For purposes of subsection (a), the term "property" does not include
(A) stock in trade of the corporation, or other property of a kind which would properly be included in the inventory of the corporation if on hand at the close of the taxable year, and property held by the corporation primarily for sale to customers in the ordinary course of its trade or business,
(B) installment obligations acquired in respect of the sale or exchange (without regard to whether such sale or exchange occurred before, on, or after the date of the adoption of the plan referred to in subsection (a)) of stock in trade or other property described in subparagraph (A) of this paragraph
(C) installment obligations acquired in respect of property (other than property described in subparagraph (A)) sold or exchanged before the date of the adoption of such plan of liquidation.
3
The taxpayer, Liberty Bank and Trust Co., a national banking association with its principal place of business in Oklahoma City, Oklahoma, is the liquidating trustee pursuant to a 1974 liquidating trust agreement between Liberty and Oharco Liquidating Co. (Oharco). An Oklahoma company headquartered in Oklahoma City, Oharco is the successor to Oklahoma Hardware Co., which was incorporated in 1900 and was in the wholesale hardware business
4
Section 453 appears not to be definitional in nature. Rather, it merely describes one permitted method of accounting or reporting income. While some sections of the I.R.C. refer to section 453, the statute which is at issue, i. e., section 337, does not contain such a reference. This appears to be an indication that the term "installment obligations" in section 337(b)(1)(B) should not be limited by the terms of section 453
5
The Commissioner recognizes that the opinion in Coast Coil is contrary to the result for which he argues. He cites the dissenting opinion in Coast Coil, apparently urging this Court to adopt the position of the dissent. We decline to do so
6
The Commissioner recognizes that his position here is exactly the opposite of his position in Family Record. He states, however, that this policy change was made subsequent to Family Record, decided by the Tax Court in 1961, and was his position in Coast Coil, decided in 1970
7
A similar argument was made and rejected in Commissioner v. Kuckenberg, 309 F.2d 202 (9th Cir. 1962), cert. denied, 373 U.S. 909, 83 S.Ct. 1296, 10 L.Ed.2d 411 (1963), in which the Ninth Circuit found taxable a gain on a sale of contracts by a liquidating taxpayer which reported on the cash accounting basis | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/470340/ | 791 F.2d 561
Peter F. MOSKIEWICZ and Jo Ann Moskiewicz, Plaintiffs-Appellants,v.UNITED STATES DEPARTMENT OF AGRICULTURE and Farmers HomeAdministration, Defendants-Appellees.
No. 85-1892.
United States Court of Appeals,Seventh Circuit.
Submitted Oct. 30, 1985.Decided May 23, 1986.
1
Leslie F. Kramer, Antoniewicz, Gregg & Rona, Madison, Wis., Charles S. Senn, Thorp, Wis., for plaintiffs-appellants.
2
John R. Byrnes, U.S. Atty., Madison, Wis., for defendants-appellees.
3
Before COFFEY, Circuit Judge, RIPPLE, Circuit Judge, and CAMPBELL, Senior District Judge.*
4
William J. CAMPBELL, Senior District Judge.
5
Plaintiffs Peter and Jo Ann Moskiewicz appeal a ruling of the U.S. District Court for the Western District of Wisconsin which granted in part a motion for summary judgment in favor of defendants U.S. Department of Agriculture and the Farmers Home Administration (FmHA). The district court concluded the plaintiffs had brought two causes of action under the Privacy Act (the Act), 5 U.S.C. Sec. 552a, et seq. In essence, defendants filed motions for summary judgment attacking both causes. The district court granted defendants' motion as to the first cause yet ruled for plaintiffs on the second.
6
This litigation arose because plaintiffs' application for an emergency economic loan under the Emergency Agriculture Credit Adjustment Act of 19781 was rejected by the FmHA. In plaintiffs' first cause of action plaintiffs alleged the FmHA, an agency for purposes of the Privacy Act, violated 5 U.S.C. Sec. 552a(g)(1)(C) because it failed, as the relevant part of that statute reads:
7
... to maintain any record concerning any individual with such accuracy, ... as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual;
8
Further, plaintiffs asked for damages under 5 U.S.C. Sec. 552a(g)(4) of the Privacy Act, by properly asserting FmHA officials "willfully and intentionally" maintained the allegedly inaccurate information. 5 U.S.C. Sec. 552a(g)(4) states:
9
(4) In any suit brought under the provisions of subsection (g)(1)(C) of (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of--
10
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
11
(B) the costs of the action together with reasonable attorney fees as determined by the court.
12
In plaintiffs' second cause of action, as delineated by the district court, plaintiffs sought to have the allegedly inaccurate records amended according to the provisions set forth in 5 U.S.C. Sec. 552a(g)(1)(A) and (g)(2). The district court decided to rule on plaintiffs' second cause of action first, reasoning that if there was no genuine issue of material fact which would lead one to conclude plaintiffs' records deserved to be judicially amended, then there could be no genuine issue as to whether FmHA officials willfully and intentionally maintained inaccurate records for the purposes of damages.2 The district court concluded that plaintiffs' proposed amendments to their application, while based on dubious assumptions, would indeed produce figures on their application which would generate the positive cash flow necessary to secure the emergency loan. The district court stated while it doubted plaintiffs' figures, they were figures which were computed in a manner open to debate, and therefore the question of their accuracy created issues of fact sufficient to preclude summary judgment. If plaintiffs' figures were ultimately deemed more accurate, it would be the FmHA's inaccurate figures which caused plaintiffs' loan application to be rejected. Hence, plaintiffs' second cause of action, which asked for FmHA's allegedly inaccurate records to be amended, survived this summary judgment stage.
13
The district court then ruled on plaintiffs' other action which sought damages by alleging defendants willfully and intentionally maintained the allegedly inaccurate records. The district court concluded that assuming arguendo the FmHA records were inaccurate and in need of amendment there was no evidence which could lead a reasonable factfinder to infer defendants willfully and intentionally maintained the inaccurate records within the meaning of the Privacy Act. The district court believed that because the figures used in the application were genuinely debatable (precluding summary judgment on the issue of amending them discussed above) there was no evidence defendants recklessly disregarded the provisions of the Privacy Act by intentionally maintaining inaccurate records. Under a worse case scenario, the district court could conceivably foresee the FmHA as being found negligent in maintaining the figures/records it did. However, negligent behavior was simply not sufficient to recover damages under the Privacy Act's "willful and intentional" violation provision. In sum, the district court granted defendant FmHA's motion for summary judgment on the damages issue, yet let the issue as to whether plaintiffs' records merited amending survive the summary judgment stage. We note subsequent to these events both parties stipulated to voluntary dismissal with prejudice to plaintiffs' second cause of action which sought that the records be amended. With the dismissal of plaintiffs' second cause of action, the district court's granting of defendants' summary judgment on the first cause became a final appealable order and we now have jurisdiction under 28 U.S.C. Sec. 1291.
14
The issue on appeal is whether the district court erred in ruling there was no evidence defendants intentionally or willfully violated the Privacy Act. What type of behavior constitutes an intentional and willful violation has been the subject of significant debate among the courts in recent years. The most popular explanation, used as a starting point by the majority of courts, comes from the legislative history entitled "Analysis of House and Senate Compromise Amendments to the Federal Privacy Act," to be found at 120 Cong.Rec. 40405, 40406 (1974):
15
In a suit for damages, the [compromise] amendment reflects a belief that a finding of willful, arbitrary or capricious action is too harsh a standard of proof for an individual to exercise the rights granted by this legislation. Thus the standard for recovery of damages was reduced to "willful or intentional" action by an agency. On a continuum between negligence and the very high standard of willful, arbitrary, or capricious conduct, this standard is viewed as only somewhat greater than gross negligence.
16
Having initially identified the standard for recovery of damages as conduct constituting something "greater than gross negligence" courts have struggled to determine what specific actions on the part of government officials could meet the standard. A seminal case which discussed the application of the greater than gross negligence standard to specific conduct was Parks v. United States Internal Revenue Service, 618 F.2d 677 (10th Cir.1980). In Parks plaintiffs, employees of the Internal Revenue Service, claimed their employer wrongfully surveyed their personnel files to ascertain whether they had purchased U.S. Savings Bonds (in violation of 5 U.S.C. Sec. 552a(b)(1) and (3)). Having decifered plaintiffs had not purchased bonds, the IRS included their names in a telephone campaign conducted by non-supervisory employees to solicit bond purchases. Plaintiff sought damages based on psychological harm from the unauthorized disclosure of their records. The government claimed defendants had failed to allege a willful and intentional violation of the Act. The Parks court ruled while it did not appear proof of premeditated malice was required to meet the "willful and intentional" conduct standard under the Privacy Act, defendants' publishing of the information to IRS employees in this instance for the use of soliciting bond sales fell short of conduct worthy of damages (greater than gross negligence) under the "willful and intentional" provision of the Privacy Act. While the denunciation of a requisite finding of premeditated malice helped further define "willful and intentional" conduct under the Act, other courts still grappled to fit the language/standard into their circumstances.
17
In South v. Federal Bureau of Investigation, 508 F.Supp. 1104 (N.D.Ill.1981) Judge James Moran conducted a general survey of definitions and standards concerning "intentional and willful" conduct. He quoted Black's Law Dictionary as defining these terms by referring to "conscious," "knowing" and "designed" acts of behavior. However, Judge Moran noted that the emphasis could shift, depending on the area of the law. For example, in securities law, a "recklessness" standard was considered desirable to employ, and "violations were found where the defendant proceeded in apparent disregard of or with reckless indifference to a known obligation or set of facts." (citing Wasson v. SEC, 558 F.2d 879, 882 (8th Cir.1977)) (emphasis added). Judge Moran cited the Ninth Circuit in Sorenson v. United States, 521 F.2d 325 (9th Cir.1975) as defining willful conduct in terms of recklessness--a "reckless disregard for obvious risks." The Seventh Circuit has similarly endorsed a "recklessness" test on past occasions (see Sundstrand v. Sun Chemical Corp., 553 F.2d 1033 (7th Cir.1977)). Hence, elements of recklessness often have been a key characteristic incorporated into a definition of willful and intentional conduct.
18
Judge Moran was forced to conclude that, "Judicial interpretations of the intentional and willful standard under the Privacy Act are sparse." See 508 F.Supp. at 1107. However, with that in mind he formulated a standard based on several authorities. As a starting point he referred to the "greater than gross negligence" standard/language mentioned in legislative history from the Congressional Record. To this base he added two other factors to be considered: a "recklessness factor," traditionally endorsed in cases such as Sorenson, Wasson and Sundstrand, supra and a "scienter factor" or requirement of "knowing conduct". The scienter factor, the idea one should realize he is violating the Act, derives from a line of cases such as Bruce v. United States, 621 F.2d 914 (8th Cir.1980) (although see also Wasson, supra). In Bruce it was deemed that a governmental employee who violated the Act simply by following unchallenged regulations of a governmental agency could not be accused of willful and knowing violations of the Act. The scienter factor has recently been emphasized in a lead case addressing this issue, Albright v. United States, 732 F.2d 181 (D.C.Cir.1984). In Albright it was stated:
19
... the "intentional or willful" action requirement of Section 552a(g)(4) refers only to the intentional or willful failure of the agency to abide by the Act, and not to all voluntary actions which might otherwise inadvertently contravene one of the Act's strictures. Section 552a(g)(4) imposes liability only when the agency acts in violation of the Act in a willful or intentional manner, either by committing the act without grounds for believing it to be lawful, or by flagrantly disregarding others' rights under the Act. Id. at 189.
20
We conclude evidence of conduct which would meet a greater than gross negligence standard, focusing on evidence of reckless behavior and/or knowing violations of the Act on the part of the accused, must be advanced by a claimant at the summary judgment stage in order to maintain a civil action for damages under the Privacy Act.
21
Turning to the case at bar, we agree with the district court that plaintiffs have failed to advance sufficient evidence to create a genuine issue of material fact as to whether defendants' conduct could constitute "willful and intentional" behavior for purposes of maintaining an action for damages under the Privacy Act. Surveying the record we do not find defendants' actions as so reckless as to meet the greater than gross negligence standard. We also do not find evidence of a knowing violation of the Privacy Act by defendants within the meaning of the caselaw cited above. We believe the district court's dismissal of the damages action at the summary judgment stage appropriate.
22
Plaintiffs assert that data relevant to their economic emergency loan were "ignored, erroneously used, construed or applied incorrectly, or not adequately verified." (Plaintiffs' brief p. 17.) They also claim defendants "intentionally and willfully refused to correct and/or verify whether the facts they were relying on were accurate." (Plaintiffs' brief p. 19.) We find there were legitimate disagreements between the parties on the data that should be used but that the facts and figures adopted by the defendants were reasonably relied upon. Defendants' reasonable reliance on facts and calculations in an area admittedly open to debate amounted to (at worst) negligence. In no way does it constitute reckless or knowing conduct which could be deemed equivalent to a greater than gross negligence standard.
23
For example, plaintiffs maintain if defendants used the figures plaintiffs proposed for their loan application, they could generate a positive cash flow. Plaintiffs justify their figures by proposing to "cash-crop" oats. Plaintiffs claim they are capable of yielding 65 bushels of oats per acre as a cash crop, a yield figure plaintiffs deem reasonable and one supported by an affidavit of Roger Smith, Manager of Wisconsin Foundation Seeds. Plaintiffs further claim they in fact cash-cropped oats in 1975 at a rate of 60 bushels per acre. Defendants maintain plaintiffs' figures based on cash-cropping oats are excessive and that cash-cropping oats at plaintiffs' farming location is unrealistic. Defendants claim the maximum amount of oats capable of being yielded is 50 bushels per acre. Defendants used this figure on plaintiffs' application and it generated lower cash flow projections from plaintiffs' farm and triggered a denial of the emergency loan. Defendants admit the 50 bushels per acre is based on oats raised in Clark County, Wisconsin as a nursery crop (as opposed to cash crop).3 However, defendants maintain conditions for cash-cropping oats in Clark County, Wisconsin, where plaintiffs' farm was located, are unsuitable. This view is shared by the Clark County FmHA committee, composed of local farmers. Defendants further note its projected oat yield of 50 bushels per acre is based on a figure representing the approximate average oats yield per acre in Clark County over 10 years prior to 1980.
24
The point for our purposes (or the district court) is not which side was right. The point is both parties have legitimate evidence which could honestly lead them to conclude, with all due respect, that their positions are correct. Defendants' usage of its figures, despite evidence submitted by plaintiffs' doubting their accuracy, does not amount to gross negligence or reckless behavior. The accurateness of plaintiffs' yield figures for cash-cropping oats does not appear as inherently reliable as plaintiff suggests. Both sides have evidence supporting their positions and at best it appears plaintiffs' ability to cash-crop oats successfully at the rate they project is legitimately debatable. This is far short of the "willful and intentional" violation (or greater than gross negligent conduct) necessary to maintain an action for damages under the Privacy Act.
25
The remainder of plaintiffs' complaints about defendants' "behavior" in its selection of statistics to determine their loan qualifications concern issues which are legitimately debatable and constitute honest disputes. For example, plaintiffs deny they had a generally poor farming record. They explain their poor performance for the past two years before their loan application on bad weather conditions, which they say plagued all local farmers. Defendants maintain, nonetheless, that the fact remains plaintiffs had an unfavorable rating for cash-cropping peas and sunflowers during that time period. Plaintiffs also assert their estimated oat cash-cropping yields were based on their actual experience and point to the Roger Smith affidavit as supportive evidence. In fact, they claim in their reply brief defendants specifically lent them money to cash-crop oats. Defendants, in rebuttal, insist there is no history of defendant cash-cropping oats and that the supportive Smith affidavit was executed after the FmHA appeal procedure was exhausted. They further assert Smith's yield figures are based on experimental studies, not actual field conditions. Finally, plaintiffs believe the costs to cash-crop oats, factored into their application by the FmHA, are inflated as evidence by FmHA's allegedly erroneous assumption they would need to purchase significant amounts of lime for their fields. In reply defendants insist plaintiffs would need the lime. These judgment calls or honest disputes are insufficient to maintain an action for damages under the Privacy Act. We cannot conclude the FmHA knowingly and recklessly maintained its records and subsequently rejected plaintiffs' application in a grossly negligent manner subjecting the agency to an action for damages. We agree with the district court there is nothing in the record which could lead a reasonable factfinder to conclude this was the case.
26
Plaintiffs assert that dismissing the damages portion of the suit at the summary judgment stage was inappropriate because the issues of the intent or motive of FmHA officials are best left for trial. While this general rule should not be minimized, it is not without exceptions. We note courts have demonstrated a willingness to rule on issues of intent and motivation at the summary judgment stage in Privacy Act cases. For example, the case of Perry v. Block, 684 F.2d 121 (D.C.Cir.1982) represents another Privacy Act claim against defendant FmHA that was dismissed at the summary judgment stage and there were broad issues of intent and motive alleged by plaintiff there. Another example can be found in the case of Doe v. General Services Administration, 544 F.Supp. 530 (D.C.Md.1982) where the government's motion for summary judgment was granted as to Doe's claim for damages under the Privacy Act. The district court in Doe believed it had enough facts at the summary judgment stage to determine government employees were acting in good faith when they released the psychiatric records at issue. Hence, it is not necessarily inappropriate to decide issues of defendants' motivations and intent at this juncture and we believe the district court did not abuse its discretion in this instance. This is because the plaintiffs have failed to produce evidence in the record raising a material question of fact regarding the intentional and willful nature of the defendants' actions even if one views the evidence in a light most favorable to plaintiffs.
27
The decision of the district court is hereby AFFIRMED.
*
The Honorable William J. Campbell, Senior District Judge of the Northern District of Illinois, is sitting by designation
1
Pub.L. 95-334, Title II, Secs. 201-211, Aug. 4, 1978, 92 Stat. 429-433 as amended by Pub.L. 96-220, Sec. 1, Mar. 30, 1980, 94 Stat. 129 (also found immediately preceding 7 U.S.C.A. Sec. 1961.)
2
For a similar analysis see Edison v. Department of the Army, 672 F.2d 840 (11th Cir.1982) (Wood, J., sitting by designation)
3
Cash crops are harvested and sold, nursery crops are planted to protect another growing crop and produce lower yields per acre | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/760198/ | 163 F.3d 874
Michael Earl SEXTON, Petitioner--Appellant,v.James B. FRENCH, Warden, Central Prison, Raleigh, NorthCarolina, Respondent--Appellee.
No. 98-9.
United States Court of Appeals,Fourth Circuit.
Argued Sept. 23, 1998.Decided Dec. 23, 1998.
ARGUED: Irving L. Joyner, Durham, North Carolina, for Appellant. Valerie Blanche Spalding, Special Deputy Attorney General, North Carolina Department Of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Tracy Hicks Barley, Pillmon-Daye & Barley, Durham, North Carolina, for Appellant. Michael F. Easley, Attorney General of North Carolina, North Carolina Department Of Justice, Raleigh, North Carolina, for Appellee.
Before WILKINSON, Chief Judge, and HAMILTON and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Chief Judge WILKINSON and Judge DIANA GRIBBON MOTZ joined.
HAMILTON, Circuit Judge:
1
Following a jury trial in the Superior Court for Wake County, North Carolina, Michael Earl Sexton was convicted and sentenced to death for the murder of Kimberly Crews. He now appeals the district court's denial of his petition for writ of habeas corpus. See 28 U.S.C. § 2254.1 We affirm.
2
* A
3
The facts of this case are set forth in detail in the opinion of the Supreme Court of North Carolina on direct appeal. See State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, 885-91 (N.C.1994). Accordingly, we need only summarize them briefly.
4
Kimberly Crews (Crews) was a child abuse counselor. Her office was located in the Wake Area Health Education Center, which is part of the Wake County Medical Center (WCMC) in Raleigh, North Carolina.
5
Shortly before 6:00 p.m. on August 8, 1990, Crews telephoned her husband, Alan Crews, who was at home with their daughter. Crews asked her husband if the family needed anything from the store, and he replied in the negative. Crews then told her husband that she had just finished with her last client and was on her way home.
6
Kaye Johnson, a prenatal educator at WCMC, telephoned her husband at 5:45 p.m. on August 8, 1990, and told him that she needed to work one more hour. However, when she realized it was raining heavily, Johnson decided to leave and take her work home. As she left WCMC, she walked through several parking lots to Parking Lot 4. As she approached her car, she noticed an open umbrella in good condition in front of the car. The umbrella was lying upside down with water in it. When Johnson got into her car, she looked at the car's clock. It indicated 6:02 p.m.
7
Robert McCoy, the supervisor of WCMC's laundry, where Sexton was employed, testified that Sexton was at work when he (McCoy) arrived at 2:00 p.m. on August 8, 1990. At 3:30 p.m., when the laundry room shift changed, Sexton was missing. McCoy testified that the next time he saw Sexton was after everybody had punched out. Sexton came running in through the back ramp and was soaking wet. Sexton said to McCoy, "I got to go. I got to go. I was out there fixing my young lady's car and that was the only thing I was out there doing." Sexton left, and his time card indicated that he left at 6:30 p.m.
8
By 8:00 p.m., Crews had not returned home, and her husband began to worry. Shortly thereafter, her husband telephoned a friend with whom his wife often exercised. The friend said that she and Crews had planned to exercise but changed their minds on account of the stormy weather. Crews' husband next telephoned 911 and was advised to call area hospitals. Crews' husband contacted three local hospitals, but none had admitted Crews. Crews' husband again called 911.
9
An officer of the Raleigh Police Department arrived and took a brief statement from Crews' husband. The officer was called away to a robbery but soon returned. The officer asked about possible routes used by Crews in driving home from work and then left to begin checking those routes. Later, the officer returned and informed Crews' husband that his wife had not been found.
10
Shortly after midnight, Ronnie Holloway, a detective from the Raleigh Police Department, found Crews' minivan on Galahad Street. The minivan was 200 yards from a WCMC parking deck. As Holloway approached the minivan, he shined his flashlight into the minivan. At this point, he saw a nude body, later identified as Crews, in the backseat. According to Holloway, Crews "was lying on her back side and her arms were down[,] the left hanging toward to [sic] the floor of the van and the right one was laying [sic] across her body and the legs were spreaded [sic] open."
11
Several pieces of physical evidence tied Sexton to Crews' murder. Johnny Leonard, latent examiner for the City-County Bureau of Identification, testified that muddy footprints found in the minivan were made by Sexton's shoes. One of Sexton's footprints was lifted from Crews' shoe, which was recovered near the front passenger seat. Scott Worsham, a forensic chemist for the State Bureau of Investigation (SBI), testified that head hair consistent with Sexton's was found on: (1) the carpet around the driver's front seat; (2) the carpet around the passenger's front seat; (3) the driver's seat cushion and seat back; (4) the minivan's middle seat; (5) the minivan's headlining above the backseat and over Crews' head; and (6) Crews' chest or shoulder. Worsham also testified that pubic hair consistent with Sexton's was found on the rear seat underneath Crews, in combings from Crews' pubic area, and on Crews' back. SBI Agent John Wayne Bendure testified that fibers from Sexton's shirt and shorts were found on Crews' dress, and in tapings from Crews' shoulders, arms, chest, back, abdomen, and legs. Bendure also testified that fibers from the seat covers in the minivan were also found on Sexton's clothes. SBI Agent David Spittle testified that swabs taken from Crews' mouth showed the presence of spermatozoa consistent with Sexton's blood type and inconsistent with Alan Crews' blood type. Spittle also testified that vaginal swabs from Crews showed the presence of Sexton's spermatozoa, which was also found on the seat under her buttocks.
12
Crews' autopsy, performed by Chief Medical Examiner Dr. John Butts, revealed that she died as a result of ligature strangulation, which obstructs the flow of blood to the brain. The autopsy also revealed that Crews' body was battered. Crews had facial injuries, two burn-like ligature marks on her neck, two bruises on the back of her left hand, a deep bruise on one of her forearms, and scrapes on both of her knees and on her right elbow.
13
Crime scene investigators found Crews' keys, employee parking lot entry card, health club membership card, and other personal items in a water-filled ditch on Old Bunch Road. Crews' pocketbook, portfolio containing books, and her pantyhose were found beside the same road. Nearby, crime scene investigators recovered Crews' umbrella and her checkbook, which was propped against a tree.2 Sexton assisted the crime scene investigators in recovering many of these items.
14
The state also introduced evidence that at 6:50 p.m. on the evening of Crews' murder someone withdrew $100 from Crews' checking account by way of an automatic teller machine (ATM) at the Centura Shopping Center on Poole Road in Raleigh. The Centura Shopping Center is approximately two miles from WCMC. Leon Turner testified that he saw Sexton at the Centura Shopping Center ATM at 6:40 p.m.
15
The state also introduced evidence that at 7:30 p.m. there was a withdrawal request for $200.00 from Crews' savings account. This request, made from an ATM at the Triangle East Shopping Center in Zebulon, was denied because it exceeded the daily withdrawal limit. In his confession, which was played to the jury, Sexton stated that Crews saw him trying to start his girlfriend's car3 and offered to give him a ride to the security office at the front of the WCMC. Sexton stated that he asked Crews to drive him to Galahad Street because his cousin's car was there and he could use his cousin's jumper cables to start Perry's car. Sexton also stated that he asked Crews if she wanted to go to the back of the minivan and that, in response, Crews got up and went to the back without saying anything. Sexton said he asked Crews to take off her clothes and she did so. Sexton stated that Crews changed her mind about having sex with him and that he wrapped her pantyhose around her neck and tightened them because she was attempting to scream and get out of the minivan. Sexton further stated that when he left the minivan he thought Crews had passed out and would later wake up. Sexton also denied having sex with Crews.
16
Sexton's trial testimony was consistent with his confession, except that in his trial testimony Sexton admitted having sex with Crews. Sexton testified the encounter was consensual.
B
17
On September 10, 1990, a Wake County grand jury indicted Sexton for first-degree murder, first-degree rape, first-degree sexual offense, first-degree kidnapping, and robbery. At his jury trial, Sexton was represented by Thomas Manning and Duncan McMillan. At the conclusion of the trial, Sexton was convicted of all the charges contained in the indictment. In the bifurcated proceeding, the trial court submitted four aggravating circumstances to the jury: (1) the murder was committed for the purpose of avoiding or preventing a lawful arrest, see N.C. Gen.Stat. § 15A-2000(e)(4); (2) the murder was committed while Sexton was engaged in the commission of a robbery, rape, first-degree sexual offense, or kidnapping, see N.C. Gen.Stat. § 15A-2000(e)(5); (3) the murder was committed for pecuniary gain, see N.C. Gen.Stat. § 15A-2000(e)(6); and (4) the murder was especially heinous, atrocious, or cruel, see N.C. Gen.Stat. § 15A-2000(e)(9). The jury found the existence of only three of these aggravating circumstances, declining to find the (e)(6) aggravating circumstance. The jury found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances4 and recommended that Sexton be sentenced to death. The trial court sentenced Sexton in accordance with the jury's recommendation.5
18
On direct appeal, the North Carolina Supreme Court affirmed Sexton's convictions and sentences. See State v. Sexton, 444 S.E.2d at 913. On November 14, 1994, the United States Supreme Court denied Sexton's petition for writ of certiorari. See Sexton v. North Carolina, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429 (1994).
19
On September 15, 1995, Sexton filed a motion for appropriate relief (MAR) in Wake County Superior Court. The MAR contained nineteen claims.6 On January 9, 1996, Sexton filed an amended MAR (AMAR), which essentially added a claim of ineffective assistance of appellate counsel to the nineteen claims alleged in the MAR filed on September 15, 1995.
20
On February 22, 1996, the state habeas court found that claims (1), (2), (3), (10), (11), (12), (13), (14), (15), (16), and (17) were procedurally barred, finding some of the claims barred because they were decided on direct appeal, see N.C. Gen.Stat. § 15A-1419(a)(2) (providing that a state habeas court may deny a MAR if the "ground or issue underlying the motion was previously determined on the merits upon an appeal from the judgment ...."), and others procedurally barred because they could have been raised on direct appeal but were not, see N.C. Gen.Stat. § 15A-1419(a)(3) (providing that a state habeas court may deny a MAR if "[u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.").
21
On March 22, 1996, the state habeas court dismissed claims (5), (6), (7), and (9) on the merits. The state habeas court also found that Sexton's ineffective assistance of appellate counsel claim was procedurally barred and, in any event, without merit.
22
On September 9, 1996, the state habeas court held a hearing on Sexton's four remaining claims: claim (4), relating to trial counsels' failure to question jurors about their racial bias; claim (8), relating to Sexton's claim that his trial counsel forced him to testify without his consent; claim (18), relating to trial counsels' portrayal of Sexton at sentencing; and claim (19), relating to Sexton's claim that his trial counsel were ineffective in the preparation and trial of his case. On October 15, 1996, the state habeas court denied these remaining claims on the merits.
23
On July 3, 1997, Sexton filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. The petition contained claims (1) through (19) of the MAR and six additional claims.7 On February 25, 1998, the district court dismissed Sexton's petition. On March 27, 1998, Sexton filed a notice of appeal and an application for a certificate of appealability in the district court. On April 9, 1998, the district court granted Sexton a certificate of appealability.
II
The AEDPA provides, in relevant part, that
24
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
25
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
26
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
27
28 U.S.C. § 2254(d). A state court decision is "contrary to, or involves an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" if: (1) the state court decision is in "square conflict" with Supreme Court precedent which is controlling as to law and fact; or (2) if no such controlling decision exists, "the state court's resolution of a question of pure law rests upon an objectively unreasonable derivation of legal principles from the relevant supreme court precedents, or if its decision rests upon an objectively unreasonable application of established principles to new facts." Green, 143 F.3d at 870. "In other words, habeas relief is authorized only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable." Id.
III
28
Sexton's most salient argument on appeal is that his trial counsel were constitutionally ineffective because they forced him to testify at trial. According to Sexton, he was never apprised of his right to waive his right to testify and, given the choice, he would not have testified at trial.
29
In Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987), the Supreme Court held that a defendant's right to testify at his criminal trial, although not found in the text of the Constitution, "has sources in several provisions of the Constitution." Id. at 51, 107 S. Ct. 2704. The Court first looked to the Due Process Clause of the Fourteenth Amendment, noting that "the right to be heard, which is so essential to due process in an adversary system of adjudication, [can] be vindicated only by affording a defendant an opportunity to testify before the factfinder." Id. at 51 n. 8, 107 S. Ct. 2704. The Court next looked to the Compulsory Process Clause of the Sixth Amendment, noting that "[l]ogically included in the accused's right to call witnesses whose testimony is material and favorable to his defense ... is a right to testify himself, should he decide it is in his favor to do so." Id. at 52, 107 S. Ct. 2704 (citation and internal quotation marks omitted). Moreover, the Court recognized that under Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the Sixth Amendment includes the right of self-representation, and that "[a] defendant's opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness." Rock, 483 U.S. at 52, 107 S. Ct. 2704. Finally, the Court looked to the Fifth Amendment's guarantee against compelled testimony and found that the right to testify was "a necessary corollary" to that provision. Id.
30
Having found the existence of a constitutional right to testify on one's behalf in Rock, the Court has since never resolved the question of whether the right to testify is "personal" and, therefore, can only be waived by the defendant. However, every circuit that has addressed the issue has held that the right to testify is personal and must be waived by the defendant. See Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir.1997), cert. denied, --- U.S. ----, 118 S. Ct. 1077, 140 L. Ed. 2d 135 (1998); United States v. Ortiz, 82 F.3d 1066, 1070 (D.C.Cir.1996); United States v. Pennycooke, 65 F.3d 9, 10-13 (3d Cir.1995); Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir.1994), vacated on other grounds, 53 F.3d 94 (5th Cir.1995) (en banc ); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993); United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.1992) (en banc ); United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.1990); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); see also Lema v. United States, 987 F.2d 48, 52 (1st Cir.1993) (assuming without deciding that right to testify may not be waived by counsel).
31
The next question that arises is who should bear the burden of ensuring that the defendant is informed of the nature and existence of the right to testify and that any decision to waive this right be knowingly and intelligently made. Some courts, including this one, perhaps unwisely, have concluded that the trial court does not have a sua sponte duty to conduct a colloquy with the defendant at trial to determine whether the defendant has knowingly and intelligently waived the right to testify. See Pennycooke, 65 F.3d at 11; United States v. Brimberry, 961 F.2d 1286, 1289-90 (7th Cir.1992); Teague, 953 F.2d at 1533 n. 8; McMeans, 927 F.2d at 163; United States v. Edwards, 897 F.2d 445, 447 (9th Cir.1990); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987); Bernloehr, 833 F.2d at 752; United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir.1983). In finding no duty on the trial court, these courts have focused on avoiding interference with the attorney-client relationship and defense strategy, see, e.g., Pennycooke, 65 F.3d at 11; Teague, 953 F.2d at 1533 n. 8; Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991); thus, trial counsel, not the court, has the primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications of doing so or not. See, e.g., Teague, 953 F.2d at 1533-34; United States v. Campione, 942 F.2d 429, 439 (7th Cir.1991). Other courts have expressed concerns about a per se rule requiring a trial court to advise a defendant about his right to testify because such a rule would tend to suggest that the trial court had an opinion on what the defendant should do, potentially disrupting trial strategy, see, e.g., Pennycooke, 65 F.3d at 11; Siciliano, 834 F.2d at 30, and would cause delay, see Underwood, 939 F.2d at 476.8
32
Because the burden of ensuring that a criminal defendant is informed of the nature and existence of the right to testify rests upon trial counsel, the burden shouldered by trial counsel is a component of effective assistance of counsel. See Brown, 124 F.3d at 79. Consequently, a criminal defendant's claim that his trial counsel was constitutionally ineffective because trial counsel failed to inform him of his right to testify or because trial counsel forced him to testify must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Brown, 124 F.3d at 79.
33
In order to succeed on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance was prejudicial. See id. at 687-88, 104 S. Ct. 2052. Under the first prong of Strickland, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness under "prevailing professional norms." Id. at 688, 104 S. Ct. 2052. In evaluating counsel's performance, we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. 2052. Further, we must not engage in hindsight; rather, we must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors. Id. at 690, 104 S. Ct. 2052. To satisfy the second prong of Strickland, a defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. However, we cannot grant relief solely because the outcome would have been different absent counsel's deficient performance. See Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). Instead, we can only grant relief under the second prong of Strickland if the "result of the proceeding was fundamentally unfair or unreliable." Id. at 369, 113 S. Ct. 838.
34
On state habeas, in rejecting Sexton's claims that he was not apprised of his right to waive his right to testify and that he was forced to testify, the state habeas court made the following findings of fact:
35
Defendant's account of the case was that there had been a voluntary or consensual sexual encounter between himself and Ms. Crews, and that following the encounter a dispute arose which led to his strangling Ms. Crews. Therefore, McMillan and the lead defense attorney, Thomas Manning, developed a defense for the guilt/innocence phase of the trial which would, if believed, support a conviction of an offense less than first degree murder....
36
McMillan's considerations with regard to defendant's testifying were related in large part to the statement defendant had made to the police. The statement suggested that the sexual encounter had been consensual, but from a trial standpoint, assuming that the statement would be admissible, defendant's account of events had to be more fully developed and explained if defendant was to have any chance at all of a conviction of an offense less than first degree murder. Defendant was the only person who could do that. In the factual context of this case, the consent defense could only be pursued through defendant's own testimony. There was no other defense possible in light of defendant's statement to the police. The issue was therefore discussed; and defendant was brought into the courtroom on more than one occasion for practice sessions so he could be acclimated and familiarized with the procedure of testifying.
37
Defendant did not express any reluctance or resistance to testifying. McMillan and Manning talked with defendant about the necessity of his testifying, and explained that the only chance for defendant's account of events to be believed would have to be based on his testimony. McMillan felt at the time that defendant understood that his account was necessary to explain the circumstances in such a fashion that his acts would not constitute first degree murder. After the practice sessions, McMillan did not feel that defendant had done so badly that the attorneys should advise him not to take the stand....
38
Manning confirmed that he and McMillan had discussed the matter of the necessity of testifying with defendant.... Manning explained to defendant that the only chance of acquittal on first degree murder was to produce evidence of consent and to explain the escalation of the physical contact that had taken place in Ms. Crews' van.
39
The first time Manning saw defendant, defendant gave him his version of events, and this was the same version to which he testified at trial. Manning had already determined that the taped confession to police would be admissible at trial, since defendant had waived his rights in a valid manner and without coercion told the police the truth as he knew it. The attorneys decided therefore to try for voluntary manslaughter and hoped for a verdict of second degree murder....
40
Defendant did not indicate any reluctance to testify: Manning thought that defendant was always afraid to testify; ... but he never told either of the attorneys that he did not want to testify. Although Manning was aware of defendant's limitations, Manning did not feel that the attorneys were overbearing defendant's will as to testifying. Manning never got the feeling that defendant did not want to testify.
41
Because of defendant's apprehension, the attorneys had him brought into the courtroom for rehearsals, so that they could help him. There was one long session and one shorter one. They discussed strategy for testifying with defendant and then practiced direct and cross-examination.... The attorneys ... felt that defendant's sincerity would become apparent to the jury as he testified. Manning believed this as a tactical and strategic matter.
42
While Sexton's claim that he was forced to testify has a hollow ring in light of the state habeas court's findings that he did not express any reluctance or resistance to testifying and that his trial counsel explained, and he understood, that he needed to testify if his account of the encounter was going to be accepted by the jury, his allegation that he was never apprised of his right to waive his right to testify or that the decision to testify ultimately rested with him has some support. The state court record does not indicate that Sexton was apprised of his right to waive his right to testify or that the decision to testify was his. However, we need not decide whether Sexton's allegations that his trial counsel never advised him of his right to waive his right to testify and that the decision to testify was his satisfy Strickland 's performance prong because, even assuming they do, Sexton cannot establish prejudice under Strickland.
43
To satisfy Strickland 's prejudice prong, Sexton has to show that the result of his trial was "fundamentally unfair or unreliable." Lockhart, 506 U.S. at 369, 113 S. Ct. 838. Sexton cannot meet this burden because his testimony at trial only helped his case, as it was consistent with his confession that was previously admitted into evidence. Sexton claims that the result of his trial is unreliable because his trial strategy differed substantially from trial counsels' strategy. According to Sexton, he would have successfully moved to suppress his confession and would have decided not to testify, leaving the state to depend on the strength of its remaining case. However, even if Sexton's confession and trial testimony were not admitted, the result of the proceeding is not fundamentally unfair or unreliable.
44
Absent Sexton's confession and trial testimony, the state's evidence demonstrated that Sexton's footprint was lifted from Crews' shoe and head hair consistent with Sexton's was found on: (1) the carpet around the driver's front seat; (2) the carpet around the passenger's front seat; (3) the driver's seat cushion and seat back; (4) the minivan's middle seat; (5) the minivan's headlining above the backseat and over Crews' head; and (6) Crews' chest or shoulder. Pubic hair consistent with Sexton's was found on the rear seat underneath Crews, in combings from Crews' pubic area, and on Crews' back. Further, fibers from Sexton's shirt and shorts were found on Crews' dress, and in tapings from Crews' shoulders, arms, chest, back, abdomen, and legs. Fibers from the seat covers in the minivan were also found on Sexton's clothes. Swabs taken from Crews' mouth showed the presence of spermatozoa consistent with Sexton's blood type. Vaginal swabs from Crews showed the presence of Sexton's spermatozoa, which was also found on the seat under her buttocks.
45
Moreover, the encounter was obviously nonconsensual. Crews' autopsy revealed that she died as a result of ligature strangulation. The autopsy also revealed that Crews' body was severely battered; Crews had facial injuries, two burn-like ligature marks on her neck, two bruises on the back of her left hand, a deep bruise on one of her forearms, and scrapes on both of her knees and on her right elbow.
46
Furthermore, crime scene investigators found Crews' keys, employee parking lot entry card, health club membership card, and other personal items in a water-filled ditch on a road near the trailer park where Sexton lived. Crews' pocketbook, portfolio containing books, and her pantyhose were found beside the same road. Nearby, crime scene investigators recovered Crews' umbrella, which, based on the testimony of Kaye Johnson, Sexton retrieved after he abducted Crews.
47
Finally, the state also introduced evidence that Sexton withdrew $100 from Crews' checking account by way of an ATM at the Centura Shopping Center at 6:50 p.m. on August 8, 1990. Leon Turner testified that he saw Sexton at the Centura Shopping Center ATM ten minutes before the withdrawal.
48
In summary, the admission of Sexton's confession and testimony at trial in no way rendered the result of Sexton's trial unreliable. Cf. Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir.1996) (en banc ) (holding that admission of a defendant's lengthy, detailed, and tape-recorded confession, which was recognized as determinative of the verdict by the trial court and provided most of the basis of the prosecutor's closing argument, did not have a substantial and injurious effect or influence in determining the jury's verdict in light of two short and poorly recollected prior confessions and certain circumstantial evidence), cert. denied, --- U.S. ----, 118 S. Ct. 83, 139 L. Ed. 2d 40 (1997). In fact, in our view, the admission of Sexton's confession and testimony at trial served to help his case. The only plausible defense for Sexton, in view of the overwhelming evidence that Sexton kidnapped, raped, murdered, and robbed Crews was a defense based on consent. The consent defense was fully developed at trial, but the jury simply rejected it. Without such a defense, Sexton's fate was a foregone conclusion. In short, Sexton has failed to demonstrate that the result of his trial was fundamentally unfair or unreliable and, therefore, has failed to prove that the state court's application of Strickland was unreasonable.
IV
49
Sexton raises several other claims of ineffective assistance of counsel. We shall address each of these arguments in turn.
50
* First, Sexton claims that his trial counsel were constitutionally ineffective because they failed to secure his consent not to challenge the admissibility of his confession.9 This argument is without merit.
51
There are essentially two categories of decisions made by a criminal defendant's trial counsel: those decisions, deemed "personal," that must be made with the defendant's consent and those that may be made without the defendant's consent. See Brown, 124 F.3d at 77. Decisions that may be made without the defendant's consent "primarily involve trial strategy and tactics," such as "what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed." Teague, 953 F.2d at 1531. The decisions that must be made with the defendant's consent include the decision to enter a guilty plea, see Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), the decision to waive a jury trial, see Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S. Ct. 236, 87 L. Ed. 268 (1942), the decision to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 438-40, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), and, as noted in Part III of this opinion, the decision to testify at trial.
52
The decision whether to file a pre-trial motion to suppress a confession is a classic tactical decision. Trial counsel has superior experience with the criminal process and detailed, objective knowledge of the strengths and weaknesses of the defendant's case. Trial counsel also is in a far better position to assess the meritoriousness of a pre-trial motion to suppress a confession. We hold that trial counsels' decision not to file a pre-trial motion to suppress Sexton's confession was binding on Sexton and, therefore, trial counsel were not constitutionally ineffective for allegedly failing to secure Sexton's consent. Accordingly, the state court's application of Strickland to this claim was not unreasonable.
B
53
Next, Sexton contends that his trial counsel were constitutionally ineffective because they failed to apprise him of his right to personally participate in voir dire, failed to secure his consent not to raise the issue of racial bias during voir dire, and failed to raise the issue of racial bias on voir dire. These arguments are without merit.
54
First, there is no support for Sexton's argument that he was not apprised of his right to personally participate in voir dire. On state habeas, the state habeas court made a specific finding that "[a]t the conclusion of questioning of each juror, the attorneys consulted with the defendant as to whether to accept or challenge the juror." Further, the transcript of the hearing on state habeas demonstrates that trial counsel discussed areas of inquiry for the jurors with Sexton and that at the conclusion of questioning of each juror they made a decision with Sexton's input as to whether to challenge or pass that juror. As one of Sexton's trial counsel noted during his testimony on state habeas:
55
During jury selection, we asked [Sexton] to focus on the people we were talking to, because we were going to be asking his opinions about what he thought about their responses, and in that process any input from either counsel or defendant about what their gut feeling is about a particular juror is important. And we certainly consulted with him, in every decision we made he was a part of.
56
Second, Sexton claims that his trial counsel were constitutionally ineffective because they failed to secure his consent not to raise the issue of racial bias during voir dire. Although the Supreme Court held in Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986), that "a capital defendant accused of an interracial capital crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias," id. at 36-37, 106 S. Ct. 1683, the Court noted that a defendant may not complain about the failure to question prospective jurors on racial bias unless he has specifically requested such an inquiry. See id. The Court made clear that the decision to question prospective jurors about racial bias is best left in the hands of trial counsel. See id.; see also Spencer v. Murray, 18 F.3d 229, 234 n. 6 (4th Cir.1994). In light of Turner, we believe that Sexton's trial counsels' decision not to question prospective jurors about racial bias was binding on Sexton and, therefore, trial counsel were not constitutionally ineffective for allegedly failing to secure Sexton's consent.
57
Third, there is no merit to Sexton's argument that his trial counsel were constitutionally ineffective because they failed to raise the issue of racial bias on voir dire. On state habeas, in rejecting this claim, the state court made the following findings of fact:
58
McMillan and Manning discussed with defendant the fact that there was a racial factor involved in the case insofar as defendant is black and Ms. Crews was white.... McMillan did not consider the murder to be a racial killing per se. ...
59
McMillan did not develop any strategy particular to this case in dealing with the racial factor during jury voir dire. He did what he does in any case: he tried to get an idea of what a particular juror's views might be toward such a factor.... At the conclusion of questioning of each juror, the attorneys consulted with defendant as to whether to accept or challenge the juror. Defendant participated in these discussions. He never asked the attorneys to question the jurors about any racial animosities they might have been harboring....
60
McMillan did not notice any overt indications of racial attitudes in the jurors selected for the panel. McMillan did not ask specific questions of the jurors about racial attitudes since he did not wish to irritate them. McMillan normally does not ask questions of jurors about their racial attitudes, and particularly in this case since such questioning creates a great risk of polarizing them, especially when voir dire proceeds in group fashion....
61
The racial sensitivity of the case was a factor in Manning's thinking about defendant's defense; but Manning did not significantly dwell upon it. Because of defendant's account of a consensual sexual encounter, Manning did not view the case as particularly racially charged. In Manning's judgment, the facts of the case would control the outcome, not race. The racial difference between defendant and Ms. Crews would not be a factor if the jury accepted defendant's version of events. Manning felt that if the defense could get one or more black jurors on the panel, then any racial problem that might arise would be controlled by those jurors....
62
There was one black juror on the chosen panel. Manning had discussed with defendant in general terms what sort of juror they hoped for. Manning did not ask direct questions of the jurors about racial attitudes since in his judgment, the facts of the case and the way the attorneys planned to present the case did not make race a material issue.... Defendant took part in all of the decisions on whether to pass or strike a juror.
63
As noted above in the state habeas court's findings, Sexton's trial counsel considered the issue of racial bias and decided that under the facts of the case, the case was not particularly racially charged, especially because Sexton maintained his encounter with Crews as consensual. Sexton's trial counsel made a tactical decision not to irritate or polarize prospective members of the jury. Obviously, this tactical decision made by Sexton's trial counsel cannot be second-guessed by this court and, therefore, Sexton's trial counsel were not constitutionally ineffective for failing to question prospective jurors about racial bias on voir dire. See Spencer, 18 F.3d at 234.
64
In summary, the state court's application of Strickland to Sexton's claims that his trial counsel were constitutionally ineffective because they failed to apprise him of his right to personally participate in voir dire, failed to secure his consent not to raise the issue of racial bias during voir dire, and failed to raise the issue of racial bias on voir dire was not unreasonable.
C
65
Sexton claims that his trial counsel were constitutionally ineffective because they failed to secure his consent to present certain mitigating evidence. Sexton further claims that his trial counsel were constitutionally ineffective because they portrayed him as the product of a severely dysfunctional upbringing. According to Sexton, this strategy "deliberately painted a negative, violence-prone profile of [him] and was not designed to endear [him] to the jury or explain his state of mind when the killing occurred." Petitioner's Brief at 42. Each of these arguments is without merit.
66
The decision concerning what evidence should be introduced in a capital sentencing is best left in the hands of trial counsel, and reasonable tactical decisions by trial counsel in this regard are binding on the defendant. See Brown v. Dixon, 891 F.2d 490, 499-500 (4th Cir.1989) (no error in trial counsel's concession of defendant's guilt and two aggravating factors at sentencing phase without consultation with the defendant). Accordingly, trial counsels' alleged failure to secure Sexton's consent to present certain mitigating evidence at sentencing does not render trial counsels' performance constitutionally ineffective.
67
Second, there is no merit to Sexton's contention that his trial counsel were constitutionally ineffective because they portrayed him at sentencing as the product of a severely dysfunctional upbringing.
68
On state habeas, in rejecting this claim, the state habeas court made the following findings of fact:
69
The sentencing phase defense was based on exploring and developing defendant's family background and socio-economic upbringing, including contacting personnel at the orphanage defendant had attended as well as his support family, his siblings, and personnel in the mental health and social services departments who had had contact with defendant during his minority....
70
McMillan directed the sentencing phase testimony on defendant's behalf. The defense called Thomas Brown, M.D. and Brad Fisher, Ph.D. to testify in order to present some expert explanation of defendant's relative degree of culpability and responsibility as it related to sentencing. The attorneys hoped that the experts could explain to the jury that a person who is subjected to the type of upbringing defendant suffered is a product of that upbringing and not a voluntarily wicked, evil person. The experts told the attorneys that a person whose control mechanisms were deficient would be subject to snapping uncontrollably under stress.
71
McMillan and Manning explained to defendant that what they wanted to do at sentencing was to present evidence of his life history with an explanation by medical professionals as to what impact such life history would have had upon defendant. The theme of sentencing was that too little had been done for defendant too late. The attorneys were careful to try to keep defendant abreast of what was going on at each step of the proceedings.
72
Investigation revealed that since defendant had aged out of the DSS system and left his foster family's home, he had managed to find employment and maintain a household. Any stability, however, did not eliminate the problems from which defendant suffered. He had assaulted his girlfriend twice during that period. McMillan felt that presenting defendant in a positive light would have made his acts more reprehensible than presenting him as the product of a dysfunctional upbringing....
73
Manning got funds from the court for a psychologist and a psychiatrist. Manning has worked with Brad Fisher, Ph.D. for years. Fisher saw Sexton four or five times. Manning was looking for an affirmative defense, perhaps diminished capacity for the guilt/innocence phase of the trial or some mitigating evidence for the penalty phase....
74
Manning's opinion that defendant was ready to break at any point coincides with the psychological profile; there was also a great deal of DSS material, among which there was evidence of defendant's assaultive behavior.
75
Thomas Brown, M.D., the psychiatrist, thought defendant was prone to greater violence than Manning thought he was or could be. The basis for Brown's opinion was defendant's poor intellectual functioning and poor impulse control; when stress was added, defendant's behavior would be unpredictable and possibly violent....
76
The attorneys downplayed the years after defendant had aged out of the state system and prior to the murder because of the two assaults defendant had committed on his girlfriend. They knew if they presented evidence of those years at sentencing, the prosecutor would bring the girlfriend in on rebuttal. Manning and McMillan had decided not to call her since she would not have been a good witness with respect to defendant's propensity for violence. One of the assaults defendant had committed on her included an attempt to strangle her, and there was strangulation in the murder for which defendant was on trial. The girlfriend had said she was scared of defendant and was glad he was not living with her anymore. Rather, the attorneys wanted the jury to see that defendant was damaged and for that reason they should not recommend the death penalty....
77
In our view, Sexton's trial counsel cannot be faulted under Strickland for presenting Sexton at sentencing as the product of a severely dysfunctional upbringing. Obviously, this was a reasonable trial strategy and cannot be second-guessed by this court. Accordingly, because trial counsels' performance at sentencing was constitutionally effective, the state court's application of Strickland was not unreasonable.
V
78
On direct appeal, Sexton claimed that "[t]he North Carolina death penalty statute, and consequently the death sentence in this case, are unconstitutional." State v. Sexton, 444 S.E.2d at 910. The North Carolina Supreme Court rejected this contention, noting that it had considered Sexton's argument but found no compelling reasons for departing from its existing precedent upholding the constitutionality of North Carolina's death penalty statute. Id.
79
Sexton's argument is that North Carolina's death penalty statute is unconstitutional because whether a defendant is sentenced to death depends upon the place of indictment and trial--and his color. To support the argument in the North Carolina Supreme Court in his petition for writ of certiorari, Sexton produced the paperwork from a trial in Fayetteville, North Carolina (murder of two blacks by a white soldier). In the district court, Sexton produced the affidavit of James E. Williams, Jr., the public defender in both Orange and Chatham County, North Carolina. In his affidavit, Williams, Jr. states that defendants rarely receive death sentences in both Orange and Chatham County, North Carolina. Apart from the fact that this affidavit was never presented in state court, the paperwork from the trial in Fayetteville, North Carolina, and the affidavit do not demonstrate that the North Carolina Supreme Court's adverse adjudication of this claim was an unreasonable application of McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). In McCleskey, the Court set forth very exacting standards for entitlement to constitutional relief based on statistical evidence of race-of-defendant and race-of-victim effects and rejected such a claim based upon the Baldus study.10 Id. at 291-319, 107 S. Ct. 1756. Because the McCleskey Court refused to infer discriminatory intent from statistical evidence that was more detailed and developed than the evidence presented by Sexton, the North Carolina Supreme Court's application of McCleskey was not unreasonable.
VI
80
For the reasons stated herein, the judgment of the district court is affirmed.
81
AFFIRMED.
1
Because Sexton's petition for writ of habeas corpus was filed on July 3, 1997, subsequent to the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214, amendments to § 2254 effected by § 104 of the AEDPA govern the resolution of this appeal. See Green v. French, 143 F.3d 865, 868 (4th Cir.1998). As to the provisions contained in § 107 of the AEDPA, the state does not maintain that it has satisfied the opt-in requirements of § 107 such that those provisions of the AEDPA apply
2
At trial, Kaye Johnson testified that the umbrella she saw in front of her car on the night of Crews' murder looked like the one recovered by the crime scene investigators
3
Sexton's girlfriend, Angela Perry, testified that Sexton lived with her and her daughter in Plummer's Trailer Park near Old Bunch Road in Zebulon. Perry testified that on August 8, 1990, Sexton drove her car to work. Perry also testified that her car was difficult to start so a screwdriver was kept in the car and was used under the hood when starting the car
4
The trial court submitted thirty-two mitigating circumstances and the jury found the existence of the following eighteen: (1) while in prison Sexton maintained meaningful relationships with those close to him; (2) the meaningful relationships provided Sexton with guidance and positive support; (3) while in prison, Sexton sought to help and advise others; (4) during Sexton's formative years, his mother suffered from alcoholism; (5) Sexton's mother was of limited intelligence and mentally unable to provide for and relate to him in a normal mother-child relationship and abandoned him and his siblings at a young age; (6) because of her problems and limitations, Sexton's mother was unable to provide normal or adequate guidance to Sexton as a child; (7) after she was found to be unfit to care for her children, Sexton's mother abandoned him and his siblings; (8) as a young child and adolescent, Sexton was deprived of the family nurturing necessary and essential for proper and normal development and growth; (9) Sexton is an adult child of a parent who abused alcohol; (10) since Sexton's father died in an automobile accident when Sexton was five-years old, Sexton was unable to have a parental relationship with or receive significant guidance from his father; (11) during his formative years, Sexton and his siblings were subjected to physical and emotional abuse by his mother and others who occasionally befriended her; (12) during his formative years, Sexton was subjected to physical abuse by his surrogate father; (13) Sexton's mental and emotional disturbances were caused in part by the emotional instability of his family members during his early developmental stages; (14) after the Department of Social Services (DSS) had to intervene to protect him and his siblings, Sexton lived in a series of residences, including an orphanage and a foster home; (15) from age thirteen, Sexton was separated periodically from his brother and sister, on account of their status as DSS wards, and this caused Sexton much concern; (16) during his formative years, Sexton's mental and emotional disturbances were caused in whole or in part by the instability of his family; (17) Sexton's life has great value to him, his family, and friends; and (18) Sexton could adjust well to the structured environment of life in prison
5
In addition, the trial court imposed life sentences on the first-degree rape and first-degree sexual offense convictions, a forty-year sentence for the first-degree kidnapping conviction, and a ten-year sentence for the robbery conviction
6
The nineteen claims were: (1) Sexton's Fourth and Fifth Amendment rights were violated when Raleigh police officers interrogated him without first giving him warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (2) Raleigh police officers and the SBI withheld exculpatory evidence in violation of Sexton's Sixth and Fourteenth Amendment rights by failing to provide information about hair strands found in Crews' pantyhose; (3) North Carolina's death penalty statute is unconstitutional because the death penalty is applied in a freakish and arbitrary manner; (4) Sexton's trial counsel failed to question jurors about their racial bias; (5) the state presented potentially exculpatory evidence at trial which had not previously been disclosed and Sexton's trial counsel failed to seek a continuance to test this newly discovered evidence or seek sanctions against the state; (6) the trial court committed prejudicial error when it prevented Sexton's trial counsel from questioning a chemist about whether another person may have been in the minivan the night Crews was murdered; (7) Sexton's trial counsel failed to vigorously challenge the testing and significance of hair samples and semen stains, including subjecting such evidence to DNA testing; (8) Sexton's trial counsel forced him to testify against his will even though the state already had introduced into evidence an illegally obtained admission against interest; (9) the state was permitted to question Sexton, without objection, regarding two uncounseled guilty pleas for assault on a female; (10) the trial court erred by denying Sexton's motions to dismiss the charges of first-degree rape, first-degree sexual offense, robbery, and kidnapping; (11) the trial court erred by not requiring the state to elect whether to submit the charge of first-degree murder or felony murder to the jury; (12) African-Americans were systematically excluded from selection as members of the jury; (13) the jury erred in finding three aggravating circumstances; (14) the trial court gave misleading instructions as to the aggravating circumstances; (15) evidence submitted during the sentencing phase of the trial was insufficient to support the jury's sentencing recommendation; (16) the trial court erred when it presented the first-degree murder conviction to the jury for sentencing purposes; (17) the jury erred by failing to find four mitigating factors; (18) Sexton's trial counsel inaccurately portrayed him at sentencing; and (19) Sexton's trial counsel were ineffective in preparing and trying his case
7
The six additional claims were: claim (20), alleging that the state habeas court erred in denying Sexton's motion to amend his AMAR to include a claim of juror misconduct; claim (21), alleging that the state habeas court's dismissal of Sexton's claims denied him due process; claim (22), alleging that the trial court erred by denying Sexton's Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), challenges; claim (23), alleging that the state improperly introduced rebuttal evidence of Crews' character and reputation at trial; claim (24), alleging that the prosecutor made a "grossly improper" closing argument; and claim (25), alleging that the trial court erred when it submitted the "heinous, atrocious, or cruel" aggravating circumstance to the jury and erred when it failed to submit the "no significant history of prior criminal activity" mitigating circumstance to the jury
8
Several circuit courts have ruled that although the trial court generally is not required "to advise the defendant of the right to testify or to obtain an on-the-record waiver of such right," Pennycooke, 65 F.3d at 13, "judicial interjection through a direct colloquy with the defendant may be required" in "exceptional, narrowly defined circumstances," id. at 12, for instance, where the trial court has reason to believe that defense counsel is frustrating the defendant's desire to testify, id. at 13, where the defendant has expressed his desire to testify to the court, see Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.1988), or where "there appears to be no rational explanation for the decision" not to testify, Ortiz, 82 F.3d at 1071
9
Notably, Sexton does not contend that his trial counsels' decision not to move to suppress his confession was an unsound trial strategy; rather, he challenges his trial counsels' decision not to move to suppress his confession on the basis that it was done without his consent and, given the choice, he would have challenged the admissibility of the confession. Nevertheless, we note that trial counsels' decision not to challenge the admissibility of Sexton's confession was manifestly a reasonable one. As the North Carolina Supreme Court explained on direct appeal:
In the instant case, defendant's defense to the charges of kidnapping, rape, and sexual offense was consent. The statement to Detective Howard, if believed, tended to bolster defendant's trial testimony that the victim found him attractive, consented to accompany and have sex with him, and later changed her mind. The defense of consent tended further to defeat a conviction of murder on the basis of felony murder.
In addition, defendant's defense to the charge of first-degree murder was lack of specific intent to kill formed after premeditation and deliberation. The statement to Detective Howard tended to bolster defendant's trial testimony that after the victim changed her mind, everything happened very fast; he thought the victim was alive when he left her; and on the next day he was shocked to find out she was dead. At trial defendant explained that after he learned of the victim's death, he knew he was in trouble. Fearing he would get into more trouble, he did not tell Howard about having consensual sex with her.
Defendant's credibility was an essential element of his defenses. Evidence that prior to trial he made a statement consistent with the defenses raised at trial tended to bolster his credibility, and, consequently, his defenses. Defendant also gained advantage from having his explanation of the events put before the jury during State's case in chief.
State v. Sexton, 444 S.E.2d at 895-96.
10
The Baldus study accounted for 230 variables that could have explained the disparities on nonracial grounds and demonstrated that in over 2,000 murder cases in Georgia during the 1970's, defendants charged with killing white persons received the death penalty in eleven percent of the cases while those charged with killing blacks were sentenced to death in only one percent of the cases. The death penalty was assessed in twenty-two percent (and sought in seventy percent) of the cases involving black defendants and white victims, assessed in eight percent (and sought in thirty-two percent) of the cases involving white defendants and white victims, assessed in three percent (and sought in nineteen percent) of the cases involving white defendants and black victims, and assessed in one percent (and sought in fifteen percent) of the cases involving black defendants and black victims. In sum, in Georgia during the 1970's, black defendants who murdered white victims had a statistically significantly greater chance of being subject to death penalty proceedings and of receiving the death penalty than any other persons. See McCleskey, 481 U.S. at 286-87, 107 S. Ct. 1756 | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/391192/ | 651 F.2d 177
Dorothy HOOTS, et al.v.COMMONWEALTH OF PENNSYLVANIA, et al.,Churchill Area School District, et al.School District of Edgewood, Appellant, No. 81-1691.School District of Churchill Area, Appellant, No. 81-1692.School District of Swissvale Area, Appellant, No. 81-1693.School District of Turtle Creek Area, Appellant, No. 81-1694.Swissvale Area School District, et al. Appellants, No. 81-1695.
Nos. 81-1691 to 81-1695.
United States Court of Appeals,Third Circuit.
May 27, 1981.
Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.
1
Motion by appellants for reconsideration by the Court en banc of this Court's decision of May 13, 1981, denying motion for stay, for a stay of the District Court order of April 28, 1981, pending appeal and for oral argument on this motion,
2
The foregoing Motion is denied.
3
By the Court,
John J. Gibbons
Judge
4
ADAMS, Circuit Judge.
5
I would grant the school district's request for an expedited appeal as well as a stay of the dissolution and merger of the affected school districts. While I agree that planning should proceed pursuant to the order of the trial court, I believe that the dissolution and merger of the school districts should be stayed pending this Court's review of the plan endorsed by the trial court.
6
The standard for ascertaining the propriety of a stay, like that governing grants of preliminary injunctions contains four elements: (1) a reasonable probability of success on appeal, (2) the prospect of irreparable injury pendente lite if relief is not granted; (3) the possibility of harm to other interested persons and (4) the public interest. Delaware River Port Auth. v. Transamerican Trailer Transport Co., 501 F.2d 917, 920 (3d Cir. 1974). In this case, the school districts face irreparable injury if a stay is not granted, since the district court's order calls for them to cease to exist on July 1, 1981. Moreover, once the merger of the districts is effectuated, problems inherent in any attempt to undo it should such be mandated by this Court may prove insurmountable. In addition to irreparable injury to the school districts, school children of those districts have an interest in receiving instruction informed by consistent application of teaching methods and educational philosophy. Some educational discontinuities will ensue if a merger plan is approved by this Court and implemented, but we increase the risk of harm to students when we allow the district court order to be enforced, while there is outstanding an appeal which, if successful, might restore the status quo ante. The public interest in the administration of justice and effectuation of the right to appeal, a traditional right in our system of jurisprudence, also weigh in favor of staying implementation of the merger plan. Once the districts merge, they effectively may be barred from pressing their claims to this Court, inasmuch as none of the original school boards will exist to authorize or fund the appeals. In any event, the intractable problems of undoing the merger might render the appeal moot for all practical purposes. The prospect of irreparable injury, harm to third parties, and demands of public interest thus support staying the district court order. And while I cannot say at this point in the proceedings that the school districts have demonstrated a reasonable probability of success on the merits, this Court earlier has observed: "In a situation where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, (a stay) might be appropriate 'even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would generally be required.' " Constructors Ass'n v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978).
7
I am aware, of course, that in the recent vacation of the district court's denial of a preliminary injunction, the Court directed that "(u)nder no circumstances should a new school year begin in the fall of 1981 without an acceptable remedial plan in place." Hoots v. Commonwealth of Pennsylvania, et al., 639 F.2d 972, 980 (3d Cir. 1980). But I believe that an expedited appeal that would enable us to hear the case within the next thirty days is, as a means of effectuating this mandate, preferable to allowing immediate consummation of the merger plan. It is also to be noted that the Commonwealth of Pennsylvania the school districts' adversary and a prevailing party below joins in the motion by the districts for a stay of the merger.
8
In contrast to actual merger, the planning ordered by the district court in my view should proceed. No irreparable injury will accrue to the school districts from such planning. Moreover, in order for the plan to go into effect for the coming school year, a detailed procedure for implementing the merger would have to be in place in the event that this Court, after hearing an expedited appeal, ratifies the district court's approval of the plan.
9
Judges WEIS and GARTH join in this statement. | 01-03-2023 | 08-23-2011 |
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