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https://www.courtlistener.com/api/rest/v3/opinions/8304541/ | SNODiGRASS, J.
On the - day of -, 19 — ■, a street car operated by the plaintiff in error came into collision with a motorcycle ridden and being operated by the defendant in error at the intersection of Jackson avenue with Roanoke street in the city of Chattanooga when defendant in error was knocked unconscious, recovering consciousness in Newells Sanitarium. He remained in the hospital one week and was disabled from work six weeks. He suffered an injury to his head, a bruise and sprain to his shoulder and knee cap wrenched, etc. There is nq complaint that the judgment is excessive provided there is a liability which was controverted in a plea of not guilty and certain special pleas which were traversed.
The cause was heard before the Judge and jury when there was a verdict and judgment for the plaintiff below in the sum of $1,000. After its motion for a new trial was overruled the defendant below perfected an appeal to this court and has made the following assignments of error.
I.
“The court erred in overruling defendant’s motion for new trial and in declining to direct the jury to return a verdict for the defendant the motion to so direct the jury having made at the conclusion of the plaintiff’s testimony and renewed at the conclusion of all the testimony.”
II.
“The court erred in charging the jury as follows: ‘Now, Gentlemen of the jury, it is the insistence of the plaintiff that he approached the crossing of this street car track with his motorcycle under control; that as he approached the street car track that he observed the street car coming some 50 feet away; that he approached the track at an approximate rate of speed of eight or ten miles an hour, thinking that he had time to get across the track, . and undertook to do so. Now, if you find from the proof that the street car was approaching this street crossing with due care and that the plaintiff thought he could get across in safety and under*3took to do so and the collision occurred, that the plaintiff made a miscalculation, then he is responsible, that is if you believe that the street car approached the crossing with due and propér care. ’ ’ ’
"We do not think under the facts of this case that there was any error in the court’s refusal to direct the jury to return a verdict in favor of defendant as insisted in the first assignment of error.
Although an alleged ordinance regulating the speed and manner of motorcycles at public crossings and street intersections was plead specially as a defense to the action, there was no proof establishing such ordinance and so far as either the street car or the motorcycle was concerned, this passage was governed by the principles of the common law which puts them upon the measure of equality.
Quite a number saw the accident and from different distances and angles and there is no real dispute as to the material facts upon which liability must stand or fail.
There was a house which obstructed the vision of the street car conductor going South on Roanoke and also the vision of the motorcycle rider going East on Jackson avenue, and as people were liable to pass at any time going East on Jackson avenue both being public streets of a city, it was the duty of the street car operator to keep a vigilant lookout for such a contingency and have his car so under control that if suddenly one who had earned the right of passage should come within the range of his vision this prior right might be yielded and the car stopped or so checked as to facilitate it.
In this case these rights and obligations were mutual and the question of who first reached the crossing with an apparent purpose of occupying it is material to be considered.
In the case of Street Railway v. Hudson, 7 Higgins, 147, it is said: “manifestly and beyond question at street crossings the rights of the parties are equal. The street railway company has no superior right to pedestrians or other occupants of the highway at street crossings.”
In Citizens Rapid Transit Company v. Seigrist, 96 Tenn., 119-126, it was held that: “The law does not require so great an amount of carefulness of a person in crossing a street railway as in crossing a steam or commercial railway, for the obvious reason that his right is greater and his danger less in the former than in the latter case. To entitle him to recover for injui’ies received while passing over a street railway he need not show absolutely that he looked carefully upon and down the track before venturing upon it.”
Supporting this statement authorities were cited, and the case continued: “It was not negligence per se for Seigrist to go upon the track without looking a second time for the approaching car. When only ten yards from the crossing, he saw the car and thought it was two hundred or two hundred and'fifty yards away. With that belief, and the rightful assumption that the motorman saw him *4and had his ear under reasonable control, as he could and should have done, Seigrist, having reached the crossing first, had the right to continue his journey, and cross the track without let or hindrance. Having had the legal right, and having attempted to exercise it in a prudent manner, he can, in no true sense be charged with responsibility for the consequence of his mistaken assumption that the motorman would likewise be prudent and not run upon him.
“On the other hand the evidence is clear that the motorman was guilty of negligence, proximately causing the injuries complained of, in that he, knowing of the public crossing, and seeing Seigrist near by and approaching it, did not have his car under reasonable control but was running at such a high rate of speed, that he could not, or at least did not, stop in time to prevent a collision.”
This case is in every essential particular about on a par with the case at bar. The difference being that when the motorman passed beyond the obstruction of the house to his left, he Avas .then upon the intersection and about ten feet from the tracks; and had earned his right to passage because'at. this time he testified that the street car was fifty or sixty feet aAvay and running 25 or 30 miles an hour, while he was going about 8 or ten. The motorman testified that he was running about 50 or 20 miles an hour. He also testified that running 15 miles an hour it could be stopped in 45 or 50 feet. If 20 miles an hour it would go four or five feet further; but did not say Avithin what distance it might be stopped, at 25 or 30 miles an hour, if at the same ratio it AA^ould have gone fifty or 55 running at 25 miles and 55 or 60 feet if running at 30 miles an hour.
If therefore the car was fifty feet aAvay Avhen the motorman should have seen plaintiff appropriating his right to enter upon the crossing and had applied the brakes even then, the car would have been brought to a stop before striking him or have passed only a few feet farther and when -it is perceived how the brakes wtould have checked the speed of the car even before it stopped and when it is remembered, that, according to the testimony of defendant in error notwithstanding the brakes were not applied or the speed of the ,car checked before striking him, defendant in error Avas about to clear the last rail when he Avas struck, it can be seen that had his calculations not miscarried in the particular that the motorman Avas in the proper exercise of his duties and would’ observe his obligations in that regard he Avould have passed in safety. This consideration Ave think locates the blame for this accident for it is not negligence to rely upon what the law says he has a right to assume even though its futility is made manifest in the results. The foregoing principles are further made manifest from a consid-eraron of the authorities already cited and from the case of Jackson Railroad Company v. Barnett, 1 Higgins, 572, where it was *5said: “If the traveler reaches the crossing first and indicates a purpose to use the crossing, it is the duty of the motorman to check or stop his car and let the traveler pass. On the other hand, if the traveler sees, or would in the exercise of ordinary care have seen, that a street car was about to reach the crossing, and is about to appropriate the crossing space and is in the act of passing, it is his duty to refrain from an attempt to use the crossing at that time.”
“Where Driver of Vehicle has reached Crossing—
“It is the duty of a motorman upon approaching a crossing and discovering that the driver of a vehicle has reached the crossing and is in the act of using it, to reverse his car and du all in his power to prevent collision. Under the circumstances indicated the party in the vehicle has the right to cross, and it is the duty of the motorman who so finds him at the crossing about to use it, to check his car and respect the right.”
“An electric street railroad has no superior right of way over vehicles at grade crossings upon the streets of a city, the rights of each being equal at such crossings and each must exercise his right with due regard to the right of the other, and in such manner as not to unduly or unreasonably abridge or interfere with the rights of the other. Vehicles may and the street car ought each to listen and be on the lookout for the other, and to use due care to avoid collision.”
We think therefore that the jury were authorized to say that under the guaranties of the law, the defendant in error was not proximately negligent in entering upon the crossing and that the proximate cause of the accident was the failure to keep a lookout and the car under such proper control as to prevent this accident after the defendant in error had earned his right to passage. At least if there was any proximate negligence at all upon his part it was for the jury to determine.
We think in the extract quoted in the second assignment of error that the court said as much to the jury regarding a non-liability as he would have been authorized to say if not more, for it is manifest if plaintiff below came upon the crossing within a few feet of the track with the street car fifty feet away and if he had the right to rely upon the rights of his earned status that the motorman would check his ear so as to yield the passage which would be due and proper care, we do not see how the court would have been authorized to say as he was virtually asked to do in the extract covered by the third assignment of error, that the manner of the approach of the car was immaterial; that, notwithstanding the plaintiff below had a right to anticipate that he would not be run down when there was time to have checked the car; and permitted *6bis safe passage, be could not recover if tbe plaintiff in error failed to cooperate as be should have done, that is to say if stopping would have been tbe act of a “prudent” man. Without regard to tbe omission of tbe word “ordinarily” which should have preceded the word “prudent” in the extract, we do not think the court can be put in error in refusing this particular request. Believing that there is no reversible error manifested by the assignments they are all overruled and the judgment of the court below affirmed With costs adjudged against plaintiff in error and its securities.
Portrum and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1582760/ | 31 So. 3d 847 (2010)
Amy STEPHENSON, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-1107.
District Court of Appeal of Florida, Third District.
March 3, 2010.
Rehearing and Rehearing En Banc Denied April 21, 2010.
Michael B. Cohen, Fort Lauderdale and Eileen I. Landy, Melbourne, for appellant.
Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
SCHWARTZ, Senior Judge.
Amy Stephenson appeals from her conviction and twenty-five year sentence[1] for aggravated manslaughter of a child, a first degree felony, following a jury verdict finding that the death of her thirteen-month old daughter was caused "by the neglect of Defendant, a caregiver." § 782.07 Fla. Stat. (2007).
*848 The State alleged and the jury apparently agreed that the child, who had suffered serious health problems since her premature birth and throughout her short life,[2] died as a result of the mother's conduct in depriving the child of food and other care. Although there was sufficient evidence to support the verdict, the case was hotly contested on numerous issues, including whether any alleged misconduct was the cause of the child's death[3] and the degree of the crime, if any, involved in the mother's care of the child, particularly, whether she may have been guilty of a lesser offense such as neglect of a child by culpable negligence with great bodily harm, a second degree felony. See § 827.03(3)(b) (2007).
It is in this context that, without considering any of the other issues presented,[4] we reverse on the ground that, although there was no appropriate objection, fundamental error occurred when the prosecutor commented on cross-examination and again during final argument on the fact that in the course of her pregnancy, the mother had contemplated aborting the decedent child. The transcript reveals the following:
Q: [Prosecutor] Let's go back to when you were in the hospital. When you were in the hospital after delivering Jasmine, you had occasion to speak to Colleen Cullen [a social worker employed by Baptist Hospital]; isn't that correct?
[Defense counsel]: Your honor
A: [defendant] Not that accurate, not.
Q: What did you
A: I had thought about it.
Q: You had thought about terminating your pregnancy; is that correct?
A: When I first learned that I was pregnant.
Q: And that's part of the reason you had late prenatal care; isn't that correct?
*849 A: No.
Emphasizing this point in closing, the prosecutor stated:
Then, of course, the defendant testified. She admitted at first she was ambivalent about whether or not she wanted this baby at all.
The cases tell usas if we needed to be toldthat "abortion is one of the most inflammatory issues of our time," Cook v. State, 232 Ga.App. 796, 503 S.E.2d 40, 42 (1998), and, more important, that one who takes or even approves of this course is very adversely regarded by many in our society. Accordingly, numerous decisions reverse convictions after trials which improperly implicate that issue, including several, as in this case, which are necessarily based on a finding of fundamental error in the absence of proper preservation. See Billett v. State, 317 Ark. 346, 877 S.W.2d 913, 915 (1994) (approving decision not to allow evidence of witness's prior abortions and defendant's condemnation of her to show bias, where bias had otherwise been shown and "any probative value was clearly outweighed by the danger of unfair prejudice"); Brock v. Wedincamp, 253 Ga. App. 275, 558 S.E.2d 836, 842 (2002) (observing "even if evidence of the decedent's abortions and adoptions and sex life were somehow relevant, courts must consider whether `its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury).'" (quoting Metro. Property & Ins. Co. v. Shepherd, 166 Ga. App. 300, 304 S.E.2d 74 (1983) (citation and punctuation omitted.)); Collman v. State, 116 Nev. 687, 7 P.3d 426, 436 (2000) (agreeing that information about abortion "was a collateral matter and the minimal value of it was `overwhelmingly outweighed' by the danger of unfair prejudice, confusing the issues, and misleading the jury."); Schneider v. Tapfer, 92 Or. 520, 180 P. 107, 108 (1919) (testimony that defendant had approved of abortion held irrelevant to issues involved and "was simply evidence which tended to debase and degrade the defendant.... [C]ertainly none could have been offered which was more likely to inflame and prejudice the minds of the jury against the defendant"); see also Hudson v. State, 745 So. 2d 1014, 1016 (Fla. 5th DCA 1999) (concluding "that the inflammatory evidence of two prior abortions certainly contributed to Hudson's conviction" and thus should not have been admitted); Wilkins v. State, 607 So. 2d 500, 501 (Fla. 3d DCA 1992) (calling evidence that the defendant and his wife considered having an abortion of the baby-victim "excludable ... as ... an impermissible assault on the defendant's character and was otherwise irrelevant and inflammatory"). Cf. People v. Harris, 633 P.2d 1095, 1100 (Colo.App.1981) (concluding that admission of evidence that defendant suggested that wife's pregnancy be aborted (in trial for son's murder) not sufficiently prejudicial to warrant retrial, but acknowledging "it would have been better to exclude some of such evidence").
In addition, there are many cases in which the injection of other matters which are similarly objectionableand sometimes significantly less sohas resulted in reversal, again often in the absence of appropriate objection below. Shootes v. State, 20 So. 3d 434 (Fla. 1st DCA 2009) (concluding that defendant's right to an impartial trial was prejudiced by large number of law enforcement personnel in courtroom on last day of trial); Perez v. State, 689 So. 2d 306, 307 (Fla. 3d DCA 1997) (observing that it is "highly improper to interject even a reference to, let alone an accusation of racism which is neither justified by the evidence nor relevant to the issues"); Gonzalez v. State, 588 So.2d *850 314, 315 (Fla. 3d DCA 1991) (finding fundamental error, in part, based on reference to defendant as a "sexual pervert"); see also Gluck v. State, 62 So. 2d 71, 73 (Fla. 1952) (observing "[n]either [defendant's] religion, character, alleged prior offense, nor occupation were proper issues in the case ... [and that prosecutor's comments] were highly prejudicial and even if not calculated to, undoubtedly had an influence upon the jury"); Cordoba v. Rodriguez, 939 So. 2d 319, 321-22 (Fla. 4th DCA 2006) (deeming fundamental error the admission of a physician's statement that an article (an outside source) that stated that "99 percent of automobile accidents result in lawsuits" was the basis for his conclusion that plaintiffs had not sustained permanent injuries, and observing "`[f]undamental error,' for purposes of granting a new trial, means an error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury."); Thornton v. State, 852 So. 2d 911, 912 (Fla. 3d DCA 2003) (prosecutor's attempted impeachment asking whether defendant said he had to "[b]urn a n----r" improperly referred to unrelated offenses and implied existence of inadmissible damaging facts); MCI Exp., Inc. v. Ford Motor Co., 832 So. 2d 795, 800-02 (Fla. 3d DCA 2002) (characterizing as unfairly prejudicial, plaintiff CEO's reference to "Goddamn Cubans," which defendant exploited by taking phrase out of context, disparaging CEO's character, and exacerbating the phrase's prejudicial impact); McCallister v. State, 779 So. 2d 615, 615-16 (Fla. 5th DCA 2001) (concluding that it was error to admit defendant's statement "[t]hat n----r is dead; when I get out, he better hope I never get out," made during transport after arrest); DeFreitas v, State, 701 So. 2d 593, 601 (Fla. 4th DCA 1997) (concluding that comparison of case to O.J. Simpson case "coupled with reference to [defendant] as a stalker, possessive ex-boyfriend who disapproved of his ex-girlfriend's friends" violated rule against inflammatory argument); Kaas v. Atlas Chemical Co., 623 So. 2d 525 (Fla. 3d DCA 1993) (granting defendant's motion for new trial where plaintiff's counsel during closing called witness a "liar"); Reynolds v. State, 580 So. 2d 254, 256 (Fla. 1st DCA 1991) (concluding that despite lack of objection, "prosecutor's racial comments, which focused on the crucial issue of consent and improperly injected the issue of race ... were so egregious and so pervasive that Reynolds was deprived of his right to a fair trial.").
Speaking more generally,
for evidence to be admissible, it must be relevant. See § 90.402, Fla. Stat. (2002); Gore v. State, 719 So. 2d 1197, 1199 (Fla. 1998). However, when the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, it is inadmissible. § 90.403, Fla. Stat. (2002). "`Where a trial court has weighed probative value against prejudicial impact ... an appellate court will not overturn that decision absent a clear abuse of discretion.'" Sims v. Brown, 574 So. 2d 131, 133 (Fla.1991) (quoting Trees v. K-Mart Corp., 467 So. 2d 401, 403 (Fla. 4th DCA 1985)).
Jomolla v. State, 990 So. 2d 1234, 1238 (Fla. 3d DCA 2008).
Here, the evidence at issue failed in both regards. It was not only not relevant, but any conceivable relevance was substantially outweighed by the danger of unfair prejudice to the defendant. At the trial, Stephenson's attorneys portrayed her as an inexperienced young woman who was let down by the system in caring for her premature and unhealthy baby. Counsel maintained that despite the mother's good *851 efforts, the baby had serious and continuing health problems from the time of her birth. The state's position was that the baby died of malnutrition, the result of the mother's neglect. There was evidence both of the child's fragile condition, and the mother's having missed doctor's appointments and the like.
That the existence, if any, the nature and the extent of the mother's culpability presented close questions and the determinative nature of the jury's perception of this mother in resolving those questions made the abortion issue all the more deleterious to the mother's chance at a fair trial. See Bryant v. State, 787 So. 2d 904, 906 (Fla. 2d DCA 2001) (reversing where State was improperly allowed to offer collateral offense evidence of pornographic images and observing "[t]his was a close case with credibility being a primary issue"); DeFreitas, 701 So.2d at 599 (concluding that prosecutorial misconduct, "deprived the defendant of a fair trial in this otherwise close case" and observing that "said conduct may very well have tipped the scales in favor of the State."); see also Fike v. State, 4 So. 3d 734, 739 (Fla. 5th DCA 2009) (finding fundamental error, observing "as this case turned solely on M.S.F.'s credibility. There was no physical evidence to corroborate her version of events, nor was there any confession or admission. This was a swearing match between Fike and M.S.F."); Davis v. State, 718 So. 2d 874, 877 (Fla. 5th DCA 1998) (reversing conviction for exploitation of an elderly person, holding that marginal value of victim interview to show incompetency was outweighed by danger of unfair prejudice and concluding "[s]howing [the evidence at issue] lobbed the proverbial skunk into the jury box, and deprived the defendant of a fair trial.").
The state cites Walker v. State, 707 So. 2d 300 (Fla.1997). In that case, however, Walker had told the mother-to-be victim that he was willing to pay for an abortion and that "if she insisted to mess up his life or ruin his life, she knew he could make her life miserable." Id. at 309. The court concluded that Walker's statements were a "significant piece of evidence... that Walker had a motive to murder the victims [the mother and child]." Id. at 310. Thus, the court reasoned, the balancing test required by section 90.403, Florida Statutes, was deemed properly to result in admission of Walker's statements.
In this case, in sharp contrast, not only is there no permissible relevance to the mother's consideration of abortion to the legal issues at hand, but its only arguable relevance makes its admission all the more inappropriate: it is apparently the thought that a person who considers abortion is more likely to have killed the child not aborted. This makes the familiar issue of the admission of prior convictions, which is precluded because the jury may (probably correctly) conclude that one who has been convicted before is guilty now, pale into insignificance. Simply put, the evidence that Stephenson, considered aborting her pregnancy did not tend to "prove or disprove a material fact," § 90.401, Fla. Stat. (2007); it tended to prove only a very harmful immaterial one.
In accordance with these authorities, we cannot but conclude that the references to this issue require a new trial. See Pait v. State, 112 So. 2d 380, 384 (Fla.1959) ("[T]here are situations where the comments of the prosecutor so deeply implant seeds of prejudice or confusion that even in the absence of a timely objection at the trial level it becomes the responsibility of this court to point out the error and if necessary reverse the conviction."); Rahmings v. State, 425 So. 2d 1217, 1217 (Fla. 2nd DCA 1983) ("highly prejudicial and inflammatory remarks require reversal *852 unless the appellate court can determine from the record that the improper statements did not prejudice the defendant"); Chavez v. State, 215 So. 2d 750, 750 (Fla. 2nd DCA 1968) ("unless this court can determine from the record that the conduct or improper remarks of the prosecutor did not prejudice the accused the judgment must be reversed" (quoting Pait, 112 So.2d at 385)).
The judgment and sentence are reversed and the cause remanded for a new trial.
Reversed.
SHEPHERD, J., (concurring).
I concur in the decision of the majority in this case. I write to underscore the apparent fact, evident from the quoted testimony, that the defendant in this case considered having an abortion long before she knew the fetus was malformed and the baby likely would be born with serious medical problems. New trials should not be lightly granted. See Warner v. Goding, 91 Fla. 260, 107 So. 406 (1926). However, in this case, where the prosecutor exacerbated the prejudicial testimony in final argument, probably unnecessarily given the quantity of incriminating evidence in the record, I believe the error was compounded to such a degree it was not remediable through a curative instruction, and thus reversibly impaired the dispassionate consideration of evidence by the jury. See Hernandez v. Feliciano, 890 So. 2d 401 (Fla. 5th DCA 2004); DeFreitas v. State, 701 So. 2d 593 (Fla. 4th DCA 1997); Anderson v. Watson, 559 So. 2d 654 (Fla. 2d DCA 1990).
The defense and the majority cite to a wide-ranging list of cases in which evidence of abortion or thoughts of abortion was found to outweigh any probative value with its prejudicial effects. In light of the State's theory of the case here, as well as their ultimate concession during oral argument as to the irrelevance of the evidence to the issues at hand, I would agree that this case falls among that grouping. This is not to say that any and all mention of abortion or its contemplation would serve to vitiate my confidence in any jury verdict of conviction following the use of this evidence. Should the State manage to meet its burden to show the probative worthiness of its evidence in this regard, nothing in this opinion should serve to declare such a showing improper as a matter of law. See State v. Williams, 992 So. 2d 330 (Fla. 3d DCA 2008).
With this caveat, I concur in the decision of the majority.
NOTES
[1] The defendant was twenty five years of age and had no previous record.
[2] At birth, on August 18, 2005, the premature infant weighed one pound, three ounces, and according to the testifying physicians suffered from a multitude of medical problems, including retinopathy of prematurity, bronchopulmonary dysplasia of the lungs, intraventricular bleed, or bleeding in the brain, and a heart problem called patent ductus arteriosus, for which she underwent successful surgery. The baby remained in the hospital for the first six months of her life, and required continued special care from the time she was able to go home until her death. A February 7, 2006, doctor's visit recorded the baby's weight at eight pounds twelve ounces; however her weight at the time of her death, September 8, 2006, was six pounds, nine ounces.
[3] Two competing experts testified. For the State, the medical examiner in Monroe County testified that the baby was devoid of fat cells, and that while she had increased in length, she had decreased in weight, signifying malnutrition which had not happened suddenly and in turn, led to his conclusion that the baby's death was the result of chronic malnutrition from neglect. The mother's expert, a former director of the pediatrics critical intensive care unit at Jackson Memorial Hospital, testified that he believed that, as the consequence of the baby's numerous medical problems, some combination of vomiting, obstruction of her airway, a seizure, hypoxia, low oxygen, and then respiratory arrest had occurred, ultimately leading to cardiac arrest. Therefore, he did not believe the baby starved to death, but rather was malnourished in a medical sense and then had a terminal event.
[4] The most substantial of these is the claim that a change of venue should have been granted based on a Key West Citizen article that appeared on the day of the trial, which was called "Mother Stands Trial in Starving Baby's Death," and which contained a lengthy, mostly inaccurate attack upon the appellant. Although the issue was and is a close one, in view of the trial judge's careful handling of the issue, we doubt that an abuse of discretion has been demonstrated. In any event, it is unnecessary to directly decide the point because the circumstances will certainly not reoccur before the new trial we now order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582888/ | 31 So. 3d 504 (2010)
Paul CORDES and Paulette Hurdlik
v.
BOARD OF ZONING ADJUSTMENTS AND AUDUBON, LLC.
No. 2009-CA-0976.
Court of Appeal of Louisiana, Fourth Circuit.
January 20, 2010.
Rehearing Denied February 11, 2010.
*505 J. Keith Hardie, Jr., New Orleans, LA, for Plaintiffs/Appellees.
George L. Gibbs, Leefe Gibbs Sullivan Dupre' & Aldous, LLC, Metairie, LA, for Defendant/Appellant, Audubon, LLC.
Stephanie M. Bridges, Assistant City Attorney, Thomas A. Robichaux, Deputy City Attorney, Dawn E. Segura, Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for City of New Orleans, Amicus Curiae.
*506 (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
EDWIN A. LOMBARD, Judge.
Appellant, Audubon, L.L.C., defendant in this action in a matter from the City of New Orleans Board of Zoning Adjustments, appeals to this Court a final judgment by the Civil District Court reversing the decisions of the Board and ordering that all building permits for double dwelling use sought by appellant be revoked. For the reasons set forth below, we reverse the decision of the district court and restore the decision of the Board of Zoning Adjustments.
Factual and Procedural History
Audubon, L.L.C. is the owner of a residential property located at 624 Audubon Street in New Orleans. On August 21, 2003, Sean & Scott, L.L.C. purchased the property from The Missionary Servants of the Most Holy Trinity, and the property was transferred to Audubon, L.L.C. on March 5, 2004. Both Sean & Scott, L.L.C. and Audubon, L.L.C., the appellant, are managed by Mr. Craig Tolbert. 624 Audubon Street is located in a residential district that is zoned RM-1 Multi-family Residential, under the City of New Orleans Comprehensive Zoning Ordinance (CZO). The building at issue predates the current zoning ordinance.
Sometime in the fall of 2003, Mr. Tolbert rented the home to foreign exchange students attending Tulane University while planning to make various renovations to the property as well. Said students lived at 624 Audubon Street until the end of the spring 2004 semester. In the summer of 2004, Audubon, L.L.C. filed an application with the City of New OrleansDepartment of Safety and Permits, to renovate their property into a double dwelling. The Department of Safety and Permits issued Building Permit No. 04BLD-01248 to Audubon, L.L.C. on June 29, 2004.
Paul Cordes and Paulette Hurdlik, plaintiffs and appellees in this action, are neighbors of 624 Audubon Street. Mr. Cordes resides at 630 Audubon Street, next to the subject property. Appellees disagreed with the decision of the Department of Safety and Permits to grant Audubon, L.L.C. a building permit to convert 624 Audubon Street into a double dwelling. Appellees timely appealed the decision to grant said permit to the Board of Zoning Adjustments (BZA).
At the BZA hearing of September 13, 2004, plaintiff Paul Cordes testified that he filed his complaint "based on the fact that the permit [issued to Audubon, L.L.C.] allows the house to be converted from one non-conforming use to another non-conforming use." [R. p. 164]. Mr. Cordes further alleged that the house violates the CZO's floor area ratio (FAR), front yard setback, and open space ratio requirements. Also testifying on behalf of Mr. Cordes' position at the BZA hearing was Keith Hardie, who is Mr. Cordes' counsel in the current action. Mr. Hardie is a neighbor who lives at 618 Audubon Street, two houses down from appellant's subject property. Both Mr. Cordes and Mr. Hardie argued that the permit allowed an unlawful conversion of a non-conforming use to a more intensive and less restrictive use of the property. Mr. Hardie also objected to the permit because he felt it would have led to a problematic parking situation in the neighborhood.
Testifying before the BZA on behalf of Audubon, L.L.C. was Robert Biery, an architect hired by the Tolberts to help perform renovations of 624 Audubon Street. Mr. Biery testified that in order to receive a permit for a double-dwelling from the Department of Safety and Permits, the Tolberts were required to seal off *507 the third floor so that the amount of livable square footage was more compatible with the floor area ratio requirements in RM-1-zoned double dwellings.
Also testifying on behalf of Audubon, L.L.C. was Greg Napoli, another neighbor. Mr. Napoli testified that "this is a university area. I am somewhat familiar with this piece of property. I know it is 10 bedrooms and 10 bathrooms. To get a single family to live in a building that is 10 bedrooms and 10 bathrooms, it's a little strange." [R. p. 170] Finally, testifying on behalf of upholding the permit was Mike Centineo, Director of the Department of Safety & Permits. Mr. Centineo testified that 624 Audubon Street:
"was an existing building that predated the current zoning ordinance as far as the size and bulk and height regulations. The owners applied for a permit for a duplex and the property is zoned multi-family residential. And given the argument that the building was reducing the square footage by taking away the third floor of useable area, the department felt they were bringing it more into conformity and based their approval on that." [R. p. 172]
Upon hearing the above-mentioned testimony and the testimony of the parties themselves, the BZA voted 4-1 in favor of upholding the Department's decision to grant a building permit to allow 624 Audubon Street to convert into a double dwelling. Pursuant to La.Rev.Stat. § 33:4727, Mr. Cordes and Ms. Hurdlik filed a Petition for Writ of Certiorari and Judicial Review with the Civil District Court to seek a review of the decision of the BZA to uphold the granting of a permit to appellant to convert 624 Audubon Street into a double dwelling.
On October 29, 2008, the district court conducted a full bench trial on the merits with additional testimony regarding the appeal from the BZA brought forth by Mr. Cordes and Ms. Hurdlik. At the district court, Mr. Cordes reiterated that the floor area ratio, open space ratio, and front yard setback of the property all violated the CZO. He also testified that the third floor was being used by students that the Tolberts had rented the property to, despite the agreement between the Tolberts and the Department of Safety and Permits to seal off the third floor to create a more acceptable floor area ratio. Mr. Cordes entered the property on numerous occasions while workers were present, but never with the permission of the Tolberts. Mr. Cordes further testified that the building permits that he had seen on the door of the appellant's property stated that the property was a single family residence undergoing various renovations and conversions into a duplex.
Steve Garland, an electrical contractor retained by the Tolberts, testified at trial that the house at issue was wired as if it was a triplex wired from one electrical meter. On cross-examination, Mr. Tolbert testified that a permit dated April 1, 2004 contained the words "SFD," representing an indication of a single-family dwelling. Mr. Tolbert claimed that the Department of Safety and Permits filled out this portion, and that classifying the building as a single family dwelling was necessary to receive a permit to allow conversion into a double dwelling. He further stated that the Department of Safety and Permits "filled in the residence as a single dwelling. I never told them it was a single." Mr. Tolbert felt that the city may have had the property classified as a single family dwelling because "they wouldn't let me have a permit without putting that down."
Mr. Biery again testified on behalf of appellant at the district court. He was accepted by the court as an expert witness in the field of architecture. Mr. Biery *508 testified that the property was "obviously being used as some kind of a group home," though it had only one address and one mailbox. He further testified that the property had one large kitchen on the first floor and had remnants or "marks" of kitchens on the upper floors. He stated that there were ten or twelve bedrooms, and that some bedrooms had private bathrooms attached while some bedrooms had shared bathrooms. His ultimate position was that the property had been most likely used as an apartment building in the past. Mr. Paul May, the Director of the Department of Safety and Permits, testified on behalf of appellant and in support of the BZA's decision to uphold the permit of June 29, 2004.
Following this trial of October 29, 2008, the district court ruled in favor of Mr. Cordes and Ms. Hurdlik, and reversed the decision of the Board of Zoning Adjustments to grant a double-dwelling building permit to Audubon, L.L.C. The district court further ordered appellant to cease and desist from utilizing 624 Audubon Street as anything other than a single family residence. The court also revoked all permits that were not in line with use of the property as a single family dwelling.
In its Reasons for Judgment of April 9, 2009, the district court held that "the BZA appeared to acknowledge that this was a single family dwelling and that the owner was seeking the right to convert it to a duplex." The court listed various reasons that the property was a single family dwelling at the time of appellant's application for a permit to convert it to a double: a 1998 Certificate of Completion for electrical work to a "single family dwelling"; the 2003 sales listing of the home as a single family home; and permit applications by appellant in which the property was described as a single family dwelling. The court concluded that "the BZA was correct to find that this property was a single family dwelling." The district court further held that 624 Audubon Street was "non-conforming," and that once the property was used as a single family dwelling, "it is a violation of the CZO for it to convert to a less restrictive use." The district therefore reasoned that the BZA's decision to uphold the conversion into a double-family dwelling was in error.
Assignments of Error
Appellant, Audubon, L.L.C., raises a first assignment of error that the district court committed manifest error in reaching a verdict in favor of plaintiffs and reversing the decision of the Board of Zoning Adjustments. Appellant further alleges that the district court erred in determining that their property at 624 Audubon Street was a single family dwelling.
Standard of Review
Questions of law are reviewed by this Court under the de novo standard of review. Sarpy v. ESAD, Inc., XXXX-XXXX, p. 4 (La.App. 4 Cir. 9/19/07), 968 So. 2d 736. The purpose of certiorari review by the district court of decisions of boards and quasi-judicial tribunals is to "determine whether jurisdiction has been exceeded, or to decide if the evidence establishes a legal and substantial basis for the Board's decision." Elysian Fields, Inc. v. St. Martin, XXXX-XXXX (La.App. 4 Cir. 1/30/92), 600 So. 2d 69, 72. This Court has further held that decisions of the Board of Zoning Adjustments are afforded a presumption of validity. Flex Enterprises, Inc. v. City of New Orleans, XXXX-XXXX (La.App. 4 Cir. 2/14/01), 780 So. 2d 1145, 1149. However, the presumption is rebuttable. Curran v. Board of Zoning Adjustments Through Mason, XXXX-XXXX (La.App. 4 Cir. 6/18/91), 580 So. 2d 417, 418. Finally, a reviewing court should not merely substitute its own judgment for that of the BZA unless there is a showing that the Board acted arbitrarily *509 and capriciously, the Board abused its discretion, or the Board rendered a decision that was manifestly erroneous in light of substantial evidence in the record. King v. Caddo Parish Commission, 97-1873 (La.1998), 719 So. 2d 410.
Law and Analysis
Under La.Rev.Stat. § 33:4727(A)(1), a board of adjustment "may determine and vary" zoning regulation applications "in harmony with their general purpose and intent and in accordance with the general or specific rules contained therein." Under La.Rev.Stat. § 33:4727(C)(3)(c), the Board of Zoning Adjustments shall have the power to:
"in passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, to vary or modify the application of any of the regulations or provisions of the of the ordinance relating to the use, construction, or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done."
Under La.Rev.Stat. § 33:4727(E), the district court, upon petition for review, may allow a writ of certiorari to review decisions by the Board of Zoning Adjustments. The district court may take additional testimony or receive additional evidence as part of its consideration of such an appeal from the BZA. La.Rev.Stat. § 33:4727(E)(4). Such additional evidence and testimony may be entertained whenever the district court is of the opinion it is warranted. Lakeshore Property Owners Association v. City of New Orleans Board of Zoning Adjustments, 85-3542 (La.App. 4 Cir. 12/11/85), 481 So. 2d 162, 165.
It is undisputed that the property at issue, 624 Audubon Street, is located in an area zoned RM-1: Multiple-Family Residential District under the City of New Orleans Comprehensive Zoning Ordinance (CZO). An RM-1 district:
"is intended to maintain low-medium residential densities as might be appropriate for garden apartment developments in outlying areas, and at the same time, to permit a variety of housing types. Population density and height of buildings are low enough to be generally compatible with single family residential development in the same general neighborhood." Comprehensive Zoning Ordinance Article 4, Section 4.8.1.
Article 4, Section 4.8.3 of the Comprehensive Zoning Ordinance describes the permitted uses in an RM-1 district:
4.8.3: Permitted Uses
The following uses of land are authorized as permitted uses in the RM-1 Multiple-Family Residential District except that timeshare buildings and transient vacation rentals are prohibited:
1. Any permitted use authorized in the RS-1 Single-Family Residential District.
2. Two-family dwellings (See Section 11.33)
3. Town houses (See Section 11.33)
4. Multiple-family dwellings.
5. Homes for the aged, nursing homes, convalescent homes and orphans homes.
6. Convents and monasteries.
7. Child care facilities. (See Section 11.15)
8. Small group homes. (See Section 11.22)
It is undisputed that the building at issue was constructed prior to the effectiveness of the CZO. Under Article 13, Section 13.1.2, "any buildings legally under construction but not in accord with the *510 requirements of this Ordinance, will become nonconforming at the time this Ordinance or an amendment thereto becomes effective." The CZO defines a nonconforming use as "a building or land which does not conform with the height, area, or use regulations of the district in which it is located." Comprehensive Zoning Ordinance, Article 2, Section 2.2(134).
The general rule to changes of nonconforming use is provided by Article 13, Section 13.4.1 of the Comprehensive Zoning Ordinance:
In all districts, except the Vieux Carre Districts and the Historic Marigny/Tremé Districts, if no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or more restrictive classification, provided that the new nonconforming use is not more intensive than the prior use. Whenever a nonconforming use of a building has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restricted use.
The Comprehensive Zoning Ordinance also differentiates between nonconforming uses and nonconforming structures:
13.5.1. Extension of Nonconforming Structures.
Buildings which are nonconforming only as to height, Floor Area Ratio, yard areas, lot area per family, or parking may be maintained, structurally altered or increased in cubical content, provided such alteration or increase in cubical content shall not further increase the extent of the nonconformance or permit an increase in the number of dwelling units. Limitations as to cubical content and increase in floor area shall not apply to existing industrial uses in the Vieux Carre.
13.5.2. Extension of Nonconforming Uses.
A building or land (area) which does not conform to the use regulations of the district in which it is located shall not be extended or enlarged by the attachment of display materials on the building or on land outside of the building, or by the attachment of racks, balconies, or other projections from the building, or in any other manner, except when required by law or ordinance.
At issue in this matter is whether the BZA's decision to uphold the granting of a permit to convert the appellant's property into a double-family dwelling was in violation of the Comprehensive Zoning Ordinance or other Louisiana law. The district court, in its position as a reviewing court, determined that the BZA's decision was in upholding the conversion of the building from a single family dwelling into a double dwelling was in violation of the CZO and Louisiana law. We disagree.
First, the appellees' arguments contain a fundamental misunderstanding of what constitutes a nonconforming use. Appellees argue that 624 Audubon Street is a nonconforming use under the CZO. While the CZO includes height or area nonconformity in its definition of a nonconforming use, The Louisiana Supreme Court has more narrowly defined a nonconforming use as:
[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated. Redfearn v. Creppel, 83-2188 (La.1984), 455 So. 2d 1356, 1358.
A legal nonconforming use is "designed to protect those uses which were established before the enactment of a restrictive zoning regulation." Weisler v. *511 Board of Zoning Adjustments, 98-3007 (La.App. 4 Cir. 11/17/99), 745 So. 2d 1259, 1261; Humphrey v. Robertson, 97-1742, p. 8 (La.App. 4 Cir. 3/11/98), 709 So. 2d 333, 337. Since a nonconforming use is inconsistent with the purpose of zoning ordinances, decisions regarding such status should be viewed narrowly with all doubt resolved against continuation or expansion of the non-conforming use. Weisler, supra, 745 So.2d at 1261. However, this principle should be confused with the principle that a zoning ordinance, being in derogation of the rights of private ownership, must be construed, when subject to more than one reasonable interpretation, according to the interpretation which allows the least restricted use of the property. Id.
In this matter, it has been alleged by the appellees that the property at 624 Audubon Street does not meet the floor area ratio, open space ratio, and front yard setback requirements of an RM-1 zoned district. However, land and area shortcomings are irrelevant in determining as to whether the property at issue is a nonconforming use. Under Louisiana jurisprudence, nonconforming use restrictions apply only when a building is being used in a matter not in accordance with the use regulations of that zoning district. In essence, the only factor is whether the building's use is allowed by the zoning regulations of the district that it lies in. The building's shortcomings on area or land does not constitute a nonconforming use. The recent jurisprudence from this Court on nonconforming use cases involves the manner of use, and not conformity of the subject building in height, area or land. See Flex Enterprises, supra, at p. 11, 780 So. 2d 1145 (pertaining to the proposed use of a building as a health club); FQCPRQ v. Brandon Investments, LLC, XXXX-XXXX (La.App. 4 Cir. 3/29/06), 930 So. 2d 107 (pertaining to a hotel operating in a residential district); and Craig v. City of New Orleans Board of Zoning Adjustments, XXXX-XXXX (La.App. 4 Cir. 5/4/05), 903 So. 2d 530 (pertaining to a transient vacation rental building in a two-family residential district).
In this matter, the building, like most buildings that predate CZO, did not meet the floor area and open space ratios called for in buildings in RM-1 Multi-family residential districts. The testimony from the BZA establishes that the house may have been a multi-family dwelling or a single family dwelling, both of which are proper uses in an RM-1 district.
The appellants established at the BZA hearing and at the district court that there are numerous other multi-family dwellings in this district. Double dwellings are allowed in an RM-1 district. It cannot be said that converting the property from one allowable use to another violates the use regulations of an RM-1 Multi-Family Residential District. Therefore, under prior Louisiana jurisprudence, we hold that the property at 624 Audubon Street has not and has never been a nonconforming use. Therefore, the district court's reliance on Article 13, Section 13.4.1 in determining that 624 Audubon Street is a nonconforming use is without merit. There always been proper use of the building in question in accordance with Article 4, Section 4.8.3 of the CZO (cited above). As a result, the appellees' argument that this conversion into a double dwelling is more intensive and less restrictive is without merit.
Finally, appellees rely on Article 13, Section 13.5.1 to argue that the proposed conversion to a double family dwelling violates the CZO because it creates additional dwelling units, and that the appellant's building is still in violation of the floor area ratio, open space ratio, and frontyard setback requirements for buildings in an RM-1 *512 district. As a building that predates the current zoning ordinance and fails to meet the proper floor area, open space, and setback requirements, the property at issue is a nonconforming structure. However, the Department of Safety and Permits had formulated a plan for the building that would bring it into greater conformity with the zoning laws and allow the appellant better use of his property. It is well settled, and in fact, "the first principle of zoning law," that:
"because zoning ordinances are in derogation of a citizen's constitutionally protected right to own and use his property, they must be construed, when subject to more than one reasonable interpretation, according to the interpretation which allows the least restricted use of the property." City of New Orleans v. Elms, supra, 566 So.2d at 632.
It is the opinion of this Court that by allowing the conversion of the property into a double-dwelling and reducing the floor area usage, the BZA exercised its wide discretion under La.Rev.Stat. § 33:4727(C)(3)(c) to modify "vary or modify the application of any of the regulations or provisions of the ordinance" when there are practical difficulties or unnecessary hardships in carrying out the strict letter of the ordinance. The BZA did not abuse its discretion or arbitrarily determine that a double dwelling was an allowable use and more appropriate given the size, dimensions, and number of rooms in the building. As such, the BZA exercised its legislatively designated authority in granting the Tolberts their full right to use their property in a lawful manner. The BZA agreed with the Department of Safety and Permit's decision that allowing a double-family dwelling conversion would bring the property more in conformity with the floor area ratio and other spacial requirements.
Conclusion
It is clear that the BZA acted within its authority to not infringe upon the appellant's rights to use their property in a manner clearly allowed in an RM-1 Multi-Family Residential District. The BZA was ultimately not persuaded by appellees' arguments that the floor area ratio was in violation, and was satisfied with the Department's decision to reduce the square footage of living space to bring the property more into conformity with the applicable zoning laws. The vast majority of buildings in the entire city of New Orleans that predate the current zoning laws are in violation of such structural and area requirements. The governing body is called the Board of Zoning Adjustments for a reason: they are charged with making the appropriate adjustments to zoning regulations so that the right to use one's own property is not seriously infringed by the letter of the zoning laws.
Finally, the appellees essentially argue that 624 Audubon Street remains too large to be a double dwelling in an RM-1 district, but ignore the fact that the building would be in greater violation of the CZO as a single family dwelling. It is simply flawed logic to argue that the property is too large to be a double dwelling, but somehow not too large to be a single family dwelling.
Decree
It is the opinion of this Court that the Department of Safety and Permits and Board of Zoning Adjustments acted within its authority in the law, and that the Board did not act arbitrarily and capriciously, abuse its discretion, or render a decision that was manifestly erroneous in light of substantial evidence in the record. King v. Caddo Parish Commission, supra, 719 So. 2d 410. Accordingly, the April 9, 2009 judgment of the district court is reversed, and the decision of the Board of *513 Zoning Adjustments to uphold granting of the building permit of June 29, 2004 is restored.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585027/ | 382 N.W.2d 275 (1986)
STATE of Minnesota, Respondent,
v.
Fabian Maurice HENDERSON, Appellant.
No. C5-85-1180.
Court of Appeals of Minnesota.
February 25, 1986.
Review Denied April 18, 1986.
*276 Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, Paul R. Jennings, Asst. Co. Atty., Minneapolis, for respondent.
C. Paul Jones, Public Defender, Ann Remington, Asst. Public Defender, Minneapolis, for appellant.
Considered and decided by POPOVICH, C.J., and WOZNIAK and SEDGWICK, JJ., with oral argument waived.
OPINION
SEDGWICK, Judge.
Appellant Fabian Henderson was convicted of two counts of aggravated robbery, Minn.Stat. § 609.245 (1984), two counts of assault in the second degree, Minn.Stat. *277 § 609.222 (1984), and two counts of burglary in the first degree, Minn.Stat. § 609.582, subd. 1(a) and (c) (1984). Issues raised on appeal include sufficiency of evidence, legality of the automobile stop, legality of search warrant evidence, admissibility of prior convictions, denial of a fair trial based on a sleeping juror, and sentencing. We affirm as modified.
FACTS
Dorothy Gleason, age 67, was visiting her sister, Mary Binder, age 73, at Binder's home on December 4, 1984. They were in the kitchen when two men, one black, one white, broke through the door. The black man ripped the phone off the wall and ordered the two women to the floor. While the white man went into the bedroom, the black man remained in the kitchen and at gunpoint ordered the women to remove their jewelry. Jewelry, cash and traveler's checks were taken, as well as a new set of blue battery cables Gleason had just purchased. After the men left, the police were called. Gleason described the black suspect as 22 years old, 5'10" tall, 160 pounds, clean shaven, wearing a stocking hat and a red satin jacket.
The officer who took the burglary report noted a pattern of burglaries involving a "black and white" team in the area. Three days later, while on patrol in the area, he stopped an older vehicle. Two of the three people in the car matched the description in the Binder/Gleason burglary. The driver, a white male (Thomas Quigley), was arrested along with appellant. A search of the car revealed traveler's checks in Binder's name in the glove compartment. Various weapons and a set of new blue jumper cables were found in the trunk. Appellant was wearing a red satin jacket.
Gleason identified appellant in a photo display. The next day a search warrant was obtained for the person and residence of Dorothy Reed, appellant's girlfriend. Reed had moved the previous day, however, and the issuing magistrate orally authorized a change of address on the search warrant. When the police arrived at Reed's new address, they discovered two gold watches and a ring set that belonged to Binder and Gleason.
At trial Gleason identified appellant. A witness for the state, Michele Kirsch, testified that appellant and Quigley told her they had robbed a house on the evening of December 4, 1984 and had kicked the door open.
Appellant admitted going to the house with Quigley, but said he left after Quigley ripped the telephone off the wall. He claimed Quigley gave him the jewelry the next day and he gave it to Reed.
Appellant was convicted and sentenced on all counts as follows: Count 1 (aggravated robbery of Dorothy Gleason) 53 months; Count 2 (aggravated robbery of Mary Binder) 25 months, consecutive; Count 3 (assault in the second degree of Dorothy Gleason) 34 months, concurrent; Count 4 (assault in the second degree of Mary Binder) 34 months, concurrent; Count 5 (burglary in the first degree) 34 months, concurrent; and Count 6 (burglary in the first degree) 49 months, concurrent.
ISSUES
1. Was the evidence sufficient to sustain the conviction?
2. Was the stop justified by reasonable suspicion?
3. Was evidence seized pursuant to the search warrant unlawfully admitted?
4. Did the trial court abuse its discretion in admitting appellant's prior convictions?
5. Was appellant prejudiced because of a sleeping juror?
6. Did the sentencing violate the prohibition against multiple punishment for separate offenses arising out of one behavioral incident?
7. Did the trial court's use of consecutive sentencing unfairly exaggerate the criminality of appellant's conduct?
*278 ANALYSIS
I
The jury could reasonably have concluded that the evidence was sufficient to sustain the conviction. Appellant was identified by Gleason, who spent about 30 minutes in a well-lit kitchen with him. Further, appellant's clothing and physical characteristics matched the description given by the victims. Some of the victims' jewelry was recovered from the residence of appellant's girlfriend. A witness testified that appellant and Quigley admitted burglarizing a house that evening. We conclude the evidence was sufficient.
II
Appellant challenges the initial stop which led to his arrest.
A stop is lawful if the officer is able to articulate * * * that he had a "particularized and objective basis for suspecting the particular persons stopped of criminal activity." The officer makes his assessment on the basis of "all of the circumstances" and "draws inferences and makes deductions inferences and deductions that might well elude an untrained person."
Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn.1985), quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 694-95, 66 L. Ed. 2d 621 (1981).
The officer testified that his attention was drawn to the older car going through a residential alley in an area that had been victimized by burglars at that time of day (5:00 p.m.). The car did not stop. The officer then observed heads popping up from inside the car. The officer testified that he deduced that burglary victims in the area were being followed home from the bus stop, that it was unusual for a car to drive through a residential alley without stopping, and that it was unusual for people to hide by ducking down in a car and then reveal their presence by popping up. We agree with the trial court that the stop was based on a reasonable suspicion of criminal activity and was not based on idle curiosity, whim, or caprice.
III
Appellant claims his rights were violated when evidence seized during a search of his girlfriend's new address was admitted. The police obtained a warrant to search Dorothy Reed and her residence at 707 Logan Avenue North, # 6. Apparently appellant was staying there with his girlfriend, although the unit was actually listed in the name of K. Parker. When the police learned that Reed had moved to an address on Lyndale Avenue the day before, they telephoned the issuing magistrate who authorized the change of address orally and initialed the change afterwards.
Appellant had already been arrested and taken into custody when the search warrant issued. No evidence was presented that he was living at the address on Lyndale Avenue. It is well settled that a court may not exclude evidence under the fourth amendment unless it finds an unlawful search or seizure violates the defendant's own constitutional rights. United States v. Payner, 447 U.S. 727, 731, 100 S. Ct. 2439, 2444, 65 L. Ed. 2d 468 (1980) (citations omitted); Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978). Appellant never established that his rights were violated by the search of Reed's residence; he has no standing to challenge the search. See generally 3 W. Lafave, Search and Seizure, § 11.3 (1978 & Supp.1986). Moreover, appellant's argument that the police should have physically taken the search warrant to the magistrate for a change of address rather than telephoning has little weight. See State v. Andries, 297 N.W.2d 124 (Minn.1980).
IV
Appellant claims the trial court erred in admitting two prior aggravated assault convictions. First, appellant never objected. Appellant testified against his counsel's advice. In fact, defense counsel told appellant his prior record would be admitted. Second, even if appellant objected, *279 there was no abuse of discretion. See State v. Bettin, 295 N.W.2d 542, 545-46 (Minn.1980).
Appellant also claims the trial court erred in allowing the prosecutor to delve into the details of the prior convictions. We have reviewed this claim and find that appellant "opened the door" to most of the inquiry by claiming on direct examination that he does not carry knives or guns. Appellant's prior convictions both involved use of knives. See State v. Gardner, 328 N.W.2d 159, 161 (Minn.1983). Other inquiries by the prosecutor concerning prior plea negotiations and similar matters were improper but clearly were not reversible error in this case.
V
After the verdict, appellant claimed a juror was sleeping. The trial judge, law clerk, bailiff and prosecutor did not see a juror sleeping. The juror denied sleeping; she admitted she was "fighting off" sleep during the trial court's instructions listing the six charged counts. Written instructions were sent to the jury. Appellant has established neither a prompt objection nor any misconduct resulting in prejudice. See State v. Yant, 376 N.W.2d 487 (Minn.Ct. App.1985); State v. Henderson, 355 N.W.2d 484 (Minn.Ct.App.1984).
VI
The State concedes that appellant should not have been sentenced on Counts 3, 4, and 5 because of the prohibition against multiple punishment for separate offenses arising out of one behavioral incident. Minn.Stat. § 609.035 (1984).
VII
Appellant claims the consecutive sentence on Count 2 for aggravated robbery, while not a departure, unfairly exaggerated the criminality of appellant's conduct. We disagree. Appellant's total sentence of 78 months is not unfair.
DECISION
Appellant was not denied a fair trial and the evidence was sufficient to sustain his convictions. The trial court must vacate the sentences for Counts 3, 4, and 5.
Affirmed as modified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1196706/ | 620 P.2d 1341 (1980)
In the Matter of J.W.N., A Child Under Eighteen (18) Years of Age.
No. J-80-195.
Court of Criminal Appeals of Oklahoma.
December 15, 1980.
Gary Peterson, Deputy Appellate Public Defender, Norman, for appellant.
Bill Roberson, Dist. Atty., John Gerard Canavan, Jr., Asst. Dist. Atty., Shawnee, for appellee.
*1342 OPINION
BUSSEY, Judge:
J.W.N., age 14, was charged by petition, filed in the juvenile division of the Pottowatomie County District Court, with Burglary in the First Decree, Title 21 O.S.Supp. 1980, § 1431, Assault and Battery With Intent to Kill, Title 21 O.S.Supp. 1980, § 652, and Larceny of an Automobile, Title 21 Ohio St. 1971, § 1720. At a hearing held on January 16, *1343 1980, before the Honorable Glen Dale Carter, Associate District Judge, the District Court found prosecutive merit to the claims of the petition. At a hearing held on January 30, 1980, the District Court found J.W.N. nonamenable to reasonable rehabilitation and certified him to stand trial as an adult. From this order, J.W.N. has perfected this appeal.
The evidence presented at the prosecutive merit hearing centered around an incident which allegedly occurred in Tecumseh, Oklahoma, on January 2, 1980. Robert H. Parker, age 85, testified that he returned to his home from a trip to town around 7:00 p. m. on the day in question. After Mr. Parker had entered his house and locked the screen door, a boy, whom Parker identified as the appellant, approached the front door and asked Mr. Parker to drive him to Midwest City. Mr. Parker refused and closed the door. The appellant then tore the screen door off its hinges, kicked open the front door, and hit Mr. Parker in the head. After Mr. Parker regained his consciousness, he discovered that his telephone had been ripped off the wall and that his bluegreen, 1968 Ford pickup, which he testified had a tag number 106617, was missing along with the keys to same. Mr. Parker subsequently walked to a neighbor's house for help.
Around 9:55 p.m. on the same day, the appellant was taken into custody by Midwest City police while driving a green, 1968 Ford pickup, tag number T610607. A search of the vehicle disclosed a set of brass knuckles on which traces of human blood were found.
A physician testified that Mr. Parker had suffered multiple lacerations and contusions about the head, and a concussion of the brain. It was the physician's opinion that the injuries had been caused by multiple blows, and that the injuries, if left untreated, might have caused death.
Other testimony established that the appellant had been a resident at the Central Oklahoma Juvenile Treatment Center in Tecumseh on January 2, 1980, and at approximately 5:00 p.m. on that date, the appellant ran away from the facility without permission.
On the basis of this testimony, the District Court found that the three alleged offenses had in fact been committed, and that there was probable cause to believe that they had been committed by the appellant. The District Court further ordered that a certification study be prepared and that an amenability hearing was to be held on January 30, 1980.
The evidence at the amenability hearing basically centered around the certification study prepared by the State's witnesses, Pamela Husky, counselor for Court Related Services of Logan County, and Joan Elizabeth Phillips, a psychologist with the Redrock Comprehensive Medical Health Center in Shawnee. The testimony of both established that the appellant had had numerous contacts with law enforcement agencies since the age of 10; he was of normal or slightly below normal intellectual and emotional levels; he was conscious of societal norms and was probably able to distinguish right from wrong when he committed the alleged acts; he had the benefit of both open and closed rehabilitative facilities; he was AWOL from a closed campus rehabilitative facility when he committed the alleged criminal offenses; his home life was extremely unstructured; he was aggressive and violent; and he was in need of structured, long-term rehabilitation. Both of the State's witnesses and the appellant's expert witness, Marilyn Thoms, assistant supervisor with the Court Related Community Services of Logan County, agreed that the appellant was amenable to rehabilitation; however, none would guarantee that the appellant could be placed in the recommended rehabilitation program.
On the basis of this testimony, the certification report, the testimony of appellant's mother, the arguments of counsel at appellant's certification hearing, and the testimony at appellant's prosecutive merit hearing, Judge Carter issued an order on January 30, 1980, certifying the appellant to stand trial as an adult.
*1344 In his first assignment of error, the appellant contends that the State has not met its burden of justifying the trial of a 14-year-old as an adult. Implicit in the appellant's first proposition is a misconception concerning the standard of review of the trial court's order finding that appellant was not amenable to reasonable rehabilitation. Referring to the certification hearing, Title 10 O.S.Supp. 1979, § 1112(b), reads in part:
If the court finds that prosecutive merit exists, it shall continue the hearing for a sufficient period of time to conduct an investigation and further hearing to determine the prospects for reasonable rehabilitation of the child if he should be found to have committed the alleged act or omission.
In general, the trial court's second finding, the nonamenability to reasonable rehabilitation, must be supported by "substantial evidence." In J.T.P. v. State, Okl.Cr., 544 P.2d 1270 (1975), this Court stated:
The decision that a child is unfit for rehabilitation within the juvenile system is one within the discretion of the juvenile judge. That discretion, however, must be exercised within the bounds of due process which requires ... substantial evidence against the child's claim to the benefits of juvenile treatment.
The practical effect of the language of J.T.P. v. State, supra, is to place upon the State the burden of establishing nonamenability to reasonable rehabilitation by substantial evidence. See Matter of R.M., Okl. Cr., 561 P.2d 572 (1977). In defining the term "substantial evidence," this Court, in Calhoon v. State, Okl.Cr., 548 P.2d 1037 (1976), adopted language from Corbin v. United States, 253 F.2d 646, at 649 (10th Cir.1958), and stated in part:
`Substantial evidence is more than a scintilla. It must do more than create a suspicion of the existence of the fact to be established... '
Nevertheless, the appellant contends that the State did not meet what he says is a heavy burden in certifying a 14-year-old as an adult. In support he cites the testimony of the State's witnesses favoring juvenile treatment. However, this Court in Calhoon v. State, supra, stated:
The juvenile judge, in reaching the ultimate finding in the case, was not required to give exclusive, controlling effect to the testimony of experts ... but was required to weigh same along with all other evidence in the case. Stidham v. State, Okl.Cr., 507 P.2d 1312 (1973).
See also Matter of Miller, Okl.Cr., 562 P.2d 149 (1977). Furthermore, the age of the juvenile is only one factor among the totality of facts and attendant circumstances from which the trial court can reasonably infer a conclusion regarding amenability. See Matter of R.M., supra. As a consequence, there is no arithmetic formula which must be applied, and therefore, the trial court must be given some room for discretion. See Matter of Miller, supra; and J.T.P. v. State, supra.
An examination of the record in the present case reveals that the State produced substantial evidence from which the trial judge made a finding that the appellant was not amenable to reasonable rehabilitation by utilizing the statutory guidelines of 10 O.S.Supp. 1979, § 1112(b).[1] For instance, *1345 the record of the prosecutive merit hearing fully supports the notion that the alleged offenses were serious and were committed in an aggressive, violent, premeditated, and willful manner. The alleged offense of Assault and Battery with Intent to Kill, a crime against a person which resulted in personal injury, was committed subsequent to or concomitant with crimes against property, Larceny of an Automobile and Burglary in the First Degree. The record of the amenability hearing established that the appellant is of average maturity for his chronological age, and knew right from wrong when he allegedly committed the criminal offenses. Furthermore, the appellant had had the benefit of community and institutional services of both a closed and open campus nature, and had continued contacts with law enforcement agencies. The certification study established that the appellant suffered from emotional problems and required a structural, long-term, treatment-oriented program. However, it did not show with certainty that rehabilitative facilities and services which would have adequately protected the public were available to the juvenile process. Moreover, the alleged offenses occurred while the appellant was in an escape status from an institution for delinquent children. Clearly, the State produced "substantial evidence" supporting the trial court's finding that the appellant was not amenable to reasonable rehabilitation.
In his only other assignment the appellant contends that the evidence produced at appellant's preliminary hearing did not establish prosecutive merit to the Larceny of an Automobile charge. Referring to the preliminary hearing, Title 10 O.S.Supp. 1979, § 1112(b), reads in part:
Except as otherwise provided by law, if a child is charged with delinquency as a result of an offense which would have been a felony if it had been committed by an adult, the court on its own motion or at the request of the district attorney shall conduct a preliminary hearing to determine whether or not there is prosecutive merit to the complaint...
In J.T.P. v. State, Okl.Cr., 544 P.2d 1270 (1975), this Court stated:
We interpret section (b) [of 10 O.S. § 1112] to require two ultimate findings as a prerequisite to a valid certification order. The first of these is a finding of prosecutive merit to the complaint, which statutory phrase we construe to require a finding that a crime has been committed and there is probable cause to believe that the accused child committed it.
Whether or not the appellant is correct in his assertion that the testimony presented by the State at appellant's preliminary hearing would not have supported a conviction is irrelevant.[2] The testimony plainly supported the court's findings that the crime of Larceny of an Automobile had been committed and that there was probable cause to believe the appellant had committed it. Mr. Parker testified that the appellant came to his door and said, "I want you to drive me to Midwest City." When Mr. Parker refused, the appellant broke through two doors and viciously attacked Mr. Parker rendering him unconscious. After Mr. Parker had regained his consciousness, he noticed that his 1968, blue-green Ford pickup and its keys were missing. The appellant was subsequently apprehended in Midwest City driving a green, 1968 Ford pickup. As can be seen, there was ample evidence presented at appellant's preliminary hearing to support the trial court's finding of prosecutive merit to the Larceny of an Automobile charge.
*1346 The order of the District Court, certifying the appellant to stand trial as an adult, is AFFIRMED.
CORNISH, P.J., and BRETT, J., concur.
NOTES
[1] Title 10 O.S.Supp. 1979, § 1112(b), lists six factors which shall be given consideration by the trial court in its determination of amenability:
1. The seriousness of the alleged offense to the community, and whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
2. Whether the offense was against persons or property, greater weight being given to offenses against persons especially if personal injury resulted;
3. The sophistication and maturity of the juvenile and his capability of distinguishing right from wrong as determined by consideration of his psychological evaluation, home, environmental situation, emotional attitude and pattern of living;
4. The record and previous history of the juvenile, including previous contacts with community agencies, law enforcement agencies, schools, juvenile courts and other jurisdictions, prior periods of probation or prior commitments to juvenile institutions;
5. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile if he is found to have committed the alleged offense, by use of procedures and facilities currently available to the juvenile court; and
6. Whether the offense occurred while the juvenile was escaping or in an escape status from an institution for delinquent children.
[2] The cases cited by appellant, United States v. Turner, 421 F.2d 252 (10th Cir.1970), and Tyler v. United States, 323 F.2d 711 (10th Cir.1963), are both based upon the sufficiency of evidence of proving a defendant guilty beyond a reasonable doubt, and are inapplicable to the present case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582923/ | 31 So.3d 978 (2010)
In re Louis G. SCOTT.
No. 2009-B-1886.
Supreme Court of Louisiana.
February 5, 2010.
Rehearing Denied April 5, 2010.
*979 Charles Bennett Plattsmier, Baton Rouge, Gregory Lynn Tweed, for Applicant.
Walter Lee Perkins, Jr., Louis Granderson Scott, for Respondent.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Louis G. Scott, an attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
07-DB-071
The Wesley Matter
In June 2004, DeWanda Perry Wesley purchased a used car from a dealership in the Monroe area, financing the purchase through Crescent Bank and Trust ("Crescent"). The car began having mechanical problems almost immediately after the purchase and stopped functioning altogether in early September 2004. As such, on November 15, 2004, Ms. Wesley consulted respondent about any legal remedies she may have, paying him a $45 consultation fee. In December 2004, respondent met with Ms. Wesley and sent the car dealership a demand letter, demanding repayment of the car's purchase price. Both respondent and Ms. Wesley understood that respondent would not charge her a fee to handle the matter.
In the meantime, Ms. Wesley stopped paying her car note and was sued by Crescent. *980 On June 1, 2005, the trial court granted summary judgment in favor of Crescent Bank.
At about the same time, Ms. Wesley personally spoke with respondent, and he reminded her that he needed $195 for court costs before he could file anything on her behalf in response to the Crescent lawsuit.[1] On June 16, 2005, Ms. Wesley paid respondent the requested $195. Nevertheless, respondent did not file any pleading on behalf of Ms. Wesley until May 1, 2006, at which time he filed a third-party demand against the car dealership, the salesman, and the extended warranty provider.
In 2007, Crescent obtained a judgment to garnish Ms. Wesley's wages. When Ms. Wesley had trouble contacting respondent about the garnishment, she filed a disciplinary complaint against him. Thereafter, respondent advised Ms. Wesley to seek new counsel and returned her file.
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(b) (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client), 3.2 (failure to make reasonable efforts to expedite litigation), and 8.4(a) (violation of the Rules of Professional Conduct).
08-DB-020
The Davis Matter
The alleged misconduct in the Davis matter stems from two separate representations by respondent of Lester Davis. In the first matter, Mr. Davis hired respondent in late 2003 to handle his mother's succession. Mr. Davis paid respondent $550 in the succession matter. Respondent filed the necessary pleadings, and a judgment of possession was issued in January 2004. Approximately one year later, Mr. Davis attempted to refinance property he received as part of the succession. However, he discovered the judgment of possession contained a typographical error that placed his deceased mother in possession of the property instead of himself and his sister. Mr. Davis contacted respondent concerning the error, but respondent did not correct it quickly. Therefore, the lender retained attorney Patrick Wright to correct the judgment of possession for a fee of $350, which Mr. Davis paid in February 2005.
In the second matter, on January 3, 2005, Mr. Davis paid respondent $1,050 to represent him on a DWI and careless operation charge. Neither respondent nor Mr. Davis appeared at the arraignment on January 19, 2005. Instead, attorney Robert Noel appeared on Mr. Davis' behalf in place of respondent. Mr. Noel waived Mr. Davis' appearance and formal arraignment and entered a plea of not guilty on Mr. Davis' behalf. Respondent did not inform Mr. Davis that he would not be appearing and did not discuss with Mr. Davis the waiver of Mr. Davis' appearance, the waiver of arraignment, or what plea would be entered.
Mr. Davis received notice that his trial date was April 4, 2005 and appeared in court on that date. Attorney Kenneth Trahan appeared in place of respondent and requested a continuance. Respondent did not inform Mr. Davis that he would not be present or that a continuance would be requested.
*981 In May 2005, Mr. Davis sent respondent a letter, terminating his services and requesting a refund of the fees he paid. Respondent failed to provide a refund at that time.
After hiring attorney Amado Leija to handle the DWI matter, Mr. Davis learned that respondent attended an administrative hearing on his behalf. Respondent never informed Mr. Davis of the hearing.
In September 2007, frustrated by "the length of time it took in order to get a response from Attorney Scott," Mr. Davis filed a disciplinary complaint against respondent. In November 2007, respondent refunded a total of $1,130 to Mr. Davis. Thereafter, Mr. Davis sent the ODC a letter dated November 14, 2007, indicating that he and respondent came to an "amicable resolution concerning my complaint. Therefore, this matter can be considered closed."
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2, 1.3, 1.4, 1.16(d) (obligations upon termination of the representation), and 8.4(a).
DISCIPLINARY PROCEEDINGS
In November 2007, the ODC filed the formal charges in 07-DB-071. In February 2008, the ODC filed the formal charges in 08-DB-020. Respondent answered both sets of formal charges and denied any misconduct. The two matters were then consolidated by order of the hearing committee chair before being considered together by the hearing committee.
Respondent and the ODC both called witnesses to testify at the formal hearing. The parties also entered into a stipulation of facts as detailed in the hearing committee's report below.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the hearing committee adopted the stipulation of facts presented by the parties, and made its own findings, as follows:
The Wesley Matter
Stipulated facts
III. In 2004, Ms. Wesley purchased a used vehicle from a dealership in the Monroe area. Thereafter, Ms. Wesley began to experience problems with the vehicle;
IV. On November 15, 2004, Ms. Wesley consulted with respondent to determine what legal remedies she may have and paid him a $45 consultation fee;
V. In early January 2005, Crescent Bank filed a lawsuit against Ms. Wesley based on her failure to make timely car payments;
VI. In February 2005, Ms. Wesley met with respondent to discuss the suit filed by Crescent Bank, and respondent agreed to assist Ms. Wesley in the matter;
VII. The court record reflects the following activities:
A. On February 28, 2005, Crescent Bank obtained a preliminary default;
B. On March 16, 2005, Crescent Bank obtained a default judgment. That same day, respondent filed an answer and third party demand, which was returned for failure to pay court costs;
C. On April 6, 2005, respondent filed a motion for new trial, asserting that he filed an answer the same day the default judgment was entered, which answer was returned to him because the default judgment was signed while the answer was still in the clerk of court's office;
*982 D. On April 11, 2005, the judge denied the motion for new trial;
E. On April 14, 2005, opposing counsel filed a motion to vacate judgment, and the judge vacated the judgment;
F. On May 12, 2005, Crescent Bank filed a motion for summary judgment;
G. On May 27, 2005, respondent filed an opposition to the motion for summary judgment;
H. On July 6, 2005, the court granted the summary judgment;
VIII. In October 2006, respondent, through his secretary, informed Ms. Wesley that a pre-trial conference had been set for January 17, 2007. The conference date was subsequently removed from the docket;
IX. On April 10, 2007, Crescent Bank obtained a garnishment on Ms. Wesley's wages to satisfy the summary judgment.
Findings made by the hearing committee
The committee determined that Ms. Wesley was a "very credible witness." The committee rejected respondent's effort to justify his handling of Ms. Wesley's legal matter, characterizing his conduct as an "egregious mismanagement of a redhibitory defect claim." The committee found that respondent failed to keep Ms. Wesley informed about activities concerning her legal matter, failed to diligently pursue her legal matter, and failed to initiate a lawsuit on her behalf, despite his assurances that he would do so. Based on these findings, the committee determined that respondent violated Rules 1.2, 1.3, 1.4, 3.2, and 8.4(a) of the Rules of Professional Conduct. The committee did not find a violation of Rule 1.5(b).
The Davis Matter
Stipulated facts
X. In late 2003, following the death of his mother, Mr. Davis retained respondent for a fee of $550 to handle the succession. Respondent filed the necessary pleadings, and a judgment of possession was issued on January 16, 2004;
XI. In December 2004, Mr. Davis was arrested on DWI (first offense) and careless operation charges. Mr. Davis consulted with respondent, and on January 3, 2005, Mr. Davis paid respondent a "flat fee" of $1,050 to represent Mr. Davis in connection with those charges;
XII. Mr. Davis' arraignment was scheduled for January 19, 2005. On January 3, 2005, respondent advised Mr. Davis that he did not have to appear at the arraignment. On January 19, 2005, attorney Robert Noel appeared in place of respondent and waived Mr. Davis' appearance and formal arraignment and entered a plea of not guilty on Mr. Davis' behalf;
XIII. Mr. Davis received notice that the matter was set to got to trial on April 4, 2005 and appeared in court on that date. Attorney Kenneth Trahan appeared in place of respondent and requested the trial date be rescheduled; and
XIV. On May 12, 2005, Mr. Davis sent respondent a termination letter, requesting a refund of the fees previously paid to respondent for the succession matter and the DWI matter (a total of $1,600).
Findings made by the hearing committee
The succession judgment drafted by respondent contained a typographical error, which was discovered when Mr. Davis attempted to refinance the property. The date Mr. Davis contacted respondent to correct the error was in dispute; however, Mr. Davis' demand to correct the error *983 occurred during one limited conversation. There was no testimony that respondent knew the correction was time-sensitive. Before respondent could act, the lender, not Mr. Davis, hired attorney Patrick Wright to correct the error so the closing could proceed. Mr. Wright was paid for this work on February 18, 2005.
Before learning of the typographical error in the succession judgment, Mr. Davis was charged with DWI and hired respondent to handle the matter. On April 4, 2005, the date the case was set to go to trial, Mr. Davis was in court. Respondent had a conflict; therefore, he had attorney Kenneth Trahan stand in for him and request a new trial date, which was granted. Respondent did not inform Mr. Davis of the conflict or that a continuance would be requested, which inconvenienced Mr. Davis. The inconvenience prompted Mr. Davis to terminate respondent's services and hire attorney Amado Leija to represent him on the DWI charge. On January 27, 2006 and May 30, 2006, Mr. Davis sent respondent additional letters demanding a refund.
Respondent told Mr. Davis to come by his office to receive the refund of the fee for the DWI case. Mr. Davis paid respondent a total of $1,600 for the succession and DWI cases, and he received a total refund of $1,130. However, Mr. Davis did not go to respondent's office as respondent advised. Mr. Davis did not expect a full refund because respondent rendered some services. As such, he left the refund amount up to respondent. Mr. Davis was satisfied with the refund and requested that the ODC dismiss the complaint. He only testified at the hearing because of the ODC's subpoena. He impressed the committee as being someone who takes offense quickly.
Mr. Leija stated that "somebody" attended an administrative hearing for Mr. Davis. He also stated that it is customary for attorneys to stand in for other attorneys at arraignments as a courtesy and that only "sometimes" will an attorney let a client know another attorney is standing in.
The committee determined that based upon Mr. Davis' testimony and the exhibits, there was not clear and convincing evidence that respondent violated any Rules of Professional Conduct. Accordingly, the committee recommended that the charges in the Davis matter be dismissed.
The committee determined that respondent acted knowingly in the Wesley matter, and his mismanagement "prevented [Ms.] Wesley from having the opportunity to put her claim forward in a court of law." Relying on the ABA's Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction is suspension. The committee found the following aggravating factors present: prior disciplinary offenses,[2] a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1979). As stipulated by the parties, the committee found in mitigation that respondent demonstrated a cooperative attitude toward the disciplinary proceeding.
Finding discipline is warranted for respondent's misconduct in connection with the Wesley matter, the committee agreed that the sanction proposed by the ODC in its pre-hearing memorandum is appropriate. Accordingly, the committee recommended *984 that respondent be suspended from the practice of law for one year, fully deferred, subject to two years of supervised probation with the following conditions: 1) respondent shall establish and maintain an effective calendaring system and method to communicate with clients and obtain assistance from the Louisiana State Bar Association's practice assistance counsel in the creation of a proper law office management program; and 2) respondent shall respond to all reasonable requests of his probation monitor, including maintaining monthly contact with the monitor.
Both respondent and the ODC filed objections to the hearing committee's report. The ODC did not take issue with the sanction recommended by the committee, but suggested that the committee erred in recommending dismissal of the formal charges in the Davis matter. Respondent argued that the committee erred in finding that he violated the Rules of Professional Conduct in the Wesley matter.
Disciplinary Board Recommendation
After reviewing this matter, the disciplinary board found that respondent violated Rules 1.2, 1.4, and 8.4(a) with respect to Mr. Davis' DWI case. The board reasoned that respondent did not know whether Mr. Davis wanted a continuance, and Mr. Davis did not approve in advance of another lawyer standing in respondent's stead to discuss a continuance with the court. The board found no misconduct with respect to respondent's handling of Mr. Davis' succession proceeding.
With respect to the Wesley matter, the board found respondent failed to demonstrate manifest error in the committee's finding that he breached his duty to Ms. Wesley by failing to file a redhibition suit on her behalf. Accordingly, the board found that the factual allegations of the formal charges relating to respondent's neglect of Ms. Wesley's legal matter were proven by clear and convincing evidence.
The board determined that respondent knowingly and intentionally violated duties owed to his clients. He caused "potentially serious" harm to Ms. Wesley but only "minimal" harm to Mr. Davis. Based on the ABA's Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.
The board agreed with the aggravating factors found by the committee. The board found no mitigating factors are present.
Given the applicable aggravating factors and this court's prior jurisprudence involving similar misconduct, the board recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with the conditions proposed by the hearing committee. Four board members dissented and would recommend that respondent be suspended from the practice of law for one year and one day, with all but ninety days deferred.
Respondent filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any *985 way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.
In this matter, the record supports the stipulation of facts and the hearing committee's factual findings. Based on those facts, respondent neglected Ms. Wesley's legal matter and failed to properly communicate with her. He also failed to properly communicate with Mr. Davis with respect to his DWI matter. In acting as he did, respondent violated Rules 1.2, 1.3, 1.4, 3.2, and 8.4(a) of the Rules of Professional Conduct in the Wesley matter and Rules 1.2, 1.4, and 8.4(a) in the Davis matter.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So.2d 520 (La.1984).
Respondent knowingly violated duties owed to his clients. He caused harm to both Ms. Wesley and Mr. Davis. The baseline sanction is a suspension from the practice of law.
Aggravating factors consist of prior disciplinary offenses, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct,[3] and substantial experience in the practice of law. The sole mitigating factor is respondent's cooperative attitude toward the disciplinary proceedings.
Considering all the circumstances of this case, we find the appropriate sanction for respondent's misconduct is a six-month suspension from the practice of law, fully deferred. Any additional misconduct by respondent within one year from the finality of this judgment may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.
DECREE
Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Louis G. Scott, Louisiana Bar Roll number 11882, be and he hereby is suspended from the practice of law for six months. This suspension shall be deferred in its entirety, subject to the condition that any additional misconduct by respondent within one year from the finality of this judgment may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. *986 All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
CLARK, J., dissents and assigns reasons.
KNOLL, J., dissents for reasons assigned by CLARK, J.
CLARK, J., dissenting.
I find the record does not support that the ODC proved by clear and convincing evidence that respondent had violated any ethics rules.
Accordingly, I dissent.
NOTES
[*] Chief Justice Kimball not participating in the opinion.
[1] Respondent testified that he requested payment of advance court costs from Ms. Wesley on more than one occasion prior to June 2005.
[2] Respondent was previously the subject of a complaint alleging that he neglected a legal matter and failed to return a client's file. In April 2005, the ODC referred the complaint to diversion, which respondent successfully completed in December 2005.
[3] Particularly disturbing is the fact that respondent continues to blame Ms. Wesley's failure to pay court costs for his neglect of her legal matter. He fails to acknowledge that the appropriate course of action, given her failure to pay court costs, was to timely withdraw from the representation to allow her to seek new counsel. Respondent also fails to acknowledge that he has a pattern of failing to communicate with clients regarding the direction of the representation, which is evident in both the Wesley and Davis matters. Again, he makes excuses or blames his client for his failure to communicate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582854/ | 31 So.3d 485 (2010)
STATE of Louisiana
v.
Steven M. HONORE.
No. 09-KA-313.
Court of Appeal of Louisiana, Fifth Circuit.
January 12, 2010.
*487 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Jacquelyn F. Maloney, Assistant District Attorneys, Twenty-Fourth Judicial District Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee.
Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
MARION F. EDWARDS, Judge.
Defendant/appellant, Steven M. Honore ("Honore"), appeals his conviction of one count of second degree murder, a violation of LSA-R.S. 14:30.1. We affirm.
Following his arraignment, Honore filed various pre-trial motions. The trial court denied his motions to suppress evidence, statement, and identification. Honore proceeded to trial on March 10, 2008 throughout which he moved for mistrials and a new trial, all of which were denied. Ultimately, a twelve-person jury found Honore guilty as charged. Following the denial of *488 a motion for new trial, Honore was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
On November 19, 2004, between 3:22 and 3:25 a.m., Ernie Jacobs ("the victim") was the victim of a shooting homicide in Kenner that occurred outside of a club known as Robinson's Place in the 500 block of Taylor Street in Jefferson Parish. The victim sustained three non-lethal gunshot wounds to his arm, shoulder, and thigh and died as a result of one lethal gunshot wound to his head.
Between 3:22 and 3:25 a.m., Officer Anthony Roach ("Officer Roach") of the Kenner Police Department was on Airline Highway, making a turn onto the 700 block of Taylor Street, when he saw a small gray vehicle speeding across the railroad tracks. Officer Roach got behind the vehicle, turned on his lights and siren, and initiated a traffic stop. Officer Roach pulled the vehicle over at the intersection of Airline and North Bengal, after the vehicle had passed Waldo Street.
The driver immediately opened his vehicle door and exited. At the same time, Officer Roach saw the front and rear passenger doors open. The front passenger stuck his head out and looked back at him, and the other passenger exited the rear passenger door. Officer Roach told the rear passenger to get back into the vehicle, and he complied. Officer Roach believed there were four or five people in the car.
The driver approached Officer Roach and said he did not have a driver's license on him. Officer Roach testified that the driver said his name was Corey Fisher ("Fisher"). He handcuffed the driver. At the time, he intended to cite the driver for reckless operation and no driver's license. However, three or four minutes into the stop, Officer Roach was advised by radio of a shooting on Taylor Street near "Robinson Bar." Because he was close to the scene, Officer Roach removed the handcuffs from the driver and released him. Officer Roach testified that he had an "uneasy feeling" about the vehicle, so before he left he wrote down the vehicle's license plate number.
When Officer Roach arrived at the scene of the shooting, the victim was lying on the ground. Another officer told Officer Roach that he spoke with a witness who advised him that the vehicle that had been stopped was involved in the shooting. Thereafter, Officer Roach notified headquarters of the license plate number, and they put out a bulletin for the 2003 Toyota Corolla as being a vehicle that was possibly linked to the homicide. Officer Roach gave descriptions of the occupants in the vehicle he stopped to Detective Keith Forsythe ("Detective Forsythe") of the Kenner Police Department. Officer Roach described the driver, the passenger trying to exit, and the front passenger who looked back at him.
At approximately 4:11 a.m., Officer Michael Schmitt, a Crescent City Connection police officer, stopped the speeding Toyota vehicle at a gas station. There were two occupants in the vehicleHonore and Donnell James ("James"). They were searched, handcuffed, and placed into separate police cars. Thereafter, Detective Forsythe and then Officer Roach arrived. Officer Roach told Detective Forsythe that the two subjects were the same subjects he observed earlier at the traffic stop on Airline Highway. He identified Honore as the driver of the car he had previously stopped and stated that James was one of the passengers trying to exit the vehicle stopped on Airline Highway. Detective Forsythe testified that Honore was wearing a tan-colored Dickies button-down shirt with matching Dickies long pants and *489 a yellow T-shirt underneath, which had a large picture on the front of it.
After Honore was removed from the rear of the police unit, five $100 bills were found hidden underneath the seat of the unit where he had been detained. James was in possession of $740, which was found hidden underneath the insole of his shoe. After Detective Forsythe advised Honore of his Miranda rights, Honore stated that he was at the club in Kenner, in that vehicle, and that he was the only one who had operated the vehicle that night. He refused to identify anyone else with him in the vehicle, and he denied that he had been stopped by the police that night in the vehicle.
At trial, Detective Forsythe testified that his investigation revealed Honore was not the driver but, instead, was the rear passenger. As such, after a three-month investigation, Detective Forsythe realized that Officer Roach made a mistake. He explained that Officer Roach's identification of Honore did not fit with what multiple witnesses had advised him in taped statements.
Officer Roach testified that, on January 11, 2005, Detective Forsythe showed him a photographic lineup. From the lineup, Officer Roach identified Fisher as the driver of the vehicle he stopped. Officer Roach testified that he made a mistake in identifying Honore as the driver. He testified that Honore was the rear passenger who had tried to get out of the vehicle. Officer Roach also admitted that he made a mistake as to the identification of James as the passenger exiting the vehicle, when he was really the front passenger who stuck his head out while looking back at Officer Roach.
Clifton Coston ("Mr. Coston"), an eyewitness to the shooting, identified Honore as the shooter. Mr. Coston, who identified Honore in a photographic lineup on November 24, 2004, knew him from before the incident. Mr. Coston also knew the victim and Rory Hebert ("Mr. Hebert") from work in the daytime. (It appears that Mr. Hebert was a witness to the shooting.) Mr. Coston also had a job at night working at the club in security as a bouncer and had been working there for about three months at the time of the shooting.
Mr. Coston testified that, on November 18, 2004, he saw the victim and Mr. Hebert together at the club where he was working. Mr. Coston testified that Honore was also in the club and appeared upset after a woman posed for a photograph with the victim. According to Mr. Coston, Honore walked off and kept "eyeing [the victim] down."
According to Mr. Coston, the victim later walked out of the club, and Mr. Hebert went to tell Mr. Coston that he and the victim were about to leave. Minutes later, Mr. Coston followed a female out of the club. He testified that he saw a white Grand Prix down the street and that there was a person, who was later identified as the victim, bent over and leaning into the car talking to someone. He stated that a small car that was grey, tan, or brown, pulled up behind the Grand Prix, and that Honore got out of the driver's side, walked behind the car and around to the victim, and shot the victim while the victim was still bent over. He testified that the victim fell and the shooter stood over him and shot a couple of more times. He said that the shooter jumped into the passenger's side of the car and they "kited." He did not know if the shooter got into the front or back seat of the car, but the person on the passenger's side moved over and got into the driver's seat. He also testified that he did not see anyone else getting out of or getting into that car besides Honore. Mr. Coston testified that the car went *490 across the railroad tracks toward Airline Highway and then he saw police lights down the street coming toward the club but noticed that they stopped. He stated that police arrived a couple of minutes later.
Gerald Lee ("Mr. Lee"), a taxicab driver, was working at the time of the incident and was parked facing the club, waiting for a customer. Mr. Lee testified that he heard the first shot, and then turned and saw the second shot from approximately twelve to fifteen feet away. He stated that the shooting occurred in the street and the cab's windows were down, which allowed him to hear the shooter call the victim a "bitch" after the first shot. He said the shooter shot the victim from behind and then, as he fell, the shooter stood over the victim with his gun pointed down. He testified that, after the shooting, the shooter got into the rear passenger side of the car, and they drove away, speeding over the tracks and going toward Airline Highway. Mr. Lee testified that a Kenner police officer got behind the car and put his lights on. He described the car as a 2003 or 2004 compact car that was lavender or purplish in color. Mr. Lee testified that he did not see the shooter's face, and he was not able to make identification.
Four casings were recovered from the murder scene. Officer Jeff Adams of the Kenner Police Department found a weapon and its magazine at the intersection of Airline Highway and Waldo Street, a relatively short distance from the roadway. He went to that location because the vehicle that was identified as carrying the shooter had been stopped in the area, and it was believed that it could have been thrown there. The weapon was a Makarov brand semi-automatic handgun.
Captain Timothy Scanlan ("Captain Scanlan"), an expert in the field of firearms and tool mark identification, examined the Makarov. He tested and compared the firing of the weapon to the casings that were recovered from the scene and concluded that, with 100 percent scientific certainty, he could say the casings were fired from the weapon.
A black T-shirt, brown shoes, and white socks were found on the side of the street in the 700 block of Taylor Street. Officer Roach testified that he did not see anything being thrown out the vehicle he stopped. However, he acknowledged that it was dark, and he was trying to catch up with the vehicle.
Defense witness Shantell Steadman ("Ms. Steadman") testified that she was at Robinson's Bar when the shooting occurred. She testified that she had met Honore that night, and the two of them planned to go home together. She stated that she was with Honore when she first heard the gunshots and that he did not have a gun in his hands nor did he fire any shots. She stated that, when they heard the gunshots, she ran toward the bar, while Honore ran toward the tracks. Ms. Steadman was approximately ten feet away from the shooting, but she did not see the shooting.
Honore testified, stating that he was about ten to thirteen feet away from the victim when he was shot. He did not see the shooting, and he denied shooting anyone. Honore explained that he had given Fisher the keys to the car, which belonged to his girlfriend, because he planned to leave with Ms. Steadman. However, he said that, when he ran to the car after the shooting, no one was in the driver's seat. He testified that he got into the driver's seat and drove the car as they left the club. He testified that Fisher was sitting in the rear passenger seat of the car.
Honore stated that he saw Fisher pull off his black shirt to wipe off a gun when a *491 police car was behind them. He said Fisher threw the gun out of the car and that the car was pulled over by Officer Roach. Honore testified that he did not know Mr. Coston. He admitted that he went to the club every Thursday night, but had never seen Mr. Coston there. He also testified that he did not know the victim, had never met him, and had not seen him in the club that night.
SUFFICIENCY OF THE EVIDENCE
Honore argues the evidence was insufficient to support his conviction because of the discrepancies and inconsistencies in the identifications and descriptions of the shooter. He contends there was no physical evidence linking him to the murder and concludes that the State did not prove beyond a reasonable doubt that a misidentification had not occurred.
Under La. R.S. 14:30.1, second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm.[1] Specific intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the defendant's conduct.[2] The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.[3] Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson[4] standard.[5]
In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the defendant's identity as the perpetrator. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State must negate any reasonable probability of misidentification.[6] Positive identification by one witness is sufficient to support a conviction.[7]
Honore does not claim that the State failed to prove any of the elements of second degree murder; rather, he argues he was not the perpetrator of the offense and that the State failed to prove that a misidentification had not occurred. From his testimony, it appears Honore's theory was that Fisher was the shooter.
Honore argues there was no physical evidence linking him to the murder. Ballistics testimony showed that the four casings found at the scene of the murder were *492 fired from the gun found on the side of the road where Officer Roach stopped the vehicle. Sergeant Alan Abadie ("Sergeant Abadie"), a fingerprint expert, testified that he was not able to get usable fingerprints off of the murder weapon or the magazine. Although the vehicle, which belonged to Honore's girlfriend, Velina Harris, was dusted for fingerprints, Sergeant Abadie was unable to get usable fingerprints from the vehicle's interior. One fingerprint on the rear bumper of the vehicle matched that of Honore. Sergeant Abadie discussed the problems with lifting fingerprints on surfaces such as guns and the interior of vehicles.
There was no blood found on any items examined by Christine Kogos, a forensic scientist for the Jefferson Parish Sheriffs Office crime lab. Further, there were no interpretable DNA results from the shirt and socks tested. Captain Scanlan, an expert in the field of blood stain pattern analysis, testified that there was no blood found on the clothing Honore was wearing. However, he also testified that studies showed that blood spatter would not be found in a hypothetical situation where the victim was shot in the head from a distance of greater than four feet.
The testimony of the eyewitness to the murder was strong. Days after the murder, Mr. Coston identified Honore as the shooter in a photographic lineup. He testified that there was no doubt as to what he saw that night. Mr. Coston testified that he saw the shooting, that the lighting was good, and that Honore, whom he previously knew, was the shooter. He said that Honore came to the club every Thursday and that they had "got into it" previously and "had words" because Honore did not like taking his cap off in the club, which was a club rule. He also stated that he "got into it" with Honore the night the victim was killed.
Mr. Coston was presented with some inconsistencies between his testimony and his previous statement. Although at trial Mr. Coston said that he did not "duck" after the shooting, he was provided with an earlier statement in which he said that he ducked. The taped statement was played for the jury. He explained that he did not duck, but had gotten behind a "Tahoe." Mr. Coston testified that he realized Honore was the shooter when he shot the victim and said he knew Honore's hair and face.
Mr. Coston described the shooter to the police as having "dreads" and a cap, but he could not remember his clothing. He testified that Honore did not have long hair, but had short dreads. However, in his previous statement, Mr. Coston said the shooter's hair went down to his shoulders. Mr. Coston said the prior statement was not true because Honore did not have long hair to his shoulders at the time.
There was another discrepancy regarding Honore's identity that Mr. Coston clarified at trial. Mr. Coston explained that, when he responded negatively when the police asked him about whether the shooter had "gold," he believed they were talking about the gold on Honore's body, not the gold in Honore's mouth. He agreed that Honore did have gold teeth.
Mr. Coston explained that he did not wait to talk to the police after the shooting because he was not in the "right stage of mind." He also stated the following, "I knew what type of people that I was dealing with." Mr. Coston further stated that he did not talk to the police because he felt like it was his fault the victim died. He testified that the police contacted him later.
Forensic findings corroborated Mr. Coston's testimony that the victim was bent over at the time of the shooting. Dr. *493 Susan M. Garcia ("Dr. Garcia"), an expert in the field of forensic pathology, performed the autopsy on the victim and testified that she believed one of the projectiles entered the left side of the victim's head. Dr. Garcia concluded that the wounds were distance-range wounds, which were beyond approximately three feet, depending on the weapon and ammunition used. She believed the weapon was discharged from the left side of the victim for three of the wounds, but the weapon was discharged in the front of the victim's leg for the other. She described the head wound as being consistent with the victim being in a "bent over" position.
Evidence was presented linking Honore to the area in which the shooting occurred. Honore admitted to being at the club after he was stopped by the Crescent City Connection Police Department. Further, cell phone records showed that the subscriber for Honore's cell phone was his girlfriend and that, prior to the murder, several calls on that phone were made and received that were routed through a tower on Airline Drive, which Detective Forsythe testified was approximately nine-tenths of a mile from the club on Taylor Street.
The theory of the defense at trial was misidentification. To attack Mr. Coston's testimony, the defense presented the testimony of an expert to show that Mr. Coston was further in distance than he indicated. Keith Lobrono ("Mr. Lobrono"), an expert investigator, testified that he went to the 500 block of Taylor Street in Kenner and took measurements of where Mr. Coston and Mr. Lee were when they witnessed the shooting. He testified that he believed Mr. Lee's description of the distance he was from the shooting, twelve to fifteen feet, was accurate. However, he stated that Mr. Coston was 175 feet from the shooting, instead of fifty-three and one-half feet as was indicated in the courtroom.
Much of the misidentification theory depended on witnesses' descriptions of the shooter's hair and clothing. In connection with this, the identity of the person in the rear passenger seat became significant. Mr. Coston and Mr. Lee testified that the shooter got into the passenger seat of the vehicle. Mr. Coston was not sure if it was the front or rear passenger side, but Mr. Lee testified that it was the rear passenger seat.
In support of his claim of misidentification, Honore argues he was the driver of the vehicle and that Fisher was the rear passenger and the shooter. Honore testified that, on the night of the murder, Fisher was wearing a black T-shirt and jeans, and that he was wearing khaki pants, a khaki shirt, and a yellow T-shirt.
Officer Roach initially identified Honore as the driver of the vehicle and James as the rear passenger who was trying to exit the vehicle after the suspect car was stopped by the Crescent City Connection Police Department. However, on January 11, 2005, after viewing a photographic lineup, Officer Roach picked out Fisher as the driver of the vehicle at the time of the Airline Highway stop. At trial, Officer Roach testified that he made a mistake in identifying Honore as the driver and, rather, Honore was the rear passenger trying to get out of the vehicle. Officer Roach also admitted that he made a mistake as to the identification of James and that he was really the front passenger who stuck his head out while looking back at Officer Roach. Officer Roach explained that he "zeroed in" on Honore as the driver because Fisher and Honore both had dread locks and resembled each other. He stated that everyone was moving and that his eyes were going back and forth trying to watch everybody in the vehicle. He did not see Fisher at the gas station but testified *494 that, when presented with the lineup, he recognized Fisher as the driver.
At the murder scene, Officer Roach gave Detective Forsythe a description of the driver he stopped, as well as the two subjects trying to exit. Officer Roach told Detective Forsythe the driver was wearing dark clothing and khaki pants and had long dread locks. He described the passenger in the rear, who was trying to exit, as having medium dread locks. Officer Roach explained at trial that long dread locks were braids about shoulder length and that medium dread locks were braids about halfway to shoulder length. He testified that that the driver, Fisher, had the longer dread locks.
Officer Roach explained that when he later put Honore as the driver in the report, it was because of his previous identification in the Crescent City Connection stop. In the written report, Officer Roach described the driver as wearing a black shirt and light pants, with medium dread locks. No description of the second black male, who tried to exit the rear seat, was put in the report. At trial, Officer Roach recalled the driver saying his name was Fisher, but he did not put that in his report because he had no identification or driver's license to prove Fisher was his correct name. However, Detective Forsythe put in his report, and also testified, that Officer Roach told him the driver stated his name was Fisher. Detective Forsythe testified that, based on his investigation, Fisher was the driver of the vehicle at the time of the shooting. Detective Forsythe testified that Fisher was charged with accessory after the fact in this matter, and he believed Fisher was deceased at the time of trial.
Although he was positive that Honore was the shooter, Mr. Coston did not remember clothing he wore. Though he could not identify the shooter, Mr. Lee provided information regarding the shooter's description. According to his testimony, he was clear when he told the police he was uncertain about some details of the shooter's physical description, hairstyle, and clothing.
Mr. Lee was shown his statement and acknowledged that he had said the shooter had corn rows past his ears "maybe shoulder length hair." Mr. Lee recalled telling the police that he did not pay attention to the shooter's clothing and while he said the shooter "maybe" wore a black T-shirt on top of a white T-shirt and dark jeans, he pointed out that he used the word "maybe" three times. Mr. Lee stated that he thought he paid attention to what the shooter was wearing, but stated, "But, you know, maybe through all the chaos I probably saw somebody else after that and I told the officer he probably had on a black shirt with white underneath."
Mr. Lee testified that he made it clear to the officer that he was not certain, but gave him the best physical description that he could. While he admitted that he may have been wrong about the shooter's clothing description, he was adamant that he was certain about where the shooter got into the car, and he emphasized that the only thing he was certain about was that the shooter got into the rear passenger side of the car. Officer Mark Stein of the Kenner Police Department testified that he recalled writing in his report that the shooter was wearing a black shirt, but the potential clothing description of the shooter came from an officer who had interviewed Mr. Lee.
Detective Forsythe testified that, according to witnesses, Honore was wearing a yellow shirt and khaki pants at the club, and he was wearing this clothing when stopped by Officer Roach and by the Crescent City Connection police. Detective Forsythe testified that he investigated this *495 case and believed that the right person was arrested for the murder. When Honore was stopped at the gas station, he was wearing a yellow T-shirt underneath a tan-colored Dickies button-down shirt and matching Dickies long pants.
Honore and the woman he met on the night of the shooting presented a different version of the events. Ms. Steadman stated that she had met Honore that night, and they had planned to go home together. She testified that she was with him when the shooting occurred and, at that time, he was wearing a yellow shirt with a symbol, a khaki long-sleeved Dickies shirt and khaki pants. She never saw him wearing a black T-shirt. Ms. Steadman stated that she had spoken with defense counsel approximately one week before trial, and she explained that she did not go to the police or to the district attorney because she did not know who was handling the case.
Honore testified that when he left the club he was driving and Fisher was sitting in the rear-passenger seat, wearing a black T-shirt and blue jeans. He testified that Fisher pulled off his black shirt to wipe the gun and threw the gun out of the car when Officer Roach pulled behind them. Honore denied that anyone gave Officer Roach the name Fisher in his presence.
Although Mr. Coston stated that he knew Honore and had seen him in the club, and that they had previously "had words," Honore stated that he did not know Mr. Coston and had never seen him before. He stated that he went to the club every Thursday night, but he had never seen Mr. Coston at the club before. He denied that they previously had problems with each other. Although Mr. Coston testified that he saw Honore "eyeing" down the victim after the photograph he took with a woman, Honore denied ever seeing the victim. Honore's testimony partially conflicted with what he told the police after being stopped by the Crescent City Connection Police Department. Although Honore had denied that police had stopped him earlier, at trial he admitted that he was stopped by Officer Roach.
Other evidence was presented from which the jury could have inferred that Honore was linked to the murder. Five $100 bills were found underneath the seat of the police unit where he had been detained although he denied putting money there. When the $500 is added to the $740 found hidden underneath the insole of James' shoe, the total amount of hidden money recovered is $1240. This amount is significant.
Wanda Jacobs, the victim's mother, testified that her son got paid on November 18, 2004, and he made between $1200 and $1300 per week. She testified that, when she received her son's belongings from the coroner's office, he only had about $28. Similarly, Detective Forsythe testified that the victim had $30 and some change on him. He agreed that no witnesses said they saw the shooter take anything from the victim but explained that several witnesses said they ran and ducked behind cars when they heard the gunshots. Mr. Lee said that he did not see the shooter attempt to take anything from the victim but that he had ducked down. Mr. Coston testified that he did not see anyone take anything from the victim, but he stated that people scattered and were blocking his view once the shooting began. Mr. Coston testified that he knew the victim had money because he was paid on that day and could have had $1500 or $2000 on him. He testified, however, that he did not see the victim with the money in the club.
When presented with all the evidence, the jury could have reasonably determined that Honore was the shooter. The jury *496 was presented with all of the evidence and was made fully aware of the inconsistencies within some witnesses' descriptions. Honore was positively identified by Mr. Coston. The jurors clearly found the State's witnesses more credible than the testimony of Honore and his witnesses, and it is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence.[8] The jury rejected Honore's theory of mistaken identity, and the evidence, viewed in a light most favorable to the State, was sufficient to establish that Honore was the individual who murdered the victim. This assignment of error is without merit.
DENIAL OF MOTION TO SUPPRESS
Honore argues that the identifications made of him are unreliable and should be suppressed, claiming the photographic lineups were unduly suggestive because his photograph was the only photograph depicting a person wearing prison garb. He also argues that the witnesses did not describe any distinguishing features that could have separated him from other black males, and instead gave generic descriptions. He concludes that the State cannot negate the probability of misidentification, particularly in light of the subsequent testimony and the assignments of error.
At the suppression hearing, Detective Forsythe testified that photographic lineups, including Honore's photograph, were compiled and were shown to potential witnesses. Detective Forsythe stated that Mr. Hebert and Mr. Coston identified Honore as the shooter from photographic lineups, and that they were not forced, coerced, or threatened, or promised anything of value in exchange for making the identifications. He also testified that he did not suggest to them which photograph to select.
Detective Forsythe testified that Mr. Hebert had previously given him a statement that he had observed the shooting and, therefore, the detective handed the lineup to Mr. Hebert and asked him to view all six photographs in the lineup and determine if he recognized the shooter. Detective Forsythe stated that he did not tell Mr. Hebert the shooter was in the lineup, and he also denied that he suggested to Mr. Hebert which photograph to select. He testified that Mr. Hebert identified Honore as the shooter and that he signed and dated the rear of the photograph which depicted Honore. According to Detective Forsythe, Mr. Hebert had not previously known Honore. On cross-examination, Detective Forsythe was questioned about the photographic lineup shown to Mr. Hebert. Detective Forsythe testified that Honore was wearing an orange shirt and that there might be one other person in that lineup wearing orange clothing.
Detective Forsythe testified that Mr. Coston, a bouncer at the club, had witnessed the shooting. He further stated that Mr. Coston recognized Honore as someone he saw in the club regularly for the past several months and also identified him as the shooter. Detective Forsythe said that Mr. Coston stated that he saw Honore get out of the car, walk up to the victim, shoot the victim, and then get back into the car. Several other witnesses identified Honore as having been at the club the night of the shooting or as someone who frequented the club.
At the hearing, Honore challenged a photographic lineup that was used. He *497 argued he was the only one "clearly wearing an orange prison suit," that it was "common knowledge" that in Jefferson Parish inmates wear orange, and that this alone rendered the identification suggestive. Honore also argued that he had distinctive characteristics, such as his gold teeth. He further alleged that the people in the club likely talked about the incident prior to viewing the lineups and the people who did identify him as the shooter had an interest in the case because they were involved.
In order to suppress an identification, a defendant must first prove the identification procedure was suggestive. If, during the procedure, the witness' attention is unduly focused on the defendant, the identification procedure is suggestive.[9] Even when the suggestiveness of the identification process is proven by the defendant or presumed by the court, the defendant must also show there was a substantial likelihood of misidentification as a result of the identification procedure.[10] Under Manson v. Brathwaite,[11] the factors that courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include: the witness' opportunity to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.[12]
In evaluating the defendant's argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification.[13] A trial court's determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion.[14]
The photographic lineups were not formally introduced into evidence at the Motion to Suppress, but the lineup shown to Mr. Coston does appear as a trial exhibit. In the lineup shown to Mr. Coston, Honore is the only person wearing an orange shirt, although it appears to be a collared shirt. However, at trial Mr. Coston testified that he did not have to see a photograph of Honore to identify him because he knew him.
We do not have benefit in the record of the lineup shown to Mr. Hebert. Appellate courts have no authority to receive or review evidence not contained in the trial court record.[15] However, based on the suppression hearing, the testimony suggests that Honore was not the only person in the lineup wearing orange. Moreover, even if the lineup shown to Mr. Hebert was the same one shown to Mr. Coston, it was not established that the clothing worn by Honore was actually prison garb. Mr. Hebert and Mr. Coston, who identified Honore as the shooter after viewing the photographic lineups, were not witnesses at the suppression hearing and were not asked if the orange-colored clothing *498 drew their attention to Honore's photograph. Although Mr. Hebert stated he did not know Honore, Mr. Coston did know him. Finally, none of the photographs depict a person with gold teeth. None of the other witnesses identified Honore as the shooter.
Considering the foregoing, Honore did not prove the identifications were suggestive. Further, even if the photographic lineup identifications were suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure.
At the suppression hearing, Detective Forsythe testified that Mr. Hebert had previously given him a statement that he had observed the shooting. Detective Forsythe stated that he showed Mr. Hebert the lineup maybe a week or so after the shooting. The incident happened on the streets, and there were "normal" street lights. Further, Mr. Hebert's identification of Honore as the shooter was made in close proximity to the shooting. According to Detective Forsythe, Mr. Hebert was between the curb and the sidewalk and that the shooting took place "just on Rory's [Hebert] side of the middle of the street."
Mr. Coston had an opportunity to view the shooter because he was an eyewitness. At the hearing, Detective Forsythe recalled that he was several car lengths away. Detective Forsythe stated, at the suppression hearing, that Mr. Coston identified Honore as the shooter and recognized him as someone he saw in the club regularly for the past several months. The level of certainty of the identification was demonstrated by Mr. Coston knowing Honore prior to the identification. Further, Mr. Coston described the incident with attention to detail.
Based on the foregoing, even if the lineups had been suggestive, there was no substantial likelihood of misidentification. We find no abuse of discretion by the trial court in denying Honore's Motion to Suppress.
HEARSAY EVIDENCE/MISTRIAL/NEW TRIAL
Honore argues that the trial court erred by not granting him a mistrial when a statement by Mr. Hebert, an unavailable witness, was allowed into evidence and, when Mr. Lobrono, a defense investigator, was improperly questioned by the prosecution as to whether he had expressed to them an opinion regarding Honore's guilt or innocence.
Since mistrial is a drastic remedy, in instances where it is not mandatory, this relief is warranted only when the defendant suffers substantial prejudice that deprived him of any reasonable expectation of a fair trial.[16] The decision to grant or deny a mistrial is within the trial court's sound discretion. The denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion.[17]
Mr. Lobrono's Testimony
Following his testimony on direct, Mr. Lobrono stated on cross-examination that he was asked to speak to several witnesses but was unable to do so. At that point, the prosecutor asked if Mr. Lobrono had a conversation with her outside in the hallway, and Mr. Lobrono answered affirmatively. The State then asked about the conversation, and Mr. Lobrono said that the conversation concerned the fact that the prosecutor's assistant knew him and *499 that the prosecutor knew his sister. The State then asked, "And did you not tell me outside that after you conducted your investigation in this case you believed that the State's case was correct and the defendant was the shooter?" Mr. Lobrono stated that he did not recall saying that to the prosecutor. He also denied stating that he had spoken to Honore's friends, who were at the scene at the time of the shooting, and denied saying anything in reference to Honore being the shooter. At no point during this testimony did Honore object to the line of questioning by the State. On re-direct by the defense, Mr. Lobrono denied telling the prosecutor "anything about Mr. Honore of his guilt or innocence."
After several other witnesses were called and after a lunch recess, Honore recalled Mr. Lobrono. The court allowed Mr. Lobrono to be recalled, "as long as the State can cross-examine him again."
Defense counsel questioned Mr. Lobrono about the extent of his involvement in the case. Mr. Lobrono testified that he did not interview witnesses or review defense counsel's file. Defense counsel then asked Mr. Lobrono if he could come to a conclusion that Honore was guilty, to which question Mr. Lobrono responded that he could not, and that was for the jury to decide. Defense counsel then asked if he would reach a conclusion about someone's guilt without at least looking at the file or listening to witnesses. Mr. Lobrono stated that he could not draw any conclusions in the case and would not attempt to do so. He testified that he was not given inside information as to Honore's guilt or innocence. When questioned by defense counsel and the State, Mr. Lobrono again denied discussing Honore's guilt or innocence with the prosecutor or any one else. On cross-examination, the State asked whether Mr. Lobrono stated in the hall that the State had the "right guy." Mr. Lobrono testified that he told the prosecutor that he was not sure whether the State had the "right man" and denied saying the State had the "right guy." Again, there were no objections by Honore.
The State then called Norman Schultz ("Mr. Schultz") and Assistant District Attorney Elizabeth Curren ("Ms. Curren") as witnesses. Mr. Schultz, an investigator with the Jefferson Parish District Attorney's Office, testified that he recalled the interaction between the prosecutor, Ms. Curren, Mr. Lobrono, and himself. He testified that Mr. Lobrono approached them in the hallway at approximately 9:15 or 9:30 and said to the prosecutor that he believed the prosecutor "had the right person on trial and that Mr. Regan's witnesses either weren't . . . cooperative or weren't telling him what he wanted to hear."
Ms. Curren testified that she knew Mr. Lobrono's sister. She testified that there was a conversation in the hallway that morning involving Mr. Lobrono, the prosecutor, Mr. Schultz, and herself. She said that Mr. Lobrono stated that "[y]ou all have the right guy." On cross-examination, Ms. Curren agreed that there were some problems with the case. There was no defense objection at any time during the testimony of Mr. Schultz and Ms. Curren.
Outside the presence of the jury, Honore argued that Mr. Lobrono was hired with the defense team and now the jury would think even his investigator thought he was guilty. Honore moved for a mistrial, arguing that nothing could be more damaging and that Honore could not get a fair trial. The court noted that defense counsel did not object to the questioning. The court determined that the substance of Mr. Lobrono's testimony was that he took measurements and tried to find some witnesses and, in denying the motion for *500 mistrial, explained that the final decision was for the jury. Defense counsel then argued that the attorney-client privilege had been violated because Mr. Lobrono commented on the guilt of Honore in the hallway. The State argued that Mr. Lobrono was qualified as an expert witness, and, therefore, it was allowed to talk to the expert witness. The prosecutor argued that Mr. Lobrono went to her and that there was no attorney-client privilege violation.
After a recess, the trial judge found the following:
During the recess the Court has had the opportunity to review Article 506 dealing with the lawyer-client privilege and more particularly Section "B" which deals with the general rules of privilege which states: "A client has a privilege to refuse to disclose or to prevent another person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client." In listening to the transcript the DA investigator from Division "A", Norman Schultz, said that what Mr. Lobrono Mr. Keith Lobrono had done was express his opinion that the DA had the right guy and witnesses were not saying what the defense wanted to hear. The Court is of the opinion that that is not privileged communication since whatever witnesses were saying the DA had a right to interview all witnesses in the case, so what witnesses are saying in the case is really not privileged communications.
Also, the Court does notunder Article 775 the Court does not believe that the prejudicialalleged prejudicial conduct outside the courtroom would make it impossible for the defendant to obtain a fair trial in this case because the Court allowed defense counsel the opportunity to recall his investigator, Mr. Lobrono, and also to elicit testimony that he had not spoken to any witnesses and all he did was try to locate witnesses and make measurements in the case. So I think really giving his opinion in the case just goes to the weight of the evidence, and the jurors are in a position after hearing all the testimony and making a decision of what weight to give to that like other thingsother evidence that has come in during the trial, so the Court is going to go ahead and deny the Motion for a Mistrial.
Defendant objected and requested an instruction, which the trial court granted. The court gave the following instruction to the jury:
Members of the Jury, I need to instruct you as regards to the testimony of Mr. Keith Lobrono, Elizabeth Curren and Norman Schultz regarding any opinion allegedly expressed by Mr. Keith Lobrono as to the guilt or innocence of the defendant Steven Honore.
Both the State and the defense has [sic] experienced problems in locating and getting witnesses to cooperate in this case.
Mr. Lobrono has testified as to his limited amount of work on this case to include only taking measurements at the scene and to locating trial witnesses. He testified that he did not locate any witnesses and did not interview any witnesses, nor has he reviewed any reports, witness statements or materials involved in this case. His opinion as to the guilt or innocencehis opinion as to the guilt or the innocence of the defendant in this matter should not be considered by you in any manner during your deliberations. Okay?
After trial, there was a hearing on Honore's motion for new trial. Honore argued that the State's argument that Mr. Lobrono *501 could give an opinion because he was qualified as an expert, in fact, made things worse and that he (Honore) did not have knowledge of the conversation until it came out. Honore argued there were issues of reasonable doubt until this happened and requested a new trial, arguing he was denied due process and that this affected the outcome of the case.
The court found that the State called Mr. Lobrono for impeachment, and not for purposes of giving an opinion regarding Honore's guilt or innocence. The judge stated that he believed there was ample evidence at trial supporting the guilty verdict and denied the motion for new trial. Honore objected and again reiterated his position before sentencing.
There was no objection by the defense during or after the cross-examination of Mr. Lobrono. Following that cross-examination, the defense then called several other defense witnesses. After a lunch recess, Honore recalled Mr. Lobrono. He did not object or move for a mistrial until after the State called Mr. Schultz and Ms. Curren as witnesses to rebut Mr. Lobrono's testimony. Under these circumstances, Honore has waived any error regarding the State's line of questioning to impeach Mr. Lobrono by his failure to move timely for a mistrial or to enter a contemporaneous objection. See, La. C.Cr.P. art. 841(A).
Notwithstanding that finding, and considering the merits of the issue, we underscore that the State's questioning of Mr. Lobrono was on cross-examination. Under the Louisiana Code of Evidence "a witness may be cross-examined on any matter relevant to any issue in the case, including credibility." La. C.E. art. 611(B). Subject to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, or discredit, the witness.[18] The ruling of the trial court as to the scope and extent of cross-examination should not be disturbed absent an abuse of the court's broad discretion.[19] Mr. Lobrono, who was asked to take measurements and talk to witnesses, denied having talked to witnesses in the case, and the State's line of questioning was for impeachment purposes. When the defense recalled Mr. Lobrono and questioned him regarding the conversation, it opened the door to the subsequent line of questioning by the State. Under these circumstances, the scope of cross-examination was within permissible limits.
With regard to the issue of attorney-client privilege, Mr. Lobrono's out-of-court statement was not a privileged or confidential communication protected by La. C.E. art. 506. Even had the defense preserved this claim for review, and even if there was error, it is harmless. Had a mistrial been warranted, the failure to grant a mistrial would not result in an automatic reversal of defendant's conviction, but would be a trial error subject to the harmless error analysis on appeal.[20] Trial error is harmless where the verdict rendered is "surely unattributable to the error."[21]
*502 In the present case, Mr. Lobrono denied commenting on Honore's guilt. Even when recalled, he testified that he did not interview witnesses or review defense counsel's file and that he was not given inside information as to Honore's guilt or innocence. He further denied saying that the State had the "right guy." Further, Honore requested an instruction by the court to the jury regarding Mr. Lobrono's testimony, which was drafted by and read to the jury.
As we determined in our sufficiency analysis, the jury was presented with sufficient evidence supporting Honore's guilt and, thus, the guilty verdict was surely unattributable to any alleged such error. Honore did not suffer substantial prejudice that deprived him of any reasonable expectation of a fair trial. For the above reasons, we do not find that the trial court abused its discretion in denying the motion for mistrial.
Mr. Hebert
Honore contends that inadmissible hearsay by Mr. Hebert was introduced during Detective Forsythe's testimony. Honore argues that the jury could not weigh Mr. Hebert's credibility and judge his demeanor because he did not testify at trial, and this error cannot be deemed harmless.
Detective Forsythe testified on direct examination that Detective Stromeyer interviewed Mr. Hebert and took a taped statement from him on the morning of the 19th. Detective Forsythe took a statement from him on the 23rd, but explained that the tape recorder malfunctioned at the time of Mr. Hebert's second statement.
Detective Forsythe was asked on cross-examination by defense counsel about the closest witness to the shooting. Detective Forsythe responded that it was Mr. Hebert. Thereafter, on re-direct examination, the State asked if Mr. Hebert was the closest to the shooting and if he had spoken to Mr. Hebert. Detective Forsythe responded affirmatively. Subsequently, the State asked, "Was the description of the shooter's clothing" and defense counsel objected to the testimony as hearsay. The State explained that it intended to ask the detective whether the clothing description he received from Mr. Hebert "went towards ultimately who he arrested and why he took a particular step in his investigation." Defense counsel argued that he had not opened the door as to anything Mr. Hebert had said. The court agreed the testimony was based on hearsay that Honore could not cross-examine.
On rebuttal, Detective Forsythe testified that his investigation revealed that Officer Roach had possibly made a mistake in identifying Honore as the driver and asked the officer to view a photographic lineup. Defense counsel cross-examined Detective Forsythe and asked him if Honore was wearing the [gold] shirt and khaki pants in the bar. Detective Forsythe testified that, according to witnesses, Honore was wearing those clothes in the bar as well as at the time he was stopped by Officer Roach and by the Crescent City Connection officer. Defense counsel then asked the following: "And that certainly didn't square with the black T-shirt of the shooter that got out of the driver's side of the car and positively got into the passenger seat in the back, did it? You can't be wearing a black T-shirt if you're dressed like that, right?" Detective Forsythe commented that he would like to fully explain the answer to that question, but did not know if he could. The State asked the court if the detective could answer the question. The court said the witness could answer the question, as long as it did not involve hearsay. Detective Forsythe then said he had witnesses advising him that the shooter *503 was dressed in "those clothing," i.e., the gold or yellow shirt and khaki pants and got into the back passenger seat.
On re-direct examination, the State asked Detective Forsythe "what witness told you the shooter, the defendant, was wearing the outfit we have here in court?" Defense counsel interrupted and commented that he believed the court ruled on the hearsay, and the State responded that defense counsel had elicited hearsay regarding the description of Honore's clothing on cross-examination. The State explained that it was following up to this line of questioning regarding who said what Honore was wearing. The court agreed with the State that hearsay had been elicited and overruled Honore's objection.
Thereafter, the State asked, "Detective, who told you that at the time the defendant shot Ernie Jacobs he was wearing those clothes?" Detective Forsythe responded, "Rory Hebert who was closest to the shooting . . . of all the witnesses." This was the last question by the State, and then the State offered its evidence into the record. The State then rested, subject to its right of rebuttal. The jury was dismissed.
However, before the court recessed, Honore objected to Detective Forsythe's testimony regarding Mr. Hebert's statement. He requested a mistrial and a new trial. Honore argued that the statement was hearsay and that the witness was not there and had not been cross-examined. The trial court denied the motion for mistrial and motion for new trial, and Honore noted his objection. The trial judge explained that he thought defense counsel asked on cross-examination how the witness came to the conclusion about the clothing, and the judge believed this opened the door. The judge stated that these conclusions could have only come through hearsay from witnesses the witness had talked to. Honore argued that there was no objection by the State and then the State was able to say that an absent witness said he killed a man.
La. C.E. arts. 801(A)(1) and 801(C) define hearsay as an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. As a general rule, an investigative report prepared by police and other law enforcement personnel is excluded from the public records and reports exception to the hearsay rule.
In State v. Winfrey,[22] the defendant complained that the trial court improperly permitted the State to elicit testimony from a witness on re-direct examination that was beyond the scope of cross-examination and argued that the testimony was based on an inadmissible hearsay report. On cross-examination, the defense counsel had asked the witness questions and asked the witness to refer to the report to answer the question. The prosecutor then questioned the witness on redirect examination regarding the report.
In that case, this Court found that the report from which the witness testified was hearsay and inadmissible. However, we further found the trial court did not err in allowing the testimony on re-direct because defense counsel opened the door for the inadmissible hearsay report by the questioning on cross-examination from the *504 report. "`Where defense counsel went on cross-examination, the State had the right to follow on redirect.' Because defendant opened the door through interrogation, the defense cannot now be heard to complain."[23] In the present case, as in Winfrey, although the report was hearsay and inadmissible, there was no error by the trial court in admitting this evidence.
However, even assuming that there was error in the admission of this testimony, the ruling was clearly harmless. It has long been held that the admission of hearsay testimony is harmless error when the effect is merely cumulative or corroborative of other testimony adduced at trial.[24] Here, other witnesses testified as to what Honore was wearing at the club and afterwards. The eyewitness, Mr. Coston, testified as to the identity of Honore as the shooter as well as to his clothing. Additionally, the idea that Mr. Hebert was the closest witness to the shooting was elicited by defense counsel and presented to the jury prior to this testimony without objection.
This assignment of error is without merit.
ERROR PATENT REVIEW
The commitment and transcript do not reflect that Honore was advised of the prescriptive period in which to apply for post-conviction relief as required by La. C.Cr.P. art. 930.8. In the past, this Court has ordered the trial court to properly advise defendant of the prescriptive period under La.C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court's opinion and then to file written proof in the record that defendant received notice. However, we have more recently corrected this error by way of its opinion rather than on remand.[25]
Accordingly, we advise Honore by our opinion in this case that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922.
For the reasons set forth herein, we affirm defendant's conviction and sentence.
AFFIRMED.
NOTES
[1] See, State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, writ denied, 06-0757 (La. 12/15/06), 944 So.2d 1277.
[2] See, State v. Graham, 420 So.2d 1126 (La. 1982); State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90.
[3] State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.
[4] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[5] State v. Spears, 05-0964 (La.4/4/06), 929 So.2d 1219.
[6] State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).
[7] See, State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187.
[8] State v. Theriot, 07-71 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715.
[9] State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
[10] Id.
[11] 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
[12] Higgins, supra.
[13] State v. Clennon, 98-1370, p. 6 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164.
[14] Id.
[15] State v. Martinez, 552 So.2d 1365, 1368 (La.App. 5 Cir. 1989).
[16] State v. Lee, 09-37 (La.App. 5 Cir. 5/12/09), 15 So.3d 229 (citing State v. Harris, 00-3459, p. 9 (La.2/26/02), 812 So.2d 612, 617)).
[17] Id.
[18] State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 616, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).
[19] Id.
[20] State v. Givens, 99-3518 (La.01/17/01), 776 So.2d 443; State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94.
[21] State v. Johnson, supra.
[22] 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 76, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481.
[23] Id. at 77 (citing State v. Overton, 337 So.2d 1201, 1206 (La.1976); State v. Rideau, 249 La. 1111, 193 So.2d 264, 269 (1966), cert, denied by Rideau v. Louisiana, 389 U.S. 861, 88 S.Ct. 113, 19 L.Ed.2d 128 (1967); State v. Pratt, 95-762 (La.App. 5 Cir. 2/27/96), 671 So.2d 21, 24).
[24] State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757.
[25] See, State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582872/ | 976 F.Supp. 1125 (1997)
Robert MacDONALD, Plaintiff,
v.
CHICAGO PARK DISTRICT, a body political and corporate, Defendant.
No. 97 C 2963.
United States District Court, N.D. Illinois, Eastern Division.
August 15, 1997.
*1126 *1127 *1128 Wayne B. Giampietro, Witwer, Poltrock & Giampietro, Chicago, IL and Richard J. Wilson, Orlando, FL, for Plaintiff.
Steven A. Weiss, Schopf & Weiss, Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
KEYS, United States Magistrate Judge.
Before the Court is Plaintiff's Second Application for Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 65. For the reasons set forth below, this Court grants in part, and denies in part, Plaintiff's Second Application for Preliminary Injunction.
JURISDICTION AND PROCEDURAL HISTORY
This matter is brought under 42 U.S.C. § 1983, and alleges a violation of rights secured by the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. Plaintiff, Robert MacDonald in his underlying Verified Complaint for Declaratory Judgment and Permanent Injunction ("Complaint"), seeks a declaration that the Chicago Park District's (the "Park District") grounds for permit denial, set forth in Chapter VII, § C(5)(e), of the Chicago Park District's Ordinance (the "Ordinance"), is unconstitutional. Mr. MacDonald also seeks an injunction permanently prohibiting the Park District from enforcing that portion of the Ordinance.
On March 4, 1997, Mr. MacDonald applied to the Park District for a permit to hold "Hempfest/Stop the Drug War Rally and March" on May 10 and 11, 1997. On March 12, 1997, the Park District denied his permit application. On March 18, 1997, Mr. MacDonald appealed the denial of his permit application to the General Superintendent of the Park District. That appeal was denied on March 26, 1997.
*1129 One month later, on April 25, 1997, Mr. MacDonald filed a Complaint, simultaneously filing therewith his Emergency Application for Preliminary Injunction (the "First Application"). The First Application was referred to this Court on April 29, 1997, and an evidentiary hearing was held on May 6, 1997. This Court issued a Report and Recommendation on May 9, 1997, recommending that the First Application be denied because of its untimely filing, one month after denial of the appeal, and only fifteen days before the rally at issue was to begin.[1]
On May 23, 1997, Mr. MacDonald filed the instant Second Application for Preliminary Injunction (the "Second Application"), in which he requested an order enjoining the Park District from enforcing its permit ordinance, and permitting him to hold a rally on August 23 and 24, 1997.[2] On July 2, 1997, the parties consented to the exercise of jurisdiction by this Court concerning the Second Application. On July 21, 1997, an evidentiary hearing was held on the preliminary relief requested in the Second Application.
FINDINGS OF FACT[3]
I. Background
Mr. MacDonald wishes to hold another rally addressing drug policy reform, specifically the legalization of marijuana, in a public park controlled by the Park District.[4]
One year ago, in August of 1996, the Park District issued two permits to Mr. MacDonald to hold similar events. After those events the "Festival of Life" and the "Yippie! Festival of Life" the Park District's Deputy General Counsel, Joan Fencik,[5] mailed Mr. MacDonald written notice that his security deposit would not be returned. That letter, dated September 17, 1996, stated that the Park District was retaining Mr. MacDonald's security deposit due to expenses incurred by the Park District for: delivery and use of portable toilets; opening and cleaning the underground bathrooms at Butler Field; cleaning the stage and seating area at Butler Field (adjacent to Petrillo Bandshell) after the events; and restoring that seating area to its usual configuration. Ms. Fencik's letter also stated that, at the events, multiple violations of the permits' terms occurred, including: alcohol consumption; unpermitted vendors; unpermitted vehicles; unpermitted tents and canopies; improper location of the generator, in violation of the fire code; and loitering by individuals who remained in the park past 11:00 p.m. No hearing was held prior to these determinations, nor was Mr. MacDonald ever found guilty of violating any ordinance. The Park District never sought to impose any fine against Mr. MacDonald (other than the forfeiture of his security deposit) for the alleged multiple violations of the terms of the permit.
On March 4, 1997, Mr. MacDonald applied to the Park District for a permit to hold "Hempfest/Stop the Drug War Rally and March" on May 10 and 11, 1997 (from noon until 10:00 p.m. each day). Mr. MacDonald sought to hold the rally at Butler Field, in Grant Park's Petrillo Bandshell. The purposes of the rally were, again, to provide a forum for public speech on drug policy reform, including the legalization of marijuana, and to raise money for this cause. The rally was expected to draw approximately 10,000 people and would have featured live music, as well as vendors occupying about fifty tents.
Eight days after he submitted his permit application, Ms. Fencik denied Mr. MacDonald's permit by letter dated March 12, 1997. Ms. Fencik cited three reasons for denial of Mr. MacDonald's permit: (1) multiple violations of the two permits issued to *1130 him in August of 1996; (2) failure to provide proof of his unincorporated association's tax-exempt status; and (3) inability of his association to enter into contracts. However, during the May 6, 1997 hearing, Ms. Fencik conceded that the latter two grounds did not provide a legitimate basis for denying Mr. MacDonald's permit. Thus, the Park District's denial of the permit rested upon the alleged existence of prior violations. This ground for denial is expressly provided for in § (C)(5)(e) of the Ordinance.[6]
Although his First Application was not granted, Mr. MacDonald held a rally, on May 10 and 11, 1997. (Tr. at 10-11.) During the rally, the Park District cooperated with Mr. MacDonald, and assisted him by opening up bathrooms, bringing in garbage cans, "allow[ing] him to have a bullhorn", and allowing sound amplification (through portable speakers attached to poles). (Tr. at 11-12.) No trespassing or other complaint was made against Mr. MacDonald for this event.
On May 23, 1997, Mr. MacDonald filed the Second Application, which is currently before the Court, seeking an order compelling the Park District to issue a permit to hold a rally at Butler Field on August 23 and 24, 1997 (in supporting memoranda, Mr. MacDonald also seeks to enjoin Chapter VII, § C(3) of the Ordinance and to compel the Park District to also allow a rally on May 9 and 10, 1998). He has not submitted a permit application for either rally.
The Grant Park Symphony Orchestra and Chorus is scheduled to perform at Butler Field, in Petrillo Bandshell, on the evenings of August 23 and 24, 1997. (Stipulation of Facts, para. 4.) There is a rehearsal of the Orchestra scheduled from 11:30 a.m. until 2:00 p.m. on August 23, 1997. (Id.) Testimony from Ms. Fencik supports a finding that prior unrelated events in Butler Field have in the past disrupted the symphony.
II. Permit Scheme
The Park District requires a group of more than fifty people that desires to assemble, or anyone who wishes to use amplified sound other than for his/her own personal enjoyment, to obtain a permit for use of the public park. An application for a permit must be submitted between ten to sixty days in advance of the event, depending on whether the event is a "picnic", an "athletic event", or a "festival."
The Park District is supposed to make a decision regarding the permit application within fourteen days. However, it can extend the decision-making period for an additional fourteen days. The Park District need not provide any reason for such an extension (Tr. at 63.)
Permit fees and application deadlines are broken down by category, according to the schedule of fees. There are slightly conflicting descriptions on each of the fee schedules submitted into evidence. (Def.'s Ex. 4; Pl.'s Supp. Mem. at Ex. A.). Group weddings and picnics involving 50 people or more pay a $10 application fee, a user fee of $50 per 250 attendees, a security deposit of $100 per 250 attendees, and are required to have a $1 million certificate of insurance. The group picnic and wedding application (and the application fee, user fee, security deposit, and insurance certificate) are due no less than 14 days before the event. Athletic events races and corporate-sponsored tournaments that do not include vendors, stage, amplified sound[7] or alcohol pay a $53 application fee, a $1,050 user fee, a $1,575 security deposit, and are required to have a $1 million certificate of insurance. The athletic event application and application fee are due no less than 45 days before the event. Corporate Festivals with one stage, one source of amplified sound, less than 10,000 square feet of tents, (no corporate giveaways/sampling/signage, alcohol or rides allowed) pay a $105 *1131 application fee, a $525 per day user fee, a security deposit of $1,050 and are required to have a $1 million certificate of insurance. Corporate festivals with one stage, one source of amplified sound, up to 25,000 square feet for tents, (alcohol, corporate sponsorship, and signage are okay) pay a $105 application fee, a $4,200 per day user fee, a $1,575 security deposit, and are required to have a $2 million certificate of insurance. Similar corporate festivals with multiple stages or sources of amplified sound pay a $105 application fee, a $8,400 per day user fee, a $1,575 security deposit, and are required to have a $2 million certificate of insurance. All applications and application fees for corporate festival permits are due no less than 60 days before the event.
Media permits for non-news, live or delayed broadcasts, pay a $26 application fee, a $105 user fee, a $105 security deposit and are required to have a $1 million certificate of insurance. Commercial/movie/video permit seekers pay a $105 application fee, a $750 per day user fee, a security deposit of $1,050 and are required to have a $1 million certificate of insurance. Still photographers pay a $26 application fee, a $105 per day user fee, a $105 security deposit, and are required to have a $1 million certificate of insurance. All materials and fees for these media permits are due no less than 10 days before the event.
All applications must be accompanied by an application fee. The application fee is supposed to cover costs relating to checking whether park space is available and appropriate for the desired event, coordination and meetings with other agencies, such as the Department of Streets and Sanitation, and police, and notification to park staff landscapers and security about the event. (Tr. at 17-20.) However, Ms. Fencik admitted that, if an individual with a bullhorn walks around a park to convey his message, the Park District would not incur any significant administrative costs. (Tr. at 79.) It also does not cost the Park District anything if people just show up and hang out in the park its part of "ordinary wear and tear on the parks ... We just empty their garbage, put toilet paper in the bathrooms." (Tr. at 79-80.)
The user fee, which is in addition to the application fee, includes costs for wear and tear, "coordination, clean up, landfilling, waste, [and] additional security." (Tr. at 21.) "[T]he Park District has its own security force." (Id.) The security personnel are "off-duty police officers." (Tr. at 74.)
Apparently, not content with an application fee and a user fee, the Park District also requires applicants to purchase liability insurance of at least one million dollars. Anyone using artificially amplified sound or having more than fifty people in attendance must get a million dollars worth of insurance. (Tr. at 78.)
Finally, the Park District requires applicants to post a security deposit as an "incentive" to clean the park when the permittee is finished. (Tr. at 79.) The security does not relate to any particular cost, rather it is "an amount that was set that would give people an incentive to clean up after themselves and put things back." (Tr. at 79.)
Notwithstanding its seemingly stringent permit scheme, the Park District sometimes allows more than fifty people to assemble, with artificial amplification of sounds, in the absence of a permit. These permitless events, though not recognized/exempted under the Ordinance, occur when there is a "spontaneous" demonstration, (Tr. at 36), or a Park District sponsored or City sponsored event. The Park District, apparently, simply determines whether to allow spontaneous events to occur "depending on what people are doing." (Tr. at 65.) For example,
[t]here was [a spontaneous demonstration] about a month or so ago. I think people marched from three public housing sites ... and then spilled over into Grant Park. They were like kiddy-corner from the bandshell. They had bullhorns and were making speeches. It happened to be right around noon, which was when the Grant Park Symphony was rehearsing. You know, we did nothing to stop the rally, and so we had to stop the rehearsal because ... the musicians couldn't hear.
(Tr. at 36.) Ms. Fencik testified that the Park District waived the permit requirement, although bullhorns require a permit and "[t]hey should have had a permit for a gathering *1132 of that size...." (Tr. at 53; 80.) Thus, despite the fact that "hundreds" of people showed up spontaneously, the Park District "did not do anything about it." (Tr. at 53.)
Similarly, even though Mr. MacDonald's rally had no permit for the May 10 and 11, 1997 rally, the Park District "told him" he could use a bullhorn anyway. (Tr. at 9-11; 54.) The Park District also allowed Mr. MacDonald to use other means of sound amplification, including "speakers on a stick." (Tr. at 12.) In summary, sometimes the Park District ignores its own requirements "[w]e try to work with people" and sometimes it does not. (Tr. at 54.) Nonetheless, to the Park District's knowledge, no one has ever been arrested for having an event in Grant Park without a permit. (Tr. at 55.)
With respect to the only written waiver provision contained in the Ordinance, the Park District waives the user fee, the security deposit, and/or the insurance requirement if the permit is sought for activity "protected" by the First Amendment and the applicant is unable to pay. Although the Park District "[b]roadly" interprets the Ordinance's language "protected by the First Amendment of the United State Constitution" Ms. Fencik could provide no specific definition of what activities are covered. Basically, the Park District knows it when they see it, and waiver of fees and costs, therefore, "depends [on] what people are asking for." (Tr. at 28-29.)
Permits may be denied for any number of reasons, including, but not limited to, an applicant's: prior "material misrepresentations" about a permitted event; violations of a prior permit; incomplete application; "material falsehoods" on the application; and prior damage to Park District property. However, the Park District does not always deny a permit, even if one or more of the enumerated bases for denial are met. The Park District had difficulty articulating how it determines whether or not to deny a permit, "it's not like a mathematical formula or something." (Tr. at 82.) Moreover, the Ordinance is silent on the issue of how long a person can be disqualified from getting another permit, based upon previous violations. The ban on speech and assembly conceivably could last a lifetime. (Tr. at 86.)
DISCUSSION
I. Standing
Before determining the Ordinance's constitutionality, the Court initially must address Mr. MacDonald's standing to raise these challenges.
Despite the fact that Mr. MacDonald did not apply for a permit for the August 23 and 24, 1997 rally (or for May of 1998), he has standing, as do all other interested persons, to make facial challenges to the Ordinance. A prior restraint on expression, such as a permitting scheme, may be challenged facially by anyone, without the requirement that the permit be applied for or denied first. See Stokes v. City of Madison, 930 F.2d 1163, 1168 (7th Cir.1991). Mr. MacDonald does not have standing to raise any "as applied" challenges to the Ordinance, however, nor does he claim any such standing for preliminary relief herein. Nonetheless, Mr. MacDonald's experiences with the Park District's permit system does shed light on the manner in which the Park District interprets and applies the Ordinance a factor the Court must consider. Ward v. Rock Against Racism, 491 U.S. 781, 795-96, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661 (1989).
II. Preliminary Injunction
A. Preliminary Injunction Standard
To prevail on a motion for a preliminary injunction, the movant must initially clear a threshold requirement by showing that: (1) the case has a reasonable likelihood of success on the merits; and (2) there exists no adequate remedy at law and the movant will suffer irreparable harm if the preliminary injunction is not granted. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir.1996); see also Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 313-14 (7th Cir.1994). If these conditions are met, the initial threshold has been cleared and the court must next: (3) balance the irreparable harm to the movant if the injunction is denied, against the harm to the non-movant if it is issued improvidently; and (4) after weighing the interests of the parties, additionally consider the public interest (i.e. non-parties) consequences of either a grant or denial of *1133 the injunction. Mil-Mar, 75 F.3d at 1156; see also Storck, 14 F.3d at 314.
B. Application
1. Likelihood of Success on the Merits
In determining the likelihood of success on the merits, the court must at least find that the petitioner's chances are "better than negligible." Kinney v. International Union of Operating Eng'rs, Local 150, 994 F.2d 1271, 1278 (7th Cir.1993).
The First Amendment to the United States Constitution proclaims that "Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble...." The Fourteenth Amendment makes the First Amendment applicable to the States, Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), and their political subdivisions, Lovell v. City of Griffin, Ga., 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). "The freedom of speech which [is] secured by the First Amendment against abridgement by the United States, [is] among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgement by a state." Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093 (1940).
It is against this backdrop, that Mr. MacDonald's likelihood of success on the merits, for each particular challenge to the Ordinance, is examined. The Court finds that he has a strong likelihood of success, because the Park District's permitting scheme is a prior restraint and is riddled with opportunities for subjectivity and abuse.
a. Prior Restraint
The Supreme Court has "long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988) (citing Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737-38, 13 L.Ed.2d 649 (1965); Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1940); Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 151, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969)). "[T]his long line of precedent [is based upon] the time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship." Plain Dealer, 486 U.S. at 757, 108 S.Ct. at 2144.
The determination of whether the Ordinance is unconstitutional under prior restraint analysis depends on the resolution of two issues: whether the Ordinance is a prior restraint, and whether the Park District has too much discretion over the issuance of permits. Prior restraints exist "when a regulation `[gives] public officials the power to deny use of a forum in advance of actual expression.'" Stokes, 930 F.2d at 1168 (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1975)). Prior restraints forbid expression before it takes place, in contrast to a subsequent punishment for expression after it occurs. It is clear that the Park District's Ordinance is a prior restraint, because under § C(5)(e), the Park District may deny use of traditional public fora in advance of actual expression or assembly.
Although prior restraints are not per se unconstitutional, they bear a "heavy presumption" of unconstitutionality/invalidity. Bantam Books Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976) ("prior restraints on speech ... are the most serious and the least tolerable infringement on First Amendment rights."); New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971). Prior restraints are "[s]trongly disfavored as a means of speech regulation ...." and are "presumed invalid." Stokes, 930 F.2d at 1168-69. The presumption against prior restraints is based upon a theory that a free society prefers to punish the few who abuse rights of speech after they break the law rather than to stifle all speakers beforehand. A prior restraint is not valid unless there are procedural safeguards *1134 reducing the danger of suppressing protected speech. Southeastern Promotions, 420 U.S. at 559, 95 S.Ct. at 1247. One of the most significant procedural safeguards is the requirement that a prior restraint on speech cannot be imposed based on the wholly subjective determination of a government official.
Hence, even where subjective discretion and power of a prior restraint has never been actually abused, their mere existence requires an opportunity to bring a facial challenge. Plain Dealer, 486 U.S. at 757-59, 108 S.Ct. at 2144-45 ("a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers."). This opportunity to bring a challenge is necessary to alleviate the risk that parties will be intimidated into self censorship. Id. It is also necessary because there are so many problems inherent in an attempt to make an "as applied" challenge with respect to a standardless decision that limits expression: it is nearly impossible to prove that the restriction on expression was unconstitutionally motivated. Plain Dealer, 486 U.S. at 758, 108 S.Ct. at 2144 ("difficult to distinguish ... between a ... legitimate denial ... and [an] illegitimate abuse of censorial power.").
"[T]he Constitution requires that the [Park District] establish neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered."[8]Id. at 760, 108 S.Ct. at 2146. A regulation that may be arbitrarily applied has the potential to improperly suppress disfavored speech or disliked speakers. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 2401-02, 120 L.Ed.2d 101 (1992). Here, those regulations that the Court deems to give the Park District substantial power (whether or not exercised) to censor based on the content or viewpoint of speech, are evaluated under prior restraint analysis.
There are three primary sources of discretion in the Ordinance: (i) discretion to deny permit applications; (ii) discretion as to the fees and expenses imposed on permittees; and (iii) discretion as to the time taken to process an application. Each of these sources of discretion will be discussed seriatim.
i. Discretion to Deny Permit Application
Mr. MacDonald's primary challenge is centered on § C(5)(e).[9] Section C(5)(e) concerns contents of notice and grounds for denial of a permit, and reads as follows:
To the extent permitted by law, the Park District may deny an application for permit if the applicant or the person on whose behalf the application for permit was made has on prior occasions made material misrepresentations regarding the nature or scope of an event or activity previously permitted or has violated the terms of prior permits issued to or on behalf of the applicant. The Park District may also deny an application for permit on any of the following grounds:
(1) the application for permit ... is not fully completed and executed;
(3) the application for permit contains a material falsehood or misrepresentation; ...
(5) the applicant or the person on whose behalf the application for permit was made has on prior occasions damaged Park District property and has not paid in full for such damage, or has other outstanding and unpaid debts to the Park District; ... [or]
*1135 (11) the use or activity intended by the applicant is prohibited by ... the regulations of the General Superintendent....
(emphasis added.)
The Park District has available, under this subsection, at least four alternative means of exercising almost total subjective discretion. First, the Park District has discretion to determine what conduct constitutes a material misrepresentation, a violation of a prior permit, a material falsehood on an application, or damage to Park District property on a prior occasion (collectively referred to herein as "alleged misconduct"). Second, the Park District decides who was responsible for the alleged misconduct. Third, assuming that there is some basis advanced under § C(5)(e) to deny a permit, the Park District also has unfettered discretion to decide which applications to deny, and which to permit, despite alleged misconduct.[10]
There are simply no objective criteria in the Ordinance or in practice for determining the existence of alleged misconduct and its effect on permit seekers. When asked what conditions of a prior permit have to be violated before someone is disqualified from getting another permit, Ms. Fencik testified "I can't give you a it's not like a mathematical formula or something." (Tr. at 82-83.) There is also no provision for what type of evidence is required to prove alleged misconduct, or even that any proof is necessary.[11] Further, it is not even clear who at the Park District is designated to make these determinations. This provision could allow any Park District employee to make a notation in a file that he/she found or somehow learned (perhaps from hearsay), that a person who obtained a permit and held a rally violated some provision of the Ordinance.
Additionally, there is no provision for notifying an individual, who engaged in alleged misconduct, that the Park District has made such a determination. Almost any prior permittee could be alleged (rightly or wrongly) to have "damaged" park property, if only by trampling the grass. The only way for that person to find out about the Park District's determination is when he/she (next)[12] applies for a permit. There is no opportunity or procedure in place for such an individual to challenge the Park District's determination at least not until after a permit is applied for, and then denied, based upon those reasons.
More troubling still, there is no limit on how long an instance of alleged misconduct can cause an individual to be barred from obtaining a permit. The Ordinance provides no maximum penalty time; there is absolutely no cut-off point or end in sight.[13] Thus, the Park District could choose to exercise practically unbridled discretion to prevent someone from ever, in his/her lifetime, getting a permit (again). This subjective determination is even more invidious due to the fact that permit seekers whose audiences have caused prior permit violations (and therefore alleged misconduct vis a vis the permittee) are likely those whose speech generates the most public outcry. Such subjective stifling of any person's speech cannot be permitted under the First Amendment, for any reason, least of all because the permit seeker has in the past caused minor civil *1136 unrest. In fact, that is exactly what the First Amendment seeks to prevent.
Finally, the Park District ignores the Ordinance for certain people in certain situations. Thus, its inconsistent implementation of the Ordinance creates unfettered discretion to permit or deny activity in public fora. The mayor of Chicago need not apply for a permit in order to use Butler Field, neither does the Grant Park Symphony Orchestra and Chorus. (Tr. 68-71.) The Park District also sometimes chooses to ignore the Ordinance, in response to certain spontaneous protests, as well as for particular groups that want to use the park. (Tr. at 51-54; 91.)
ii. Discretion as to Permit Fees, Costs, and Other Requirements
The imposition of fees and costs provides the Park District with yet another tool to deny the right to speak freely and assemble peaceably in city parks.
In Forsyth, 505 U.S. at 123, 112 S.Ct. at 2397-98, the Supreme Court held unconstitutional a regulation that empowered a government administrator to vary the permit fee for assemblies and parades based upon the estimated cost of police protection. Forsyth involved a facial challenge to a discretionary fee, which potentially ranged from zero to one thousand dollars. The regulation allowed fee adjustment based upon the estimated cost of maintaining public order, including police protection, as well as for administrative expenses. The fee was determined based on the administrator's estimate of such costs.
The Supreme Court held that the regulation violated the First Amendment because it improperly vested unbridled discretion with the government administrator to set the fee, and because one of the factors applied the cost of police protection meant that the more unpopular the message (and hostile the crowd), the more the messenger had to pay. This burden on unpopular speech, based upon the listeners' reactions, was found unconstitutional. More so because it lacked adequate procedural safeguards. Forsyth, 505 U.S. at 137, 112 S.Ct. at 2405.
Thus, the Park District's fees and costs are examined against the Forsyth mandate that costs imposed in connection with a permit scheme must be standardized and non-discretionary, must bear a relationship to the administrative cost, must have adequate procedural safeguards, and must not be tied to the content of the speech or the anticipated reaction of the crowd. The Park District's fee scheme clearly cannot meet these criteria.
Section C(4)(b) states that "no application for permit shall be considered unless the applicant shall have paid at the time for filing an application for permit the required application fee in an amount in accordance with the schedule of fees...." As discussed earlier, the schedule of permit fees is divided into different classes of events, with varying application fees, user fees, security deposit amounts, and insurance requirements. See, supra, Findings of Fact, Part II, Permit Scheme, at 1130. Yet, there was no evidence presented by the Park District as to how it determines which event category to "put" which event under. Nowhere in the schedule of fees is there an explanation of the criteria used to classify an event as a picnic versus a festival. Apparently, the Park District just knows it when it sees it. Thus, there appears to be substantial discretion by the Park District to determine what type of permit an applicant must seek and how much the permit seeker must pay. For example, a person who wishes to address more than fifty people in Butler Field concerning a political issue could be placed in the picnic/wedding category and charged a $10 application fee or could be placed in the festival category and charged a $105 application fee. This discretion, allowing the Park District to classify events in whatever manner it sees fit, i.e. depending upon what fees it wants the applicant to pay, enables the Park District to have discretion to set fees just as in Forsyth.[14]
The application fee, according to testimony elicited during the hearing, is supposed to cover the administrative costs of processing *1137 the event. However, there is no evidence that the application fees actually cover the costs of processing the application and issuing the license. Thus, the Park District has failed to offer a reasonable and objective justification for the application fees.
Section C(4)(c) states that no permit shall be granted unless the applicant has:
"executed an agreement with the Park District ... in which the applicant shall promise and covenant to bear all costs of policing, cleaning up and restoring the park upon conclusion of the event or activity; to reimburse the Park District for any such costs incurred by the Park District; and to indemnify the Park District and hold the Park District harmless from any liability to any person resulting from any damage or injury occurring in connection with the permitted event proximately caused by the action of the permittee, the sponsoring organizer, its Officers, Employees or agents or any person under their control insofar as permitted by law.
(emphasis added.)
This provision improperly conditions the issuance of a permit on the ability of the applicant to pay for injuries and damage resulting from speech and assembly. The indemnification and reimbursement expenses depend upon the crowd's reaction to the speech and assembly. Thus, by requiring the permit applicant to personally bear the cost of his/her public rally, the conveyance of unpopular messages is chilled. This provision dissuades speakers from using public parks for political speeches because of a fear of huge financial consequences. This regulation can be used to punish a speaker for attracting too many followers a large crowd might result in a speaker being held responsible for trampling of grass and could result in charges for resodding the park. Contrastingly, an unpopular speaker may be assessed the costs of cleaning up broken bottles thrown at him by the angry crowd. Moreover, the Ordinance also requires the applicant to guarantee in advance that, if the crowd is hostile to his/her message and resultingly requires a large security contingent, he/she will pay for that "policing".[15] That requirement contravenes Forsyth's holding that the cost of maintaining order cannot be passed on to those wishing to demonstrate in a public forum as a pre-condition of the granting of a permit.
Section C(4) (d), concerns security deposits and states:
no application for permit shall be granted unless the applicant has paid, within the time prescribed by the General Superintendent, the security deposit in an amount in accordance with the schedule of fees.... The amount of the security deposit set in the schedule of fees shall be equal to the estimated cost of policing, cleaning up, and restoring the park upon the conclusion of the use or activity.... Promptly after the conclusion of a permit activity, the Park District shall inspect the premises and equipment used by the permittee....
(2) If it is determined by such inspection, that the permitted event proximately caused damage to Park District property in excess of normal wear and tear ... or it is determined that fines should be assessed against the permittee pursuant to this chapter, ... the Park District shall retain the security deposit or any portion, thereof, necessary to pay for the cost repair or any fines assessed against the permittee....
Again, similar to § C(4)(b), there are concerns about the differing categorizations and amounts. Also, like § C(4)(c) the costs imposed here go, in part, towards "policing" the event. Additionally, this provision is invalid because the Park District cannot, and does not, determine whether the debris or graffiti being cleaned up is from the speaker or, rather, from an unruly crowd, not under the permittee's control. Even worse, the Park District's schedule of fees provides that "[s]ecurity deposits triple for organizations which have forfeited their security deposits at prior events." (Def.'s Ex. 4.) This trebling of the security deposit is yet another penalty imposed *1138 for the crowd's reaction to a previous message. As the Supreme Court explained in Forsyth, a regulation was invalid because "[t]hose wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit." Forsyth, 505 U.S. at 134, 112 S.Ct. at 2403. "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." Id. Nor can an applicant's future speech be barred because prior speech has offended such a mob.
Section C(4)(e) states that "[n]o application for permit shall be granted unless the applicant has paid ... a user fee...." Again, similar to those provisions discussed above, the amounts per category, on the schedule of fees, for user fees differ and the categorization of events is subjective. This unfettered discretion to categorize an event, combined with the extreme variations of user fees, as specified on the schedule of fees, strongly indicates that the Park District is attempting to impose a tax or raise revenues, rather than merely recover its administrative expenses for paperwork. Inexplicably, the Park District does not charge different application fees for the three different tiers under the corporate festival category despite the fact that the security deposit, user fees, and amounts of insurance differ immensely.[16] (Def.'s Ex. 4; Pl.'s Supp. Mem. at Ex. A.) This inconsistency raises serious concerns; if the user fees corresponded to costs, why are the application fees for all three types of corporate events the same? If these differing amounts are merely supposed to correspond to the number of people expected to show up, then the Ordinance and fee schedule should reflect this. However, the only category on the schedule with any reference to number of attendees is the group picnic/wedding where the user fee and security deposit is calculated per 250 people expected to attend.
Section C(4)(f) imposes a hefty insurance requirement on applicants:
Applicant shall procure and maintain at all times during its use of Park District property, insurance in such amounts and with such coverages as shall reasonably be required by the Park District.... The Division of Risk Management shall prepare a uniform schedule of insurance guidelines for particular types of activities. Applicant shall provide Park District with a certificate from an insurer evidencing such coverage prior to applicant's use of Park District Property....
Although the insurance requirement is waivable in some discretionary cases, there is no provision for waiver if the applicant is unable to obtain insurance because no company will provide it. This provision merely allows the Park District to pass along its discretion to the insurance companies; the insurance providers decide whether an event is too risky to insure, and may (and likely will) make their determination based on the message/content of the event. Clearly, those with unpopular views (especially those likely to receive a negative response from the public) for example, Nazis or the Ku Klux Klan will have a more difficult (if not impossible) time getting insurance, or it will cost them much more.[17]See Collin v. Smith, 447 F.Supp. 676, 684 (N.D.Ill.1978) (insurance was beyond the reach of Nazi organization because "insurance companies are simply not interested in writing the kind of policy required due to the unknown risks involved ....") aff'd, 578 F.2d 1197 (7th Cir.1978), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978); see also Pritchard v. Mackie, 811 F.Supp. 665, 668 (S.D.Fla.1993) (insurance requirement "fails to take into account the possibility that the most heinous political groups in American society may find it difficult, if not impossible to actually purchase insurance."). Moreover, the Park District also exercises unbridled discretion by choosing to "help" certain applicants obtain insurance. (Stipulation of Facts at paras. 6, 8, 10, 12.) The Park District is not required to assist an applicant in obtaining insurance, but it sometimes chooses to help, itself an indication that insurance is sometimes difficult to obtain.
*1139 Finally, § C(6)(c) provides for waiver, but such waiver is totally discretionary:
Any requirement for a user fee, security deposit, or certificate of insurance shall be waived by the General Counsel, if the activity is protected by the First Amendment of the United States Constitution and the requirement would be so financially burdensome that it would preclude the applicant from using Park District property for the proposed activity...
(emphasis added.)
Thus, if the Park District's General Counsel, Ms. Fencik, determines that an activity is "protected" and that the user fee, security deposit, or certificate of insurance is financially overburdensome, then those requirements are waived. The Park District conceded that there is "necessarily some discretion required" in making the determinations here. (Def.'s Mem. Opp. at 13.) There is no definition of what are "protected" activities. Presumably, all speech and assembly are protected by the First Amendment, but such a reading of the Ordinance would render the "protected by the First Amendment" language superfluous. The Park District could not say at trial what that portion of the waiver provision means. (Tr. at 28.)
"Freedom of speech ... [is] available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943). The Park District cannot generate profits/revenues by taxing the exercise of First Amendment Rights. "A state may not impose a charge for the enjoyment of a right granted by the federal constitution." Murdock, 319 U.S. at 113, 63 S.Ct. at 875. This is doubly true when the fees imposed are discretionary, based on "what [permittees] are asking for." (Tr. at 28-29.)
iii. Discretion as to Time for Issuance, and Delay
Section C(5)(b) states that all conditions precedent to the issuance of a permit must be met at least thirty days prior to an event:
Applications for permits for activities or events which require insurance, approval or permits from other governmental entities, or compliance with other terms or conditions, will be reviewed and, if the application otherwise conforms to all other requirements, a conditional approval will be issued. If within the time prescribed by the General Superintendent, any required fee or security deposit is not paid, or an insurance certificate evidencing the requisite insurance is not filed ... or the approval or permit of other governmental entities has not been received, or the other terms and conditions have not been met, the conditional approval will automatically expire, the application for permit will be deemed denied and no written notice of denial will be required. For events ... which involve the use of special facilities ... all terms and conditions of the permit ... must be completed at least thirty days prior to the event unless a longer time period is prescribed by the General Superintendent.
(emphasis added.)
Section C(5)(c) provides the Park District with a period of up to twenty-eight days within which to grant or deny a permit:
If no written denial or conditional approval is issued within fourteen days of the date on which a permit application is fully completed, executed and filed with the appropriate Officer or Employee ... the application shall be deemed to have been granted a conditional approval.... Provided, however, the Park District may extend the period of review for an additional fourteen days by issuance of a written notice of extension. If, prior to the expiration of the extended review period, no written denial is issued, the application for permit shall be deemed to have been granted a conditional approval....
(emphasis added.)
"[T]iming is of the essence in politics .... and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all." Shuttlesworth, 394 U.S. at 163, 89 S.Ct. at 945 (Harlan, J., concurring). A one or two day delay may be intolerable when applied to political speech on a topical issue; where the element of timeliness is essential. Since an enthusiastic crowd can serve to sway the undecided, even a simple delay in getting that message out *1140 could permanently vitiate the expressive content of a demonstration.
Here, the sixty-day advance application requirement for "festivals" set forth in the schedule of fees is intolerable. Even the thirty-day advance application requirement in the Ordinance is too long it infringes on expressions concerning current events.[18]
Additionally, even if the thirty and sixty-day periods were not excessive, the discretionary process for granting extensions of time for a determination creates an invalid prior restraint. The Ordinance provides that the Park District initially has fourteen days within which to deny or grant a permit, however, the Park District may choose to extend the period of review for an additional fourteen days. There is no requirement in the Ordinance that the Park District must give a reason for extending the period of review. Likewise, the Park District need not give notice to the applicant by any particular time. That means the Park District has up to twenty-eight days to grant or deny a permit. Although the Park District must issue written notice of the extension, there is no deadline by which the notice must be issued. Thus, this provision could be used as a delay tactic to render an application for an event moot: if the Park District mails notice of the extension on the twenty-eighth day, and the mail takes two days to arrive, the applicant who applied for an event thirty days in advance would find out about the extension and/or decision on the very day on which the event was supposed to occur.[19] (Tr. at 63-64.) If the mail took longer (or if the advance application requirement was for less than thirty days such as for picnics and weddings per the schedule of fees), an applicant could be left waiting until after the event was supposed to have occurred to learn the status of his/her permit application.
Furthermore, the procedure for appeal of a denial, § C(6)(a)(2), gives the General Superintendent seven days within which to serve notice of his decision. Section C(6)(a) states:
(1) Any applicant who is denied a permit or denied a request for a waiver of user fee, security deposit, or certificate of insurance, or a permittee who has had all or a portion of its security deposit retained because it was assessed damages or a fine, pursuant to this ordinance may, within seven days of the service of notice of such determination, file a written appeal from such determination with the General Superintendent;
(2) The General Superintendent shall have seven days from the date on which the appeal was received in which to serve upon the applicant a notice that he/she has affirmed, modified or reversed the denial or retention of security deposit....
Thus, even if someone who applied thirty days in advance and was subject to the fourteen day extension received a notice of denial in the mail at the very last minute, the application could still be moot, since the appeal process would still have seven days to run.
This seven-day appeal provision merely adds to the Park District's arsenal of available delay tactics, and increases its ability to exercise absolute discretion over the permitting process.[20]
*1141 iv. Summary
In summary, the Ordinance allows virtually limitless discretion in practice, both as to the issuance of permits, and the fees, costs, and other requirements (and waiver thereof) imposed on an applicant. Mr. MacDonald has a strong likelihood of success on the merits of his prior restraint challenges.
b. Time, Place, and Manner
Although a municipality may not discriminate in the regulation of expression on the basis of content, it may constitutionally impose reasonable time, place, and manner regulations on the use of its public fora. Genuine time, place, and manner regulations are, by definition, content neutral and are usually aimed at concerns such as reducing noise and traffic congestion. Instead of regulating what is said, they merely regulate such matters as when, where, and how loud things are said.
The existence of prior restraints and unfettered discretion are inherently inconsistent with a valid, content neutral, time, place, and manner regulation. See Forsyth, 505 U.S. at 130-31, 112 S.Ct. at 2401 (a regulation that "allows arbitrary application is `inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.'") (quoting Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 649, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981)). Thus, the provisions of the Ordinance previously discussed in Part II(B)(1)(a), Prior Restraint, fail the time, place, and manner test by default.
Content neutral regulation of the time, place, and manner of speech in a traditional public forum, such as a park, is judged under the less rigorous "time, place, or manner" test. Under this test
the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."
Ward, 491 U.S. at 791, 109 S.Ct. at 2753 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)).
Section C(3)(a) states that:
"No person shall, without a permit:
(1) "conduct a public assembly, parade, picnic, or other event involving more than fifty individuals; ...
(6) create or emit any Amplified Sound, except from a radio, recorder or other device possessed and used by an individual for his/her own enjoyment and operated in such a manner so as not to interfere with the use and enjoyment by any other person; ... [or]
(9) sell or offer for sale any goods or services....
These three provisions apply to all persons, without reference to either content or viewpoint, and are, therefore, content neutral. The significant government interest advanced is the Park District's responsibility to maintain the parks in good order, safely and attractively, and to make them available for the use and enjoyment of Chicago's citizens. (Def.'s Mem. Opp. at 7-8.) They are narrowly tailored because they are focused on allowing all users to speak and assemble. They leave ample alternative channels because other times, places, and manners of communicating the information are available. The Court finds that these sections are reasonable and constitutional. Thus, Mr. MacDonald has very little likelihood of success on the merits of his challenge to these sections.
2. No Adequate Remedy at Law, and Irreparable Harm
For the Ordinance sections as to which the Court has found Mr. MacDonald likely to succeed on the merits of his prior restraint challenges, the preliminary injunction analysis continues.
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547, (1976). Furthermore, lack of an adequate remedy at *1142 law ordinarily means that money damages would not suffice. American Medicorp, Inc. v. Continental Illinois Nat'l Bank and Trust Co., 475 F.Supp. 5, 7 (N.D.Ill.1977). Money is no substitute for free speech and assembly. Therefore, money damages, even if they were measurable and available, would clearly be insufficient. Mr. MacDonald has shown that denial of the preliminary injunction would cause him to suffer an irreparable injury denial of the right to speak and assemble for which there exists no adequate remedy at law.
3. Balance of Harms
The balancing of harms involves a "sliding scale" analysis wherein "the greater the movant's chance of success on the merits, the less strong a showing it must make that the balance of harms is in its favor." Storck, 14 F.3d at 314. The Court has already found that Mr. MacDonald's likelihood of success on the merits, as to the prior restraint challenges, is strong. Additionally, in comparing the harm to Mr. MacDonald, if he is denied the right to speak and assemble (denial of a fundamental right), to the harm to the Park District if he is granted the right to speak and assemble (trampled grass, garbage, and graffiti), it is clear that the balance is in Mr. MacDonald's favor.
The First Amendment has been characterized as "... the matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (Cardozo, J.,), overruled, on other grounds, by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Speech on public issues "occupies the `highest rung of the hierarchy of First Amendment values'...." Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982)); see also Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980). Furthermore, traditional public fora, such as parks and streets, "`have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939)).
Denying Mr. MacDonald access to Butler Field, which is a traditional public forum where citizens address public concerns, and denying him his fundamental rights to expression and assembly there, is a harm of great magnitude. The freedom to put forth one's opinions and concerns in the market-place of ideas is one of the most significant rights this country's citizens possess. Furthermore, Mr. MacDonald relies on rallies and demonstrations to publicize his cause. Contrastingly, the Park District, if Mr. MacDonald is given access and portions of the Ordinance are enjoined, will merely have to deal with administrative headaches and cleanup costs. Moreover, the Park District is free to adopt new regulations consistent with the First Amendment. Thus, in balancing the harms, it is clear that the scale tips heavily in Mr. MacDonald's favor.
4. Public Interest
The First Amendment "reflects a `profound national commitment' to the principle that `debate on public issues should be uninhibited, robust, and wide-open'...." Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964)). Thus, not only does the individual have the right to speak, the public has the right to listen.[21]See Bose Corp. v. Consumer's Union, 466 U.S. 485, 503-04, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502 (1984) ("freedom to speak one's mind is not only an aspect of individual liberty and thus a good unto itself but also is essential to the common quest for truth and the vitality of society as a whole."); Garrison v. Louisiana, 379 U.S. *1143 64, 74-75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964)("speech concerning public affairs is more than self-expression; it is the essence of self-government."); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148 (1969). Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring) ("freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth ...."), overruled, in part, by Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).
Speech on matters of public concern "core" First Amendment speech has been deemed essential to a democratic society. The First Amendment is based on the theory that the broadest possible dissemination of information, from diverse and often antagonistic sources, is essential to the public welfare and decision making process. It is undeniable that the "public has an interest in encouraging the free flow of information and ideas" and in "the vindications of an individual's constitutional rights." O'Brien v. Town of Caledonia, 748 F.2d 403, 408 (7th Cir. 1984). Therefore, granting the injunction will not disserve, but rather will promote, the public interest, since the public interest is clearly served by strong and vigorous protection of the First Amendment. Thus, the public interest in the outcome of this matter weighs in favor of granting the injunction.
C. Bond Requirement
Pursuant to Federal Rule of Civil Procedure 65(c), a bond must be posted as a condition of a preliminary injunction. Mr. MacDonald has limited financial resources, and his organization is an unincorporated association with no assets. The Court foresees no damage to the Park District, other than ordinary wear and tear on the parks and moderate administrative burdens, in the event that the Court has erred in granting the injunction. Under the circumstances, this Court finds that a nominal bond, in the amount of $100, is appropriate.
CONCLUSION
Having determined that Mr. MacDonald is entitled to a preliminary injunction, the Court must determine the scope and form of the injunction. The Court is mindful of the need to avoid scheduling conflicts, and to provide permits for large groups, amplified sounds, and sellers of goods. Although the Court has found most of the provisions in Section C of the Ordinance to be invalid, some of the provisions could survive in an ordinance drafted without discretion to deny permits on subjective grounds.[22] Therefore, the Court preliminarily enjoins the Park District from enforcing the following Ordinance provisions: § C(4)(b); § C(4)(c); § C (4)(d); § C (4)(e); § C (4)(f); § C (5)(b); § C (5)(c); § C (5)(e); and § C(6)(c). However, the Park District may continue to deny permits due to scheduling conflicts. Notice of approval or denial shall be given promptly. It is the Court's intent, by enjoining the foregoing provisions, that Mr. MacDonald may apply for and receive a permit for his festival/rally on the next available, or mutually agreeable, dates. The petition is denied as to the request for mandatory injunctive relief, which is not ripe in this facial challenge.
Accordingly, Plaintiff's Second Application for Preliminary Injunction is, hereby, GRANTED IN PART, and DENIED IN PART, consistent with this Court's attached Preliminary Injunction Order.
PRELIMINARY INJUNCTION ORDER
I. The Park District, its agents, officers, servants, employees, independent contractors, and any others in active concert or participation with anyone receiving actual notice of this Order, are enjoined from applying or enforcing, § C(4)(b); § C(4)(c); § C(4)(d); § C(4)(e); § C(4)(f); § C(5)(b); § C(5)(c); § C(5)(e); and § C(6)(c) of the Park District's Ordinance, Chapter VII, entitled "Use of Parks", pending final decision in this case.
II. Mr. MacDonald shall post a nominal bond in the amount of one hundred dollars *1144 ($100), with the Clerk of the Court, to secure the payment of such costs and damages as may be suffered or sustained by any party who may be wrongfully restrained by this Preliminary Injunction Order.
III. This Preliminary Injunction Order shall not be construed by any party to enjoin the Park District from enforcing any other lawful ordinances, including safety ordinances.
IV. The parties shall promptly meet to determine a mutually agreeable time and place for Mr. MacDonald to conduct his rally/festival.
NOTES
[1] The district court adopted this Court's Report and Recommendation on May 30, 1997.
[2] While the Application indicates that Mr. MacDonald is seeking a permit to hold the rally on August 24 and 25, 1997, the parties agree and have stipulated that the actual dates are August 23 and 24, 1997.
[3] The following constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
[4] The location in Butler Field that Mr. MacDonald wishes to use encompasses Grant Park's Petrillo Bandshell. Grant Park, like other parks within the City of Chicago, is exclusively under the Park District's control. Grant Park is a traditional public forum.
[5] Ms. Fencik is now General Counsel to the Park District.
[6] The Park District is empowered to establish rules and regulations in furtherance of its responsibility to administer the public parks of Chicago. 70 ILCS 1505/7.02 (1993). Accordingly, the Park District enacted the Ordinance.
The Park District adopted revisions to the Ordinance, in particular Chapter VII, § C, on June 11, 1997. (Stipulation of Facts, para. 1.) Citations herein are to the revised Ordinance.
[7] Although the Park District reasons that amplification involves electricity and, therefore, safety issues, the amplification requirements relate not only to state of the art sound systems, but also to battery operated bullhorns.
[8] Viewpoint discrimination is a subset of content discrimination. Content refers to a topic whereas viewpoint refers to one's opinion or position on that topic. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
[9] He has also raised other challenges during briefing and hearings, including: § C(3)(a)(1), the permit requirement for any public assembly, parade, picnic, or other event involving more than fifty people; § C(3)(a)(6), the permit requirement for creating or emitting any "Amplified Sound"; § C(3)(a)(9), the permit requirement for selling or offering any goods or services for sale; § C(4)(b), the application fee; § C(4)(c), the indemnification and reimbursement requirement; § C(4)(d), the security deposit; § C(4)(e), the user fees; § C(4)(f), the insurance requirement; § C(5)(b), the conditional approval provision; § C(5)(c), written denial time frame and extensions; § C(6)(a), the appeal procedure; and § C(6)(c), the financial waiver requirements. Most of these are discussed, in detail, herein.
[10] The subpart regarding a "complete" permit, and the one specifying denial for activities prohibited by regulations of the General Superintendent, also are subject to unguided discretion.
[11] An honest error in completing an application could be a material misrepresentation in the eyes of the Park District. An incorrect projection about crowd size could also be one. If an application predicted hundreds of attendees, but thousands showed up, this too could count as a material misrepresentation.
[12] The Park District could also state alleged misconduct as a reason for turning down a first time permit applicant, if, for example, the applicant was alleged to have spray painted graffiti on Park District property.
[13] In fact, this may give Mr. MacDonald standing to raise a limited "as applied" challenge to § C(5)(e) to the extent that he is able to prove that an application thereunder would be futile due to alleged misconduct. Ms. Fencik admitted that she "[couldn't] say what would happen" if Mr. MacDonald applied for a permit in a year or two. (Tr. at 87.) In fact, there is nothing in the Ordinance indicating whether Mr. MacDonald could be banned for a lifetime. (Tr. at 86.) The issue of futility, as a predicate to an "as applied" challenge, was not briefed by the parties, however. Moreover, in light of the Court's decision under the facial challenge analysis, such potential standing need not be addressed.
[14] Additionally, there is no provision for waiver of the application fee for people who cannot afford to pay it. Also troubling is the provision that all fees "for non-Chicago residents will be doubled." (Def.'s Ex. 4.)
[15] Ms. Fencik's testimony that "policing" actually means "monitoring," and that this "monitoring" is carried out by a "security force" comprised of "off-duty police officers", does not alleviate the Court's concern that the permit fees and costs impermissibly relate to maintaining public order and police presence. (Tr. at 21; 26-27; 74.)
[16] Some of these fees are extraordinarily high. For example, for a one day "festival" with more than one stage, the user fee, alone, runs $8,400!
[17] Mr. MacDonald would have to spend approximately $4,000 per day for insurance. (Pl.'s Supp. Mem. at 10 n. 15.)
[18] Although unclear, it appears that the Park District may have taken the exigence of current events into account when it set the time frame for a media coverage application that permit application can be turned in only ten days in advance.
[19] Although, according to the Park District, this should not be a problem because "applicants know how to get a hold of people." (Tr. at 89.)
[20] Mr. MacDonald also raises a claim of lack of adequate judicial review/procedure. Both parties cite Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc), cert. denied., 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 464 (1994), as supporting their contentions with respect to whether a common law writ of certiorari is a sufficient procedural safeguard for appealing the denial of a permit. The Court notes that there appears to be some disagreement in the Seventh Circuit on this issue. See 11126 Baltimore Boulevard, Inc. v. Prince George's County, Md., 58 F.3d 988, 1000 n. 17 (4th Cir.1995) (discussing the Graff decision and determining that the majority of the Seventh Circuit did not hold that prompt judicial review requirement is satisfied when common law certiorari is available); but see River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (1994) (dicta recognizing Graff as holding that "the opportunity to apply for [the common law writ of certiorari] is enough ... even when rights under the first amendment are at stake."). However, since this Court has already determined that the Ordinance is replete with invalid discretion, it need not address whether a common law writ of certiorari provides sufficient judicial review/procedure.
[21] The fundamental right to peaceably assemble is also implicated. "People assemble in public places not only to speak or to take action, but also to listen, observe, and learn...." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578, 100 S.Ct. 2814, 2828, 65 L.Ed.2d 973 (1980).
[22] The Court notes that, when so many provisions of a permit scheme are found to be invalid, severance may be improper. See Ragsdale v. Turnock, 841 F.2d 1358, 1375 (7th Cir.1988); Zbaraz v. Hartigan, 763 F.2d 1532, 1545 (7th Cir.1985). Nonetheless, this Court deems a preliminary injunction determination an inappropriate time to address the severability issue, and has, therefore, fashioned its Order accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3344582/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO DISMISS (#111)
On May 15, 2000, the plaintiff, GMA Yacht Sales ("GMA"), filed a revised four count complaint against the defendant, Skagit Marine Distributing, Inc. ("Skagit"), alleging breach of dealership agreement, fraud and misrepresentation, a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq., and intentional CT Page 11613 interference with business relations.
On May 8, 2000, the defendant filed a motion to dismiss the plaintiff's entire revised complaint on the ground that the court lacks subject matter jurisdiction because the plaintiff is not a legal entity and lacks standing to commence the suit.
The plaintiff filed an objection to the motion to dismiss on May 26, 2000. On the same date, the plaintiff also filed a request to amend the complaint and an amended complaint.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted) Gurliacci v.Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991
(1983). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter. . . ." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13, 668 A.2d 1314
(1995). "[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings."Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of . . . and the court must fully resolve it before proceeding further with the case." (Brackets in original; internal quotation marks omitted.) Figueroa v. C S Ball Bearing, 237 Conn. 1, 4,675 A.2d 845 (1995).
The defendant argues that the court is without subject matter jurisdiction because the plaintiff is not a legal entity and therefore lacks standing to commence the lawsuit. Specifically, the defendant argues that GMA lacks standing to sue because A. A. Constantine brought this lawsuit using only GMA, the trade name of a sole proprietorship, rather than in his own name followed by d/b/a GMA. The plaintiff contends that it has adequately described an entity that has the capacity to sue.
"It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue." (Internal quotation marks omitted). Isaac v. Mount Sinai Hospital, 3 Conn. App. 598,600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 494 (1985). Generally, "an action may not be maintained with a mere trade name or business interest possessing no legal personality as plaintiff." ITTSemiconductors v. Matheson Gas Products, et al., Superior Court, judicial CT Page 11614 district of Ansonia-Milford at Milford, Docket No. 029553 (October 2, 1991, Maiocco, J.) (5 Conn.L.Rptr. 80). "No action may be brought by, nor may any suit be maintained against, a trade name as an entity. . . . Any such proceeding is a nullity." American Rental Centers v. ITTHartford Ins. Group, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 453271 (March 17, 1993, Berger, J.) (8 Conn.L.Rptr. 412).
In the present case the plaintiff's revised complaint does not acknowledge that GMA is a sole proprietorship and also fails to allege that A. A. Constantine is conducting business using the trade name, GMA. Thus, it cannot be inferred from the allegations in the complaint that A. A. Constantine is the plaintiff. Furthermore, the plaintiff has failed to correct the defect in its operative complaint through its amended complaint.1 The amended complaint continues to use only the trade name, GMA, rather than A. A. Constantine's own name with the d/b/a stated. Thus, as GMA is a trade name with no legal existence, it lacks standing to sue.
The court concludes that the plaintiff is not a legal entity and lacks standing to commence this lawsuit. Accordingly the defendant's motion to dismiss for lack of subject matter jurisdiction is granted.
SKOLNICK, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3344585/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
Both parties appeared and were represented by counsel and proceeded on plaintiff's complaint dated April 14, 1994. CT Page 9213
Having heard the evidence, the court finds as follows:
The plaintiff, whose maiden name was Joslin, and the defendant intermarried at Rome, New York, on May 5, 1956. The plaintiff resided in the State of Connecticut for a period of twelve months next preceding the date of the filing of this complaint. There are no minor children issue of the marriage, and no minor children have been born to the plaintiff since the date of the marriage. The marriage has broken down irretrievably without any hope of reconciliation. All statutory stays have expired, and the court has jurisdiction.
The plaintiff and defendant have three adult children from their marriage.
After the marriage, the parties lived with defendant's parents. She felt miserable and was unhappy in her marriage. She felt isolated, restricted and controlled by the defendant. However, when the parties moved to Connecticut to be near their son, the parties had the marital residence built in the Town of Ledyard. The marriage did not seem to get any better for plaintiff.
The plaintiff, who had suffered childhood abuse, began counseling with Dr. Eaton and continued with such counseling for approximately five years. Because of their marital problems, plaintiff and defendant engaged in some marriage counseling with Dr. Eaton. The counseling had no effect on the attitude of the plaintiff to her marriage.
In November 1992, plaintiff left the marital home. That evening, she engaged in sexual activity with David Shippee, whom she had met previously. After many years of marriage, plaintiff felt that she needed sex and emotional support from someone other than her husband.
Although plaintiff informed defendant of her relationship with David Shippee, the defendant still loved the plaintiff and wanted the marriage to continue. Plaintiff, who continued with her counseling, returned to the marital residence and occupied an upstairs bedroom, which she described as her private space.
Although plaintiff returned to the marital residence, she continued her relationship with David Shippee. She rented a CT Page 9214 post office box in Mystic, Connecticut, so as to receive mail from him without the defendant's knowledge. The plaintiff was not honest with the defendant about her affair with and feelings for David Shippee.
The defendant, who felt threatened by plaintiff's relationship with David Shippee, went into plaintiff's bedroom and read her private journal, which contained entries about her relationship with and feelings for David Shippee.
Plaintiff, who felt that this was an invasion of her privacy, left the defendant in March 1993. She instituted this action in April 1994.
The plaintiff is most at fault for the breakdown of the marriage. Plaintiff's affairs with David Shippee, though she claimed it was not the cause of the breakdown, certainly weakened any chance of reconciliation. Notwithstanding plaintiff's affair with David Shippee, the defendant, who still lived with the plaintiff, wanted the marriage to continue. Defendant now feels otherwise. Accordingly, a decree dissolving the marriage of the parties is ordered.
The plaintiff, who was born July 23, 1936, maintained the home and was not employed until her present employment at Franklin Regional Center in Westerly, Rhode Island, a day care service for retarded persons. She works twenty (20) hours per week and earns $170 gross per week.
In 1979, plaintiff continued her education and received a bachelor's degree in social studies. She is interested in obtaining her master's degree and is on the waiting list at the University of Connecticut. If she is accepted in the program this year, she will receive her master's degree when she is 64 years of age.
Although the plaintiff is presently employed part time, she is willing to accept full employment until she is accepted in the master's program at the University of Connecticut. At that time, she will only accept part-time employment until she obtains her master's degree.
Plaintiff's health is good, although she continued to receive counseling because of the childhood abuse she suffered. She appears to be more employable than the defendant. CT Page 9215
Defendant was employed for 32 years as an air traffic controller for the Federal Aviation Administration. During the air traffic controller's strike, the defendant became involved in an automobile accident which resulted in his being sued by the other party. Because of the accident and the extreme stressful nature of his employment, defendant suffered a major depression resulting in his retirement. It was after this that the parties moved to Connecticut where they had the marital residence constructed.
Presently, defendant receives a monthly pension of approximately $3,588 from his prior employment. He works about six hours a day, one or two days a week, at Holdridge's Nursery and is paid $5.50 per hour. Although defendant obtained a real estate license after he retired, it expired. To renew his license would involve additional education and exams, which defendant feels he could not complete.
Defendant, who is about 61 years of age, suffers from depression and high blood pressure. Defendant is a high school graduate with limited skills other than those of an air traffic controller. His odd jobs at Holdridge's appear to be the extent of his employability.
During the marriage, the parties have accumulated the following assets, excluding motor vehicles, household furnishings and jewelry, which are presently valued at $110,848.46:
a. U.S. EE Series Bonds — cash value $ 31,632.46 b. Three IRA accounts totaling 34,774.00 c. Niagara Mohawk stocks (jointly owned) 13,804.00 d. Two Charter Oak Credit Union accounts 30,638.00
In addition, the parties are joint owners of the real property, the marital residence which is located at and known as 27 Lynn Drive, Ledyard, Connecticut. The value of said property is $185,000 and is subject to a first mortgage of approximately $29,000.
After considering the factors in Connecticut General Statutes §§ 46b-81 and 46b-82, the following orders are entered which the court finds fair and equitable: CT Page 9216
(1) The defendant shall keep his pension from the Federal Aviation Administration, but shall name the plaintiff as irrevocable beneficiary of same for her lifetime.
(2) The plaintiff shall pay to the plaintiff periodic alimony of $250 per week until her death, remarriage or cohabitation with an unrelated male, whichever is the first to occur.
(3) The plaintiff shall transfer all her right, title and interest in the real property to the defendant within sixty (60) days of this decree. The defendant shall assume any mortgages on said property and hold the plaintiff harmless from any claims thereon. The defendant shall pay to the plaintiff the sum of $65,000 as follows:
(a) $30,000 cash and $10,000 by way of an IRA rollover at the time plaintiff's interest in the real property is transferred to the defendant; $25,000 by way of a promissory note from the defendant to the plaintiff, without interest, payable $15,000 by July 15, 1996, and $10,000 on or before December 1, 1996. If payment of said note is not made as provided, interest shall accrue on the unpaid balance of the note at the rate of 10 percent per annum. Said note shall be secured by a mortgage on the real property.
(4) The plaintiff shall keep the 1994 Honda Civic automobile and hold the defendant harmless from any claims thereon.
(5) The defendant shall keep the 1991 Acura automobile.
(6) The defendant shall receive the brass wood box and the glass-topped outside table and four chairs listed in Appendix A attached to plaintiff's proposed orders submitted to the court.
(7) The plaintiff shall keep the remaining items of personal property on said Appendix A except for the golden retriever, which shall be owned by her daughter, Lynn.
(8) Each party shall keep their respective life insurance policies and the cash values thereof. CT Page 9217
(9) As to the other assets owned by the parties as listed above, the plaintiff shall keep her Professional Financial SVCS IRA account, the U.S. Series EE Bonds in her name, the Niagara Mohawk stocks and $13,745 from the Charter Oak Credit Union account. The defendant shall keep the remaining portion of the assets listed above.
(10) Each party shall be responsible for their own debts without contribution from the other.
(11) Plaintiff shall be entitled, if she is eligible, to COBRA health insurance coverage through defendant's retirement, for as long as she is eligible but at her own expense.
(12) Each party shall pay for their own attorney's fees.
Paul M. Vasington State Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2200977/ | 223 Md. 606 (1960)
165 A.2d 886
CUMMINGS
v.
STATE
[No. 99, September Term, 1960.]
Court of Appeals of Maryland.
Decided December 13, 1960.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Fred E. Weisgal, with whom were Weisgal & Sollins on the brief, for the appellant.
Robert C. Murphy, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Saul A. Harris, State's Attorney for Baltimore City, and Julius A. Romano and John W. Sause, Jr., Assistant State's Attorneys, on the brief, for the appellee.
Decided December 13, 1960. Certiorari denied, 366 U.S. 922.
PRESCOTT, J., delivered the opinion of the Court.
The appellant was found guilty of murder in the first degree by two judges in the Criminal Court of Baltimore, and sentenced to life imprisonment in the Maryland Penitentiary. After his motion for a new trial was denied by the Supreme Bench of Baltimore City, he appealed.
There is no necessity for any extended or elaborate discussion, in this opinion, as to the divisions of homicide in Maryland. The sole question raised by the appellant is a claim that the evidence produced at his trial below was insufficient to support a finding of a "wilful, deliberate and premeditated killing" upon his part, so as to constitute first degree murder under the Code (1957), Article 27, Section 407. He concedes *609 that the evidence was sufficient to support a conviction of murder in the second degree, but argues that the State failed to show that the homicide was wilful, deliberate and premeditated, as it must do, to raise the offense to first degree murder.
The testimony need not be set forth at undue length; it was sufficient to support a finding of the following facts:
The appellant, a father of five children, and the deceased lived with their respective spouses in the city of Chicago, and had known each other for a number of years. An intimate, clandestine relationship between them had developed. They were in the habit of taking extended automobile trips together, especially over weekends and during vacations. The appellant testified he loved her.
On July 28, 1959, the deceased left Chicago with her sister, and drove by automobile to the home of relatives in the Cherry Hill area of Baltimore. The appellant had expected that he and the deceased would make the trip together, by themselves. Early on the morning after her departure, the appellant followed, alone, in his car. He drove all day and part of the night. At 11:00 P.M., he called the deceased and talked to her over the telephone. Later that night, he finally reached Baltimore, and spent the remainder thereof asleep on the front seat of his car.
In accordance with arrangements made when they had talked over the phone, appellant and deceased met early the following morning at the Cherry Hill Shopping Center. She had promised to have breakfast with him, but when she arrived, she stated that this would be impossible, as she had arranged to take some children on a picnic. However, if he would eat breakfast alone, she would meet him later in the day. He was naturally disappointed. Thereafter, he waited a long time for her. "It was hot. * * * There wasn't any shade. It was miserable. * * * I [the appellant] was disturbed. I was tired."
The deceased finally reappeared shortly before 12:30 P.M., driving a station wagon, which she parked near the appellant's Cadillac. She was accompanied by Marjorie Shelter, aged 20, and a nephew, aged 10. She went to his car, and was in *610 a "bad mood." He told her he was tired and hot, and felt sick. "It looked like I couldn't hardly bear it." A "heated" argument ensued during which she told him she was late for the picnic, and did not have time to take him to, or to show him, any place where he could stay or rest. The appellant threatened to return to Chicago, and requested the victim to give him directions. She replied that she did not want him to leave; that if he did so, he would do it on his own; and he would have to request the police for directions. He told her: "If that is the way you feel, I am finished."
While this conversation was taking place between the appellant and deceased, witnesses saw the deceased return to her station wagon and start the engine. The appellant called to her, and she returned to his car. She seemed to be angry at the appellant, and started to return to her automobile. She got a few feet from him, when the appellant took a pistol, which he had on the front seat of his car beside him, and shot her in the back through the open window of his automobile. He then opened the door, walked around it, and shot her six times more, apparently emptying the pistol without missing a single time.[1]
Officer Freeman of the Police Department had been standing about 110 feet from the scene of the shooting, and was an eye witness thereof. He immediately ran to the scene. The appellant dropped the gun on the victim's body; he offered no resistance; did not seem nervous nor angry; but was "perfectly passive" about the whole thing. In response to an inquiry as to why he had done the shooting, he replied: "I might go to jail, but I am glad I done it. * * * It is a lot of things, man. It is a lot of things."
When reviewing the conclusion reached by a trial court, sitting without a jury, in a criminal case, it is not our function to determine whether we are convinced of the accused's guilt beyond a reasonable doubt; our task is to determine whether the evidence produced and the proper and rational inferences from that evidence were of such a nature and character *611 that the trial court could fairly be convinced beyond a reasonable doubt of guilt, and the findings of fact of the trial court will not be set aside, unless clearly erroneous. Maryland Rule 741 (c); Basoff v. State, 208 Md. 643, 119 A.2d 917; Cooper v. State, 220 Md. 183, 152 A.2d 120.
We think the evidence, as set forth above, is clearly sufficient to support the finding of guilty of murder in the first degree. In Chisley v. State, 202 Md. 87, 106, 95 A.2d 577, the Court quoted from Hochheimer, Criminal Law (2nd Ed.), Section 347, and said that "wilful," when used in a murder indictment, means there must be a specific purpose and design to kill; "deliberate" means there must be full and conscious knowledge of the purpose to do so; "premeditated" means the design must have preceded the killing by an appreciable length of time, time enough to deliberate; and, in order to justify a conviction of murder in the first degree, the trier of facts must find the actual intent, the fully formed purpose to kill with enough time for deliberation and premeditation to convince the trier of facts that this purpose is not the immediate offspring of rashness and impetuous temper, but that the mind has become fully conscious of its own design. The Court then cited several New York cases and pointed out that although the design to kill must precede the killing by some appreciable length of time, that time need not be long. If the killing be not the instant effect of impulse, if there be hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder. Practically the same language was used in the later case of Faulcon v. State, 211 Md. 249, 257-258, 126 A.2d 858, wherein it was stated that the existence of the elements of wilfulness, deliberation and premeditation must be determined on the facts of each particular case.
It does not require any extended or elaborate discussion to show that the trial judges were justified in finding that the appellant had "a specific purpose and design to kill," and that he had a "full and conscious knowledge of his purpose to do so," when it was shown, and admitted, that he shot the deceased *612 seven times with a deadly weapon at point-blank range, and then, calmly, laid the pistol on her dead body, stating: "I might go to jail, but I am glad I done it." To elaborate upon something that is obvious is futile. The fact that the gun was available on the front seat beside him was one that the judges were entitled to consider and weigh. Whether he had contemplated, for some time, bodily harm to the deceased is a subjective matter not brought out in the evidence. (He claimed that it was his custom to carry the gun with him when on trips.) In any event, the judges may well have inferred that the appellant had fully formed his purpose to kill the deceased when he called her back to his car, and decided there was sufficient time between then and when he fired the shots to convince them that his actions were not "the immediate offspring of rashness and impetuous temper." Or they may have decided he formed his intent to kill shortly before he discharged the first shot, and concluded that there was enough time for reflection and decision between then and when he fired the last one and laid the gun on her body, so as to constitute premeditation as that term is used in a murder indictment. In either event, the evidence is, we think, sufficient to support their finding. See Chisley v. State, supra, [appellant shot the deceased twice with a short interval between shots]; Grammer v. State, 203 Md. 200, 225, 100 A.2d 257, [appellant saw a piece of pipe on the ground, got out of his car, picked it up, returned to the car and killed the deceased with the pipe]; Kier v. State, 216 Md. 513, 523, 140 A.2d 896, [protracted period, during which assault continued]; Elliott v. State, 215 Md. 152, 160, 137 A.2d 130, [appellant, with shot gun, watched deceased approach until within range]; in all of which cases, the evidence was held sufficient to support a finding of premeditation.
Judgment affirmed.
NOTES
[1] Medical evidence established cause of death as hemorrhage from multiple gunshot wounds and transection of the spinal cord. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2200993/ | 165 A.2d 49 (1960)
Chester R. HIBBARD and Stanley R. Curtis
v.
ROBERT G. FROMKIN WOOLEN CORPORATION.
Supreme Judicial Court of Maine.
October 20, 1960.
*50 Merrill & Merrill, Skowhegan, for plaintiffs.
Richard J. Dubord, Waterville, for defendant.
Before WILLIAMSON, C.J., and WEBBER, TAPLEY, SULLIVAN and SIDDALL, JJ.
WEBBER, Justice.
This was a real action brought for the recovery of certain land on Mill Island so-called in Fairfield. The defendant disclaimed as to a portion of the demanded premises but defended as to the remainder, asserting its own title thereto and attacking the plaintiffs' claim of ownership. The dispute was primarily over the projection of plaintiffs' lot in a northerly direction and specifically the location of plaintiffs' northerly bound. A jury found for the plaintiffs and under proper instructions by special finding in the verdict in effect adopted the plaintiffs' location of the north line.
Certain exceptions taken by the defendant to rulings on the admission of evidence have now been waived. An exception to the refusal of the presiding justice to give a requested instruction which would have eliminated any issue of adverse possession from jury consideration, an exception to his refusal to direct a verdict for the defendant, and a general motion for a new trial raise the issues for determination here.
Plaintiffs' immediate predecessor in title, one Bradbury, now deceased, entered into possession of the demanded premises *51 in 1914 under a deed which described the northerly bound of the lot as "the south line of the original Nahum Totman lot on Mill Island (south of the F. J. Savage lot)." There were in fact two lots to which Nahum Totman had previously held title and in both of which he had acquired an interest on the same day, one north and one south of the Savage lot. The jury could properly find on the basis of credible evidence and reasonable inferences to be drawn therefrom that whether Bradbury had treated the description of his northerly bound as erroneous or whether he disregarded it entirely, he did in fact occupy and claim title to land extending northerly to the southerly line of the Totman lot north of the Savage lot; that for a period of more than twenty years he maintained the type of possession calculated to satisfy the legal requirements of title by adverse user; and that thereby he made his title good against the world. There was evidence that Bradbury maintained certain small buildings on the premises in connection with a plumbing business; that he gave consent to one Bessey to occupy a small camp and a garden in the northerly portion; that he kept the bushes cut on much of the area; and that he pointed out his northerly line to a witness at the location now identified as the south line of the north Totman lot. The jury could properly conclude that here there was more than the mere occasional acts of trespass found insufficient in Webber v. McAvoy, 117 Me. 326, 104 A. 513; Stewart v. Small, 119 Me. 269, 110 A. 683, and Webber v. Barker, 121 Me. 259, 116 A. 586. In such cases as these the court has shown a natural reluctance to permit relatively furtive and secret encroachments on large woodland areas to ripen into title. Certainly no such considerations have application where, as here, the premises comprising cleared land were in proximity to a populous community and every act of occupancy was obvious and apparent. The possession which will ripen into title must be actual, open, notorious, hostile, under claim of right, continuous, and exclusive for a period of at least twenty years. Shannon v. Baker, 145 Me. 58, 71 A. 2d 318. The nature of the possession must be such as to give implied notice to the true owner who thereafter is presumed to acquiesce in the claim of the intruder. The overt acts must be such as to leave no question as to the intention to oust the owner from possession and ownership. Roberts v. Richards, 84 Me. 1, 10, 24 A. 425. We think that the acts shown to have been done in the instant case supported a jury finding that all of the foregoing requirements for title acquisition by adverse possession were fully satisfied. Here was a relatively narrow piece of land lying between the street and the stream, sloping toward the water and having a natural tendency to be wet at certain seasons. The acts of dominion openly performed upon the property were such as would ordinarily be performed by a true owner on premises of this character. See Clancey v. Houdlette, 39 Me. 451, 457; Batchelder v. Robbins, 95 Me. 59, 68, 49 A. 210; and rule stated in 1 Am.Jur. 866, Sec. 131.
In 1942, Bradbury conveyed a lot to the plaintiffs in which he described the north bound as the "south line of the original Nahum Totman lot on Mill Island." Quite significantly, we think, he omitted the words "south of the F. J. Savage lot" which had appeared in his own deed from one Smith, even though he gave the Smith deed as the source of his title. The jury could reasonably infer that Bradbury purposely omitted this limiting phrase believing that it incorrectly described his north line and was in fact an error in both the Smith deed and in the deed to Smith from his grantor in which the lot was first described. In any event, Bradbury accurately described the north line to which he had claimed and occupied for more than twenty years. The jury could also properly conclude on the basis of direct evidence and reasonable inferences therefrom that an error had in fact occurred in the two prior deeds if they first found, as they must have done, that the south Totman lot was bounded by Island Avenue and lay entirely to the *52 east of it, whereas the north Totman lot projected to the west across the street and to the shore of the mill pond. If that were true, as one proceeded northerly along the west side of Island Avenue, the only line of a Totman lot which one would encounter would be the south line of the north Totman lot. The jury could justifiably conclude therefore that since the south Totman lot nowhere touched the premises, the intended monument to establish the north line must have been the north Totman lot. It is true that Bradbury set forth at the end of the description in his deed to plaintiffs: "This is the same property that was acquired by the grantor from Arthur D. Smith, as aforesaid, except that the grantor, within a year or two, sold to American Woolen Company a strip along the southerly side thereof." (Emphasis supplied.) Bearing in mind that the Smith deed contained the limiting phrase "south of the F. J. Savage lot" above referred to, the jury in ascertaining the intention of Bradbury and the plaintiffs was faced with the necessity of reconciling a seeming inconsistency. In so doing they were guided by careful instructions of the presiding Justice based on rules of law enunciated in Abbott v. Abbott, 53 Me. 356. At page 360, the Court said:
"In construing a deed, the intention of the parties, if ascertainable, should in all cases govern. * * * The rules of construction * * * seem to be well established. When several particulars are named descriptive of the land intended to be conveyed in a deed, if some are false and inconsistent, the true are sufficient to designate the land, and those which are false and inconsistent will be rejected. * * * A clear general description of the property is not controlled by any subsequent expression of doubtful import in respect to any particular. * * * Erroneous or defective reference to the sources of title will not be permitted to vary a prior description, clearly and definitely given. * * * Where the description consists of several parts, it may prove, upon comparing the description with the land itself, that some of the particulars are incorrect, mistaken or false. `In such case * * * the law is well settled that, if it can be ascertained from such parts of the description as are found correct what was intended to be conveyed, the instrument will be effectual, the property will pass, and the incorrect parts of the description will be merely rejected and disregarded. The authorities on this are very numerous and uniform.' If, in the description of the land intended to be conveyed by a deed, any part of the description is false or mistaken, it will be rejected. * * * So if there is a contradiction in the description, that part of it is to be taken which gives most permanence and certainty to the location."
See also McCausland v. York, 133 Me. 115, 124, 174 A. 383.
Applying these rules, the jury obviously concluded that Bradbury conveyed to the plaintiffs land extending northerly to the south line of the north Nahum Totman lot, these premises being all that he had acquired by adverse possession (save only the American Woolen Company lot not involved in this controversy). The physical location of that north line on the face of the earth is not in dispute.
As to any claim of the defendant that it had itself acquired title to the demanded premises by adverse possession, it is enough to say that the jury could find that the alleged acts of possession were not continued for the required period of twenty years. Insofar as the plaintiffs' theory of acquisition of the demanded premises by the adverse possession of their grantor depended upon a showing that much, if not all, of this land here in dispute has been formed by accretion and did not physically exist in 1888 and prior thereto when the island was first subdivided, the evidence *53 and reasonable inferences therefrom were adequate to support such a finding.
In 1937, a predecessor of the defendant erected a storehouse on a portion of the demanded premises. As to whether the entry was then in the nature of a trespass or under some license from Bradbury the evidence does not disclose. The defendant now contends that Bradbury, and subsequently the plaintiffs, could not silently acquiesce in such user without thereafter being equitably estopped to assert claim of title. In support of this position the defendant cites Martin v. Maine Cent. Railroad, 83 Me. 100, 21 A. 740, 742. It must be borne in mind that the whole concept of prescriptive title rests on a theory of notice express or implied and implied acquiescence for a period of twenty years. Any doctrine of estoppel which has the practical effect of preventing one from asserting his own title after the lapse of a much shorter period must, as Martin carefully points out, be "carefully and sparingly applied" and then only where actual fraud is shown or fault and negligence or a dishonest silence equivalent to fraud. In Martin, for example, the plaintiff actively misrepresented his own title as being in another and the defendant proceeded in reliance on that misrepresentation. The defendant entered as grantee under a deed from the very party represented by plaintiff as having the title. The Court noted that the facts must be and were peculiarly within the knowledge of the party estopped. This requisite element of proof was again emphasized in Card v. Nickerson, 150 Me. 89, 104 A.2d 427. At page 95, 104 A.2d at page 431, the Court said:
"In order to create an estoppel, the conduct, misrepresentations, or silence of the person claimed to be estopped must be made to or in the presence of a person who had no knowledge of the true state of facts, and who did not have the same means of ascertaining the truth as did the other party." (Emphasis ours.)
In the instant case the defendant's predecessor knew or should have known itself to be without any color of title to land west of Island Avenue, and all other facts relating to the true title were as available to it as to anyone. Although the exact circumstances are not shown, the storehouse seems to have been erected in disregard of the rights of the true owner, whoever he might prove to be. We do not reach the interesting question as to whether or under what circumstances a bona fide purchaser relying on the title of his grantor could be estopped by conduct of his grantor of which he had no knowledge. See Proctor v. Libby, 110 Me. 39, 44, 85 A. 298. In our view, the evidence in this case was wholly insufficient to warrant any application of the doctrine as against these plaintiffs.
The entry will be
Exceptions overruled.
Motion for new trial denied.
DUBORD, J., did not sit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2201027/ | 404 N.W.2d 357 (1987)
STATE of Minnesota, Respondent,
v.
Scott William NACE, Appellant.
No. C9-86-1323.
Court of Appeals of Minnesota.
April 21, 1987.
Review Denied June 25, 1987.
*358 C. Paul Jones, Public Defender, Bradford Colbert, Asst. Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Alan Mitchell, St. Louis Co. Atty., Duluth, for respondent.
Considered and decided by POPOVICH, C.J., and LANSING and RANDALL, JJ., with oral argument waived.
OPINION
RANDALL, Judge.
Appellant was charged and found guilty of possession of a controlled substance (LSD) under Minn.Stat. §§ 152.09, subd. 1(2) (1984); 152.02, subd. 2(3) (1984); 152.15, subd. 2(2) (1984); and of possession of marijuana in a motor vehicle under Minn. Stat. § 152.15, subd. 2(5) (1984). At the omnibus hearing appellant challenged admissibility of marijuana and LSD seized during a warrantless search of his car, claiming the officers lacked probable cause *359 to search the car. The court found the evidence admissible.
The judge sentenced appellant to 28 months in prison, based on his criminal history score of 7 on the severity level III offense. Nace appeals, claiming the search of his car and seizure of evidence found therein was in violation of his fourth amendment right to be free from unreasonable searches and seizures. He also argues that he was deprived of his right to counsel when the court denied him his choice of public defender.
FACTS
On October 29, 1985, at approximately 10:30 p.m., Officers Schlitz and Campbell were on a routine patrol of the Duluth Holiday Inn parking ramp when they noticed someone sitting in a gold Plymouth Duster. The officers were patroling because a number of "car prowls" had been reported in the ramp. The Duster was apparently the only car parked at that lot level. As the officers approached the Duster, they recognized the occupant, Scott Nace, appellant in this action, from a prior incident. They noticed appellant making hurried movements in the car as they approached.
The officers got out of their squad and approached appellant on foot. According to Officer Campbell's testimony, appellant met them half way. Officer Campbell asked appellant what he was doing. Appellant said he was rolling a joint of marijuana. Officer Schlitz walked to the passenger's side of the Duster and shined his flashlight in the window. Schlitz saw a Tupperware bowl containing what looked like marijuana and rolling papers. Schlitz opened the car door, and seized the bowl and its contents.
The officers placed appellant in the back seat of their squad car and called in a third officer, Officer McKenna. Schlitz and Campbell were unable to determine whether the marijuana in the bowl amounted to a felony, Minn.Stat. § 152.15, subd. 2(2), or a petty misdemeanor (less than 1.5 ounces), Minn.Stat. § 152.01, subd. 16 (1984), and they wanted McKenna's assistance. McKenna was unable to make that determination on the scene, and directed the officers to bring appellant and the marijuana to the police station. They locked appellant's car and took possession of the keys.
When McKenna weighed the marijuana, he determined the amount, 0.4 ounces, constituted a petty misdemeanor. McKenna decided to return to the lot and search appellant's car. This decision was based on information received at the station earlier that day from a confidential informant, that a male named "Shorty," who drove a Duster, was selling marijuana. The information stated that "Shorty" stored marijuana in the lower driver's side vent of the car. The officers knew from prior contact with appellant that his nickname was "Shorty."
McKenna testified at the omnibus hearing that he did not search appellant's vehicle when he first arrived at the ramp because he did not remember the confidential information until the officers brought appellant to the police station.
The officers and appellant returned to appellant's car, and Officer McKenna unlocked it. He reached into the driver's side door, opened the floor vent, and removed a small Tupperware container and a Marlboro cigarette box. The Tupperware bowl contained LSD and the Marlboro package contained marijuana. Appellant told McKenna the LSD belonged to a friend, but he would not identify the friend, and he admitted the marijuana in the Marlboro package was his. McKenna took custody of the items.
Appellant was not arrested that evening and was allowed to leave. The judge at the omnibus hearing found appellant's statements and the evidence seized were admissible at trial. In findings made after the omnibus hearing, the trial court found the search of the vehicle was justified by exigent circumstances and the mobility of the vehicle, and allowed the drugs into evidence at appellant's trial. The jury found appellant guilty of possessing LSD and marijuana, and the judge sentenced him to 28 months, the presumptive guidelines sentence *360 for a severity level III offense on a criminal history score of 7. Nace appeals.
ISSUES
1. Was the warrantless search of appellant's vehicle justified by probable cause?
2. Was appellant denied his sixth amendment rights when the court refused to appoint the counsel of appellant's choice?
ANALYSIS
I.
Probable cause
Appellant argues the search of his car violated the fourth amendment because the officers lacked probable cause to search and because no exigent circumstances existed to justify a warrantless search.
Appellant argues the search of his car was unreasonable because the officers did not have probable cause to stop him. Appellant voluntarily left his car and approached the officers. Appellant offered the information that he was smoking marijuana. This was not a "stop," and there was no need to justify the initial approach of appellant. State v. McKenzie, 392 N.W.2d 345, 346-47 (Minn.Ct.App.1986).
Appellant claims information received by the Duluth police concerning the possible presence of additional drugs in his Duster, appellant's statement that he was rolling a "smoke," and the Tupperware bowl containing rolling papers and marijuana provided insufficient probable cause to justify the warrantless search of the floor vent of his car. We do not agree.
A warrantless search of an automobile may be conducted when the police have probable cause. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), reh'g denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1969); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Probable cause exists where, in the totality of the circumstances, the officer:
conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested.
State v. Lohnes, 344 N.W.2d 605, 612 (Minn.1984), quoting State v. Sorenson, 270 Minn. 186, 196, 134 N.W.2d 115, 123 (1965). Mere suspicion is insufficient. Lohnes, 344 N.W.2d at 612. We hold that appellant's admission he was smoking marijuana, the Tupperware bowl containing rolling papers and marijuana, together with the confidential information were sufficient to support the warrantless search.
Appellant relies on State v. Evans, 373 N.W.2d 836 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Nov. 1, 1985), to support his argument that these facts do not give rise to probable cause. Appellant was one of four persons passing a single marijuana cigarette. The court stated:
These circumstances did not give rise to a reasonable belief that any of the persons actually possessed a quantity of marijuana greater than a petty misdemeanor violation.
Id. at 838. Evans is distinguishable. Evans involved the search of a person, not a vehicle, and thus higher standards to justify warrantless search applied. The amount of marijuana observed in Evans, just one cigarette, was a petty misdemeanor amount from the start.[1] Here the officers were of the initial opinion they might be dealing with a felony amount.
Appellant argues this court should ignore the information received by the police because the State offered no testimony concerning the basis of the bulletin. The information came to the department's special investigation unit from a confidential informant. The information was properly considered. Failure to set forth the basis for confidential information is not necessarily fatal. State v. Munoz, 385 N.W.2d 373, *361 376 (Minn.Ct.App.1986). We view the information in the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983), reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983); Munoz, 385 N.W.2d at 376.
Under the automobile exception to the requirement of a search warrant, probable cause existed to justify a warrantless search of appellant's car. Appellant relies heavily on his argument that no "exigent" circumstances justified the warrantless search of his car. We note that recent supreme court cases dealing with car searches have shifted away from exigent circumstances analysis to reasonable expectation of privacy analysis.
In California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 2069, 85 L.Ed.2d 406 (1985), the supreme court found that mobility and exigent circumstances are not the only basis for the automobile exception to the requirement of a search warrant:
Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception.
Id. The court previously found a lower expectation of privacy because the passenger compartment of a car is open to plain view. Id. Even where "closed repository" areas are involved, lesser expectations of privacy warrant applying the automobile exception. Id. This exception has been held to apply to a locked trunk. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). It has been applied to a sealed package found in a trunk. U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). It has been applied to a closed compartment under a dashboard in Chambers, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In Carney, the court stated:
These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways.
Carney, 471 U.S. at 392, 105 S.Ct. at 2069.
In Ross, the supreme court noted:
[A]n individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband. Certainly the privacy interests in a car's trunk or glove compartment may be no less than those in a movable container.
Ross, 456 U.S. at 823, 102 S.Ct. at 2172.
The scope of a warrantless search is the same as the scope of a search authorized by a warrant. Id. The scope is not defined by the nature of the container in which the contraband is hidden, it is defined "by the object of the search and the places where there is probable cause to believe that it may be found." Id. at 824, 102 S.Ct. at 2172.
Searching the floor vent of appellant's car was a minimal intrusion, similar to searching a closed compartment under the dashboard, as in Chambers, or a sealed package in a trunk, as in Ross.
II.
Right to Counsel
Appellant argues that his sixth amendment right to counsel was violated when the court refused to appoint a public defender of his choice. The counsel appointed by the court previously had represented appellant in a case where appellant was found guilty. Because of this previous case, appellant did not want the same attorney to represent him again, and claimed he no longer trusted him.
The court contacted Indian Legal Aid and asked them to represent appellant. Indian Legal Aid was unable to provide counsel. Appellant attempted to represent himself, and attempted to obtain private counsel, but could not. Appellant requested another attorney from the public defender's office, but the court refused to appoint another attorney. The public defender's office has a reasonable rule that it does not exchange counsel merely because a party is unhappy with the counsel appointed.
Appellant cites numerous sixth amendment cases on right to counsel. We *362 agree that he has a right to counsel, but the law is clear that indigents have the right to a court appointed attorney, not a court appointed attorney of their choice. Appellant concedes that an indigent defendant must generally accept his court appointed counsel. We do not find that appellant's disappointment over the results in the previous case carves out an exception to the general rule. Appellant's court appointed counsel was experienced and competent. His having been involved in a case where a jury returned a guilty verdict, standing alone, does nothing to affect competency. A search of the record indicates that appellant's sixth amendment rights were vindicated.
DECISION
The warrantless search of appellant's car was proper. Appellant was not denied his right to counsel when the court refused to appoint a public defender of his choice.
Affirmed.
NOTES
[1] The appellate court, in Evans, cited with approval, State v. Martin, 253 N.W.2d 404 (Minn. 1977). In Martin, the supreme court held that a full custodial arrest merely for the petty misdemeanor offense of possession of a small amount of marijuana was illegal, and thus a search of that person's body was not justified as incident to that arrest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582801/ | 62 N.W.2d 241 (1954)
STATE
v.
WILLIAMS.
No. 48359.
Supreme Court of Iowa.
January 12, 1954.
Verne Lawyer, James Lawyer, and Don Hise, Des Moines, for appellant.
Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Clyde E. Herring, County Atty., Des Moines, for appellee.
GARFIELD, Justice.
Defendant was convicted of operating a motor vehicle while intoxicated contrary to section 321.281, Code 1950, I. C.A. Upon this appeal he asserts two grounds for reversala remark by the trial judge during the closing argument to the jury and the claimed insufficiency of the evidence to support the conviction. We first consider the second of these grounds and hold it is without merit.
Of course we must view the evidence in the light most favorable to the state. It is *242 necessary to refer only to the testimony which tends to support the verdict. We do not decide disputed fact questions in a criminal case. That is the jury's function and its verdict is binding upon us unless we are satisfied it is without substantial support in the evidence or it is clearly against the weight of the testimony. State v. Johnson, 243 Iowa 1319, 55 N.W.2d 196, and citations; State v. Marcum, Iowa, 62 N.W.2d 238.
Defendant admits as a witness he was driving his automobile on the afternoon of November 20, 1952, when it was involved in a minor collision with another car on Highway 60 in Des Moines. He had worked the night before and until one p. m. that day. He had not eaten either breakfast or lunch. Sometime after one he went to a tavern near the scene of the accident where he admits he drank three or four bottles of beer. Upon leaving the tavern he started for his home in his car and the collision occurred as he was crossing the highway in front of the tavern.
About 4:20 State Highway Patrolman McClure was notified of the collision and arrived at the scene at 4:35. Defendant was standing by his car talking with Mr. Evans, driver of the other car involved in the collision. Both defendant and Evans told the patrolman the accident occurred about 4:10. McClure testifies defendant "was staggering, his breath was strong with alcohol and his speech slurry. I had him walk about 50 feet and back and when he turned to come back he staggered, straightened out and came back. * * * His eyes were bloodshot. I would say he was definitely intoxicated."
The patrolman also says defendant told him he commenced drinking beer after one p. m., stopped about 4, had six bottles of beer and he had not been drinking since the accident. Defendant submitted to a blood test. A sample of his blood was taken at 5:05. The biochemist who analyzed the sample testifies it contained 180 milligrams of alcohol per 100 cubic centimeters of blood.
Defendant's argument the evidence is insufficient is largely based on his testimony, which has some corroboration, that he was not intoxicated, the collision occurred about 3:30 and he drank three or four bottles of beer between that time and the patrolman's arrival. Of course the jury was not bound to believe this evidence. It is contrary to testimony for the state which the jury could accept.
Applicable here is this language from State v. Gardner, 195 Iowa 439, 192 N.W. 132, 133: "The argument of his counsel is largely based upon the assumption of the truth of his testimony, and, if it could fairly be said to be admitted or undisputed, the judgment of conviction could not be permitted to stand. * * * This can only be said by assuming the truth of the defendant's testimony and denying the truth of the showing by the state. This the court is not authorized to do."
Further discussion of the evidence seems unnecessary. It is sufficient to support the verdict. The testimony is in conflict and the verdict is binding upon us. See State v. Johnson, supra, 243 Iowa 1319, 1322, 55 N.W.2d 196, 197, and citations; State v. Harrington, 220 Iowa 1116, 1123, 264 N.W. 24.
We think the evidence of guilt here is considerably stronger than in State v. Hamer, 223 Iowa 1129, 274 N.W. 885, and State v. Liechti, 209 Iowa 1119, 229 N.W. 743, relied upon by defendant.
Defendant's other claim to a reversal is based on this remark of the trial judge during the state's closing argument to the jury: "It is common knowledge that a man who has a blood count of 150 is considered intoxicated." Defendant excepted to the statement and the court responded, "Continue with the argument." We hold the remark constitutes reversible error.
The state offered no testimony as to the meaning or significance of the test of defendant's blood. There is no evidence that 150 milligrams or other quantity of alcohol per 100 cubic centimeters of blood indicates *243 intoxication. Attached to the indictment is a statement that a Dr. Weingart testified before the grand jury "180 milligrams of alcohol per 100 cubic centimeters of blood would be positive evidence of intoxication." But Dr. Weingart did not testify upon the trial.
The prosecuting attorney started to tell the jury what Dr. Weingart would have testified when defendant's counsel objected to the argument. The prosecutor contended he was merely responding to the argument for defendant. The court ruled against this contention and then made the statement (quoted above) we hold was prejudicial error.
This remark quite clearly indicated to the jury the trial judge felt defendant was intoxicated when the sample of his blood was taken. The statement was an invasion of the jury's province. Defendant was entitled to its determination of his guilt from the evidence without any expression of the judge's opinion. It is probable the remark influenced the verdict. It is not likely the jurors could or would disregard it. They would be inclined to agree with the remark because it came from the court.
Somewhat applicable here is this statement from State v. Hubbard, 218 Iowa 239, 241, 250 N.W. 891, 253 N.W. 834: "Under our Constitution and statutes, juries are the triers of fact, either in civil or criminal cases, and the usurpation or assumption of this duty by the court is error and must not be sanctioned."
State v. Lightfoot, 107 Iowa 344, 351, 78 N.W. 41, 43, says: "The rule is well settled that the jury alone can determine questions of fact in a criminal case, and that the judge cannot, either in his charge or at any time during the trial, declare or deny the existence of any fact bearing on the issues and which is in contest." See also State v. Dunne, 234 Iowa 1185, 1191, 15 N.W.2d 296, 299, and citations therein other than the Hubbard and Lightfoot cases, supra.
If it be true that the presence of 150 milligrams or other quantity of alcohol per 100 cubic centimeters of blood indicates intoxication this was a proper subject for expert opinion testimony which was not offered. See State v. Haner, 231 Iowa 348, 1 N.W.2d 91; State v. Werling, 234 Iowa 1109, 1111, 13 N.W.2d 318, 320; Lawrence v. City of Los Angeles, 53 Cal. App. 2d 6, 127 P.2d 931, 932; Commonwealth v. Capalbo, 308 Mass. 376, 32 N.E.2d 225, 229; Toms v. State, Okl.Cr., 239 P.2d 812, 820; Article by Mason Ladd and Robert B. Gibson in 24 Iowa Law Review 191, 265, 266; Annotations 127 A.L.R. 1513, 1514, 159 A.L.R. 209, 210, 214.
Our attention has been called to no decision which recognizes, in the absence of statute or proof, that one with a so-called blood count of 150 is considered intoxicated. We are cited to no authority that this alleged fact is a matter of common knowledge to the ordinary person. Judicial notice is not taken of scientific facts not generally known to ordinary persons. That judicial notice should not be taken of the alleged fact stated by the trial court see 20 Am.Jur., Evidence, § 97; 31 C.J.S., Evidence, § 76; Moore v. State, 175 Ark. 391, 299 S.W. 386, 387. See also Spears v. Veasley, 239 Iowa 1185, 1187, 34 N.W.2d 185; Bell v. Bell, 240 Iowa 934, 939, 38 N.W.2d 658, 661.
Defendant admits some state statutes provide in substance that the presence of 150 milligrams of alcohol per 100 cubic centimeters of blood is prima facie proof of intoxication. But apparently such prima facie proof under these statutes may be rebutted.
The attorney general has made every effort to explain away the trial court's remark. We are told it was not addressed to the jury but to counsel. However, its effect on the jury was probably about as potent as if it had been addressed directly to the jury. Stress is placed too upon the usual admonitions in the instructions to the jury that the question of defendant's intoxication and his guilt are to be determined from the evidence and the instructions and nothing else. We think such general statements were not sufficient to *244 induce the jury to disregard the court's remark.
Reversed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558352/ | FILE COPY
Fourth Court of Appeals
San Antonio, Texas
August 24, 2020
No. 04-19-00636-CV
The STATE of Texas,
Appellant
v.
FORTY-FIVE THOUSAND AND EIGHT HUNDRED TEN DOLLARS AND TEN
CENTS ($45,810.10) IN UNITED STATES CURRENCY,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2019CVJ000512D3
Honorable Rebecca Ramirez Palomo, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Appellant’s motion for en banc reconsideration is DENIED. See TEX. R. APP. P. 49.7.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of August, 2020.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1582886/ | 266 Wis. 49 (1954)
RADDANT (Myrtle), Plaintiff and Respondent,
vs.
TAMMINEN and another, Defendants and Appellants:
RADDANT (Jewel), and another, Impleaded Defendants and Respondents. [Three cases.]
Supreme Court of Wisconsin.
January 7, 1954.
February 2, 1954.
*51 For the appellants Esther Tamminen and Great American Indemnity Company of New York there were briefs by Genrich & Terwilliger, attorneys, and Emil A. Wakeen, Walter H. Piehler, and Neil M. Conway of counsel, all of Wausau, and oral argument by Herbert Terwilliger.
*52 For the appellant Paul A. Weiss there was a brief by Russell J. Greb of Waukesha.
For the impleaded respondents there was a brief by Smith, Okoneski, Puchner & Tinkham of Wausau, and oral argument by Charles F. Smith, Jr.
FAIRCHILD, C. J.
The first question on this appeal is: Was an emergency created solely by the negligent acts of appellant, or did Jewel Raddant act so as to contribute to that emergency? Mrs. Weiss was attempting to pass a car which was admittedly moving at the rate of 55 miles per hour. She was moving toward a hill in the road which declined in the direction she was going. Her view was thus limited so that she could not see the oncoming car until it was too late to avoid a collision. She took a chance on passing the car in front of her without being perfectly sure that she would have time to get around it and back into her own lane of travel safely. Users of the highway are required to observe the rules of the road, and it was the duty of Mrs. Weiss under the law to stay in her lane of travel or keep such a position on the road as would allow her enough space to return to it safely.
When Raddant was suddenly faced with the emergency created by Mrs. Weiss' violation of the law of the road, he was proceeding in a perfectly proper way, observing the rules of the road. It is contended by appellants that Raddant was guilty of negligent lookout and management and control. They base their claim of negligence as to lookout on the fact that Raddant could have seen the top of the Weiss car when it was 600-700 feet down the road. In his memorandum opinion, the trial court describes the situation as follows: "He was, at least, 83 feet south of where the cars stopped when he saw the approaching car because he skidded that far. And the evidence certainly would cause one to reach no other conclusion than that the Weiss car traveled at least *53 83 feet during the time the Raddant car traveled 83 feet. Both cars traveled another 50 feet or so after Raddant saw the car, and before he could apply the brakes, so that he saw the Weiss car when it was at least 266 feet away, and probably just about the time it started to turn out to pass the Peterson car." The claim of appellants that Raddant should have seen the top of the Weiss car when it was 600 or 700 feet down the road would not lead to a showing of negligence on his part, because at that distance he would have a right to assume that the approaching driver would get to his right side. Moreover, seeing only the top of the car from such a distance, he should not be expected to determine where the car was on the road.
Under the facts established the court below rightly decided that Mrs. Weiss unlawfully invaded Raddant's lane of travel and that she created an emergency in which the collision occurred; and that Raddant did not contribute to that emergency.
The other question to be considered is whether Raddant acted with ordinary care and as a prudent man would act under such an emergency. Appellants contend that Raddant was negligent with respect to management and control of his car. They base this contention primarily on the fact that the shoulder of the road was wide enough so that he could have driven his car farther onto it than he did and thus got out of Mrs. Weiss' way. Raddant testified that he was just coming up the hill when he first saw the Weiss car, "just when I tipped over the hill, by that I mean I was still going up hill and when I could look down hill the other way I saw two cars. My car was about a car length from the crest of the hill when I saw her. I would judge she was about 300 feet away when I first saw her." However, when he was suddenly confronted by the emergency created by Mrs. Weiss' occupying his right of way and approaching at considerable speed, he was compelled to act instantly. The distance between them *54 when they saw each other was covered too swiftly to enable him to carefully study the situation involving the condition of the shoulder, its width, and the depth of the ditch adjacent to it. He testified: "I was scared. . . . After I swung that far I figured I would tip over if I would go any further." In retrospect one may think of something that might have been done; but the situation confronting Raddant, including his concern for his seven children and his wife, his unfamiliarity with the shoulder of the road, and the requirement for instantaneous action with no opportunity in which to weigh the advantage of one course over another. If he made such a choice under the circumstances as a person of ordinary care and prudence placed as he was might have made, he is not to be held guilty of negligence, "even though he did not make the wisest choice." Klas v. Fenske, 248 Wis. 534, 546, 22 N. W. (2d) 596; Frankland v. De Broux, 251 Wis. 210, 28 N. W. (2d) 256; Hoehne v. Mittelstadt, 252 Wis. 170, 31 N. W. (2d) 150. In his opinion, the trial court said:
"It seems to me that is the situation we have here. This emergency was created by the act of Mrs. Weiss, and Jewel Raddant did not contribute to that emergency. It may be it would have been the better course for him to pursue to have turned to the right a little farther but the undisputed physical facts and all the credible evidence is to the effect that he was about two feet off the highway on the shoulder. There is no credible evidence to the contrary in the entire case, and the physical facts substantiate that. A man with his wife and seven children in the car is not obliged to act as an insurer of people who, through their negligence create a hazard upon the highway. That is the situation we have here."
In the matter of appellant's contention that the evidence presented a jury question as to Raddant's negligence as to lookout and as to management and control, the trial court ruled that "there is no evidence to submit to the jury which *55 would justify the jury in finding the defendant, Jewel Raddant, negligent in any respect. The court so holds."
We agree with the ruling of the court below.
By the Court.Judgments affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582878/ | 62 N.W.2d 169 (1954)
CRANDALL
v.
BANKERS LIFE CO.
No. 48401.
Supreme Court of Iowa.
January 12, 1954.
Rehearing Denied February 11, 1954.
*170 J. D. Reynolds and Thos. E. Mullin, Creston, and R. E. Killmar, Osceola, for appellant.
Herrick & Langdon, Des Moines, and Anderson & Werner, Creston, for appellee.
WENNERSTRUM, Justice.
Plaintiff, Rose E. Crandall, the widow of Kenneth M. Crandall, was named beneficiary of an insurance policy in the amount of $10,000 issued by the defendant company. The plaintiff brought an action to recover on the policy, the defendant company having denied liability. The case was tried to a jury which returned a verdict for the defendant. The plaintiff has appealed.
The defendant company filed an answer in three divisions, the first of which constituted a general denial. The second pleaded an affirmative defense of fraud practiced on the defendant's local medical examiner by Kenneth M. Crandall in that he had falsely answered questions propounded to him relative to his health. The third division pleaded an affirmative defense of fraud and misrepresentation in the original application submitted by the deceased to the company. The defendant also sought rescission of the contract of insurance by virtue of the claimed misrepresentation. The plaintiff in her reply denied the fraud and pleaded the provisions of Section 511.31 of the 1950 Code, I.C.A. She asserted that by virtue of the statute referred to, which will be later set forth and which relates to a physician's certificate, the company is estopped from pleading fraud and the denial of payment under the terms of the contract. Plaintiff also pleaded Section 511.33, 1950 Code, I.C.A., which provides there must be a true copy of the application attached to the policy. She also maintained there was not a true copy attached and that by virtue of Section 511.34, 1950 Code, I.C.A., the defendant was estopped from making any defense to payment. Although there was a jury verdict in favor of the defendant a judgment was entered under the pleadings and offer of the defendant in favor of the plaintiff in the amount of $481.60, the same being the amount of the premium paid.
The application for insurance, which was the initial basis on which the policy was issued to Kenneth M. Crandall, was dated October 3, 1950. Attached to this policy was a claimed photostatic copy of the application. Crandall died as the result of a heart attack on November 3, 1950. His widow filed proof of death with the company on December 3, 1950 in which she stated Dr. John C. Parsons of Des Moines had attended her husband within the past three years. In the application which Crandall made for the insurance he stated he was in good health, that he had not consulted, been treated or attended by a physician within the past five years, had not suffered from any ailment or disease of the heart, lungs, respiratory tract or thyroid glands and had not consulted a physician for any ailment or disease not previously mentioned. The application which Crandall signed stated he had read the answers given and that they were correctly recorded.
The medical examination was made by Dr. John L. Hoyt of Creston who testified he had asked Mr. Crandall each of the questions on the application and had correctly set down his answers. He also testified that in reporting favorably on Crandall's application to the company he had relied on the answers given to him by Crandall. Dr. Parsons, a heart specialist in Des Moines, testified Crandall had heretofore been his patient, that he first saw him on January 27, 1949 at which time he had high blood pressure, a heart murmur and accentuated heart tones and that he had diagnosed his condition as hypertensive heart disease. He further testified he prescribed phenobarbital and instructed the patient to take a quarter grain three times a day. Dr. Parsons was next consulted by Mr. Crandall on March 10, 1949 and subsequently on *171 April 21, 1949, August 4, 1949 and December 8, 1949. On April 27, 1950 Mr. Crandall was examined by Dr. Joseph T. Skaggs, an associate of Dr. Parsons, who testified his examination at that time disclosed "aortic second sound `tamborine-like' questionable murmur." The patient was prescribed phenobarbital three times daily and directed to return in three months. On July 27 Mr. Crandall again was examined by Dr. Parsons. He was furnished a further amount of phenobarbital and was given samples of Diasalt as a salt substitute. On October 26, 1950 Crandall again consulted Dr. Parsons and was furnished phenobarbital and directed to take it three times daily and was also given a salt substitute.
Dr. A. E. Johann, vice-president and medical director of the defendant company, testified he favorably passed upon the application of Crandall, that he or the company had no knowledge of information concerning the health of the applicant other than the application itself and that this application and a report of an investigator did not disclose any information relative to the heart condition of the applicant or that he had been a patient of Dr. Parsons. He further testified if the company had known Crandall had consulted a physician and had knowledge of the facts shown by the testimony of Dr. Parsons the company would have declined to issue the policy of insurance.
In connection with the pleading of the plaintiff that a true copy of the application for insurance is not attached to the insurance policy, the plaintiff calls attention to the fact there were certain check marks and circles in black pencil and red ink made on the original of the application which do not show on the photostatic copy attached to the policy. By reason of this contention the plaintiff maintains the defendant company is estopped to make any defense to the payment of the policy.
The trial court permitted Dr. John C. Parsons, a witness for the defendant, to testify that there were drugs, if taken, which would result in a lower blood pressure reading. Plaintiff at the time of the offer of this evidence made objection thereto on the ground that it was improper inasmuch as there were no pleadings or basis to support such a question and that the same was prejudicial to the plaintiff. The trial court overruled the objections made and permitted the doctor to state that phenobarbital was such a drug. The plaintiff contends the defendant company did not plead or charge that Crandall, prior to or during the time he was examined by a local medical examiner for the defendant company, had taken any such drug nor had the defendant company introduced any evidence to connect up the accusation or charge made by the doctor.
At the conclusion of all the evidence the company made a motion wherein it asked the court to direct the jury to return a verdict in favor of it and against the plaintiff because the facts disclosed showed there had been fraudulent statements, misrepresentations and concealments by the applicant. It claimed the examining physician and the company were deceived and misled by the answers of Crandall. Plaintiff made a motion wherein she asked the court to withdraw from the consideration of the jury all the allegations, evidence and claims made by the defendant company asserting the company was estopped to maintain its defenses by reason of Section 511.31, 1950 Code, I.C.A. The court did not rule on these motions and stated it would submit the case to the jury. However, at the time of the submission of a motion for new trial and the ruling thereon the court overruled all motions made prior to the submission of the case to the jury. In connection with the exceptions to instructions the plaintiff only made complaint relative to one of which reference will be hereinafter made. There were no requested instructions asked by the plaintiff.
The plaintiff as grounds for reversal states that the court erred (1) in holding that the photostatic copy of the application for insurance showing the answers made to the medical examiner was a true copy and that it failed to follow the provisions of Section 511.34, 1950 Code, I.C.A.; (2) in overruling plaintiff's objection to the testimony *172 of Dr. John C. Parsons and in permitting him to testify there were drugs which, if taken by a person suffering from high blood pressure, would result in a reading of lower blood pressure and phenobarbital was such a drug; (3) in refusing to rule on plaintiff's motion to withdraw certain divisions of defendant's answer, in refusing to rule on a motion to require the defendant to elect on which of two divisions of its answer it would stand, in refusing to rule on plaintiff's motion for directed verdict at the close of all the evidence and in waiting until after the case had been sent to the jury and a motion for new trial had been filed before it ruled on the several motions; (4) in giving an instruction which stated in part, "In considering these charges of fraud, you are instructed that all the questions, and the answers of Kenneth M. Crandall thereto, are material, and if you further find that the defendant has proven by a preponderance of the evidence that the said Kenneth M. Crandall, in answering said questions, gave the false answers thereto as claimed by the defendant, * * * the verdict should be in favor of the defendant." She maintains the materiality of the representations was one element of the claimed fraud and was a question of fact for the jury and not of law for the court. The plaintiff further contends the court erred in all of its instructions wherein the jury was told the defendant must only prove its defense of fraud by a "preponderance of evidence" whereas it is the law of the State of Iowa that the defendant must prove its defense of fraud by "clear, satisfactory and convincing evidence"; that the plaintiff further asserts the court erred in refusing to sustain her motion for directed verdict made at the close of all the evidence on the ground there was insufficient evidence introduced on the part of the defendant by which the jury could find fraud on the part of the insured.
The code sections heretofore referred to and which are material to this case are as follows:
"511.31 Physician's certificateestoppel. In any case where the medical examiner, or physician acting as such, of any life insurance company or association doing business in the state shall issue a certificate of health or declare the applicant a fit subject for insurance, or so report to the company or association or its agent under the rules and regulations of such company or association, it shall be thereby estopped from setting up in defense of the action on such policy or certificate that the assured was not in the condition of health required by the policy at the time of the issuance or delivery thereof, unless the same was procured by or through the fraud or deceit of the assured."
"511.33 Application for insurance duty to attach to policy. All life insurance companies or associations organized or doing business in this state under the provisions of the preceding chapters shall, upon the issue of any policy, attach to such policy, or indorse thereon, a true copy of any application or representation of the assured which by the terms of such policy are made a part thereof, or of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy, or, upon reinstatement of a lapsed policy, shall attach to the renewal receipt a true copy of all representations made by the assured upon which the renewal or reinstatement is made."
"511.34 Failure to attachdefenses estoppel. The omission so to do shall not render the policy invalid, but if any company or association neglects to comply with the requirements of section 511.33, it shall forever be precluded from pleading, alleging, or proving such application or representations, or any part thereof, or the falsity thereof, or any part thereof, in any action upon such policy, and the plaintiff in any such action shall not be required, in order to recover against such company or association, either to plead or prove such application or representation, but may do so at his option."
*173 I. The application for insurance is a part of an Iowa policy of insurance. Sec. 511.33, 1950 Code, I.C.A. The purpose of making the copy of the application a part of the insurance agreement is to disclose to the insured what representations he made and what his entire agreement is. Johnson v. Des Moines Life Ins. Co., 105 Iowa 273, 276, 75 N.W. 101. Any memorandum placed on the original of an application by the insurer which in no way affects or changes the representations made by the applicant does not constitute a noncompliance with the statute if this memorandum is not on the copy attached. Kayser v. Occidental Life Ins. Co., 231 Iowa 620, 629, 1 N.W.2d 715. The case of Cline v. Iowa State Live Stock Ins. Co., 195 Iowa 918, 921, 192 N.W. 309, has application to insurance other than life. However, it involves the question of the necessity of attaching a copy of an application. It was therein held the applicable statute did not apply to words written on the application by an agent to indicate the policy was in effect on the signing of the application. This last-cited case is applicable to the situation disclosed in the instant case. The contention of the plaintiff in this case to the effect a true copy of the application was not attached is without merit.
II. One of the claimed errors is the admittance of the testimony of Dr. Parsons that phenobarbital is a drug, which, if taken by a person who has high blood pressure, will result in a reading of a lower blood pressure. It should be kept in mind the doctor had first testified he had prescribed the use of this drug.
It is the particular contention of the appellant that there was no evidence to show Crandall had taken phenobarbital prior to his examination for insurance by Dr. Hoyt. And in connection with the objection to this particular question asked it was claimed that it was an attempt to inject an issue in the case which is not there by the pleadings. It is true no such claim was pleaded and under the record the objection should have been sustained. However, by reason of the doctor's previous testimony relative to the use of phenobarbital we do not deem the error sufficient for reversal.
III. There was no error made by the trial court in reserving its ruling to withdraw certain divisions of defendant's answer, in reserving ruling on plaintiff's motion to require defendant to elect on which of the two divisions of its answer it would stand and in reserving ruling on plaintiff's motion for a directed verdict. The motion to direct a verdict for the plaintiff was in effect ruled on by the submission of the case to the jury. In doing so it thus properly overruled plaintiff's motion to direct. The motion to require defendant to elect between division two and three of its answer, if it had been ruled on, should have been denied and plaintiff was not harmed by the failure to rule on it. Each of the divisions pleaded in effect a fraud on the company. In its instructions the court submitted the case on the allegations of each division. That was in effect a denial of the motion to require defendant to elect. Hill v. City of Winterset, 203 Iowa 1392, 1395, 214 N.W. 592. We find no merit in the claimed error.
IV. Upon the question relative to the court's instruction that the answers of Crandall in the application were material, we hold there was no error. The trial court at the time of ruling on the motion for a new trial made the following comment as explanatory of the reason for giving the instruction in the form it did:
"Now, that matter of the instruction on materiality of these matters, I think now as I thought then that under the facts and evidence as developed in the trial, and under the law as I think it is and should be, that the matters submitted were in fact, as a matter of law, material and the matter for the jury to determine was whether or not they were in fact false and known to be false and made for the purpose of inducing the defendant to issue the policy."
All the court said in the instruction was that the answers of Crandall were material *174 as bearing upon the question whether they were false. It left that question for the determination of the jury. We do not see where there was any error in stating the instruction as it did.
In Fountain & Herrington v. Mutual Life Ins. Co., 4 Cir., 55 F.2d 120, 123, it is stated:
"* * * Answers made in response to questions in the application as to prior illness, consultation with physicians and applications for other insurance, where the applicant, as here, declares that they are true and offers them as an inducement to the issuance of the policy, are deemed material as a matter of law. * * *"
V. The plaintiff states as a claimed ground for reversal that one of the instructions was erroneous in that it is claimed the defendant must prove its defense of fraud by clear, satisfactory and convincing evidence. The plaintiff did not take exception to the instruction. Rule 196, Rules of Civil Procedure, 58 I.C.A.
In the instant case the question relative to the instruction pertaining to the degree of proof was first presented in an amendment to the motion for new trial on December 12, 1952over sixteen months after the filing of the original motion for new trial. We could dispose of this claimed error on the ground this exception was not timely made as provided by the Rules of Civil Procedure. Pelter v. Spring, 242 Iowa 1117, 49 N.W.2d 478, 490; Eggermont v. Central Surety & Ins. Corp., 238 Iowa 28, 33, 24 N.W.2d 809.
However, the contention is without merit. In the case of In re Estate of Dolmage, 204 Iowa 231, 234-237, 213 N.W. 380, 382, there is a holding to the following effect. "`It is, however, the established law of this state that questions of fact submitted to a jury in civil cases are to be determined by a preponderance of evidence.'" See also In re Estate of Wulf, 242 Iowa 1012, 1016, 48 N.W.2d 890, 892; Carlson v. Bankers Trust Co., 242 Iowa 1207, 1214, 50 N.W.2d 1, 6; Roth v. Headlee, 238 Iowa 1340, 1343, 29 N.W.2d 923, 924; Meredith v. Cockshoot, 235 Iowa 213, 220, 16 N.W.2d 221, 225.
VI. We find no merit in plaintiff's contention that there should have been a directed verdict in her favor. We hold the trial court properly submitted to the jury the question relative to the falsity of the answers given by Crandall in the application for insurance.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582887/ | 241 Minn. 317 (1954)
KANGAS-JACOBSEN DAIRY, INC.,
v.
MARJORIE FLEMING LLOYD-SMITH AND OTHERS.[1]
No. 36,147.
Supreme Court of Minnesota.
February 26, 1954.
*318 Butchart & Fredin, for appellant.
Stone, Manthey & Carey, for respondents.
W.K. Montague of Nye, Montague, Sullivan, Atmore & McMillan, amicus curiae.
KNUTSON, JUSTICE.
Appeal from an order of the court overruling portions of plaintiff's demurrer to answers interposed by defendants.
This action was brought to recover damages alleged to have occurred when land on which plaintiff had erected a creamery building subsided. The appeal being from an order overruling a demurrer, we must look to the pleadings for the facts. Plaintiff's complaint alleges that on September 29, 1939, defendants Kate Fowler Merle-Smith and Marjorie Fleming Lloyd-Smith, referred to hereinafter for clarity and brevity as the Smith defendants, were the owners of certain land in St. Louis county. The legal description is immaterial here, so it has been omitted, although it is set forth in full in the complaint. It is alleged that these defendants separated the mineral and surface ownership of said land and conveyed away the surface, which by a series of conveyances vested in plaintiff on September 9, 1949. The mineral rights were conveyed to the trustee defendants, who still retain such rights. It is then alleged that the minerals underlying said tract were mined for the benefit of the Smith defendants; that the subjacent strata was left without sufficient support to maintain the integrity of the surface; that, after severance of the surface and mineral rights and conveyances *319 of the surface, said defendants failed to furnish adequate support to maintain the surface; that, after the acquisition of the mineral rights, the trustee defendants failed to maintain sufficient support of the strata underlying said tract; and that by reason of the failure to maintain subjacent support the surface cracked, subsided, and caved, causing damage to plaintiff's land and its building erected thereon for which it seeks to recover damages.
The Smith defendants and the trustee defendants interposed separate answers, which are identical except that in the answer of the Smith defendants paragraph XXI, which will be set forth hereinafter, is omitted. We shall discuss the legal issues involved as if the answers were the same.
The answers first contain a general denial of all matters not admitted, qualified, or explained. They admit that prior to September 29, 1939, the Smith defendants owned the property and that on September 9, 1949, plaintiff became the owner of the surface of the land and erected a building thereon, a part of which settled and was damaged. They admit the conveyance of the mineral rights to the trustee defendants. The answers then allege the conveyances in the chain of title from the Smith defendants to plaintiff, the original deed containing the following reservation:
"Excepting and reserving unto said Grantors all minerals on, in or under said parcel of land, together with the usual rights and privileges of entering upon, exploring for and mining and removing the same; together with the right of going to and from any mines thereof or any mining operations thereof on said land; * * *."
Succeeding deeds in the chain of title leading to plaintiff's ownership contained the following exception:
"Except minerals and mineral rights in which the said first party never had any interest."
Thereafter follow the defenses alleged, which we deem it advisable to set forth in full, as follows:
"XI.
"Allege that prior to the times herein mentioned, said Government Lot One (1) was with other adjoining lands leased by the owners *320 thereof to the Oliver Iron Mining Company under a mining lease which authorized said mining company to mine the iron ore from said lands and the said Lessee for many years carried on mining operations thereon. That in connection with such mining operations, the said Lessee built shafts, dug tunnels and drifts into the ore body, and caved the surface of said lands, in order to extract the ore therefrom. The iron ore on said lands was mined with due care and skill according to the usual mining practices in the region where said land was located. That no mining operations have been carried on since the year 1922 upon said lands.
"XII.
"That the plaintiff was at all times aware of and had full knowledge of the fact that said land had been mined by underground mining and knew or should have known subsidence had occurred as a result of such mining and should have ascertained that further subsidence would occur in the future.
"XIII.
"That plaintiff's predecessor in interest had full knowledge of the fact that said land had been mined by underground mining and that in connection with such mining the surface of said land had subsided and that further subsidence would occur in the future.
"XIV.
"That after the surface of said land was conveyed, the surface owners other than plaintiff caused large quantities of earth and materials stripped from other lands to be deposited upon the surface of the land described in plaintiff's Amended Complaint, and upon adjoining lands, and in the mine shaft located upon the land described in the Amended Complaint.
"XV.
"That the plaintiffs caused additional material to be filled and deposited upon said caved area and that the weight of such material deposited upon said lands, shaft and caved area by plaintiff's predecessors in interest and by the plaintiffs and the weight of the structure erected thereon by plaintiff, substantially increased the burden of the surface of said land.
*321 "XVI.
"That the aforesaid acts of plaintiffs contributed to and caused further subsidence of the surface and the damages complained of by plaintiff.
"XVII.
"Specifically deny that defendants owe any obligation to plaintiff to provide subjacent support of the surface of said land and further deny that defendants owe any obligation to plaintiff to support its building or other additional materials placed upon the land.
"XVIII.
"That defendants Marjorie Fleming Lloyd-Smith and Kate Fowler Merle-Smith sold and conveyed said lands, except minerals, at a reduced price because said lands were caved by mining operations and the surface thereof had been and was subsiding from previous mining, and said Samuel B. Phillips had full and complete knowledge thereof, and negotiated for the purchase of said lands at a reduced price because of the conditions existing thereon, and that said Samuel B. Phillips waived all right to subjacent support.
"XIX.
"Allege that if subsidence of the surface caused damage to plaintiff's property, the same was caused through the carelessness and negligence of the plaintiff and that plaintiffs predecessor in interest had full knowledge of the mining operations conducted at and under said land, that the said ground was caving and the surface had subsided because of mining operations and that further subsidence might occur; and that plaintiff without taking soundings or otherwise testing the ground recklessly, carelessly and negligently erected a building partly over the mine tunnels and mine caves.
"XX.
"That more than six years have elapsed since the mining which was the cause of the subsidence was done, and this action is barred by the statute of limitations.
"XXI.
"As a further defense, defendants allege that all of the marketable iron ore on the lands described in the Complaint herein have been removed prior to the year 1923 and that the value of the interest of *322 defendant trustees in the minerals on said lands is nominal, and that their title to said lands is not subject to any obligation to provide subjacent support to plaintiff." (Italics supplied.)
In reply plaintiff denied the allegations of paragraph XVI and demurred to all other matters set forth in the answers on the ground that they did not constitute a defense. The court sustained the demurrer as to all parts of the answers set forth in italics above and overruled the demurrer as to the balance, certifying the questions raised by that part of the order overruling the demurrer as important and doubtful. No appeal has been taken from the order insofar as it sustains the demurrer. Plaintiff appeals from that part of the order overruling its demurrer. Plaintiff has assigned no error as to the overruling of the demurrer to parts of the answer preceding the paragraphs quoted above, so we are not concerned with such allegations here. The question now before us is whether the balance of the answer, not italicized above, constitutes a defense to plaintiff's cause of action as alleged in its complaint.
All that remains of the answers, insofar as this decision is concerned, is part of paragraph XI, all of paragraphs XII, XIV, and XV, and part of paragraph XVII, together with paragraph XVI, which is denied by the reply and not involved in the demurrer. Some of the paragraphs remaining can be easily disposed of. That part of paragraph XI remaining consists of evidentiary matters over which there seems to be no dispute. The assignments of error raise no question respecting such allegations. They properly are left in the answer. The answers set forth a number of separate defenses. While they are not pleaded separately as they should have been, the trial court apparently treated them as separate defenses. Generally, where a demurrer is interposed to a whole pleading and such pleading contains one good defense, the demurrer is bad. 5 Dunnell, Dig. & Supp. § 7543. See, Smith v. Smith, 204 Minn. 255, 283 N.W. 239. Inasmuch as the parties have raised no objection and the trial court has treated the case as if there had been a demurrer to the separate defenses pleaded, we will so treat it for the purposes of this appeal. See, J.W. Bass & Co. v. Upton, *323 1 Minn. 292 (408). The question is not likely to arise again in view of the fact that demurrers have now been abolished. With that in mind, paragraphs XIV and XV must be read together with paragraph XVI. The demurrer does not reach paragraph XVI, but the allegations thereof are denied and are at issue. It was proper to overrule the demurrer as to paragraphs XIV and XV under such circumstances. The remaining portion of paragraph XVII is nothing but a denial of liability. The general denial of all matters not admitted would have accomplished the same purpose.
This leaves for our consideration only paragraph XII. It is apparent that plaintiff desires to have us pass upon many questions not before us on this record. The law pertaining to the rights of the surface owners of land under which minerals have been removed or will be removed in the future to have subjacent support and the correlative duty of the owner of mineral rights to furnish such support is of great and far-reaching importance to the entire iron ore area of this state, where underground mining has occurred or will occur in the future. That law should be developed upon established facts, not by advisory opinions based on assumed facts, as far as that can be done. We do not choose to render an advisory opinion on a branch of law of such far-reaching importance. We shall, therefore, limit our decision to the one question now before us. It is apparent from the court's memorandum that he was of the opinion that the demurrer was sustained as to all but the one question for he said in his memorandum:
"The demurrer of the plaintiff is sustained as to all matters excepting the allegation that the plaintiff had knowledge of the instability of the ground at the time of the construction of the building thereon."
We so read the record.
Plaintiff in its brief concedes:
"* * * that if a surface owner knows his land is unstable, and will not support reasonable burdens, he is not privileged to ignore this knowledge and then call upon the mineral owners to make him whole."
*324 And also:
"* * * that if a surface owner places unreasonable burdens on his land which causes subsidence of the property, he cannot claim damages from the owner of subjacent minerals, for the subjacent owner has committed no actionable wrong."
Apparently plaintiff would not have us decide the rights of surface owners who know subsidence has occurred as a result of underground mining or is likely to occur as a result of such mining but would have us decide the rights of surface owners who know that underground mining has occurred but have no knowledge of the fact that subsidence has occurred or is likely to occur as a result of such mining. The duty to inspect before building in the case of the surface owner who has knowledge that subsidence has already occurred or has knowledge that subsidence is apt to occur must be distinguished from the duty of one who has no such knowledge. The distinction is pointed out in Audo v. Western Coal & Min. Co. 99 Kan. 454, 459, 162 P. 344, 346, where the court said:
"* * * When the defendant sold this land to the plaintiff the surface was standing in its natural position, supported in some way by what was below. The plaintiff knew that some of the coal had been mined from the land, but he had no personal knowledge of the manner in which the mine had been worked. There was no evidence to show that he knew that the mine had been left in such a condition that there would be a subsidence of the surface. There was nothing to indicate that support for the strata above the coal had been withdrawn. The plaintiff had the right to assume that such support had been left. Under these circumstances the plaintiff's knowledge of the fact that the coal had been taken from a portion of this land did not constitute a waiver of the right to subjacent support conveyed by the deed."
In Peters v. Bellingham Coal Mines, 173 Wash. 123, 132, 21 P. (2d) 1024, 1027, the court said:
"Appellant further contends that respondents * * * having acquired title subsequent to the completion of the mining under *325 their lands, acquired no right of action by reason of such mining.
"The record shows that the subsidence had not occurred when they acquired title to their properties. The damage occurred later, on April 30, 1930. Evidently, it could not have been anticipated, and their rights of action are as complete as they would have been had they acquired title before the termination of the mining operations."
See, also, 58 C.J.S., Mines and Minerals, § 278, p. 784.
Plaintiff here seeks to recover damages to its building as well as to its land. While paragraph XII may not be as definite as it might have been, if it can be shown that plaintiff had knowledge or had such information as to cause it to believe that subsidence had occurred or would occur in the future and still erected its building on such land, it would hardly seem that it could be permitted to recover for damages to such building regardless of what the right to subjacent support might be, which we do not decide. If the answer pleads a good defense to any part of plaintiff's cause of action, it is good as against a demurrer. The court correctly overruled the demurrer as to paragraph XII.
It should be said in passing that this action was commenced prior to the effective date of our new rules of civil procedure. The demurrer was interposed subsequent to the effective date thereof. Demurrers are abolished by Rule 7.01 of Rules of Civil Procedure.[2]
Rule 86.01 provides that the rules govern all proceedings and actions pending on the effective date thereof
"except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, * * *."
We have been shown no reason why the exception should apply. In view of the fact that the issues before us are very limited, we have chosen to dispose of the case on its merits.
Affirmed.
NOTES
[1] Reported in 62 N.W. (2d) 915.
[2] See, 1 Youngquist & Blacik, Minnesota Rules Practice, p. 180. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582894/ | 976 F. Supp. 439 (1997)
Therese SCRIBNER and Resource Recruiters, Inc.
v.
WAFFLE HOUSE, INC.
No. 3:91-CV-2667-R.
United States District Court, N.D. Texas, Dallas Division.
March 7, 1997.
*440 *441 *442 Michael P. Metcalf, Law Office of Michael T. Metcalf, Dallas, TX, for Plaintiffs.
William Patrick Finegan, Haynes & Boone, Dallas, TX, Michael W. Fox, Haynes & Boone, San Antonio, TX, for Defendant.
Windle Turley, Law Office of Windle Turley, Dallas, TX, for Movant.
MEMORANDUM OPINION
BUCHMEYER, Chief Judge.
This case involves the severe and pervasive sexual harassment of the plaintiff, Therese Scribner, by some of the top officers and executives of the defendant, Waffle House, Inc.[1] It also involves the blatant lies, an egregious attempt to suborn perjury, and the reward of witnesses who gave false deposition and trial testimony, by the Waffle House officers, executives, supervisors and other witnesses discussed below.[2]
Therese Scribner was employed by Waffle House for three and one-half years as a personnel recruiter. Because Scribner was a woman, during this entire period she was paid less than males who had the same duties and responsibilities that she did for Waffle House. In addition, Therese Scribner was sexually harassed by three male supervisors who, contrary to their perjured testimony during depositions and at trial subjected Scribner to continued, abusive, and severe sexual harassment by conduct such as this:
... asking her, "have you ever been eaten by a man with ice in his mouth?" and "do you want to sit on my face?"
... telling her, "if you ever fucked me, you would never be happy with another man" and "I'd like to eat the lining out of your pussy."
... calling her "little Ms. Big Tits" and "our Dolly Parton, the girl with the big ... smile."
... telling recruits being interviewed for jobs with Waffle House, "Your signing bonus will be a weekend in a hotel with Therese ... in a bikini."
*443 ... grabbing her blouse, pulling it out, and leering, "It was driving me crazy to see what those were."
... sticking a Polaroid camera between her legs, and under her dress, and taking a picture of her crotch.
... telling other Waffle House employees that "Therese got so hot and wet that you could throw her panties against the wall and they would stick."
... et cetera.[3]
Although other Waffle House executives and officers[4] actually witnessed some of the perverse sexual harassment of Therese Scribner by these three male executives and supervisors, they never reprimanded the harassers or sanctioned them for their egregious misconduct. Instead, one of them, Area Manager Steve Wright, was later promoted to become a Senior Vice-President of Waffle House; and the other two harassers, Regional Manager Steve Oswald and Division Manager Tim Mercer, also received promotions or other rewards from Waffle House.
With the backdrop of this corporate environment, it was not too surprising that other Waffle House executives and supervisors joined in the sexual harassment of Therese Scribner. For example, when Division Manager Tim Mercer stuck the Polaroid between Therese's legs, and snapped a picture under her dress, Area Vice-President Larry Cannon was present; although he witnessed this reprehensible conduct, Cannon did not take any action against Mercer.[5]
Therese Scribner repeatedly pleaded with Steve Wright, Steve Oswald, and Tim Mercer to stop their repugnant conduct because, despite it, Therese was doing a very good job, and she wanted and needed to continue her employment at Waffle House. Scribner threatened to report Wright and Oswald if they did not stop the sexual harassment, but it continued. Then, Scribner complained to other Waffle House executives[6] about the sexual harassment, but "nothing ever happened." Finally, Scribner was driven to complain to Donald "Skip" Nau, the new Waffle House "Vice-President of People," shortly after Nau had become her supervisor.
Skip Nau documented some of Therese Scribner's complaints of sexual harassment, and he reported them directly to Joe Rogers, Jr., the President, CEO and 78% owner of Waffle House. At the next Executive Committee meeting (held shortly after Joe Rogers received Nau's report), Rogers asked Steve Wright about Scribner's complaints; however, Wright flatly denied that he had ever engaged in any improper conduct towards Therese Scribner and the Waffle House President, CEO and major stockholder did nothing about Nau's report or the plaintiff's complaints of sexual harassment.[7] Then, as the direct result of her sexual harassment complaints, Therese Scribner was promptly terminated less than four months after she had first complained to Skip Nau.
Supposedly, Waffle House terminated the plaintiff because she had been a "poor employee" and a poor recruiter a preposterous *444 claim, particularly since Scribner had never received a single complaint, warning or reprimand about her performance; since she had received regular pay increases during her entire three and one-half years at Waffle House; and since about one year before her termination Scribner had been persuaded not to quit her job at Waffle House by Steve Wright and by John Robertson, a Waffle House Vice-President.
After she filed this sexual harassment-retaliatory discharge suit against Waffle House, Therese Scribner started her own personnel recruiting company, the plaintiff Resource Recruiters, Inc. Two years later, Waffle House maliciously and tortiously interfered with a significant recruiting contract that Resource Recruiters had with Grandy's, Inc. In doing so, Waffle House executives defamed Scribner and Resource Recruiters, Inc. by lying about why Scribner had been terminated by Waffle House.
These are Therese Scribner's legal claims against Waffle House: sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and Tex.Rev.Civ. Stat. Ann. art. 5221k, § 5.01; unequal pay in violation of Title VII and the Equal Pay Act, 29 U.S.C. §§ 206 d(1) and 215; and common law claims of breach of contract, defamation, intentional infliction of emotional distress, and tortious interference with the Resource Recruiters Grandy's contract. With the exception of the alleged breach of contract, all of Scribner's claims are meritorious, and she is entitled to recover the actual and punitive damages that are discussed below. The Resource Recruiters common law claims against Waffle House are these: tortious interference with the Grandy's recruiting contract, defamation, and intentional infliction of emotional distress; these claims are also valid, and Resource is entitled to the recovery of the actual and punitive damages discussed below.
This opinion will first discuss the applicable law concerning a sexual harassment "hostile work environment" claim.[8] Next, it will state this Court's findings regarding the credibility of the witnesses who testified at the non-jury trial. Then, it will discuss the facts established by the credible testimony and exhibits including (i) the severe and pervasive sexual harassment that was committed by some Waffle House officers, executives and supervisors (and ignored by others), (ii) the unsuccessful attempt by a Waffle House executive to suborn perjury, and (iii) the successful attempt by other executives to bribe two trial witnesses. Finally, the opinion will discuss the law and the credible evidence supporting the award of actual damages and punitive damages on each of the claims of Therese Scribner and Resource Recruiters.
Because of the length of this opinion due primarily to the number of valid legal claims made by the plaintiffs and to the incredible extent of the severe, unrelenting sexual harassment and the Waffle House lies in this case[9] it will begin, for convenience, with an outline of the various matters to be covered.
Page
I. The Law Applicable To Sexual Harassment Claims 445
II. The Credibility Of The Witnesses 448
III. The Facts 449
A. The Plaintiff's Employment At Waffle House 449
B. The Plaintiff's Performance 453
C. The Severe, Pervasive Sexual Harassment Of The Plaintiff 455
D. Waffle House Does Not Want The Plaintiff To Quit 468
E. The Plaintiff Again Complains About The Sexual Harassment And,
As The Result, She Is Terminated 470
*445
F. The Fabricated "Reasons" Concocted To "Justify" The Plaintiff's Termination 475
1. Lie Number One: Waffle House Terminated The Plaintiff Because
Of Her Poor Performance 475
2. Lie Number Two: That's Why The Lady Is A Tramp 478
3. Lie Number Three: No One Has Ever Violated the Waffle Houses
Sexual Harassment Policy 479
G. After The Plaintiff's Termination 481
1. The Higher Paid Male Replacement 481
2. The Plaintiff's Complaints To The TCHR[10] Result In More Lies
By Waffle House 481
3. The Plaintiff Starts Her Own Recruiting Business 483
4. The Fictitious "Raid" Upon Waffle House 484
5. Waffle House Threats Cause Grandy's To Terminate Its Contract
With Resource Recruiters 485
H. The Attempt To Suborn Perjury 487
IV. Liability And Actual Damages 488
A. Willful Discrimination In Pay 489
B. Sexual Harassment 492
C. Intentional Interference With The Resource Recruiters Contract With
Grandy's 496
D. Defamation 497
E. Intentional Infliction Of Emotional Distress 499
F. Breach Of Contract 500
G. Summary Of Actual Damages 500
V. Punitive Damage 500
A. The Applicable Law 500
B. Punitive Damages: Sexual Harassment 504
C. Punitive Damages: Defamation And Tortious Interference 508
VI. Summary Of Actual And Punitive Damages 510
VII. Conclusion 510
I. THE LAW APPLICABLE TO SEXUAL HARASSMENT CLAIMS
The recent Fifth Circuit decision in Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. October 21, 1996) (Higginbotham, Wiener and Benavides)[11] contains an excellent, succinct analysis of the law applicable to the Title VII sexual harassment claims of Therese Scribner. In that case, the plaintiff Farpella-Crosby began work at a Horizon Health Care nursing home in June 1993. In February 1994, Jose Blanco, Horizon's director of nursing, began to sexually harass the plaintiff; his harassing conduct included:
... frequent comments attributing Farpella-Crosby's large number of children to her proclivity to engage in sexual activity;
... repeated comments that "he knew what she liked to do" because she had seven children and that she "must not have a television";
... "joked" before a group at the nursing home that "Farpella-Crosby doesn't know how to use condoms";
... inquired frequently about Farpella-Crosby's sexual activity; and
... often questioned Farpella-Crosby and a female co-worker about "where they had been on the night before (while off duty), whether they had taken men home, and whether they `got any.'"
In addition, on one occasion, after Farpella-Crosby had lunch in her office with a boyfriend, Blanco said, "when you open the door [to the office], the smell of fish just hits you *446 in the face. You shouldn't be doing that kind of thing at work." Another employee heard "Blanco making this comment and told him that he should stop."[12]
The plaintiff and the female co-worker both testified that Jose Blanco "made similar comments two or three times a week" and the plaintiff added that Blanco's sexual comments "were so frequent that she could not possibly remember each instance." Blanco also "threatened Farpella-Crosby with her job on numerous occasions when she asked him to stop making these `sexual comments.'"[13]
In his testimony, Blanco "essentially admitted that he did ask Farpella-Crosby about her personal life," but claimed that he did so "because he believed the lack of sleep resulting from sexual activity could affect her work performance."[14] With respect to the "the smell of fish just hits you in the face" remark, Blanco did not actually deny making this comment, but claimed "that he did not recall it."[15]
The Farpella-Crosby opinion holds that, in order to establish a "hostile work environment" sexual harassment claim, a plaintiff must prove that:
... (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the harassment complained of affected a term, condition, or privilege of employment (i.e., that the sexual harassment was so pervasive or severe as to alter her conditions of employment and create an abusive working environment); and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action ...[16] To be actionable, the challenged conduct must create an environment that a reasonable person would find hostile or abusive ...[17]
(i) severe and pervasive harassment
Farpella-Crosby then discusses (i) the elements of liability in a sexual harassment case based on verbal conduct, and (ii) the requirements for the imposition of liability against the employer for "the employee's offensive conduct." To be actionable under Title VII, the sexual harassment must be:
... sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment. Sexually discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII.... But the mere utterance of an ... epithet which engenders offensive feelings in an employee is not alone sufficient to support Title VII liability.[18]
The Fifth Circuit held that Farpella-Crosby's evidence did support the jury's finding that the sexual harassment by her supervisor (Jose Blanco) had been so pervasive or severe that it affected a term, condition, or privilege of her employment. The Court noted the:
... substantial evidence from which the jury could have concluded that Blanco's comments and questions were sufficiently severe and pervasive as to alter the conditions of her employment and create an abusive working environment. Both Farpella-Crosby *447 and her co-worker testified that Blanco inquired about Farpella-Crosby's sexual activity or made comments similarly offensive two or three times a week. The record reflects that Blanco made many egregious comments to Farpella-Crosby, some in front of co-workers, that in combination with his frequent inquisition about her sexual activity were sufficiently severe and pervasive to create a hostile work environment.[19]
(ii) the employer knew or should have known of the sexual harassment
Of course, an "employer is liable for the discriminatory acts of an employee only if it knew or should have known of the employee's offensive conduct and failed to take steps to repudiate that conduct and eliminate the hostile environment."[20] Although it felt this was "undoubtedly a close question" in Farpella-Crosby, the Fifth Circuit held that the plaintiff had met her burden of proving that Horizon Health Care "know or should have known" that she was being subjected to a hostile work environment primarily with evidence of Farpella-Crosby's complaints to two of the company's "human resource directors," Belinda Callejo and Gigi Hopper.[21]
Specifically, Farpella-Crosby testified that she frequently talked to Belinda Callejo about "her problems" with Jose Blanco, telling the human resource director:
[T]hat Jose Blanco `was making comments into [her] personal life' and that he made `personal comments' that she did not like ... Although she testified that she did not give Callejo any specific examples, she did tell Callejo that she found Blanco's comments to be offensive. Callejo agreed that Farpella-Crosby had told her of job-related problems, but denied that Farpella-Crosby had ever mentioned sexual harassment. Callejo also testified, however, that an employee need not say explicitly `I am being sexually harassed' before Callejo would take action as human resources director. Callejo said that she would consider it sufficient notice if Farpella-Crosby had said that `things are being said to me.'[22]
Farpella-Crosby also testified that, after Callejo was replaced as human resource director by Gigi Hopper, she had also complained to Hopper "that Blanco was `making comments into [her] personal life' and that she considered the comments to be `offensive or unwelcome.'" And, Farpella-Crosby testified that she "intentionally failed to report" specific instances of sexual harassment in a statement she gave to Hopper "because she `had told Belinda [Callejo]' and thought `somebody would do something about what I had told Belinda.'"[23]
In addition, the Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir.1996) opinion discusses another factor "relevant to whether [the employer] knew or should have known of [the sexual harassment]": whether the conduct "took place in public, under the eye of co-workers or supervisors."[24] With respect to Farpella-Crosby, "on several occasions, Blanco made offensive comments in the presence of [the plaintiff's] co-worker Robert Martinez and Humberto Arriola, assistant *448 director of nursing."[25]
(iii) the employer's failure to take prompt remedial action
Finally, in Farpella-Crosby, the Fifth Circuit rejected the claim that Horizon's "remedial action" had been taken promptly or that it was adequate.
Substantial evidence also supports a finding that Horizon failed to take prompt remedial action. Callejo's uniform response to Farpella-Crosby's complaints was `Hang in there. Something's got to be done.' Nothing, however, was done. Viewing the evidence in the light most favorable to Farpella-Crosby, she endured nearly six months of Blanco's abusive behavior before Horizon took any action. There is no evidence that Callejo performed any investigation of Farpella-Crosby's complaints or that she took any steps to remedy the situation. This was not prompt remedial action.[26]
This summary of the law applicable to sexual harassment claims, as explained by the Fifth Circuit in Farpella-Crosby, sets the framework for the following discussion of the facts concerning the severe, pervasive and disgusting sexual harassment of Therese Scribner.
II. THE CREDIBILITY OF THE WITNESSES
These are the Court's credibility determinations concerning the witnesses who testified at the non-jury trial in this case.[27]
1. The plaintiff: THERESE SCRIBNER was a very, very credible witness. Indeed, during her three days of testimony, Therese was one of the most truthful persons who has ever testified before this Court.
2. The sexual harassers: STEVE WRIGHT and STEVE OSWALD, the first two Waffle House executives who sexually harassed Therese Scribner, are both liars indeed, OSWALD is one of the two worst liars that has ever testified before this Court.[28] Both WRIGHT and OSWALD knowingly gave false testimony during their depositions; they reluctantly admitted some of these lies at trial, but they told new falsehoods and repeated some of their deposition lies. TIM MERCER, who also sexually harassed Therese Scribner, was the second of the two worst liars who have ever appeared before this Court (along with OSWALD). Indeed, as discussed below, MERCER was "rewarded" with the bribe of a Waffle House franchise restaurant in Colorado for his perjured deposition testimony. TIM MERCER's testimony, and that of his wife, SHERRY MERCER, are discredited almost entirely by this Court.[29]
3. The attempt to suborn perjury: As discussed below, two Waffle House executives DAVE THEOBOLD and LARRY CANNON attempted to suborn perjury by intimidating DAVID SMITH, a former Waffle House employee, shortly before the trial *449 in this case. The Court discredits the testimony and the repeated lies of THEOBOLD and CANNON.[30] It credits the entire testimony given by DAVID SMITH, a very credible witness.
4. The Waffle House executives who witnessed acts of sexual harassment: Other Waffle House officers and supervisors witnessed some of the sexual harassment of THERESE SCRIBNER by STEVE WRIGHT, STEVE OSWALD, TIM MERCER and others. These include LARRY CANNON, LIB JULIAN, SKIP NAU, JOHN ROBERTSON and DAVE THEOBOLD.[31] The Court discounts either all or major portions of their testimony, as specifically noted in this opinion.
5. The witnesses for the plaintiff: The witnesses who testified on behalf of THERESE SCRIBNER included GLENDA ADAMS, MATTHEW BULLOCK, LISA CHAMBLESS, DAVID COLEMAN, FRAN DUBUISSON, MARGARET DAILEY, TONY FISH, DAN GAY, RODNEY LeBRAUN, MICHAEL ROBARE, JOE THOMAS, BOB WESSON and STEVE WILLIAMS. The Court credits their testimony because it was true.[32]
6. The other Waffle House witnesses: The Waffle House witnesses also included DAVID ADAMS, OLENE MAE BROWNING, RICK BROWNING, TONY FISH, LISA MERCER (Tim Mercer's first wife), DELINDA PEREZ and others. Some of these witnesses lied, and some were mistaken; the Court credits their testimony only to the extent specified in this opinion.
7. The Waffle House President: As discussed below, JOE ROGERS, JR., the President, CEO and majority (78%) stockholder of Waffle House, was present when one of STEVE WRIGHT's first acts of sexual harassment took place. Despite this, ROGERS took no action against WRIGHT, and he later promoted WRIGHT, who became one of the top Waffle House executives at the company headquarters in Atlanta. ROGERS also gave false testimony about several matters.[33] The Court, therefore, discounts the testimony of JOE ROGERS, JR. insofar as it conflicts with the findings of fact in this opinion.
III. THE FACTS
Based upon the evidence presented at trial and upon the credibility determinations just made, these are the Court's findings of fact, as required by Fed.R.Civ.P. 52.
A. The Plaintiff's Employment At Waffle House
1. The Plaintiff
Therese Scribner was 42 at the time of trial. Married since 1974, Therese and her husband have two children.
After she attended junior college in Mississippi, Scribner worked for several different employers, first in Mississippi and then in Dallas, usually as a secretary or an administrative assistant. Among her employers was McDonald's, where she worked for about one and one-half years in the personnel department.
In 1983, Scribner became a personnel recruiter for Diversified Human Resources Group ("Diversified") in Dallas, and she remained there for about three and one-half years. Scribner was very successful in personnel recruiting for Diversified. She received *450 a number of awards and recognitions, including "Rookie of the Year"; she was the top biller at Diversified for two years; and she was earning over $60,000 a year. Scribner was certified by the National Association of Personnel Consultants, and she received numerous production-based awards from that Association and from the Texas Association of Personnel Consultants.
Despite her success, Scribner decided to leave Diversified in April of 1986. She was "burned out" and felt the job was taking too much time away from her family. For the next few months, Scribner did not work.
2. The Defendant Waffle House
Waffle House, Inc. was started in 1955 by two men, Joe Rogers, Sr. and Ton Forkner. Waffle House is a chain of short order restaurants that are open 24 hours a day, 365 days a year. Its corporate offices are located in Atlanta, Georgia. In 1973, Joe Rogers, Jr. the son of one of the founders became President and CEO of Waffle House (two years after he had obtained a Masters Degree at Harvard Business School). Then, in 1978, Joe Rogers, Jr.[34] became the controlling stockholder when he acquired 78% of Waffle House stock.[35]
At the time of trial, Waffle House owned and operated some 465 restaurants in five marketing areas: Metro East (eastern Georgia), Metro West (western Georgia), the Eastern Area (North and South Carolina), the Gulf Coast Area (some of the states bordering the Gulf of Mexico), and the Western Area (Texas, Oklahoma, Colorado, Arizona and parts of Louisiana). In addition to its own restaurants, Waffle House also had about 470 "franchise restaurants" in its five marketing areas and elsewhere.[36]
These are the "management positions" at Waffle House and the number of restaurants also called "units" and "stores" in trial testimony for which each level of "management" is responsible:
Unit Manager[37] 1 restaurant
District Manager 2-4 restaurants
Division Manager 12-15 restaurants
Regional Manager[38] 25-30 restaurants
Area Manager &
Assistant Vice-President up to 120 restaurants
Each Area Manager-Assistant Vice-President reports to the Vice-President of Operations in Atlanta, who in turn reports to the President & CEO of Waffle House, Joe Rogers. As the top executive and 78% owner of Waffle House, Rogers personally approves every hiring, firing and compensation decision involving his company.[39]
From its beginning, Waffle House has been directed exclusively by white males. Corporate management has never included any females, African-Americans, Hispanics, or other minorities. The testimony at trial established that:
(i) perhaps 12-15 of Waffle House's 140 District Managers and two of its 45 Division Managers were females, but that none of its 20 Regional Managers, or its Area Managers or its officers in Atlanta were female; and
(ii) that perhaps 17-18 of Waffle House's 140 District Managers and two of its 45 Division Managers were black, but that none of its Regional Managers, Area *451 Managers or its Atlanta officers were black.[40]
3. The Plaintiff's Hiring By Waffle House
Therese Scribner and her family lived in Grapevine, a suburb north of Dallas. One of her friends and neighbors was Mary Wright. After Mary learned that Therese had left her personnel recruiting job with Diversified, she mentioned that her husband, Steve Wright, who was the Western Area Manager and Assistant Vice-President of Waffle House was looking for a recruiter in Dallas.
Shortly after this, the Wrights invited the Scribners to have dinner with them and another couple.[41] That evening (in May or June of 1986), Steve Wright told Therese that Waffle House did have an opening for a recruiter, and they discussed her experience and Waffle House's recruiting needs. Therese gave Steve Wright a copy of her resume[42] and Wright told her that the recruiting job would pay from "$30,000 to $40,000 or $50,000 a year."[43]
Following this dinner, Therese Scribner had two meetings at Waffle House with Joe Renfro, a Waffle House executive (Assistant Vice-President, Training) in the Western Area office in Dallas. Renfro told Therese about the company's history, it's structure and their training program. Later, Steve Wright asked Therese Scribner to come to his home for another meeting. There, Steve Wright offered Therese the vacant recruiting job, at a salary of $28,000 per year, with a potential bonus of $8,000 (with this bonus being based on three factors: whether she met hiring quotas, what number of her recruiting hires were "retained," and her "communication skills").
In response to this offer by Wright, Therese Scribner said: "You told me the salary was a lot higher" (i.e., from $30,000 to $40,000 or $50,000 a year). Steve Wright replied to Therese with these two blatant lies:
(i) that she had misunderstood him, and that the starting salary was only $28,000, but that "she could be making as much as $40-$50,000 within six months"; and
(ii) that she would be receiving the same compensation as Rick Seal, the Waffle House recruiter that Scribner was replacing.
After Wright told Therese that her compensation would be "the same as Rick Seal's," he then said that this offer was "non-negotiable".[44] Therese Scribner accepted Wright's offer. Wright gave Therese "a couple of boxes of Rick Seal's files" for her to review. And, on July 29, 1986, the plaintiff started work for Waffle House, at a base salary of $28,000 per year, with a maximum yearly bonus of $8,000.
Within a month or so, Therese Scribner learned from documents in Rick Seal's files "that Seal had actually been receiving a base salary of $38,000, with a potential bonus of $10,000" i.e., $12,000 more in potential compensation (salary plus bonus) than the $36,000 *452 maximum that the plaintiff could receive. Therese was so angry that she immediately confronted Steve Wright and asked: "Why am I making less than Rick Seal? Why did you hire me?" Steve Wright grinned and replied:
"I hired you because I saw you in a halter top and shorts. You're making less because you're not a bread winner. You don't need to make as much as a man. Your's is second income."[45]
Although Therese Scribner was very upset, she thought she would like the recruiting job with Waffle House so, despite these first lies and the first inappropriate sexual comments by Steve Wright, Therese decided to continue to work at Waffle House.
4. The Plaintiff's Supervisors
For the rest of 1986, Therese Scribner reported directly to Steve Wright, the Western Area Manager and Assistant Vice-President. From January 1987 through September or early October of 1989, Scribner's supervision was divided between Steve Wright and John Robertson,[46] the Vice-President, Operations Control, in the Atlanta home office. During this period, Robertson was in charge of "administrative issues" concerning Therese Scribner (such as compensation), while Steve Wright set her performance quotas and was responsible for her day-to-day supervision.
In September (or early October) of 1989, Steve Wright was promoted to the Waffle House headquarters in Atlanta.[47] For the next several weeks, the Area Vice-President, Larry Cannon was Scribner's supervisor. Then, on October 1, 1989, Donald "Skip" Nau, a Vice-President in Atlanta, became head of the newly-created "People Department" of Waffle House. All recruiting functions were transferred to this new department, and Skip Nau was Therese Scribner's supervisor until March 1, 1990, when she was abruptly and unjustly terminated.
5. The Plaintiff's Responsibilities
Therese Scribner's primary duty was to recruit new trainees for the Unit Manager positions (one restaurant) in the Dallas-Fort Worth area and, to a lesser degree, in other parts of the Waffle House Western Area.[48] Her other responsibilities included an Hourly Employee Training Coordinator program, the preparation and completion of forms concerning the initial interviews of recruits and exit interviews for departing employees, and planning and running special Western Area functions, such as the Top Operator "Top Ops" Awards Banquet and the Santa's Sleigh holiday program.[49]
Scribner received her initial training from Steve Wright. There was no structured training program; instead, after Scribner had reviewed the "Rick Seal files," Wright took her to a few Waffle House restaurants to meet the Unit Managers and to learn the manner in which Waffle House wanted its employees to operate. Next, Wright took Scribner to some competitive restaurants e.g., Hardy's, Taco Bell, Grandy's, etc. to teach her "how to try to find people who might be interested in working" for Waffle House as Unit Managers, and to leave business cards with any interested prospects. Wright also instructed Scribner on the use of "word of mouth" i.e., references from Waffle House employees or others to find Unit Manager recruits.
*453 Steve Wright was specific about the "targets" that Therese Scribner should try to find for Waffle House: young men in the late 20's, who were ex-football players or "other athletes," and who would be "movers and shakers" as Unit Managers. Wright also told the plaintiff that he "pretty much wanted white males."[50] Wright said that he wanted Scribner to try to "upgrade the quality of their Unit Managers and above," and he told her that Waffle House "needed promotable employees as well as some who would be content with the lower jobs" (i.e., Unit Managers).
Wright also instructed Scribner about how she was to conduct the interviews and the initial screening of the applicants. Steve Wright specifically told Therese Scribner and he repeated these instructions several times that she had no authority to hire anyone, and that the hiring would be done only by the District, Division and Regional Managers and by Wright, the Western Area Manager and Assistant Vice-President.
In summary, the credible trial evidence clearly established: (i) that Therese Scribner was given specific instructions by Steve Wright with respect to how, and when, and whom she could recruit; (ii) that there were no differences between Scribner's authority and responsibilities and those of her predecessor, Rick Seal; and (iii) that Therese Scribner had no authority to hire new employees or to affect the operations of the Waffle House restaurants in any way.
B. The Plaintiff's Performance
Therese Scribner was an outstanding employee for Waffle House! She was intelligent, organized, innovative and very personable. In addition to doing an excellent job as a recruiter, Scribner also rapidly assumed other responsibilities, including:
(i) Proper Records Therese established procedures and developed new forms for hiring new employees (e.g., reference checks, credit checks, rating sheets, a recruiting log, employment contracts, exit interviews, etc.);
(ii) Training Therese instituted a training program for hourly employees at the restaurants (using a "training coordinator" to assist the Unit Manager), which was designed to reduce turnover;[51]
(iii) Monthly Newsletter Therese started a monthly newsletter for the Waffle House restaurants to help improve the morale of the unit employees.[52]
As mentioned above, Scribner's responsibilities also included (iv) Santa's Sleigh, a Christmas project in which toys were delivered by supervisors to several hundred children of the hourly employees of the Waffle House restaurants in the Dallas-Fort Worth Area; and (v) the "Top Op" Awards, a dinner-dance at which the "Top Operator Awards" were given to the most outstanding Waffle House employees.
Therese Scribner learned, very soon after her initial training by Steve Wright, just how incredibly demanding, confining, and exhausting the working conditions were for the Unit Managers. From the trial testimony of Scribner and other credible witnesses, this is a fair summary of the job of a Waffle House Unit Manager (1 restaurant):
The Unit Manager at each Waffle House restaurant is responsible for everything. From 7:00 a.m. to 2:00 p.m. (the First Shift), he[53] cooks all the meals. Then, he *454 does office work on the Second Shift, and usually leaves the restaurant between 3:00 to 5:00 p.m. unless his replacement, the assistant cook, has not shown up for work. Once the replacement cook arrives, the Unit Manager gets some time off, but he must return during the Third Shift to lock up the money and leave supplies and some cash for the night shift. However, if the assistant cook does not show up, then the Unit Manager has to "work around the clock" unless his District Manager "agrees to cover for him."
Because of these harsh working conditions, morale at the Unit Manager level is extremely poor (to say the very least). As Therese Scribner soon learned, the long hours and the demanding conditions were incredibly difficult on family and personal life; and, understandably, they result in a very high turnover at the Unit Manager level. Scribner began documenting these and other problems i.e., lack of management support, inconsistent treatment of Unit Managers by their supervisors, etc. in her exit interviews of Unit Managers who quit.[54] Therese was well liked by the unit employees, but she had no authority to change either the demanding working conditions of the Unit Managers or the other things that were causing the high employee turnover at the Waffle House restaurants.
In her interviews with prospective Unit Managers, Therese Scribner "tried to cover both the pros and the cons" of this entry level management position at Waffle House. The advantages included a fast advancement track, with excellent compensation and much better working conditions "as one rose up the management ladder," from Unit Manager to District and Division Manager. The disadvantages included the long hours, sometimes 60 to 70 to 80 hours a week; work on every holiday; and, as Therese told her recruits, "the hardest job you will ever have." Steve Wright, after observing one of Therese's interviews, told her it was "an effective interview," and said "Great. Just great."
After her initial interviews, Scribner brought any person "she felt was qualified" to the attention of the District, Division and Regional Managers who then conducted second interviews of the recruits, and who made all hiring decisions. As discussed above, and as was made very clear to her by Steve Wright, Therese Scribner did not have the authority to hire anyone or to offer any recruit a job with Waffle House.[55]
Therese Scribner worked 40-50 hours each week. Although the number of interviews she conducted each month with new recruits varied, she probably averaged around 30 per month. Therese tried other methods of recruiting besides the "cold calls" to other restaurant chains and "networking" (referrals from current employees). These included "job fairs"; an "All Star Recruiting Team" composed of all of the District Managers and Scribner;[56] contacts with personnel agencies (Wright was opposed to this);[57] and advertisements in newspapers (Wright didn't like these either).[58] The Court specifically credits the testimony of Therese Scribner that her recruiting efforts were "easily 85%" in the "cold-calling" a rival restaurants and "networking" with Waffle House employees and that, at most, 15% of her recruiting was done by personnel agencies and newspaper *455 advertisements.[59]
No one ever told Therese Scribner that there were any problems with her interviewing style. To the contrary, Steve Wright said "it was excellent"; and, Larry Cannon, her supervisor for a two-month period in 1989, gave Therese "high marks" for her interviewing methods.[60]
Nor did anyone not Steve Wright, not Skip Nau, and not a single other supervisor ever tell Therese Scribner that she was not doing a good job as a recruiter. Therese received only one written performance evaluation, the one by Larry Cannon on January 26, 1988, and it was a very positive one.[61] Therese normally met, or came close to meeting, all hiring quotas set by her supervisors. And, of course, she received consistent, periodic increases in her pay.
Therese was recognized by Waffle House for her outstanding work in creating the training program for unit hourly employees. In October 1988, she was presented an "award of excellence" for her work in recruiting and training. And, in early 1989, when they learned that Therese was considering quitting her job, both Steve Wright and John Robertson encouraged Scribner and persuaded her to stay with Waffle House. Not one supervisor ever told Therese Scribner, "You are doing a poor job."[62]
However, the fact that Therese performed her recruiting and other responsibilities in an exceptional, dedicated and loyal manner is quite remarkable, indeed because during this entire period, she was being subjected to pervasive, demeaning and severe sexual harassment, first by Steve Wright, next by Steve Oswald, and then by Tim Mercer.
C. The Severe, Pervasive Sexual Harassment Of The Plaintiff
Therese Scribner was subjected to unrelenting and unwelcome sexual harassment by Waffle House officers, executives and supervisors. This sexual harassment was pervasive, it was severe. The sex-based comments made to her and about her were gross, lecherous and disgusting. This sexual harassment of the plaintiff was, without question, so severe and pervasive that it altered "the conditions of her employment" and created "an abusive working environment."[63]
The first person who sexually harassed Therese Scribner was Steve Wright, the Western Area Manager and Assistant Vice-President (who, despite his conduct, was later promoted to the position of Senior Vice-President of Waffle House). The next harassing supervisor, whose misconduct was even more egregious than Wright's, was Steve Oswald. Oswald was Scribner's Regional Manager (who, despite his repugnant behavior, was promoted to the position of Assistant Vice-President and Area Manager, Western Region). On cross-examination and in questioning by the Court, both Steve Wright and Steve Oswald admitted that they had made various sexual comments to Therese Scribner and Wright also admitted that this conduct was in violation of the Waffle House sexual harassment policy.
The next supervisor who sexually harassed the plaintiff was Tim Mercer. Mercer was first a District Manager, then a Division Manager, and then a District Manager again after demotion,[64] all in the Western Area. His sexual harassment of Therese Scribner was even more demeaning and severe than that of Steve Oswald. And, finally, the other Waffle House officers, executives and supervisors *456 who are discussed below either witnessed or participated in some of the acts of sexual harassment of the plaintiff.
Therese Scribner recorded some (but not all) of these acts of sexual harassment in her 1987 day-timer and in her office calender. Although these records are not a complete account (her day-timers for other years were lost) or a comprehensive list (she noted only some of the harassment), they are very credible records that illustrate the nature of the sex-based comments and conduct to which the plaintiff was subjected. Several months after her termination, Scribner prepared a chronology of some more (but still not all) of the acts of sexual harassment; this chronology (Exhibit 166) which lists the date and substance of, and the persons involved in, the various acts of sexual harassment is also very accurate.[65] Then, about three years after her termination by Waffle House, Scribner drafted a list of the acts of sexual harassment by Steve Oswald (Exhibit 167); this chronology, which was verified by the testimony of Scribner and other witnesses, is also very credible evidence, too.[66]
1. The Beginning: Sexual Harassment Of The Plaintiff By Steve Wright
Within two or three months after Therese Scribner was hired by Steve Wright, Therese learned that she was being paid $12,000 a year less than the male recruiter she had replaced (Rick Seal) She angrily confronted Steve Wright about this; and, he replied:
"I hired you because I saw you in a halter top and shorts. You're making less because you're not a bread winner. You don't need to make as much as a man. Your's is second income."[67]
This sexist remark by Steve Wright in the fall of 1986 was followed by an increasing level of sexual harassment by Wright. This pattern of sexual harassment, which quickly became much more severe and pervasive, was clearly established at trial by the very credible testimony of Therese Scribner and the other honest witnesses discussed below. It was confirmed by the repeated impeachment of Steve Wright. In addition, some of Therese's sexual harassment by Wright was actually witnessed by other Waffle House officers, executives and supervisors.
"She's our Dolly Parton"
In the summer of 1987, Waffle House held a "Top Op" party at Bear Creek in Dallas to honor the "Top Operators" in the Western Area. Therese Scribner was in charge of this function, and she made all the arrangements for it. When Steve Wright introduced Therese Scribner to the crowd, he made this leering reference to the size of Scribner's breasts:
"Therese Scribner is our `Dolly Parton.' The girl with the big ... (pause) ... smile!"
Lib Julian, the Waffle House Senior Executive Vice-President, Operations from the Waffle House headquarters in Atlanta was present at this "Top Op" banquet. He did not reprimand Steve Wright, or say anything at all to him, about this inappropriate "Dolly Parton" comment. And, Lib Julian did not report this incident to anyone.
Later that night, Mary Wright (Steve's wife) apologized to Therese Scribner for the conduct of her husband towards Therese *457 who was very shocked and upset by this "Dolly Parton" remark. After a day or so, Therese did complain to Steve Wright, telling him that this comment about the size of her breasts offended her very much. In response, Wright only "shrugged it off, like it was no big deal."[68]
"a weekend with Therese in a bikini"
At a working meeting in Dallas at the Sheraton Hotel in August 1987 where new recruits were being interviewed by Wright, Scribner and others Steve Wright announced to the prospective Waffle House employees:
"Whoever agrees to join Waffle House will get a `sign-on bonus.' Therese will be your hostess in a hotel for a weekend ... wearing a bikini."
Again, Therese was shocked by this embarrassing, public comment. Later, she angrily confronted Steve Wright, telling him how humiliated it made her feel and also telling Wright that one of the recruits had even asked her later, "Are you really going to be wearing a bikini?" Wright just ignored these complaints by Therese.[69]
Joe Rogers, the President, CEO and 78% owner of Waffle House was present at this Sheraton Hotel meeting. Although he witnessed the "sign-on bonus, weekend with Therese" statement by Steve Wright as well as Scribner's embarrassment he said nothing at all to Wright about his improper conduct. If Joe Rogers had taken some prompt corrective action then as, indeed, he should have the subsequent sexual harassment of Therese Scribner by Steve Wright and other Waffle House officers, executives and supervisors probably would have been deterred. Instead, Rogers did nothing, and the sexual harassment of Therese not only continued, it escalated.
Steve Wright repeated this "sign-on bonus, weekend with Therese in a bikini" remark to new recruits on many other occasions. Each time, Therese Scribner was upset and angry. Each time, she complained to Wright, telling him (for example) that "Your conduct is unprofessional." In response, Wright would just laugh and tell Therese something like, "It's no big deal, just a clever comment."
other sexual comments by Wright
Steve Wright made numerous other remarks about Therese Scribner's breasts. For example, in front of other Waffle House employees (and Therese), he stated that "Therese's big boobs help her in recruiting. It's an unfair advantage for her." In October 1988, Steve Wright also told Therese, "That's a really nice outfit on a really nice body." And, in December 1988, Wright in the presence of Lib Julian (Senior Vice-President, Operations), at the Marriott Courtyard hotel in Dallas "grabbed Thereses' blouse, pulled it out, looked down at her breasts, and smirked: `It was driving me crazy to see what those were.'"[70] Lib Julian did not reproach Wright about this sexually harassing conduct, nor did he report it to anyone else at Waffle House.
Therese Scribner gave other examples of the severe, pervasive acts of sexual harassment by Steve Wright. These included the following:
... before other Waffle House managers, Wright asked Therese, "Are you on the rag?" (and he repeated this numerous times).
... in February 1988, on a business trip to Phoenix, Wright suggested to Therese: "Let's go out and paint the town. Your husband is far enough away."
... in June 1989, when Wright saw Therese in a black dress, he said: "I'd like to jump your bones."
*458 ... in May 1989, when they learned that one of the Waffle House Unit Managers had been charged with raping a waitress, Wright told Therese that "he thought it was comical" and "he just laughed about it."[71]
In May of 1988, at a Waffle House meeting in the Sheraton Hotel in Dallas, Steve Wright actually told the Division Managers that they "should support" Therese Scribner and "show more respect for her." Later, Therese told Wright that the Division Managers "were following your example." In recording this incident, the plaintiff noted that Wright "said he was just being complimentary."
And, Wright's sexual harassment continued. For example, in March 1989, at a meeting of Division and District Managers at the Red Lobster Inn in Dallas, Wright again made the comment "that [Therese's] big boobs assist [her] in [her] recruiting efforts."[72]
These are only examples. Indeed, as Therese Scribner testified, they were by no means all of the perverse acts of sexual harassment by Steve Wright. On numerous occasions, Therese told Wright that she would report him if he did not stop the harassment but Wright's conduct toward her never changed. However, in August of 1989, Steve Wright was promoted and transferred to the Waffle House headquarters in Atlanta.[73] From then on, Wright had fewer direct contacts with Therese Scribner although, as discussed below, his control over her employment at Waffle House did not cease.
Despite the sexual remarks he made about Therese Scribner in the presence of other Waffle House supervisors, employees, and recruits her "big smile," her "big boobs," etc. Steve Wright even testified that he had never been present when Waffle House supervisors "were engaging in guy talk" about Therese and other female employees. This was false, absolutely false! In addition, in response to the Court's question about whether Wright had ever witnessed a violation of the company's Sexual Harassment Policy, Wright lied again:
"There are things that were said, I'm sure, among the guys in the restaurants. I feel positive about that. But first hand information, no."[74]
2. The Sexual Harassment Of The Plaintiff By Steve Oswald
The sexual harassment of Therese Scribner by Steve Wright was bad enough, but her sexual harassment by Steve Oswald who had witnessed Wright's misconduct towards Therese on many occasions became even worse. Steve Oswald remained as Western Area Regional Manager after Wright's promotion to Atlanta. Later, Oswald was promoted to the position of Western Area Manager and Assistant Vice-President.[75]
Steve Oswald constantly repeated Wright's "sign-on bonus, weekend with Therese in a bikini" coagent while interviewing new recruits with Scribner.[76] He made incessant remarks about her breasts, almost routinely referring to Therese as "little Ms. Big Tits." He literally bombarded Therese with vulgar remarks about her sex life, his sexual prowess, *459 etc. Some of Steve Oswald's harassing conduct is recorded in Exhibit 167,[77] a list prepared by Therese Scribner for her attorneys after this suit was filed. It reads:
"Comments Made By Steve Oswald To Therese Scribner
* Stacked well enough to be matching bookends.
* Referred to me as `little Ms. big tits.'
* Lots of filthy jokes using heavy four letter words.
* Asked me several times if I wanted to sit on his face.
* Asked about size of my husband's penis said his own was `bigger than life,' `a whopper,' said if I ever fucked him I would never be happy with another man.
* Made references to `Mississippi women' being good fucks and sucks.
* Asked me if I ever sucked chrome off a bumper or sucked a golf ball through a straw bet I could.
* Talked about kinky sex with rubber tubing and ropes.
* Asked if I had ever been eaten by a man with ice in his mouth.
* Constantly (every conversation) interjected filthy comments during a business conversation.
* Told three applicants during interviews that if they came on board with Waffle House there was a `sign-on' bonus a weekend with Therese.
* Asked me if I ever see my feet.
* After meeting Bob[78] for the first time he asked if I ever get tired of being on top he would be happy to oblige me.
* Said he would like to `eat the lining out of my pussy.'"
Therese Scribner was asked when each one of these things took place. Her responses placed many of them at events where other Waffle House executives, supervisors and employees were present specifically (1) at a company banquet (matching bookends), (2) "said on a regular basis" (little Ms. big tits), (3) "happened regularly" (lots of filthy jokes), (4) the first time, "after an Area Meeting at the Sheraton" (want to sit on my face?), (5) "can't remember" (size of husband's penis), (6) "at an Area Meeting" (Mississippi women are good fucks and sucks), (7) at an Arlington restaurant (ever sucked chrome off a bumper?), (8) on a trip to Shreveport with Tim Mercer (kinky sex talk), (9) at a Waffle House restaurant on Jupiter Road (ever been eaten by a man with ice in his mouth?), (10) "constantly" (filthy comments), (11) "many times" (weekend with Therese in a bikini), (12) "on occasion" (ever see your feet?), (13) in a car with Larry Cannon (do you ever get tired of being on top?), and (14) at a restaurant where Scribner "was helping behind the counter" (I'd like to eat the lining out of your pussy).[79]
Steve Oswald lied repeatedly,[80] both at his deposition and in his trial testimony, about these and his other acts of sexual harassment of Therese Scribner. For example, in his deposition, this was Oswald's answer to a question by the plaintiffs' attorney:
Q. During your tenure as an employee of Waffle House, have there ever been any allegations of a sexual harassment or sexual misconduct made against you by female Waffle House employees?
A. No.
This was a lie. At trial, Scribner's attorney began his examination of Oswald by reading the very same question from the deposition; however, this time Oswald gave a different answer:
Q. During your tenure as an employee of Waffle House, have there ever been any allegations of a sexual harassment or *460 sexual misconduct made against you by female Waffle House employees?
A. Yes.
During his deposition, Steve Oswald lied when he denied making any sex-based comments to Therese Scribner, including the statements listed on Exhibit 167. But at trial, Oswald admitted to the plaintiffs' attorney that he had, in fact, made the "sign-on bonus, weekend with Therese in a bikini" statement; and he, admitted to making the "matching bookend" comment.[81] However, in his deposition and initially in his trial testimony, Oswald flatly denied that any of the other entries on Exhibit 167 were true.
This, of course, was another blatant Oswald lie. During questioning by the Court, Steve Oswald finally admitted that he had actually said that the plaintiff had "big tits," that he had told "lots of filthy jokes using heavy four-letter words," and that he "could have" made some of the other remarks on the plaintiff's list "in a joking manner." But each time he was impeached, Oswald would try to minimize his admissions and his conduct, as shown by the following examples.[82]
"little Ms. big tits"
Q. You never referred to her [the plaintiff] not just to her, but to anybody else, that she had big tits?
A. You know, I didn't refer to her in person as that. You know, somebody would have asked me and, you know, describe Terez and I would say she's got big breasts ...
Q. You probably said "big tits?"
A. I could have, yes.
(Later)
Q. You're positive that it (saying the plaintiff had big tits) only happened one time?
A. I wouldn't have if it came up, it came up one time. I don't generally talk that way.
Q. May not have ever happened?
A. I'm sure it happened. I'm not saying it didn't happen.
Q. But you're sure it only happened one time?
A. I'm sure.
Q. But you can't tell me why you think it only happened one time?
A. No, sir.
The "sign-on bonus: a weekend with Therese in a bikini" lies
Still lying, Steve Oswald swore that there were only two occasions when he made the "your sign-on bonus is a weekend in a hotel with Therese wearing a bikini" comment to recruits. Then, Oswald proceeded to tell additional lies:
Q. You [made that remark because you] were trying to put the applicants at ease and that (sign-on bonus comment) was just a joke?
A. Yes, sir.
Q. [Therese would] laugh?
A. She laughed. Everybody laughed. It was a joke.
Q. But ... [if] you thought that was a good interviewing technique, "just to make the person feel at ease?" ... if it was, if it worked, why didn't you do it more than just two times?
A. Because after a while I'd gotten so you know, with Terez, Terez and my relationship had soured quite a bit because I didn't I just quite frankly didn't think she was doing the job that she was hired to do. ...
"filthy jokes and four-letter words"
Another Steve Oswald lie was that, although he and Therese Scribner told "lots of filthy jokes" with "lots of four-letter words," there was no use of "real heavy" profanity.
Q. Okay. What kind of four-letter words?
*461 A. Just a joke. You know, I wouldn't say they were real heavy four-letter words. ...
...
Q. She [the plaintiff] would use four-letter words?
A. Yes, sir.
Q. Hell, damn?
A. Yes, sir.
Q. Fuck, shit?
A. Yes, sir.
told filthy jokes, but never said "tits"
Ever a paragon of virtue, Steve Oswald gave this bizarre explanation for his incredible testimony that he and the plaintiff would tell jokes and use profanity, but they would never, ever joke about "her breasts."
Q. So you probably said she had `big tits'?
A. Yes, sir.
Q. But not to her directly?
A. No, sir. No, sir.
Q. Well, if y'all were joking around telling filthy jokes and she was brushing up against you [with her breasts], why wouldn't you say to her ... if it's second nature to you to use the word "tits," why didn't you say, you know, "Therese, get those big tits off of me?"
A. I wouldn't have said that. I would have said, "Terez, please watch those things." Talking to the guys I might say something like that, but I wouldn't say that to a woman. That's just not things I would say.[83]
Therese Scribner was also very credible in describing Steve Oswald's repeated, unwelcome physical contact with her e.g., backing into her and "accidentally" bumping her breasts; tickling her under her arms; rubbing his legs against her thighs; etc.[84] Oswald lied about these physical contacts he had with Therese, too.[85]
The first two times that Steve Oswald made the "sign-on bonus/weekend with Therese in a bikini" remark to a recruit, Scribner angrily complained to him. However, Oswald just "thought it was humorous." On the third time (October 12, 1989),[86] Therese Scribner was so upset that she warned Oswald: "If you don't stop, I will report you to Larry Cannon and to the EEOC." Oswald was not concerned by her complaint, and he replied: "Hey, I just think it's funny." Therese made other angry, bitter complaints to Steve Oswald about his conduct; however, just as in the case of Steve Wright, Oswald's conduct never changed.
In summary, Therese Scribner's testimony about the incredibly severe, pervasive and demeaning sexual harassment of her by Steve Oswald was very, very credible. During her direct examination, when her attorney was asking questions about each one of the entries on Exhibit 167, Therese began crying obviously because she was remembering the shame, the humiliation, and the degradation she felt because of Oswald's abuse. Seeing this, Scribner's attorney quickly asked her one general question about all the remaining statements on Exhibit 167, and moved to other topics. At this point, the Court's contemporaneous trial notes contain these remarks:
"Pl. crying while answering. Very credible. Humiliated. Embarrassed. Angry. Upset. So tired of it. Confused. Couldn't quit. Needed job."
*462 3. The Sexual Harassment of the Plaintiff by Tim Mercer and the Bribery of the Mercers
With the Western Area Manager and Assistant Vice-President (Steve Wright) and the Regional Manager (Steve Oswald) setting such sterling examples by their open and pervasive sexual harassment of Therese Scribner in the presence of anyone (whether Waffle House officers,[87] executives, supervisors, employees, or recruits) it was not surprising that Wright and Oswald were soon joined by other Waffle House managers, including Tim Mercer.
Mercer was the only witness who told more lies at trial about Therese Scribner and about his sexual harassment of her as Steve Oswald did in his perjured testimony. Tim Mercer started with Waffle House as a Unit Manager (one restaurant). Within a year, Mercer was promoted, becoming a District Manager (2-4 restaurants). He was a Division Manager (12-15 restaurants) for a while, but was demoted in December 1990 and again became a District Manager.[88]
"the plaintiff got so hot and wet" that her panties would "stick" against the wall
The very beginning of Tim Mercer's testimony at trial was his admission to the plaintiff's attorney that, contrary to his deposition lies, he "may" have made a statement like this about Therese Scribner:
"She got so hot and wet that you could throw her panties against the wall and they would stick."
The truth, however, did not come easily to Tim Mercer. After his sworn deposition denial was followed by his sworn trial admission of this repulsive comment, Mercer "explained" that "he may have said this in jest, in a joking manner," but not in the presence of Scribner or other Waffle House employees ... then, Mercer admitted that, well he "could have made this remark in front of Scribner" ... and, finally, Mercer conceded that "he could have made this statement in front of other employees of Waffle House."
"sex banter and vulgar language"
Tim Mercer, of course, lied about the relationship he had with Therese Scribner. Mercer testified that Therese and I "had a great relationship"; that "we were really open with each other"; that "we enjoyed each other's company" (and only had a "few spats"), and that "we spoke all the time on the phone after the plaintiff was fired."[89]
These lies were followed by Mercer's "explanation" that he and Therese "cut up and told jokes"; that "anything went"; that "we used vulgar language" (but "not around others"); and, that it "was always a joke." With this preamble, Tim Mercer proceeded to tell one blatant lie after another, including these:
... that Therese was always joking about her breasts, calling them "big tits."
... that she made numerous other comments about "her tits," like, "Therese and The Boys are here."
... that they joked about "a bulge in his pants",[90] but there was "only a look" and "nothing was said," and Therese "was smiling about it."
"the sexual harassment by Steve Wright"
Similarly, when Tim Mercer was asked this question "Did you ever hear Steve *463 Wright say that anyone who teams up with Therese Scribner has an unfair advantage because of the size of her breasts?" Mercer gave this "evolving" answer: first, he flatly denied ever hearing Wright make this remark; then, he admitted that Wright had "made statements to this effect, possibly"; next, he claimed, "I can't really say I heard [Wright] say that"; but then he admitted that he "had heard such comments about her large breasts"; and once again, he "didn't recall" if he heard Wright make comments "about the plaintiff's breasts"; next, he claimed he didn't "remember the exact comments" that Wright made; and ... finally ... Mercer said, "I'm confused about the question, kind of."
Mercer and the sexual harassment policy
The lies that Tim Mercer told about the Waffle House sexual harassment policy, and his lies about whether others were present during the "sexual banter and vulgar language" between he and Therese Scribner, were just as conflicting as his other lies. After Mercer testified that "he did not recall" reporting "anybody for violation of the Waffle House sexual harassment policy," he gave this testimony:
"THE COURT: Then, you told ... both of the attorneys about the sex banter [and vulgar comments] between you and the plaintiff ... Was that a violation of any company policy?
MERCER: I mean, I have to answer again, I don't feel I mean, I don't feel like it was, but it was just that language that was used. That language was used, whether it was on the business or, you know, out at, you know, at a lunch ...
THE COURT: I want you to tell me any instance that you can think of where someone else was present when you and Therese were engaging in this sex banter ... [and making] jokes or comments about "her tits" or breasts or anything like that. ...
...
MERCER: When anybody else was around? ... I mean, it's so hard to just kind of pinpoint that to a time, you know. I want to say I mean, there were other people around. I don't know if it was bosses, hourly associates or what. It's hard to pinpoint that down. ...
...
THE COURT: So, there were or there were not other people present?
MERCER: I mean, I want to say there was, but I don't know if it was hourly or
...
THE COURT: I mean, it's your answer. If you want to, go ahead and say it. Either yes or no.
MERCER: I want to say there were other people around, yes."
the Santa's Sleigh/Polaroid "crotch shot"
Tim Mercer also lied about the disgusting incident that took place on a Winnebago being used by management employees for the annual "Santa's Sleigh" program, where Christmas gifts were delivered to the children of the restaurant hourly employees in the Dallas-Fort Worth area.
Mercer was sitting next to (or across the aisle from) Therese Scribner. He suddenly stuck his Polaroid camera between her legs, put it up under her dress, and snapped a picture of Scribner's crotch.[91] Surprisingly, Tim Mercer admitted at trial that he did "something" with a Polaroid camera involving Therese; but, he then proceeded to lie repeatedly about the incident: he really "didn't intend" to take a crotch picture, and he really just "put the camera down at her leg," not under her dress. According to his next batch of lies, Mercer claimed that "Therese didn't seem unhappy or offended or upset"; that she just grabbed his camera and said, "You nut"; that "we were all taking pictures of each other"; that "it was not disrespect because it was done in a joking manner"; and that afterwards, "we had a blast, a fun time."
The Court then reminded Tim Mercer that he had "told one of the attorneys that the incident with the Polaroid camera was not a violation of the Waffle House Sexual Harassment *464 Policy." Mercer was asked to explain this answer, and he replied:
"MERCER: It sounds real bad, I agree with that now, but it's just at the time it was just a fun it was just in fun. It was nothing. ... We were all crunched up on the couch of a Winnebago and there's not a lot of room in those. I just reached over and stuck it by her legs. I wouldn't even say the camera was between her legs. It would have taken the front part of her knees.
THE COURT: I understand what you said happened. And I'm asking you ... to explain that answer, why was it not a violation of the sexual harassment policy?
MERCER: Well, I mean, I feel like if I had heard that from somebody else, it does not sound good. But I was there and, you know, I did it. I mean, I feel like it was wrong now. It was just it was just a joke. ...
THE COURT: Now, I want you to understand what I'm asking you. I want you to tell me why that wasn't a violation of the sexual harassment policy. ... Again, do you understand the question I'm asking you?
MERCER: I mean, yes, do. I don't know how to answer it though.
THE COURT: Well, I'll tell you what I'm writing down here [in my notes] is that you think that did not violate the company sexual harassment policy because it was a joke, it wasn't serious and it was just done in a fun way and therefore, it doesn't violate the policy. Is that your answer?.
MERCER: I'm sorry, sir. I don't know how else to answer it. I mean, it doesn't sound good."
Larry Cannon, the Area Vice-President, was on this Santa's Sleigh ride and he witnessed this repulsive, demeaning conduct by Tim Mercer and he also saw Therese Scribner's anger and humiliation. Other Waffle House managers and supervisors were on the Winnebago, too. However, no one reprimanded Mercer or apologized to Therese Scribner, and no one reported Mercer's misconduct to any superior.
Mercer's interview with Grandy's
After Tim Mercer was demoted from his Division Manager position at Waffle House in December 1990, he returned to a District Manager's job in the Western Area. Sometime after this demotion, Mercer called Therese Scribner at Resource Recruiters,[92] and asked her to help him find another job. Therese arranged an interview for Mercer with Grandy's.[93] At trial, Mercer testified he did go to Grandy's and "interview for a change of position," but that he decided to stay at Waffle House. However, as was his habit, Tim Mercer told lie after lie about his interview with Grandy's, which began:
"Q. Did you ask her (the plaintiff) to find another job for you?
A. (No response at first, then ... finally) I would have to way "yes", but she (Therese) mentioned it first."
Then, Tim Mercer tried to embellish his lies: he swore (falsely) that Therese Scribner supposedly told Mercer the same Tim Mercer who had taken the Polaroid "crotch shot" of her on Santa's Sleigh that made Therese so angry and humiliated that "We're going to clean out Waffle House and you're next. I can get you a good job." And, of course, Tim Mercer proceeded to tell another string of lies:
... that it wasn't really an "interview";
... that he was "just checking out Grandy's because we (Waffle House) had "lost so many employees to them" ";
... that his Grandy's interview wasn't really for a "change of position," because he "just wanted to see what Grandy's was offering" and give this information to Waffle House.
*465 the reward for the Mercers' perjury
Before his deposition in this case was taken on February 17, 1994, Tim Mercer was contacted by Area Manager Larry Cannon (who had been the plaintiff's supervisor for a few weeks in the fall of 1989). Cannon discussed with Tim Mercer the possibility of Mercer becoming the "Managing Partner" of a Waffle House "franchise restaurant" in Colorado. Although there "were no promises" (according to Tim Mercer), Cannon told Mercer that he would "have an opportunity for the franchise store" in Colorado "if you continue to do a good job."
In this same meeting, Cannon also talked with Tim Mercer about his forthcoming deposition in the Scribner case. Following this, Mercer's deposition was taken; during it, he told numerous lies and made false and derogatory statements about Therese Scribner, including his testimony that:
... Therese made remarks about her breasts ("Therese and the boys are here");
... she told Mercer that "she couldn't run because they (her breasts) would black both of her eyes";
... she said that "when I have sex with my husband, I like it on top";
... she and Mercer would tell each other "sex based jokes"; and
... Therese told him that "she was going to nail Steve Wright's balls to the wall."
The credible trial evidence established that Tim Mercer told these lies at his deposition, just as Larry Cannon (and Waffle House) wanted. As a result, even though Mercer was at the very best a marginal employee, he and his wife were rewarded with a franchise restaurant of their own in Colorado.[94]
4. The Others Who Witnessed The Sexual Harassment Of The Plaintiff
Much of the sexual harassment of Therese Scribner by Steve Wright, Steve Oswald and Tim Mercer took place in the presence of other employees of Waffle House. For example, many of the Western Area managers (from Texas, Oklahoma, Colorado, Arizona and parts of Louisiana) were present at the Bear Creek banquet in the summer of 1987, when the "Top Operators" were receiving awards and they heard Steve Wright's "Dolly Parton" introduction of Therese.[95] In addition, other credible witnesses testified either that they heard Waffle House supervisors make sexual remarks about the plaintiff out of her presence, or that they had actually seen some of the severe and pervasive sexual harassment of Therese Scribner.
One of these witnesses was MICHAEL ROBARE, a former Unit Manager for Waffle House. When asked to give some specific examples of the sexual remarks made about Therese, Robare replied: "I mean, we can be here all day and tomorrow doing this." Then, Robare testified about incidents like these:
... Wright hung up the phone after talking to Scribner and told Robare, "I know what she really needs, she needs a man like me. Boy, I'd like to see her tits."
... Wright told Robare, "I was with her (Therese) at the last restaurant and she was looking good today. You wouldn't believe that dress she had on."
... Wright said some "embarrassing" and "very graphic" things about Scribner "and her body parts," and "it was pretty much every time [Robare] saw him ... that things like this would transpire."
... After Wright made a sexual remark to Therese in front of Robare, he later asked Wright, "Why did you say that?" Wright replied, "Oh, I say that stuff all the time. That's just Terez."
Robare's supervisors were Steve Wright and Larry Cannon (the Western Area Vice-President). He described how both Cannon and Wright constantly made sexual remarks about Therese Scribner and also about the *466 female hourly employees at the Waffle House restaurants. For example, whenever Robare hired "a real good-looking waitress," Wright would say something like, "Hey, she's awful nice. Get more like her. Nice butt. The customers will like it." Larry Cannon made similar comments about female employees, and he told Robare that Therese "needs a real man. I could give her what she needs." Although Michael Robare had been terminated by Waffle House "for having an affair with an Assistant Manager,"[96] his testimony was very, very credible!
DON KELLY was another former Unit Manager. When Kelly was first interviewed for employment by Steve Wright and Therese Scribner, Wright made his "standard comment" "Your signing bonus will be a weekend in a hotel with Therese ... in a bikini" while the plaintiff was in the rest room. Kelly gave these additional examples
... During this same interview, Kelly said "She (Scribner) is a nice lady." Wright responded "out of the blue" with this: "Yeah, she has nice breasts." When Scribner returned from the rest room, Wright asked her, "Would you like to go get in a Jacuzzi?" Kelly testified that Scribner was "shocked," and that she quickly said, "I think this interview is concluded. I have another interview and I need to go." ... On another occasion, Wright put his arm around Therese, looked down and said, "I like the view from up here ... oh, excuse me, I was just commenting on your cleavage." Scribner "was shocked"; she immediately left, telling Kelly she had "to go to another interview."
... During Kelly's training, Wright told him that Therese was "a nice lady. I like the view from the back, but it's a helleuva lot better from the front. Nice breasts." To this last remark by Steve Wright, Kelly simply replied, "I'm married. I didn't notice."
When he testified at trial about this last incident, Don Kelly explained to the Court, "How do you respond to something like that, by somebody who is a Vice-President of the company?"
Two other ex-Waffle House Unit Managers also gave very credible testimony about the sexually demeaning remarks made either to, or about, Therese Scribner in their presence. DAVID COLEMAN heard Steve Oswald make the "signing bonus/weekend with Therese" comment when Coleman was interviewed in Shreveport by Therese and Oswald. STEVE WILLIAMS said that "whenever Scribner was at his restaurant," Steve Wright and Tim Mercer made comments about her breasts, a "weekend with her" and "the things (sexual) they would like to do with her."[97]
In her chronology of some of the acts of sexual harassment,[98] Therese listed 29 persons who were witnesses to various acts of sexual harassment. These names included Dan Kelly, Hans Spies, Kyle Coleman, Steve Bryant, Vic Neeley, Mike Robare, Roy Anderson, David Adams, David Smith, Dan Williams, Rusty Workman and Dan Gay. There was trial evidence from some of these, including:
... Dan Kelly and Dan Gay (who heard the "on the rag" and "signing bonus" remarks and who were at the "Top Op" Awards banquet at Bear Creek in 1987);
... Vic Neeley (who heard the "on the rag" remark);
*467 ... Kyle Coleman (who heard the "Jacuzzi," "nice cleavage" and other "breast" comments); and
... Hans Spies and Dino Bolero (who also heard the "signing bonus/weekend with Therese" remarks).
The testimony of these ex-Waffle House employees was supported at trial by some witnesses who knew Steve Wright and Therese Scribner, even though they had never worked for Waffle House. These included:
Erma Cook, a neighbor of the Scribners and the Wrights. In the spring of 1989, Therese came by Cook's house and told her that Steve Wright had made a comment "about the size of her breasts in the presence of a number of men." Cook testified that Therese Scribner was very angry, upset and frustrated by Wright's conduct.
Margaret Dailey, who worked for Therese Scribner at Resource Recruiters, and who met Steve Wright and Larry Cannon at the Scribner's Christmas party in 1987. Although Dailey gave no specific examples of sexual comments by Wright and Cannon, she described how both of them made "crude and crass remarks, offending people they didn't even know." Dailey also testified that these inappropriate comments "made you feel like you were tending bar," and that "when the wives of Wright and Cannon tried to stop this misbehavior, they could not."
Fran Dubuisson, a neighbor of both the Scribners and the Wrights, who was later in business with Therese at Resource Recruiters (after her termination by Waffle House). At a party in front of Dubuisson's home, she was talking to Therese Scribner and Steve Wright when Wright suddenly "said something about Therese's big tits." Therese was "very upset" and snapped at Wright, "Get a life." Dubuisson also had discussions with Therese about how Steve Wright embarrassed her on many other occasions.
In addition, Fran Dubuisson supported Therese Scribner's credible testimony that she (Scribner) did not "participate in" or "welcome" the "sexual banter" by Wright, Oswald and others. Specifically:
... this was Fran Dubuisson's very credible description of Steve Wright: "He was very disrespectful toward the plaintiff and all women. He was arrogant, chauvinistic, always overstepped the boundaries."
... Dubuisson also described an incident that took place when Dubuisson was working in her yard. Steve Wright came up behind her and said, "You have a nice ass."
... Wright also tried to have discussions with Dubuisson about "the girls he met in bars on out-of-town trips," and he told her, "What my wife doesn't know won't hurt her."
5. The Waffle House Executives Who Saw The Acts of Sexual Harassment ... But Did Nothing
There were others at Waffle House including several of the company's top executives who either witnessed or participated in some of the sexual harassment of Therese Scribner by Wright, Oswald and Mercer. Not a single one of these Waffle House officers, executives and supervisors did anything about this sexual harassment. They did not stop the harassment; they did not report it to anyone; and they certainly did not sanction any of the persons responsible for this sexual harassment of Therese Scribner.
Starting at the top, Joe Rogers (President, CEO and 78% owner of Waffle House) witnessed one of the very first acts of Steve Wright's sexual harassment of Therese i.e., the incident where Wright announced to the prospective recruits at the Sheraton Hotel meeting in August 1987:
"Whoever agrees to join Waffle House will get a `sign-on bonus.' Therese will be your hostess in a hotel for a weekend, wearing a bikini."
From the obvious deference that Rogers' employees (including Steve Wright) showed to Joe Rogers the forceful person who owns and runs Waffle House it was apparent to this Court that most, if not all, of the subsequent acts of sexual harassment against *468 Therese Scribner would have never occurred if Joe Rogers had not simply ignored this repugnant conduct by Steve Wright.
Next is Lib Julian, the Senior Vice-President, Operations, of Waffle House. Julian witnessed Wright's initial acts of sexual harassment the "Therese is our Dolly Parton. The girl with the big ... smile" remark that Wright made to all of the Waffle House managers and supervisors (and others) at the "Top Op" Award banquet for the Western Area at Bear Creek in 1987. In addition, on a recruiting trip to Phoenix with Steve Wright and Therese Scribner in February 1988, Lib Julian "made a pass" at Therese in a "hotel room."[99] And, Julian was present when Wright "grabbed Therese's blouse, pulled it out, looked down at her breasts, and smirked: `It was driving me crazy to see what those were.'"[100] In December 1988, Therese Scribner complained again to Lib Julian about Steve Wright's conduct; but all that Julian said was, "Hang in there. I'll work with him."
Following Joe Rogers and Lib Julian in the Waffle House chain of command were Steve Wright, Steve Oswald, and Area Vice-President Larry Cannon.[101] Cannon was actually on the "Santa's Sleigh" ride and he saw Tim Mercer's Polaroid "crotch shot" harassment of Therese Scribner but Cannon did nothing about this disgusting conduct. Cannon also witnessed some of Steve Wright's sexual misconduct towards the plaintiff; and Cannon once told Mike Robare: "Therese needs a real man. I could give her what she wants."
Finally, as is evident from the preceding discussions of the sexual harassment by Wright, Oswald and Mercer, their repugnant conduct took place before other executives, supervisors and hourly unit employees of Waffle House for example, at functions such as the "Top Op" Award banquet, meetings of District and Division Managers, recruitment meetings in Dallas and elsewhere, out-of-town business trips, on "Santa's Sleigh," and even at numerous Waffle House restaurants in the Dallas-Fort Worth area.
Needless to say, not a single one of the other Waffle House officers and top executives Senior Executive Vice-President Lib Julian, Area Vice-President (and later Senior Vice-President) Steve Wright, Area Vice-Presidents Steve Oswald and Larry Cannon, or Division Manager Tim Mercer ever did anything about the sexual harassment of Therese Scribner that they either participated in or observed. Neither did Joe Rogers, the President, CEO and 78% owner of Waffle House.
D. Waffle House Does Not Want The Plaintiff To Quit (Dec. 1988-Jan. 1989)
In late 1988 and early 1989, Therese Scribner began to give serious consideration to quitting her recruiting job with Waffle House. Therese had become increasingly upset about a number of things including the fact that she had not received "a pro rata share of her second quarter bonus," and the fact that Steve Wright had assigned her some menial tasks (such as the preparation of his expense accounts). Therese was also distraught about the continuing, pervasive sexual harassment by Wright and others.
On December 8, 1988, at a meeting with Lib Julian (Senior Executive Vice-President, Operations), Therese told Julian about her concerns and about some of the sexual harassment of her by Steve Wright.[102] Four days later, on December 12, 1988, Therese documented part of their discussions in a *469 memo to Lib Julian confirming that, as Julian had told her, she:
(i) was "to discontinue doing Steve Wright's expense reports,"
(ii) should "have received a pro rata portion of [her] 2nd quarter bonus," and
(iii) was to become, in Julian's words, a "defender of the people" in the Western Area.[103]
Her memo to Julian ended, "I sincerely hope that you will help me have more impact in this area so I can do what I am best at doing hiring and recruiting people."
Although this memo does not mention her sexual harassment by Steve Wright, the Court specifically credits the testimony of Therese Scribner that she did tell Lib Julian about some (but not the specifics) of Wright's sexual misconduct towards her. Therese also testified that "once I told Lib Julian about some of the sexual harassment on December 12, 1988, I was hoping that maybe that part of it would disappear." She added that, after her complaints to Lib Julian, Wright's conduct "did get better for a while," but then the sexual harassment "started again."
Therese Scribner sent Steve Wright a copy of her December 12, 1988 memo to Lib Julian, along with her handwritten note to Wright (Exh. 18) in which she discussed a number of "areas of concern that I have made you aware of," including problems of six different Unit Managers and their need for a "training manager." This memo then listed five items which Therese had "submitted or requested," but as to which she had never received any response from Wright.[104] In this memo to Wright, Therese states:
"Steve, I disagree with your statement that `I need to have more trust and belief in the district managers, division managers and you.' It is not a lack of trust or faith, but a lack of reaction on the part of management in this market. ... My biggest frustration is the lack of concern that is shown when a situation occurs [with a Unit Manager], regardless of whether we feel it is important to us it is important to that individual, and the react time to handle it. We cannot continue to ignore things and hope they go away. We cannot continue to talk about taking care of people and not show it. ... I will not bore you with what I think we should do you've already heard it."
Steve Wright was furious when he received his copy of Therese's memo to Lib Julian. Wright was upset that she had made these complaints directly to Lib Julian (particularly her complaint "about doing Wright's expense accounts"). This resulted, in turn, with Therese Scribner's December 21, 1988 meeting with Lib Julian and with her January 18, 1989 meeting with Steve Wright and John Robertson, Vice-President, Operations Control.[105]
At the January 18 meeting, both Wright and Robertson told Therese Scribner that they wanted her to stay with Waffle House. She promised "to think about it," and give them an answer in two days. Therese's decision to stay with Waffle House came in her January 20, 1989 typewritten memo to Steve Wright, which begins: "As I indicated on Wednesday, January 18, I told you and John (Robertson) I would arrive at a decision today. After a lot of thought, I have decided to stay with high expectations of improvement" in six designated areas including "consistent emphasis placed on retention and recruiting," "increased sensitivity to individuals and their needs," and "mutual respect and loyalty."
When she made this decision, Therese Scribner had no way of knowing that she would be terminated about one year later on the pretense that she had never been a satisfactory recruiter for Waffle House even though Julian, Wright and Robertson had persuaded her not to quit in December 1988 and January 1989.
*470 E. The Plaintiff Again Complains About The Sexual Harassment And, As The Result, She Is Terminated
As discussed above, Therese Scribner had repeatedly and bitterly complained to Steve Wright, Steve Oswald, Tim Mercer and others about the pervasive, demeaning sexual harassment. Indeed, some of this misconduct had been witnessed by the top officers and executives of Waffle House, including the President, CEO and 78% owner (Joe Rogers), the Senior Vice-President of Operations (Lib Julian), Area Vice-President (Larry Cannon), and others. In addition:
(i) in January 1989, Therese Scribner told John Robertson, Vice-President, Operations Control who was her co-supervisor with Wright for a short period about the constant sexual harassment she received from Steve Wright. Robertson never did anything about the plaintiff's complaint.
(ii) in late 1989, Therese complained to Larry Cannon about the sexual harassment by Steve Oswald.[106] When asked what he did about this complaint, Cannon lied claiming that Scribner had never made such a complaint to him.[107]
However, the next complaints that Therese Scribner made about this sexual harassment the ones to Donald "Skip" Nau in October and November 1989 were destined to be her final ones as an employee of Waffle House.
(1) The Plaintiff's Complaints To Skip Nau
On October 1, 1989, Skip Nau became the head of the newly created "People Department" of Waffle House. All recruiting was placed under this department, and Nau became Therese Scribner's supervisor. Skip Nau made a "fact finding" visit to Dallas from October 24-26, 1989 for meetings with Therese Scribner, Steve Oswald and others. During their meeting, Therese gave Nau a copy of her handwritten notes concerning some of the problems she had experienced during her employment at Waffle House.
In these notes (Exhibit 165), Therese first listed problems with her salary and bonuses, including the fact that her starting salary was $10,000 less than that of Rick Seal, the male recruiter she had replaced. Her notes also mentions some of the sexually harassing conduct of Steve Wright and Steve Oswald (and the names of some witnesses) including (i) the "Dolly Parton/big smile" comment Wright made at the Bear Creek "Top Op" awards (Neely and Gay were there), (ii) the December 1988 blouse incident with Wright (in the presence of Lib Julian), (iii) Wright's "on the rag" comment (Neely was present, and objected), (iv) Wright's June 1989 comment about "jumping my bones" (other supervisors were there), and (v) Oswald's "signing bonus/weekend with Therese" statements to recruits (witnessed by Skip Nau, David Smith, Don Kelly, Kyle Coleman and others).
(2) The "Bottom Line" On The Plaintiff
Following his meetings with Therese Scribner, Skip Nau prepared a report his handwritten memo of October 26, 1989 to Joe Rogers (President, CEO and 78% owner) and Robert Bowman (Executive Vice-President) in which Nau emphasized the need for Waffle House to keep Therese Scribner as a recruiter, and in which he told these two top executives about the sexual harassment by Steve Wright. This Skip Nau memo (Exhibit 24) reads, in part:
Terez Scribner Dallas 10/26
The bottom line on Terez is that we need to keep her
She has great people skills, is well thought of by the hourly and unit mgrs. Visited enough units to verify this. Great attitude. Knowledgeable about hrly and unit training. Very assertive. Bright and articulate She can be a player with the proper leadership and direction.
Terez has gone through a difficult time in Dallas particularly with Steve Wright. *471 (This is not news Lib & John and prob. you two are well aware of this) I've read the memos in a nut shell, the problems resulted from a lack of direction, a lack of leadership, and a lack of respect shown toward her. Frequent jesting about "Dolly Parton," Dist. & Div. Mgr. Awards for the most recruits being `a weekend with Terez' and statements like `you don't understand, you're not an operator' were made at Division/Dist. Mgr. Meetings in Terez's presence. ... I realize that there are two sides here but with the personalities being what they are logical conclusions can easily be drawn.
This October 26, 1989 Skip Nau memo to Rogers and Bowman also contains these remarks about Steve Oswald:
Oswald's problem was not w/Terez (I spent six hours talking and brainstorming with him talking people and culture, et al.) He thinks she's [Therese] great w/lots of potential. His problem in essence was her $40,000 salary hitting his P/L (profit & loss). He said `I can recruit 8 people a Qtr. in Dallas so why do I need Terez.' I told him I thought his thinking was shortsighted in view of her potential and the kind of impact we were trying to make in Dallas. ...[108]
Skip Nau concluded his fateful October 26, 1989 memo with his "prospective plan for Terez", including:
1. Speak by phone every week to get updated on status of trainees, terminations, new candidates, shift mgrs., etc. update the pipeline.
...
2. She will provide me with her two week itinerary which we'll update every week.
3. Need to revise her current bonus structure from $31,000 + $10,000 (2500/quarter) to 25,000 + 16,000 (up to 24,000 for [excellence] and have it more performance driven).
...
Terez is motivated and capable all she needs is leadership and direction I can provide that.
Let's all agree on the agenda and I will implement it both to the operators and to Terez.
One month later, November 21-23, 1989, Skip Nau had more meetings in Dallas with Therese Scribner, Steve Wright and Larry Cannon. As recorded in her chronology,[109] there were discussions about Therese's bonus and her "work on holidays." Nau also told Therese that "he had written a memo to Joe Rogers" and that he had made "Rogers aware of the sexual misconduct against her" by Steve Wright.[110]
Accordingly, at the end of November 1989, Therese Scribner in Skip Nau's own words had "great people skills" and a "great attitude," she was "knowledgeable" and "very assertive," she was "bright and articulate," she should receive an increase in earning potential of 20% (from $41,000 to $49,000), and "the bottom line on Terez" was that Waffle House needed to keep her as a recruiter. However, despite Skip Nau's glowing assessments of Therese Scribner, Nau had also reported her complaints of sexual harassment to Joe Rogers and within four months after her complaints to Nau, Therese Scribner would be terminated from her Waffle House position by Skip Nau (at the direction of Joe Rogers).
(3) The Sexual Harassment Continues
Even after her complaints to Skip Nau, the sexual harassment of Therese Scribner by Steve Oswald continued. In her chronology,[111] Therese recorded these additional incidents:
*472
11/89 complained to lc (Larry Cannon) about
Steve Oswald sexual harassment - per
Maggie
12/19/89 Oswald ran hand up my thigh - liked my elf
stockings - Santa's Sleigh
1/90 Oswald making sexual comments all the
time - tickling me `accidentally' - bumping
into me - makes comments in front of everyone
1/20/90 bookends comment at banquet - his date
and myself - referring to size of breasts
2/1/90 tickled me - comments about breast size
3/1 terminated
(4) The Waffle House President, The Executive Committee Meeting And Lib Julian's Supposed "Investigation"
The Executive Committee of Waffle House was composed of Joe Rogers (President, CEO and 78% owner), Lib Julian (Senior Vice-President, Operations), Robert Bowman (Executive Vice-President) and J. Michael McCarthy (Executive Vice-President, Chief Financial Officer).
At an Executive Committee meeting in late October or early November of 1989, these four officers discussed Skip Nau's October 26, 1989 memo and the reported "frequent jesting" by Steve Wright about "Dolly Parton," the "weekend with Terez" comments, etc. This was Lib Julian's description of what happened at the meeting:
It started with Joe (Rogers) saying that Skip had come back from Dallas and having a meeting with Terez and that there had been certain allegations made by Terez toward Steve Wright. And Skip feels like Terez is really capable of performing the job functions of a recruiter now that he's in town and can provide that direction. And that we needed to get in touch with Steve and have him to review (the) contents of Skip's message that he had written to Joe and to Bob Bowman.
Skip Nau was summoned to the Executive Committee Meeting. Joe Rogers was "very upset" at Nau, and told him, "You have no facts. You dress up conclusions without any facts."[112] Then, Steve Wright was brought into the meeting and his denials of any misconduct were described by Lib Julian:
"A. (Steve Wright) was given a copy of the notes that Mr. Nau had made, to read and asked to respond to the notes, and also, you know, did he agree or disagree with Mr. Nau's notes that he had made.
Q. And he denied
A. He denied the sexual allegations part of it. He didn't necessarily deny the lack of leadership or lack of direction that had been given to Terez from him because he and I had discussed that on more than one occasion. This was not new news to him. ... Basically he said that's Skip's interpretation. He's new in town. He doesn't know all that has gone on ..."
Joe Rogers ended this portion of the Executive Committee meeting by designating Julian to "get with Steve Wright and find out what's going on." Julian's purported investigation consisted of a 15-20 minute discussion with Steve Wright that same afternoon. According to Julian, he told Wright that:
"A. ... these are serious allegations. I'm aware of the lack of leadership and direction, but if these allegations are true you get in touch with Steve Oswald and you get these fixed now. As far as the sexual innuendoes or sexual harassment allegations ...
Q. Why did you make the comment about Steve Oswald?
A. Because it was Steve Oswald's name was in there in direct relation to saying that Terez would spend a weekend with a contest winner. And Steve Oswald worked for Steve Wright."[113]
The brief discussion between Lib Julian and Steve Wright ended with Julian telling Wright "to report back to him after he had talked" with Therese Scribner.
*473 That night, Steve Wright did telephone Therese at her home. Wright was livid! He demanded to know "what she had told Skip Nau." And, he threatened Therese, "This will not advance your career. We'll talk about it later." Scribner testified that she "was not too worried" about this threatening call from Steve Wright because she "thought that Skip Nau was a decent guy."
In his so-called investigation, Lib Julian never contacted Therese Scribner (and neither did any other Waffle House officer). Instead, Julian called Wright after a few days, and then reported back to Joe Rogers.
"A. ... it was a few days later I asked (Steve Wright) had he talked with Terez and he said, yes, and Terez said Skip's a damn liar.[114]
Q. Did you talk with the plaintiff about this?
A. No, sir. In fact, I don't recall seeing much of Terez after Skip took over the People Department.
Q. Did you report back to Mr. Rogers?
A. I told Mr. Rogers what Steve had said, that he denied the sexual harassment allegations or sexual innuendos. ... My report to Joe was simply that Steve still denied that he had done anything wrong and that Terez had claimed that Skip was lying about what he had put in his memo.
Q. And that was the report?
A. That was the extent of it, yes, sir."
This, then, was the full extent of Lib Julian's purported "investigation" of the plaintiff's sexual harassment complaints against Steve Wright: a 15-20 minute discussion with Wright on the day of the Executive Committee meeting, and an even shorter conversation with Steve Wright "a few days after" Wright's call to Scribner.
(5) The So-Called "Investigation" By Joe Rogers
After the Executive Committee meeting, Joe Rogers did meet privately with Steve Wright, and asked him about the "Dolly Parton" joke. Wright admitted that he did make both that remark and the "signing bonus/weekend with Therese in a bikini" statement. Wright also told Rogers that Steve Oswald had said these same two things to Therese Scribner.
However, the only thing that Joe Rogers did after this conversation was to "counsel" Wright[115]"not to do things like that again." Neither Wright nor Oswald were sanctioned in any way. Indeed, no one even talked to Oswald about the sexual harassment complaints before Therese Scribner was terminated. And, the only "explanation" ever given for the fact that Joe Rogers never contacted Therese Scribner in his supposed "investigation" was made by his attorneys in a post-trial pleading:
Based on his discussions with Wright, Julian and Cannon (among others), Rogers concluded that Scribner participated in sex-based banter, had initiated the remarks regarding Dolly Parton and that the other alleged remarks were apparently not made by Wright. Wright was, however, counseled by Rogers and Julian that such jesting would not be condoned by the Company.
(6) Skip Nau Saves His Waffle House Career By Terminating The Plaintiff
After Skip Nau was blistered by Joe Rogers at the Executive Committee meeting "You have no facts" about Wright's mistreatment of the plaintiff, "You dress up conclusions without any facts" Nau began backtracking, very quickly. As described by Lib Julian:
"... Skip kept saying, Terez said this is no problem, you know, let's get on with the business of recruiting and retention, this is no problem (referring to the sexual harassment allegations), and that she was ready to go to work and he said, I can you know, I can manage Terez."
*474 On January 24, 1990, Skip Nau returned to Dallas. This time, as Therese Scribner testified, Nau "was not as warm, and his attitude had changed." This worried Therese and she asked Nau for a copy of his October 26, 1989 memo to Joe Rogers and Robert Bowman. Nau lied to Therese, telling her that he did not have a copy. When she later asked for a copy, Nau again lied, "I can't get my hands on it." Therese began to think that Nau really didn't want to give her a copy of the memo (and she would not see it until after this memo was finally produced by Waffle House in this litigation).
Skip Nau was not about to stand up to Joe Rogers, or even to Steve Wright. Instead, Nau quickly began to distance himself from the favorable review he gave Therese Scribner in the October 26, 1989 memo. In February 1990, "Joe Rogers, Jr. and Skip Nau met and discussed" the recruiting efforts of Therese Scribner. After they reviewed her "continuing poor results and failure to follow Nau's directions, Nau conceded [to Rogers] that Scribner was not meeting his expectations as a recruiter."[116] And, realizing what was going to happen to the plaintiff, Skip Nau even asked Rogers if he (Nau) "could make the decision to terminate her."
Nau returned to Dallas on March 1, 1990. Nau testified that it was "probably in mid-February" that "he made the decision to terminate Therese Scribner." Later, Nau "clarified" this testimony by explaining that "Joe Rogers let me make this decision."[117]
At this last meeting (March 1, 1990) between the plaintiff and Skip Nau, Therese gave Nau an article about sexual harassment and also told him about another Oswald incident, the "matching bookends" comment.[118] Skip Nau told Therese "You are a good recruiter" and "you have accomplished so many things"; then, Nau "began apologizing" to her. Concerned by this, Therese finally asked, "Skip, are you firing me?" Nau's only answer was something like, "I don't want to put it that way. We're just going to do something different." This final meeting ended with the plaintiff's termination but Nau did not give Therese any reasons for her abrupt discharge.
Despite this, by letter dated March 6, 1990, Skip Nau wrote Therese Scribner claiming that he was documenting "the reasons behind your recent termination from Waffle House." That letter states these additional lies:
You have been terminated because we have not been satisfied with the level and quality of the recruiting effort nor the recruiting results over the last 3-1/2 years, and more particularly, over the last 5 months. While your administrative skills have been adequate, your recruiting results have been unsatisfactory.
These supposed "reasons" for termination had not been discussed with Therese in Nau's final meeting with her (March 1, 1990). And, Therese Scribner replied to Nau by letter dated March 13, 1990:
Dear Skip:
I do not agree with my termination for the following reasons:
1. My performance and contributions have been excellent.
2. I have never received a negative review or reprimand.
3. I consistently received an increase in salary.
4. I received an award for recognition of excellence.
5. No one ever indicated to me there was a problem with my performance.
I don't want to be terminated and would like to continue in my present position.
At trial, Skip Nau was given every opportunity first by the plaintiffs' attorney, then *475 by this Court to state each of the reasons for "his termination" of Therese Scribner. This is an accurate summary of the only so-called "reasons" that Nau could give:
Therese was not doing a good job recruiting. The retention rate of her recruits were inadequate. She did not follow directions very well. She was not providing the leadership (we) wanted. She was not professional because she used slang. She was not part of the team.[119]
When questioned about each of the nebulous "reasons" he gave for terminating Therese Scribner, Nau admitted that he never wrote a memorandum to the plaintiff (or anyone else) "listing her defects" and that he did not write a "termination memo" stating the reasons for her discharge. Then Skip Nau lied again, claiming that although there was nothing in writing, "he had talked to Therese about these problems" on three trips to Dallas (November 21, 1989 and January 2 and 10, 1990).[120] Nor did Skip Nau ever write a memo retracting any of the glowing statements he made about Therese Scribner in his October 26, 1989 memo to Joe Rogers and Robert Bowman:
... she has great people skills;
... she is well thought of by hourly and unit employees;
... she has a great attitude;
... she is knowledgeable about hourly and unit employees;
... she is very assertive, bright and articulate; and
... she can be a player with the proper leadership.[121]
F. The Fabricated "Reasons" Concocted To "Justify" The Plaintiff's Termination
In their deposition and trial testimony, the Waffle House witnesses gave three supposed "reasons" for the termination of Therese Scribner. They were:
i) that the plaintiff was a poor, if not lousy employee during her entire three and one-half years with Waffle House;
ii) that she was a tramp, a "loose woman" who actually invited, initiated and participated in the gross and repugnant sexual misconduct discussed above; and
iii) that she was lying about Steve Oswald, Steve Wright, and Tim Mercer (and the others discussed above) because no Waffle House executives, certainly not these three stellar employees, had ever violated the Waffle House sexual harassment policy with respect to Therese Scribner (or any other female employee).
Each one of the purported "justifications" for the plaintiff's discharge is false. The first, her supposed poor performance as a recruiter, was the sole reason belatedly given to Therese Scribner by Skip Nau, in his letter of March 6, 1990 which stated only, "You have been terminated because we have not been satisfied with the level and quality" of your recruiting effort nor your recruiting results. In addition, each one of the three fictitious "reasons" for the plaintiff's discharge (i) are "supported" only by lies told by Wright, Oswald, Mercer and others, and (ii) are, without question, shown to be baseless by the credible witnesses discussed below. Each of these three blatant lies will be addressed separately.
1. LIE NUMBER ONE: Waffle House Terminated The Plaintiff Because Of Her Poor Performance
Therese Scribner was an excellent employee for Waffle House: she never received any *476 negative reviews from her supervisors.[122] Her only written performance review (that by Larry Cannon) was very favorable with Therese receiving "high marks" for her recruiting methods. She consistently received pay increases. She normally met, or came close to meeting, each hiring quota. And, she received one Waffle House award for excellence and another for outstanding achievement.
The credible witnesses who testified that Scribner "was an excellent, concerned employee" included these former Waffle House Unit Managers and employees: David Coleman (Therese was professional, concerned, never dressed inappropriately); Michael Robare (she had a very good interview style, dressed professionally); Dave Smith (she did a good job, very professional, dressed professionally); Joe Thomas (she was professional, dressed in business attire); and Steve Williams (she was very competent, an outstanding recruiter). In contrast, Waffle House relying primarily upon the lies of Steve Wright, Steve Oswald, Tim Mercer, Larry Cannon, Skip Nau and Lib Julian tried, unsuccessfully, to convince this Court that Scribner was fired because of her poor performance (and because of some other nebulous reasons which they could not explain).
(a) Plaintiff's recruiting and her retention rate
Waffle House's primary attack on Therese Scribner's performance centered on two assertions: first, that she did not recruit viable candidates who were qualified for advancement from the Unit Manager level (1 restaurant) to the District (2-4 restaurants) and Division Manager (12-15 restaurants) positions; and second, that the "retention rate" of the managers she did recruit were totally unsatisfactory during her entire 3-1/2 years as a recruiter with Waffle House.
With respect to the first assertion, the credible evidence clearly established that the only "authority" Therese Scribner had as a recruiter was to "find and screen applicants" and bring them to the attention of management. She had no authority to hire or fire anyone. Indeed, the hiring and firing decisions were made exclusively by her supervisors, the Division and the Area Managers[123] who conducted their own interviews with the candidates Therese brought to them, and who had the sole authority to hire new employees. And, Waffle House had no satisfactory explanation as to why the plaintiff's supervisors continued to hire supposedly "inferior applicants" recruited by her or why Therese should be fired for the hiring "mistakes" made by the Division and Area Managers.[124]
Indeed, although Skip Nau made the absurd claim that "at least one-half of Scribner's problems were recruiting," he admitted that:
... the plaintiff's authority as a recruiter was limited;
... she only had "screening" duties, and had no authority to hire or fire; and
... she had no authority to influence or improve the operations and working conditions at the Waffle House restaurants.
In addition, the overwhelming credible evidence established that the "lack of retention" i.e., the high turnover rate for Unit Managers (1 restaurant) was due (i) to the long existing working conditions for Unit Managers, that were beyond the plaintiff's control or authority, and (ii) not to the quality of the candidates she recruited. Specifically, *477 this incredibly large turnover resulted from:
i) the harsh working conditions for Unit Managers i.e., excessive hours, poor (if any) support from management, excessive turnover of hourly employees, mishandled pay issues, and the lack of day-to-day direction from District and Division Managers.[125]
ii) the severe management problems in the Dallas-Fort Worth area i.e., three of the Division Managers during Scribner's 3-1/2 years with Waffle House were demoted for incompetence and for misconduct after Scribner's termination; and three of her other supervisors in the Western Area (Tim Mercer, Terry Dill and David Adams) were all disciplined and demoted.
iii) the turnover rate even under the best of circumstances, the rate for turnover of Unit Managers was 1.6 managers per unit per year. This meant that, within 21 months from the date of hire, there would be almost a 100% turnover of Unit Managers irrespective of who recruited the applicant. Indeed, of the 64 persons hired by Waffle House in the Dallas-Fort Worth area during the three year period from 1988-1990, all but one had left Waffle House before the trial in this case.
iv) the lack of improvement if Scribner's incompetence as a recruiter did have some adverse effect on the retention rate, one would expect an improvement after her termination. However, by the time of trial the "long-term" retention rate (i.e., 21 months) had not improved to any measurable degree despite the discharge of Scribner four years earlier.
These long-existing miserable working conditions were simply the accepted way of life (by management) for Unit Managers at Waffle House. Most of the people recruited just could not continue because of the demands on them and on their families, so they quit. The very small number who did "survive" were rewarded with rapid promotion and probably more money than they could have made with any other employer.
It was clearly established that Therese Scribner had no authority to control or change these conditions that were causing the high turnover; that she was certainly less able to improve these working conditions than her supervisors (Steve Wright, Steve Oswald, etc.); but that these supervisors received promotions and substantial pay increases while Therese Scribner was terminated shortly after she had complained about their sexual harassment of her.
Finally, not one of Therese Scribner's supervisors ever told her that they were dissatisfied with the quality of her recruits.[126] No one ever told Therese, "Your recruits are no good."[127] And, the Waffle House witnesses could not even say "what was wrong with the plaintiff's recruits." For example, David Adams, who testified that he hired "probably 5-10 of the people brought to him" by Therese Scribner, was asked, "What were the problems with them?"; and he could only respond:
"I don't recall ... I just couldn't be specific about their faults ... too many came from employment agencies ...,"
but Adams did not "recall if he told the plaintiff this," or if he told her that he was "dissatisfied with her performance."
(b) Other supposed "reasons" for the termination
Waffle House witnesses also lied about some other purported "reasons" for Therese Scribner's termination. Some of these border *478 on the ridiculous such as the claims that Therese Scribner was fired because she "was involved in too much soap opera and nursemaiding of unit employees," that she did not "follow instructions," and that she did not timely submit reports. Again, Therese Scribner was never warned or sanctioned about any of these things, and Skip Nau did not list any of them as the basis for "his" termination of Scribner.
The Waffle House witnesses made two other frivolous contentions: that Scribner was not willing "to get behind the counter" at the restaurants "to perform the duties of the people" she was recruiting; and that she refused to work on the Thanksgiving, Christmas and New Years holidays like other Waffle House employees. Both of these complaints are false. Therese did help out in the restaurants[128] as evidenced by the excellent rapport she had with the Unit Managers. And, as she documented in her calendar, Skip Nau actually gave Therese a reprieve from working on her last Thanksgiving and Christmas holidays; although she did not work on New Years Day of 1990, this was because the Unit Manager had asked her to work on New Years Eve, instead.[129]
2. LIE NUMBER TWO: That's Why The Lady Is A Tramp
The evidence presented by the credible witnesses established that Therese Scribner was very professional, that she always dressed appropriately in business attire at work, that she did not wear "tight or clinging" clothes, that she did not tell "sexual or dirty jokes," that she never made comments or jokes about her breasts, and that she did not "make sexual comments" or "talk freely about sex."[130]
The plaintiff and other witnesses truthfully testified that she did use slang frequently (such as "honey, baby, sweetie"); that she did cuss on occasion, that she would occasionally "hug employees or pat them on the shoulder"; and that she did engage in "girl talk" or use profanity (e.g., the word "fuck") with some of her close female friends.
Contrary to the testimony of Therese Scribner and her credible witnesses, some who testified at trial mostly Waffle House executives or supervisors (and three of their wives) repeatedly:
i) lied about Therese Scribner's supposed lack of professionalism she was "vulgar and flirtatious" (Steve and Mary Wright), she discussed oral sex with Dave Smith (Rick Browning), she cut in to dance with Steve Wright (Delinda Perez);
ii) lied about the plaintiff's dress and appearance she wore a halter-top and short shorts when we first went to dinner (Steve Wright), she wore "clinging, low-cut clothes" (Olene Mae Browning), she was showing her cleavage in the yard (Ms. Mallory);[131]
iii) lied about Therese telling dirty jokes and using profanity she told dirty jokes (Sherry Mercer), she asked me to tell dirty jokes over and over (Steve Oswald), she used vulgar language (like "goddamn") a lot when the woman's group would go out and when we talked *479 on the phone (Kathy Thornton), she cussed and was vulgar (Delinda Perez);
iv) lied about Scribner making jokes about her breasts "the first time I met Therese," she said "see my tits" (Kathy Thornton), she joked with males about her breasts (David Adams, Sherry Mercer), she made jokes about how big "her tits" were (Tim Mercer, Lisa Mercer, Kathy Thornton),[132] she told and invited "the Dolly Parton" jokes (Steve Wright), she said things like "Therese and the Boys are here" and "if I jogged, I'd black both of my eyes" (Tim Mercer), she fondled her breasts in front of Steve Wright (2-3 of the same witnesses), and she intentionally brushed her breasts against Steve Wright (Delinda Perez); and
v) lied about the plaintiff talking about sex she said my husband is so fat that I have to let him be on top all the time (David Adams),[133] she said "I like sex like anyone else, getting head, giving head (Rick Browning).
Although most of these liars were executives, supervisors or employees of Waffle House, not a single one of them ever told Therese Scribner that her conduct was not appropriate and not a one reported this supposed misconduct to higher management. And, it was apparent to the Court, that some of these witnesses were lying either to protect their jobs (or those of their husbands), or like Tim Mercer to obtain benefits (a franchise restaurant) from Waffle House.[134] Accordingly, the Court discredits the testimony of these Waffle House witnesses.
3. LIE NUMBER THREE: No One Has Ever Violated Our Sexual Harassment Policy
The conduct by Steve Wright, Steve Oswald, Tim Mercer and others discussed above and their sexual harassment of Therese Scribner clearly violated the Waffle House sexual harassment policy; and, so did the failure of the officers and executives who witnessed some act of harassment, but did not report this harassment or take some action to stop it.
This sexual harassment policy[135] distributed by Steve Wright to all Western Area employees in August 1989, provides:
Management employees of Waffle House, Inc., are responsible for maintaining a work environment that is free of any form of illegal discrimination and employee harassment, including sexual harassment. Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964. Waffle House complies with all Equal Employment opportunity laws and guidelines and will not tolerate violations of the law on the part of its managers.
Sexual Harassment is defined to include unwelcomed sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when such conduct is made explicitly or implicitly for employment decisions, or has the purpose or effect of interfering with work performance or creating an otherwise hostile or offensive working enviroment (sic).
The Waffle House policy also states that an "investigation of all complaints will be undertaken immediately. Any action by a supervisor, agent, or other employee that constitutes harassment, including sexual harassment, will result in immediate disciplinary action up to and including termination."
Although this language in clear, the Waffle House witnesses could not agree about it: some testified that "sexual jokes and comments" *480 made to female employees (e.g., the size of Therese Scribner's breasts, the "weekend with Therese in a bikini" comment) would violate the sexual harassment policy. However, other top executives claimed that such "sexual banter" would not be in violation of the policy unless it was really unwelcome by the female employee. The Waffle House witnesses also disagreed with each other as to whether or not the sexual harassment policy condemned such on-the-job "sexual jokes and comments" made about females out of their presence.
Steve Wright, the first executive to harass Therese Scribner, gave this testimony in response to questions by the Court:
"Q. If you had a couple of employees, male employees, not in the presence of a female who were making jokes, sexual jokes, about one of the female employees, would that violate this (sexual harassment) policy?
A. Yes, it would."
David Smith also testified that "Oswald's comments would violate anyone's sexual harassment policy."
Steve Oswald, the second harasser, disagreed; he testified that there was nothing wrong with on-the-job "guy talk" among supervisors about the plaintiff, her breasts, her sex life, etc.:
"Q. When you were talking about Therese Scribner and referring to her breasts as "tits," with these other guys ... in your mind set, was that something that was okay to do?
A. We always talk about other people, but that was not okay to do.
...
Q. What did you do it for then?
A. Like I said, I was just talking to guys. It wasn't around Terez, wasn't around any hourly associates. Just guy talk.
Q. You're ... now telling the Judge, these are senior people you're talking to, District and Division Managers, talking about ... "she's got good tits."
A. Like I said, it was said it was said one time and that is it.
Q. Just one time?
A. I'm not sure."
Joe Rogers, the Waffle House President, CEO and 78% owner, also disagreed with Steve Wright about the sexual harassment policy. According to his testimony, unless the conduct involves some "unwelcomed" conduct whether sexual advances, requests for sexual favors, or other verbal or physical conduct there is simply no violation.
"Q. (Court refers Rogers to Exh. 167, the Scribner list of some of the sexually demeaning conduct by Steve Oswald)
Let's assume that somebody referred to a female employee as "Little Ms. Big Tits" and if you would tell me, in the context of that, what you mean by "sincerely unwelcomed" and in what context that would be okay or not.
Rogers: If two people, even if it were against our policy, had a personal relationship with each other and that got said between them or frankly anything else on that list, to me that's their business.
Court: I'm sorry?
Rogers: If they had a personal relationship that was sexual or indulged in sexual jokes and they had that mutual pattern of behavior between them, then I would not consider that sincerely unwelcomed if that spilled over and somebody else heard it ..."
According to this incredible testimony of the top executive of Waffle House,[136] the company's rather remarkable sexual harassment policy does not prevent a male supervisor from making sexual comments to a female subordinate even in the presence of others at offices or restaurants of Waffle House such as asking if she "wanted to sit on his face," or if she "had even been eaten *481 by a man with ice in his mouth," of if "Mississippi women were good fucks and sucks," etc.
After this testimony, the Court asked Rogers if he realized that his "personal relationship" interpretation of the sexual harassment policy was asking "for a swearing match" between the male supervisors and a female employee just "like we're having here" in this case. Joe Rogers answered "Yes," and this was followed by:
"Courts: I cannot believe you wouldn't be concerned that remarks like that would be made in the work place under any circumstances ... because of the danger that you might be sitting up here testifying under oath and be in court two or three weeks when I'm sure you would rather be some other place.
Rogers: I certainly would. But I'm trying also to distinguish between someone having a purely personal relationship and I'm not going to condemn them for that if nobody else heard it...."
In view of this interpretation of the Waffle House sexual harassment policy by the top officer and majority owner of Waffle House, it became apparent to this Court why neither the officers, executives or supervisors who witnessed the sexual harassment of Therese Scribner ever reported it and why the ones who participated in that harassment were never reprimanded or sanctioned for their misconduct.
G. After The Plaintiff's Termination
During the period immediately following Waffle House's abrupt termination of Therese Scribner, (1) Waffle House hired a male employee to replace the plaintiff as the Western Area recruiter, (2) Scribner filed charges of sexual harassment/retaliatory discharge against Waffle House with the Texas Commission on Human Rights ("TCHR"), and (3) Scribner started her own personnel recruiting business.
1. The Higher Paid Male Replacement
On April 3, 1990, Waffle House hired a male, Paul Smith, to replace Therese Scribner as the recruiter for the Western Area. Despite the fact that Paul Smith had no prior recruiting experience, his starting salary was $30,000 a year i.e., $2,000 more than the plaintiff's starting base salary when she was hired on July 29, 1986.
However, after only two months, Smith's yearly compensation was increased to $49,260 i.e., $21,000 in salary plus a potential $24,000 performance bonus and a $4,260 car allowance. This was $4,355 a year more than Therese Scribner had been making on March 1, 1990, when she was terminated and it was $13,260 a year more than her beginning compensation on July 29, 1986.
Waffle House makes the baseless claim that Paul Smith was paid more money as a recruiter than Therese Scribner "because his responsibilities were a little different." This is not supported by any credible evidence. In fact, Smith was paid more by Waffle House than Therese Scribner had ever received for one simple reason: Paul Smith was a male recruiter just like the plaintiff's predecessor, Rick Seal, was paid more than she received because Seal was "the bread winner" and because, according to Steve Wright, Therese just "didn't need to make as much as a man."
Paul Smith lasted less than eight months as a Waffle House recruiter, and he "resigned" just before Waffle House could fire him for incompetence.
2. The Plaintiff's Complaints To The TCHR Result In More Lies By Waffle House
On May 3, 1990, two months after her termination, Therese Scribner filed charges of discrimination against Waffle House with the Texas Commission On Human Rights ("TCHR"). In her complaint, Scribner swore under oath that she had been denied equal compensation by Waffle House and that she had been "sexually harassed by two male supervisors, Mr. Steve Wright, from the fall of 1986 through the fall of 1989; and, Mr. Steve Oswald, from the summer of 1989 through February, 1990." Scribner's TCHR charges give these details concerning the sexual harassment:
1) I was treated differently than male Corporate Recruiters in that two individuals, Steve Wright, and Steve Oswald, made sexually suggestive statements *482 concerning my breasts, and sexually derogatory statements in front of potential clients. Additionally, Mr. Steve Wright made sexually unwanted touching by pulling at my blouse; and Mr. Steve Oswald made sexually unwanted touching by tickling me under my arms and near my breasts.
2) In October, 1989, I threatened to report Mr. Steve Oswald's derogatory statements to Respondent's Area Vice-President, Mr. Larry Cannon; and the Equal Employment Opportunity Commission.
3) In November, 1989, I spoke with Larry Cannon about Mr. Oswald's sexually harassing behavior.
4) Mr. Skip Nau, Vice-President of People, was made aware of the sexual harassment, even witnessing some of these individuals' comments.
5) In November, 1989, I was informed by Skip Nau that he had written a memo to Joe Rogers, Jr., about Steve Wright's sexually harassing comments. Steve Wright told me later that day that no action was taken against him.
6) I have requested a copy of Skip Nau's memo to Joe Rogers, Jr., on several occasions but the company has refused to give me one.
7) On March 1, 1990, Mr. Skip Nau terminated me.
As discussed above (in Section III C), each one of these charges and statement concerning the plaintiff's complaints to Larry Cannon and Skip Nau were true, and they were clearly established by the credible evidence at trial.
The Waffle House response to the plaintiff's TCHR charges was prepared by J. Michael Upton, Vice-President/Secretary and General Counsel. This response, according to Upton's statement to the TCHR, was prepared after his "consulting with" Steve Wright, Steve Oswald, Donald (Skip) Nau, Larry Cannon, John Robertson and Joe Renfro (Assistant Vice-President, Training). At trial, Upton also claimed that the response was supported by information he obtained from Mary Wright, Tim and Sherry Mercer, and Terry Deal although he had no satisfactory explanation for his failure to include their names in the Waffle House response.
This response consisted of still more lies by Waffle House and by the officers, executives and employees (and others) who talked to Upton. It first denied any equal pay violation; next, it claimed that Therese Scribner had been terminated for not "satisfactorily performing her job"; and, then it denied that the plaintiff had ever complained about sexual harassment or that Wright or Oswald have ever "made sexually suggestive statements or sexually derogatory statements to Ms. Scribner" or that they "ever touched Ms. Scribner in a sexually suggestive way."
The Waffle House answers to Scribner's TCHR charges which was based upon the lies of Wright, Oswald, Nau, Cannon, Robertson and the other discussed above (in section III C and E) were also false. Indeed, it further demeaned Therese Scribner by reporting new lies about her:
... In fact, Waffle House was very surprised that such complaints would be made by Ms. Scribner. Ms. Scribner had a very "colorful" sense of humor and engaged in some off-color teasing and joking with Waffle House personnel. This was mutual "horseplay", however, and it was not directed toward Ms. Scribner in any type of sexually abusive manner. In fact, in most cases, if there were any remarks of any kind directed at Ms. Scribner by any Waffle House employee, they were invited due to the conduct and language used by Ms. Scribner. During her employment, Ms. Scribner made remarks to Waffle House personnel to the effect of:
I have enough to go around for everyone.
She made several joking remarks to a number of people about being unable to see her feet.
She discussed with several persons her need to obtain a breast reduction. Again, this was done in a joking manner rather than a serious manner.
She made remarks about her breasts getting in the way all the time [and] when someone would sit close to her or *483 brush against her, she would make comments about her breasts being mashed.
On one occasion, (sic) she made the comment to Waffle House management person that "everything they had heard about short people was true." ...
At one point, she was describing to the undersigned how to recognize her if she were to pick the undersigned up at the airport, and her comment was "I am short and real top heavy."
In keeping with the performance of other Waffle House witnesses at trial i.e., Therese told me she was "short and real top heavy" J. Michael Upton (Vice-President/Secretary & General Counsel) repeated this lie in his trial testimony. In fact, as the plaintiff's testimony established, Upton called Therese Scribner and asked her to meet him at the airport. When he asked what she looked like (so he would recognize her), Therese said she was about "five feet tall, with dark hair," and that she would be wearing a Waffle House name tag. Then, it was Upton who remarked, "I hear you have another outstanding feature that you're top heavy." The Court discounts both Upton's testimony the response he prepared to the TCHR charge which were, without question, proven to be false by the credible evidence.
3. The Plaintiff Starts Her Own Recruiting Business
Immediately after her termination by Waffle House, Therese Scribner began looking for a new job. She felt that the fact she had been fired by Waffle House would make this very difficult but Therese needed a job to help support her family (particularly since her husband's employer "was laying off people"). In the next few weeks, Therese had some interviews, but no offers of employment.
This caused Therese Scribner to begin thinking about starting her own recruiting business. To Therese, this had real advantages: she would have "no need to explain her termination by Waffle House" or her pending TCHR discrimination charges; she would have more flexibility with her schedule; and she liked the idea "of working for myself." So, Therese began making contacts to see if she could generate business for her own recruiting agency. In March and April of 1990, she contacted some prior employers, some companies in the fast food business (Wendy's, Grandy's, etc.), and others.
While she was at Waffle House, Therese Scribner had become friends with Debbie Shelton (who had been a recruiter for Grandy's for several years).[137] Shelton had first called Therese in the fall of 1988 to check the references of Mike Robare, who had been terminated by Waffle House. After this, according to Debbie Shelton, she liked Therese and they "became friends." Shelton found Therese to be "very honest, upbeat, and a lot of fun."
Debbie Shelton had learned that Therese Scribner had left Waffle House and "set up her own recruiting business" shortly before she received a telephone call from Therese. They then met for the first time, at Shelton's office. Therese told Debbie Shelton that she was starting her own recruiting service. They toured Grandy's and discussed its recruiting needs. And, this meeting resulted in Shelton giving Therese Scribner her first business: a "job offer" for Grandy's on April 20, 1990.[138]
Following this, Fran Dubuisson a friend and neighbor of the plaintiff (who witnessed some of Steve Wright's sexual harassment) joined Therese Scribner's recruiting agency. Originally doing business as "Resource Associates," Scribner incorporated "Resource Recruiters, Inc." in September 1990. She was the President and the sole shareholder.
*484 The business of Resource Recruiters quickly began to grow. On October 11, 1990, Resource entered into a written agreement with Grandy's, under which it was to be paid between $500-$750 for each new employee it placed at Grandy's. Over the next two years, Grandy's would pay approximately $9,000 to Resource Recruiters for its recruiting services. However, Grandy's was not her sole client; Therese and Resource Recruiters placed employees with many different companies.
Just as she had done for Waffle House, Therese Scribner did an excellent job in recruiting for Grandy's. Debbie Shelton testified that Therese "had a great way with people," that she was a good "source" for Grandy's, that "people were naturally drawn to her," that she knew how to recruit "great restaurant managers;" and that this was "confirmed by her applicants," many of whom "went on to become higher managers" at Grandy's.
Over the next two years, Therese Scribner brought a number of recruits to Debbie Shelton, who hired them for Grandy's. Of these recruits, only a relatively small number between 15 and 20 had been Waffle House employees or were still employed there. The credible evidence established that, contrary to the assertions of Waffle House, Therese Scribner did not "raid" Waffle House to get recruits for Grandy's. Indeed, as a matter of policy, Scribner and Resource Recruiters did not make the initial contact with any Waffle House employee. However, they did receive calls from some Waffle House employees who asked Therese (and Resource Recruiters) to help them find jobs with another employer.
Debbie Shelton testified that she saw nothing unusual in the relatively small number of the Resource recruits who were employees of Waffle House.[139] According to Shelton, it is common for restaurants in the "fast food industry" to have "a higher turnover" than other businesses. Indeed, during her employment at Grandy's and before she began using Therese Scribner and Resource Recruiters Shelton had, in fact, interviewed a number of Waffle House employees herself. Shelton found that the Waffle House restaurant managers were disgruntled with "the working conditions," with the long hours and poor management, and with "abusive supervisors" (who had called some of these managers "stupid", etc. in front of other employees). Indeed, Debbie Shelton said she "never heard stories like this from the employees of any other company."
These complaints about Waffle House were some of the same reasons that, as discussed above, other credible witnesses gave for the very high turnover of unit employees and managers at Waffle House.[140]
4. The Fictitious "Raid" Upon Waffle House
Waffle House makes the baseless claim that Therese Scribner and Resource Recruiters "raided" its restaurants, from May 1990 through May 1992, to find new recruits for Grandy's. This fictitious "raid" supposedly occurred in this manner:
i) "Within a month of plaintiff's termination, seven Waffle House managers ... had been scheduled by plaintiff and interviewed by Grandy's";
ii) "Between May 1990 and the early spring of 1992, plaintiff and her company placed approximately 5 more Waffle House employees with Grandy's"; and
iii) "Then, in May 1992, an avalanche of recruiting and placement of Waffle House employees to Grandy's occurred during a short period of time."
It was solely because of this, Waffle House pretends, that a decision was made "to inform Grandy's of the situation in an attempt to halt the apparent pirating of their employees."[141]
*485 This Waffle House scenario that Scribner "raided" its restaurants to find recruits for Grandy's is false. It was not supported by any credible evidence at trial. Indeed, the evidence clearly established that neither the plaintiff nor her two recruiters, Fran Dubuisson and Margaret Dailey, had any contacts with Waffle House employees unless those employees had first called Resource Recruiters to ask for help in finding another job. The Court credits this testimony by Therese Scribner, Fran Dubuisson.[142] and Margaret Dailey,[143] which was supported by other credible witnesses at trial, including:
... Matthew Bullock, Rodney LeBrun and David Adams, who testified that they "had contacted the plaintiff first" to get her help "in finding a new job," and that the plaintiff "did not call first."
... Glenda Adams and James Douglas, who testified that Tony Fish had told them to call the plaintiff and they did.
... Tony Fish, who first testified that he "called the plaintiff in early 1992 or she called me," but then testified that "it was his idea to call the plaintiff" and that "she never tried to recruit (him) away from Waffle House".
... Dave Smith, who testified that Waffle House employees "were upset when the plaintiff got fired and they were calling her"[144] and that he knew that Unit Managers Matt Bullock, Tony Fish and James Akins had all made the first contact with the plaintiff.
In contrast, the Waffle House witnesses lied once again, this time about the supposed "raiding" by Therese Scribner and Resource Recruiters. For example, Doug Eckhoff who did not know that James Williams had already testified about how "he had put Eckhoff in touch with the plaintiff" said that Margaret Dailey had first contacted him and arranged an interview with both Dailey and Scribner.[145] And, of course, both of the Mercers lied repeatedly: Sherry Mercer said the plaintiff "made a job offer" to her; Tim Mercer, adding his usual touch of class, said that in recruiting him, Therese said, "I'm going to nail Steve Wright's balls to the wall."
However, this fabrication of "raiding" the supposed "avalanche of recruiting and placement of Waffle House employees to Grandy's" in May of 1992 laid the stage for Waffle House to retaliate once again against Therese Scribner.
5. Waffle House Threats Causes Grandy's To Terminate Its Contract With Resource Recruiters
It took only two threatening telephone calls for Waffle House executives, using the fabricated "raiding" story, to cause the loss of the written agreement that Resource Recruiters had with Grandy's.
(i) the first call: by Skip Nau
The first call was on May 8, 1992. Skip Nau, still Vice-President-People of Waffle House, contacted Robert McGregor, the Director of Human Resources, at the Grandy's offices in Dallas. According to McGregor's testimony, Nau called from the Waffle House offices in Atlanta; he told McGregor that Waffle House was very concerned that Grandy's "was singling out Waffle House in recruiting"; that "some" or "several" Nau did not give any specific numbers of the Waffle House restaurant managers "had been coming to work for Grandy's." McGregor responded *486 to these complaints by telling Skip Nau that he would "investigate to see if Waffle House was being targeted" by anyone connected with Grandy's. Then, Nau said:
"Do you guys use Therese Scribner? Waffle House terminated her because of performance problems. Now, she's vindictive and is targeting our managers to get them to leave Waffle House and go to Grandy's."
Skip Nau reported to Joe Rogers, the Waffle House President, CEO and 78% owner, that he had made this call to Robert McGregor of Grandy's, and he told Rogers about the conversation. At trial, however, Nau lied about his call to McGregor; specifically, Nau denied telling McGregor that Therese Scribner "had been terminated for poor performance" or that she "was vindictive towards Waffle House." When he told these lies, Skip Nau did not realize that McGregor had actually recorded Nau's comments on a note pad dated May 8, 1992, which read:
5/8/92
Skip Now (sic) Waffle House XXX-XXX-XXXX
Terez hiring their mgrs. & referring them
to Grandy's
_______________________
Larry Cannon Area Mgr. H XXX-XXX-XXXX
Dave Theobold Reg. Mgr. H XXX-XXX-XXXX
_______________________
She was recruiter for them for 3 ½ yrs,
term'd for perf. Problems. She's now
vindictive & trying to get Waffle House
mgrs.
McGregor also thought that Nau's "performance comments" were to "dissuade Grandy's from using" Therese Scribner as a recruiter.
Robert McGregor, who was Debbie Shelton's supervisor at Grandy's, called her shortly after he had talked with Skip Nau. According to Shelton, McGregor was "very disturbed," and told her that he had just received Skip Nau's call; that Nau said that Scribner "was going into Waffle House restaurants" and was "calling Waffle House employees" to attempt to "hire them away from Waffle House"; and that Nau also told him that Scribner "is vindictive" because Waffle House had "fired her for poor performance."
Debbie Shelton responded to the Skip Nau accusations by telling McGregor that "this was not true" and that "people at Waffle House had been contacting Scribner first." McGregor then instructed Shelton to make sure that Scribner "was not singling out one company" and, "if she was, he wanted it stopped."
Debbie Shelton promptly contacted Therese Scribner. Therese denied Nau's accusations; she told Shelton that she "was not targeting Waffle House employees"; that the Waffle House employees knew her (and liked her); and that the employees had "made the first contacts with her." Shelton was "satisfied" and felt that Therese's "explanation was fine." Shelton then reported to McGregor that "his recruiting standards had not been violated" by Therese Scribner. Therese also called McGregor to assure him personally that she had not done anything wrong with respect to the Waffle House employees she had presented to Grandy's.
(ii) the second call: Dave Theobold
The second Waffle House call was on May 18, 1992, less than two weeks later.[146] This time, it was Dave Theobold, Assistant Vice-President and Regional Manager, who called Robert McGregor. Theobold's call was much stronger than Nau's. He told McGregor that "two more Waffle House managers had moved to Grandy's" since Skip Nau had talked to him.[147] Theobold also made the same remark as Nau, that Therese Scribner "had been discharged" and this was "why she *487 had a vendetta against Waffle House and was targeting Waffle House."
Then, Dave Theobold threatened McGregor: "If you don't stop hiring Waffle House employees" through Therese Scribner, "we're going to set a bounty" and "pay a signing bonus" for "hiring away Grandy's employees." McGregor replied that he was going to check with Debbie Shelton, Therese Scribner, and the "Waffle House people they had hired."
McGregor did talk to both Debbie Shelton and Therese Scribner about these renewed Waffle House accusations of "raiding." Therese told McGregor truthfully that she "didn't single anyone out" and that all of the ex-Waffle House employees she brought to Grandy's had first contacted Resource Recruiters. Debbie Shelton also told McGregor that these Waffle House allegations were false. At the direction of McGregor, Shelton checked with "the new managers" at Grandy's who had been with Waffle House; each of these new managers "confirmed that they had contacted Therese first."[148]
However, although Shelton was satisfied that "there was nothing wrong" with the recruiting that the plaintiffs were doing for Grandy's, McGregor was still extremely concerned by the threats of Cannon and Nau. Shelton, in particular, felt like Grandy's had to avoid a "recruiting war" with Waffle House, that "would escalate." And, although Debbie Shelton was "very angry" about what "she had to do," Shelton called Therese Scribner and "reluctantly" canceled the Grandy's contract with Resource Recruiters. The plaintiffs never did any more work for Grandy's.
Of course, neither Skip Nau nor Dave Theobold told Robert McGregor, or anyone else at Grandy's, that by May 1992, Therese Scribner had not worked for Waffle House for over two years since her termination by Nau on March 1, 1990. If McGregor had known this, then the "raiding story" fabricated by Waffle House would not have worked because McGregor testified:
If I'd known that she [Scribner] had been gone for two years and there was still a concern on their part, it seems to me it would have lessened the impact in my eyes a little bit because if she had been gone for two years and they were just now calling to say we feel like there's a problem here, I don't know that I would have given it as much weight as I did.
H. The Attempt To Suborn Perjury
Shortly before trial, Waffle House made an egregious attempt to suborn perjury by David Smith, a part-time Waffle House employee. At one time, Smith had been the Unit Manager of a Waffle House restaurant. However, Smith stopped when he started college classes again, but then later returned to work part-time as a cook. Eventually, David Smith decided that he wanted to return full-time, as a Unit Manager again. Smith met with Larry Cannon, Area Manager and Assistant Vice-President,[149] who told Smith that he should talk to Steve Oswald, the Regional Manager and Assistant Vice-President.
The following week, David Smith met with Steve Oswald, who told Smith that there was "no problem" with him coming back as a Unit Manager. Oswald also told Smith that he could be the Unit Manager at a new Waffle House restaurant being opened in Mansfield. Oswald also said he would "confirm this" with Larry Cannon.
However, the next person David Smith heard from was Dave Adams, who called and said that Larry Cannon wanted to meet with Smith. This meeting with Cannon took place exactly one week before David Smith took the stand at trial and testified on behalf of Therese Scribner. Smith gave very credible testimony about this meeting. Cannon, of course, lied about it.
*488 The Cannon-Smith meeting took place at another new Waffle House restaurant, which was being completed in Arlington. Inside, Larry Cannon told David Smith that the new restaurant in Mansfield was "not available" for Smith. When David Smith protested that "Steve Oswald had said Smith could have the Mansfield store," Larry Cannon said "Steve had no right to tell you that." And, Cannon told Smith "it's not going to happen" because the new Mansfield restaurant was "right on the line" between Oswald's territory and that of another Regional Manager.
Larry Cannon then asked David Smith to go outside with him to look at the parking lot "that needed to be repaired." After they left the restaurant and were alone, Cannon said to Smith, "I saw your name on a list of witnesses for the plaintiff" in the Scribner case. "What is you name doing on her witness list?"
David Smith, who had not been subpoenaed for trial and who was surprised to learn he had been listed as a witness honestly told Cannon, "I don't know." Cannon persisted, "I want to know what you know" and why "you are to be a witness" for the plaintiff. David Smith replied, "Larry, you should know me. My business is my business. You should know I don't stick my nose in other people's business." And, this was Larry Cannon's response to this statement by David Smith:
I wouldn't (if I were you). I couldn't think why you would be a witness. Let's not do anything to jeopardize our situation here. I'd really hate to see you jeopardize your opportunities with Waffle House and if there was something you knew, then I wanted to know.[150]
On the way home, David Smith kept thinking about Larry Cannon's remarks. The more Smith thought about them, "the madder he got." Smith realized correctly so that Cannon was threatening Smith if he did testify at trial on behalf of Therese Scribner. And, early the next morning, David Smith drove to Fort Worth to confront Larry Cannon. When Smith found Cannon at another Waffle House restaurant, he angrily told Cannon:
Larry, I'm just amazed. The conversation we had yesterday really bothers me. I want to talk to you about this. I can't believe that you would ask me to jeopardize my ethics or my morals to do anything different or say anything different than the truth. And it's just bothered me all day.
Larry Cannon did not deny making any of those comments to David Smith. Instead, Cannon just told some more lies: "It wasn't meant like that. It was meant that I didn't want to be sitting in court across from Joe (Rogers), Jr. and have egg on my face by something that you might say or know."
Larry Cannon told David Smith that he would "talk to Steve Oswald and they would contact him (about the restaurant)." Throughout that day, Smith kept worrying about Larry Cannon's threats to keep him from testifying. Finally, David Smith decided to contact Therese Scribner and her lawyers. He soon did that and, of course, Smith never heard from Cannon or Oswald about the new Waffle House restaurant in Mansfield that was miraculously located right on the dividing line between two Regional Managers.
In view of the numerous other acts of misconduct discussed above by the top officers, executives and supervisors of Waffle House this attempt by Larry Cannon to eliminate David Smith as a trial witness for Therese Scribner was really not surprising at all, certainly not to this Court (since it witnessed Cannon's lies at trial).
IV. LIABILITY AND ACTUAL DAMAGES
The law applicable to each of the liability claims of Therese Scribner and Resource Recruiters, and the actual damages they are entitled to recover under each theory, are both discussed in this section. The law concerning the plaintiffs' punitive damage *489 claims, and the amounts of their punitive damages recovery, are discussed next, in Section V.
A. Willful Discrimination In Pay
1. Liability
To recover damages under the Equal Pay Act, Therese Scribner was required to prove that Waffle House paid her less compensation than it paid to male employees for work that required equal skill, effort and responsibility and that was performed under the same or similar circumstances.[151] Under Title VII, Scribner was also required to prove that Waffle House intended to discriminate on the basis of sex.[152] And, if the evidence established that Waffle House's wrongful conduct in this pay discrimination was willful, then the plaintiff is entitled to recover double the back pay award as liquidated damages.[153]
2. Actual Damages
From the credible evidence discussed above (sections III A 3-5, B and D), it is clear that Waffle House acted willfully, with the intent to discriminate against Therese Scribner, in paying her substantially less than these male recruiters who performed the same work under the same or similar conditions: Rick Seal, Paul Smith, John Brazelton and Rusty Whaley.
Therese Scribner
These are the four different levels of compensation that the plaintiff received[154] during her employment as a recruiter for Waffle House:
Car
Salary Bonus Allowance Total
7/29/86 28,000 2,000-8,000 -0- 30,000-36,000
6/29/87 30,040 2,500-8,000 -0- 32,540-38,040
6/3/88 31,090 2,500-8,000 4,260 37,850-43,350
6/1/89 32,405 2,500-8,000 4,260 39,165-44,665
3/1/90 termination of the plaintiff
As shown by the following comparison, during each of these periods, Therese Scribner was being paid substantially less than Waffle House paid the four male recruiters including the one that Therese replaced (Rick Seal) and the one who replaced her (Paul Smith). This pay discrimination was intentional and willful: Initially, Steve Wright lied to Therese Scribner, telling her that she was receiving the same compensation as Rick Seal, her predecessor. Then, when Therese discovered that this was false after she reviewed Seal's files and angrily confronted Wright about it, Wright just "laughed" and told Therese that "her's was second income" since she was married and "was not the family bread winner." Wright added: "I hired you because I saw you in a halter top and shorts."
The compensation figures in the following compensation comparison are Therese Scribner's salary and maximum bonus during each period of her Waffle House employment; this is because of these reasons: the plaintiff's credible testimony that she regularly earned the highest performance bonus; the evidence establishing that, if she did not reach the top level, her performance unlike that of the male recruiters was certainly affected by the severe, pervasive sexual harassment of her,[155] and by the addition non-recruiting jobs (e.g., preparation of Steve Wright's expense accounts) Scribner was required to perform; and the proven facts that Waffle House often miscalculated the amount of, or delayed payment of, the bonus which Scribner had earned.
*490 This comparison is also based upon this Court's total rejection of the claims by Waffle House that Rick Seal and the other male recruiters were paid more compensation than Scribner because they supposedly had "some additional duties and responsibilities." These claims for example, the frivolous assertion that Rick Seal also recruited hourly employees for the Waffle House restaurants were clearly pretextual. Indeed, during Steve Wright's deposition, he could not describe a single difference between Seal's job description and that of Therese Scribner.[156]
First Period: Rick Seal (7/29/86-6/29/87)
On July 29, 1986, Therese Scribner was hired to replace Rick Seal as the recruiter for the Waffle House Western Area. Her starting salary was $28,000 a year with a potential performance bonus of $2,000 to $8,000 (total: $30-36,000). In contrast, Rick Seal's yearly compensation had been $38,000 in salary, a minimum $2,000 bonus, plus an additional $10,000 performance bonus (total: $40-50,000).[157] However, the evidence established that Rick Seal, despite his poor performance,[158] actually made $6,250 of his potential bonus during the year before Scribner replaced him (total: $46,250 of the potential $50,000).[159]
Since the plaintiff regularly earned her maximum performance bonus, the annual discrimination in pay between Seal's maximum ($50,000) and Scribner's maximum ($36,000) was $14,000 during this first comparison period which lasted 11 months, until June 29, 1987, when the plaintiff received her first raise. Accordingly, during this 11-month period, the discriminatory unequal pay of Therese Scribner was $1167 per month, for a total of $12,833.
Second Period: Rick Seal (6/29/87 6/3/88)
On June 29, 1987, Therese Scribner's compensation was increased to a yearly salary of $30,040, with a performance bonus of $2,500 to $8,000 (total: $32,540-38,040). Therefore, after a year of employment as the Waffle House Western Area recruiter, Scribner was despite this raise still making less than Rick Seal actually made in the same position in 1985 (total: $44,250) and less than Seal's maximum ($50,000).[160] Because the plaintiff regularly earned her maximum performance bonus, the discrimination in pay between Seal ($50,000 maximum) and Scribner ($38,040) was $11,960 a year.
However, since a male recruiter in Seal's position would no doubt have received at least the same $2,540 a year pay raise that the plaintiff did on June 29, 1987 (total: $52,540),[161] the adjusted discrimination in pay for this period would be $14,500 a year. This unequal compensation lasted for 11 months (6/29/87-6/3/88). Accordingly, during this second 11-month period, the discriminatory unequal pay of Therese Scribner was $1318 per month, for a total of $14,450.
First and Second Periods: John Brazelton (8/22/86-6/3/88)
On August 22, 1986 less than one month after Therese Scribner started as the recruiter in the Western Area John Brazelton became the recruiter for the Waffle House *491 Metro East Area in Atlanta.[162] Brazelton had absolutely no prior recruiting experience; previously, he had been operating a Colorado ranch owned by Waffle House. Nevertheless, his starting compensation was $37,500, a fixed performance bonus of $6,000,[163] and a $4,260 car allowance (total: $47,760). Brazelton continued at this level until June 3, 1988, where his performance bonus was increased to $8,455 a year (total: $50,215).
From July 29, 1986 to June 29, 1987 (12 months), Therese Scribner's compensation was (as discussed above) only $36,000 that is, $11,760 less than Brazelton was paid during this period (an average of $980 per month). The total pay discrimination during these 12 months was $11,760.
On June 29, 1987, Scribner's maximum compensation was increased to $38,040; she continued at this level until June 3, 1988 that is, $9,720 less than Brazelton (an average of $810 per month). The total pay discrimination during these 12 months was $9,720.
Third Period: John Brazelton (6/3/88-3/10/89)
On June 3, 1988, both John Brazelton and Therese Scribner received raises. Brazelton was increased to $50,215 (salary $37,500 plus $8,455 bonus plus $4,260 car allowance). Scribner, who had continually complained about not receiving a car allowance like the other recruiters, was finally given one[164] and this increased her compensation to $43,350 ($31,090 salary plus $8,000 bonus plus $4,260 car allowance).[165] This discrimination in pay (an average of $572 per month) continued until March 10, 1989, a period of 9 months; accordingly, it totaled $5,148 for this third period.
The credible evidence established, without question, that Therese Scribner's duties and responsibilities as the recruiter in the Western Area were the same as those of John Brazelton as a recruiter in the Metro East Area in Atlanta. The claim by Waffle House that Brazelton had responsibilities "for more restaurants" supposedly he had some 100 restaurants, while Waffle House claims that Scribner only had 27 in Dallas and Fort Worth is misleading, and it is rejected. The plaintiff's recruiting responsibilities were for the entire Western Area, not just Dallas-Fort Worth.[166] Similarly, the Waffle House contention that Brazelton's compensation also included $7,500 a year for providing certain "administrative services" to executives in the Atlanta office is also misleading; Therese Scribner performed other duties besides recruiting in the Western Area e.g., the preparation of Steve Wright's expense accounts, the "Top Op" awards banquet, "Santa's Sleigh", etc. but she never received additional compensation for these non-recruiting responsibilities.
Fourth Period: Rusty Whaler (3/10/89-3/1/90)
When John Brazelton left Atlanta to begin running a new ranch for Waffle House, he was replaced on March 10, 1989 by Rusty *492 Whaley.[167]Whaley, a former District Manager, had no prior experience as a recruiter. Despite this, Whaley's compensation was, of course, substantially more than that of Therese Scribner. Whaley received $24,388 a year in salary, plus a performance bonus of $24,000, plus a car allowance of $4,260 (total: $52,648).[168]
Scribner's compensation on March 10, 1989 was the same that it had been on June 3, 1988 that is, $43,350 ($31,090 salary plus $8,000 bonus plus $4,260 car allowance). After three months, on June 1, 1989, she received an increase to $44,665 (salary of $32,405, an $8,000 maximum bonus, and the $4,260 car allowance). This remained Scribner's compensation until she was terminated after seven months, on March 1, 1990.
For the three month period (3/10/89-6/1/89), the discrimination in pay between Whaley ($52,648 annually) and Therese Scribner ($43,350 a year) was $9,298 that is, $775 a month. For the next nine months (6/1/89-3/1/90), the discrimination between Brazelton ($52,648) and Scribner ($44,665) was $7,983 per year that is, $665 a month. Accordingly, the illegal unequal pay of Scribner was $2,325 (3 months) and $5,965 (9 months) that is, a total of $8,310.
Summary Of Pay Discrimination
In summary, this is the total amount of money lost by Therese Scribner because of the pay discrimination against her during these four separate periods of time just discussed:
7/29/86-8/22/86 Seal (1 month)[169] $ 1,167
8/22/86-6/3/88 Brazelton (23 months)[170] $20,500
6/3/88-3/10/89 Brazelton (9 months) $ 5,148
3/10/89-3/1/90 Whaley (12 months) $ 8,310
________
Total Discrimination: $35,125
3. Liquidated Damages
As discussed above, the conduct of Waffle House in discriminating in pay against Therese Scribner, the only female recruiter, was willful. Therese was not "entitled" to receive compensation equal to the male recruiters because "her's was second income" and because she was not the family "bread winner."
Indeed, this blatant misconduct is also demonstrated by the compensation paid to the male recruiter who replaced Scribner. On April 3, 1990, Paul Smith was hired to take over the Western Area recruiting job vacated by the plaintiffs discharge. Although Smith's compensation was initially $30,000 a year, after only two months despite the fact that he had no prior recruiting experience it was increased to $21,000 a year, with a potential bonus of $24,000, and a $4,260 car allowance (total: $49,260). This was $13,260 a year more than Therese Scribner's beginning compensation on July 29, 1986, and even $4,595 a year more than Scribner was being paid when she was terminated on March 1, 1990.
Because she was a woman, Therese Scribner was paid less during her entire employment at Waffle House. This discrimination in pay was willful. The plaintiff is, therefore, entitled to liquidated damages of double her actual damages that is, a total award of $70,250.
B. Sexual Harassment
1. Liability
Under Farpella-Crosby v. Horizon Health Care, Therese Scribner was required to prove (i) that she belonged to a protected class, (ii) that she was subjected to unwelcome sexual harassment based upon her sex, (iii) that this harassment "affected a term, condition, or privilege of employment" (i.e., *493 that the sexual harassment was so pervasive or so severe as to alter her conditions of employment and create an "abusive working environment") and (iv) that Waffle House "knew or should have known of the harassment and failed to take prompt remedial action."
Waffle House concedes the first element, that Therese Scribner was female, a member of a protected class. However, it denies that she proved any of the other elements of sexual harassment. Contrary to this assertion as is evident from the lengthy discussion of the facts established by the credible evidence Therese Scribner certainly did establish each of the other Farpella-Crosby requirements concerning the sexual harassment of her by Waffle House officers, executives and supervisors. Indeed, this is shown clearly by a comparison of Scribner's evidence to that of the successful plaintiff in Farpella-Crosby.
The Unwelcome, Severe and Pervasive Sexual Harassment of Therese Scribner
The Farpella-Crosby plaintiff proved that one supervisor, Jose Blanco, made frequent statements about (i) her "sexual proclivity," (ii) his "knowing what she liked to do," (iii) her "taking men home" and his wondering "if they got any," (iv) her "sexual activity" because "he knew what she liked to do," and (v) her supposed lack of knowledge about "how to use a condom" because of the number of children she had.
This conduct by the supervisor in Farpella-Crosby, while disgusting enough, pales by comparison to the gross and continual acts of sexual harassment committed against Therese Scribner by several different supervisors, executives and top officers of Waffle House. For example, these are just a few of their repulsive acts of sexual harassment of Scribner:
(i) by Steve Wright ("she's our Dolly Parton with a big ... smile"; a weekend with Terez in a bikini is your "signing bonus"; "are you on the rag?"; pulling out her blouse, leering at her breasts, and smirking, "It was driving me crazy to see what those were."; etc.)
(ii) by Steve Oswald ("how big is your husband's penis?"; "have you ever been eaten by a man with ice in his mouth?"; "if you ever fucked me, you would never be happy with another man"; etc.)
(iii) by Tim Mercer (the "Santa's Sleigh crotch shot" with a Polaroid camera stuck under the plaintiff's dress; "Therese and the boys are here"; "she got so hot and wet that you could throw her panties against the wall and they'd stick," ad nauseam.)[171]
These, of course, are only nine examples picked from the 36-page discussion (pp. 34-69, 78) of the severe, perverse and repugnant sexual harassment of Therese Scribner.
Waffle House Knew Or Should Have Known Of This Sexual Harassment
The plaintiff in Farpella-Crosby "frequently talked" with the employer's first "human resource director," telling her that Jose Blanco was making "personal comments" about her "personal life," but giving no specifics. Farpella-Crosby also told the second "human resource director" that Blanco was making "offensive or unwelcome" comments about her personal life, but again without giving any details. And, Farpella-Crosby also testified that "on several occasions, Blanco made offensive comments" to her in the presence of two people, a co-worker and an assistant director of nursing.
In stark contrast, the sexual harassment of Therese Scribner was actually committed or witnessed by the top officers, executives and supervisors of Waffle House including Joe Rogers (President, CEO and 78% owner); Lib Julian (Senior Vice-President); Larry Cannon (Area Vice-President); Steve Wright (First Assistant Vice-President and Western Area Manager, later promoted to Senior Vice-President, who witnessed some of the harassment by Steve Oswald); Steve Oswald (who observed acts of sexual harassment by both Wright and Tim Mercer); and Tim Mercer (first District Manager, then promoted *494 to Division Manager, then demoted to District Manager again), who witnessed some of the Wright and Oswald sexual harassment of the plaintiff. In addition, the sexual harassment of Therese Scribner was done openly, at company functions and at the Waffle House restaurants, before numerous supervisors[172] and hourly employees,[173] and even some of the Waffle House wives were present.[174]
Therese Scribner complained to her harassers Wright, Oswald, Cannon, Julian, Mercer but to no avail. Finally she complained to Skip Nau, shortly after he assumed responsibility in the Western Area, and gave him a few specific examples of the conduct of Wright and Oswald. Skip Nau, in turn, actually reported some of Scribner's specific complaints to the President, CEO and 78% owner of Waffle House, Joe Rogers. However, this resulted only in Scribner's abrupt termination (and in the blatant lies told first by Steve Wright, and later by Skip Nau, to save their careers at Waffle House).
Waffle House Failed To Take Any Proper Remedial Action
In Farpella-Crosby, the two "human resource directors" would only tell the plaintiff things like, "Hang in there. Something's got to be done." Nothing was, and she "endured nearly six months of Blanco's abusive behavior" before the employer finally took some action to stop the sexual harassment.
Again, the contrast with this case is obvious. Therese Scribner endured almost three and one-half (3-1/2) years of severe, pervasive sexual harassment by Steve Wright, Steve Oswald, Tim Mercer and others. However, the only "prompt action" taken by Waffle House after Scribner's complaints was this: it ended the severe, pervasive sexual harassment by terminating Scribner shortly after her complaints were reported to the company's top management (including Nau, Rogers and the so-called "executive committee"); it concocted false "reasons" to justify this retaliatory discharge; and its officers, executives and supervisors successfully bribed two witnesses (Tim Mercer and his wife, Sherry) and unsuccessfully attempted to suborn perjury by another witness (Dave Smith) just before trial; and it promoted one of the sexual harassers, Steve Wright, to become a Senior Vice-President, one of the top executives of Waffle House.
2. Actual Damages
Therese Scribner is entitled to the recovery of the actual damages she sustained as the result of the sexual harassment and the retaliatory discharge. Her actual damages include recovery (i) for the income Scribner would have made as a Waffle House recruiter but for the retaliatory discharge, and (ii) for the mental anguish she suffered during the three and one-half years of almost constant sexual harassment, and (iii) for the mental anguish she sustained because of the wrongful termination. (As discussed below, Therese Scribner is also entitled to the recovery of punitive damages because of the egregious conduct by Waffle House.)
(i) Lost Income
If Therese Scribner had not been illegally terminated on May 1, 1990, she would have continued to receive compensation at a rate equal to that of the Waffle House male recruiters specifically, the $50,215 per year being paid to John Brazelton beginning June 3, 1988.[175] And, this annual income of $50,215 would have continued until the point at which Scribner began to make more money from Resource Recruiters than she would have received from Waffle House.
Under the credible evidence in this case, the income that Therese Scribner was making *495 from Resource Recruiters did not exceed $50,215 per year prior to 1993, when the gross income of Resource Recruiters reached $100,925.[176] Therefore, Scribner is entitled to recover $50,215 per year for 2 years 10 months (May 1, 1990 to December 31, 1992) that is, $4,185 per month, for a total of $142,290. Deducting the $26,500 compensation that the plaintiff actually received from Resource Recruiters during 1993,[177] her net lost income is $115,790.
(ii) Recovery Of Mental Anguish Damages For Emotional Harm That Manifests Itself As Humiliation And Stress
In this case, as in Farpella-Crosby, the recovery of compensatory damages "in a Title VII hostile work environment case is governed by 42 U.S.C. § 1981a," which authorizes damages for mental anguish. The Supreme Court held, in Harris v. Forklift Systems, Inc.,[178] that an award of mental anguish damages is proper "irrespective of whether the plaintiff suffers psychological injury."
"... Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. ..."
The Fifth Circuit's standard for "the specificity of proof required to support an award of mental anguish damages" in the context of a constructive or retaliatory discharge is set forth in Patterson v. P.H.P. Healthcare Corp.:[179]
... The court set the bar high. The court held that to recover mental anguish damages, the claimant must satisfy the specificity requirement set out in Carey v. Piphus, 435 U.S. 247, 255-56, 98 S. Ct. 1042, 1048, 55 L. Ed. 2d 252 (1978). ... To meet this requirement, the claimant must show that the harassment `manifests some specific discernable injury to the claimant's emotional state.' Id. at 940.
The Patterson court ... vacated the mental anguish award (of $150,000) and enunciated the defects in Patterson's proof, including a lack of evidence that she was humiliated or subjected to a hostile working environment ... Id. at 941 (emphasis added).[180]
Unlike Patterson, the evidence presented in Farpella-Crosby established that the plaintiff's emotional harm "went far beyond hurt, anger, and frustration to manifest itself in the form of humiliation and stress."
Farpella-Crosby testified that she felt `very embarrassed, very belittled,' `very disgusted,' `hopeless,' `about two inches high' and `started to feel pretty stupid' as a result of Blanco's harassment.... Significantly, Farpella-Crosby testified that her work environment was `very stressful' and that she was `embarrassed every time [she] went in there.' ...[181]
Accordingly, the Fifth Circuit affirmed the $7500.00 jury award to Farpella-Crosby for her mental anguish damages over the "nearly six months of Blanco's abusive behavior," because Farpella-Crosby's testimony and that of one co-worker was sufficient to support the jury's award of mental anguish damages.
In this case, the emotional harm suffered by Therese Scribner because of the severe, *496 pervasive sexual harassment also "went far beyond hurt, anger and frustration" to manifest itself in the "humiliation and stress" that continued almost unbroken during her entire Waffle House employment (July 29, 1986 to March 1, 1990). Moreover, the harassment of Scribner for this three years and seven month period was far more abusive and unrelenting than the sexual harassment in Farpella-Crosby:
... instead of being sexually harassed by only one person (the director of nursing), Therese was harassed by several officers, executives and supervisors of Waffle House (including the Senior Vice-President, a Regional Manager and Assistant Vice-President, a District and Division Manager, and others);
... instead of being witnessed by only one or two co-workers, Therese's harassment was observed by numerous others at Waffle House, including the President, CEO and 78% owner, the Senior Executive Vice-President operations, the Western Area Manager and Assistant Vice-President, the Area Vice-President, and other supervisors and unit employees, and wives of some of the harassers;
... instead of the harassment finally being addressed after six months (as in Farpella-Crosby), the harassment of Therese Scribner continued for over 3-1/2 years (and was never addressed by Waffle House), until she was terminated because of her complaints to Skip Nau about the sexual harassment.
Considering all of these circumstances, and having observed the plaintiff's demeanor in testifying about the severe humiliation, disgust, and despair she endured which went far, far beyond hurt and anger, and which manifested itself in the form of abject stress and humiliation the Court finds that Therese Scribner is entitled to recover $358,000 as mental anguish damages.
C. Intentional Interference With The Contract Between Resource Recruiters and Grandy's
1. Liability
Under Texas law, which applies to Resource Recruiters' claim that Waffle House intentionally interfered with the contractual relations it had with Grandy's, Resource Recruiters was required to prove: (i) the existence of a contract that was subject to interference, (ii) intentional and willful conduct that interfered with that contract, and (iii) the economic loss caused by this intentional interference.[182] The Fifth Circuit applied this Texas law in Marcus, Stowell & Beye Govt. Securities, Inc. v. Jefferson Investment Corp.[183]
Under Texas law, in an action for tortious interference with contract a party seeking punitive damages must establish either "actual malice" or that the defendant's acts were accompanied by fraud or other aggravating circumstances. Actual malice, as distinguished from "legal malice," requires a showing of "ill-will, spite, evil motive or purposing the injury of another." Clements v. Withers, 437 S.W.2d 818, 822 (Tex.1969) ... As in other instances which require proof of the wrongdoer's state of mind, the requisite state of mind can properly be inferred from the acts and conduct of the wrongdoer. See Chandler State Bank v. Dorsey, 618 S.W.2d, 113, 116 (Tex.Civ.App. Tyler 1981, no writ). (797 F.2d at 237)(emphasis added).
Each of these elements was established by the credible evidence in this case. First, Grandy's entered into a written agreement with Resource Recruiters on October 11, 1990 (Exhibit 249). Under this contract, Resource was to be paid from $500 to $750 for each new employee it recruited and placed with Grandy's.[184] Although this contract was *497 terminable at will, it certainly would have continued for some time and this was established by the testimony of Debbie Shelton of Grandy's, who not only liked and respected Scribner, but who also thought "she was a good source who knew how to recruit great restaurant managers." Contrary to the Waffle House argument, the Grandy's contract was not a mere "expectancy" of future business.
Secondly, the conduct of the two Waffle House executives who caused the termination of the Grandy's contract was intentional, willful and malicious. Skip Nau's May 8, 1992 call to Grandy's and his lies to Robert McGregor about Therese Scribner ("she's singling out Waffle House") and Dave Theobold's May 18, 1992 call to Grandy's, his lies to McGregor about Therese (she "has a vendetta against Waffle House" because we "fired her for poor performance") and his threats to raid Grandy's by "setting a bounty" and hiring away its employees were both intentional, and they were both committed with actual malice towards Scribner and Resource Recruiters.[185] This malicious conduct and the lies by two top Waffle House executives, Skip Nau and Dave Theobold, were certainly not "privileged," as the defendant claims.
2. Damages
The third element of Resource Recruiters' intentional interference claim economic loss was also established by the credible evidence. Indeed, it was clear that the only reason that Grandy's terminated its contract with Resource Recruiters was the malicious conduct and lies of Waffle House's Skip Nau and Dave Theobold. Resource Recruiters, therefore, is entitled to the recovery of both actual and punitive damages.[186]
Actual Damages
As described above,[187] from the date of the Grandy's-Resource Recruiters contract to its termination (some two years), Grandy's paid approximately $9,000 that is, $4,500 per year. From the credible evidence, the Court finds that this income from Grandy's not only would have continued, it would have continued to increase, at least until the date of trial. Contrary to the defendant's arguments, this continuing business would not have been targeted at Waffle House; indeed, Resource Recruiters placed employees from other companies with Grandy's,[188] and this would have continued.[189]
Resource Recruiters, therefore, is entitled to the recovery of from $4,500 per year to $8,200 per year[190] for the income it would have made over a period of over 4 years and 3 months.[191] This actual damage award would total $24,188. This amount should not be offset by any expenses because Resource Recruiters has continued to operate, incurring the costs of rent, salaries, supplies, utilities, etc., and because any additional expenses if the Grandy's business had continued (and increased) would be minimal.
D. Defamation
1. Liability
Texas law applies to the claims of Therese Scribner and Resource Recruiters that they were defamed and damaged by the slanderous lies that two Waffle House executives, Vice-President Skip Nau and Area Vice-President and Regional Manager Dave Theobold *498 told to Robert McGregor, Grandy's Director of Human Resources on May 8 and 18, 1992, causing the termination of the recruiting contract between Resource Recruiters and Grandy's.
In order to recover on their defamation claims, the two plaintiffs were required to prove that the statements made about them to Grandy's by these two Waffle House executives were defamatory and were made with malice. In making this determination, the statements of Nau and Theobold must be constructed in light of all surrounding circumstances, based upon how a reasonable person would perceive these statements.[192]
Under the credible evidence, the plaintiffs clearly established that the statements made about them[193] were false, slanderous and malicious.[194] With respect to Skip Nau's call on May 8, 1992, the only true statement he made to Robert McGregor of Grandy's was that "some" or "several" of the Waffle House restaurant managers "had been coming to work for Grandy's." In contrast, he told a number of lies, including these: that Grandy's (through Scribner and Resource Recruiters) "was singling out Waffle House in recruiting"; that Waffle House had "terminated Scribner because of performance problems"; and that she was "vindictive and was targeting" Waffle House managers "to get them to leave and go to Grandy's."
Just as Waffle House had terminated Therese Scribner without any investigation of her complaints of sexual harassment by (Steve Wright and Steve Oswald), it was now Skip Nau, Vice-President of People, who without contacting Scribner or doing any investigation either told these malicious lies about the plaintiff Scribner or made them with a reckless disregard for their truth. Indeed, this was apparent from the trial testimony of Skip Nau; apparently sensing that these accusations might be harmful to the positions being advanced by Waffle House, Nau told more lies denying that he ever made the statements to Robert McGregor (Grandy's) that Therese Scribner "had been terminated for poor performance" and that made her "vindictive towards Waffle House."
The second call to Grandy's was made on May 18, 1992 by another Waffle House executive, Area Vice-President Dave Theobold, was even stronger than Skip Nau's call two weeks earlier. Theobold made these false statements about Therese Scribner, either with malice or with reckless disregard for their truth: First, Theobold lied that "she had a vendetta against Waffle House and was targeting Waffle House" because she had been fired for poor performance. Then he added the impact by threats that Waffle House would retaliate by setting "a bounty" and paying a "signing bonus" for "hiring away Grandy's employees." For the same reasons just stated with respect to the false statements of Skip Nau, Theobold's blatant lies about Therese Scribner also defamed and damaged Resource Recruiters.
Finally, the Court rejects the Waffle House argument that it had a "qualified privilege" for the lies of Skip Nau and Dave Theobold because of the "potential improper methods utilized" by the plaintiffs to attract new managers for Grandy's. Again, Waffle House conducted no investigation; if it had, it would certainly have learned that Scribner and Resource Recruiters were not "raiding" Waffle House; that the Grandy's contract represented only a small portion of the plaintiffs' recruiting business; and that it was the Waffle House employees who were initiating the contacts with the plaintiffs because of their mistreatment by and dislike for Waffle House.
*499 2. Actual Damages
A plaintiff injured by defamation is entitled to recover (i) actual damages, including lost income and mental anguish, and (ii) punitive damages (which are discussed below with the other punitive damages claims).[195] Like Therese Scribner, Resource Recruiters is also entitled to the recovery of defamation damages for "loss of reputation and business ... and its need to advertise to restore its reputation."[196]
lost income
However, the evidence did not establish any loss of income or business, or any damage to reputation, sustained by Therese Scribner. Both of the Grandy's witnesses, Robert McGregor and Debbie Shelton testified that they did not believe the lies told to them by Nau and Theobold about Scribner, and they particularly Shelton continued to hold Therese in high esteem. Of course, Scribner sustained no loss of business loss other than the compensation she would have received from Resource Recruiters under the terminated Grandy's contract. However, this loss by Scribner would be included in the actual damages already awarded to Resource Recruiters for Waffle House's interference with the Grandy's agreement.
Of course, Resource Recruiters did sustain an economic loss: the termination of its written recruiting agreement with Grandy's. However, there was no evidence concerning actual defamation damages sustained by Resource Recruiters other than the loss of the Grandy's contract (e.g., no proof of any expenses it incurred to "repair its reputation.")[197] And, the actual damages on the defamation claim for the loss of the Grandy's contract would be exactly the same as the damages awarded to Resource Recruiters for Waffle House's tortious interference with the Grandy's agreement.
mental anguish
Therese Scribner, however, is entitled to the recovery for mental anguish as actual damages under her defamation claim. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir.1996).
Over two years had passed since Therese had been wrongfully terminated by Waffle House. Then suddenly, without warning, Waffle House began to attack Scribner with the Skip Nau and Dave Theobold lies about her supposed, but non-existent "raids on Waffle House" to find recruits for Grandy's. The mental anguish that Scribner suffered (like that caused by the sexual harassment two years earlier) "went far beyond hurt, anger, and frustration to manifest itself in the form of humiliation and stress."
Fearful of losing a valuable client,[198] Therese immediately assured both Debbie Shelton and Robert McGregor (of Grandy's) that Skip Nau had lied about her. However, this was successful for only ten days, when Dave Theobold told additional lies about Scribner and threatened Grandy's with a "recruiting war." And, shortly after Theobold's call, the recruiting agreement that Resource Recruiters had with Grandy's was terminated.
Considering all of the surrounding circumstances, and having observed the plaintiff's humiliation and stress at this second Waffle House attack upon her which renewed the embarrassment, disgust and despair caused by her abrupt termination the Court finds that Therese Scribner is entitled to recover $119,500 as mental anguish damages.
E. Intentional Infliction Of Emotional Distress
Texas law also recognizes the tort of intentional infliction of emotional distress, *500 adopting the elements set forth in the Restatement (Second) of Torts § 46 (1965). To recover under this claim, Therese Scribner was required to prove (i) that Waffle House acted intentionally or recklessly; (ii) that its conduct was extreme and outrageous; (iii) that its actions caused her emotional distress; and (iv) that this emotional distress was severe.[199]
Although Scribner established each of these four elements, it is not necessary to discuss the facts concerning the severe emotional distress inflicted upon her by Waffle House. This is because any damage award under this emotional distress claim would be identical to the mental anguish damage award made for her sexual harassment claim plus the mental anguish damage award made in her defamation claim (that is, a total of $119,500).
F. Breach Of Contract
As discussed above,[200] there was no agreement between Waffle House (through Steve Wright) and Therese Scribner that her employment could only be terminated for cause.
G. Summary Of Actual Damages
In summary, the actual damages sustained by the plaintiffs Therese Scribner and Resource Recruiters under each theory of recovery discussed above are:
Willful Pay Discrimination (Scribner) $ 70,250
Sexual Harassment (Scribner)
lost income 115,775
mental anguish 358,000
_______
473,775
Intentional Interference (Resource)
lost income 24,188
Defamation (Scribner)
actual damages -nominal-
mental anguish 119,500
________
119,500
Defamation (Resource) -0-
Emotional Distress (both plaintiffs) -0-
Breach of Contract (Scribner) -0-
Total: $687,713[201]
V. PUNITIVE DAMAGES
A. The Applicable Law
The general principles for recovery of punitive damages by a plaintiff who prevails on federal claims or on state law claims are governed by BMW of North America v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993); and Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
In BMW of North America, the Supreme Court derived these principles from its earlier decisions in Haslip and TXO:
Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition. ... Haslip, 499 U.S., at 22, 111 S.Ct., at 1045-1046. In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. ... See TXO, 509 U.S., at 456, 113 S.Ct., at 2719-2720; Haslip, 499 U.S., at 21, 22, 111 S.Ct., at 1045, 1045-1046. Only when an award can fairly be categorized as "grossly excessive" in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. Cf. TXO, 509 U.S., at 456, 113 S.Ct., at 2719-2720.
In applying these principles to the jury verdict in BMW of North America, which awarded $4,000 in actual damages and $2 million in punitive damages to the purchaser of a BMW that had been repainted after being damaged before delivery, the Court required an analysis of these three factors:
... the degree of reprehensibility of the wrongful conduct (i.e., the nondisclosure of the damage and repainting);
*501 ... the disparity between the actual or potential harm suffered by the plaintiff and his punitive damage award; and
... the difference between this remedy and the civil penalties authorized or imposed under comparable cases.
(i) the degree of reprehensibility: With respect to the first factor, the Court considered "the degree of reprehensibility" of the defendant's conduct to be "the most important indicium of the reasonableness of the defendant's conduct." In explaining this factor, the Court stated:
... Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law. ... Haslip, 499 U.S., at 5, 111 S.Ct., at 1036, TXO, 509 U.S., at 453, 113 S.Ct., at 2717-2718 (___ U.S. at ___, 116 S.Ct. at 1599).
(ii) the ratio of punitive to actual damages: With respect to the second factor ("reasonable relationship"), the Court emphasized that we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, or "ratio," comparing "actual and potential damages to the punitive award." Here, the Court noted that:
... low awards of compensatory damages may properly support a higher ratio ... if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. ... TXO, 509 U.S., at 482, 113 S.Ct., at 2732 (O'CONNOR, J., dissenting).
(iii) sanctions for comparable misconduct: With respect to the third factor, the Supreme Court felt that "a third indicium of excessiveness" is provided by a comparison of the punitive damages award to the penalties imposed in similar cases for the same type of misconduct.
The first Fifth Circuit punitive damages case following Pacific Mutual Life Ins. Co. v. Haslip, (the first of the three Supreme Court punitive damages trilogy) was Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377 (5th Cir. July 1991) Eichenseer had been pending on writ or certiorari at the time of the Haslip decision in 1991. After Haslip, the Supreme Court simply vacated the prior Fifth Circuit decision in Eichenseer, 881 F.2d 1355, and remanded the case "for reconsideration in light of Pacific Mutual Life Insurance Co. v. Haslip." Accordingly, in the Eichenseer remand, the Fifth Circuit revisited a "controversial issue" of whether or not a large punitive damages award is unconstitutional.
Until recently, however, the Supreme Court had offered little more than vague suggestions that large punitive damages awards might offend constitutional requirements. In Pacific Mutual Life Insurance Co. v. Haslip, the Court finally converted these suggestions into substance: the Court recognized that, under certain circumstances, an award of punitive damages may "cross the line into the area of constitutional impropriety." [499 U.S. at 24] 111 S.Ct. at 1046. Significantly, the Court concluded that the specific circumstances in Haslip did not raise constitutional concerns. Id.
Like Haslip, Eichenseer involved a dispute concerning coverage under health and medical insurance policies.[202] In Eichenseer, the insurance company (Reserve Life) denied liability, claiming that the plaintiff's "acute pelvic inflammatory disease was a preexisting illness which the policy did not cover" a claim based only upon this single notation made by the doctor in the hospital records: that the plaintiff had experienced pain in the lower abdomen "for the last 2-3 years." Although the plaintiff submitted this doctor's affidavit swearing that the statement should have read, "for the last 2-3 days," Reserve Life first lost this affidavit just as it had *502 previously lost the plaintiff's medical records submitted and then again denied the claim, supposedly because of the doctor's "failure to correct the hospital records." After three years and three months of litigation, and after receiving still another copy of the lost affidavit, Reserve Life finally paid Eichenseer the benefits under the hospitalization policy. However:
Despite the payment of the benefits under the insurance policy ... Eichenseer continued to pursue the instant action for extracontractual damages and punitive damages. After a bench trial, the district court awarded Eichenseer $1000 in compensatory damages and $500,000 in punitive damages. Reserve Life appealed.[203] (934 F.2d at 1380.)
The Fifth Circuit, of course, noted the similarity between this trial court award of punitive damages in Eichenseer to the jury award in Haslip ("$200,000 in compensatory damages, including $4,000 in out-of-pocket expenses, and $840,000 in punitive damages"). Then, the Fifth Circuit held that under Haslip the constitutionality of an award of punitive damages is a function of two practical considerations:
We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. ... Id. at 18, 111 S.Ct. at 1043. In essence, the Court in Haslip reasoned that the constitutionality of an award of punitive damages is a function of two practical considerations: (1) whether the circumstances of the case indicate that the award is reasonable, and (2) whether the procedure used in assessing and reviewing the award imposes a sufficiently definite and meaningful constraint on the discretion of the factfinder.[204]
With regard to the first consideration, "the Supreme Court (in Haslip) identified a couple of facts that supported the amount of the punitive damage award in Haslip: (1) the conduct in question was reprehensible, and (2) society has a significant interest in discouraging insurers from similar conduct." (934 F.2d at 1381). And, with regard to the second consideration, the Fifth Circuit stated:
... The Supreme Court acknowledged several procedural devices that controlled the discretion of the jury in Haslip. First, the trial court properly explained to the jurors the deterrent and retributive purposes of punitive damages. Second, the trial court and the Alabama Supreme Court applied a series of tests to ensure that the punitive damages were reasonable in their amount and rational in light of their purpose to punish and deter wrongful conduct.[205]
Circumstances Indicating Reasonableness of Award: In applying this Haslip factor, Eichenseer first recognized that "the calculation of an appropriate amount of punitive damages" is traditionally left to the unique discretion of the fact finder ... that the "degree of punishment to be inflicted" necessarily must depend "on the peculiar circumstances of each case" ... and that if "there are any circumstances of probative force that support the amount" of punitive damages awarded, "then the award meets the `reasonableness' prong of the due process test in Haslip." Then in applying these principles, the Fifth Circuit concluded that the $500,000 award of punitive damages to Eichenseer "did not lack support in the record." Specifically:
(i) particularly egregious conduct: Reserve Life's conduct was particularly egregious because, although not malicious, "it nonetheless acted with reckless disregard if not intentional disregard" and its conduct was "far more offensive than mere incompetent recordkeeping or clerical error."
(ii) failure to investigate: Reserve Life did not give the claim "even the most cursory investigation" and in fact, "declined even to interview Eichenseer or her *503 doctor."[206]
(iii) ignoring the facts: Reserve Life simply ignored documents submitted by Eichenseer that "indicated her claim was valid" and even lost these documents "under suspicious circumstances."
(iv) reasons for the egregious conduct: Reserve Life's "cavalier handling of Eichenseer's claim" was an unfortunate example of an insurer's "desire to save money at the expense of its insureds" so "a mere slap on the wrist" was inadequate to punish this "egregious" conduct.
(v) the corporate size of defendant: Reserve Life's net worth was $157,000,000, and the $500,000 punitive damages award "was necessary to deter the insurer from future misconduct"[207] because "a small award of punitive damages would have had little deterrent effect against a corporation of Reserve Life's magnitude."
(vi) similar conduct by the defendant: "In addition, and perhaps most importantly," Reserve Life had been "assessed a $150,000 punitive damages award" several years earlier on "the basis of conduct remarkably similar to the egregious" conduct towards Eichenseer; and that smaller award of $150,000 appears "to have had little effect on the manner in which Reserve Life handled claims."
After this analysis,[208] the Fifth Circuit concluded that the "first of the two practical considerations in Haslip, therefore, does not suggest that the ($500,000) award against Reserve Life offended the requirements of due process."
Procedural Protection: In applying the second Haslip factor, the Fifth Circuit concluded in Eichenseer that "the procedure used in assessing and reviewing" the $500,000 award of punitive damages did impose "a sufficiently definite and meaningful constraint on the discretion of the fact finder." Specifically:
... Examples of effective procedural safeguards include, but are not limited to the following: comprehensive instructions that explain the nature of punitive damages, state laws that limit the amount or applicability of punitive damages ... and rigorous systems of appellant review of punitive damages....
...
... In the instant case, however, other procedural safeguards have controlled the discretion of the fact finder. The district court completed a rigorous examination of the appropriateness of the punitive damages it imposed against Reserve Life ... (including) the reprehensibility of the defendant's conduct, the "financial position" of the defendant, the costs of litigation, etc.[209]
Applying the Haslip factors to the district court's assessment of punitive damages, the Fifth Circuit found that "the peculiar circumstances" of Reserve Life's egregious conduct toward its insured, Eichenseer (it's failure to investigate, its disregard of the facts, the reasons for its "cavalier treatment" of her claim, its corporate size, etc.) and the rigorous procedures used by the district court in assessing and determining the amount of the award supported the $500,000 punitive damage award despite the small amount of actual damages ($1,000).
Other Fifth Circuit cases applying the Haslip analysis to punitive damage awards include Brown v. Petrolite Corp., 965 F.2d 38 (5th Cir.1992) (defamation case: sustaining jury award of $60,000 in actual damages and $700,000 in exemplary damages,[210] because *504 the defendant acted with "actual malice" toward the corporate plaintiff); Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir. 1991) (asbestos case: punitive damage award of $6,100,000 was not excessive, although this was 20 times the amount of actual damages); Nichols v. Shelter Life Ins. Co., 923 F.2d 1158 (5th Cir.1991) (suit for misrepresentation of insurance coverage: rejecting attack on jury's award of $50,247 for actual damages, $75,000 for "emotional distress and mental anxiety damages," and $200,000 in punitive damages); and Marcus, Stowell & Beye Govt. Securities, Inc. v. Jefferson Investment Corp., 797 F.2d 227 (5th Cir.1986) (tortious interference with contract: Fifth Circuit affirmed jury award of $119,000 in actual damages and $150,000 in punitive damages).[211]
B. Punitive Damages: Sexual Harassment
1. The Circumstances Of This Case
Applying the BMW and Eichenseer punitive damage factors to the circumstances of Waffle House's severe and pervasive sexual harassment of Therese Scribner, it is clear that a significant award of punitive damages is required to punish Waffle House for its egregious conduct and to deter it from engaging in such reprehensible wrongdoing in the future. The rationale for this substantial award of punitive damages is explained in the following explanation of the deterrent and retributive purposes of this award.
(i) particularly egregious conduct
The reprehensible conduct of Waffle House towards Therese Scribner was far more offensive than the sexual harassment of the plaintiff in any other case that this Court has seen, or tried or read.
There was not just one Waffle House supervisor that sexually harassed Therese: there were several officers, executives and supervisors, including Steve Wright, Steve Oswald, Tim Mercer, and others. These were not lower level Waffle House supervisors: when the harassment took place, Wright was a Vice-President and Oswald was an Assistant Vice-President and Regional Manager, Tim Mercer was a Division Manager. Despite their harassment of the plaintiff, Steve Wright was promoted and is now a Senior Vice-President in Atlanta, Steve Oswald also received promotions, and Tim Mercer (instead of being fired for incompetency) received the reward of a Waffle House franchise restaurant in Colorado.
Moreover, the sexual harassment of Therese Scribner did not take place in private without witnesses. Instead, acts of harassment were observed by the top executives of Waffle House including the President, CEO and 78% owner (Joe Rogers), a Senior Vice-President (Lib Julian), an Area Vice-President (Larry Cannon) as well as by other supervisors,[212] the wives of some of these executives and supervisors,[213] by numerous hourly employees at the Waffle House restaurants, and even by Therese's neighbors and friends.[214]
Although the conduct of Wright, Oswald, Mercer and others was in violation of the Waffle House sexual harassment policy, they were never reprimanded and they were never sanctioned in any way. Instead, the Waffle House witnesses at trial including Joe Rogers (President, CEO and 78% owner) distorted the company's sexual harassment policy and lied about it, claiming that none of the repugnant acts of sexual harassment by Wright, Oswald and Mercer were wrong because *505 they were supposedly "welcomed" and "participated in" by Therese Scribner.
Waffle House also lied to the Texas Commission on Human Rights in responding to the plaintiff's charges of discrimination. And, its top officers and executives and its other witnesses including Rogers, Nau, Julian, Wright, Cannon, Oswald, Dave Theobold, Robert Bowman, John Robertson, J. Michael Upton, Tim and Sherry Mercer, etc. lied to Scribner's attorney at depositions and trial and they repeatedly lied to this Court during trial. Indeed, this case is unique in that the top executive of Waffle House President, CEO and 78% owner, Joe Rogers told numerous egregious lies during his testimony.[215]
(ii) failure to investigate
Therese Scribner complained to Vice-President John Robertson in January 1989 about the constant sexual harassment by Steve Wright. In November 1989, she complained to Area Vice-President Larry Cannon about the incessant sexual harassment by Steve Oswald. Neither Waffle House executive, Robertson or Cannon, did anything about the plaintiff's complaints and pleas for help, much less investigate them.
In October 1990, Therese complained to her new supervisor from the Atlanta headquarters, Skip Nau, Vice-President of the People. She gave Nau a few specific examples of the sexual misconduct against her by Steve Wright and Steve Oswald and the names of other Waffle House supervisors who had witnessed some of the harassment including Lib Julian, Senior Executive Vice-President, five District Managers, and Skip Nau himself (Oswald's "signing bonus/week-end with Therese" statements to new recruits). Nau did not investigate these incidents by talking to Lib Julian or anyone else, but he did report them to Joe Rogers, the top executive and majority owner of Waffle House in Nau's "the bottom line" is "we need to keep Therese as a recruiter" memorandum (Exhibit 24).
Joe Rogers conducted no meaningful investigation of Scribner's complaints of sexual harassment. He never contacted Therese, or had anyone else do so, about the complaints reported by Nau. Instead, at the Executive Committee meeting in the presence of committee members Lib Julian, Robert Bowman (Executive Vice-President) and J. Michael McCarthy (Executive Vice-President and Chief Financial Officer) Joe Rogers berated Nau, telling him that "You have no facts. You dress up conclusions without any facts." The only person that Rogers "questioned" about Scribner's sexual harassment complaints was Steve Wright, who was brought into the Executive Committee where he flatly denied any improper conduct (contrary to Wright's admissions of some of the improper conduct toward the plaintiff at Wright's deposition and at trial).[216]
The Executive Committee meeting ended with Wright's designation of Lib Julian to "get with Steve Wright and find out what's going on." Julian's so-called investigation consisted of a 15-20 minute discussion that afternoon with Wright, in which Julian told Wright to "get in touch with Steve Oswald," and get this "fixed now." Instead, Wright made an angry call to Therese Scribner, threatening her that "this will not advance your career."
Indeed, it did not! Joe Rogers decided that Scribner would be terminated, and "he let Skip Nau do this," some four months after the Executive Committee meeting.
(iii) ignoring the facts
As just discussed, Waffle House simply ignored the information that Therese Scribner gave to Skip Nau, i.e. the few examples of her sexual harassment by Wright and *506 Oswald. Indeed, Nau's report was not merely "ignored"; it lead directly to Therese's rapid termination. In addition, as discussed above, other Waffle House officers and executives simply ignored the acts of sexual harassment of the plaintiff by Wright, Oswald and Tim Mercer never reporting any of this repugnant conduct or sanctioning the offenders for their actions. Finally, Waffle House not only ignored the facts, it also totally ignored its own written sexual harassment policy.
(iv) reasons for the egregious conduct
The main reason was this: Therese Scribner was merely a woman!
As the plaintiff's attorney argued, Waffle House is a "long entrenched private family dynasty" that "time and the law have passed by." It is run by the son of a Waffle House founder, and its operations are directed exclusively by white males. Top corporate management has never included any females or minorities.
Indeed, women employees at Waffle House are treated with disrespect and contempt, as demonstrated by the sexual harassment of Therese Scribner (the Polaroid "crotch shot," her "big boobs," eating "the lining out of her pussy," ad nauseam and other female employees (e.g., Wright telling Therese that the charges of rape of a waitress by a Unit Manager "was comical")).
Nor, from the credible evidence, do minorities fare any better at Waffle House. For example, Steve Wright now a member of the top echelon of company management in Atlanta told Scribner that he "pretty much wanted white males," and that she should not recruit "any more damn niggers."[217]
(v) the size of Waffle House
Although there was no evidence concerning the net worth of Waffle House, it had total revenues of $283 million from its company-operated restaurants in the last fiscal year before trial, and the total revenue of its additional 465 "franchise restaurants" was $187 million during this same period. Also, the net income of Waffle House for the last fiscal year before trial was approximately $12 million.[218]
(vi) similar conduct by Waffle House
Although there was no evidence of any sanctions being imposed against Waffle House for similar conduct before trial, the evidence did contain some examples of the sexual harassment of other females who worked as hourly employees at the restaurants in the Dallas-Fort Worth area. The most egregious of these incidents was the criminal charges filed against a Unit Manager for raping a waitress; when Therese Scribner told Steve Wright about this, "he thought it was comical" and "he laughed about it."
In addition, the Waffle House attitude towards its written sexual harassment policy was cavalier, to say the very least. Although top officers and executives witnessed violations of this policy, no offender was ever reported or sanctioned. Indeed, the attitude of the Waffle House witnesses during trial including Joe Rogers (President, CEO and 78% owner) would simply render the policy meaningless by their ridiculous interpretation: that it did not prohibit on-the-job "sexual jokes and comments" and "guy talk," and that the policy was not violated by an executive asking Therese Scribner "if she wanted to sit on his face" or if she "had ever been eaten by a man with ice in his mouth" unless this conduct was "unwelcome."
Finally, there is one other case in which punitive damages were assessed against Waffle House for the sexually harassment of a waitress by a "shift manager" who, among other things, repeatedly made comments about the size of his penis and his sexual prowess, requesting sexual favors from her and groping her, and making numerous other obscene and lewd comments to this waitress. When she reported this behavior *507 to her Unit Manager, he laughed off the incident and took no action. After the shift manager assaulted the waitress again, she quit her job, and only then did Waffle House terminate him. The jury awarded $50,000 in actual damages and $500,000 in punitive damages, and the defendant's post-trial motions to set aside the verdict were denied. However, this case Adkins v. Waffle House, No. 3:95-CV-54OWS (S.D.Miss. September 16, 1996) took place after the trial in this case, and it is pending on appeal. Accordingly, it is given no weight in the determination of the award of punitive damages in this case.
(vii) ratio of actual to punitive damages
Although both BMW and Eichenseer reject the notion that the amount (and constitutionality) of punitive damages "is marked by a simple mathematical formula," it is instructive for this Court as it was for the Supreme Court and for the Fifth Circuit to consider the ratio of actual damages to punitive damages awarded in other cases. This ratio in the Fifth Circuit cases cited above are:
Actual Punitive Ratio
Eichenseer 1,000 500,000 500-1
Glasscock 317,625 6.1 million 20-1
Brown 60,000 700,000 10-1
Haslip 200,000 840,000 4-1
Nichols 125,000 200,000 2-1[219]
If these same ratios were applied to the actual damage award in this case for the plaintiff's sexual harassment claim i.e., $473,775[220] then the punitive damage award would range from $887,550 in Nichols (2-1) to $1,895,100 in Haslip (4-1) to $4,737,750 in Brown (10-1), and to $9,475,500 in Glasscock (20-1).[221]
(viii) the punitive damage award
In both Haslip and Nichols, the reprehensible conduct involved the defendant's denial of liability and misrepresentations of coverage under an insurance policy. In Brown, the wrongful conduct was the defamation of the prevailing plaintiff.
In this case, the reprehensible conduct of Waffle House lasted over 3-1/2 years, the severe and pervasive sexual harassment of Therese Scribner was either done or condoned by the top officers and executives of Waffle House (including the President, six Vice-Presidents and Executive Vice-Presidents, and several Area and Regional Managers and Assistant Vice-Presidents). In addition, Waffle House executives successfully bribed two witnesses to give perjured testimony and attempted to suborn perjury by another witness shortly before trial.
A small amount of punitive damages would not adequately punish the particularly egregious conduct in this case and serve as an adequate deterrent to Waffle House. A nominal award of punitive damages would have "little deterrent effect against a corporation" of Waffle House's size and success. And, as the plaintiffs' attorney correctly argued:
"Waffle House needs a wake-up call. ... The call needs to go out that it is not right to lie; it's not right to allow sexual harassment of its employees; it's not right to discriminate against women in pay; it's not right to Rambo your way through to destroy a person's business by unjustified paranoia; it's not right to suborn perjury; it's not right to maliciously defame someone; and it's not right to sign false affidavits. The Court is dealing with a long entrenched private family dynasty. It is a dynasty that time and the law has passed by. This company will not change unless and until the Court makes it financially unpalatable for this company to continue to do business as they have in the past."
Accordingly, under the egregious facts of this case, this Court finds that a reasonable amount of punitive damages for the severe, *508 pervasive and relentless sexual harassment of Therese Scribner would be an award of $6.3 million against Waffle House.
2. The Constraints And Procedural Protections
Obviously, this $6.3 million of punitive damages to Therese Scribner is very large. It is 13 times the award of actual damages for the severe, pervasive sexual harassment. Accordingly, this Court like the appellate judges who will review this punitive damage award has taken pains to conduct a rigorous examination to assure that "the procedure used in assessing and reviewing" this punitive damage award impose the required "definite and meaningful constraint on the discretion" of this Court. In fact, the primary reason for the length of this opinion was to detail the depth and depravity of the wrongful conduct and the involvement of the executives and supervisors who run (and own) Waffle House from the top, the President, CEO and 78% owner and the Executive Committee, to the lowest level of management, the District and Division Managers, like the perjurer Tim Mercer.
In addition, this Court has conducted a rigorous examination of the appropriateness and the size of the punitive damages award. And, because of the circumstances surrounding the egregious conduct of Waffle House described in this opinion, this Court concludes that "the strong medicine" of $6.3 million in punitive damages is "required to cure the defendant's disrespect for the law." BMW, ___ U.S. at ___, 116 S.Ct. at 1601.
C. Punitive Damages: Defamation And Tortious Interference
As discussed above, Therese Scribner is entitled to the recovery of punitive damages on her claim for defamation based on the malicious lies told by the two Waffle House executives (Skip Nau and Dave Theobold) to Robert McGregor of Grandy's. Similarly, Resource Recruiters is entitled to a punitive damage award on its claim that Waffle House tortiously interfered with the Grandy's contract by the egregious acts of Nau and Theobold which were certainly condoned, if not authorized in advance, by the defendant's top officers and executives.
Obviously, the circumstances surrounding the defamation and the tortious interference are identical. Also, the punishment of Waffle House for its defamation of Therese Scribner would have the same purpose as the punishment of the defendant for its tortious interference with the Grandy's-Resource Recruiters agreement. Therefore, a joint award of punitive damages to Scribner and Resource is appropriate.
1. The Circumstances of the Defamation And The Tortious Interference
Applying the BMW and Eichenseer punitive damage factors to the circumstances of Waffle House defamation of Therese Scribner and its tortious interference with the Resource-Grandy's recruiting contract, it is clear that a large award of punitive damages is required for punishment and deterrence.
(i) particularly egregious conduct
The evidence did establish even more reprehensible conduct by Waffle House, this time the lies and threats of two executives, Vice-President Skip Nau and Area Vice-President Dave Theobold egregious conduct that was condoned, if not approved in advance, by the corporate heads of Waffle House (including President, CEO and 78% stockholder, Joe Rogers). Indeed, the malice with which the defamation of Scribner and the tortious interference with Resource Recruiters' contract was accomplished, was the same type of "ill-will, spite and evil motive" that Waffle House displayed when it abruptly terminated the plaintiff for false reasons after she had complained in late 1989 to the same Skip Nau about the sexual harassment of her by Steve Wright and Steve Oswald.
In addition, both Skip Nau and Dave Theobold lied about their misconduct; and Nau's lies were clearly established by the notes that Robert McGregor made following their telephone conversation.
(ii) failure to investigate
There was no "investigation" of the supposed "raid" of Waffle House employees by Therese Scribner and Resource Recruiters. If there had been even a minimal investigation i.e., if Waffle House had just contacted *509 the plaintiffs or some of the departing Unit Managers it would have learned that, as these witnesses testified at trial, it was the understandably dissatisfied Waffle House employees who contacted the plaintiffs in attempts to find better jobs.
(iii) ignoring the facts
Because of Waffle House's failure to investigate the purported "raiding," it did not learn any facts to ignore.
(iv) reasons for the egregious conduct
Here, there is little doubt: Waffle House wanted to punish the plaintiffs because they had the audacity and tenacity to file and pursue this case against Waffle House and to withstand the bitter and unrelenting retaliation by Waffle House. This is clearly shown by the Waffle House attempt to suborn perjury by one trial witness (Dave Smith) and its successful bribery of two other witnesses (the Mercers).
the other BMW-Eichenseer factors: (v)-(vii)
Each of the remaining punitive damage factors (v) the corporate size of Waffle House, (vi) similar conduct by Waffle House, and (vii) the ratio of actual to punishment damages are the same as those discussed above with respect to the punitive damages award for the sexual harassment of Therese Scribner.
With respect to the actual/punitive damage ratio, if the same ratios applied in the cases discussed above in (Section V.B1) were applied to the actual damage award to Resource Recruiters on the tortious interference claim (i.e., $24,188), then the punitive damage award would range from $48,376 in Nichols (2-1), to $96,752 in Haslip (4-1), to $241,880 in Brown (10-1), and to $483,760 in Glasscock (20-1).
And, with respect to the defamation claim of Therese Scribner, applying these same ratios to the $119,500 actual damage award for her mental anguish, the punitive damage award would range from $239,000 in Nichols (2-1), to $478,000 in Haslip (4-1), to $1,195,000 in Brown (10-1), and to $2,390,000 in Glasscock (20-1).
(viii) the punitive damage awards
The reprehensible conduct of Waffle House in defaming Therese Scribner and in tortiously interfering with Resource Recruiters' contract with Grandy's took place in less than a month. However, its effects were devastating to both plaintiffs.
For Therese, it was "deja vu" all over again! Two years after being shocked by the lies of Waffle House and by her unjust and unwarranted termination, she was suddenly confronted with the new and equally false attacks, again by top Waffle House executives. Therese was afraid that she might lose a valuable client, and her stress was aggravated by the fact that her husband had just been laid off by his employer. And, these new baseless attacks by Waffle House forced Therese to relive the embarrassment and despair that she suffered when she was abruptly and wrongfully terminated in March 1990.
With respect to Resource Recruiters, it too was severely affected by the loss of the Grandy's recruiting business caused by the threats and lies of Skip Nau and Dave Theobold. Although Resource Recruiters certainly had other clients, and although it continued to place recruits with a number of companies, the Grandy's contract had furnished a stable line of business for Resource business that would, as discussed above, certainly have continued and increased.
Again, a small punitive damage award would not be adequate punishment for the egregious and malicious conduct of Waffle House in defaming Therese Scribner and causing the termination of the Resource Recruiters-Grandy's contract. This Court would award $575,752 in punitive damages for the defamation and tortious interference if only two executives, Skip Nau and Dave Theobold, had been involved.
However, it was obvious that the highest level of Waffle House management including Joe Rogers, the President, CEO and 78% owner (and the person who dominated the Executive Committee) and the other Waffle House executives who lied so repeatedly and blatantly at trial either condoned the *510 wrongful conduct of Nau and Theobold or sanctioned it in advance. Accordingly, this Court finds that a reasonable amount of punitive damages for the defamation of Therese Scribner and the tortious interference with Resource Recruiters' contract would be an award of $1,149,504 against Waffle House.
2. The Constraints And Procedural Protections
Finally, after conducting the same rigorous examination of the appropriateness and the size of this punitive damage award that was applied above to the Scribner's sexual harassment claim, this Court concludes that "the strong medicine" of $6,300,000 in punitive damages is "required to cure" the disrespect and contempt that Waffle House obviously has "for the law."[222]
VI. SUMMARY OF ACTUAL AND PUNITIVE DAMAGES
In summary, these are the actual and punitive damages awarded to Therese Scribner and Resource Recruiters under each of their liability claim:
Willful Pay Discrimination (Scribner) $ 70,250
Sexual Harassment (Scribner)
lost income 115,775
mental anguish 358,000
punitive damages 6,300,000
_________
6,773,775
Intentional Interference (Resource)
lost income 24,188
Defamation (Scribner)
lost income -nominal-
mental anguish 119,500
_________
119,500
Punitive Damages For Tortious
Interference And Defamation
(Both Scribner & Resource, Jointly) 1,149,504
__________
TOTAL: $8,137,217
VII. CONCLUSION
Therese Scribner was hired by Waffle House because its current Senior Vice-President saw Therese "in a revealing halter-top and short-shorts." She was paid less than male recruiters simply because she was a woman and did not "need to make as much as a man." After three and one-half years, Waffle House discharged Therese Scribner, supposedly because she was such a poor recruiter but two years later, Waffle House maliciously caused the loss of the Resource Recruiters-Grandy's contract, supposedly because Therese was so good at recruiting.
Of course, Waffle House really discharged Therese Scribner because she complained, one too many times, about the severe, pervasive and disgusting sexual harassment she constantly received repulsive conduct that was committed, witnessed and condoned by the company's top executives, by its other supervisors and employees, and indeed by the Waffle House President, CEO and 78% owner. When Scribner had the nerve to confront Waffle House in court because of its egregious misconduct, the Waffle House executives not only lied about their shameful actions, but they also bribed at least two witnesses and attempted to suborn perjury by another.
Of course, the actual and punitive damages assessed against Waffle House because of the inexcusable conduct of its owner, its officers, its supervisors and others discussed at length in this opinion are large: $663,525 in actual and $6,300,00 and $1,149,000 in punitive damages. However, this Court is convinced that, under the unique circumstances of this case, these damage awards are the least amounts that are needed to compensate the plaintiffs for their actual damages and to serve as adequate punishment of Waffle House for its egregious misconduct. Any smaller amounts would, this Court firmly believes, simply tell Waffle House:
... that it is alright to discriminate against females by paying them less than men;
... that there is nothing wrong with abusing its female (and minority) employees;
... that there is nothing wrong with terminating a female because she has complained of severe and pervasive sexual harassment by her supervisors and by officers and executives of Waffle House; and
... that it is perfectly acceptable to lie repeatedly under oath, to bribe witnesses, and to attempt to suborn perjury.
Accordingly, the plaintiffs are entitled to recover $687,713 in actual damages and *511 $7,449,504 in punitive damages against Waffle House.
NOTES
[1] Including the first sexual harasser, Steve Wright, who is currently a Senior Vice-President of Waffle House; another, Steve Oswald, who was a Regional Manager and Assistant Vice-President at the time of the sexual harassment; and a third, Tim Mercer, who was formerly a Waffle House Regional Manager, but who was rewarded for his perjury in this case with an ownership interest in a Waffle House "franchise restaurant" in Colorado.
[2] These harsh comments are not directed at the two law firms who represented Waffle House at different times during this litigation.
[3] These are but a few examples. The many acts of unrelenting and pervasive sexual harassment of Therese Scribner, which are detailed below, make the sexual harassment in Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996), seem to pale by comparison.
[4] As discussed below, the Waffle House executives who witnessed one or more acts of sexual harassment of Therese Scribner by Steve Wright or Steve Oswald included the following: Joe Rogers, Jr., President, CEO and owner of 78% of the stock of Waffle House; Lib Julian, Senior Executive Vice-President, Operations; Skip Nau, Vice-President, People Department; and Larry Cannon, Area Vice-President.
[5] At trial, Larry Cannon denied that he observed Mercer's "crotch shot," and claimed that Mercer "only" put his hand on the plaintiff's leg. This was a lie! Even Tim Mercer, himself, finally admitted he was "joking around" with the Polaroid and the plaintiff's legs.
[6] These executives included Lib Julian, Senior Executive Vice-President, Operations; John Robertson, Vice-President, Operations; and Larry Cannon, Area Vice-President.
[7] No member of the Executive Committee (or anyone else at Waffle House) contacted Therese Scribner, either to discuss her complaints of sexual harassment or to give her an opportunity to respond to Steve Wright's denials. Nor did anyone investigate and talk to the numerous other people who had witnessed the plaintiff's harassment by Wright, Oswald and Mercer.
[8] This is to lay the predicate for a detailed description of the sexual harassment that took place in this case.
[9] As well as to the necessity of detailing the egregious conduct of Waffle House that warrants a large award of punitive damages.
[10] Texas Commission On Human Rights.
[11] The Farpella-Crosby opinion is by Circuit Judge Benavides.
[12] 97 F.3d at 805.
[13] Id.
[14] None of the Waffle House witnesses in this case offered this rather imaginative "belief" as an excuse for their sexual harassment of Therese Scribner.
[15] Id.
[16] Id. at 806, citing Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S. Ct. 952, 93 L. Ed. 2d 1001 (1987).
[17] Id. Whether an environment is "hostile or abusive" depends on "the totality of circumstances." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 371, 126 L. Ed. 2d 295 (1993); DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 473, 133 L. Ed. 2d 403 (1995).
[18] Id. (emphasis added) citing Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996).
[19] Id. at 806 (emphasis added). In a footnote, the Fifth Circuit explained: "This case is distinguishable from Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.1996), in which this Court held that a single joke told by a supervisor involving condoms was insufficient to create an hostile work environment. Blanco's joke about Farpella-Crosby's knowledge of condoms was directed specifically toward Farpella-Crosby and her seven children and was not an isolated incident."
[20] Id. at 807, citing Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir.1993) (citing Jones, 793 F.2d at 720) ("As this Court noted in Waltman v. International Paper Co., the type and extent of notice necessary to impose liability on an employer under Title VII are the subject of some uncertainty. 875 F.2d 468, 478 (5th Cir. 1989) (concluding that three separate complaints to higher management constituted sufficient notice).")
[21] 97 F.3d at 807 (Callejo, the human resources director when Farpella-Crosby began her employment in June 1993, was replaced by Hopper on May 1, 1994).
[22] Id. (emphasis added).
[23] Id.
[24] Id. at 807 n. 5. (emphasis added).
[25] Id. (emphasis added).
[26] 97 F.3d at 808-809 (emphasis added).
[27] In determining the credibility of witnesses, this Court considered all of the circumstances surrounding the testimony; for example: Did the witness have any personal interest in the outcome of the case or any reason not to tell the truth? What were the witness's connections with the plaintiffs or with Waffle House? Did the witness have a good memory and answer the questions directly? Did the witness have any particular reason not to tell the truth? Was the witness impeached either in deposition or trial testimony (or both)? Was the witness's testimony supported, or contradicted, by other credible evidence?
[28] During non-jury trials, this Court takes summary notes of the testimony of each witness. The contemporaneous trial notes made during Steve Wright's testimony contain these remarks by the Court: "LIE" and "Lied About" (numerous notations), "Also lied about ...," "very evasive," and "NOT CREDIBLE to say the Very Least." The contemporaneous trial notes regarding Steve Oswald include numerous remarks like these: "LIE" and "LIED ABOUT ..." (many such notations, even more than for Steve Wright) and "LIED TO COURT" (five different notations made immediately after the Court completed its questions to Oswald); et cetera.
[29] The Court's contemporaneous trial notes concerning Tim Mercer contain these editorial comments: "LIE" and "LIED ABOUT" (many, many times), "5 LIES to defense attny" (these were about the "Polaroid crotch shot"), "WARNING BY JB" and "GIVE ME A BREAK!" And, the contemporaneous notes on Sherry Mercer's testimony contain several different "LIE" notations.
[30] The Court's contemporaneous trial notes for Theobold and Cannon include these comments: "LIE" (numerous times), "IMPEACHED" and "NOT CREDIBLE" (numerous times).
[31] The Court's contemporaneous trial notes for these Waffle House witnesses contain these notations: "LIE" (many times), "NOT CREDIBLE" (many times), "EVASIVE" and "IMPEACHED/NOT CREDIBLE."
[32] The Court's contemporaneous trial notes concerning these witnesses include numerous notations of "CREDIBLE" and "VERY CREDIBLE!"
[33] For example, Joe Rogers claimed that the plaintiff's responsibilities as a recruiter were not as great as those of her predecessor, that the plaintiff's performance as a recruiter was not satisfactory, that he was not responsible for her termination, that he conducted an investigation of her harassment claims, and that neither the "Dolly Parton" nor the "weekend with Therese in a bikini" comments violated the Waffle House sexual harassment policy. These claims are false, as were the other parts of his testimony discussed below.
[34] All further references to Joe Rogers in this opinion mean Joe Rogers, Jr., not his father.
[35] The remaining stock, according to Joe Rogers, was held "by just over 3,000 shareholders."
[36] These "franchise restaurants", located in 20 states, are owned by individuals, but Waffle House receives income from them in the form of payments for the franchise and for the supplies, etc. sold to the owners-operators. Joe Rogers and Lib Julian gave slightly different testimony concerning the number of "franchise" and "company-owned" restaurants.
[37] A Unit manager is responsible for the day-to-day management and 24-hour operations of each Waffle House restaurant. Positions above the Unit Manager are generally referred to as "multi-unit managers."
[38] During trial testimony, there were some different figures given for the number of restaurants for which the District, Division and Regional managers are responsible. These differences are not relevant to any issue in this case.
[39] See Exh. 256, a November 9, 1990 memorandum of Waffle House Vice-President/Secretary and General Counsel, J. Michael Upton, stating: "Rogers personally approved every hiring and compensation decision, with the exception of Paul Smith" (the male recruiter hired to replace Therese Scribner).
[40] Lib Julian, who gave these figures concerning the number of females, blacks and hispanics in the Waffle House management, also testified that the company started a "minority recruiting program" in May 1994 (four years after the plaintiff's termination), headed by an African-American. Joe Rogers also testified that there was now one female Vice-President of "some sort" in Atlanta.
[41] After this dinner, Steve Wright sometimes played golf with the plaintiff's husband. The Wright and the Scribner children were friends, sometimes spending the night together.
[42] Waffle House's claim that Scribner's resume contained false information about her education and employment history was ludicrous. It did not.
[43] Therese Scribner told the truth about this meeting. Steve and Mary Wright told several lies about it, including their testimony that Therese Scribner wore "short-shorts" and a "revealing halter top" to this dinner meeting. When the Court questioned Steve Wright during trial, Wright could not explain why he would make this job offer to someone who (according to their lies) wore revealing and tasteless clothes in public on the evening he first met her and discussed her possible interest in working for Waffle House.
[44] Steve Wright did not tell Therese Scribner that she could only be terminated for cause that is, for "violating the employee conduct policy." This Court discounts Scribner's contrary testimony, which were the only non-believable statements she made during her testimony.
[45] Wright lied about this incident at trial, claiming that the plaintiff never complained to him about "the issue of the pay difference between her and Rick Seal."
[46] Both Steve Wright and John Robertson reported to Lib Julian, the Senior Vice-President, Operations.
[47] Wright commuted from Dallas to Atlanta until mid-December 1989, when he moved his family to Atlanta.
[48] For example, in her duties Scribner traveled to Tulsa, Shreveport, Phoenix and Denver, and did some recruiting for Waffle House restaurants in the other states in the Western Area (besides Texas).
[49] Steve Wright also had Scribner prepare his expense accounts although this was not part of her responsibilities as a recruiter. After Scribner complained about this to Lib Julian in late 1988, she did not have to do Wright's expense accounts any more. Wright, in one of his many falsehoods, testified that "it didn't bother me that Therese went to Lib Julian about doing my expense statements."
[50] There was similar testimony at trial concerning the attitude of Waffle House supervisors towards black employees. Steve Williams, a former Waffle House employee, testified that Regional Manager Tim Mercer while interviewing applicants for jobs at a new Waffle House restaurant in a small town (Corsicana) marked the applicants either "W" (for whites) and "H" (for blacks or "Honkeys"). Area Vice-President Larry Cannon told another witness, a former District Manager, that a black Unit Manager could not transfer to another restaurant in a white area because "he was black."
[51] Steve Wright approved this training program; even though it was successful, after several months Wright told Therese to drop the program.
[52] According to Therese Scribner, the newsletter was "well received" by the Unit Managers and their staff, who "were delighted to have someone show them some attention."
[53] The word "he" is used advisedly, since only a very few of the Waffle House Unit Managers were female.
[54] For example, her September 26, 1988 exit interview with District Manager Mike Robare, included these: "lack of guidance and leadership," "no communication from upper management," "tired of being lied to by Larry Cannon and Steve Wright," "not happy with upper management in DFW," "unprofessional management in DFW," "not making enough money for the amount of time and energy putting in," etc. Many of the other exit interview forms contain the same type of comments by departing Waffle House employees.
[55] See, e.g., Exh. 28 ("Recruiters do not hire operators do") (Skip Nau memo of December 6, 1989).
[56] Steve Wright first suggested this, but later withdrew support for his own idea.
[57] The first time that Steve Wright ever let Scribner use an employment agency was in 1988.
[58] Scribner only ran about 6-8 newspaper advertisements in the Dallas-Fort Worth area. Steve Wright approved each one of these ads.
[59] The Court discredits the contrary testimony by several Waffle House witnesses, including Steve Wright.
[60] Exh. 17.
[61] Id., stating "People Skills Good, Good Communication," "Follow-Up O.K.," "Recruiting ... Style Effective, Good Approach," "Interviewing Styles Excellent To The Point."
[62] To the contrary, a memo to Lib Julian in August 1987 (Exh. 16) reported that "she's doing a good job for us."
[63] Farpella-Crosby v. Horizon Health Care, 97 F.3d at 806.
[64] Steve Wright lied about this demotion, claiming that Tim Mercer was not demoted because he was incompetent, but because "we had someone else who could do a better job."
[65] This chronology (Exh. 166) was supported by the very credible testimony of Therese Scribner and of the persons discussed below who witnessed many of the acts of sexual harassment. Scribner's 1989 Day-Timer also records three sexual remarks by Wright (February, March and September) and four such remarks by Oswald (in October and December 1989 and February 1990).
[66] The defendant's attacks upon the plaintiff's 1987 day-timer, the office calendar, the chronology (Exh. 166) and the Oswald list (Exh. 167) are absolutely baseless. The defendant argues that these exhibits are not complete, or that they do not record every one of the acts of sexual harassment, or that because Exhibits 166 and 167 were not "created contemporaneously with the events recorded." These Waffle House "arguments" are not just wrong, they are ridiculous. Indeed, since Waffle House, a large and financially successful company, did not have a single contemporaneous document of any kind to support its claim that the plaintiff was fired because she was incompetent, this attempt to discredit the plaintiff because she did not keep full, complete and contemporaneous records of her harassment is patently absurd!
[67] The plaintiff recorded this incident in her chronology (Exh. 166).
[68] The plaintiff recorded this matter in her chronology (Exh. 166). In his deposition, Steve Wright denied making this statement, but at trial, Wright admitted it.
[69] The plaintiff recorded this incident in her chronology (Exh. 166). In his deposition, Steve Wright testified that Larry Cannon "reprimanded" Steve Oswald for making a statement like this; at trial, however, Wright admitted that this was a lie, and that Cannon never reprimanded anyone for statements like this.
[70] The plaintiff recorded each of the incidents listed in this paragraph in her chronology (Exh. 166). Steve Wright, of course, lied about these incidents at trial.
[71] The plaintiff recorded each of these incidents in her chronology (Exh. 166). Steve Wright, lying repeatedly, denied that any of these things ever took place.
[72] The plaintiff recorded this incident in her chronology (Exh. 166).
[73] Wright's testimony that he "was not promoted" when he was transferred to the Waffle House headquarters in Atlanta was another of his many lies.
[74] This and the other quotations of testimony in this opinion are based upon the Court's contemporaneous trial notes and a rough draft of a transcript of some of the questions which this Court asked various witnesses at trial. These "quotations" are only approximations, because the official transcript has not been completed by the court reporter.
[75] After Steve Oswald was demoted to Division Manager in June or July 1990, he left Waffle House for about three years (moving to Jackson, Mississippi), but returned to Waffle House in Dallas as Western Area Regional Manager.
[76] The plaintiff recorded three of these incidents in her chronology (Exh. 166).
[77] Others are also recorded in the plaintiff's chronology (Exh. 166).
[78] Bob is the plaintiff's husband.
[79] The plaintiff testified that Oswald "whispered this in her ear and walked off." She was "so upset, so angry, so tired of it all" that she couldn't "remember what I did."
[80] This was Joe Rogers' description at trial of Steve Oswald: "He is boastful, arrogant, and shades the truth." and Oswald "had to grow into the executive level," where (apparently despite his demotion) "he performed very, very well."
[81] However, later in his testimony, Oswald attempted quite unsuccessfully to minimize the meaning of this comment by lying: "I said, Therese and my girlfriend were stacked well enough to be matching bookends."
[82] All of the questions to Oswald in these examples were asked by the Court.
[83] Nor did Steve Oswald have any explanation certainly not a believable one as to why he and the plaintiff would cuss ("fuck, shit") and tell each other "dirty jokes" but he would "never have said" any of the other things on Exhibit 167, like "sit on my face," "good fucks and sucks," etc.
[84] Three of these incidents are recorded in the plaintiff's chronology (Exh. 166).
[85] During his deposition, Tim Mercer lied when he denied having sex with two different hourly employees (both of whom he later married); he lied about a sexual harassment complaint filed against him by another waitress ("foul language, unwanted touching, unwanted sexual conduct") and he lied about rape charges made against him by a waitress who had sex with Oswald so he wouldn't fire her (Oswald paid her $3400 to settle).
[86] This is recorded in the plaintiff's chronology (Exh. 166).
[87] Including, in the case of Steve Wright, both the Waffle House President, CEO and 78% owner (Joe Rogers), and its Senior Executive Vice-President (Lib Julian).
[88] After Tim Mercer's deposition perjury in this case, Waffle House arranged for Mercer and his wife, Sherry Mercer (who also lied at her deposition), to move to Colorado and to "purchase" and run a lucrative Waffle House "franchise store" as the owner-operator.
[89] At trial, Tim Mercer testified that in recruiting, "the plaintiff just talked [to recruits] about the good points of the job," like how much money the Unit Manager could make, "but not about the bad points." However, at his deposition, Mercer testified that "he really had no complaints about how the plaintiff conducted interviews."
[90] According to Mercer's later testimony, "someone made this comment about the bulge in his pants" ... that he may have, or the plaintiff did, or "it could have been someone else" ... or that maybe "nothing was said." Consistency in his lies was not one of Tim Mercer's strong points.
[91] This description is based upon the very credible testimony of Therese Scribner.
[92] Therese Scribner was terminated by Waffle House on March 1, 1990. She started her own personnel recruiting firm, Resource Recruiters, a few months later.
[93] Tim Mercer also contacted Scribner on another occasion and asked her to help find a job for his wife, Sherry Mercer.
[94] At trial, Joe Rogers (the Waffle House President, CEO and 78% owner) actually testified under oath that "Tim Mercer gave some very honest testimony," but this had "nothing to do with his franchise selection."
[95] One entry in the plaintiff's chronology (Exh. 166) reflects the impact of Wright's misconduct upon other employees; the "May 1988" entry reads, "5/88 meeting at Sheraton [Wright] told div. mgrs. to support and show more respect [to plaintiff] told him they were following his example he said was just being complimentary."
[96] In addition to his affair with an Assistant Manager, Robare also had affairs with two waitresses; when he admitted one of these to Steve Wright and Larry Cannon, Wright only told Robare, "You could have picked someone better looking, but don't let it happen again."
[97] The attempt by Waffle House through still more lies by Tim Mercer to discredit the testimony of Steve Williams because he was terminated is completely rejected. Contrary to Mercer's perjury, he did not fire Williams as the Unit Manager of a Waffle House restaurant in an all-black area in Corsicana (a small town near Dallas) because Williams was incompetent. Instead, Mercer did not like Williams, who objected to the fact that there were only three blacks employed at this restaurant (Steve Williams, his wife, and his daughter). And, he abruptly terminated Williams because Mercer did not like the way Williams responded to being told in a very demeaning way, "pick up the cigarette butts in the parking lot."
[98] Exh. 166.
[99] The plaintiff recorded this incident in her chronology (Exh. 166).
[100] After Steve Wright called Fran Dubuisson and asked if she would have dinner with Lib Julian (who is married), Dubuisson refused. Then, she never returned Julian's call. Julian's testimony that he just "wanted her to have dinner with both Julian and Wright" was a lie.
[101] The wives of Steve Wright and Tim Mercer, Mary Wright and Sherry Mercer, also saw some of their husbands' acts of sexual harassment of the plaintiff. The Court discounts the contrary testimony they gave at trial.
[102] As discussed above, Julian had actually seen some of this sexual harassment, such as the time Wright grabbed Therese's blouse, pulled it out, looked down at her breasts, and said: "It was driving me crazy to see what those were."
[103] Exh. 19.
[104] The fifth item in this list begins, "I have investigated our management retention and made you aware that our highest turnover is occurring between 4-6 periods in a unit, after training."
[105] Exhs. 21 and 22.
[106] The plaintiff recorded this complaint in Exh. 157, p. 1906.
[107] Even Steve Wright admitted that he received "something" from Larry Cannon about a sexual harassment complaint that Scribner had made against Steve Oswald. And, as discussed above, Cannon had witnessed some of this harassment, like Tim Mercer's Polaroid "crotch shot" of Therese on "Santa's Sleigh."
[108] Steve Oswald also told Nau that "a problem he was having with Terez" was that "his employees would go to Terez with problems and ideas" circumventing his Division Managers. Nau told Oswald this "sounded more like a leadership problem [with Oswald] than a problem with Terez," and Oswald "acknowledged that."
[109] Exh. 166.
[110] Scribner's only notation in the chronology (Exh. 166) of the call she received from Steve Wright about this November 21-23, 1989 trip was "11/21 talked to SW bunch of bullshit" a very accurate description, since Wright, again in perjured testimony at trial, claimed that the plaintiff "denied making these comments to Skip Nau."
[111] Exh. 166.
[112] According to Joe Rogers' trial testimony, he "chastised" Nau about the "bottom line" statement because he hadn't done the "fact finding" and "he was not even close."
[113] This was not correct, since Nau's memo did not connect Steve Oswald to Wright's "Weekend with Terez" comment. However, if Lib Julian did think that Oswald was involved, then he never talked to Oswald during his supposed "investigation."
[114] Of course, if Steve Wright did tell this to Lib Julian, it was another blatant lie.
[115] Joe Rogers did not explain why he felt it appropriate to "counsel" Steve Wright in view of his testimony that he "did not consider Nau's memo (October 26, 1989) to be a complaint of sexual harassment" because it also stated that Scribner said, "That's all behind us."
[116] The quotations in this sentence are from a post-trial pleading filed by the Waffle House attorneys.
[117] According to the trial testimony of Joe Rogers, "Nau probably would have fired the plaintiff within another couple of months" because Nau told him "that Scribner was not following his directions." In contrast, Rogers also testified that Skip Nau "was brand new" and "didn't know what he was talking about some of the time" and "could not judge the competence of the plaintiff."
[118] Nau testified, but not credibly, that he later gave Oswald "an oral reprimand" for making this statement to Therese Scribner.
[119] Nau also criticized the plaintiff because she "didn't set up a SWAT recruiting team," and because she used personnel agencies instead of "cold calls" on competitor's restaurants. In direct contrast, Steve Wright instructed the plaintiff that she should not use personnel agencies, but that she should be making "cold calls" instead. Wright also testified that the plaintiff did set up the SWAT recruiting team.
[120] The Court specifically credits the testimony of Therese Scribner that she never had any such discussions with Nau.
[121] Of course, as discussed above, Lib Julian, Senior Executive Vice-President, Operations had helped Steve Wright convince Therese Scribner not to quit in December 1988 and January 1989. Nau had no explanation for why Julian and Wright would have done this if Therese was really a bad employee.
[122] Some Waffle House witnesses lied about this, claiming that the plaintiff received "numerous reprimands." It was undisputed, however, that not a single one of these supposed reprimands was documented in Scribner's personnel files or in any other company records.
[123] A combination of two Division Managers or a Division Manager and the Area Manager made all hiring decisions for Waffle House (subject, of course, to approval by upper management).
[124] Robert Bowman, Executive Vice-President, Operations, estimated that 67% of the "retention problem" was due to the "management team" i.e., Wright, Oswald, Julian, Cannon, Theobold, Adams and Mercer and only 33% was due to Therese Scribner. In contrast, Steve Wright told more lies, claiming that the plaintiff "had more direct responsibility for the turnover" than Wright or "anyone else"; and Wright "estimated" that 80% of the problem was due to the quality of the plaintiff's recruits.
[125] These incredibly harsh and demanding working conditions for the Waffle House Unit Managers are discussed above in Section III ("The Facts"), under part B ("The Plaintiff's Performance").
[126] Several Waffle House executives Rogers, Wright, Cannon, Julian, and Nau testified "that they talked with the plaintiff about the need to improve screening methods and retention." There were discussions generally about recruiting, but none of these executives ever told Therese Scribner that they were dissatisfied with the manner in which she recruited or the quality of her recruits.
[127] Steve Wright actually had the nerve to testify that there was nothing in writing about Scribner "not doing a good job," because "my short fall was being too close a friend with Therese."
[128] For example, Rodney LeBraun testified that Therese Scribner did help at the restaurants by "getting behind the counter, answering the telephone, taking orders and washing dishes"; and Bob Wesson testified that she would help out by "washing dishes, pouring coffee" and giving the unit employees "a pat on the back" to encourage them.
[129] Contrary to the seeming position of Waffle House that Therese Scribner should have worked an entire day on holidays, Skip Nau advised all recruiters that "I'm not saying you need to work an eight hour shift, but you do need to spend a couple of hours in the restaurants during peak time ..." (Ex. 26, Nau's November 14, 1989 memo "To All Recruiters.")
[130] This very credible testimony came from Glenda Adams, Matthew Bullock, David Coleman, Margaret Dailey, Fran Dubuisson, Tony Fish, Dan Gay, Don Kelly, Rodney LeBrun, Michael Robare, Dave Smith, Joe Thomas, Bob Wesson and Steve Williams.
[131] In contrast, other Waffle House witnesses testified that Therese Scribner dressed inappropriately at work, wearing "tight or clinging" or "low cut" clothes while other Waffle House witnesses claimed that Therese's clothes were "too fancy" for work. Indeed, according to Joe Rogers, who owns and controls Waffle House, she was "overdressed" and even wore high heels (which "he wouldn't even let his wife wear in our restaurants").
[132] Lisa Mercer never told Tim Mercer (then her husband) that she did not appreciate the plaintiff talking like this when they were both present. Similarly, Kathy Thornton never told her husband about this because it was "no big deal" and supposedly because "we don't share stuff like that."
[133] David Adams testified that the plaintiff made two sex-based comments to him when no one else was present; however, Adams did not report or discuss this conduct with anyone, and no one else ever told Adams that Therese had made sex-based comments to them.
[134] In fact, several Waffle House witnesses including Lib Julian truthfully testified that the plaintiff "was very professional" and that she "did not make inappropriate comments."
[135] Exh. 141.
[136] Indeed, this testimony by Joe Rogers became even more difficult to comprehend when his attorneys made this statement in a post-trial pleading: "Rogers concluded that Scribner participated in sex-based banter [and] had initiated the remarks regarding Dolly Parton ... Wright, however, was counseled by Rogers and Julian that such jesting would not be condoned by the Company."
[137] Shelton's employment as a Grandy's recruiter lasted six years, from 1985-1992.
[138] Although Therese Scribner had been fired by Skip Nau on March 1, 1990 (confirmed by his March 6, 1990 letter to her), she received severance pay through April 30, 1990. See Exh. 261, p. 10 (defendant's July 26, 1990 response to the plaintiff's TCHR charges). Waffle House's argument that there was something wrong with Scribner opening her recruiting business during this 60-day severance pay period and with her talking to Waffle House employees who called her, wanting her to help them find new jobs is ridiculous, and it is rejected by this Court.
[139] The credible trial evidence established that from 95-100 employees were placed at Grandy's by Resource Recruiters.
[140] These witnesses included Glenda Adams, Matthew Bullock, Lisa Chamblis, David Coleman, Tony Fish, Rodney LeBrun, Dave Smith and Bob Wesson.
[141] The quotations in this paragraph are from the Waffle House response to the plaintiff's TCHR complaint (Exh. 261).
[142] Fran Dubuisson remembered only "one person calling from" Waffle House, a "manager of some sorts," who asked to speak to Therese Scribner. When Therese ended this call, she said to Dubuisson, "I guess I wasn't the only one who was unhappy at Waffle House."
[143] Margaret Dailey testified, very credibly, that James Williams, a Waffle House Unit Manager, just called "out of the blue" and told Dailey that "he would like to refer others" at Waffle House to Resource Recruiters. Dailey also testified truthfully that she (Dailey) interviewed the persons who were still employees of Waffle House and that Therese Scribner did not participate in any of these interviews.
[144] When Larry Cannon told Dave Smith that Therese Scribner "was calling to recruit Waffle House employees," Smith said to Cannon: "This is not correct. It's not in her nature to do that."
[145] In fact, as Dailey testified, the plaintiff did not participate in her interview of Doug Eckhoff. Instead, she simply made a few "feed back" notes later in Eckhoff's file, including his call to the plaintiff to say that "he had decided to stay at Waffle House."
[146] During the spring of 1992, Larry Cannon also told a "multi-unit manager" at a Grandy's restaurant that "you've got a lot of Waffle House people working for you," but this is "a two-way street," and if it continues "we will do it to Grandy's."
[147] The only two Waffle House employees who interviewed with Resource Recruiters between the May 8 and May 12, 1992 calls by Nau and Cannon were Tony Fish and Ann Tate. Neither Fish nor Tate went to work for Grandy's. Fish was told by James Douglas to call Scribner after he (Douglas) had contacted her earlier; as discussed above, Fish lied about this at trial.
[148] Robert McGregor explained that it was common in the fast food industry particularly with the incredibly difficult working conditions for other employees "to follow a disgruntled employee who leaves," and for these employees "to turn into recruiters for their new company."
[149] This was the same Larry Cannon, of course, whose threats had caused Grandy's to terminate its recruiting agreement with Resource Recruiters some two years before trial.
[150] As stated above, the quotes in this opinion are based upon the Court's contemporaneous trial notes.
[151] Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 2228, 41 L. Ed. 2d 1 (1974).
[152] Peters v. City of Shreveport, 818 F.2d 1148, 1154 n. 3 (5th Cir.1987), cert. dismissed, 485 U.S. 930, 108 S. Ct. 1101, 99 L. Ed. 2d 264 (1988).
[153] Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985).
[154] This is based upon the credible testimony and exhibits, as summarized in Exh. 267, a comparison of Scribner's compensation during these four periods (and others) to comparable male recruiters, including Seal, Smith, Brazelton and Whaley.
[155] See, e.g., Skip Nau's 10/26/89 memo (Exh. 24): "Terez has gone through a difficult time in Dallas Particularly with Steve Wright (This is not news ...)."
[156] There was only one reason why Steve Wright did not lie about this: Wright, as he testified in his deposition, "did not know that [the plaintiff's] pay was an issue in this case."
[157] See Exh. 267, p. 1.
[158] In fact, Rick Seal's performance as a recruiter was so unsatisfactory that he "resigned" just shortly before he was going to be terminated by Waffle House. Seal started his employment on July 8, 1985 (Exh. 56), and he "resigned" several months before the plaintiff was hired. Again, Steve Wright lied about Seal; after he testified that Seal left "to pursue another career opportunity," he was asked, "You fired him?" and he answered "yes."
[159] This is recorded in Steve Wright's handwritten notes in the "Comments" section of Exh. 56 (the Waffle House "Employee Status" form of Rick Seal).
[160] That is, Seal's base salary of $38,000 plus his earned performance bonus of $6,250.
[161] Just as Therese Scribner would have received this $2,540 raise on June 29, 1987, if she had started as a recruiter at the same salary and bonus that Rick Seal received when he was hired on July 8, 1985.
[162] Rusty Whaley, who became the recruiter of the Metro West Area in Atlanta on March 10, 1989, was also located at the Waffle House headquarters. His starting salary as a recruiter was $52,640 (salary, bonus and car allowance).
[163] Unlike Rick Seal, Brazelton regularly earned his maximum performance bonus.
[164] Brazelton had received his allowance since he began as a Waffle House recruiter in 1986.
[165] The recruiter's car allowance, of course, was for reimbursement of expenses incurred in the use of their personal cars on company business. Obviously, the amount of actual car expenses varied between recruiters. However, these calculations include the maximum car allowances without expense offsets, and this treats each recruiter's total compensation in an equal manner. This is a fair comparison, particularly since it does not include the periods when the plaintiff, the sole female recruiter, was not being paid the car allowance which the male recruiters were receiving.
[166] The evidence showed that Scribner made trips to other cities and states in the Western Area. In addition, Skip Nau addressed memos to "All Recruiters," not just to those in Atlanta (e.g., Exhs. 25, 26, 27 and 28). And, despite the spurious contention that Brazelton handled four times as many restaurants as Scribner, each received the same car allowance of $4,260 when the plaintiff finally received her's beginning June 3, 1988.
[167] On March 10, 1989, Bob Burke became the second recruiter in Atlanta. He was also a former District Manager who had no prior recruiting experience.
[168] Although Whaley was terminated by Waffle House on July 28, 1989, he would have received at least $52,648 through March 1, 1990, the date of the plaintiff's termination.
[169] Because John Brazelton's compensation was higher than that of Rick Seal after he began as a novice recruiter on August 22, 1986, Seal's extra pay is used only for the preceding one month of the plaintiff's employment.
[170] That is, the total of the $10,780 unequal pay for one period (8/22/86-6/29/87) and the $9,720 unequal pay for the next period (6/29/87-6/3/88).
[171] The Waffle House contention that any "sex-based conduct or language" was really based on the plaintiff's "personality rather than her sex" is disingenuous, to say the very least.
[172] Including (i) Unit Managers Michael Robare, David Coleman, Steve Williams, Vic Neely, Kyle Coleman, Hans Spies, and Dino Bolero, and (ii) the plaintiff's friends and neighbors Erma Cook, Margaret Dailey and Fran Dubuisson (Dailey and Dubuisson also worked for Resource Recruiters).
[173] Including hourly employees in the various Waffle House restaurants and those who attended company special events, like the "Top Operator" Awards Banquet, etc.
[174] E.g., Mary Wright, Sherry Mercer and Kathy Thornton.
[175] That is, the highest income that was paid to any of the male recruiters at Waffle House.
[176] The gross income of Resource Recruiters in prior years was $40,364 (1990), $57,044 (1991), and $72,663 (1992). Exhs. 204-207. Its net income in 1992 was less than $50,215 because of business expenses. Exh. 206.
[177] Exh. 207, p. 2.
[178] 510 U.S. at 22, 114 S. Ct. 367, 370-71, 126 L. Ed. 2d 295 (1993).
[179] 90 F.3d 927, 937-41 (5th Cir.1996).
[180] Farpella-Crosby, 97 F.3d at 808 (In Patterson, the court looked to a discussion of the `manifestation: of emotion harm found in an EEOC policy statement.' Id. at 939 (citing EEOC POLICY GUIDANCE NO. 915.002 II(A)(2) (July 14, 1992)). The Commission lists numerous ways in which emotional harm may manifest itself, including physical manifestations as well as other types of manifestations, such as stress and humiliation).
[181] Id. at 809.
[182] Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 664 (Tex.1990); Exxon Corp. v. Allsup, 808 S.W.2d 648, 661 (Tex.Civ. App. Corpus Christi 1991, writ denied); Times Herald Printing Co. v. A.H. Belo Corp., 820 S.W.2d 206, 215 (Tex.Civ.App. Houston 1991, no writ).
[183] 797 F.2d 227 (5th Cir.1986).
[184] This was less than Resource Recruiters' standard fee of 1% per each $1,000 of the employees' pay in the jobs obtained for them by Resource (e.g., with a $20,000 salary, the recruiting fee was $4,000). However, because Resource and Scribner had an "ongoing relationship" with Grandy's, their normal fee was discounted under their contract.
[185] Id. at 237.
[186] Id. at 237 (recovery of $150,000 in punitive damages, as well as actual damages, for malicious interference with an exclusive brokerage agreement).
[187] Section III G 3-5 of this opinion.
[188] Just as Grandy's would have continued to find employees through other sources besides Resource Recruiters.
[189] Therese Scribner testified that "my firm represents Domino's, Cici's Pizza, El Chico, Western Sizzler, Cracker Barrel," and others.
[190] This is based upon a modest 20% yearly increase in the Grandy's business, which is certainly reasonable in view of the relationship and respect between Debbie Shelton and Therese Scribner.
[191] This is from the date of the Grandy's-Resource Recruiters agreement (October 11, 1990) to the trial (December 1994).
[192] Musser v. Smith Protective Services, Inc., 723 S.W.2d 653 (Tex.1987); Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499 (1950).
[193] Grandy's first did business with Therese Scribner individually and then, after she formed her corporation in September 1990, Grandy's entered into the written agreement with Resource Recruiters. It is apparent, therefore, that the Waffle House defamation of Scribner necessarily defamed and damaged Resource Recruiters, the corporate plaintiff.
[194] The slanderous statements made by Skip Nau and by Dave Theobold to Robert McGregor are discussed above in Section III, G 4 ("The Fictitious `Raid' Upon Waffle House.")
[195] Brown v. Petrolite Corp., 965 F.2d 38 (5th Cir.1992); City of Brownsville v. Pena, 716 S.W.2d 677, 681 (Tex.Civ.App.-Corpus Christi 1968, no writ); Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 441 (Tex.Civ.App.-Corpus Christi 1985, no writ).
[196] Brown, 965 F.2d at 45-46.
[197] Nor was there any proof of any separate "mental anguish" damages that Resource Recruiters suffered because of the defamation of Therese Scribner.
[198] At a time when Therese Scribner's husband had been laid off by his employer, McDonald Douglas. See Exhs. 196-198 (containing a record of his unemployment compensation).
[199] Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993); Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993).
[200] See Section III A 3 (The Plaintiff's Hiring By Waffle House), at fn. 44 (finding that Wright did not tell Scribner that she could only be terminated for cause, i.e., for "violating the employee conduct policy").
[201] For the reasons explained, the plaintiff is not awarded damages under her state law claims for breach of contract and intentional infliction of emotional distress.
[202] In Haslip, the insurance agent collected premiums from the plaintiffs, but failed to remit them to the insurance company or to send "notices of lapsed coverage" to the plaintiffs; the company denied coverage for hospitalization expenses incurred before the "plaintiffs learned their insurance had lapsed."
[203] 934 F.2d at 1380.
[204] Id. at 1381.
[205] Id.
[206] Similarly, the employee who reviewed Eichenseer's claim did not even consult with the in-house doctor at Reserve Life before denying the claim.
[207] The $500,000 punitive damages awarded in Eichenseer was "less than one third of one percent of Reserve Life's net worth."
[208] Of course, the first factor applied by the Fifth Circuit in Eichenseer "circumstances indicating the reasonableness of the punitive damages award" encompasses all three of the factors later set by the Supreme Court in BMW of North America: i.e., the degree of reprehensibility, the ratio of punitive to actual damages, and sanctions for comparable misconduct.
[209] Id. at 1385-86.
[210] In Brown v. Petrolite Corp., the jury award of $300,000 in punitive damages to the individual plaintiff was reversed because the jury also found that he "had suffered only nominal damages." (965 F.2d at 48).
[211] See also Hiltgen v. Sumrall, 47 F.3d 695 (5th Cir.1995) (auto-truck accident: $1.5 million in actual damages and $1.5 million in punitive damages); Texas Tanks, Inc. v. Owens-Corning Fiberglas Corp., 99 F.3d 734 (5th Cir.1996) (trade secrets case affirming jury award of $2 million in actual damages and $3 million in punitive damages because defendant "acted with malice" in beginning development of its design only one week after it received the plaintiff's prototype).
[212] E.g., Unit Managers Michael Robare, Don Kelly, David Coleman, Steve Williams, Dan Gay, Vic Neely, Kyle Coleman, David Adams and others.
[213] E.g., Mary Wright and Sherry Mercer.
[214] E.g., Erma Cook and Fran Dubuisson.
[215] For example, in addition to those noted above, Joe Rogers told these lies to the Court at trial: that Seal "had twice the job duties and challenges that Therese Scribner did"; that he had repeatedly instructed Steve Wright and others "that he wanted the plaintiff fired"; that two years after Scribner was terminated "there was a sudden fire storm of people leaving" because she recruited them for Grandy's; and that Scribner "was not a recruiter," but only "a placement secretary."
[216] Following the meeting, Steve Wright did admit to Joe Rogers that he (and Oswald) had made the "Dolly Parton" and "signing bonus" comments; Rogers merely said, "Do not do things like that again."
[217] This treatment of women and minorities had been tempered only slightly in the years before trial, when perhaps "several" of Waffle House's 140 District Managers and 45 Division Managers were female since there were no female Regional Managers or Area Managers and since the corporate management in Atlanta has never included any females, African-American, Hispanics, or other minorities.
[218] According to the testimony of Joe Rogers.
[219] The Nichols figures include the $75,000 award for emotional distress; if that is excluded, the actual damages would be $50,247, and the Nichols ratio would be about 4-1.
[220] As discussed above, this consists of $133,920 in lost income due to the retaliatory discharge and mental anguish damages of $358,000.
[221] Because Eichenseer involved only minimal actual damages ($1,000), this is not comparable to the actual sexual harassment damages of $473,775 in this case.
[222] BMW, ___ U.S. at ___, 116 S.Ct. at 1601. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583112/ | 51 F.Supp. 914 (1943)
WALLING, Adm'r of Wage and Hour Division,
v.
HOME LOOSE LEAF TOBACCO WAREHOUSE CO., Inc., et al.
No. 6.
District Court, E. D. Kentucky.
September 18, 1943.
Douglas B. Maggs, Sol., and Irving J. Levy, Associate Sol., and Jeter S. Ray, Regional Atty., and Glenn M. Elliott, Atty., U. S. Dept. of Labor, both of Nashville, Tenn., for plaintiff.
J. J. Greenleaf, of Richmond, Ky., for defendants.
FORD, District Judge.
I have heretofore indicated my views upon all questions involved in this case except that presented by the contention of the defendants that, due to the exemption provisions of Section 13(a) (10) of the Fair Labor Standards Act, 29 U.S.C.A. § 213(a) (10), sections 6 and 7 of the Act, 29 U.S.C.A. §§ 206, 207, do not apply to their employees.
Congress imposed upon the Administrator the difficult task of working out a practical solution of the many intricate problems involved in the administration of the Act in harmony with its declared policy and expressed purpose. It expressly delegated to him authority to define many of its terms including the phrase "area of production", as used in the exemption provision here relied upon. In the performance of his duty, the Administrator has obviously considered it incumbent upon him to define this phrase, not as an abstract concept, but as it is employed in this particular statute, in the light of the mischief to be corrected and the end to be attained. Warner v. Goltra, 293 U.S. 155, 158, 55 S.Ct. 46, 79 L.Ed. 254. By a regulation duly promulgated he has provided that an individual shall be regarded as employed in handling agricultural commodities for market, in the "area of production", within the meaning *915 of section 13(a) (10), "if he performs those operations on materials all of which come from farms in the general vicinity of the establishment where he is employed and the number of employees engaged in those operations in that establishment does not exceed ten". See Wage and Hour Regulations, April 1941, section 536.2. The defendants challenge the validity of this regulation only in so far as it narrows the application of the exemption by limiting it to employees engaged in an establishment having not more than ten employees. No question is raised as to the validity of that portion of the regulation which limits the scope of the exemption to employees performing any of the enumerated operations "on materials all of which come from farms in the general vicinity of the establishment."
The Supreme Court has frequently emphasized the general rule that exemption provisions of a remedial statute "should be strictly construed; that is, should be so interpreted as not to destroy the remedial processes intended to be accomplished by the enactment", Spokane & I. E. R. Co. v. United States, 241 U.S. 344, 350, 36 S.Ct. 668, 671, 60 L.Ed. 1031, "should be narrowed and limited to effect the remedy intended", Piedmont & N. R. Co. v. Interstate Commerce Commission, 286 U.S. 299, 311, 52 S.Ct. 541, 545, 76 L. Ed. 1115, and should be read in harmony with the purpose of the measure and held to extend only to those plainly within its terms, McDonald v. Thompson, 305 U.S. 263, 266, 59 S.Ct. 176, 83 L.Ed. 164, Gregg Cartage & Storage Co. v. United States, 316 U.S. 74, 83, 62 S.Ct. 932, 86 L.Ed. 1283. That the Fair Labor Standards Act is highly remedial, and that provisions which create exemptions from its operation should be construed and interpreted in accordance with these rules, is not open to doubt. Helena Glendale Ferry Co. v. Walling, 8 Cir. 132 F.2d 616, 619, Bowie v. Gonzalez, 1 Cir., 117 F.2d 11, 16.
Giving effect only to the unchallenged portion of the administrative regulation, before the defendants' employees may be denied the benefits of this remedial legislation, the burden rests upon the defendants to clearly and plainly establish that all, or substantially all, of the tobacco which they handled "came from farms in the general vicinity of the establishment".
The corporate defendant, Home Loose Leaf Tobacco Warehouse Company, of which its co-defendant W. E. Luxon is president, operates the business of conducting auction sales of loose leaf tobacco, at four warehouses located in Richmond, Madison County, Kentucky. It operates five sales floors with a large number of employees who handle the tobacco when received at the warehouse and upon delivery to purchasers. In addition to managing and supervising the corporate enterprise, Mr. Luxon purchases tobacco, on his individual account, on these warehouse floors and at other loose leaf warehouses in the city, some of which he resells on these floors and some of which he transports to Lexington for redrying and resale. He also processes and sells a considerable quantity of "scrap" tobacco gathered from the sales floors of the company.
It appears from the evidence that during the 1938-39 season a total of 5,184,124 pounds of tobacco were sold at auction upon the defendants' floors, of which 625,076 pounds represented resales, leaving a net of 4,559,048 pounds for the season. Of this total 64,340 pounds were received from states other than Kentucky, 103,576 pounds from sources the location of which is not shown by the records, and 950,940 pounds were received from numerous counties of Kentucky not located contiguous or adjacent to Madison County, many of which are located fifty miles or more from the establishment at Richmond. It thus appears that more than twenty percent of the total volume of tobacco handled came from places unknown, from other states and from Kentucky counties entirely too remote from the establishment to be regarded as within its "general vicinity". A similar computation from the records in evidence discloses substantially the same situation, relatively speaking, in respect to the tobacco handled in the seasons of 1939-40, 1940-41 and 1941-42.
The defendants contend that, although many of the counties from which the tobacco is received at Richmond are not contiguous or adjacent to Madison County, the geographical location of most of them is such that Richmond is the normal and customary market for their tobacco and in some cases the nearest market to them. Neither custom nor convenience, in respect to the place of marketing an agricultural commodity, however, is prescribed *916 as the test for determining whether a particular marketing establishment is within the "area of production" of such commodity.
The defendants' sales floors are operated not merely to serve local producers. They receive and sell tobacco delivered by speculators and other dealers as well as producers, without regard to where it is produced or the place from which it comes.
The defendants have not sustained the burden of showing that their employees are plainly within the terms of the exemption provision, as defined by the unchallenged portion of the administrative regulation. It seems unnecessary to consider the other interesting questions which have been raised and ably discussed in briefs by both parties.
I am of the opinion that the plaintiff is entitled to the relief for which he prays.
Attorneys for the plaintiff will submit Findings of Fact, Conclusions of Law and Judgment in conformity with the views heretofore and herein expressed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645155/ | 994 So.2d 527 (2008)
STATE ex rel. Charles BROU
v.
Carl R. MARTIN and Thomas Sullivan, Clerk of Court for the Parish of Livingston.
No. 2008-C-1685.
Supreme Court of Louisiana.
October 31, 2008.
Reconsideration not considered. See Louisiana Supreme Court Rule IX, Section 6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3044454/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3865
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Kevin Scott Miller, *
* [UNPUBLISHED]
Defendant - Appellant. *
___________
Submitted: May 27, 2008
Filed: May 30, 2008
___________
Before BYE, RILEY, and MELLOY, Circuit Judges.
___________
PER CURIAM.
The United States Supreme Court granted certiorari in this case, vacated the
judgment, and remanded the case to our court for further proceedings. We now vacate
the opinion and judgment we entered in this case and remand to the district court for
resentencing in light of the United States Supreme Court decision in Begay v. United
States, __ U.S. __, 128 S. Ct. 1581 (2008).
______________________________ | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1918565/ | 101 B.R. 28 (1988)
In re Dean Ralph RUBITSCHUNG, Debtor.
Clarence C. COUCH, Plaintiff,
v.
Dean R. RUBITSCHUNG, Defendant.
Bankruptcy No. 282-00528, Adv. No. 282-0198.
United States Bankruptcy Court, C.D. Illinois, Danville Division.
April 6, 1988.
Brian L. McPheters, Champaign, Ill., for plaintiff.
Dean R. Rubitschung, pro se.
OPINION
GERALD D. FINES, Bankruptcy Judge.
This case is before the Court for trial on the Complaint to Declare an Exception to Discharge in Bankruptcy filed on October 6, 1982, by the Plaintiff, Clarence E. Couch (Couch), pursuant to 11 U.S.C. § 523(a)(6), *29 alleging that on March 27, 1981, the Debtor, Dean R. Rubitschung (Rubitschung), violently assaulted Couch without cause or provocation resulting in the Plaintiff sustaining serious physical injuries.
Couch had filed a state court action in the Champaign County Circuit Court on August 21, 1981, and on November 8, 1983, the Honorable Larry Lessen entered an order lifting the automatic stay and allowing the state court action to proceed to trial. A default judgment was entered against the Debtor in the sum of $65,150 for compensatory damages and $25,000 for punitive damages. No appeal was taken from the default judgment.
Couch filed a Motion for Summary Judgment herein on February 11, 1988, with oral arguments heard February 19, 1988. This Court denied the Plaintiff's Motion for Summary Judgment on March 7, 1988.
At trial, Rubitschung appeared pro se. The Court admonished the Debtor as to his rights and cautioned him that the Court would not consider any matters not in evidence.
Only three witnesses testified at trial, including the Plaintiff, the Debtor, and the Plaintiff's former spouse, Rita Couch. Couch testified that on March 28, 1981, he was in the Tumble Inn in Champaign, Illinois, when he first observed Rubitschung. Couch testified that he never said anything insulting or provocative to the Debtor and "never laid a hand on the Defendant." Both Couch and the Debtor left the tavern together and went to a patio area to the rear of the tavern to talk.
At this point, Couch says that the Debtor hit him with a bottle or some other object. The Plaintiff was struck above the left eye and was rendered unconscious. Couch was subsequently hospitalized for three to three and a half days. Couch admits to consuming some six beers between 6:30 p.m. and 11:30 p.m., but denies having any other alcoholic beverages.
Rita Couch testified that she and the Plaintiff drove in the Plaintiff's car to the Tumble Inn and were together all evening. Ms. Couch substantiates her former husband's testimony and specifically testified that she saw no physical contact between Couch and Rubitschung in the tavern nor saw the Plaintiff threaten the Debtor in any way.
Ms. Couch further testified that she saw Couch and the Debtor leave the tavern and go outside to the front of the building. When she looked outside again and didn't see them, she walked out back of the tavern and saw the Plaintiff on the ground unconscious. Ms. Couch testified that she took Couch home and then to the hospital because of his injuries.
Ms. Couch says that, when she saw the Plaintiff on the ground, his face was a mass of blood and there was a broken beer bottle with blood on it next to him. At the hospital, she said she observed the Plaintiff with bruises on his legs and body and that his head was swollen the size of a basketball.
The Debtor was called as part of the Plaintiff's case-in-chief. During this testimony, the Debtor acknowledged that he was at a tavern known as the Dodge House on March 27, 1981, and asked for and was given a rag by a bartender to clean blood off his hands and that he had told the bartender that he had just "kicked the shit out of Clarence Couch."
Despite the Court's admonishments to the Defendant that it was incumbent upon him to present his own evidence, the Defendant rested without presenting any testimony. The Plaintiff made a Motion for Directed Verdict, which was denied by the Court.
Title 11 U.S.C. § 523(a)(6) denies discharge for willful and malicious injury by the debtor to another entity or to the property of another entity. Therefore, Plaintiff must prove (1) a willful and malicious act (2) done without cause (3) which leads to harm. In re Hallahan, 78 B.R. 547, 550 (Bankr.C.D.Ill.1987).
While there is no universally accepted definition of the term "willful and malicious," this Court concludes that willful and malicious conduct is the deliberate or intentional act of a debtor with knowledge *30 that the act will harm another. In re Roemer, 76 B.R. 126, 128 (Bankr.S.D.Ill. 1987); In re Hallahan, supra at 550. Thus, "malicious" means a wrongful act done consciously and knowingly in the absence of just cause or excuse. In re Bossard, 74 B.R. 730, 736 (Bankr.N.D.N.Y. 1987); In re Condict, 71 B.R. 485, 487 (Bankr.N.D.Ill.1987). It is not necessary for the debtor to act with ill will or malevolent purpose toward the injured party. Hallahan, supra, at 550.
The Court has previously ruled on the issue of the dischargeability of the state court award of $25,000 under amended Count II for punitive damages. Inasmuch as the $25,000 award was punitive in nature and in no way altered the extent of the damages for money obtained for actual damages, the Court must deny that portion of the Plaintiff's case which relates to the punitive damages issue. See: In re Suter, 59 B.R. 944, 946-947 (Bankr.N.D.Ill.1986).
Section 523(a)(6) provides:
"(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title . . . does not discharge an individual debtor from any debt
. . . . .
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;"
Debts which are based on the traditional intentional torts, such as assault and battery are non-dischargeable under § 523(a)(6). In re Cunningham, 59 B.R. 743 (Bankr.N.D.Ill.1986). Even if Couch provoked Rubitschung, any liability arising out of this incident is exempted from discharge. See: In re Sturtevant, 49 B.R. 310 (Bankr.D.Mass.1985). Based upon the trial record, the Court can only conclude that the Debtor's actions were willful and malicious in the present case. The Court cannot speculate as to what evidence may have been adduced at trial had the Debtor been represented by counsel or otherwise presented a competent defense.
Therefore, the Court finds that the Plaintiff has established through clear and convincing evidence that the Debtor's assault and battery against the Plaintiff on March 28, 1981, was both willful and malicious as those terms are defined under § 523(a)(6), and the debt arising from Debtor's conduct on March 28, 1981, is NON-DISCHARGEABLE.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582957/ | 31 So. 3d 921 (2010)
Solveig Edna HILL, Appellant,
v.
Douglas DAVIS, as Personal Representative of the Estate of Kristine E. Davis, deceased, Appellee.
No. 1D09-4020.
District Court of Appeal of Florida, First District.
March 31, 2010.
*922 H. Guy Green, Marianna, and Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
Frank A. Baker, Marianna, and Steven Lenoff, Deerfield Beach, for Appellee.
WEBSTER, J.
In this probate appeal, appellant seeks review of the trial court's order denying her motions to disqualify appellee as the personal representative of the decedent's estate. Appellant asserts that the trial court erred in concluding that appellee was qualified to serve as a nonresident personal representative pursuant to section 733.304(3), Florida Statutes (2007). We do not reach the merits of this claim because we conclude that appellant's motions to disqualify appellee as personal representative were time barred pursuant to section 733.212(3), Florida Statutes (2007). For that reason, we affirm.
Following the decedent's death in Florida, appellee, a resident of New York, filed a petition for administration which claimed that he was entitled to be appointed the personal representative of the decedent's estate because he was the decedent's stepson and was nominated representative in the decedent's will. The trial court subsequently appointed appellee as personal representative and admitted the proffered will to probate. Appellee published the notice of administration and served a copy on appellant who was the decedent's mother. Appellant then filed two motions to have appellee removed as personal representative on the ground he was not qualified to serve as a nonresident personal representative pursuant to section 733.304(3), Florida Statutes (2007), because appellee's father had predeceased the decedent and was not the decedent's spouse at the time of her death and, therefore, appellee was not a lineal descendent of a spouse of the decedent. Appellee responded by moving to strike appellant's motions as untimely because they were not filed within three months after service of the notice of administration as required by section 733.212(3), Florida Statutes (2007). He also asserted that he was qualified to serve as personal representative because section 733.304(3) did not limit service by nonresidents to lineal descendants of a surviving spouse. The trial court denied appellant's motions to disqualify upon concluding that appellee qualified as a nonresident personal representative pursuant to section 733.304(3). The court also found that appellant's motions to disqualify were made more than three months after service of the notice of administration, but did not indicate whether this finding was a ground for its ruling. This appeal follows.
Section 733.212, Florida Statutes (2007), provides in pertinent part:
(3) Any interested person on whom a copy of the notice of administration is served must object to ... the qualifications of the personal representative ... by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration *923 on the objecting person, or those objections are forever barred.
The trial court specifically found that appellant's motions to disqualify were made more than three months after service of the notice of administration (a finding that appellant does not dispute), but did not indicate whether this finding was a ground for its denial of the motions. In fact, the trial court could not have denied the motions as untimely because such a ruling would have been contrary to binding precedent of the Third District Court of Appeal in Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004), which held that the three-month statute of limitations found in section 733.212(3) did not apply to bar a petition to remove the nonresident nephew-in-law of the decedent who misrepresented himself as the decedent's nephew and was not qualified to serve as personal representative under section 733.304. The Third District explained:
The three-month statute of limitations period contained in Section 733.212(3) does not apply to bar Angelus's petition because Pass was never legally qualified to serve as personal representative at any time. The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§ 733.304, 733.3101, Fla. Stat. (2003). We find no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute nor upon [Florida Probate] Rule 5.310, particularly where the applicant was never otherwise legally qualified to serve. See In re Estate of Anderson, 583 So. 2d 801 (Fla. 1st DCA 1991); Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988).
To do so would render Rule 5.130 meaningless and would improperly shift the burden of discovery of an applicant's misrepresentations to the court and interested parties. Such a result would be antithetical to the policy of requiring personal representatives to hold specific qualifications and to be held to the highest standards of honesty and truthfulness. Simply, Section 733.212(3) does not provide the trial court with discretion to allow a legally unqualified person the privilege to serve as personal representative. See In re Estate of Greenberg, 390 So.2d at 40; In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997).
Id. at 573. In the absence of any appellate decision to the contrary, the trial court was required to follow Angelus. See Pardo v. State, 596 So. 2d 665, 666 (Fla.1992) (stating that district court decisions bind all Florida trial courts in the absence of interdistrict conflict).
However, we disagree with the sweeping holding in Angelus because it effectively renders part of section 733.212(3) meaningless. See State v. Goode, 830 So. 2d 817, 824 (Fla.2002) ("[A] basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless"). The statute clearly states that interested persons such as appellant "must object to ... the qualifications of the personal representative" within three months of the service of the notice of administration or such an objection is "forever barred." A claim that a nonresident is not qualified to serve as a personal representative pursuant to section 733.304 is an objection to "the qualifications of the personal representative" and should be subject to the clear and unambiguous provisions of section 733.212(3). Although section 733.212(3) and section 733.304 are found in *924 separate parts of the Florida Probate Code, statutes which relate to the same or closely related subjects should be construed together. See Alachua County v. Powers, 351 So. 2d 32, 40 (Fla.1977); Smith v. Crawford, 645 So. 2d 513, 522 (Fla. 1st DCA 1994). Contrary to the Third District's decision in Angelus, we find nothing in Florida Probate Rule 5.310 or sections 733.304 and 733.3101, Florida Statutes, which would preclude the application of the three-month statute of limitations period contained in section 733.212(3) to appellant's claim that appellee was not qualified to serve as a nonresident personal representative pursuant to section 733.304 where the factual basis for the claim was known to appellant and could have been raised within the three-month period. This is not a situation where the factual basis for the claim of disqualification was concealed from appellant or arose after the three-month period had expired. Because appellant's motions to disqualify appellee as personal representative were time barred under section 733.212(3), we affirm the trial court's denial of the motions on that basis. We also certify conflict with Angelus. In light of this disposition, it is unnecessary for us to decide whether appellee was qualified to serve as a nonresident personal representative pursuant to section 733.304(3).
AFFIRMED.
LEWIS and ROBERTS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583071/ | 51 F. Supp. 30 (1943)
UNITED STATES
v.
711.57 ACRES OF LAND IN EDEN TP., ALAMEDA COUNTY, CAL., et al.
No. 22294-G.
District Court, N. D. California, S. D.
June 23, 1943.
*31 M. Mitchell Bourquin, Sp. Asst. Atty. Gen., and Francis N. Foley, Sp. Atty., of San Francisco, Cal., for plaintiff.
Cornish & Cornish, of Berkeley, Cal., for defendants Mary L. Schneider and Elsbeth Schneider.
Tsar N. Calfee, of Richmond, Cal., for defendant N. P. Nielson.
Hackley & Hursh, of San Francisco, Cal., for defendants Frank A. and Alice R. Edwards, and Grover C. Keeter and Esther E. Keeter.
Pierre A. Fontaine, of Oakland, Cal., for defendant Belle Stanley.
John T. Wentz, of Oakland, Cal., for defendants Robert P. King and John F. Canine.
Hadsell, Sweet, Ingalls & Carroll, of San Francisco, Cal., for defendant Edna H. Stenzel.
Hilton J. Melby, of Oakland, Cal., for defendant H. W. Meek Estate, Inc.
GOODMAN, District Judge.
Plaintiff filed this action to condemn 711.57 acres of land in Eden Township, County of Alameda, State of California, for use in connection with the Russell City Airfield, under the authority of 26 Stat. 316, as amended by 40 Stat. 241, and 40 Stat. 518, 50 U.S.C.A. § 171, and the Act of March 27, 1942, Public Law No. 507, 77th Congress, and the Act of Congress approved April 28, 1942, Public Law No. 528, 77th Congress, c. 247, 56 Stat. 226.
An order for immediate possession was entered pursuant to the Act of March 27, 1942, Public Law No. 507, 77th Congress, 50 U.S.C.A. Appendix, § 632.
Declaration of taking was thereafter filed and the sum estimated by the Secretary of War as just compensation was deposited in the Registry of the Court.
Eight of the defendants answered, each claiming ownership of a separate parcel of the acreage sought to be condemned and each alleging that their respective parcels had a larger value than that estimated by the Secretary of War. A jury trial having been waived, the issues, upon evidence taken and briefs filed, was submitted to the Court.
The parcels involved are agricultural and in some cases improved by buildings and other farm appurtenances. Witnesses as to values testified for each of the defendants, and, in opposition, O. C. Hiatt, an appraiser of the Federal Land Bank of Berkeley, testified for plaintiff. The values as claimed by each of the defendants substantially exceeded those fixed by Mr. Hiatt.
The issue that I am called upon to determine here is the "market value fairly determined as of the date of taking." United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. ___; Olson v. United States, 292 U.S. 246, 54 S. Ct. 704, 78 L. Ed. 1236.
As frequently stated, market value is "what a willing buyer would pay in cash to a willing seller." United States v. Miller, supra [317 U.S. 369, 63 S. Ct. 280, 87 L. Ed. ___].
It is settled that "where actual sales cannot be used as a basis for ascertaining `market value' * * * appraisals are made and the jury decides from the various appraisals and other evidence, what the `market value' is." Washington Water Power Co. v. United States, 9 Cir., 135 F.2d 541, 542, decided Apr. 30, 1943.
It is also settled that a witness may base his appraisal on the "highest and most profitable use for which the property is adaptable and needed or likely to be needed *32 in the reasonably near future." Olson v. United States, supra [292 U.S. 246, 54 S. Ct. 708, 78 L. Ed. 1236].
A comprehensive investigation of defendants' parcels was made by Mr. Hiatt, the plaintiff's appraiser. With the aid of assistants, Mr. Hiatt thoroughly surveyed each of the parcels and completely catalogued and examined all of the improvements on each parcel; in addition he investigated and checked all sales made in the immediate vicinity for several years prior to the taking and interviewed a number of persons of long experience and familiarity with the property and its uses. Both his investigation and appraisal appear to me to have been thoroughly and conscientiously conducted with a view to a just evaluation. His conclusions were wholly impersonal and not actuated by any adversary concept. On the other hand, the testimony of the defendants and their respective appraisal witnesses appear to me to be tinged with the over-enthusiasm of owners and to represent more the view-point of one who attaches value because of sentimentality and devotion to his or her own property.
The special adaptability to his own use, of land, with which an owner is reluctant to part, is not an element to be taken into account in reaching fair market value. United States v. Miller, supra.
In the case of one parcel, it appeared that the taking occurred several months after acquisition of the property by the owner and that the value fixed by the owner would result in gain to him. In condemnation proceedings that is not allowable. United States v. Miller, supra.
In the case of another owner, witnesses testified that the land was suitable for subdivision purposes and the owner claimed that to be the highest and most profitable use of the property. From the evidence, however, such use in the near future appears to me to be wholly uncertain and not reasonably probable. "Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration." Olson v. United States, supra.
In another case, claim was made that the parcel had value for future industrial use, but the improbability thereof, on the basis of past history is very evident.
One other matter requires comment. In the cross-examination of defendants' appraisers, the assessed valuation of various parcels, for state and county tax purposes, was disclosed in the evidence. I have not taken such evidence into account but have excluded it from consideration in determining fair market value. Johnson & Wimsatt v. Reichelderfer, 60 App. D.C. 186, 50 F.2d 336; San Jose & A. Ry. v. Mayne, 83 Cal. 566, 23 P. 522.
Evidence of sales in the vicinity in recent times was meager, and, as said by the Supreme Court in United States v. Miller, supra, determination of value in such cases "involves, at best, a guess by informed persons."
Having conflicting testimony before me as to value by so-called "informed persons", it is not my function to "guess" as to value, nor to endeavor to strike a balance between the opposing valuations. The judicial process should not so functionate.
The testimony on behalf of plaintiff as to value has the greater probative weight.
In the case of all of the parcels, except the claim for so-called severance damage asserted by the defendant H. W. Meek Estate, Inc., which requires special consideration, I have accepted the testimony of O. C. Hiatt, plaintiff's appraiser, as to valuations. Therefore the fair market value of each of the parcels in question is determined as follows and judgment will go accordingly:
Parcel
Number Defendant Amount.
(Plaintiff's
Exhibit
#1.)
#10 Mary L. Schneider and
Elsbeth Schneider $ 3,600.00
#28 N. P. Nielson 6,600.00
#6 Frank A. and Alice R.
Edwards; and Grover
C. Keeter and Esther
E. Keeter 7,000.00
#29 Belle Stanley 8,500.00
#12 Robert P. King 5,300.00
#27 John F. Canine 8,300.00
#30 Edna H. Stenzel 24,000.00
#9 H. W. Meek Estate, Inc. 5,000.00
Severance Damage of Defendant H. W. Meek Estate, Inc.
Parcel #9, consisting of 20.2 acres, belonging to defendant H. W. Meek Estate, *33 Inc., and taken by plaintiff, was part of a whole tract of 163 acres. By the taking, access to the remaining 142.8 acres, via Hayward Avenue (also known as A. Street), a public highway, was cut off. Defendant claims damage by reason thereof. Such damage is sometimes spoken of as severance damage but is thus referred to by the Supreme Court in United States v. Miller, supra: "If only a portion of a single tract is taken the owner's compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. Such damage is often, though somewhat loosely, spoken of as severance damage." United States v. Miller, supra, 317 U.S. at page 376, 63 S. Ct. at page 281, 87 L. Ed. ___.
"When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account." Bauman v. Ross, 167 U.S. 548, at page 574, 17 S. Ct. 966, at page 977, 42 L. Ed. 270.
Such incidental damage is a part of the whole damage suffered by the owner upon the taking. The burden of proving the damage suffered is upon the owner defendant; consequently it has the burden of proving the incidental or so-called severance damage. The cutting-off of access via Hayward Avenue was admitted. It appeared in evidence however that there was access to the severed portion of the defendant's property over a so-called roadway connecting with County Road #310 or "Bockman Road" at a point at about the intersection of the northwestern and northeastern lines of defendant's property. Defendant presented evidence to the effect that the title to this connecting strip was in one William E. Meek, deceased, whose estate was probated in 1923 without any disposition of said strip of land having been made in said proceeding. (Defendant Meek Estate Exhibit 3.)
Hiatt, for plaintiff, testified that the cost of acquiring title to the strip and surfacing and maintaining the road thereon was approximately $3,000, and plaintiff contends that said sum is the so-called severance damage. On behalf of the defendant, the witness R. Kittrelle testified that the severed portion of the tract suffered a value depreciation of $18,000 by virtue of the complete cutting off of access by road, but that if there were a proper entrance by well constructed road so connecting with "Bockman Road" the so-called severance damage would be $8,000.
The duty is upon the defendant, upon the record here, to prove, not only the loss of access by virtue of the cutting-off of Hayward Avenue, but also that there is no other adequate means of access.
I am not satisfied that the evidence fully discloses the full cost of access via the "Bockman Road." In this respect the testimony of Mr. Hiatt is conjectural. Upon the whole record, I believe that the sum of $8,000 will fairly compensate the defendant for depreciation in value of the severed tract and reasonable cost of providing adequate access at some point via Bockman Road. Accordingly, I fix the total damage arising out of the relation of the property taken to the entire tract of defendant at the sum of $8,000.
Judgment accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583060/ | 31 So. 3d 883 (2010)
D.B.P., A Child, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-2877.
District Court of Appeal of Florida, Fifth District.
March 19, 2010.
*884 James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
MONACO, C.J.
The appellant, D.B.P., a minor, argues that the trial court erred in denying his motion to suppress evidence, and that his judgment and sentence should be reversed. Because we agree that under the prevailing case law the search lacked constitutional validity, we reverse.
The critical facts are uncomplicated. A sheriff's deputy sought to make a "consensual encounter" about mid-day near a bus stop in what the officer described as a "high crime" area. Other officers had advised the arresting officer that a person had committed pedestrian violations. The officer approached D.B.P. and said "Hey. What's up man," to which the minor responded, "Who me?" According to the officer, when he approached D.B.P., the minor put both hands in his pockets and looked nervous. The officer told him to take his hands out of his pockets, and when D.B.P. did not do so, the officer physically assisted the minor in removing his hands. D.B.P. was then told to place his hands above his head. The officer noted that the minor was wearing baggy pants, so the officer could not visually see what was in them. He then patted D.B.P. down and felt the handle of a handgun. The officer subsequently took D.B.P. into custody.
The State conceded in closing argument at the suppression hearing that the stop was an investigatory stop, and not a consensual encounter. The trial court agreed that the stop was "nonconsensual," but then concluded that it was neither a consensual, nor an investigatory stop. Eventually the trial court opted to apply a Terry[1] analysis in determining whether the arresting officer had reasonable suspicion to search D.B.P. The trial court concluded that under the totality of circumstances, the actions of the officer were reasonable. After the court issued that ruling, D.B.P. pled nolo contendere, reserving the ruling on the search for appellate consideration. This appeal followed.
A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness *885 and a reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain a trial court's ruling. See Doorbal v. State, 837 So. 2d 940, 952 (Fla.), cert. denied, 539 U.S. 962, 123 S. Ct. 2647, 156 L. Ed. 2d 663 (2003); Pagan v. State, 830 So. 2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S. Ct. 2278, 156 L. Ed. 2d 137 (2003); San Martin v. State, 717 So. 2d 462, 468 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S. Ct. 1468, 143 L. Ed. 2d 553 (1999); Davis v. State, 922 So. 2d 438, 443 (Fla. 5th DCA 2006). While the standard of review to be applied to factual findings of the trial court is whether competent, substantial evidence supports the findings, the trial court's application of the law to the facts is reviewed de novo. See Bevard v. State, 976 So. 2d 1163 (Fla. 5th DCA 2008); Utu v. State, 929 So. 2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So. 2d 404 (Fla. 5th DCA), review denied, 935 So. 2d 1220 (Fla.2006); Young v. State, 803 So. 2d 880 (Fla. 5th DCA 2002); State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001); McMaster v. State, 780 So. 2d 1026, 1027 (Fla. 5th DCA 2001).
The Florida stop and frisk law, as interpreted by J.L. v. State, 727 So. 2d 204 (Fla.1998), affirmed, 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), and State v. Webb, 398 So. 2d 820 (Fla.1981), allows an officer who has validly stopped an individual to pat down and search the person if the officer has reasonable suspicion to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person. § 901.151(5), Fla. Stat. (2009). In J.L., however, the Florida Supreme Court declined to create a firearm or weapons exception to the limitations on searches and seizures set out in the Fourth Amendment to the United States Constitution, and Article I, section 12 of the Florida Constitution. The court in discussing Terry stops and the use of informants noted that:
The law is well established that a police officer may, in appropriate circumstances, stop a person for the purpose of investigating possible criminal behavior, even though there is no probable cause for an arrest, as long as the officer has reasonable suspicion that the person is engaged in criminal activity. [cite omitted]. The circumstances may even require a frisk of the person to determine whether the person is carrying a weapon, if the police officer has a reasonable suspicion that the person is armed and poses a threat to the officer or others.
J.L., 727 So.2d at 206. In addition, however, there must be something more to corroborate criminal activity than "easily obtained facts" such as clothing, appearance or location to support a search and seizure by officers. See Kalnas v. State, 862 So. 2d 860, 862 (Fla. 4th DCA 2003) (officer required to uncover something more than just a verification of the innocent details of identification in order to establish the reliability of the anonymous tip); Butts v. State, 644 So. 2d 605, 606 (Fla. 1st DCA 1994) (officers who are unable to independently corroborate criminal activity may not initiate a gunpoint seizure based upon confirmation of innocent details such as appearance or clothing), review denied, 659 So. 2d 272 (Fla.1995).
With this as our foundation we begin our consideration of the present case by noting that the stop in this case was not a Terry stop. There was no indication or suspicion that D.B.P. had committed or was about to commit a violation of the criminal laws of this state. E.H v. State, 593 So. 2d 243 (Fla. 5th DCA 1991). D.B.P. was simply suspected of jaywalking, a traffic infraction. The specific issue before us, then, is whether D.B.P.'s act of putting his hands in his pockets during a stop for a noncriminal *886 infraction in a high crime area is sufficient to provide the requisite reasonable suspicion. The holdings of this court and of a number of our sister courts in cases similar to the present case in which a pat down was conducted in part because the searched person put his hands in or near his pockets, are instructive.
In State v. Barnes, 979 So. 2d 991, 993 (Fla. 4th DCA 2008), for example, the Fourth District Court affirmed a trial court's granting of a motion to suppress where it found that the officer conducted a pat down search without sufficient legal cause to believe the defendant was armed or dangerous.
Police officers are authorized to execute a pat down for weapons only where they have a reasonable suspicion to believe that a suspect is armed with a dangerous weapon. Campuzano v. State, 771 So. 2d 1238, 1243 (Fla. 4th DCA 2000). One of the recognized circumstances justifying a weapons pat down is a combination of the defendant's nervousness and the officer's observation of a bulge in the defendant's clothing. Ray v. State, 849 So. 2d 1222, 1225 (Fla. 4th DCA 2003). However, an officer does not have reasonable suspicion that a defendant is armed merely because, following a non-criminal traffic stop, the defendant appears nervous and keeps his hands in or near his pockets. Id.; see also Coleman v. State, 723 So. 2d 387 (Fla. 2d DCA 1999); E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991). The mere thrusting of one's hand in one's pocket in front of a police officer does not constitute conduct which supports a founded suspicion that an individual is armed and dangerous. Delorenzo v. State, 921 So. 2d 873, 879 (Fla. 4th DCA 2006) (Warner, J., concurring specially). (Emphasis added).
Similarly in E.H. this court held that where a juvenile was stopped for a noncriminal traffic violation, the fact that the officer expressed concern that the juvenile kept reaching into his pocket was insufficient by itself to supply the reasonable suspicion necessary to support a pat down. Our court specifically noted that there was no testimony that the officer observed a bulge in the appellant's clothing, or that the officer had any other objective indication that the juvenile was carrying a weapon in his pockets.
Likewise in Ray v. State, 849 So. 2d 1222 (Fla. 4th DCA 2003), the defendant was stopped for riding his bicycle at night without proper lights by an officer patrolling an area known for illegal drug activity. Subsequently, based on Ray's somewhat fidgety behavior, the deputy performed a weapons pat down and retrieved crack cocaine rocks from Ray's pocket. The deputy testified that despite several requests, Ray would not remove his hands from his jacket pocket. In fact, Ray's initial response to the deputy was, "Why are you bothering me?" According to the officer, Ray's reluctance to remove and keep his hands away from his pockets coupled with the deputy's knowledge of the location made him concerned for his safety.
Just as in the instant case, the officer in Ray expressly acknowledged that he did not observe any bulges or other evidence of the presence of a weapon in the defendant's clothing. As to the location, in both cases there was nothing to link the defendants to any potential criminal activity. In Ray, the officer was simply going to discuss Ray's failure to have the proper lighting on his bicycle. In the instant case, the officer ostensibly was going to question D.B.P. about his jaywalking. In addition, there was no elusive, unusual or suspicious behavior on the part of D.B.P. that would have justified the pat down. Compare *887 Copeland v. State, 756 So. 2d 180 (Fla. 2d DCA 2000); see also Hoover v. State, 880 So. 2d 710 (Fla. 5th DCA 2004).
Here, when the officer asked the defendant to take his hands out of his pockets, the request constituted a police order given the circumstances. See Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990). The reason for the investigatory stop or nonconsensual detainment was the officer's concern about a pedestrian violation, specifically, the failure to use a pedestrian crosswalk. The infraction cited by the officer was noncriminal. Although the refusal by a person to remove his or her hands from pockets might well constitute part of the basis authorizing a pat down for weapons in some circumstances, under the well-established case law of this state, the facts presented here do not amount to the reasonable suspicion necessary to justify the search.
The Fourth Amendment protects citizens against unreasonable searches and seizures. It might be tempting to conclude that because the officer found a firearm when he searched D.B.P., the search was reasonable. The success of the search, however, is not now and never has been the test to be applied. Applying the established law to the facts of this case, it is clear that the search was not reasonable, and that the motion to suppress should have been granted. See § 901.151(6), Fla. Stat. (2009). Accordingly, we reverse the denial of the motion to suppress, and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
GRIFFIN and EVANDER, JJ., concur.
NOTES
[1] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583045/ | 62 N.W.2d 143 (1954)
In re GROEN'S ESTATE.
TROFF et al.
v.
GROEN et al.
No. 48400.
Supreme Court of Iowa.
January 12, 1954.
Rehearing Denied March 12, 1954.
Della Welter, Linnan & Lynch, D. C. Hutchison, Algona, for appellants.
Fisher & DeWaay, Rock Rapids, for appellees.
BLISS, Chief Justice.
The testator, John Groen, a resident of Winnebago County, Iowa, died November 29, 1952 at the age of 82 years. On November 25, 1949 he executed his last will and testament, bequeathing and devising all of his property to Alida Groen, the widow of Dick Groen, a deceased brother of the testator. She died on November 28, 1952, the day preceding the day of the testator's death, leaving as her only heirs twelve children, who are the proponents of John Groen's will and appellees herein.
The testator never married. He was survived by no brother or sister. He left as his nearest next of kin several nieces and nephews. Contestant, John Troff, is the son of a deceased sister. The other contestants are daughters of a deceased brother, Sidney. The proponents are children of his deceased brother, Dick, and his wife, Alida, as noted above. The testator was also survived by children of his deceased brother, George, but they are not parties to this action.
On December 18, 1952, contestants filed objections to the will on the following grounds: (1) the testator was of unsound mind and lacked testamentary capacity; (2) the testator was so under the influence of others that the will was their will, and not his will; and (3) the will was not executed or published as required by the statutes of Iowa. The last ground (3) was withdrawn.
*144 During the trial, contestants amended their objections by adding a 4th ground, to-wit, that when the will was executed the testator was "79 years of age, in failing physical and mental health, of poor eyesight and could neither read or write, and was wholly unable to understand or comprehend the contents thereof and did not in fact know, understand or appreciate the contents of said will."
At the close of contestants' testimony, proponents filed a motion for a directed verdict in their behalf on the ground that contestants had failed to establish any of their objections to the probate of the will. The court then said to the attorneys for proponents: "You may proceed with your argument * * * before you do so, I think I may say that you won't need to spend any time on that part of the motion relating to unsoundness of mind and lack of testamentary capacity on the date of the execution of the will in question, as I am convinced that such unsoundness of mind or lack of testamentary capacity has not been established sufficiently to permit that issue being submitted to the jury, and that part of the motion directed to that phase of the case should be and is sustained." At the conclusion of the argument on the motion, the court said: "Division I of said motion having reference to unsoundness of mind or lack of testamentary capacity of decedent as alleged by contestants is sustained, and the balance of said motion is at this time overruled."
We are in accord with the conclusion of the able and experienced trial court that the issue of testamentary incapacity justified limited consideration. Many of the 339 pages of the printed record are devoted to testimony on this issue, which is largely of the same nature and repetitious. As too often happens in litigation of this character the testimony of the witness is strongly influenced by his interest.
John Groen came to this country when a boy less than ten years old. Such book education as he received was limited to the lower grades of the schools. There is testimony for contestants that if he could read at all it was not "much". The same is true of his writing. The only evidence in the record is that he could write his name. Several specimens of his signature in the record are clearly legible. While it may be said that he was an illiterate man, it cannot be said that he was an ignorant man. By his industry, thrift and good judgment he acquired a very comfortable competence. He became the owner of an eighty-acre farm in Hancock County, Iowa, just south of the town of Woden, and a quarter section farm in Winnebago County, Iowa, near the towns of Buffalo Center, in that county, and the town of Titonka in Kossuth County. He never personally operated these farms but leased them to others. He lived as a bachelor on a ten-acre tract on which he raised some crops and livestock.
He was a stocky, heavy-set man about five and one-half feet tall, and with advancing years he became very heavy for his height. So much so that his legs and feet troubled him and he had much difficulty in walking, and especially in stepping to a higher or lower elevation. With the aid of a cane or two he could get about slowly on a level surface, but needed help in getting in or out of a vehicle. This disability compelled him to give up his bachelor quarters and he lived about among his relatives in the neighborhood of his farms. For a time he stayed with the contestant, John Troff, who was a bachelor, and then in the family of contestants Grace Wubben, and Henrietta Stratman, and later in the home of Anna Honken, also a contestant. During his later years he made his home with the latter.
Contestant Troff and the contesting nieces and their husbands and children were witnesses in the trial. Their testimony followed the customary pattern in these contests. They told how the testator after 1942 failed physically and mentally, grew neglectful and careless of his person and clothes, forgot where he put his personal articles, misplaced his money pouch and papers, failed to recognize on one occasion a child in one of the families, sometimes repeated his questions after they were answered, was untidy at the table, his sight *145 and hearing failed, had difficulty in controlling his body eliminations, sat around and slept, counted the rungs in the chairs, had to be helped up and down stairs, and in and out of automobiles, and be taken to the bank and to the grain elevators, to the barber, and the banker or they had to come to where he was staying.
The matters covered by this testimony were almost entirely due to physical disabilities and ailments not uncommon in old age. There was no evidence that he did not manage his property, or business affairs or that any one advised him in these matters. Even the evidence in behalf of the contestants is all to the contrary. He made a confidant of no one. He was distrustful of others. He kept his business transactions to himself. When any one surprised him when examining his money wallet or counting money he immediately put it away. He leased his farm land usually on share rent. He attended to the collection of his crop checks at the elevators himself. He did his banking business with his banker at Titonka at the bank or the banker came to where he was staying. His banker testified: that Mr. Groen sometimes asked his advice in bank transactions, but did not always follow it; that he determined for himself when he came to the bank with money how much he would deposit in a certificate, or in his checking account, or would carry away in cash; that he attended to the renewal of his numerous certificates of deposit, and whether he would take the interest in cash or leave it in the renewed certificates. He usually paid his taxes personally, in cash or by checks, some of which were in evidence. He remembered to attend to his income tax reports. On one occasion he asked the contestant, Mrs. Wubben to help him in this. Usually he would give the data for his income tax to Mr. or Mrs. Honken with whom he was staying, and they would take it to the bank and Mr. Boyken, president of the bank, or one of his sons would prepare his income tax reports. This continued during the last years of his life.
There was neither lay, nor expert, opinion testimony given that the testator was of unsound mind when he made the will, nor at any other time. No such inquiry was directed to the eighteen or more witnesses who testified for contestants. There was no testimony that would support such answer.
I. The essentials of testamentary capacity are that the maker of the will then had the mental capacity: (1) to understand the nature of the instrument he was executing; (2) to know and understand the nature and extent of his property; (3) to remember the natural objects of his bounty; and (4) to know the testamentary disposition he wished to make. We have so announced from our earliest to our latest decisions so that repetition of citations is needless. See Perkins v. Perkins, 116 Iowa 253, 259, 90 N.W. 55; In re Estate of Rogers, 242 Iowa 627, 630-631, 47 N.W.2d 818; In re Ransom's Estate, Iowa, 57 N.W.2d 89, 108. The burden was on the contestants to establish that testator was lacking in one or more of these essentials. There is no such evidence in the record.
Though contestants and some of their witnesses testified that the testator had failed mentally during his later years, they gave evidence of no facts to support their opinions. The facts as disclosed by other testimony offered by contestants establish that though old age was taking something from him mentally he continued to attend to important business matters down to his last sickness in his final days. William Boyken, president of the Titonka Savings Bank, for many years was in closer touch with John Groen in a business way than any one else. The following matters are from his testimony as a witness for contestants. Groen had been a customer of the bank for more than twenty years. He had a safety deposit box in the bank for a good many years. For many years he used the bank simply as a place to deposit money on time certificates. He had money on interest at the bank continuously since he became a customer of the bank. He always carried a substantial amount of money on his person. He paid cash for his purchases and other obligations. As long as he was *146 physically able he always came to the bank. "Since that time I have always gone to wherever he was staying to take care of his banking business for him. When he was staying at Honkens I would go to the Honken home and pick up what he had in the way of checks or money for deposit in the bank. He would endorse the checks and I would take them with me to the bank. He usually placed the money in the bank on time deposits. He didn't open up a checking account with us until November 28, 1951. I handled the transaction myself when he opened his checking account with our bank at that time. That was about a year before he died. I never knew of his having any other checking account than the one opened by him in our bank. * * * He had in our bank in certificates of deposit or time deposits at the time of his death about $20,000, and on checking account at our bank about $1300. He bought some government bonds through our bank and some of these were left at the bank. About $1600 worth maturity value of bonds were in the bank for safekeeping and about $5000 worth were in his safety deposit box at the time of his death. I saw John Groen in the fall of 1952 in the John Honken home before he went to the hospital. I was there October 3, 1952 for the purpose of checking up with him and picking up some grain checks he had, and to renew a certificate of deposit. Some certificates of deposit were renewed that day, a little over $14,000 worth. I was back there again about ten days afterward to deliver him the certificates of deposit. He didn't leave the certificates of deposit with me, but kept them on his person. I was there November 6, 1952. That was for the purpose of renewing another certificate of deposit of $2000. That was not the last time I saw him alive, as I saw him at Honkens on the day that he went to the hospital. I transacted no business with him at that time. He was sick. * * * The certificate of deposit of November 6, 1952, I don't believe was renewed, but I am not positive as to whether it was a renewal or a new deal."
The bank ledger sheet of the John Groen checking account and deposit slips show that the certificate of deposit of November 6, 1952 for $2,000 was not a renewal but it was a new deposit, as Mr. Boyken discovered on further investigation. On November 11, 1951, Groen deposited five checks of the Farmers Elevator Co. at Woden and Buffalo Center, each payable to him, totalling $1,822.72. He took $25 in cash from the bank, and opened his checking account as of November 28, 1951, with an initial deposit of the balance of those checks amounting to $1,797.72. He wrote checks on the account that were debited to it as follows:
$179.45 and $7.50 on Jan. 31, 1952$125.68 on Feb. 19, 1952
$353.00 on Feb. 23, 1952$17.14 on May 1, 1952
$1.20 on July 23, 1952$600.00 on Nov. 5, 1952
On October 3, 1952 John Groen deposited six checks payable to himself for a total of $1,332.65, of which $1,000 was placed in a certificate of deposit, and the balance of $332.65 was credited to his checking account on October 6, 1952. On October 11, 1952 Groen deposited a check of the Farmers Elevator Co. at Buffalo Center for $279.74. On November 6, 1952 Groen received two checks from the Elevator Co. of Buffalo Center payable to him totalling $2,217.94, of which $2,000 was placed on a new time deposit certificate dated Nov. 6, 1952 referred to by Mr. Boyken, and the balance of $217.04 was credited to Groen's checking account. After Groen's death, and on Dec. 4, 1952, currency found in his effects to the amount of $528.79 was credited to the checking account. The account was closed after his death by an estate check of $1,871.97 on December 26, 1952.
Of these banking transactions Mr. Boyken testified: "I know of my own knowledge the last check of $1871.97 was a check drawn by the administrator of the John Groen estate. The other withdrawals shown were made by John Groen himself in his lifetime. That is also true of the deposits shown on the exhibits. The deposits shown on Exhibit D (bank ledger sheet) *147 were deposits made by John Groen himself during his lifetime."
The banking transactions shown above, involving substantial sums of money, during the last year of the testator's life and two years after his last will was drawn, indicate that he was personally managing his farms, collecting his rents, and building up bank assets just as he had been doing for twenty years before, but with better judgment, as he changed to doing business by bank checks instead of by currency.
The check of $600 dated Oct. 14, 1952, drawn by the testator, and payable to John Honken, husband of contestant, Anna Honken, has a notation on its face stating "Board to Sept. 26th." This is of some significance. Contestants in their attack on the will vigorously assert that the testator by his last will disregarded his blood relatives, who had cared for him and in whose homes he had lived, and gave property to a stranger in blood. They did not testify whether they were paid or not paid for services rendered to him, but it would be quite preposterous to infer that the testator was not paying his way.
The testator's brother, Dick Groen, and family moved from Winnebago County to Lyon County, Iowa, about 1909. Testator helped them move and assisted in getting them settled. Five of the Dick Groen sons testified in substance: that their uncle John came back in 1910 and 1911 and helped with the farm work. He was out again in 1917 to the funeral of their sister. He came again in 1920. His brother, Dick, died in 1935 but testator was not at the funeral. The widow continued to operate the farm with the help of her sons George and Carl until they married. The testator visited Dick's widow and children at the farm in May, 1942 and remained until after October, 1942. This date is fixed by the fact that the son George was married on October 1, 1942, and the family and others put on a mock wedding on October 5, as a burlesque on the real event, in which uncle John (testator) took the part of the bride.
The widow was planning to leave the farm and move to Rock Rapids. The testator asked her if the farm was mortgaged and being told that it was offered to provide money to pay it, and the widow told him that when she sold the personal property she would have funds to pay the mortage. She moved to Rock Rapids in 1943. In 1946 Carl, a son of Dick's widow, returned from service in the armed forces and the testator came to Lyon County and visited the family for a month or more. The son, Carl, had rented some farm land, and a group of farmers came with tractors and plows, and had a plowing-bee and plowed all of his land. The testator was present and discussed farm matters with the men and enjoyed the occasion. In 1948, the body of Dick, another son of the widow, who died in the foreign service, was shipped to Rock Rapids for burial. The testator came to the funeral, and went to Sibley so that he could get a wreath to put on the grave. While on this visit the widow's brother died and was buried at Titonka. The testator went with her and the family to attend the funeral services, and returned with them to Rock Rapids and remained a month or more. Alida Groen or her children visited John Groen and the other relatives in Winnebago County almost every year.
Contestants introduced in evidence a letter written by Alida Groen to one of the relatives in Winnebago County. The date stamped on the envelope was July 22, 1949. In the letter the writer inquired if and when uncle John was going to visit her as she wished to give ample notice to one of her roomers to vacate a room for him. He came to visit her about the first of September, 1949, and remained until in December of that year. A young lady, Miss Mildred Levering was rooming and boarding in the Alida Groen home during that time. She was 22 years old and was employed as a bookkeeper at the city light plant. She was not related to Mrs. Groen but became acquainted with her through a granddaughter of the latter. Mrs. Groen and uncle John Groen (testator) each had a bedroom on the first floor and Miss Levering slept on a studio couch in the parlor. A young man, who later married a granddaughter of Mrs.
*148 Groen, who was employed in Rock Rapids, lodged and had his meals in the Groen home during this period. He slept in the basement. Mrs. Groen had a kitchen in the basement where the members of the household ate their meals, except Mr. Groen who was unable to use the stairs. Mrs. Groen brought his meals on a tray to the kitchen on the first floor. Miss Levering sometimes performed this service. She often visited with Mr. Groen and when others were there he joined in the general conversation. He seemed to be most interested in farming and livestock and things connected therewith. He was able to move about the first floor and the front porch where he often sat. He appeared to be happy and jovial and sometimes sang German songs for them. She never observed anything in his conduct or conversation indicating a poor memory. She saw him eat his meals and had occasion to observe his table manners, and saw nothing that attracted her particular attention in respect to this matter. He always greeted her when she came from work, and sometimes asked her about her work. On Thanksgiving he was a guest at the home of another relative.
With respect to his mentality, she testified: "From my observation and contacts and conversation with John Groen in the fall of 1949 just before and after Thanksgiving of 1949, I would say that John Groen was of sound mind. I would have no reason or occasion to say differently. So far as my observation went, he was not out of the way on anything that he did or said to indicate anything else than that he was of sound mind. * * * I never heard Alida Groen say anything to John Groen about making a will, nor did she ever say anything to me about it."
The other roomer at the Alida Groen home, Henry Walter, 26, was a witness for proponents. He confirmed the testimony of Miss Levering as to daily life in the Alida Groen home. He testified that: He was at work all day but often visited with Mr. Groen in the evening when they were alone or in general conversation with callers. They were both at the family Thanks-giving dinner in the Dreesen home near Luverne, Minn. It appears that it was determined by lot or chance who would buy the turkey. Uncle John was undecided whether to make the trip, but he said when he heard he had to buy the turkey he would go. The witness saw Mr. Groen at the dinner. He usually took him to the barber shop. His clothes were neat and clean. He was laughing and happy and conversed generally with those about him. "There is no doubt in my mind but what he was of sound mind."
While John Groen was at the Alida Groen home and early in November, 1949, Mr. O. J. Kline, 53 years old, who had been in the retail grocery and meat business in Rock Rapids, but became connected with the Lyon County State Bank as assistant cashier, and farm representative or field man about February, 1949, called at the Groen home in connection with his duties. Alida Groen had been a customer of the Kline store. She was not a customer of the bank and he called to solicit her business. She obtained a safety deposit box and opened a checking account in the spring or early summer of 1951.
When he knocked at the door, Mrs. Groen invited him in and said she was going to have a cup of tea and asked him to join her. John Groen was sitting in the living room and she introduced him as her husband's brother. They shook hands and expressed their pleasure at meeting. She and Mr. Kline passed to the kitchen table and Mrs. Groen poured the tea and then took a cup to Mr. Groen. Kline told Mrs. Groen the purpose of his visit and she said she had papers in the house that should be in a safety deposit box and she also said she wished to make a will and asked if someone at the bank couldn't do it, or come to the house and do it. Kline told her that Mr. Crawford, Vice President of the bank would be glad to come to the house and accommodate her. Mr. Groen then said he wished to make a will but it was hard for him to get around, and Kline told him to send word to the bank whenever he wished the matter taken care of. About three weeks later in the forenoon of November *149 25, 1949, Alida Groen telephoned to Kline that uncle John Groen would like to see him and Mr. Crawford at the house in the afternoon. When these two men, after banking hours, knocked on the door of the Alida Groen home she called for them to come in, but did not appear. Mr. Kline came in and saw John Groen sitting at the kitchen table, and they walked back and Mr. Kline introduced Mr. Crawford to John Groen, who said: "Oh, this is the man who makes wills?" When told that he was, he said that he wanted to make a will. In answer to questions by Mr. Crawford he said he wished to give all of his property of every kind to his sister-in-law, Alida Groen, of Rock Rapids in whose home he then was. He said he wished her to be executrix without bond. Mr. Crawford told him that he would go to the bank and type the will and then return. In about a half hour Mr. Kline and Mr. Crawford returned with the typewritten will and read it to Mr. Groen and asked him if he understood it, and he said he did and it was just the way that he wished it to be. John Groen signed the will as testator and at his request C. C. Crawford and O. J. Kline signed as witnesses, all signatures being made in the presence of the three signers.
When the will was executed Mr. Crawford put it in an envelope and handed it to Mr. Groen, who told Mr. Crawford to take it and put it in the bank for safekeeping. It revoked all earlier wills.
Mr. Kline and Mr. Crawford, as witnesses for proponents, testified that in their opinion John Groen was of sound mind when he executed the will. Each of them testified that Alida Groen was not present at any time when the making of the will was discussed by them with Mr. Groen, nor in the afternoon when the will was executed and witnessed.
We find nothing in the record that tends in the slightest way to establish that the testator was of unsound mind or was lacking in any respect in any of the essentials of testamentary capacity when he executed the will offered for probate, and that the trial court ruled correctly in taking that issue from the jury.
II. In 1942 John Groen was very sick. On March 10th of that year he executed a will that was drawn by William Boyken of the Titonka bank. The testator was living in the home of Anna Honken at the time, and her husband, John Honken, and Mr. Boyken, witnessed the execution of the will. It gave to John Troff, the eighty acres in Hancock County. To the other four contestants, Anna Honken et al., it gave an undivided one-half interest in the Winnebago County quarter section, and the other undivided half was given to the thirteen children, naming them, of testator's deceased brother Dick and wife, Alida Groen. The nieces and nephews in each group were to share equally. The remainder of his property was given one third to John Troff, one third to Anna Honken et al. children of his brother, Sidney, shared equally, and one third to the children of his brother Dick, with equal shares. Boyken was named executor. The children of testator's deceased brother, George, were not beneficiaries. The will was given to Mr. Boyken to be kept in the bank, but some years later the testator withdrew it from the bank, which may have been after the contested will was drawn, and after his death it was found in the pocket of one of his jackets, with the envelope opened.
Contestants argue that the revocation of the earlier will and the provisions of the second, indicate undue influence in the execution of the latter will, but this is only conjecture. There is no evidence, of any substance, to support the objection that the execution of the proffered will was improperly induced by Alida Groen or by any one else, and was not his own will and just as he wished and intended it to be. Contestants stress the fact that he never told any of them of the execution of the will of November, 1949. It was reasonable and natural that he did not do so. He was living among them and wished no discussion or controversy over the matter.
III. One witness testified that while testator was living with John Troff between *150 1942 and 1947, he told him "that Troff was to have the eighty acres, but he didn't say a word as to what he was going to do with the other quarter." Another witness testified that in 1947 or 1948, while waiting for a silage cutter to be repaired he had a casual conversation with John Groen. The witness was asked the leading question, "Did he say anything to you about how he was going to dispose of his property?" Answer, "Well, he said that he had his will all fixed up so Johnny Troff was to get the eighty that he owned, and the others were to get the quarter section. He did not say who the others were. He said that was the way he wanted it to be. I was not interested particularly in the matter."
Frequently in litigation of his kind, witnesses testify to declarations of this type. Courts should and do consider them with care and skepticism, because persons generally, do not make such disclosures in casual chats. Particularly those who are as closed-mouthed about their property and business matters as the testimony of contestants shows John Groen to have been. These remarks, if made, were some years before the execution of the will before us. The testator, if he wished to, of course, had the right to change a prior testamentary disposition of his property. It was his property acquired by his efforts and conserved with thrift. It was his privilege and right to dispose of it as he wished, or thought best.
One witness, husband of a contestant, testified that on John Groen's return from Rock Rapids in December 1949, he said "they were trying to rob me." The testator did not specify to whom the word "they" referred, according to the witness. Alida Groen and two of her sons and their wives brought the testator home on this return. There is no evidence that the alleged complaint was made in their presence. There is no evidence that on his return he complained that he had been over pressured into the execution of the will. The declarations noted above may be considered only when the fact of undue influence has been independently established, and then only as bearing upon the susceptibility of the testator to undue influence, or his capacity to resist it. In re Estate of Johnson, 222 Iowa 787, 798, 269 N.W. 792; Johnson v. Johnson, 134 Iowa 33, 36, 111 N.W. 430; Bates v. Bates, 27 Iowa 110, 113, 1 Am.Rep. 260; Graham v. Courtright, 180 Iowa 394, 404, 161 N.W. 774; In re Estate of Rogers, 229 Iowa 781, 788, 295 N.W. 103; In re Estate of Klein, 241 Iowa 1103, 1117, 42 N.W.2d 593; Muir v. Miller, 72 Iowa 585, 590, 34 N.W. 429; In re Rogers' Estate, 242 Iowa 627, 629, 47 N.W.2d 818; In re Estate of Hadley, 241 Iowa 1280, 1287-1288, 45 N.W.2d 140.
The briefs cite numerous cases involving the sustaining or rejection of motions to direct on issues like those involved herein. The principles of law involved are well recognized. A discussion of them would serve no purpose as the precedents are of little aid because of differences of the facts.
We have carefully studied the record and the briefs and arguments and it is our conclusion that if all of the items of evidence, considered singly or as a whole, be accepted as true, the contestants have failed to establish any objection to the probate of the will.
The judgment is
Affirmed.
OLIVER, WENNERSTRUM, SMITH and THOMPSON, JJ., concur.
MULRONEY, HAYS and LARSON, JJ., dissent.
MULRONEY, Justice (dissenting).
I would hold the record presents a jury question, at least on the issue of undue influence, and would therefore dissent from the majority opinion. I do not feel the majority opinion presents a review of the testimony in the light most favorable to the contestants which I understand is what should be done when passing on the correctness of the ruling on the motion for directed *151 verdict. See In re Estate of Eiker, 233 Iowa 315, 6 N.W.2d 318, 320, where the first assignment of error questioned the correctness of the ruling on the motion to direct the verdict on the issue of undue influence and we said:
"In deciding the issue presented by appellant's first assignment of error, (appellee) contestant is entitled to have the testimony considered in the light most favorable to her."
There is little in the record about John Groen's early life, save that he came to this country from Germany when about eight years old and he lived all of his life around Buffalo Center. He was a bachelor and he could not read and he could not write, except that he could with some difficulty sign his name. The story of his life, so far as this record is concerned, really starts with 1942 when John Groen was about 72 years old. In the early part of that year he was living alone on a 10 acre tract. Many nieces and one nephew lived on farms in the same neighborhood. All of John Groen's sisters and brothers were dead. John Groen stayed at home alone. He never went to shows, never went to any church, never had nor drove an automobile and took no interest in any activities, except the management of his two farms which were then rented, and it does not appear that he had any close friends.
Some time in the winter of 1942 John Groen took sick and for a time some of the nieces brought meals to him and then in February he was moved to the home of his niece, Mrs. John (Anna) Honken. From February, 1942, until he died ten years later, John Groen lived at the homes of his various nieces and one nephew who farmed in the Buffalo Center area, except for three or four visits totalling a few months at the home of Mrs. Dick (Alida) Groen in Rock Rapids. He was very sick when he arrived at Mrs. Honken's home in February, 1942. He was bedfast and under a doctor's care, apparently with some heart ailment, and he remained in bed, with all meals served to him there, until the following May. The proponents' testimony shows that it was thought that John Groen would die and Alida and two of her children came to Mrs. Honken's home to see him. Mrs. Honken testified that when they came, "they said that they came to see him (John Groen) to talk to him about encouraging him to make out a will." It is admitted Alida and her two sons, and the wife of one of them, spent about two and a half hours of their three hour visit in the bedroom with John Groen and one of the sons later testified "he was a very sick man." But the sons stated the talk was general "about crops and weather." Mrs. Honken testified she was out of the sick room several times while Alida was visiting with John Groen alone. She could hear a conversation in the room but whenever she went back into the room the conversation stopped and John Groen's "face was flushed" and "he appeared very excited."
Mrs. Honken testified that in May, John Groen had recovered to the extent that he could walk around with a cane although he was "somewhat crippled." At first he continued to sleep a good deal but later he spent his time walking from one place to another in the yard and he ate his meals with the family. She said, when questioned as to his mental condition, that he was "more or less unconscious of what he was doing or had done just before" and that he was quite forgetful.
John Groen remained at Mrs. Honken's home until October, 1942 when he went to live with his bachelor nephew Johnny Troff who owned and farmed an eighty adjoining John Groen's eighty acre farm. Johnny Troff was then in his late thirties and John Groen lived with him for a little over four years or until February, 1947. They had no housekeeper and John Groen did no work on the Troff farm and no housework except that he occasionally dried the dishes. He could get around with a cane but he was very forgetful and he would ask a question and after it was answered ask the same question again. Johnny Troff took him to the barber and to the bank in Titonka to see Mr. Boyken, the banker, about every two weeks. He had to help him in and out of his car. John Groen gradually became *152 such a care that Johnny Troff was afraid to leave him alone in the house. He was so forgetful that he would leave things on the stove or leave the stove door open and fill the house with smoke while Johnny Troff was away working in the fields. Sometimes he would leave wet handkerchiefs on the stove to dry and forget he had placed them there and once he fell and fractured his arm.
In February, 1947, John Groen went to the farm home of another niece, Mrs. Fred Wubben, but he only stayed there a few weeks and he was then brought back to stay at the Honken home. He stayed at the Honken home until August, 1948 when he went to the funeral of his nephew Dick in Rock Rapids. He stayed a few months with Alida on this occasion and when he returned he stayed at the Honken home until the September, 1949 visit to Alida when the will in question was executed.
Mrs. Honken and her husband and some of her children, and others who visited in the Honken home described in much detail the change in John Groen, physically and mentally, during this second period in the Honken homeabout February, 1947 to September, 1949.
Many witnesses testified as to the marked change and steady decline in John Groen's mental and physical condition. Mrs. Honken testified: "He was getting more feeble * * * I noticed he was getting more forgetful * * * For instance a check or checks that he had in a certain place, and after he would get a check, he would forget that he had gotten it. He would receive a check and put it somewhere and then forget that he received it and that he had it." She said his physical condition grew gradually worse and that he was not able to walk about by himself and it took two persons, one on each side to get him in and out of a car. When asked about his mental condition during this period she replied: "Well, he didn't trust himself to do anything, anything in the way of business at all." She went on to explain that he would ask her to help him and she would read his mail to him and since he had difficulty in keeping track of his papers she would try to find them for him. She said he carried his money on his person in a salt sack or sugar sack and he placed it under his pillow at night and on occasions he would lose the sack or leave it in the bed and she would find it for him.
Mr. Honken testified John Groen could not read and could not write but could sign his name with difficulty. The difficulty was a sort of palsy or shaking of his hand. He said he wore his clothes out where his hand would shake against his leg. When asked how John Groen occupied his time when in his home he replied: "Well, he would sit and count the rounds on his chair with his cane, and that is about all he would do; that and sleep; he spent a good deal of his time just sleeping." Mr. Honken said he could not see or hear well and could not get around without some one helping him on each side. He said his memory was poor and "he never knew from one day to the next what day of the week it was." Mr. Honken said that for the last four years before he died John Groen "couldn't take care of his business affairs. He could not do it by himself. My wife helped him in those matters." He too told of how John Groen handled his money and papers by keeping them in his billfold in the sugar sack. He said that during the last four years he had always gone to the elevators in Buffalo Center and Wooden to get John Groen's checks for him and during the last three years of John Groen's life he had not gone to the bank at all. Instead they would call the banker to come out and pick up his checks. He always paid John Groen's taxes and John Groen would either give him the money or reimburse him.
All of the above evidence was corroborated in most all particulars by other witnesses. The Honken children, Clyde, Sadie and Ernest, told the same story and Mrs. Fred Wubben, another niece, gave similar evidence. She illustrated his forget fulness by saying he would ask how old some person was and after it was answered ask the same question over again. As she said: "He would ask a question and it would be answered and then in a few *153 minutes he would ask the same question right over again." She said he spent the few weeks he was in her home in 1947 just sitting in a chair sleeping or sometimes listening to the radio if some one turned it on. "He did not operate it at all himself." Mostly he just listened if there were others in the room talking.
Robert Fisher who lived about 160 rods from the Honken home and exchanged work with Mr. Honken said he was in the Honken home about every week and frequently saw John Groen when he was living there. He saw John Groen outside the Honken home two or three times during 1948 but he said: "Later on he began to fail more and got quite bad and got to where he couldn't get around unless he had help, with usually a man on each side of him * * * His toilet and table manners were very poor. He seemed to trust no one in particular. I remember when he was losing his money as has been testified to here and that John Honken insisted that he should take it to the bank and John Groen didn't want to." He said John Groen could not make it to the kitchen without "a man on each side of him" and Mrs. Honken gave him his meals on a tray. He said John Groen always seemed very fond of Mrs. Honken and "if he needed a little help with anything she always seemed to give it to him."
George Roth, a farmer in the area of the Honken home related a conversation he had with John Groen on the porch of the Honken home in 1947 or 1948 when John Groen told him he had his will all fixed and Johnny Troff was to get the eighty that he owned and the others were to get the quarter section. U. R. Guernsey who was a neighbor of Johnny Troff's gave similar testimony saying he saw John Groen often when he was living with Johnny Troff and "he said to me several times that Johnny Troff was to get his eighty that laid beside Johnny Troff's eighty, and that he was leaving it to him so as to make Johnny Troff a quarter section." He too told of how it took two people to help John Groen get around.
Mr. William Boyken of the Titonka Bank testified as to his dealings with John Groen during the 20 years that he was a customer of the bank. He said he came to the bank two or three times a year up to August, 1949, after which he never came to the bank. He stated: "His physical condition from the year 1942 up to the time of his death was not good. In earlier years of that period I think he walked some with the use of a cane or two canes. In the later years, he had to have support of a man or two men, one on each side of him. He never was too alert but his mental condition very gradually got worse. From 1942 progressing to the time of his death. From my acquaintance with him and business transactions with him, I would say he was not educated, but uneducated." Mr. Boyken went on to say John Groen could not read and that he had a hard time writing his name. He stated: "He would have to sit by a table and have support and he would never use a pen but his pencil, and he was very unsteady and it took him quite awhile to sort of find himself and it would take him a long time just to sign his name. In later years his hand seemed to tremble and shake like a person with the palsy. I have observed him scratching or rubbing his hands on his overalls. He would be sitting in a chair and rubbing his hands on his overalls above the knee, and have his overalls worn out on that spot where he scratched his hands on them. In the past years and when he came to the bank I never waited on him at the bank counter because of his physical condition, and because it was so hard for him to get around and stand. He couldn't stand, and so if he came in we had him sit in a chair in the middle of the room or in the bank room in either one of those two rooms."
Mr. Boyken explained the nature of the business he did for John Groen, which consisted of depositing the checks he brought in on time deposits. These certificates of deposits began building up since 1932 and at the time of his death amounted to some $20,000. Sometimes John Groen would take part of the check deposits in cash and the balance in time deposits. John Groen *154 had no checking account until November 28, 1951 or the last year of his life. Mr. Boyken or his son usually made out John Groen's income tax returns. Mr. Boyken testified: "In 1942 at his request, I made a Will for him. He was at the Honken home where he was staying, and I think that was the day before this Will was dated, and John Groen was there then in the bedroom, and I saw him there and he asked me if I could draw a Will for him. He was in bed at the time. I told him that I could. That I could come back sometime later and bring some material to write on and to draw it up for him and he asked me to do so. Later I went back and wrote the Will for him as he asked me to do."
This 1942 Will gave the 80 acres to Johnny Troff and made disposition of the balance to his nieces and nephews including Alida's children; and right here it would be well to mention that Anna Honken testified that she saw this Will in 1948 or 1949, she couldn't remember positively which year. She said: "Uncle John had taken some papers from his pocket in a jacket that he had been wearing and this (will) was in those papers in a sealed envelope and he opened it at that time and asked me what it was." She told him it was his will and he put it back in the envelope and put it in his pocket and it was found in his jacket pocket after his death and turned over to Mr. Boyken the named executor.
In the latter part of July, 1949, Mrs. Honken received a letter from Alida Groen in Rock Rapids in which she said: "Say is Uncle John intending to come and stay with me for a little while then please let me know ahead as then I will have to tell Minnie to get a different bording place as she has that bedroom and yous know a person should tell them a little ahead of time as bording places are hard to get will you please write and tell me would like to know."
Presumably Mrs. Honken wrote, for in September, 1949 John Groen was taken to Alida's home in Rock Rapids by Mr. and Mrs. Fred Wubben in their car. Two of Alida's children and their wives brought John Groen back to Winnebago County and to the Wubben home about December 5, 1949about 10 days after the date of the will in question. Joseph Wubben, a son of Mr. and Mrs. Fred Wubben testified that at the supper table the night John Groen returned he said "that the only thing they wanted him there (at Rock Rapids) was for his money," and he said "he wanted to come home."
Clyde Honken, a son of Mr. and Mrs. John Honken testified as to statements made by John Groen shortly after his return when he said "if they didn't bring him back he would find a way to get back himself." Clyde's sister, Sadie, heard a similar statement and his brother Ernest testified John Groen said shortly after he returned from Rock Rapids "that he couldn't stay there any longer, that they were trying to rob him." Fred Stratman, the husband of John Groen's niece, testified: "When John Groen came back from Rock Rapids in 1949 in December he seemed excited. I wasn't there when he first got back * * * It was probably a few days before I got to Wubben's to see him * * * He was excited, he said, referring to the folks at Rock Rapids, that they were trying to rob him. He said that to me at our place. I think he came back in December, 1949 and this was in January, about a month later, maybe a little over a month. That was after he came to our place, about a month later, maybe a little over a month."
After living for a few months at the Wubben and Stratman homes, John Groen arrived back at the Honken home in March, 1950 where he lived until he went to the hospital the week before he died or November, 1952. His condition grew worse. Many times he lost all control of bodily functions. He never went to the bank but Mr. Boyken would call and pick up his check deposits. The Honkens would call Mr. Boyken to come out and they became apprehensive about the large amount of cash he had and insisted over his protests that he deposit the cash in the bank. They picked up his checks at the elevators and paid his taxes for him. The checking account which he opened in November, 1951, *155 a year before his death, seems to be the first checking account he ever had. It was not very active. It shows five deposits and six checks. It is admitted the checks were filled in by other persons and the photographs of the checks shows the laborious, almost unreadable, signature of John Groen.
Many witnesses testified that John Groen was worse mentally and physically immediately after his return from the 1949 visit to Alida's. Mrs. Fred Stratman, at whose home John Groen lived during the early months of 1950, said: "While he was there at our house his physical condition was not at all good. He spent a great deal of time sleeping. He would be in bed early and get up late and then would sleep most of the time after he did get up Q. And did he seem to have any interests in anything in particular as you observed it? A. Just momentarily some times, that is he would appear interested at first but his interest wouldn't continue at all. It was only for a fleeting moment. He would ask about something and when he was answered it apparently wouldn't register in his mind and his interest would only be very short. His memory seemed to be getting worse continually and it was very poor."
Mr. Fred Stratman gave much the same testimony. He said: "You couldn't talk and visit with him as he got things mixed up and seemed to be unable to carry on a conversation. He would start to talk for just a little and then got things mixed up so that you couldn't talk and visit with him. He usually slept until noon and then he would get up and be in his chair for the rest of the day."
After staying at Stratman's about three months he went back to the Honken home. Ernest Honken testified: "When he first lived at our house in the year 1947 he was able to get about the house and to the bathroom by himself. When he came there in early 1950 when he first came back he could sometimes make it by himself and sometimes he couldn't but he gradually got worse so after a while he couldn't at all. His eyesight was poor. I never saw him read. I never saw him write. When he was up during the day he spent his time sleeping a good deal of the time and then he would be sitting in his chair when not sleeping and take his cane and mark off the linoleum. Take his cane and point off from one angle to another the marks and figures in the linoleum and kind of trace those nearest him with his cane. That was about the limit of his activity. I am now referring to the time after he came back from the Rock Rapids visit."
The relatives stayed with John Groen when he was in the hospital and Mrs. Fred Stratman who stayed with him all night for the last six nights before he passed away said "he continually called for Anna. (Honken)" She said he was not in a coma unless possibly the last night. Alida Groen died in Rock Rapids the day before John Groen died, and about a week after John Groen died, Orvel and Ben Groen (children of Alida) and their wives drove to the Honken home and showed Mrs. Honken a copy of the 1949 will in question. She testified: "They said * * * their mother Alida Groen had then died * * * and they said they had opened up their mother's box and found this Will among her papers * * * When they said that my husband and my father-in-law were there. That is the first that I knew of any such purported Will."
Ben and Orvel and their wives had dinner at the Stratmans on that day before they returned to Rock Rapids. Fred Stratman testified while at their house Ben said: "When we went to the bank and got mother's box and were going through the papers in her box we found this. And then he handed me an envelope with a paper in it and I read it and then handed it to my wife and he said when he handed it to me that that was a copy of it, of the paper (1949 will) he said they found in their mother's bank box."
The story of the drawing of this 1949 will, necessarily related by proponents' witnesses, is subject to many unfavorable inferences. The jury could believe Mr. O. J. *156 Kline the bank representative, knew Alida, the sole beneficiary of the 1949 will, rather intimately. According to him one of his duties at the bank consisted of "the contracting of accounts and prospective customers * * * (and) naturally I tried to get her (Alida) as an account for the bank." Incidentally he was not too successful for she did not become a customer of the bank until about a year before she died.
Mr. Kline testified that one day he was going past Alida's home so he "casually" dropped in with the thought of getting her as a bank customer in mind. His story continues. Alida was just having a cup of tea so she invited him into the kitchen and on the way introduced him to "Uncle John" who was sitting in the living room. They had a general conversation during the course of which Alida said: "I am going to have to make my Will out, where can I get that done?" He told her their Vice-president, Mr. Crawford, would be glad to come out and take care of it and then John Groen, who was still in the living room said: "I want to make my Will" and he told him also their Mr. Crawford could come out and take care of the matter. About three weeks later (on November 25, 1949) he received a telephone call from Alida in which she asked: "Can you and Mr. Crawford come to the house this afternoon, Uncle John would like to see you?" He said they could and that afternoon he and Mr. Crawford went to Alida's home. He did not see Alida but when he knocked he heard her call from somewhere in the house for them to come in. He and Mr. Crawford went back to the kitchen where John Groen was seated at the kitchen table. He introduced Mr. Crawford to John Groen as one "who can help you with your Will if you so desire," and John Groen said he wanted to make out a will and said "he wanted to leave his entire estate to Alida Groen of Rock Rapids, Iowa, his sister-in-law * * the lady who lived there in that house." Mr. Crawford took some notes and told John Groen the general language of a will and said it would require two witnesses but he and Mr. Kline could act as such witnesses if he desired. Mr. Groen said "he would like to have us as witnesses" so they left and went to the bank where Mr. Crawford typed the will and they returned in about 20 or 30 minutes. This time "we knocked and no one answered, and I opened the door, I was familiar with the house there, and knew that we were expected * * * they were expecting us again of course. They went back to the kitchen where John Groen was seated at the kitchen table in the same place. Mr. Crawford read the will to him and John Groen then signed the will. "It did not take John Groen very long to sign his name * * * Mr. Groen was not wearing his glasses and when he was engaged in (signing) he stuck the pen through the paper, tore it a little, and he said that he was sorry, and wanted to know if that hurt it or spoiled it, and Mr. Crawford told him that didn't spoil it, that he would just smooth it down, and he did and then Mr. Groen completed signing it." After he and Crawford signed as witnesses Mr. Crawford offered the will to Mr. Groen but Mr. Groen said: "I don't want it, you take it," and he and Mr. Crawford left and went back to the bank where he saw Mr. Crawford place it in the bank vault.
Mr. Kline testified that he had related all of the talk that took place on the afternoon the will was executed. Mr. Crawford could remember quite a little more conversation with respect to the executor or executrix to be named and about the bond and John Groen asking how much he owed him and his payment of $3 for drawing the will. But when he was through with his story on direct examination he said he could not recall any other conversation. Later on cross-examination he said he did not ask John Groen if he had a wife or children. He said: "I had been told by someone, and I rather think it was Mr. Kline," that he was a bachelor. He testified he had talked with Kline some little time before November 25th, the day Alida called for them to come out, and Kline at that time said "we were supposed to go there some day and draw a Will for Uncle John Groen, Mrs. Alida Groen's brother-in-law, *157 that he was a bachelor." He did not ask John Groen if he had any brothers or sisters or nephews or nieces. He said John Groen was a complete stranger to him and that he had never seen him before. But he said he did not know John Groen was not a resident of Rock Rapids at the time he drew the will. He said: "I did not ask him if he had ever made a Will before, but I put in that clause and told him it would revoke any former Will, if there had been any, but I didn't ask him if he had ever made any former will." He said he did not know Alida Groen but he thought he had seen her once or twice before the date he drew this will. He said this was the first time in his 35 years experience of drawing wills for people that he ever drew a will for a complete stranger and then had the signer tell him to keep the will.
Mr. Crawford said he put the will in the bank vault and "gave the matter no thought until Alida Groen died." He said John Groen never was "in any way or to any extent a customer of the bank by mail or anything else," and never inside the bank building. After Alida's death her children, Carl and George, came to the bank to get her lock box and Mr. Crawford testified he took the box to Alida's home where the family was assembled. He read Alida's will to them and then told the family "that Alida Groen had been named as executrix of that will of John Groen and that due to the fact she had died someone would have to be appointed to act in her place." He was not sure how he had heard that John Groen had died over in Buffalo Center, the day after Alida died. He thought some one in the bankjust who, he could not remember had said something to the effect that "John Groen had passed away." He testified he did not tell the children their mother was sole beneficiary of John Groen's will but without such knowledge the children went ahead and selected Ben and Orvel to act as administrators of John Groen's estate and pursuant to their directions he went to the bank and got John Groen's will and turned it over to the bank's attorney.
I. The foregoing is my review of the evidence in the light most favorable to the contestants. I see nothing in the record that would support the statement that "by his industry, thrift and good judgment he acquired a very comfortable competence." We do not know how he "acquired" his farms. It may be he inherited them. He had the thrift of a bachelor recluse and this record presents little about his exercising any business judgment. The statements in the majority opinion that he tended to his "business affairs" and that he "attended to the collection of his crop checks at the elevators himself" and that he "usually paid his taxes personally in cash or by checks" are certainly not true of the last four or five years of his life. This man did business out of a sugar sack. He had no checking account until the last year of his life and he only wrote six checks on that. He carried around large amounts of cash. When Alida's oldest son borrowed $1,000 from John Groen in 1946 on a 6% note, John, who was then at Johnny Troff's place, gave him the $1,000 in $20 bills which he took from a small note book in his pocket. The majority opinion assumes John Groen paid for his keep in his nieces' homes and Johnny Troff's home during the last 10 years of his life. This is because of the evidence of one $600 check to the Honkens. The record is silent as to whether he paid more.
These are the legitimate inferences which I think can be drawn from the foregoing review of the evidence in this case. There certainly could be the finding that John Groen was a fit subject for undue influence at the time the 1949 will was executed. He was then 79 years of age. He was unable to read. He was unable to write except perhaps to write his name. He was in a weakened mental condition. He couldn't handle his business. He was unable to retain anything in his mind for more than a few minutes. He was completely helpless physically and at the time the will was made, entirely dependent upon the sole beneficiary of the will, Alida Groen. He was completely unable, both physically and mentally to make his own arrangements for making the will. The arrangements had to be made for him *158 by the sole beneficiary. The sole beneficiary had early shown some disposition to influence him in that there was evidence from which the jury could find she once before attempted to get him to make a will.
The will was drawn up by entire strangers to John Groen, but one of the parties, the jury could find, was an old friend of the sole beneficiary. The will is most unjust and unnatural. It cut out all of his blood relatives and especially those in the Buffalo Center area who had cared for him in their homes during the last ten years of his life. There is a complete absence in the record of any reason for disinheriting these relatives. He told people outside the family, neighbors and Mr. Boyken the banker, that they were good to him and when he lay dying he was calling for Anna Honken. There is no evidence that he ever displayed any great affection for Alida. On the contrary, the evidence is that after returning from his visit with her he was excited and glad to get back home and he stated "they" wanted his money and wanted to rob him. At the time the will was made there was no discussion as to the testator's blood relatives, as to whether he had a wife, children, or brothers or sisters, or nieces or nephews. The banker who drew the will, who was formerly county treasurer of Lyon County said he thought this 79 year old man who was a complete stranger to him, and who owned farms in Winnebago and Hancock Counties, was a resident of Rock Rapids a town of 3,000 population. He did not ask him if he had ever executed a will. The jury could find this will was found in the lock box of the sole beneficiary. Or under the proponents' evidence they could find the almost equally suspicious fact that John Groen never had possession of the will from the moment he signed it and it was found in the custody of a complete stranger. The jury could find that apparently John Groen had no recollection that he had executed the 1949 will, or that the instrument he signed in Alida's kitchen was a will. On the contrary, he retained his 1942 will and it was found in his jacket pocket after his death. He never spoke of the 1949 will and Alida who knew of the will never spoke of it to any of her relatives and not even to her own children.
All of these inferences would support a finding that undue influence was exerted in the making of the 1949 will.
II. How is undue influence established in a will contest case? We have often held it need not be established by direct evidence.
In Re Estate of Telsrow, 237 Iowa 672, 22 N.W.2d 792, 796, we said:
"Undue influence in cases of this kind may be, and usually is, proven by circumstantial evidence. Direct proof is seldom available." (Citing many Iowa cases.)
In Re Estate of Eiker, 233 Iowa 315, 6 N.W.2d 318, 320, we said:
"Undue influence may be established by circumstantial evidence."
In Re Will of Busick, 191 Iowa 524, 182 N.W. 815, 818, we said:
"* * * But undue influence may be proved circumstantially; indeed, it is seldom capable of other proof."
In Re Estate of Rogers, 242 Iowa 627, 47 N.W.2d 818, 823, we said:
"On the other hand, it is well settled that the evidence of undue influence need not be direct."
III. It has been said that four elements should be established in order to raise a jury question on the issue of undue influence, and they are: (1), a person unquestionably subject to undue influence (2), opportunity to exercise such influence (3), a disposition to influence unduly for the purpose of procuring an improper favor and (4), the result clearly appearing to be the effect of the undue influence. See In re Estate of Ankeny, 238 Iowa 754, 28 N.W.2d 414, 30 Iowa Law Review, 321, 323. It cannot be seriously argued that there was not sufficient proof to establish the first, second and fourth elements. And there is more *159 proof here to establish the third than is usually present in cases of this kind. Not only do we have direct testimony of Alida's statement on an earlier occasion that she intended to get him to draw a will but we have testimony of her arrangement for strangers to draw the will. We have undisputed testimony that John Groen never for a single instant had possession of this will, and other evidence that the will was found in the lock box of the sole beneficiary. And add to that the testimony of the statements made by John Groen to many witnesses shortly after he returned home after making this purported will, that his Rock Rapids relatives had tried to rob him.
The jury would not have to believe every word of the bankers' testimony. Many of the circumstances surrounding the drawing of this will were sufficient to arouse suspicion.
Under the evidence most favorable to the contestants we have a helpless, feeble, mentally weak old man invited to the home of one who had the wish and the desire to get him to make a will. We have this man, at the time dependent upon Alida for everything, executing an unnatural will prepared by strangers in which she is the sole beneficiary. The jury could well believe she set the stage and exerted the influence that resulted in this will which never reached John Groen's possession but was found in the lock box of the sole beneficiary.
It would unduly extend this opinion to discuss our prior decisions in detail but this case is much like the Telsrow case, supra, Shaw v. Duro, 234 Iowa 778, 14 N.W.2d 241, and In re Will of Soderland, 239 Iowa 569, 30 N.W.2d 128, in all of which we held, on no stronger evidence than is present in this case, that the issue of undue influence was for the jury.
I would reverse.
HAYS and LARSON, JJ., join in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545917/ | 40 B.R. 951 (1984)
In re: Velma GAGNON, Debtor.
Nancy PRENTISS, Administrator of the Estate of Onezime Gagnon, Plaintiff,
v.
Velma GAGNON, Defendant.
Bankruptcy No. 182-00007, Adv. No. 182-0053.
United States Bankruptcy Court, D. Maine.
August 6, 1984.
*952 William J. Smith, John M. Pluto, Van Buren, Me., for plaintiff.
L. James Lavertu, Madawaska, Me., for defendant.
MEMORANDUM OF DECISION
JAMES A. GOODMAN, Bankruptcy Judge.
On March 18, 1982, the plaintiff filed a complaint objecting to the debtor's discharge.[1] The plaintiff contends that the debtor (1) failed to satisfactorily explain the loss of approximately $18,300; and (2) transferred proceeds from the sale of jointly-owned real property with the intent to hinder, delay, or defraud a creditor.[2]
I. Loss of Assets
The debtor filed her bankruptcy petition in January, 1982. Before then she was unemployed, received no income, and lived with her elderly father, sister and brother Adrian. In 1975, her brother Onezime opened a joint bank account payable to himself or the debtor. All deposits to the account were made with funds belonging to Onezime. It was the debtor's understanding that this money was intended to be hers upon Onezime's death.
Onezime died in August, 1978. Shortly thereafter, the debtor withdrew the balance of $12,360.33 from the account. The debtor also received an additional $5943.62 worth of stock from her brother's estate, for a total of $18,303.95.
To account for this money, the debtor produced receipts and other documents evidencing (1) payments totalling $2,373.28 for Onezime's funeral and burial expenses; (2) payments for various taxes totalling $2,013.43; and (3) payments for attorneys fees in connection with Onezime's estate totalling $297.18. The debtor also testified that she paid $5600 to purchase an automobile in 1979, paid $1250 in attorney's fees to her present counsel, and turned over $1800 to the bankruptcy trustee. Finally, she testified that at least from May, 1980 until she filed her petition, she sometimes used that money to pay for food, utilities, clothing, and other household expenses.[3]
Title 11 U.S.C. § 727(a)(5) provides that the Court shall grant the debtor a discharge unless
the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor's liabilities. . . .
The plaintiff has the ultimate burden of proving her objection to discharge. Bankruptcy Rule 4005; Bankruptcy Rule 407 (superseded August 1, 1983).
Although the debtor's explanation of the loss of her assets "`must consist of more that . . . [a] vague, indefinite, and uncorroborated hodgepodge of financial transactions,'" First Federated Life Insurance Co. v. Martin (In re Martin), 698 F.2d 883, 886 (7th Cir.1983) (quoting Baum v. Earl Millikin, Inc., 359 F.2d 811, 814 (7th Cir.1966)), it need not explain in detail every dollar spent on living expenses. See In re Hale, 274 F.Supp. 813, 816 (W.D.Va. 1967) (construing section 14c(7) of the old Bankruptcy Act of 1898).[4] Here, the debtor accounted with specificity for almost $15,000 of the approximately $18,300 in question. It appears that the remaining $3000-$3500 was spent on living expenses over at least an 18-month period for the debtor, her elderly father, sister and brother.[5] The Court is not persuaded that the *953 debtor has failed to explain satisfactorily what happened to the $18,300 in question.
II. Transfer of Real Estate Proceeds
Prior to 1979, the debtor's brother, Adrian, owned the real property in question. In order to ensure that it would pass to the debtor upon his death, Adrian conveyed it to himself and the debtor as joint tenants in May, 1979. The debtor gave no consideration for this transfer, and never considered the property as belonging to her. In May, 1981, the property was sold to third parties for $5,000. Adrian received all proceeds from the sale.
Title 11 U.S.C. § 727(a)(2)(A) provides that the Court shall grant the debtor a discharge unless
the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed . . . property of the debtor within one year before the date of the filing of the petition. . . .
This section requires proof of actual intent to hinder, delay or defraud. In re Gugliada, 20 B.R. 524, 529-30, 9 B.C.D. 339, 342 (Bankr.S.D.N.Y.1982). "Actual intent to defraud, as distinguished from constructive intent, requires that the debtor himself possess a culpable purpose." Pittsburgh National Bank v. Dee (In re Dee), 6 B.R. 784, 787, 6 B.C.D. 1169, 1171 (Bankr.W.D.Pa.1980). Here, the Court finds that the debtor never considered herself an owner of the real estate; she and her brother looked upon their joint tenancy as a testamentary substitute. Thus, the Court is not persuaded that the debtor had the actual intent to hinder, delay or defraud creditors when she allowed her brother to retain all of the proceeds from the sale of their jointly held real estate.
Based on the foregoing, the plaintiff's complaint objecting to the debtor's discharge shall be denied. Enter Order.
NOTES
[1] The complaint does not seek a determination of the dischargeability of a specific debt. Thus, the Court does not consider any issues under 11 U.S.C. § 523.
[2] The complaint alleges as a third ground for denying the debtor's discharge that the debtor knowingly made a false oath or account. The plaintiff failed to pursue this allegation either in her pre-trial memorandum or at trial. Therefore, the Court treats that issue as waived.
[3] A partial list of goods purchased was introduced into evidence. It itemizes expenditures of approximately $1500 not including food, utilities or gasoline.
[4] Section 727(a)(5) is substantially the same as section 14c(7) of the old Bankruptcy Act. First Federated Life Ins. Co. v. Martin (In re Martin), 698 F.2d 883, 886 (7th Cir.1983).
[5] It appears that all four were unemployed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583137/ | 31 So.3d 733 (2010)
Todd ZOMMER, Appellant,
v.
STATE of Florida, Appellee.
No. SC08-494.
Supreme Court of Florida.
March 11, 2010.
*736 James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, FL, for Appellant.
Bill McCollum, Attorney General, Tallahassee, FL, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.
*737 PER CURIAM.
Todd Zommer appeals his conviction for first-degree murder and his sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm Zommer's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
On May 17, 2005, Todd Zommer was indicted on one count of first-degree murder for the premeditated killing of Lois Corrine Robinson, a 77-year-old woman. Zommer was also charged with attempted first-degree murder, robbery, aggravated battery with a deadly weapon, grand theft of a motor vehicle (three counts), grand theft (two counts), uttering a forgery, fleeing and eluding at high speed or with wanton disregard, resisting an officer without violence, possession of drug paraphernalia, and leaving the scene of an accident with property damage. Immediately prior to the commencement of trial, Zommer pled guilty to all counts except the murder charge with regard to Robinson.
With regard to the murder, on April 12, 2005, the body of Robinson was discovered in her Kissimmee home after an officer from the Osceola County Sheriff's Office (OCSO) conducted a wellness check at the request of a neighbor. Robinson's vehicle was missing, and the level of decomposition indicated that she had been dead for several days. The same day, Kissimmee police officers spotted Robinson's vehicle and, having been advised that the vehicle was sought in reference to a homicide, attempted to initiate a traffic stop. The driver of the vehicle accelerated with officers in pursuit until the vehicle crashed. After a brief foot chase of the occupant, Todd Zommer was arrested and taken into custody.
In the days following the murder, Zommer admitted to numerous people that he killed Robinson. The four admissions were to: (1) Joanne and James Vella, a mother and son with whom Zommer consumed drugs for a five-day period surrounding the time of the murder; (2) Matthew Druckenmiller, another acquaintance with whom Zommer consumed drugs; (3) a reporter for an Orlando television station; and (4) OCSO detectives. A large portion of Zommer's statement to OCSO was suppressed by the trial court because the detectives had failed to correct an inaccurate assumption by Zommer that if he invoked his right to counsel he would be required to wait eight months for counsel to be appointed.
The details of the murder were thoroughly developed through Zommer's statements, testimony from witnesses, and Zommer's trial testimony. From time to time, Zommer would live with a neighbor of Lois Corrine Robinson (the same neighbor who requested that OCSO conduct a wellness check for Robinson). On Saturday, April 9, 2005, the neighbor told Zommer during a telephone conversation that Robinson had agreed to loan Zommer twenty dollars for gas. Zommer walked to Robinson's house to obtain the money and, when she opened the door, Zommer believed that Robinson recognized him as the individual who had stolen a boat from a neighbor's yard. Zommer accepted the twenty dollars from Robinson, left the premises, but then later returned. During his interview with the television reporter, Zommer described the event:
ZOMMER: I killed the lady, Corrine, you know, because she wouldn't mind her business, for one. . . . In the life that I live, she should've minded her business. That's what she shoulda did.
. . . .
*738 . . . I didn't realize how old she was oryou know, that's not a factor and, you know, the fact that she was a female didn't matter. It's just the fact that she had saw me do something, and she should have minded her business and she didn't. You know, it's just like anything else in the world.
REPORTER: What did she see you do?
ZOMMER: She seen me robbing stealing something.
. . . .
. . . [W]hen I went over there that day to meet her, I finally meet her, the recognition was there.
. . . .
REPORTER: So is that why you killed her?
ZOMMER: Basically, yeah, to shut her up. Tell her mind her business. You know, when I was beating her, that's what I was telling her, too. "Now, you wanna talk, you wanna yell? Yell now. You wanna tell on somebody? Tell now."
When Zommer returned to the Robinson home, she began showing Zommer items that she collected. As Robinson was exhibiting her items, Zommer picked up a wooden instrument referred to as a ukelin and struck her over the head. According to Zommer, "she bounced back a little bit. And was like, `Oh, my God. What was that?' And I said, `It was your ceiling.' And when she looked up, I hit her again." Zommer struck Robinson repeatedly with the ukelin until it shattered. Zommer then hit Robinson with a hurricane lamp. He next obtained the cord from a computer mouse and placed it around Robinson's neck as he attempted to strangle her. During the attack, Robinson scratched and resisted. The mouse cord ripped several times, and Zommer later told Matthew Druckenmiller that "it was hard to choke somebody when their fingers were in the way." When the cord ripped, Zommer stopped the attack for a urination break. After the bathroom break Zommer again attacked Robinson, stepping on her head in the process. Then:
I think I kicked her in the face. I don't think I punched her at all; I just think I kicked her. And then she was kind of like flopping around. I hate to say that, but she wasevery time I kicked her, she'd moved to one spot and I'd kick her and I'd get in the otherI think I kicked her twice.
Zommer then stopped the attack and walked into the kitchen for a cool drink from the refrigerator. While in the kitchen, Zommer noticed a block of knives on the counter. Zommer fully described (during the television interview) the attack when he stated:
I went in the kitchen, got a knife and came back and lifted her throat up, stood behind her. . . . I straddled her, and lifted her head back and just sliced it, chu, chu, chu, chu.
And then I dropped her head and she gurgled and I kicked her again. And I sat and I watched her and I made sure she wasn't breathing.
Zommer admitted to one of the Vellas that he first attempted to cut Robinson's throat with his left hand to make it appear that a left-handed person had committed the murder. When the left-hand attempt did not work, Zommer confirmed that he had to use his right hand. He cut so deep into her throat that he could hear the knife hitting the bones. Zommer informed the reporter that after the murder:
I went home, took everything off, put it in a bag, ate, went back over there, got her car and drove her car down the street, walked back home, went back over there and made it look like a robbery. *739 And within that time frame, I threw the shoes and stuff away.
When asked by the reporter if he was under the influence of drugs at the time of the murder, Zommer replied that he was "sober as f* *k."
Subsequent to his arrest (and his confession to OCSO detectives) Zommer led the police to a dumpster where a plastic bag was recovered which contained bloody sneakers, socks, and a towel. A DNA analyst for the Florida Department of Law Enforcement (FDLE) testified that the blood on the sneakers and socks matched the known DNA profile of Robinson. A swab from the inside of one of the socks revealed DNA that matched the known DNA profile of Zommer at all thirteen relevant locations on the DNA strand. The analyst testified that the likelihood of randomly selecting a DNA profile of a Caucasian male who matched the DNA sample taken from the sock was one in 25 quadrillion. Further, an FDLE footprint analyst testified that the sneakers recovered from the dumpster exhibited design characteristics similar to a footprint impression that appeared on the back of the shirt that Robinson was wearing at the time of her death.
An associate medical examiner concluded that the cause of death was a large incised wound to Robinson's neck with massive hemorrhaging. The examiner determined that there were at least two incised wounds to the neck. One of the wounds was deep enough that it extended to Robinson's backbone, and the examiner explained it would have required a significant amount of force to cut through the blood vessels and tissues of the neck to reach bone. The wound was consistent with someone pulling the victim's head back and making the incision with a sharp object, such as a blood-stained knife that was recovered from Robinson's kitchen. The examiner noted that there were defensive wounds on the victim's hands. Further, Robinson had contusions and abrasions on the front and back of her body as well as her head, and the examiner concluded that the number of injuries was consistent with someone struggling against an attacker for a period of several minutes. The examiner opined that the head injuries were inflicted before the fatal neck wound because circulation to the head would have continued to develop the contusions found. The examiner testified that all of Robinson's injuries (other than the neck wound) could not have been caused by a single blow and a fall. Moreover, these blows would not have rendered her immediately unconscious, but may have left her stunned and disoriented.
Todd Zommer testified in his own defense. Although he described the murder in great detail, his testimony during trial differed from his prior statements in three main respects. First, Zommer testified at trial that he smoked crack cocaine before returning to Robinson's house; therefore, he was high at the time of the murder. Second, Zommer asserted during trial that he did not kill Robinson because she had witnessed him stealing a boat. Instead, he asserted that the only reason he returned to Robinson's home was because he was high and wanted to talk to someone. On cross-examination, he stated that he falsely admitted to stealing the boat to protect one of his friends. He also claimed that he fabricated the boat-theft motive because the inmates at the jail wanted to "kick my ass" and he had to "come up with a reason that's plausible for inmates to accept the fact that I killed a 77-old-woman [sic]." When asked why he commenced and continued the attack on Robinson, Zommer professed that he did not know, and could not provide a reason for his actions. Zommer also testified that the night before the *740 murder, he had unsuccessfully attempted to contact a childhood acquaintance because he felt that his life was coming unraveled and he was experiencing homicidal thoughts. Third, Zommer contended during trial testimony that Robinson appeared to be unconscious after he struck her with the lamp, that she never fought him during the attack, and that she never used her hands in an attempt to block the mouse cord from strangling her.
During cross-examination, Zommer was impeached with the following statements:
I woke up that morning and I said, you know, what? I'm just gonnaI'm going all out. F* *k it. Can't stand her. I don't even know her, dude. The. . . hate, you know, it builds up. . . . I'm sorry that she's seventy-seven years old. It has nothing to do with it. It's not an age. . . . It could have been a nineteen-year-old.. . . I don't think it would have mattered at that straight time. And the sad thing about it, it felt so good. You know, what I'm saying?
. . . .
I knew right as soon as I saw [the ukelin], that's what I was going to use. . . . I said "Why don't you get up and walk me around your house." What I really was doing is checking out who could see through what. . . . I said, "Why don't you show me your dolls, dah, dah, dah." And I'm walking around, the whole time I've already planned it in just the right spot.
. . . .
She started rolling around and grabbing my leg and s* *t. And I'm like, "Get the f* *k off me, you snitching bitch." And this has motivated me to keep doing it.
. . . .
I went berserk, dude. But then I remember going in the kitchen looking for a knife. . . . And I always told myself, it would be f* *king so cool to f* *king slice the bitch's head off. . . .
So I went in the f* *king kitchen. I got me this long ass f* *king knife, and I stood over her like a f* *king cowboy riding her like this, and I was f* *king yanking her, yanking her. And not thinking of nothing but getting my s* *t. . . . It wasn't the fact she's a woman or older, anything like that. It was the fact the bitch seen me doing something I got caught doing.
The jury convicted Zommer of first-degree premeditated murder.
During the penalty phase, the medical examiner testified that, based on the testimony presented during the guilt phase and the results of the autopsy, it would have taken significant time to inflict the multiple injuries upon Robinson's body. The examiner concluded that being hit with the ukelin and the hurricane lamp, as well as being strangled with a mouse cord, would have caused Robinson pain. According to the examiner, Robinson's injuries were consistent with someone who had been struggling, and the fact that Robinson struggled to pull the mouse cord from around her neck indicates that she had been conscious at that point of the attack.
To establish the prior violent felony aggravator for the crimes of attempted first-degree murder, robbery, and aggravated battery with a deadly weapon, the State presented the testimony of Edgardo Fuentes. Fuentes testified that on April 12, 2005 (the same day Robinson's body was discovered), he was crossing a parking lot on his way to work when he heard an engine and, shortly thereafter, he was struck from behind by a car. Fuentes hit the windshield and flipped over the car. When he regained composure, he saw two men (one of whom was Zommer) walking toward him. When Fuentes reached out *741 his hand for help, the two men started kicking him. After stealing his wallet, the men left in the vehicle.
A deputy from OCSO testified that in April 2005, a man who had purchased a boat from Zommer called because he was concerned that it had been stolen. However, the deputy was unable to determine whether the boat was, in fact, stolen. Lastly, the State offered victim impact statements from Robinson's family.
The defense presented the testimony of multiple witnesses during the penalty phase. Zommer's younger half-brother testified that their mother, Denise, was an alcoholic. Zommer was protective of his mother even though she was not kind to him. The brother testified that on one occasion, when his (the brother's) father was choking Denise, Zommer intervened to defend her with force. Zommer's adopted sister testified that while Denise was a stern and unloving parent to her other children, her behavior toward Zommer was actually cruel. Denise subjected Zommer to very harsh punishments and also would blame him for things that he did not do.
During his childhood, Zommer was placed in three separate facilities by his mother due to his disruptive behavior. His first placement occurred due to the fact that Zommer was setting fires as a child. According to the sister, when Zommer was sent to the third and final facility, the Children's Center in Hamden, Connecticut at the age of eleven, his siblings knew where he was going but Zommer did not. Instead, Zommer's mother left him there with a backpack. The sister testified that Denise emancipated Zommer at age sixteen, and Zommer thereafter worked and purchased items for the family home. However, after Zommer moved out, Denise would pretend that she did not know him when she saw him on the street, even when it appeared that he was having personal or financial difficulties.
Danny Newell served as a child care worker at the Children's Center during Zommer's stay there, which extended almost five years. Newell testified that while at the Center, Zommer clung to the adults and liked to receive approval. He also was impulsive and engaged in attention-seeking behavior. Newell recalled long periods of time when Zommer was not allowed to return homeeven during the holidaysand testified that, although sometimes Zommer stayed at the center because of behavioral issues, other times it was because there was no one available for him at home. Newell also testified that while Zommer never attacked adults or other children, he had to be restrained at times. After Zommer left the center, he maintained contact with Newell. Newell testified that because Zommer had been on medication while at the center, he spoke to Zommer about the dangers of self-medicating with drugs or alcohol. Newell confirmed that on the day before the murder, Zommer left a message for him at the center informing Newell that he needed to speak with him. Newell stated that although Zommer sounded stressed in the message, he did not explain the nature of his problem in the message.
Daisy Mendoza, a substance abuse counselor at the Osceola County Jail who provided GED, parenting, and substance abuse classes to the prisoners, testified Zommer would participate in and benefit from as many classes as he could. She further testified that for the eleven months prior to her testimony, Zommer had served as a representative for the inmates in his jail pod. Mendoza opined that Zommer would function well in a controlled environment.
Clinical psychologist Jethro Toomer concluded that Zommer suffers from a *742 borderline personality disorder, which is characterized by mood instability and unpredictability, plus an underlying diagnosis of a substance abuse disorder. Zommer's developmental history (i.e., an alcoholic mother who neglected and failed to nurture him; an unpredictable environmental climate characterized by repeated institutionalization) was consistent with etiological factors that lead to development of borderline personality disorder. According to Toomer, the lack of a stable environment caused Zommer to grow up without acquiring the thought processes, skills, and emotional maturity to address everyday stressors. Toomer explained that individuals with borderline personality disorder frequently self-medicate because they are trying to compensate for their deficits in coping with daily stress and situations. Toomer offered an anxiety disorder as a secondary diagnosis. Toomer concluded that although Zommer claimed that he was not high at the time of the murder, Zommer is an unstable individual whose accounts of events cannot be trusted. Toomer explained that he did not reach a diagnosis of antisocial personality disorder in part because for a period of two and a half years, Zommer was married and worked without any indication of drug use or criminal activity. According to Toomer, individuals with antisocial personality disorder do not have episodes of appropriate functioning, conscience, or concern for the welfare of others.
Psychiatrist Jeffery Danziger concluded that Zommer suffers from a bipolar mental illness, which is characterized by episodes of mania and depression, and that Zommer was mentally ill at the time of the murder. Danziger provided a secondary diagnosis of substance abuse and explained that it is not unusual for people who suffer from bipolar disorder to use drugs, and more specifically, cocaine and methamphetamine. Use of these drugs by a bipolar individual can produce extreme aggression and irritability with a high risk of violence. Danziger concluded that since Zommer still had traces of the breakdown components of cocaine in his system thirteen days after his incarceration, he must have had a significant amount of the drug in his system at the time of the murder. According to Danziger, the mixture of drugs with his bipolar disorder placed Zommer in a condition in which he was actively mentally ill, but acting in a cruel and heartless manner during the murder. Danziger disagreed with the borderline personality diagnosis of Toomer and concluded that some of Zommer's reckless conduct, which included taking his young son to a crack house, was more consistent with antisocial personality disorder or someone who is in the manic stage of a bipolar disorder. Danziger noted that during a 2004 incarceration, a Florida Department of Corrections (DOC) psychiatrist had also diagnosed Zommer as suffering from antisocial personality disorder. Both Toomer and Danziger agreed that Zommer was not insane at the time of the offense and that he was able to distinguish right from wrong.
In rebuttal, the State presented the testimony of psychologist Daniel Tressler, who concluded that Zommer suffers from antisocial personality disorder with polysubstance dependence and attention deficit disorder as secondary diagnoses. Tressler noted that antisocial personality disorder is characterized by a longstanding pattern of disregard for others, lack of remorse, and a tendency to engage in reckless or illegal conduct. Tressler explained that Zommer became disruptive at age three when he began setting fires and his behaviorwhich included destruction of property and animal abuseeventually became so aggressive and disruptive that his mother sent him to facilities for troubled children. *743 Tressler explained that the fact that Zommer had relationships with his wife and Robinson's neighbor does not eliminate the possibility that he suffered from antisocial personality disorder. Rather, Zommer's actions toward these women were consistent with obtaining what he wanted from them as opposed to being engaged in a loving relationship. Tressler suspected that Zommer's abandonment by his mother produced a high degree of anger that festered for many years and was reenacted through his relationships with other women. Tressler did not agree with a diagnosis of borderline personality disorder because (1) individuals who suffer from borderline personality disorder are usually women; and (2) when faced with issues of rejection, individuals with borderline personality disorder usually engage in self-destructive behavior, whereas individuals who suffer from antisocial personality disorder tend to become angry and are more likely to harm others. Tressler explained that antisocial personality disorder is a character disorder and that people who suffer from it have control over their behavior. Accordingly, Tressler concluded that Zommer was not insane or under extreme emotional distress at the time of the murder, and he knew the consequences of his actions.
On December 19, 2007, the jury recommended a death sentence by a vote of ten to two. During the Spencer[1] hearing, neither Zommer nor the State offered additional evidence.
On February 22, 2008, the trial judge sentenced Zommer to death for the murder of Lois Corrine Robinson. The trial court determined that the State had proven beyond a reasonable doubt the existence of four statutory aggravators: (1) Zommer had previously been convicted of a felony involving the use or threat of violence to the person, see § 921.141(5)(b), Fla. Stat. (2005) (the three convictions for crimes against Edgardo Fuentes, which the trial court treated as one prior violent offense) (significant weight); (2) the murder was committed for the purpose of avoiding lawful arrest, see § 921.141(5)(e), Fla. Stat. (2005) (great weight); (3) the murder was especially heinous, atrocious, or cruel (HAC), see § 921.141(5)(h), Fla. Stat. (2005) (great weight); and (4) the murder was cold, calculated, and premeditated (CCP), see § 921.141(5)(i), Fla. Stat. (2005) (great weight).
Although Zommer alleged the existence of seventy separate mitigating circumstances, the trial court combined them into thirteen groups (two statutory and eleven nonstatutory). The trial court rejected both statutory mitigating circumstances asserted by Zommer. The trial court first concluded that Zommer was not under an extreme mental or emotional disturbance at the time of the crime, concluding that "the defendant has an antisocial personality disorder and a dependence on multiple substances, but the drug dependence did not cause or substantially contribute to [the] killing of Ms. Robinson." The trial court next concluded the statutory mitigating circumstance that the capacity of Zommer to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired had not been established. Instead, the trial court found that "[t]he facts of the case clearly establish that the defendant knew what he was doing was wrong and took steps to try to cover up his crime."
The trial court found a total of ten nonstatutory mitigating circumstances: (1) Zommer had a deprived childhood and a *744 dysfunctional family (moderate weight);[2] (2) Zommer has a history of drug abuse and dependence (little weight);[3] (3) Zommer has exhibited good conduct while incarcerated (little weight); (4) Zommer can be productive in prison (little weight); (5) society can be protected by the imposition of a life sentence (little weight); (6) Zommer accepted responsibility for his actions during trial (little weight); (7) Zommer suffers from mental health disorders that do not rise to the level of a major mental illness (little weight); (8) Zommer was generally protective of his mother and his younger brother (little weight); (9) Zommer was in special education classes and experienced difficulty in school as a child, but eventually obtained a GED (little weight); and (10) on the night before the murder, Zommer attempted to contact Danny Newell and talk to him about having homicidal thoughts (moderate weight). The trial court held that the following nonstatutory mitigating circumstances had not been established: (1) Zommer was a good husband and father and was able to have a positive family experience when he was not on drugs; (2) Zommer is not racially prejudiced; (3) Zommer played basketball when he was a child; and (4) Zommer experienced oxygen deprivation during birth.
In imposing a sentence of death, the trial court stated:
[T]he aggravating circumstances in this case far outweigh the mitigating circumstances.... [T]he truly heinous, atrocious and cruel manner in which this murder was committed standing alone, even in the absence of the other aggravating circumstances, is sufficient to far outweigh the mitigating circumstances in this case.
This direct appeal followed.
ANALYSIS
Sufficiency of the Evidence
As a preliminary matter, even if a defendant has not presented a sufficiency challenge, this Court has an independent obligation to review the record to determine whether sufficient evidence exists to support the conviction. See Overton v. State, 801 So.2d 877, 905 (Fla.2001); Fla. R.App. P. 9.142(a)(6). Here, Zommer has consistently admitted that he murdered Robinson. In support of premeditation, the record reflects that Zommer decided to kill Robinson when he perceived that she recognized him as the person who stole a boat from the neighbor's yard. Zommer described in painstaking detail how he selected his choice of weapon, evaluated the layout of Robinson's house to see if anyone outside could see inside, and then used multiple means to effectuate her death. We conclude there is sufficientindeed, abundantevidence to support the conviction for premeditated murder.
CCP Aggravating Circumstance
Zommer first challenges the finding of the cold, calculated, and premeditated (CCP) aggravating circumstance by the trial court. This Court has explained the standard of review for an aggravating factor as follows:
"[I]t is not this Court's function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable *745 doubtthat is the trial court's job. Rather, [this Court's] task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding." Willacy v. State, 696 So.2d 693, 695 (Fla.1997) (footnote omitted); see also Occhicone v. State, 570 So.2d 902, 905 (Fla.1990) ("When there is a legal basis to support finding an aggravating factor, we will not substitute our judgment for that of the trial court...."); Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla.1981) ("Our sole concern on evidentiary matters is to determine whether there was sufficient competent evidence in the record from which the judge and jury could properly find the presence of appropriate aggravating or mitigating circumstances.").
Franklin v. State, 965 So.2d 79, 98 (Fla. 2007).
This Court has explained that to support the CCP aggravator, a jury must find that (1) the killing was the result of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage; (2) the defendant had a careful plan or prearranged design to commit murder before the fatal incident; (3) the defendant exhibited heightened premeditation; and (4) the defendant had no pretense of moral or legal justification. See Buzia v. State, 926 So.2d 1203, 1214 (Fla. 2006) (quoting Jackson v. State, 648 So.2d 85, 89 (Fla.1994)). To establish CCP, the evidence must prove beyond a reasonable doubt that the defendant planned or prearranged to commit murder before the crime began. See Thompson v. State, 565 So.2d 1311, 1318 (Fla.1990). The heightened premeditation required to satisfy this aggravator has been found where a defendant had the opportunity to leave the scene with the victim alive, but chose instead to commit the murder. See Alston v. State, 723 So.2d 148, 162 (Fla.1998). We have also explained that a chronic drug abuser can still act in accordance with a deliberate plan where the evidence indicates that he "was fully cognizant of his actions on the night of the murder." Guardado v. State, 965 So.2d 108, 117 (Fla. 2007) (quoting Robinson v. State, 761 So.2d 269, 278 (Fla.1999)).
We conclude that there is competent, substantial evidence to support the finding of this aggravating circumstance. Zommer admitted during his testimony that he was having homicidal thoughts on the night before the murder. When Zommer went to Robinson's house to borrow money and thought Robinson recognized him as the individual who stole the boat from the neighbor's yard, he did not fly into a rage and attack her. Instead, he left her residence and then later returned with the intent to kill her so that she would not report him as the thief. Although Zommer was a heavy drug user during the time surrounding the murder, his own statements indicate that he carefully formulated his plan to kill Robinson. When he reentered the house, he asked her to show him her collections purely as a pretense, when actually he was looking for a murder weapon and also to determine whether individuals outside could see what was occurring inside of the house.
Zommer made a conscious decision to attack Robinson with the ukelin. She was on her hands and knees, returning one of her dolls to its place in her collection, when Zommer first chose to strike her on the head. Once the instrument was destroyed during the beating, he proceeded to use various alternative items to effectuate her death. There were multiple breaks and intervals in the attack during which Zommer could have decided to leave Robinson *746 wounded but alive. In fact, Zommer completely stopped the attack twiceonce to urinate and once to retrieve a cold drink from Robinson's refrigerator. Instead of leaving, Zommer chose to continue the assault, procuring additional weapons until he finally succeeded in killing her. Zommer admitted to OCSO that when he saw the knife in the kitchen, he thought that it would be "so cool to ... slice [her] head off." Consistent with this statement, the cut to Robinson's throat was so deep that it nearly decapitated her.
The trial court's finding of CCP is consistent with other cases in which this Court has upheld the application of this aggravator. See, e.g., Guardado, 965 So.2d at 117 (CCP established where defendant planned to kill the victim and rob her to acquire drug money; defendant confessed that he chose the victim because of the secluded location of her house and the fact that she would open up her home to him due to their prior relationship); Buzia, 926 So.2d at 1214-15 (CCP established where defendant had multiple opportunities to leave the victims' residence without causing further harm, but instead chose to commit the murder, and where the defendant left the immediate vicinity of one victim during the attack to procure the weapon that was used to commit the murder); Barnhill v. State, 834 So.2d 836, 851 (Fla.2002) (CCP established where the defendant waited in the victim's house for an extended period of time, observing the victim and planning his course of action; defendant also "had the time and opportunity to reflect upon his action before the first strangulation was attempted, before the towel ligature was employed, and again before the belt was used"); Rose v. State, 472 So.2d 1155, 1159 (Fla.1985) (CCP established where defendant searched in an adjacent lot to find a concrete block to use as a murder weapon, walked back to where the victim was located, lifted the block over his head, asked the victim to stand up, and then hurled the concrete block onto the head of the victim multiple times).
Accordingly, we conclude that this aggravating circumstance was supported by competent, substantial evidence and affirm the finding of the trial court.
HAC Aggravating Circumstance
Zommer next contends that the trial court improperly found that the murder of Robinson was heinous, atrocious, and cruel (HAC). This Court has stated:
The HAC aggravating factor applies in physically and mentally torturous murders which can be exemplified by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another. HAC focuses on the means and manner in which the death is inflicted and the immediate circumstances surrounding the death, rather than the intent and motivation of a defendant, where a victim experiences the torturous anxiety and fear of impending death. Thus, if a victim is killed in a torturous manner, a defendant need not have the intent or desire to inflict torture, because the very torturous manner of the victim's death is evidence of a defendant's indifference.
Barnhill, 834 So.2d at 849-50 (citations omitted). In determining whether an aggravating factor has been proven, this Court had held that "the trial judge may apply a common-sense inference from the circumstances." Gilliam v. State, 582 So.2d 610, 612 (Fla.1991) (internal quotation marks omitted) (quoting Swafford v. State, 533 So.2d 270, 277 (Fla.1988)). Moreover, we have noted that the fact that the attack occurred within the supposed safety of the victim's own home "adds to the atrocity of the crime." Williams v. State, 967 So.2d 735, 763 (Fla.2007) (quoting *747 Perry v. State, 522 So.2d 817, 821 (Fla.1988)).
Zommer contends that competent, substantial evidence does not support this aggravating circumstance because Robinson was rendered unconscious almost immediately. See generally Buzia, 926 So.2d at 1212 ("[N]othing done to the victim after the victim is dead or unconscious can support this aggravator. Therefore, awareness of impending death is critical in determining whether a beating unnecessarily tortured the victim." (citations omitted)). This is the only remotely possible manner for Zommer to challenge this aggravator given the events as described by Zommer himselfhe beat Robinson with a ukelin, struck her with a hurricane lamp, "stepped" on her head, kicked her, attempted to strangle her, and finally cut her throat. The medical examiner testified that being struck with the ukelin and the hurricane lamp and being strangled with the mouse cord would have caused Robinson pain.
This Court has previously upheld the HAC aggravating factor in cases where a conscious victim was beaten or strangled prior to his or her death. See, e.g., Conde v. State, 860 So.2d 930, 955 (Fla.2003) ("Strangulation with great force applied around the victim's neck after a violent beating until unconsciousness takes over [is] heinous, atrocious, or cruel." (quoting trial court's order)); Randolph v. State, 562 So.2d 331, 338 (Fla.1990) (affirming HAC where defendant repeatedly hit, kicked, strangled, and knifed victim who was conscious during various stages of the attack); Perry, 522 So.2d at 821 (HAC aggravating factor established where victim was choked and repeatedly stabbed while she attempted to ward off a knife attack). Moreover, the lack of defensive wounds on the body of the victim has not precluded this Court from holding the HAC aggravator applicable. See, e.g., Francis v. State, 808 So.2d 110, 121, 134-35 (Fla.2001) (approving HAC aggravator where 66-year-old victim who was repeatedly stabbed had only one defensive wound); Guzman v. State, 721 So.2d 1155, 1160 (Fla.1998) (HAC aggravator upheld in stabbing/hacking murder where victim only suffered one defensive wound to his hand). Finally, Zommer's own statement that he taunted Robinson as he beat her reflects his utter indifference to her suffering.
We conclude that the trial court properly rejected Zommer's contention that Robinson was unconscious during most of the attack. First, Zommer in prior statements admitted that Robinson struggled. Zommer told OCSO detectives that during the attack Robinson was "rolling around and grabbing [his] leg." Zommer also informed acquaintance Matthew Druckenmiller that during the attack, Robinson was scratching and fighting with him and that she used her hands in an attempt to block the mouse cord from strangling her. Although these facts are derived from Zommer's own statements, and during trial Zommer contended that his earlier statements were fabrications, this Court has held that "[a] trial judge is not prevented from relying on specific statements made by the defendant if they have indicia of reliability, even if the defendant has given several conflicting statements." Barnhill, 834 So.2d at 850.
Evidence corroborates Zommer's earlier statements that Robinson was conscious through most of the attack. The medical examiner testified that Robinson suffered multiple contusions on the back, side, and front of her body, as well as her head, and that it would have taken several minutes for these wounds to have been inflicted. During trial, Zommer himself stated that "the time frame [of the murder] isn't as *748 short as people are ... making it seem." Further, the medical examiner stated that these injuries were consistent with a person who was "being hit, falling, getting up, being hit, falling, getting up and being hit." Moreover, the two defensive wounds on Robinson's hands were consistent with someone struggling with an attacker.
Additionally, the trial court made a finding when it denied Zommer's motion for judgment of acquittal on the HAC aggravating circumstance which supports the conclusion that Robinson was conscious throughout the attack. Zommer testified that his attempt to strangle Robinson had failed because when he tried to pull the cord around her neck, it slipped out of his hand. In support of this testimony by Zommer, defense counsel noted during argument on the motion that there was no evidence of petechial hemorrhaging with regard to Robinson's neck or eyes. However, in denying the motion, the trial court reached a different conclusion as to the lack of petechial hemorrhaging:
The very evidence that you speak of ... that the medical examiner found no evidence of petechia ... that suggests a strangulation indicates to the court that she was in fact awake and aware and fighting the strangulation, so she was aware of her impending death as he was attempting to strangle her with the cord. In fact, her efforts in fighting this off are what kept her from being strangled with the cord, which also suggests to the court that she likely was conscious when her throat was slashed, because the last thing that was done to her before slashing the throat was the attempted strangulation, which was not successful in killing her.
The trial court's finding is supported by the evidence in that a crime scene technician testified that she collected pieces of a mouse cord that were found near Robinson's body and throughout the house. Zommer advised Druckenmiller that the cord "ripped several times," and Druckenmiller testified that "[i]t was my understanding that [when the cord ripped is] when her fingers got in the way." The presence of a broken cord is more consistent with a failed strangulation than it is with the cord merely slipping out of Zommer's hands.
In light of the foregoing, we agree with the trial court that Robinson was conscious through most of the attack and may even have been conscious when her throat was cut. Given the brutality of the prolonged attack on this 77-year old woman in her home, she unquestionably experienced fear, pain, and anxiety of impending death. We therefore hold that competent, substantial evidence supports the HAC aggravating circumstance.
Statutory Mitigation
Zommer next asserts that the trial court failed to properly interpret the statutory mitigating evidence offered and failed to correctly apply the law with regard to such mitigation. We disagree. A trial court may reject a mitigating circumstance provided that the record contains competent, substantial evidence to support the rejection. See Reynolds v. State, 934 So.2d 1128, 1159 (Fla.2006).
As previously discussed, the trial court rejected both statutory mitigating circumstances asserted by Zommer. With regard to the "extreme mental or emotional disturbance" statutory mitigating circumstance, the record reflects that the three experts did not agree upon a mental health diagnosis. While all three doctors agreed that Zommer suffered from a substance abuse disorder, Dr. Toomer was the only doctor who concluded that Zommer suffers from borderline personality disorder (as opposed to antisocial personality disorder). Toomer nonetheless agreed *749 that Zommer possesses all seven criteria of antisocial personality disorder and was diagnosed with conduct disorder as a child (a prerequisite to a diagnosis of antisocial personality disorder). Conversely, both Dr. Danziger and Dr. Tressler concluded that Zommer suffers from antisocial personality disorder. Dr. Danziger also concluded that Zommer suffers from bipolar disorder, a diagnosis with which Dr. Tressler disagreed because after the drugs were removed from Zommer's system, there was no evidence of the disorder. Dr. Tressler disagreed with a diagnosis of borderline personality disorder because individuals who suffer from this disorder are usually women and are more likely to harm themselves than others when faced with rejection. Dr. Tressler explained that people who are diagnosed with antisocial personality disorder have control over their behavior and their actions are not driven by a mental illness that causes them to misperceive reality. Tressler opined that Zommer's ability to describe the murder in great detail and with great focus indicated that at the time of the murder he was not in a state where he misperceived reality.
This Court has explained that "[j]udgments of credibility are within the trial court's purview." Jones v. State, 966 So.2d 319, 330 (Fla.2007). A trial court has the discretion to reject a statutory mitigator where one expert's testimony is rebutted by that of another. See Walker v. State, 707 So.2d 300, 318 (Fla.1997). Here, the trial court weighed the testimony of each of these experts and chose to accept the diagnosis of antisocial personality disorder offered by Dr. Danziger and Dr. Tressler. In support of this finding, the trial court noted that Zommer was previously diagnosed as suffering from this disorder by a DOC psychiatrist during one of Zommer's prior incarcerations. Moreover, the record reflects that Zommer satisfies all seven criteria for antisocial personality disorder, and he could recall the events at the time of the murder with great precision. Based upon this evidence, we conclude that the trial court did not err when it accepted Dr. Tressler's diagnosis and rejected that of Dr. Toomer (with regard to borderline personality disorder) and Dr. Danziger (with regard to bipolar disorder). See generally Rose v. State, 787 So.2d 786, 802-03 (Fla.2001) (trial court's rejection of "extreme disturbance" mitigator not an abuse of discretion where even though one expert testified that defendant suffered from borderline personality disorder, the State rebutted this testimony with evidence suggesting that the defendant was a sociopath); Walls v. State, 641 So.2d 381, 390-91 (Fla.1994) (noting that opinion testimony "gains its greatest force to the degree it is supported by the facts at hand, and its weight diminishes to the degree such support is lacking"). Thus, competent, substantial evidence exists in the record to support the trial court's rejection of the "extreme emotional or mental disturbance" mitigator.
With regard to the statutory mitigating circumstance that Zommer's capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired, all three experts testified that at the time of the murder, Zommer was capable of distinguishing right from wrong. Further, various actions by Zommer indicate that he was aware of the criminality of his conduct. When he first reentered Robinson's home and asked her to show him her collections, he stated that he was actually checking to see "who could see through what." Further, both during and after the murder, he engaged in various actions to cover up the crime, including: (1) first attempting to cut Robinson's *750 throat with his left hand so that it would appear that a left-handed person had committed the murder; (2) disposing of blood-stained items in a dumpster; (3) ransacking Robinson's home to make it appear as if a robbery had occurred; (4) driving Robinson's car away from her home so that individuals would believe she was not home; and (5) attempting to flee from police, both by car and on foot. This Court has previously upheld rejection of this statutory mitigating factor where a defendant "took logical steps to conceal his actions from others." Nelson v. State, 850 So.2d 514, 531 (Fla.2003) (quoting trial court's order) (after defendant received assistance in extricating his car from sand, the defendant deliberately drove to another location before murdering the victim); see also Pittman v. State, 646 So.2d 167, 170 n. 2 (Fla.1994) (defendant poured gasoline around house and yard and set fire to destroy evidence); Provenzano v. State, 497 So.2d 1177, 1184 (Fla.1986) (before the murder, the defendant hid the murder weapons and added change to a parking meter so that he would not receive a parking ticket).
Although Zommer testified he was high at the time of the murder, we conclude that the trial court properly rejected this assertion. Zommer himself admitted on national television that he was sober during the killing.[4] Moreover, the efforts at concealment listed above are not indicative of someone whose sense of criminality is impaired by drug use. Rather, these actions are indicative of someone who knows he has committed a serious crime and is taking steps to avoid detection. Therefore, although Zommer may have had some drugs in his system at the time of the murder,[5] the evidence does not support a finding that those drugs substantially impaired his capacity to conform his conduct to the requirements of the law or appreciate the criminality of his conduct. Competent, substantial evidence supports the trial court's rejection of this mitigating factor.
In light of the foregoing, we affirm the trial court's rejection of these two statutory mitigating circumstances.
Proportionality
In reviewing for proportionality, the totality of the circumstances should be considered and the matter should be compared with other capital cases. See Nelson v. State, 748 So.2d 237, 246 (Fla. 1999). This comparison, however, is not between the number of aggravating and mitigating circumstances. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Additionally, the death penalty is reserved only for the most aggravated and least mitigated murders. See Kramer v. State, 619 So.2d 274, 278 (Fla.1993).
In the instant matter, the jury recommended the death penalty for the murder by a vote of ten to two. The trial court found this recommendation appropriate after weighing the statutory aggravating circumstances against the nonstatutory mitigating circumstances. In imposing the death sentence, the trial court found four statutory aggravators to be established beyond a reasonable doubt: (1) *751 Zommer had previously been convicted of a felony involving the use or threat of violence to the person (significant weight) (2) the murder was committed to avoid arrest (great weight); (3) the murder was heinous, atrocious, and cruel (great weight); and (4) the murder was cold, calculated, and premeditated (great weight). The trial court rejected both statutory mitigating circumstances alleged by Zommer, but found ten nonstatutory mitigating circumstances, only two of which were afforded "moderate" weight. None of the mitigating factors found by the trial court received "great," or even "significant," weight.
After reviewing the totality of the circumstances, and decisions from this Court, we conclude that the death sentence is proportionate. In Wike v. State, 813 So.2d 12 (Fla.2002), this Court upheld the death penalty where the trial court found the same four aggravators present here, one statutory mitigating circumstance, which was given little or no weight, and eight nonstatutory mitigating circumstances, two of which were accorded "some" weight. See id. at 16. Further, this Court has upheld the death penalty in cases where the prior violent felony, HAC, CCP, and avoid arrest aggravators were present, even though the trial court also found multiple mitigating factors. See, e.g., Buzia, 926 So.2d at 1207-08 (upholding death sentence where trial court found, in addition to other aggravators, prior violent felony, CCP, HAC, and witness elimination, and seven nonstatutory mitigators, two of which received "substantial" weight); Lott v. State, 931 So.2d 807, 811-12 (Fla.2006) (upholding death sentence where aggravating factors found by the trial court trial court included prior violent felony, CCP, HAC, and witness elimination and the trial court found six mitigating circumstances, according three of them "considerable" weight). This Court has also upheld the death penalty for murders in which fewer aggravating circumstances and more mitigating circumstances were found than in this case. See Duest v. State, 12 So.3d 734, 738 n. 3 (Fla.2009) (death sentence upheld where trial court found prior violent felony, HAC, and pecuniary gain in aggravation and twelve nonstatutory mitigating circumstances, two of which received great weight). Moreover, CCP, HAC, and prior violent felony are three of the weightiest aggravating factors in Florida's statutory sentencing scheme, see Morton v. State, 995 So.2d 233, 243 (Fla.2008); Sireci v. Moore, 825 So.2d 882, 887 (Fla. 2002), and the trial court found all three to apply to the murder of Robinson.
Zommer returned to the home of a 77-year-old woman with the intent to kill her because he believed that she recognized him as the person who stole a boat from her neighbor's yard.[6] Zommer asked Robinson to show him her doll collection to afford him time to (1) locate a murder weapon and (2) make sure that no one outside of the home could see inside. When Zommer commenced his attack, he brutally beat Robinson with multiple objects, kicked her, and stepped on her head, all while taunting and shouting at her. He attempted to strangle her with a mouse cord while she fought for her life. When the mouse cord broke, he finished the murder by grabbing her hair, pulling her head up, and cutting her throat from behind. Within days of the murder, Zommer used a vehicle to hit a complete stranger who was doing nothing more than walking to work. As he was on the ground, Zommer proceeded to kick the injured man and steal his wallet.
*752 We hold the death sentence is proportionate because the significant aggravators established in connection with the disturbing and brutal murder of Robinson far outweigh the mitigating factors found by the trial court.
Florida's Capital Sentencing Scheme
In his final issue, Zommer raises constitutional challenges to aspects of Florida's death penalty law. In brief, Zommer asserts that (1) a twelve-person jury must unanimously determine beyond a reasonable doubt the existence of facts that render a defendant eligible for the death penalty; (2) Zommer's indictment unconstitutionally failed to contain allegations that "sufficient aggravating circumstances exist" to justify imposition of the death penalty and "insufficient mitigating circumstances exist to outweigh the aggravating circumstances"; and (3) under section 921.141, Florida Statutes (2005), sufficient aggravating circumstances must be found to exist before a defendant is death-eligible, and by requiring only "one or more" aggravating circumstances to support a death sentence, the Florida courts are interpreting an unambiguous statute in violation of the separation of powers proscription contained in the Florida Constitution.
As a preliminary matter, even though Zommer in his initial brief asserted that this challenge has never been raised before, in his reply brief and during argument, counsel for Zommer stated that this Court has previously rejected this claim. Thus, Zommer has made inconsistent assertions. Further, while the State does not raise a preservation challenge, it appears that the precise issue presented here with regard to the indictment and the term "sufficient aggravating circumstances" was not raised by Zommer before the trial court. Instead, Zommer raised the traditional challenge that the indictment was unconstitutional because it failed to list the specific aggravators that the State sought to prove. Zommer specifically asked the trial court to order the State to identify "all statutory aggravating factors ... upon which the State is seeking imposition of capital punishment in this case," a request that was granted by the trial court. In that same motion, Zommer made the following assertion:
In Florida, a defendant convicted of first-degree murder cannot receive the death penalty in the absence of "sufficient" aggravating circumstances. As squarely held by the Florida Supreme Court, this necessarily requires the existence of at least one statutory aggravating circumstance.
(Emphasis supplied; citation omitted.) Thus, Zommer himself in his pretrial motions conceded that only one aggravator need be found to qualify a defendant for the death penalty. Given the absence from the record of any motion or argument that presented the claims raised here to the trial court, we conclude that this issue has not been preserved for review. Nevertheless, even if these claims had been preserved, they are without merit.
Zommer first asserts that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires a unanimous twelve-person jury to make the findings of fact necessary to determine eligibility for the death penalty. He specifically asserts that Florida's capital sentencing statute requires the jury to unanimously find that "sufficient aggravating circumstances" exist and that "insufficient mitigating circumstances exist to outweigh the aggravating circumstances." However, on numerous occasions, we have rejected the assertion that Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), require that aggravating and mitigating circumstances *753 be found individually by a unanimous jury. See, e.g., Frances v. State, 970 So.2d 806, 822 (Fla.2007); Hernandez-Alberto v. State, 889 So.2d 721, 733 (Fla.2004). Moreover, Zommer chose to waive a jury determination and enter guilty pleas for the attempted murder, aggravated battery, and robbery of Edgardo Fuentes. This Court has repeatedly held that the prior violent felony aggravating circumstance is a factor which, pursuant to Apprendi and Ring, does not need to be found by a jury. See, e.g., Frances, 970 So.2d at 822 (citing Apprendi, 530 U.S. at 490, 120 S.Ct. 2348); Jones v. State, 855 So.2d 611, 619 (Fla. 2003).
Zommer next contends that under Apprendi and sections 775.082[7] and 921.141(3),[8] Florida Statutes (2005), sufficient aggravating circumstances and insufficient mitigating circumstances must be charged in the indictment. However, we have previously rejected constitutional challenges to an indictment for failure to list the aggravating circumstances that the State intends to prove. See, e.g., Grim v. State, 971 So.2d 85, 103 (Fla.2007); Winkles v. State, 894 So.2d 842, 846 (Fla.2005); Lynch v. State, 841 So.2d 362, 378 (Fla. 2003). We articulated the basis for this holding in Vining v. State, 637 So.2d 921, 927 (Fla.1994):
The aggravating factors to be considered in determining the propriety of a death sentence are limited to those set out in section 921.141(5), Florida Statutes (1987). Therefore, there is no reason to require the State to notify defendants of the aggravating factors that it intends to prove.
See also Kormondy v. State, 845 So.2d 41, 54 (Fla.2003) ("While Ring makes Apprendi applicable to death penalty cases, Ring does not require ... notice of the aggravating factors that the State will present at sentencing...."). Like the available aggravating circumstances, the weighing process that must be performed by the factfinder when considering whether to impose a death sentence is also articulated in the Florida Statutes. See § 921.141(2)-(3), Fla. Stat. (2005). If the specific aggravators sought need not be charged in the indictment to satisfy due process, see Vining, 637 So.2d at 927, the weighing process that occurs under section 921.141 similarly does not need to be provided in the indictment for it to pass constitutional muster.
Lastly, Zommer contends that this Court is violating the constitutional *754 doctrine of separation of powers by holding that only one aggravating circumstance is "sufficient" to justify imposition of the death penalty since the statute contains the plural word "circumstances." However, in State v. Dixon, 283 So.2d 1 (Fla. 1973), this Court interpreted the term "sufficient aggravating circumstances" in Florida's capital sentencing scheme to mean one or more such circumstances. See id. at 9 ("When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by ... mitigating circumstances....").
This Court has explained that "[t]he Legislature is presumed to know the judicial constructions of a law when amending that law, and the Legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed." Fla. Dep't of Children & Families v. F.L., 880 So.2d 602, 609 (Fla.2004) (emphasis supplied). Since the Legislature in the last thirty-six years has not amended the Florida Statutes to provide that at least two aggravating circumstances must be found to impose a sentence of death, it can be presumed that the Legislature agrees with and has adopted this Court's interpretation of the term "sufficient aggravating circumstances" that was articulated in Dixon. Accordingly, Zommer's separation of powers challenge lacks merit.
Thus, Zommer has not established any basis on which this Court should reconsider well-established points of law with regard to Florida's capital sentencing scheme. Accordingly, we deny relief on this issue.
CONCLUSION
Based upon the foregoing analysis, we affirm Zommer's conviction and sentence.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
PARIENTE, J., specially concurs with an opinion.
PARIENTE, J., specially concurring.
I concur in the affirmance of the conviction and death sentence. I write only to address my concern with a portion of the majority's analysis of CCP and its extended discussion of the constitutionality of the death penalty statute. First, with regard to CCP, I agree that there was heightened premeditation necessary to support CCP. The main fact that establishes CCP is that, after Zommer borrowed money from Robinson and left her house, there was a substantial period of time before he returned to her house. The only purpose of returning to the house was to kill Robinson because he thought that she recognized him as the individual who stole the boat from the neighbor's yard. Further, Zommer's actions after coming into the house are consistent with a fully formulated and preplanned intent to kill her.
However, I write to emphasize that a prolonged attack where a defendant uses different items to kill the victim would not, by itself, be sufficient evidence to support a finding of CCP. There must also be other evidence of CCP, including evidence that the defendant had a prearranged design to murder the victim. The majority cites to Barnhill v. State, 834 So.2d 836 (Fla.2002), in which this Court upheld CCP where the defendant waited in the victim's house for an extended period of time and the defendant "had the time and opportunity to reflect upon his actions before the first strangulation was attempted, before the towel ligature was employed, and again before the belt was used." Id. at 851. *755 Although this Court considered the prolonged attack in Barnhill, it is important to note that the defendant in that case also "entered the victim's house, concealed himself,... observed the victim while plotting his course of action," told his accomplice what he was planning to do "with enough advance warning that [the accomplice] was able to leave the home," and spent approximately two hours in the victim's house before the killing the victim. Id. All of these facts demonstrated a prearranged design to kill the victim in that case and constituted competent, substantial evidence of CCP.
The majority also cites to Alston v. State, 723 So.2d 148, 162 (Fla.1998), in which this Court held that the heightened premeditation required to satisfy CCP was found where a defendant had the opportunity to leave the scene with the victim alive, but chose instead to commit the murder. However, Alston is distinguishable from the instant case and does not lend support to a conclusion that a prolonged attack in and of itself is sufficient to support the heightened premeditation required to satisfy CCP. There, the heightened premeditation was not found in a prolonged attack but in the fact that after the robbery, the defendant had ample opportunity to release the victim. See id.
Cases where there is a prolonged attack of a conscious victim resulting in the eventual murder generally support a finding of HAC but not necessarily CCP. We must exercise care not to expand aggravators so that they run afoul of the Eighth Amendment. As recently reiterated by the U.S. Supreme Court, "States must give narrow and precise definition to the aggravating factors that can result in a capital sentence.... Th[is] rule[ ] vindicate[s] the underlying principle that the death penalty is reserved for a narrow category of crimes and offenders." Roper v. Simmons, 543 U.S. 551, 568-69, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ("Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Capital punishment must be limited to those offenders who commit `a narrow category of the most serious crimes' and whose extreme culpability makes them `the most deserving of execution.'" (citations omitted)); see also Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (holding that in order for an aggravating circumstance to not be constitutionally infirm, it "may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder").
A prolonged attack using different instruments available in the house where there is no other evidence supporting CCP, such as the defendant entering the house with the weapon in advance, could be just as much an indication of a lack of careful planning, which is inconsistent with CCP. However, here, as I have stated above, competent, substantial evidence supports CCP based on the facts that the murder was planned after Zommer left the victim's house the first time and that his only reason for returning was to murder her.
My other concern is the majority's extensive discussion of the constitutional challenges to Florida's death penalty scheme. I have on prior occasions explained why I am of the view that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requires that aggravating circumstances, other than the fact of a prior conviction, be found by a unanimous jury beyond a reasonable doubt.[9] In this *756 case I agree, however, that the nonunanimous verdict is not constitutionally infirm because of the existence of the prior violent felony aggravator, which does not require a jury finding. See, e.g., Frances v. State, 970 So.2d 806, 822 (Fla.2007) ("Ring did not alter the express exemption in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that prior convictions are exempt from the Sixth Amendment requirements announced in the cases.").
As to the majority's citation to State v. Dixon, 283 So.2d 1, 9 (Fla.1973), that when one or more aggravating circumstances is found, death is "presumed" to be the proper sentence "unless ... overridden by ... mitigating circumstances," recent case law has explained that a defendant need not prove any mitigating circumstances to obtain a life sentence and that a jury is not compelled to recommend death when the aggravating factors outweigh the mitigating factors.[10] In recognition of these statements of law, our recently adopted jury instructions explicitly state exactly this proposition.[11]
However, I concur in the majority's affirmance of the conviction and sentence of death because competent, substantial evidence supports CCP and because Zommer's Ring claims fail as there is a prior violent felony aggravator in this case.
NOTES
[1] Spencer v. State, 615 So.2d 688 (Fla.1993).
[2] The trial court qualified this finding as follows: "[T]here is no showing that these experiences diminished the defendant's ability to know right from wrong or recognize the seriousness and grave consequences of his acts."
[3] The trial court specifically found that Zommer was not impaired or intoxicated by drugs when the murder was committed.
[4] Although Robinson's neighbor found a crack pipe when she returned home from work on the day of the murder, the evidence did not establish whether Zommer smoked crack cocaine immediately after the murder or immediately before. Zommer testified that he used the twenty dollars that he borrowed from Robinson to buy crack cocaine.
[5] The trial court did find as a nonstatutory mitigating factor that Zommer "was dependent on the use of illegal drugs, primarily cocaine and methamphetamines" and accorded this factor little weight.
[6] The neighbor testified during trial that Robinson had previously stated she was unable to see the boat thieves well enough to recognize them.
[7] Section 775.082(1) provides:
(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.
[8] Section 921.141(3) provides:
(3) Findings in support of sentence of death.Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:
(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and
(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence within 30 days after the rendition of the judgment and sentence, the court shall impose sentence of life imprisonment in accordance with s.775.082.
[9] See, e.g., Bottoson v. Moore, 833 So.2d 693, 719-23, 725 (Fla.2002) (Pariente, J., concurring in result only) ("[T]he maximum penalty of death can be imposed only with the additional factual finding that aggravating factors outweigh mitigating factors.... Florida juries in capital cases do not do what Ring mandatesthat is, make specific findings of fact regarding the aggravators necessary for imposition of the death penalty.... Florida juries advise the judge on the sentence and the judge finds the specific aggravators that support the sentence imposed.").
[10] See State v. Steele, 921 So.2d 538, 543 (Fla.2005) ("[T]o obtain a life sentence the defendant need not prove any mitigating circumstances at all."); Cox v. State, 819 So.2d 705, 717 (Fla.2002) ("[W]e have declared many times that `a jury is neither compelled nor required to recommend death where aggravating factors outweigh mitigating factors.' " (quoting Henyard v. State, 689 So.2d 239, 249-50 (Fla.1996))).
[11] See Fla. Std. Jury Instr. (Crim.) 7.11 (Penalty ProceedingsCapital Cases); see also In re Standard Jury Instructions in Criminal CasesReport No. 2005-2, 22 So.3d 17, 22 (Fla.2009) (adopting the "amendment stating that the jury is `neither compelled nor required to recommend death'"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2304089/ | 302 F.Supp.2d 1 (2003)
UNITED STATES of America
v.
Joseph MASSINO, Patrick Defilippo and John Spirito.
No. 03-CR-929.
United States District Court, E.D. New York.
December 3, 2003.
Greg D. Andres, Mitra Hormozi and Nicolas Bourtin, United States Attorney's Office, Brooklyn, NY, for Plaintiff.
David Breitbart, Attorney at Law, Ephraim Savitt, Flora Edwards, New York, NY, for Defendant Joseph Massino.
Jean DeSales Barrett, Ruhnke & Barrett, Montclair, NJ, LLoyd Epstein, Richard W. Levitt, Attorney At Law, New York, NY, for Defendant Patrick Defilippo.
Carl J. Herman, Attorney At Law, Livingston, NJ, Kenneth A. Paul, New York, NY, Murray Richman, Law Office Of Murry Richmond, and Stacey Richman, Bronx, NY, for Defendant John Spirito.
MEMORANDUM AND ORDER
GARAUFIS, District Judge.
On October 3, 2003, this court appointed learned counsel for Joseph Massino, Patrick DeFilippo and John Spirito pursuant to 18 U.S.C. § 3005 and 21 U.S.C. § 848(q)(4) upon their indictment in the above captioned case for capital offenses. The attorneys appointed as learned counsel were Ephraim Savitt, Jean Barrett and Carl Herman, respectively. On October 27, it became necessary to disqualify the learned counsel appointed to represent Massino, Ephraim Savitt, due to a potential conflict of interest. See United States v. Joseph Massino, No. 02-CR-307, 03-CR-929, 2003 WL 23273876 (E.D.N.Y., October 27, 2003). The difficulty of replacing Savitt with an attorney whose schedule would allow for the timely disposition of this case brought to my attention the possible unavailability of such counsel. On November 25, 2003, the court replaced Savitt with David Stern.
Title 18 U.S.C. § 3005 states that the court shall "assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases." Representing a defendant in a death penalty case is particularly time consuming, complex and expensive. See Subcomm. on Fed. Death Penalty Cases, Comm. on Defender Servs., Judicial Conference of the United States, Fed. Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation ("Spencer Report") at 3, 4-6, 9-10 (1988). Death penalty *2 cases are bifurcated and involve both a guilt and a penalty phase each of which requires extensive preparation. Id. at 5-6. In the penalty phase, counsel must be well versed in the defendant's life history in order to present mitigating information, respond to prosecution evidence that need not satisfy normal rules of evidence, and put on a case for a lesser sentence. Id. Because of the nature of death penalty trials and the resources required for an adequate defense, it is essential that defendants facing the death penalty have sufficient representation from the onset of the litigation. Defendants DeFilippo and Spirito each have retained one attorney. This court believes that the combination of only one retained counsel and one court appointed counsel may be insufficient to protect the rights of a defendant in some complex death penalty eligible cases such as this. Moreover, should DeFilippo or Spirito become financially unable to maintain private counsel at any time during this litigation in which the Government seeks the death penalty, the rights of these defendants might be jeopardized. When a death sentence is a potential outcome, the court must not risk a trial infected by the possibility of insufficient representation. Accordingly, the court will authorize the appointment of co-counsel for defendants DeFilippo and Spirito.[1]
This court is concerned not only with the rights of these defendants, but also with the need to ensure that others facing federal death penalty charges in the Eastern District of New York are represented adequately. Through the process of appointing counsel for Massino, DeFilippo and Spirito, the court has become aware of the limited availability of attorneys qualified to serve as learned counsel in federal death penalty cases. This problem may become particularly acute if the number of death eligible prosecutions continues to increase. According to the Spencer Report, learned counsel
should have distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals or post-conviction review that, in combination with co-counsel, will assure high quality representation.
Spencer Report at 16 (emphasis in original). Optimally, the experience one needs to serve as learned counsel in a death penalty case includes the experience of serving as co-counsel in a death penalty trial. This presents obvious problems. I conclude that the appointment of accomplished trial attorneys pursuant to 18 U.S.C. § 3005 to serve as second seat to learned counsel for DeFilippo and Spirito will assist in the defendants' case and will provide experience to two more attorneys who may then serve as primary death counsel in future cases. Expanding the list of potential learned counsel at a time when the Attorney General is authorizing death penalty charges with greater frequency will facilitate the fair and prompt *3 resolution of these cases.[2] This need for more attorneys qualified to serve as learned counsel also will help to ensure the availability of sufficient counsel without potential conflicts of interest.
The court has at its disposal two sources in identifying the pool from which these defendants might choose the co-counsel to assist their learned counsel, to wit, the Federal Public Defender and the Federal Death Penalty Resource Counsel Project ("FDPRC"). 18 U.S.C. § 3005 specifies that "[i]n assigning counsel under this section, the court shall consider the recommendation of the Federal Public Defender organization." Attorney Peter Kirscheimer of the Federal Defender Office of the Eastern District has confirmed that few if any attorneys are available to serve as learned counsel for a trial commencing before next fall. In researching available learned counsel, Kirscheimer contacted the FDPRC. The FDPRC is a panel of three capital litigators funded by the Administrative Office of the United States Courts who, on a part-time basis, facilitate the work of learned counsel throughout the country. Despite the importance of the FDPRC's function, the court was discouraged to learn that FDRPC ran out of funding for Fiscal Year 2003 during the summer, requiring the staff attorneys to work part of that term on a volunteer basis. The court was able to speak with one of these attorneys, Kevin McNally of Frankfort, Kentucky, who confirmed a shortage of lawyers qualified to serve as learned counsel who are available to represent defendants in trials scheduled to commence before late 2004. This problem potentially will result in pushing back the trial date in this case to the winter of 2005.
Due to this lack of learned counsel, the court has requested a list of attorneys who are qualified to serve as "second seat" to learned counsel and, through that post, gain the experience necessary to be appointed death counsel in future cases. Kirscheimer has provided this court with such a list. In view of the complexity of this case and the court's continuing obligation to guarantee adequate counsel to death eligible defendants, the court directs that DeFilippo, Spirito and their counsel submit to this court by December 19, 2003 their recommendations of attorneys for appointment as second-seat to learned counsel.
SO ORDERED.
NOTES
[1] The court is not authorizing the appointment of a second attorney for Massino pursuant to 18 U.S.C. § 3005 because he has retained three private attorneys who are working closely with his current appointed learned counsel, David Stern. On November 25, 2003, David Breitbart, one of Massino's retained counsel and an experienced attorney, stated on the record that he was committed to representing Massino for the duration of all trials on indictments 02-CR-307 and 03-CR-929. Massino thus has four able defense counsel, one of whom is qualified death counsel, and another of whom has agreed to represent him throughout his trial whether or not the Attorney General certifies the death charge in 03-CR-929. The court deems this representation to be sufficient to address the court's concerns about the adequacy of the representation.
[2] Although delay is excluded in this case under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161(h)(8)(A)-(8)(B)(ii), pursuant to a Government motion and due to the complexity of the case, the number of defendants, and the nature of the prosecution, the court is obligated by the Constitution to assure defendants such as these (all three of whom are in custody) with a speedy trial consistent with the requirements of due process. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583144/ | 31 So.3d 250 (2010)
Gerald GREENWALD, Appellant,
v.
Cheryl Gale RIVKIND-GREENWALD, Appellee.
No. 3D08-2999.
District Court of Appeal of Florida, Third District.
March 24, 2010.
Paul Morris; Lisa A. Baird, Miami, for appellant.
Robert J. Moraitis, Fort Lauderdale, for appellee.
Before COPE, LAGOA and SALTER, JJ.
COPE, J.
The husband in a dissolution action appeals an assessment of attorney's fees against him. We agree that the attorney's fee award cannot stand.
Husband Gerald Greenwald and wife Cheryl Gale Rivkind-Greenwald were married on May 18, 2004. Fourteen months later, the couple separated and sought divorce. The wife claimed entitlement to permanent alimony. According to the wife, the husband induced her to quit her lucrative job. At trial, it was proven by way of email evidence that the wife wanted to quit her job prior to the marriage and the proposition that the husband induced her to quit was false. The judgment stated:
The parties met online through J-Date, a computer dating service, in February, 2004. They were both mature adults who already had grown children. The husband was 63 and the wife was 57. There were no minor children born of this marriage and none are contemplated. The husband had survived cancer multiple times and was receiving disability payments of about $28,000.00 per month; earlier in his life, he had been a practicing dermatologist. The wife was working for Cox Radio, had been employed there for almost 30 years, and received a compensation package of over $100,000.00 per year. They married on May 18, 2004, within three months of their first online introduction.
The relationship seemed unstable from the beginning. The wife did not *251 move into the husband's home right away, then she did move in, then she moved out, then she moved in again, then she moved out againseveral separations interspersed with short interludes together. The parties finally separated over the summer of 2005. At least one prior dissolution of marriage petition was filed and abandoned. If the Court added up all the days and nights these parties were together, it would amount to no more than 14 months. Yet this subsequent litigation has been pending more than twice as long.
ALIMONY
The major issue in dispute in this case is the wife's claim for alimony. She claims that, even though this was a short term marriage, the husband induced her to quit her lucrative job to become a full-time wife. The husband testified that the wife chose on her own to quit. He also testified that the wife offered to keep "seeing" him after the final separation, but only if he would pay her $2,500.00 per month.
This Court had the opportunity to observe the wife carefully as she testified. The Court simply does not find credible her claim that the husband forced or induced her to quit her job with Cox Radio. The wife was apparently unhappy with her job and had looked for new job opportunities before she even met the husband. The wife also received a substantial severance package when she left Cox Radio; the severance package included a release by the wife of claims against Cox Radio for discrimination. Moreover, the wife's demeanor at trial, and especially her refusal to make eye contact when discussing her former job, leads this Court to conclude her testimony that the husband forced or induced her to leave her employment at Cox Radio is unworthy of belief.
The trial court entered a final judgment of dissolution of marriage wherein the wife was not awarded alimony. The court reserved jurisdiction to award attorney's fees and costs to either party.
An attorney's fee hearing was held where both parties sought attorney's fees and stipulated as to the financial findings made in the final judgment. The court awarded the wife $65,000 in attorney's fees. The husband has appealed.
Respectfully, the trial court should have denied the wife's attorney's fee claim on authority of Rosen v. Rosen, 696 So.2d 697 (Fla.1997). This was an extremely short term marriagefourteen months. Permanent alimony is generally inappropriate in a short term marriage. According to one treatise, "to justify an award of permanent alimony to the spouse of a short-term marriage, there must be a genuine inequity arising from an inability by the requesting spouse to be self-supporting. Further, the lack of ability to be self-supporting must have resulted from something that transpired during the marriage, although it need not result from something for which the non-requesting spouse is responsible." 1 Brenda M. Abrams, Florida Family Law § 31.05[1][b][ii] (2007).[*]
*252 The wife in this case contended that she was entitled to permanent alimony because of her claim (which turned out to be false) that the husband induced her to leave her thirty-year employment with Cox Communications to become a full-time wife. Presumably, her position was that she would be unable to find new employment, let alone comparable employment, or otherwise be self-supporting. In reality, according to the trial court's findings:
D. The wife is currently working, earning $40,000 per year; she receives a monthly pension for life; she is eligible to draw on her 401(k) but has not needed to do so to sustain her lifestyle; she has no liabilities and almost all of the parties' marital assets are in her possession; and she has managed to maintain her level of nonmarital assets at around $750,000, of which at least $200,000 is liquid. The husband has heavily-mortgaged nonmarital assets; he has over $90,000 in debt as a consequence of his inability to reduce his fixed expenses; his disability income decreased upon his 65th birthday from approximately $28,000.00 per month to approximately $13,000.00 per month; he has been unable to decrease fixed expenses in the current housing market.
The record reflects that the husband made a settlement offer to pay $36,000 in alimony to the wife in order to resolve the case. As acknowledged by the wife at oral argument, the case went to trial solely because of the wife's claim for permanent alimony. Given the short-term nature of the marriage, the almost total lack of any marital assets, and the fact that the parties' property was almost all premarital in nature, there were few issues in the case, other than discovery and the wife's claim for alimony. Adding this up, (1) this was a claim for permanent alimony in a short-term marriage, which is almost never successful; (2) the case went to trial solely on the permanent alimony issue; (3) the basis of the claim was false, as outlined above; and (4) the wife turned down a favorable opportunity to settle the case before trial. Attorney's fees should not have been awarded to the wife. Rosen. We reverse that award.
The husband also requested attorney's fees. Each side argued that the other side had been guilty of obstructive litigation tactics, and each side argued that, post-divorce, the other side was in a better financial position. We are unable to say that the trial court abused its discretion in denying the husband's motion.
For the stated reasons, we affirm the denial of attorney's fees to the husband, reverse the award of attorney's fees to the wife, and remand for entry of a judgment denying attorney's fees to the wife.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
NOTES
[*] Following are examples of exceptions to the general rule that permanent alimony is generally inappropriate in a short term marriage, but those are not applicable here. See Levy v. Levy, 900 So.2d 737, 742 (Fla. 2d DCA 2005) (holding that an award of permanent alimony while generally not available in a short-term marriage, was proper because the wife was unable to be self-supporting by reason of a physical disability); Reeves v. Reeves, 821 So.2d 333, 334-35 (Fla. 5th DCA 2002) (holding that presumption against awarding permanent alimony in a short-term marriage was rebutted by the fact that the wife left her full-time employment and took lower-paying part-time employment to care for the couple's disabled child; wife will continue to render such care after the divorce); Driscoll v. Driscoll, 547 So.2d 1247 (Fla. 4th DCA 1989)(wife gave up alimony she was receiving from her previous marriage when she married current husband; when new marriage broke up after five years she could only earn the minimum wage; permanent alimony was awarded). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583148/ | 728 N.W.2d 101 (2007)
273 Neb. 123
Leslie N. JOHNSON and Amy A. Johnson, husband and wife, appellants,
v.
KNOX COUNTY PARTNERSHIP, a Nebraska general partnership, and Knox County Feeders, Inc., a Nebraska corporation, appellees.
No. S-05-853.
Supreme Court of Nebraska.
March 2, 2007.
*103 Steven M. Virgil, of Creighton Legal Clinic, Omaha, and, on brief, James M. Buchanan for appellants.
*104 David A. Domina and Claudia L. Stringfield-Johnson, of Domina Law Group, P.C., L.L.O., Omaha, for appellees.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
STEPHAN, J.
Leslie N. Johnson and Amy A. Johnson, husband and wife, live near a cattle confinement facility operated by Knox County Feeders, Inc., on land owned by Knox County Partnership in rural Knox County, Nebraska. The Johnsons brought this action to enjoin certain operations of the confinement facility, alleging that it was in violation of county zoning regulations and constituted a nuisance. The district court for Knox County entered summary judgment in favor of both defendants, based on its determination that the confinement facility was not in violation of county zoning regulations. The Johnsons perfected this appeal. We conclude that while summary judgment was proper as to the claim based upon alleged zoning violations, there are genuine issues of material fact which preclude summary judgment on the claim that the operation of the confinement facility constituted a private nuisance.
FACTS
PARTIES
Since about 1990, the Johnsons have owned and resided on approximately 400 acres of land in Knox County. They conduct a farming operation, growing row crops and raising some livestock. Knox County Partnership (hereinafter the Partnership) owns approximately 50.5 acres of land in rural Knox County, located about three-quarters of a mile south-southeast of the Johnson farm. The Partnership, consisting of Donald Stange and Marion Rus, purchased the land in 2003. Knox County Feeders, Inc. (hereinafter Feeders), operates a cattle confinement facility on the Partnership's land. Stange and Rus are the principal shareholders of Feeders, having purchased their stock in that business from previous owners in 2003 at the same time the Partnership purchased the land. Feeders has operated a cattle confinement facility at this location since about 1993.
NEBRASKA'S DEPARTMENT OF ENVIRONMENTAL QUALITY
In 1993, Feeders was issued a permit by Nebraska's Department of Environmental Quality (DEQ) to operate a livestock waste control facility for 980 head of cattle. However, a site inspection by DEQ in October 1999 revealed that Feeders had about 4,300 head of cattle in its confinement facility. Subsequently, DEQ demanded that Feeders obtain the appropriate operation and construction permits from DEQ to bring the cattle confinement facility into compliance with applicable state regulations. After finally complying with DEQ requirements, Feeders was issued a livestock waste control facility operating permit in December 2002 for 5,000 head of cattle. That operating permit was reissued by DEQ in February 2004 after Stange and Rus purchased Feeders.
KNOX COUNTY ZONING
In 1997, Knox County reinstated the enforcement of county zoning regulations. Knox County amended its zoning regulations in April 1999, adding, among other things, the following provisions:
ARTICLE XI: LIVESTOCK CONFINEMENT
. . . .
11.2 NEW AND/OR EXPANDED LIVESTOCK CONFINEMENT: PERMIT REQUIRED
*105 . . . No extension, enlargement, or addition of or to an existing livestock confinement by over 150 animal units shall be created unless a livestock confinement permit is first obtained from the Zoning Administration.
. . . .
11.6 LAND BASE TO SPREAD MANURE
An appropriate land base is needed to spread and properly distribute the manure to prevent pollution to the soil, water, and air. An applicant must . . . properly spread and distribute the manure....
. . . .
11.8 NUISANCE PROTECTION ZONE (SET BACKS RELATIVE TO SIZE AND TYPE)
. . . .
All livestock confinements must have a minimum set back from a residence that is relative to the size (one time capacity) and the type of the livestock confinement. For beef confinements, they must be a minimum distance of one foot from a residence for each animal unit....
....
Set backs relative to size and type can be wa[i]ved if the affected residences give appropriate waivers and easements....
If a producer, upon asking permission within a setback, is denied, the producer may appeal to the Board of Adjustments. . . . Upon this appeal, the Board of Adjustments will make [its] recommendations to the Board of Supervisors who will hold a hearing and make a final ruling on the appeal.
In May 2003, the Knox County zoning administrator informed Feeders that, based on DEQ inspection records, it had not undergone expansion as of April 1999 and was thus "grandfathered" for 5,000 head of cattle.
In February and March 2004, the Johnsons attended the Knox County Board of Supervisors' meetings and presented complaints that the Partnership and Feeders were in violation of county zoning regulations. At its March meeting, the board of supervisors asked the Knox County Attorney to present a report at the next meeting on the issues raised by the Johnsons. The board also adopted a resolution that amended the article XI livestock confinement zoning regulations, adding to or modifying, among other things, the following provisions: Under part 11.1, "Definition of Livestock Confinement," add "An existing confined livestock feeding operation/facility shall mean an operation that was in existence prior to April 29, 1999." Under part 11.8, "Nuisance Protection Zone (Set Backs Relative to Size and Type)," add "All new livestock confinements must have a minimum set back from a residence or existing livestock confinement that is relative to the size (one time capacity) and the type of the livestock confinement." At the April 2004 board of supervisors' meeting, the county attorney reported that in his opinion, Feeders was "grandfathered" under the Knox County zoning regulations and that any expansion of the facility had been done before the 1999 county zoning regulations.
LEGAL PROCEEDINGS
On June 4, 2004, the Johnsons filed a complaint in the district court for Knox County against the Partnership. The Johnsons filed an amended complaint on August 3, adding Feeders as a defendant. In their amended complaint, the Johnsons recited the relevant parts of the April 1999 Knox County zoning regulations regarding livestock confinements and alleged, restated, that (1) Feeders had in excess of 3,868 animal units, while the *106 Johnsons' residence was only 3,867 feet from the Partnership and Feeders' cattle confinement facility, and (2) since 1999, Feeders has expanded its confinement facility by more than 150 animal units. The Johnsons also made the following allegations:
8. . . . Based upon information and belief, [the Johnsons] understand that . . . Feeders . . . has sufficient spreading acres for its cattle, but does not spread the manure on such acres, preferring instead to dump large quantities of manure within a small land area, particularly in areas proximate to the confinement. This concentrated dumping causes pollution to the [Johnsons'] soil, water and air.
9. . . . The continued operation and illegal expansion of the [Partnership and Feeders'] livestock confinement yards as well as concentrated dumping of manure in violation of county regulations creates a nuisance to the [Johnsons]. The [Johnsons] suffer from odor, physical intrusion of liquid manure created by [the Partnership and Feeders'] confinement [yards] and excessive dust from [the Partnership and Feeders'] unlawful confinement operation.
The Johnsons sought to enjoin the Partnership and Feeders from operating a cattle confinement facility in excess of that permitted by county zoning regulations and from concentrated dumping of manure.
The Partnership and Feeders denied the material allegations of the Johnsons' amended complaint and alleged various defenses. They moved for summary judgment, as did the Johnsons. After receiving evidence, the district court entered an order granting summary judgment in favor of the Partnership and Feeders and dismissing the Johnsons' amended complaint. In its order, the court noted:
[The Johnsons'] basic contention is that the [Partnership and Feeders] cannot operate a feedlot which contains more than a thousand head of cattle and that the Knox County Board of Supervisors and the Nebraska DEQ are in violation of the zoning regulations in issuing permits for the [Partnership and Feeders] to operate their feedlot with up to 5,000 head of cattle.
Referring to Neb.Rev.Stat. § 23-114.05 (Cum.Supp.2006), the district court determined that the Johnsons had standing to sue based upon alleged violations of county zoning regulations, but found that "[t]here is nothing in the evidence to indicate that the [Partnership and Feeders] are currently violating any Knox County Zoning permit or use authorized by the zoning officials for Knox County. [The Johnsons] are, in essence, attacking the zoning officials' judgment in issuing the permits that the defendants have." The district court further determined that the board of supervisors, the county attorney, and the zoning administrator did not abuse their discretion in "grandfathering" the cattle confinement facility.
The Johnsons timely appealed, and we moved the appeal to our docket on our own motion, in accordance with this court's authority to regulate the caseloads of the appellate courts of this state. See Neb. Rev.Stat. § 24-1106(3) (Reissue 1995).
ASSIGNMENT OF ERROR
The Johnsons assign, restated, that the district court erred in granting summary judgment for the Partnership and Feeders because the Johnsons' complaint alleged a claim based on nuisance, which claim the district court did not address.
STANDARD OF REVIEW
Summary judgment is proper when the pleadings and evidence admitted *107 at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Pogge v. American Fam. Mut. Ins. Co., 272 Neb. 554, 723 N.W.2d 334 (2006). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
When adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as the court deems just. City of Columbus v. Swanson, 270 Neb. 713, 708 N.W.2d 225 (2005).
ANALYSIS
We begin by identifying the theory or theories upon which the Johnsons sought injunctive relief. To determine the nature of an action, a court must examine and construe a complaint's essential and factual allegations by which the plaintiff requests relief, rather than the legal terminology utilized in the complaint or the form of a pleading. Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006). The Johnsons alleged that the existence and operation of the cattle confinement facility "violates Knox County zoning regulations concerning the operation of livestock confinements." They further alleged that "[t]he continued operation and illegal expansion of the [Partnership and Feeders'] livestock confinement yards as well as concentrated dumping of manure in violation of county regulations creates a nuisance to the [Johnsons]." They claimed that they "suffer[ed] from odor, physical intrusion of liquid manure" and "excessive dust" caused by the cattle confinement facility.
The factual allegations set forth in the operative complaint indicate two separate theories of relief. Section 23-114.05 provides a procedure whereby owners of real estate affected by a violation of county zoning regulations may bring an action to enjoin the violation. See, Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. 110, 302 N.W.2d 379 (1981). While not specifically invoking § 23-114.05, the Johnsons' complaint includes factual allegations which, if proved, would entitle them to relief under this statutory remedy. But the Johnsons also alleged that the confinement facility constitutes a nuisance. Nebraska recognizes a common-law tort for private nuisance in both actions at law seeking damages and actions in equity seeking injunctions. See, Hall v. Phillips, 231 Neb. 269, 436 N.W.2d 139 (1989) (action for damages); Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994) (equitable action for injunctive relief). We examine each of the Johnsons' two theories separately to determine whether summary judgment was proper.
STATUTORY REMEDY TO ENFORCE ZONING REGULATIONS
The remedy afforded by § 23-114.05 lies where a violation of a county zoning regulation is proved. The district court concluded that there was "nothing in the evidence to indicate that the [Partnership and Feeders] are currently violating any Knox County Zoning permit or use authorized by zoning officials for Knox County." The Johnsons do not assign error to this portion *108 of the district court's order. Accordingly, there is no genuine issue of material fact regarding the Johnsons' allegations that the cattle confinement facility was conducted in violation of county zoning regulations. The Partnership and Feeders are entitled to judgment as a matter of law with respect to such claim.
PRIVATE NUISANCE
The Johnsons alleged that the cattle confinement facility constituted a nuisance which subjected them to odor, physical intrusion of liquid manure, and excessive dust. "`A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.'" Hall v. Phillips, 231 Neb. at 272, 436 N.W.2d at 142, quoting Restatement (Second) of Torts § 821D (1979). To establish their nuisance claim, the Johnsons were not required to prove that the cattle confinement facility existed or was operated in violation of zoning regulations or other law. With respect to an action in equity, a legitimate business enterprise is not a nuisance per se, but it may become a nuisance in fact by reason of the conditions implicit in and unavoidably resulting from its operation or because of the manner of its operation. Omega Chem. Co. v. United Seeds, 252 Neb. 137, 560 N.W.2d 820 (1997); Flansburgh v. Coffey, 220 Neb. 381, 370 N.W.2d 127 (1985). A legal and proper activity may be a nuisance in fact simply because of its location. City of Syracuse v. Farmers Elevator, Inc., 182 Neb. 783, 157 N.W.2d 394 (1968). See, also, Cline v. Franklin Pork, Inc., 219 Neb. 234, 361 N.W.2d 566 (1985).
With respect to a nuisance in the context of an action in equity, the invasion of or interference with another's private use and enjoyment of land need only be substantial. Omega Chem. Co. v. United Seeds, supra; Hall v. Phillips, supra. Where one's business operation as conducted materially and injuriously affects the comfort and enjoyment and property rights of those in the vicinity, it becomes a nuisance and may be enjoined. Karpisek v. Cather & Sons Constr., Inc., 174 Neb. 234, 117 N.W.2d 322 (1962).
To justify the abatement of a claimed nuisance, the annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities. Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994); Flansburgh v. Coffey, supra; Cline v. Franklin Pork, Inc., supra. There is a presumption, in the absence of evidence to the contrary, that a plaintiff in an action for abatement of a nuisance has ordinary sensibilities. Goeke v. National Farms, Inc., supra; Flansburgh v. Coffey, supra; Cline v. Franklin Pork, Inc., supra. Even in an industrial or rural area, one cannot conduct a business enterprise in such manner as to materially prejudice a neighbor. Botsch v. Leigh Land Co., 195 Neb. 509, 239 N.W.2d 481 (1976). The fact that a residence is in a rural area requires an expectation that the residence will be subjected to normal rural conditions, but not to such excessive abuse as to destroy the ability to live and enjoy the home, or such as to reduce the value of the residential property. Flansburgh v. Coffey, supra; Cline v. Franklin Pork, Inc., supra; Botsch v. Leigh Land Co., supra. It is true that rural residents must expect to bear with farm and livestock conditions normally found in the area where they reside. But, a rural home and a rural family, within reason, are entitled to the same relative protection as others. Botsch v. Leigh Land Co., supra. The right to have the air floating over one's premises free from noxious and unnatural impurities is a right as absolute as the right to the soil itself. Flansburgh v. Coffey, supra.
*109 The record includes the deposition testimony of the Johnsons. Leslie testified that members of his family experience breathing problems, eye irritation, nausea, and headaches from dust and odor emanating from the cattle confinement facility. He also testified that liquid manure slurry pumped from high pressure spraying devices operated and maintained by Feeders would sometimes mist or run off onto his property. Amy testified regarding an incident when she was sprayed with liquid manure from the high pressure spraying devices while repairing a fence on the Johnson property. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006); Brodine v. Blue Cross Blue Shield, 272 Neb. 713, 724 N.W.2d 321 (2006). Applying this standard, we conclude that there are genuine issues of material fact as to whether the cattle confinement facility caused a substantial invasion of or interference with the Johnsons' private use and enjoyment of their property. Accordingly, the Partnership and Feeders were not entitled to summary judgment with respect to the private nuisance claim.
CONCLUSION
There are no genuine issues of material fact with respect to the Johnsons' claim that the cattle confinement facility conducted by Feeders on property owned by the Partnership violated zoning regulations. We affirm the entry of summary judgment in favor of the Partnership and Feeders on this claim. However, we reverse the entry of summary judgment with respect to the Johnsons' private nuisance claim because there exist genuine issues of material fact as to whether the feeding operation substantially invaded or interfered with the Johnsons' use and enjoyment of their property so as to constitute an actionable private nuisance. We remand the cause to the district court for further proceedings consistent with this opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583165/ | 31 So.3d 1277 (2010)
Joseph D. GREGG, Appellant
v.
Patricia M. GREGG, Appellee.
No. 2008-CA-02025-COA.
Court of Appeals of Mississippi.
March 23, 2010.
*1278 Paul M. Moore, Jr., Calhoun City, Tina Marie Dugard Scott, Houston, attorneys for appellant.
J. Tyson Graham, Columbus, attorney for appellee.
Before LEE, P.J., IRVING and BARNES, JJ.
LEE, P.J., for the Court:
PROCEDURAL HISTORY
¶ 1. Joseph Gregg (Joe) and Patricia Gregg (Pat) were married in 1994. Joe *1279 filed for divorce in 2007 in the Chancery Court of Webster County, and the parties consented to a divorce based on irreconcilable differences. The issues of equitable distribution and alimony were submitted to the chancellor.
¶ 2. The chancellor divided the couple's property as follows:
1. Joe was ordered to pay Pat $20,000, which represented one-third of the increased value of Joe's pre-marital home in Webster County, Mississippi;
2. Pat was awarded two pieces of property in Starkville, Mississippi that were purchased during the marriage;
3. Pat was awarded a one-half interest in thirty acres in Webster County purchased during the marriage. Joe was given the option of buying the interest for $20,000 or selling the property and equally dividing the proceeds;
4. Pat was awarded a one-half interest in the increased value of Joe's retirement funds; and
5. Pat's home in Starkville owned prior to the marriage was found to be Pat's separate property.
Other property was distributed by the chancellor, but only the five items listed above are disputed by Joe. Therefore, the remaining distributions will not be discussed.
¶ 3. Joe now appeals the distribution by the chancellor, asserting the chancellor erred by: (1) awarding Pat a one-third interest in his pre-marital home without deducting one-third of the remaining debt; (2) awarding Pat a one-half interest in his retirement fund when all but one year's contributions were made prior to the marriage; (3) awarding Pat the two Starkville lots and a one-half interest in the thirty-acre parcel of land in Webster County when the land was purchased with commingled funds; and (4) failing to appropriately consider his contribution to the marital estate. Finding no error, we affirm the judgment of the chancellor.
FACTS
¶ 4. Joe and Pat resided in Joe's home in Webster County until they separated in 2007. Both parties were over the age of sixty at the time of the divorce, and both are in relatively good health. They each receive social security benefits. The couple had no children together. Prior to their marriage, Pat lived in Starkville, where she owned a home. Joe was retired from the military and worked for the United States Post Office. He continued to work at the post office for one year after the couple married. His retirement income was deposited into the couple's joint account. Prior to the marriage, Joe's retirement account was valued at approximately $38,000. At the time of the divorce, it was valued at approximately $86,000. Pat owned a gift store in Starkville prior to the marriage. Pat's income from this business was deposited into the couple's joint account. In 1998, Pat opened a second location of the business in Oxford. Joe helped operate the second location. The Oxford store was sold in 2002, and the Starkville store was sold in 2004.
¶ 5. The couple renovated and added on to Joe's home where the couple resided during the marriage. Pat rented out her former home in Starkville for $1,250 a month. The rental income was placed into a joint account. Pat also received an inheritance of $300,000 from her father while she was married to Joe. Approximately $20,000 of this amount was left at the time *1280 of the divorce. Most of the inheritance was spent on renovating the marital home and for other marital expenses. At the time of the hearing, Joe testified that his monthly income was $3,600. Pat's only source of income was the rental income from the home in Starkville, which she planned to move into after the divorce. Thus, Pat had no income at the time of the divorce.
¶ 6. During the marriage, the couple purchased two lots in Starkville and thirty acres of land in Webster County adjacent to land that Joe had inherited. Joe took out a home-equity loan on his house in Webster County to purchase the land. A significant portion of the home-equity loan was paid off by the sale of Pat's businesses and Pat's inheritance.
STANDARD OF REVIEW
¶ 7. An appellate court "employs a limited standard of review for the division and distribution of property in a divorce proceeding." Phillips v. Phillips, 904 So.2d 999, 1001 (¶8) (Miss.2004) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). The chancellor's findings of fact will not be disturbed "unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Id. (citing Owen v. Owen, 798 So.2d 394, 398 (¶10) (Miss.2001)).
DISCUSSION
¶ 8. Appellate courts "look to the chancellor's application of the Ferguson factors when reviewing questions of equitable distribution." Id. (citing Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994)). In Ferguson, the Mississippi Supreme Court set forth factors that chancellors must consider when equitably dividing a marital estate. Id. The Ferguson factors are:
(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.
Hults v. Hults, 11 So.3d 1273, 1281 (¶36) (Miss.Ct.App.2009) (citing Ferguson, 639 So.2d at 928-29).
I. THE MARITAL HOME
¶ 9. Joe argues that the chancellor erred in awarding Pat a one-third interest in the appreciated value of the home he owned prior to the marriage without deducting a corresponding amount of debt.
¶ 10. Joe's home was valued at approximately $50,000 when the couple married. After adding on to the home and making other improvements, the appraised value of the home at the time of the divorce was $110,000. In March 2001, the couple took out a home-equity loan on the home for $88,764. The loan was used to purchase the two lots in Starkville, an investment note, and one-third of the thirty-acre parcel of land in Webster County. In 2004, when Pat sold her business in Starkville, the proceeds were used to pay off the home-equity loan. The couple paid approximately $77,000 toward the home-equity loan from the proceeds of Pat's business. Pat also used money from her inheritance to make renovations to the home, which contributed to its increase in value.
*1281 ¶ 11. Joe contends that the income from Pat's businesses was commingled because Pat deposited it into the couple's joint account. Therefore, he argues that the sum Pat paid on the home loan was from marital funds, which rendered any equity on the home subject to the remaining debt. Joe also argues that the chancellor's award to Pat ignored his contribution to the marital home.
¶ 12. The chancellor found that Pat's businesses remained her separate property despite the commingling of the proceeds from the businesses. Joe argues that the businesses were not separate property because he did maintenance and helped run the stores. The chancellor noted that while Joe made contributions to the Starkville and Oxford stores, they were not significant enough to convert the property to marital property. The chancellor noted that the stores were sold during the marriage, and both parties benefitted from the proceeds.
¶ 13. We cannot find that the chancellor was manifestly wrong in awarding Pat a one-third interest in the appreciated value of the home. The couple lived in the home for fourteen years. The home was clearly marital property. Pat contributed significantly to the increase in value of the home. Therefore, we find that the award was appropriate. As to Joe's argument that the chancellor's ruling ignored the debt owed on the home, we find that the chancellor made clear that the goal of the division of property was to eliminate the need for alimony. Holding that Pat was not responsible for the outstanding debt on the home was a way to reduce the need for alimony. This issue is without merit.
II. RETIREMENT FUNDS
¶ 14. Prior to the marriage, Joe's retirement funds were valued at approximately $38,000. During the marriage, Joe withdrew $13,000 from his IRA to make a payment on the thirty-acre parcel of property in Webster County purchased by the couple. At the time of the divorce, Joe's retirement funds were worth approximately $86,000. He concedes that the $13,000 he withdrew during the marriage was correctly identified as marital property. However, he argues that the remaining amount was separate property because it was a passive increase in funds.
¶ 15. Joe argues the chancellor should have considered the retirement account in the same way as Pat's former home. During the marriage, Pat's home in Starkville increased in value from $80,000 to $169,000. The increase was categorized as separate property. Joe argues that the IRA required no maintenance. The home, however, required maintenance, such as painting and a new roof, which were paid for out of the joint account.
¶ 16. Marital property was defined in Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994) as "any and all property acquired or accumulated during the marriage." The retirement income which was acquired and accumulated during the marriage is marital property. Pat's former home, on the other hand, was acquired before the marriage, and the chancellor determined that Joe presented no credible evidence to prove that the home was commingled as such to make it marital property. The chancellor noted that, while Joe argued that he performed maintenance on the home, any contribution Joe made to Pat's home was minimal. Further, Pat testified that her retirement account was spent on expenses while the couple traveled the country in a RV. Therefore, Pat had no retirement savings. This issue is without merit.
*1282 III. LAND
¶ 17. Joe argues that the chancellor erred in awarding Pat the two Starkville lots and a one-half interest in the thirty acres in Webster County purchased during the marriage. He argues that in order to be equitable, the chancellor should have awarded Pat the lots in Starkville and awarded the thirty-acre parcel of land in Webster County solely to him.
¶ 18. The two lots in Starkville were valued at $50,000, and the thirty-acre parcel was valued at $40,000. The two Starkville lots and one-third of the land in Webster County were paid for with a portion of the $88,764 home-equity loan. The second one-third of the price of the land in Webster County was paid with proceeds from Joe's IRA, and the final payment was made from the joint checking account. In 2004, when Pat sold her business, the proceeds were used to pay $77,000 toward the home-equity loan. Therefore, Pat paid one-third; Joe paid one-third; and the couple jointly paid one-third of the purchase price of the thirty-acre parcel of land. We find that the chancellor correctly reasoned that since each party contributed to one-half of the total purchase price, the land should be divided equally. The chancellor took into consideration that Joe would have more of an emotional attachment to the thirty acres because it is adjacent to property owned by his family. Thus, the chancellor awarded Joe the property and Pat a one-half interest in the property.
¶ 19. We find that the chancellor did not err in her distribution of the land. The funds used to purchase the Starkville property were Pat's separate property, and each party contributed equally to the purchase of the Webster County property. Therefore, we find this issue is without merit.
IV. CONTRIBUTION TO THE MARITAL ESTATE
¶ 20. Finally, Joe argues that the chancellor failed to consider his contributions to the marriage. Joe points out that he contributed money to the couple's joint account when he worked for the post office; he contributed money to the joint account from the sale of timber on the land he had inherited; he used part of his IRA to pay for the thirty-acre parcel of land in Webster County; he ran the second location of Pat's gift store from 1996-2001; he did carpentry work at the Starkville store; he performed maintenance on Pat's former home; he helped set up a mobile home for Pat's father so he could be near them; and he performed the yard work and other labor on the marital home.
¶ 21. The chancellor found that Pat's testimony was credible and noted that she produced documentary evidence to support her contentions. Based on the documentary evidence provided by Pat, the chancellor found that the source of the majority of the funds used to purchase marital assets came from her inheritance and profits from the sale of her businesses. The chancellor found that most of Pat's $300,000 inheritance was used to purchase marital assets or to pay Joe's outstanding line of credit. The chancellor found Joe's testimony regarding the value of the assets and the source of funds to acquire the assets was not credible. The chancellor recognized that while Joe performed some chores on Pat's former home, there was no credible evidence to prove that the house became commingled such as to lose its separate identity. The chancellor also noted that Joe worked at the Starkville and Oxford stores. However, Pat testified that over the course of the marriage, Joe worked no more than a week to a week-and-a-half *1283 at the stores. Further, the chancellor found that because the stores were sold during the marriage and the proceeds deposited into a joint account, the proceeds benefitted both parties.
¶ 22. We find that the chancellor's division of the property was not manifestly wrong or clearly erroneous. The chancellor thoroughly considered each of the Ferguson factors in reaching her decision, and the division was made in a way as to avoid the need for alimony. Joe's issues on appeal are without merit. The decision of the chancellor is affirmed.
¶ 23. THE JUDGMENT OF THE WEBSTER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583194/ | 31 So.3d 357 (2010)
STATE of Louisiana
v.
Jamaha Joel ROBINSON.
No. 2009-KO-2126.
Supreme Court of Louisiana.
April 5, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583199/ | 31 So.3d 185 (2010)
BUMPUS
v.
STATE.
No. 3D08-72.
District Court of Appeal of Florida, Third District.
March 31, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583250/ | 31 So.3d 173 (2008)
EX PARTE DIANE A. LANKFORD.
No. 1070705.
Supreme Court of Alabama.
May 9, 2008.
Decision of the Supreme Court of Alabama Without Opinion Mand. pet. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585125/ | 24 So.3d 307 (2009)
Ulysses WILLIAMS
v.
The ORLEANS LEVEE DISTRICT AND ITS BOARD OF COMMISSIONERS, Jim Huey, Individually, and In His Capacity As President of the Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually, and In Her Capacity As a Member of the Board of Commissioners, Gary Benoit, Individually, and In His Capacity As Acting General Counsel for the Orleans Levee District and ABC Insurance Company.
Ulysses Williams
v.
The Orleans Levee District and Its Board of Commissioners, Jim Huey, Individually, and In His Capacity As President of the Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually, and In Her Capacity As a Member of the Board of Commissioners, et al.
Ulysses Williams
v.
Board of Commissioners, Orleans Levee District.
Nos. 2009-CA-0003, 2009-CA-0004, 2009-CA-0005.
Court of Appeal of Louisiana, Fourth Circuit.
November 4, 2009.
Rehearing Denied December 2, 2009.
*309 Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Ulysses Williams.
James D. "Buddy" Caldwell, Attorney General, Special Assistant Attorney General, William David Coffey, Special Assistant Attorney General, Panzeca & D'Angelo, L.L.C., Metairie, LA, for State of Louisiana & Office of the Governor.
Henry P. Julien, Jr., Stephen L. Scott, The Kullman Firm, APLC, New Orleans, LA, for Orleans Levee District & Its Board of Commissioners, et al.
(Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
TERRI F. LOVE, Judge.
This appeal arises from a dispute regarding the dismissal of Ulysses Williams from his position with the Orleans Levee District. The Civil Service Commission and referee determined that an appropriate punishment for the alleged conduct was a thirty-day suspension, as opposed to his dismissal by the Orleans Levee District. The First Circuit reversed and reinstated the dismissal.[1] Ulysses Williams also filed several suits in Orleans Parish seeking redress for his termination. The trial court granted the exception of res judicata as to the Orleans Levee District/Board of Commissioners regarding the claims of racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations. The trial court denied the exception of res judicata as to the Orleans Levee District/Board of Commissioners as it related to claims of defamation, false imprisonment, and the intentional infliction of emotional distress. The trial court also denied the exception of res judicata as to the claims alleged against the State of Louisiana through the Office of the Governor. For the following reasons, we find that the trial court did not err and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Ulysses Williams, the former assistant managing director of the Orleans Levee District ("OLD"), attempted to enter his office over the weekend of February 15, 1997, when the administrative offices were closed. Mr. Williams ignored the closure *310 and telephoned his attorney when he was not permitted to enter the facility. Upon learning of the incident, the news media arrived on the scene and videotaped a confrontation between Mr. Williams; his attorney; Jim Huey, the president of OLD; and an OLD police officer. Allegedly as a result of the confrontation and the media coverage, the OLD suspended Mr. Williams pending further investigation.
CSC/First Circuit Proceedings
Mr. Williams appealed his suspension to the Civil Service Commission ("CSC") asserting that he was being punished as a whistleblower. Mr. Williams was provided with a pre-deprivation hearing in regards to the charges of insubordination and breach of duty. Following the pre-deprivation hearing, Mr. Williams was advised by the OLD that his employment was terminated. Thereafter, Mr. Williams filed a second appeal to the CSC alleging discriminatory treatment based on his race and alleged status as a whistleblower.
The CSC referee found that Mr. Williams' behavior justified discipline. However, the referee held that a thirty-day suspension was warranted instead of termination. The CSC agreed and affirmed the referee's finding. The OLD and Mr. Williams appealed to the First Circuit, which found that Mr. Williams "intentionally and purposefully disregarded the established procedures for an employee to pursue his grievance by using legal counsel and television media to interrogate and expose the appointing authority to embarrassment and ridicule." Williams v. Orleans Levee Dist., Bd. of Comm'rs, 00-0297, p. 6 (La.App. 1 Cir. 3/28/01), 784 So.2d 657, 660. Thus, the First Circuit reversed the CSC and found that Mr. Williams' termination was reasonable based on his alleged insubordination. The Louisiana Supreme Court denied writs. 01-1730 (La.9/14/01), 796 So.2d 686.
Orleans Parish/Fourth Circuit Proceedings
During the CSC proceedings, Mr. Williams filed a petition for damages in Orleans Parish Civil District Court against OLD, OLD's Board of Commissioners ("Board"), Mr. Huey, Patricia Harris, Gary Benoit, and ABC Insurance Company ("ABC") (collectively referred to as "Defendants") regarding his termination. Mr. Williams alleged that the Defendants committed racial discrimination based on federal and state laws, violated his civil rights, violated the whistleblower act, defamation, false imprisonment, and intentionally inflicted emotional distress. Mr. Williams filed a second petition for damages containing similar allegations and added the State of Louisiana and Robert Namer as defendants. A third petition was filed whereby Mr. Williams requested back pay. Two of Mr. Williams' pending petitions were removed to federal court and remanded. Upon remand, all three of Mr. Williams' petitions were consolidated. In the case sub judice, Mr. Williams accused the Defendants of racial discrimination, pursuant to federal and state laws, civil rights violations, whistleblower violations, defamation, false imprisonment, and intentional infliction of emotional distress.
The Defendants filed exceptions of no right of action, no cause of action, prematurity, and lack of subject matter jurisdiction. The State of Louisiana, through the Office of the Governor ("State"), filed a motion to join in pleading the exceptions of OLD. The trial court denied all of the exceptions. The Defendants sought writs on the denial to this Court. This Court reversed the trial court as to the OLD in regards to the then pending First Circuit claims of racial discrimination, discriminatory *311 employment practices, whistleblower violations, and civil rights violations.[2]
Following this Court's writ disposition and the First's Circuit's denial of a rehearing, the State filed an exception of res judicata, which was based upon the proceedings in the First Circuit. The State followed with a motion for summary judgment. The OLD and the Board also filed an exception of res judicata asserting that Mr. Williams' claims were precluded by La. R.S. 13:4231. The trial court granted the exception of res judicata as to OLD and the Board in regards to the claims of racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations. The trial court denied the exception of res judicata as to OLD and the Board as it relates to Mr. Williams' claims for defamation, false imprisonment, and intentional infliction of emotional distress. Finally, the trial court denied the exception of res judicata as to all of Mr. Williams' claims against the State.[3] The State's devolutive appeal followed. Mr. Williams also filed an answer to the appeal seeking a reversal of the partial grant of the exception of res judicata as to OLD and the Board.
STANDARD OF REVIEW
The peremptory exception of res judicata presents a legal question for review. Appellate courts review legal questions using the de novo standard of review. Tuban Petroleum, L.L.C. v. SIARC, Inc., 09-0302, p. 3 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522, writ denied, 09-0945 (La.6/5/09), 9 So.3d 877; Anaya v. Legg Mason Wood Walker, Inc., 07-0654, p. 8 (La.App. 4 Cir. 5/14/08), 985 So.2d 281, 286, writ denied, 08-1289 (La.10/24/08), 992 So.2d 1040. Therefore, we must decide whether "the trial court's decision is legally correct or incorrect." Ins. Co. of N. Am. v. Louisiana Power & Light Co., 08-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267. The trial court may also make factual determinations when ruling on an exception of res judicata. Those factual determinations are reviewed using the manifest error standard of review. Robertson v. Hessler, 08-1212, p. 9 (La. App. 4 Cir. 6/3/09), 13 So.3d 1214, 1220.
RES JUDICATA
The doctrine of res judicata "promotes judicial efficiency and final resolution of disputes." Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077, 1079. "[R]es judicata precludes re-litigation of claims and issues arising out of the same factual circumstances when there is a valid final judgment." Ins. Co. of N. Am., 08-1315, p. 5, 10 So.3d at 267. The Louisiana Revised Statutes provides the following components of res judicata:
[e]xcept as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a *312 subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
La. R.S. 13:4231. "Res judicata cannot be invoked unless all its essential elements are present and each necessary element has been established beyond all question." Asbestos Plaintiffs v. Borden, Inc., 01-1379, pp. 5-6 (La.App. 4 Cir. 8/14/02), 826 So.2d 581, 587-88. The Louisiana doctrine of res judicata was amended by Act 521 of 1990 by adopting issue preclusion. Ensenat v. Edgecombe, 97-2239, p. 3 (La.App. 4 Cir. 3/11/98), 707 So.2d 1059, 1061.
"A valid and final judgment is conclusive between the same parties, except on appeal or other direct review." Avenue Plaza, L.L.C., 96-0173, 676 So.2d at 1079. The Louisiana Supreme Court stated that "the chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action." Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d 1049, 1053. However, all of the following must be fulfilled to preclude a second action:
(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.
Burguieres, 02-1385, p. 8, 843 So.2d at 1053. The requirement that the parties are the same in both suits "does not mean that the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits." Burguieres, 02-1385, p. 8, 843 So.2d at 1054. The Louisiana Supreme Court found that res judicata did not apply where issues were not actually litigated or contained as an object in the judgment. Lamana v. LeBlanc, 526 So.2d 1107, 1110 (La.1988).
Exceptions to the application of res judicata provide that
[a] judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or,
(3) When the judgment reserved the right of the plaintiff to bring another action.
La. R.S. 13:4232(A). This Court held that a court can "exercise its equitable discretion to balance the principle of res judicata with the interests of justice." Fine v. Reg'l Transit Auth., 95-2603 (La.App. 4 Cir. 6/26/96), 676 So.2d 1134, 1136. While the exceptions may lessen the judicial efficiency of res judicata, the result is preferable to the loss of "substantive rights" that were not decided on the merits. Fine, 95-2603, 676 So.2d at 1137.
The mover on an exception of res judicata bears the burden of proof by a preponderance of the evidence. Guidry v. One Source Facility Serv., 04-2007, p. 3 (La.App. 4 Cir. 4/27/05), 901 So.2d 626, 628. The "doctrine of res judicata is stricti juris; any doubt concerning application of this principle must be resolved against its application." Sutter v. Dane Inv., Inc., 07-1268, p. 3 (La.App. 4 Cir. 6/4/08), 985 So.2d 1263, 1265.
Mr. Williams contends that the trial court erred in finding res judicata applied *313 to his termination related claims for racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations against the OLD. The State asserts that virtual representation should be utilized to apply res judicata to Mr. Williams' claims and require its dismissal.
Res Judicata as to OLD
As to terminated civil servants, this Court recognized, that the "Civil Service Commission has exclusive jurisdiction over classified Civil Service employer-employee disputes that are employment related." Eberhardt v. Levasseur, 630 So.2d 844, 846 (La.App. 4th Cir.1993). "The authority to review the basis for a termination of a civil servant's employment and decide whether it was in accordance with law is expressly and unambiguously assigned to the CSC." Reimer v. Med. Ctr. of Louisiana, 95-2799, p. 4 (La.App. 4 Cir. 1/29/97), 688 So.2d 165, 168.
The issue of why Mr. Williams was terminated was central to the four claims to which the trial court applied res judicata. The causes of action existed at the time of the appeal in the First Circuit and arose out of the same transaction or occurrence. In essence, Mr. Williams is requesting that the issue of why the OLD terminated him be relitigated. Mr. Williams contends that exceptional circumstances exist and an exception should be utilized to preclude the application of res judicata to the four claims, due to the limited subject matter jurisdiction of the CSC.
This Court examined the subject matter jurisdiction of the CSC when a civil servant alleged that discrimination was the cause of his termination rather than the reasons stated by his employer. Reimer, 95-2799, p. 4, 688 So.2d at 168. This Court reasoned:
[t]hat his petition makes reference to other statutes does not change the nature of his claim. The authority to review the basis for a termination of a civil servant's employment and decide whether it was in accordance with law is expressly and unambiguously assigned to the CSC.
Id. We further stated that the civil servant's "removal is at the heart of his suit" and that "[i]n order for him to be entitled to damages it must be determined that he was unlawfully discharged from his position." Reimer, 95-2799, p. 6, 688 So.2d at 169.
In his appeal to the CSC, Mr. Williams alleged that he was terminated due to discrimination, racial discrimination, and his status as a whistleblower. Mr. Williams' appellant brief to the First Circuit contended that he was terminated for political or non-merit reasons. Further, Mr. Williams filed a motion for rehearing with the First Circuit asserting his status as a whistleblower. However, in the case sub judice, Mr. Williams did not prove to the CSC or to the First Circuit that he was unlawfully terminated.
Mr. Williams also urges that this Court has recognized his assertion that decisions from limited jurisdiction tribunals have limited res judicata effect in In re Asbestos Plaintiffs v. Borden, Inc., 01-1379 (La. App. 4 Cir. 8/14/02), 826 So.2d 581. We find Asbestos distinguishable. The tribunal with limited jurisdiction in Asbestos rendered a decision as to the plaintiff's last causative employer and did not make any determinations regarding the plaintiff's issues of racial discrimination or negligence. Asbestos, 01-1379, p. 7, 826 So.2d at 588. Conversely, the CSC and the First Circuit specifically held, regarding the issue of Mr. Williams' termination, that he was lawfully terminated based on insubordination. As such, the issue of Mr. Williams' termination has been judicially determined as to the OLD and the judgment has the preclusive effect of res judicata as to Mr. Williams' claims for racial discrimination, *314 discriminatory employment practices, whistleblower violations, and civil rights violations. We do not find that the trial court erred in this finding and affirm.
Res Judicata as to the State
Although the First Circuit held that Mr. Williams was lawfully terminated, the State was not a party to that litigation. Accordingly, res judicata does not apply. However, the State asserts that res judicata attaches as to all of the claims alleged by Mr. Williams against the State through the theory of virtual representation and that a failure to apply the doctrine of res judicata could result in inconsistent rulings. Mr. Williams asserts that the OLD was not the virtual representative of the State because the State did not function as his employer pursuant to La. R.S. 23:967.
The Louisiana Supreme Court adopted the federal requirements utilized when determining if the identity and capacity of the parties are the same in both suits and applied the representation theory to a party of plaintiffs. Forum For Equality PAC v. McKeithen, 04-2551, pp. 10-11 (La.1/19/05), 893 So.2d 738, 745. The requirements are:
(1) the nonparty is the successor in interest of a party; (2) the nonparty controlled the prior litigation; or (3) the nonparty's interests were adequately represented by a party to the action who may be considered the "virtual representative" of the nonparty because the interests of the party and the nonparty are so closely aligned.
Id. In Forum, the second set of plaintiffs were "closely aligned with the interests of the parties" in the previous litigation because they were seeking to challenge the constitutionality of the Defense of Marriage Act. Forum, 04-2551, p. 11, 893 So.2d at 745. The Louisiana Supreme Court has not applied virtual representation to defendants. We find the case sub judice distinguishable because the OLD and the State's interests were not adequately represented in the parallel proceedings as Mr. Williams' allegations against the State differed as did the State's capacity. Accordingly, we do not find that the State and the OLD were "so closely aligned" and res judicata does not apply.
LAW OF THE CASE
Lastly, the State avers that the law of the case doctrine should apply to preclude Mr. Williams from asserting the four claims against it that are res judicata as to the OLD. The doctrine "applies to parties who have previously had the identical question presented and decided by an appellate court." Avenue Plaza, L.L.C, 96-0173, 676 So.2d at 1079. The law of the case doctrine is a "discretionary guide." Id. This Court previously reversed the trial court and granted the exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction specifically as to the OLD while the First Circuit appeal was pending. This Court's writ disposition did not reference the State as a party and the parallel proceedings were incomplete at the time of the supervisory writ disposition. As it is discretionary in nature, we do not find that the law of the case doctrine applies to the facts and circumstances of this case.
DECREE
For the above mentioned reasons, we find that the trial court did not err and affirm.
AFFIRMED.
MURRAY, J., Concurs With Reasons.
MURRAY, J., concurs with reasons.
Although I agree with the result the majority reaches, I write separately to address the issue of the State's exception of res judicata. The State's exception is based on the doctrine of virtual representation, *315 a federal court concept the Louisiana Supreme Court applied in Forum for Equality PAC v. McKeithen, 04-2551 (La.1/19/05), 893 So.2d 738. Distinguishing this case on the facts from McKeithen, supra, the majority finds the virtual representation doctrine does not apply.
Subsequent to the decision in the McKeithen case, the United States Supreme Court in Taylor v. Sturgell, ___ U.S. ___, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008), disapproved the doctrine of preclusion by virtual representation. The Supreme Court held that "[t]he preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion." Sturgell, ___ U.S. at ___, 128 S.Ct. at 2178. It is therefore unnecessary to reach the issue of whether the disapproved doctrine of preclusion by virtual representation applies. Since the State (a nonparty to the prior litigation) has cited no other basis for finding res judicata applies, the trial court correctly denied its exception.
For these reasons, I concur.
NOTES
[1] The Louisiana Supreme Court denied writs. See Williams v. Orleans Levee Dist., 01-1730 (La.9/14/01), 796 So.2d 686.
[2] Although the State joined in the pleading of exceptions, this Court's writ disposition only refers to the OLD as the relator.
[3] The State's motion for summary judgment was deferred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918594/ | 411 B.R. 632 (2008)
In re Robert A. LUDWIG, Kathleen A. Ludwig, Debtors.
No. 07-01855S.
United States Bankruptcy Court, N.D. Iowa, Western Division.
November 20, 2008.
*633 Wil L. Forker, Sioux City, IA, for Debtors.
MEMORANDUM DECISION: MOTION TO MODIFY PLAN
WILLIAM L. EDMONDS, Bankruptcy Judge.
Debtors Robert and Kathleen Ludwig move to modify their plan to suspend payments. *634 The trustee objects. Hearing was held on November 12, 2008 in Sioux City. Wil L. Forker appeared for the Ludwigs. Carol F. Dunbar, chapter 13 trustee, appeared on her own behalf. This is a core proceeding under 28 U.S.C. § 157(b)(2)(L).
Ludwigs filed their chapter 13 petition on October 10, 2007. They filed their plan on the same date; it was confirmed on December 3, 2007 (docs. 21 and 22).
The plan provided for payments to the trustee of $1,249.60 per month for 60 months. If fully performed, it would provide payment in full of all unsecured claims. The claims deadline has passed; allowed unsecured claims total $48,050.25.
From the plan payments, the trustee was to cure a $4,201.00 arrearage on Ludwigs' home mortgage; pay Ludwigs' attorney's fees in the amount of $1,750.00; and pay trustee's fees.
After confirmation, Kathleen changed jobs. Beginning in December 2007 she began working for the Kingsley [Iowa] News Times, as its only employee. She was responsible for all aspects of publication. She said she received no training. She did not enjoy the position, and quit after four months. Thereafter she worked for a temporary-labor supplier. That position ended in August 2008.
Robert works for Tyson Fresh Meats in Dakota City, Nebraska. When the bankruptcy petition was filed, he had an annual gross salary of $75,000.00. As a salaried employee, he works long hours, but receives no overtime pay. At the time of filing, schedule I showed that he had monthly take-home pay of $3,577.88 (doc. 1). This was contradicted by his testimony at the hearing that his take-home pay at filing was $2,307.22. After confirmation, he said he went from withholding status of zero exemptions to exempt status, thereby increasing his take-home pay to the equivalent of $3,035.50 per month, but he owed income taxes.
Robert later returned to zero exemptions, and thus, at the time of the hearing, his take-home pay was again $2,307.22 per month.
In summary, at the time of filing, Robert's take-home pay was scheduled at $3,577.88, and Kathleen's was scheduled at $1,613.84 for a total of $5,191.72 per month (doc. 1, schedules I and J). Robert's takehome pay is now $2,307.22, and Kathleen's is zero.
Their current expenses at the time of filing were $3,582.50 (doc. 1, schedule J). Kathleen testified that since she has been unemployed, they have been able to reduce or eliminate expenses for transportation, recreation, day care, and parking. Since filing, the cost of school lunches has increased. Based on Kathleen's testimony, I estimate the reduction in monthly expenses has been approximately $400.00.
Certainly since the termination of Kathleen's temp services job, the Ludwigs' monthly take-home pay is less than their current expenses. The monthly deficit is about $875.00. Kathleen testified that they are barely able to make their mortgage payment, and they have been falling behind on paying post-petition medical bills. She said they have been borrowing from her mother in an effort to make ends meet.
Since filing, Ludwigs have paid the trustee a total of $15,870.82 in plan payments. From that amount, Ludwigs' attorney has been paid in full for his work through plan confirmation, and the arrearage on the home mortgage has been cured. Only payments on unsecured debt and trustee fees remain. Under chapter 7, the court finds and concludes that unsecured creditors would have been paid less than *635 $150.00 (see doc. 1 at 17-22, schedules A-C).
Ludwigs' proposed plan modification is that they suspend payments to the trustee so long as Kathleen is unemployed (doc. 40). Upon her obtaining employment, Ludwigs would file another motion to modify in consideration of her then income.
The trustee objects, contending that the modification is too vague and that the number of months of suspension should be designated.
Suspension of plan payments is not uncommon when a debtor's income is reduced because of job loss. When the period of suspension is short and predictable, often creditors are not significantly affected, especially where a modification proposes to make up suspended payments through an extension of the plan period. See generally 3 Keith M. Lundin, chapter 13 Bankruptcy, § 258.1 (3d ed.2007). However, in Ludwigs' case, the reduction of income is substantial, and there is no predictability as to when the income would be restored or to what extent.
Pursuant to 11 U.S.C. § 1329(b)(1), Ludwigs must meet the general requirements of plan confirmation. This includes feasibility, or the ability of the debtors to make all payments under the plan and to comply with the plan. 11 U.S.C. § 1325(a)(6). Ludwigs are presently earning less than their expenses. They currently show no ability to make plan payments. They seek court approval of a modification that permits suspension of plan payments for the indefinite future, with no predictability of when Kathleen will obtain a job, or the likelihood of her obtaining employment which would permit her to take home in excess of $875.00 per month, the approximate amount of Ludwigs' current monthly deficit.
Ludwigs have made plan payments for 12 months; 48 months remain. But the proposed modification would provide suspended payments for the remaining 48 months if Kathleen cannot obtain employment which permits her to take home sufficient income to pay all current expenses and to make a plan payment. The length of the suspension is speculative; therefore, I conclude the proposed modification is not feasible. See In re Miller, 2008 WL 2323901 at *1 (Bankr.N.D.Iowa June 5, 2008) (denying request to suspend payments eight months).
Moreover, their current circumstances may impact Ludwigs' continuing eligibility to continue in chapter 13. Only an "individual with regular income" may be a debtor under chapter 13. 11 U.S.C. § 109(e).
The term `individual with regular income,' means individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under chapter 13 of this title....
11 U.S.C. § 101(30). Ludwigs presently have no excess income from which to make plan payments. Had this been the circumstance at the outset of the case, they would not have been eligible for chapter 13. Tenney v. Terry (In re Terry), 630 F.2d 634, 635 (8th Cir.1980).
The motion to modify will be denied. The Ludwigs appear to be acting in good faith. If requested by the debtors' further motion to modify, I would approve a six-month suspension to permit Kathleen an opportunity to obtain employment and to permit Ludwigs further opportunity to reduce expenses. At the expiration of six months, debtors would be required to file a further plan modification which would resume plan payments at the then-appropriate amount.
*636 IT IS ORDERED that judgment shall enter that Ludwigs' proposed plan modification is denied. If debtors immediately seek a modification limited to a six-month suspension, the court would approve such modification without further notice or hearing. The modification must be served on the trustee and the U.S. trustee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1970345/ | 258 A.2d 291 (1969)
MID-PENN NATIONAL MORTGAGE COMPANY, a Delaware corporation, Plaintiff,
v.
Randolph HUGHES, State Banking Commissioner, Defendant.
Superior Court of Delaware, New Castle.
October 10, 1969.
*292 Howard M. Berg and Brian P. Murphy, Wilmington, for plaintiff.
Gerald C. Foulk, Deputy Atty. Gen., Wilmington, for State Banking Commissioner.
STIFTEL, President Judge.
Mid-Penn National Mortgage Company is a Delaware corporation but none of its stockholders are Delawareans. Mid-Penn wants to get into the secondary mortgage loan business in Delaware. The State Banking Commissioner says it cannot because it does not comply with Section 3103 of Title 5, Delaware Code. Mid-Penn says that the portion of § 3103 which pertains to corporate applicants is in violation of Article I, § 7, of the Constitution of Delaware, Del.C.Ann.
Section 3103 is part of Chapter 31, enacted in 1966, entitled the "Secondary Mortgage Loan Act".[1] The Act was passed to correct abuses in the second mortgage business. It is almost an exact copy of the New Jersey law,[2] N.J.S.A. 17:11A-1 through 25, enacted one year earlier.
The Delaware Act consists of thirty-one separately numbered sections. There are detailed provisions concerning procedure on application for licenses and renewals (§ 3104) including an annual fee of $25 (§ 3108) and the filing of a surety bond with the Banking Commission of $5000 (§ 3109). The license must show location of the office or branch where the business is to be conducted (§ 3107). The license cannot be transferred and no other name may be used. There are provisions for hearings on refusal, suspension or revocation of license (§ 3111). The Banking Commissioner may investigate, examine account books and records (§ 3114) which shall be maintained at the place of business of the licensee in this State (§ 3117). Section 3121 sets forth a mathematical formula for ascertaining the gross dollar amount of interest which the lender may deduct in advance and the Commissioner may prepare a schedule of maximum service charges which may be paid by an applicant. There are many other provisions to protect the borrower which are set out in the Act.
Mid-Penn attacks only the second sentence of § 3103, which sets forth the qualifications of a corporate licensee. This section says:
"§ 3103. Qualifications of licensee.
"Every applicant for a license under this chapter shall have been a bona fide resident of this State for a period of at least 2 years prior to the date of filing the application for such license. In the case of a corporate applicant, the holder or holders of at least 50% of the stock of such corporation shall have resided in this State for a period of at least 2 years prior to the date of filing the application. Added 55 Del.Laws, Ch. 346, § 1." (Emphasis supplied.)
Under its police power, the State has the right to protect its citizens, their health, comfort, property, and their welfare. Gallegher v. Davis and Law, Superior Court, 7 W.W.Harr. 380, 183 A. 620, 625; Van Winkle v. State, 4 Boyce, 578, 91 A. 385. It includes the right to regulate businesses for the public benefit. State v. Danberg, 1 Terry 136, 6 A.2d 596, 599. However, there are limitations on the exercise of this power by the State. The legitimacy of its *293 use depends upon "whether the situation presents a reasonable necessity for the imposition of restraint in order to promote its cause and whether the means adopted bear reasonable relation to the end sought to be accomplished." Mayor and Council of Wilmington v. Turk, 14 Del. Ch. 392, 129 A. 512, 516.
Section 3103 makes it necessary that the holders of 50% of the stock of the corporate applicant shall have been residents of the State of Delaware for two years prior to the filing of the application. It is not explained how the place of residence of a shareholder has any effect on the conduct of the business of the applicant corporation. This Act does not require applicants to be domestic corporations; it does not require their officers and managers to be Delawareans. Once a corporation is licensed, all the stockholders can leave the State and still come within the law. If the applicant is a listed public corporation, with the shares divided among many stockholders, it would be difficult to effect compliance with this provision. Whatever may have been the reason for the enactment of the limitation in § 3103, it cannot be found in an attempt to curb fraud upon the public since no reasonable relation to prevention of fraud and the ownership of stock before filing exists. See State v. Hobson, 7 Terry 381, 83 A.2d 846, 858. In the exercise of its police powers, Delaware cannot pass laws which are arbitrary and have no relation to the "disease" it attempts to cure. See Hoff v. State, 9 W.W. Harr. 134, 197 A. 75, 84. The conduct of the secondary mortgage business was a disease rampant in the community. Most of the Act helps to cure this evil. Residence requirements for stockholders do not.
Since the stockholder residence requirement is unrelated to the purpose of the Secondary Mortgage Act, it is void as an unconstitutional exercise of the police power of the State in violation of Article I, Section 7, of our State Constitution. The same conclusion was reached on September 11, 1968, by the Superior Court of New Jersey in Oxford Consumer Discount Co. of North Philadelphia v. Stefanelli, 102 N.J.Super. 549, 246 A. 460. See, also, Miskell v. Termplan, Inc. of Houston, 381 S.W.2d 129 (Tex.Civ.App.1964). The New Jersey Court said this section violated due process and equal protection. This is significant since our language was drawn from the New Jersey Act. Opinion of the Justices, 4 Storey 524, 181 A.2d 215, 217-218; Stauffer v. Standard Brands, Inc., 40 Del. Ch. 202, 178 A.2d 311, 315.
The Secondary Mortgage Act survives the excision of this provision. It is severable. See Title 1, Del.Code, § 308. The provisions of the Act that remain continue to provide close regulation of the operations of the secondary mortgage loan industry in Delaware. All of the statutory policing regulation provisions of loan contracts are left operative and intact notwithstanding invalidation of the shareholder residence requirement of § 3103.
The application of the plaintiff shall not be barred solely because of the non-residence of more than 50% of the shareholders for the last two years.
It is so ordered.
NOTES
[1] The Act says a "secondary mortgage loan" means (1) a loan not to be repaid in 90 days or less which is secured, in whole or in part, by a mortgage upon any interest in real property used as a dwelling with accommodations for not more than four families which property is subject to the lien of one or more prior mortgages, or (2) the purchase of any interest in an existing mortgage made to secure such a loan.
[2] The legislative background of the New Jersey law is set forth in Oxford Consumer Discount Company of North Philadelphia v. Stefanelli, 102 N.J.Super. 549, 246 A.2d 460, at p. 462, 463. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342220/ | 507 F. Supp. 2d 627 (2007)
Terry S. BYNUM, Individually, and on Behalf of the Wrongful Death Beneficiaries of Benjamin Bynum, Jr., Deceased, and the Estate of Benjamin G. Bynum, Jr., Deceased, Plaintiffs
v.
CITY OF MAGEE, MISSISSIPPI, Simpson County, Mississippi, Lane Steel, Bobby J. Williams, and John Does I-X, Defendants.
Civil Action No. 3:06CV639 TSL-JCS.
United States District Court, S.D. Mississippi, Jackson Division.
August 20, 2007.
*628 *629 *630 E. Michael Marks, E. Michael Marks & Associates, Jackson, MS, Michael, T. Jaques, Law Office of Michael T. Jaques, Ridgeland, MS, for Plaintiffs.
Robert O. Allen, William Robert Allen, Allen, Allen, Breeland & Allen, PLLC, Gary E. Friedman, Saundra Brown Strong, Phelps Dunbar, John D. Price, Wise, Carter, Child & Caraway, Jackson, MS, for Defendants.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the separate motions of defendants City of Magee, Mississippi and Lane Steel (the Municipal defendants) and defendant Bobby Williams to dismiss. Plaintiffs Terry Bynum and the Estate of Benjamin G. Bynum, Jr. have responded in opposition to the motions, and the court, having considered the parties' memoranda of authorities, concludes that Williams' motion is well taken and should be granted and that the Municipal defendants' motion should be granted in part and denied in part.
Following the death by suicide of Benjamin Bynum, Jr., Mr. Bynum's son, Terry Bynum, and his estate filed this lawsuit against the City of Magee, and against Lane Steel, a firefighter employed by the City, and Simpson County Coroner Bobby J. Williams, in their individual and official capacities, seeking to recover damages on account of the death of Benjamin Bynum. Specifically, plaintiffs seek to recover damages from the City for Benjamin Bynum's death pursuant to 42 U.S.C. § 1983 and understate law, based on allegations that the City, through its agents, violated the elder Bynum's constitutional rights under the Fifth, Eighth and Fourteenth Amendments and breached various duties understate law by failing to prevent his suicide. Plaintiff Terry Bynum further seeks to recover damages for emotional distress and punitive damages from Steel and Williams on account of their alleged mistreatment of Benjamin Bynum's body following his death.
The pertinent allegations in the complaint are as follows. On Wednesday, December 14, 2005, City of Magee police officers found Benjamin Bynum, Jr., who was suffering from a mental or emotional defect or disease, lying in the middle of a public highway in an apparent suicide attempt. The police officers took Bynum to his home and released him. Two days later, on December 16, 2005, City of Magee police and an ambulance were dispatched to Bynum's home in response to a report that he had barricaded himself in a room and was threatening to kill himself. Although Bynum's family members requested that the police officers enter the home and restrain Bynum, the officers refused to take action. Prior to leaving the residence, one of the officers threatened *631 plaintiff Terry Bynum that if the police were called to the residence again on account of Benjamin Bynum, Jr, he, Terry Bynum, would be arrested for domestic disturbance. Three days later, on December 19, 2005, Benjamin Bynum, Jr. committed suicide in his home by setting fire to his residence. The City of Magee Fire Department was called, and after extinguishing the fire, firefighters loaded the corpses of several dogs that had perished in the fire in the back of a pickup truck. Then, after Mr. Bynum's body was recovered, Williams, the county coroner, directed the firefighters, including defendant Steel, to put his body into the same truck in which the dog carcasses had been deposited. This was done, and in full view of Mr. Bynum's family which had gathered at the scene, the pickup truck in which Mr. Bynum's body had been placed with the carcasses of the dead dogs, left the residence.
The City argues that it is entitled to dismissal of the § 1983 claims against it (and against Steel in his official capacity) because the complaint not only fails to state Fourteenth Amendment claims under either the Due Process or Equal Protection Clauses, but also fails to state claims pursuant to the Fifth or Eighth Amendments. Finally, the Municipal defendants urge that plaintiffs' state law claims are barred by the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-1 et seq.
In ruling on a motion to dismiss, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches, 495 F.3d 191, 205 (5th Cir.2007) (internal quotations and citations omitted). In order to survive a Rule 12(b)(6) motion to dismiss, "the plaintiff must plead `enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl.Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). "`Factual allegations must be enough to raise aright to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).'" Id. (quoting Bell, at 1965). With this standard in mind, the court first considers plaintiffs' claims against the City.
When a § 1983 claim is asserted against a municipality, the "proper analysis requires [the court] to separate two different issues[]:(1) whether plaintiffs harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation." Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S. Ct. 1061, 1066, 117 L. Ed. 2d 261 (1992). Here, the City contends that dismissal is warranted because neither the Due Process Clause nor the Equal Protection Clause imposed upon it a duty to either provide medical care to Benjamin Bynum, Jr. or to protect him from himself. The City further argues that inasmuch as plaintiffs have failed to allege a constitutional violation, their claim that' the City failed to train its police and fire employees must likewise fail.
The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. It is by now well established that while individuals have a substantive due process right to be free from state-occasioned bodily harm, state officials do not, as a general matter, have a constitutional duty of care to protect individuals from injuries caused by themselves or others. See Breen v. Texas A & M Univ., 485 F.3d 325, 333 (5th Cir.2007) (citing DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196-97, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) ("As a general matter, *632 then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.")). As the Court explained in DeShaney,
The (Due Process) Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without `due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.
489 U.S. at 195, 109 S. Ct. at 1003.
An exception to this general rule of no duty exists for certain individuals in "special relationships" with the state. Specifically, affirmative duties of care and protection arise under the due process clause when the state, "through the affirmative exercise of its powers, acts to restrain an individual's freedom to act on his own behalf." Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir.2004) (citing McClendon, 305 F.3d at 323). As to such persons,
[i]n the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the `deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.
DeShaney, 489 U.S. at 200, 109 S. Ct. at 1006. In other words, the Constitution "imposes upon the state a duty of care towards individuals who are in the custody of the state." Breen, 485 F.3d at 333 (citing DeShaney, 489 U.S. at 200, 109 S. Ct. at 1005)("[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and well-being.").
A second exception to which the Supreme Court alluded in DeShaney, a "state-created danger" exception, has been recognized by most of the circuits, including most recently, the Fifth Circuit, which held in Breen that a "plaintiff seeking to recover under [state-created] danger theory must show that (1) `the defendants used their authority to create a dangerous environment for the plaintiff;' and (2) the defendants acted with deliberate indifference to the plight of the plaintiff.'" 485 F.3d at 330(quoting Scanlan v. Texas A & M Univ., 343 F.3d 533 (5th Cir.2003)). Thus, under the due process clause, the City only has an affirmative duty to protect a person from harm from private actors, if the state has a special relationship with a person, that is, if the state has custody of a person, thus cutting off alternate avenues of aid, or if the state somehow created the danger of harm.
In support of their due process claim in the case at bar, plaintiffs claim that when police officers found Benjamin Bynum lying in the roadway on December 14, 2005 in an apparent suicide attempt, the officers took him into custody. They then reason that defendants, having taken custody of Mr. Bynum and being aware that Mr. Bynum was suicidal, assumed a duty to hold him in custody for the purpose of providing him with mental health services (or stated conversely, Mr. Bynum, having been taken into police custody, had the right to remain in custody for the purpose of protection and receiving mental *633 health treatment).[1] More to the point, plaintiffs take the position that when defendants chose to pick up Mr. Bynum and detain him, he became a pretrial detainee and should therefore have been afforded the right of a pretrial detainee to "adequate protection from [his] known suicidal impulses," see Thornhill v. Breazeale, 88 F. Supp. 2d 647, 653 (S.D.Miss.2000), and to necessary psychiatric/medical treatment, see Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.2003), which defendants violated by releasing him. Plaintiffs conclude, therefore, that "[t]he fact that Bynum was not in physical custody of the Municipal Defendants at the time he died should not be dispositive of the claim." In the court's opinion, however, this fact is dispositive.
While persons who are in state custody have a right to some level of care and protection, including protection against suicide, see Hare v. City of Corinth, 74 F.3d 633, 647 n. 3 (5th Cir.1996), aff'd, 133 F.3d 907 (2d Cir.1997), the Constitution does not impose upon a city a duty to hold a suicidal individual for the sole purpose of providing him medical care, as is suggested by plaintiffs. Wilson v. Formigoni, 42 F.3d 1060, 1066(7th Cir. 1994) ("[T]here is no constitutional right to be deprived of liberty-there is no right to be imprisoned, and none to be involuntarily committed in a mental health facility."); see also Collignon v. Milwaukee County, 163 F.3d 982, 991-992 (7th Cir.1998) (stating "[T]he plaintiffs cannot claim that the County defendants should have involuntarily committed Jonathan to a mental health facility: Due process protects people from being unlawfully restrained; it provides no right to be restrained, lawfully or otherwise."); DeShaney, 489 U.S. at 201, 109 S. Ct. at 1006 (noting that "the State does not become the permanent guarantor of an individual's safety by having once offered him shelter"). Thus, defendants had no constitutional duty to maintain custody of Mr. Bynum for his own protection.
Moreover, once a person is no longer in state custody, he is not in a "special relationship" with the state. This principle was recognized in Townsley v. West Brandywine Township, 2006 WL 1147267 (E.D.Pa.2006), a case which also involved a due process claim for the defendant Township's alleged failure to prevent a suicide. There, the decedent had been arrested for driving under the influence and placed in a holding cell for a brief period of time. Notwithstanding that he was discovered trying to hang himself while in a holding cell, the defendants did not seek psychiatric help for the decedent and thereafter released him into the custody of a third party, a friend of the decedent, without making the friend aware that he had attempted suicide. The friend took the decedent to his home, where he was left alone. The next morning, he committed suicide. The plaintiff argued that the Township had an affirmative duty to act to protect the decedent's constitutionally protected interests because the decedent was in the state's control or custody. The court rejected this claim "because Decedent's harm occurred after the relationship between *634 Decedent and Defendants was severed by the release of Decedent to a third-party." Id. at *5. The court emphasized that for a "special relationship" to exist such as to give rise to a duty to protect, the "`state must affirmatively act to curtail the individual's freedom such that he or she can no longer care for him or herself.'" Id. (quoting Henderson v. City of Philadelphia, 1999 WL 482305, at * 5 (E.D.Pa. July 12, 1999)), and observed from this, that "[i]t logically follows that the state's custody over an individual terminates when the state no longer restrains the individual from being able to care for himself i.e., when the individual is no longer in the state's physical custody." Id. (citing Henderson, 1999 WL 482305 (E.D.Pa. July 12, 1999)). The court concluded:
Here, Decedent was in Defendants' custody while he was detained in the holding cell, but that custodial relationship ended-prior to Decedent's harm-because Defendants properly released Decedent into the custody of a third-party friend. The harm that occurred to Decedent took place well after he was released from custody. Precedent dictates that upon releasing Decedent, Defendants no longer had a duty to protect him.
Id. The same analysis applies here. Mr. Bynum had been released from custody five days before he committed suicide,, and therefore was not in a "special relationship" with the City at the time of his suicide that would have given rise to a duty to protect. See Mroz v. City of Tonawanda, 999 F. Supp. 436, 456-57 (W.D.N.Y. 1998) (granting summary judgment on due process claim for failure to prevent suicide where evidence showed that the decedent, an emotionally disturbed teenager, committed suicide after being released from jail, following one-hour detention, and taken to his home; evidence was undisputed that decedent was not in custody after being taken to his home); cf. Schoenfeld v. City of Toledo, 223 F. Supp. 2d 925 (N.D.Ohio 2002) (police officers who released the plaintiff's decedent after brief detention for purposes of investigation during which they learned of his suicidal tendencies and learned that he had attempted to purchase a gun were not liable on due process claim based on decedent's having subsequently committed suicide in a hotel room).
An alternative basis for imposing a duty to protect is the "state-created" danger theory. However, that theory has no applicability here.[2] To recover on the basis of a state-created danger, the plaintiff must show "that the defendant's actions created or increased the danger to the plaintiff." Breen, 485 F.3d at 334. The danger to Mr. Bynum was the risk of suicide. However, Mr. Bynum was already vulnerable to suicide at the time he was found by officers, who in fact first encountered him while he was attempting suicide (and who may well have succeeded at that time but for the officers' intervention). The City, through its officers, did not create that risk nor increase the danger either by picking up Mr. Bynum or by taking him to his home and leaving him there. That is to say, Mr. Bynum was no more vulnerable to suicide after his encounter with the officers than he was before that encounter. See Christiansen v. City of Tulsa, 332 F.3d 1270,1281 (10th Cir.2003) (where decedent committed suicide during standoff with police, court found no duty to protect under state-created danger theory where "the `danger' in question [the decedent's] exposure to a suicide attempt-existed prior to defendants' intervention [so that] defendants *635 [could not] be liable under section 1983 for having `created' [his]predicament"); Collignon, 163 F.3d at 992 (no liability where state did not create or increase the risk of suicide by arresting decedent, even where the arrest caused severe emotional distress).For these reasons, the court concludes that plaintiffs' due process claim must be dismissed.
In addition to their due process claim, plaintiffs contend that defendants violated Mr. Bynum's equal protection rights. Specifically, they allege,
On good faith and information and belief, the City of Magee, by and through its police department, has, under similar circumstances, intervened, assisted, and protected similarly situated individuals who were attempting to commit suicide. Though Benjamin Bynum, Jr. was similarly situated to such individuals for whom assistance has been provided, no assistance was provided to Benjamin Bynum, or his family members, in an effort to protect Benjamin Bynum, Jr. As a result thereof, Benjamin Bynum, Jr., and Plaintiffs, were not afforded equal protection under law, and suffered death and damages as result thereof, in violation of their constitutional rights.
The City initially argues that plaintiffs' equal protection claim fails because the complaint does not allege that Mr. Bynum was treated less favorably by the government because of his membership in a particular protected group or class. See Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L.Ed.2d 338(1971). While it is true that the complaint does not allege that Mr. Bynum, Jr. was discriminated against because he was a member of a protected class, the City's argument, as plaintiffs point out, fails to acknowledge the viability of an equal protection claim grounded on a "class of one," as recognized by the Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000).
Typically, an equal protection claim focuses on the denial of a fundamental right or disparate treatment of persons depending on the claimant's suspect classification. In Olech, however, the Supreme Court held that a plaintiff may state a "class of one" equal protection claim if he has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. at 564, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060.
Here, defendants submit that plaintiffs' allegation that Mr. Bynum was treated differently from other similarly situated persons is conclusory and therefore insufficient to withstand a motion to dismiss. The court concludes otherwise.[3] Accordingly, the Municipal defendants' motion with regard to the equal protection claim will be denied.
In addition to their § 1983 claim, plaintiffs have asserted a number of state law tort claims against the City grounded on the alleged failure to prevent Mr. Bynum's suicide. The City argues that all these claims are barred by the Mississippi Tort Claims Act (MTCA), § 11-46-1 et seq. Specifically, the City takes the position that under § 11-46-9(1)(c) and (d), any state law claims based on the City's failure to enter Bynum's home to restrain him and prevent his suicide, are exempt from the general waiver of immunity for torts committed by governmental employees or agencies, as set out in Miss.Code Ann. § 11-46-5. Section 11-46-9(1)(c) provides:
*636 A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: . . .
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.
(emphasis added). "Reckless disregard" is "willful or want on conduct which requires knowingly and intentionally doing a thing or wrongful act." Maye v. Pearl River County, 758 So. 2d 391, 394(Miss.1999).
In response to the City's motion, plaintiffs point out that the complaint specifically alleges that the actions of the officers were "reckless, malicious, intentional, and committed with deliberate indifference and reckless indifference to the health, safety, and continued life of Benjamin Bynum, Jr.," that Mr. Bynum was not engaged in any criminal activity, and that the waiver of § 11-46-9(c) does not apply.[4] They conclude that in light of these allegations, it will be for the finder of fact "to determine whether or not the acts of the Municipal Defendants under the facts presented constituted `reckless disregard' for the safety of Bynum." Plaintiffs' argument ignores the fact that the issue of immunity under the MTCA is a question of law, which should be resolved at the earliest possible stage of litigation. Chapman v. City of Quitman, 954 So. 2d 468 (Miss. App.2007).[5]
The question is not, whether the complaint contains the phrase "reckless disregard," but whether, under Mississippi law, the facts as set forth in the complaint (which are assumed to be true) rise to the level of "reckless disregard." The court is of the opinion that they do not.
In Collins v. Tallahatchie County, 876 So. 2d 284 (Miss.2004), the plaintiff sued Tallahatchie County for injuries she sustained when she was shot by her husband, who had previously threatened her safety. She sought to hold the county liable based on the failure of its sheriff's deputies to arrest her husband when they had probable cause to make a warrantless arrest. In concluding that the exemption of § 11-46-9(1)(c) applied, the court observed that while the deputies' failure to arrest the plaintiffs husband may have constituted negligence, the plaintiff could not show that the deputies knew that they could have or were required to arrest plaintiff's husband, and thus their actions (or inaction) *637 did not rise to the level of "reckless disregard." Id. at 287.
In this case, plaintiffs suggest that defendants should have taken steps to prevent Mr. Bynum from committing suicide; but they have failed to identify the source of any such duty to intervene for his protection. As the law of Mississippi imposes no duty upon the City defendants to take action on Bynum's behalf, they cannot be said to have, acted in "reckless disregard" of his safety or well-being by failing to act in the manner desired by plaintiffs. Accordingly, the City's motion to dismiss plaintiffs' state law claims will be granted.
Turning to the individual defendants' motions to dismiss based on qualified immunity, the court observes that issues of qualified immunity are determined by a two-step analysis: First the court must determine whether a plaintiff has alleged the violation of a clearly established constitutional right under the current state of the law, and if the plaintiff has alleged such a constitutional violation, the court must decide whether the defendant's conduct was "objectively reasonable," measured by reference to the law as clearly established at the time of the challenged conduct. Al-Ra'id v. Ingle, 69 F.3d 28, 31 (5th Cir.1995) (citations omitted).
Plaintiff Terry Bynum, for himself and on behalf of Benjamin Bynum's wrongful death beneficiaries, has asserted what the parties evidently believe to be a due process claim against Williams, the coroner, and Steel, a firefighter, based on allegations that at Williams' direction, Steel (and others) placed Mr. Bynum's body in the back of a pickup truck with the carcasses of dead dogs.[6] In their motions, these defendants argue that these facts, as set out in the complaint, do not amount to the violation of a clearly established constitutional right.
Under the Fourteenth Amendment, government conduct which deprives "any person of life, liberty or property without due process of law" is forbidden. To establish a due process claim, plaintiff "must first identify a protected life, liberty or property interest and then prove that governmental action resulted in a deprivation of that interest." San Jacinto Say. & Loan v. Kacal, 928 F.2d 697, 700 (5th Cir.1991). To determine the existence of a protectable interest, the court must look to state law. Id. at 701 n. 4.
Plaintiffs take the position that Mississippi recognizes that a deceased's next of kin and relatives have a property interest, or quasi-property interest, in the remains of the deceased. In support of finding the existence of a protected property right in human remains under Mississippi law, plaintiffs cite a number of Mississippi statutes,[7] and case law from Mississippi and other jurisdictions. For *638 example, plaintiffs cite Arnold v. Spears, 217 Miss. 209, 63 So. 2d 850 (1953), and Hamilton v. Chaffin, 506 F.2d 904 (1975), in support of their contention that Mississippi law "creates a constitutionally cognizable property interest in the remains of a deceased." In Arnold, the Mississippi Supreme Court recognized that, although a decedent's remains are not "property" in a commercial sense, his survivors have the right to possession for burial and one unlawfully interfering with this right may be liable for damages. Arnold, 217 Miss. at 217, 63 So. 2d 850. Over twenty years later, in Hamilton v. Chaffin, 506 F.2d 904, 911 (5th Cir.1975), the Fifth Circuit, citing Arnold, noted in dicta that a county attorney and physician who performed an autopsy without authorization "may be mulcted in damages for their illegal actions."
For their part, Williams and Steel do not deny that Mississippi law recognizes a property interest or quasi-property interest in the remains of a decedent, but they argue, and correctly so, that the right implicit in the statutes and cases is the right to custody or possession of the body for burial. Here, plaintiffs do not complain that Mr. Bynum's body was illegally removed from his residence after the fire, or that an unlawful autopsy was performed or, even that his remains were not returned to them for burial in the same condition in which they were found after the fire. Instead, the crux of their claim is that Williams, by directing that Mr. Bynum's body be placed in the truck with the dogs, and Steel, by placing the body in the truck with the dogs' carcasses, violated their right to have the remains of their loved one treated in a respectful manner. Contrary to plaintiffs' insistence otherwise, the authorities they cite do not go so far as to recognize the right to have a decedent's remains treated in a "dignified and appropriate manner." Instead, the right is limited to a possessory interest for burial. As plaintiffs have failed to demonstrate the existence of a clearly established right, Williams and Steel are entitled to qualified immunity. Accordingly, the individual defendants' motions to dismiss will be granted.
Based on the foregoing, it is ordered that the motions of Bobby Williams and Lane Steel to dismiss based on qualified immunity are granted. It is further ordered that the City's motion to dismiss is granted in all respects, save as to plaintiffs' "class of one" equal protection claim and any failure to train claim based thereon.
SO ORDERED.
NOTES
[1] The officers apparently did not take Mr. Bynum to jail, or even to the police station. Rather, it appears from the complaint that the officers simply took Mr. Bynum home. In DeShaney, the Supreme Court defined custody as "the State's affirmative act of restraining the individual's freedom to act on his own behalf. . . ." 489 U.S. at 200, 109 S.Ct. at 1005. To transport a person from one location to another is not necessarily to take that person into custody. Whether it is or not depends on the circumstances. The court, however, will assume for purposes of discussion that Mr. Bynum was in police custody up until the time he was left at his home.
[2] Indeed, defendants so argue and plaintiff has not contended otherwise.
[3] The issue at this stage of the proceedings is only whether plaintiffs have stated a claim, not whether they ultimately will succeed in proving their allegation of unequal treatment.
[4] As plaintiffs note, the complaint contains the following recitations:
Such acts of Defendants were committed under color of law and under each individual's authority as an officer, agent, or employee of the City of Magee, Mississippi, and were reckless, malicious, intentional, and committed with deliberate indifference and reckless indifference to the health, safety, and continued life of Benjamin Bynum, Jr.
Pursuant to § 11-46-9, Defendants herein have waived immunity from suit for the claims set forth herein, as Defendants acted in reckless disregard for the safety and well-being of Benjamin Bynum, Jr., who was not engaged in criminal activity at the time of injury. As such, Defendants are liable to Plaintiffs as set forth herein.
At all material times, Defendants herein acted in and with reckless disregard of the safety and well-being of Benjamin Bynum, Jr. and Plaintiffs.
[5] The court notes, moreover, that under the MTCA, the court is the fact finder. See Miss. Code Ann. § 11-46-13(1) ("The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter.").
[6] According to plaintiffs, "[t]he gist of [their] claim against Williams-and Defendant Steel-is that such defendants, by and through their acts, deprived Plaintiff[s] of procedural due process rights with respect to Plaintiff's property rights, and those of the wrongful death beneficiaries, with respect to the remains of Bynum."
[7] See Miss.Code Ann. § 41-37-25 (authorizing" a deceased's next of kin to authorize autopsy); Miss.Code Ann. § 41-39-1 (prior to expiration of forty-eight hours, dead fetus may not be disposed of without written consent of the mother or her spouse); Miss.Code Ann. § 41-39-9 (organ donation statute which purports to recognize right of heirs of deceased under general law to claim the body of the deceased); Miss.Code Ann. § 41-39-35 (in cases where directions to the contrary have not been given, a decedent's relatives, in prescribed order of priority, may donate part or all of a decedent's body for the purposes set forth in §§ 41-39-31 and 51). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918573/ | 101 B.R. 588 (1989)
In re VICTOR FOODS, INC., Victor Orlowski, d/b/a Victor Foods, Inc., and as Statutory Trustee of Victor Foods, Inc., Sharon Orlowski, d/b/a Victor Foods, Inc., and as Statutory Trustee of Victor Foods, Inc., and Bruce Nangle, as Statutory Trustee of Victor Foods, Inc., Debtor.
Bankruptcy No. 89-00386-BKC-JJB.
United States Bankruptcy Court, E.D. Missouri, E.D.
July 13, 1989.
Robert J. Blackwell, Operating Trustee, Clayton, Mo.
Mark A. Bertsch, Clayton, Mo., for Operating Trustee.
Canice Timothy Rice, Jr., Stephen J. Nangle, St. Louis, Mo., for debtor.
Jan Bond, St. Louis, Mo., for United Food and Commercial Workers Union Local 655.
Norman W. Pressman, St. Louis, Mo., for Crown Packaging Corp. and Popkin & Stern.
Francis X. Buckley, Jr., St. Louis, Mo., for Cross Roads Economic Development Corp. of St. Charles, Inc.
Frederick J. Dana, Asst. U.S. Atty., St. Louis, Mo.
Robert Mass, St. Louis, Mo., for original petitioning creditors.
William Moench, John H. Goffstein, St. Louis, Mo., for Union Welfare Fund.
Vincent D. Vogler, S. Paige Canfield, St. Louis, Mo., for Ryder Transp. et al.
ORDER
JAMES J. BARTA, Chief Judge.
The expedited hearing upon the motion of the Chapter 11 Debtor to remove the Trustee was called on April 3, 1989. The Debtor appeared by co-counsel, Canice Timothy Rice, Jr., and Stephen J. Nangle, and presented oral argument upon the record. The following entities appeared by counsel and announced their opposition to the Debtor's motion: Mark A. Bertsch, Attorney for the Operating Trustee, Robert J. Blackwell; Norman W. Pressman, Attorney for Creditors Crown Packaging Corporation and Popkin & Stern; Vincent D. Vogler, Attorney *589 for Ryder Service, Inc., United Fruit & Produce, and Hartford Accident and Indemnity Company; Jan Bond, Attorney for United Food and Commercial Workers Union Local 655; Francis X. Buckley, Jr., Attorney for Crossroads Economic Development Corporation of St. Charles, Inc.; Robert Mass, Attorney for John V. Cusumano and for Baird, Kurtz and Dobson and for The Wisbrock Corporation, the original Petitioning Creditors; and William Moench, Attorney for the Union Welfare Fund.
Upon consideration of the record as a whole, the Court announced certain findings and conclusions from the bench which are set out herein. This case was commenced on January 27, 1989, by the filing of an Involuntary Petition requesting the entry of an Order for Relief under Chapter 7 of Title 11 of the United States Code. The Alleged Debtor was identified as Victor Foods, Inc., a Missouri Corporation. On February 27, 1989, the Alleged Debtor/Corporation filed a Motion to Dismiss the Involuntary Petition, and a Request for Additional Time to Plead or Respond. On the same date, the Petitioning Creditors filed an Amended Involuntary Petition, naming as Alleged Debtors: Victor Foods, Inc.; and Victor Orlowski, d/b/a Victor Foods, Inc., and as Statutory Trustee of Victor Foods, Inc.; and Sharon Orlowski, d/b/a Victor Foods, Inc., and as Statutory Trustee of Victor Foods, Inc.; and Bruce Nangle, as Statutory Trustee of Victor Foods, Inc. On the same date, the United Food and Commercial Workers Union Local 655 filed a memorandum joining in the Amended Involuntary Petition as a Petitioning Creditor.
Also on February 27, 1989, the Court conducted a hearing on the motion of the Local 655 to appoint an Interim Trustee and a concurrent request for injunctive relief. After considering the arguments of counsel for the Movant and for the Alleged Debtor, the Court granted the request for injunctive relief in part and continued the hearing on the motion to appoint an Interim Trustee and for other relief to March 8, 1989.
After a full hearing on March 8, 1989, the Court entered an Order directing that the United States Trustee name a person to serve as Interim Trustee in this case. At the time of the appointment of the Interim Trustee, the Involuntary Petition had not been ruled upon, an order for relief had not been entered, and in fact, the Alleged Debtor had been granted additional time to file an answer or response to the Amended Involuntary Petition.
On March 21, 1989, the Alleged Debtor, Victor Foods, Inc., filed a "Motion to Convert to Chapter 11". An Order for Relief under Chapter 11 was subsequently entered as of March 21, 1989. Neither the Alleged Debtor's "Motion to Convert to Chapter 11", nor the Order for Relief referred to a termination of the appointment of the Interim Trustee. However, on March 24, 1989, upon the oral request of the Interim Trustee, an Order was entered specifically stating that the Order appointing the Interim Trustee had continued in the Chapter 11 case. Thereafter, on March 30, 1989, the Debtor filed a motion to remove the trustee, and an expedited hearing on notice was set for April 3, 1989.
The Debtor has argued that the Trustee's appointment was terminated upon the entry of the Order for Relief, pursuant to 11 U.S.C. § 348(e).[1] However, Section 348 applies to a conversion of a case from a case under one chapter to a case under another chapter. See Section 348(a). A voluntary case under a Chapter of the Bankruptcy Code is commenced by the filing of a petition under such chapter by an entity that may be a debtor under such chapter. See, 11 U.S.C. § 301. The voluntary case in the instant matter was commenced on March 21, 1989, when Victor Foods, Inc., presented a motion for the entry of an order for relief under Chapter 11. Prior to the filing of this motion, no order for relief had been entered with respect to Victor Foods, Inc., and no voluntary *590 case had been commenced. Therefore, the operative provisions of Section 348 did not apply because this case was not converted from a case under any chapter of Title 11. See, In re Alpine Lumber and Nursery, 13 B.R. 977 (Bankr.S.D.Cal.1981); In re Technical Fabricators, Inc., 65 B.R. 197 (S.D.Ala.1986); In re Cloverleaf Properties, 78 B.R. 242 (Bankr. 9th Cir.1987); In re Mason, 709 F.2d 1313 (9th Cir.1983); In re Scychelles, Bankr.L.Rep. ¶ 69, 229 (Bankr.N.D.Tex.1983).
IT IS ORDERED that the Debtor's motion to remove the Operating Trustee is denied; and that Robert J. Blackwell is to continue in the Chapter 11 Reorganization case as the Operating Trustee; and
That the Debtor's oral motion for a rehearing is denied.
NOTES
[1] 11 U.S.C. § 348(e) states as follows:
Conversion of a case under section 706, 1112, 1307, or 1208 of this title terminates the service of any trustee or examiner that is serving in the case before such conversion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583214/ | 31 So.3d 188 (2010)
DAWKINS
v.
STATE.
No. 5D09-2070.
District Court of Appeal of Florida, Fifth District.
March 23, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583223/ | 31 So.3d 185 (2010)
JASCO CONST. CO.
v.
J & K MECHANICAL, LLC.
No. 3D10-145.
District Court of Appeal of Florida, Third District.
April 15, 2010.
Decision Without Published Opinion Vol. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543360/ | 53 So.3d 1034 (2011)
DANIELS
v.
STATE.
No. 2D10-2688.
District Court of Appeal of Florida, Second District.
January 26, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/795948/ | 468 F.3d 230
Ajmal JAHED, Petitioner-Appellant,v.Neil ACRI, Acting Field Office Director for Detention and Removal Operations, Respondent-Appellee.
No. 05-6489.
United States Court of Appeals, Fourth Circuit.
Argued September 19, 2006.
Decided November 13, 2006.
ARGUED: Ronald Darwin Richey, Rockville, Maryland, for Appellant. Ernesto Horacio Molina, II, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, George M. Kelley, III, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia; Peter D. Keisler, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Appellee.
Before WILLIAMS and KING, Circuit Judges, and JAMES C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Dismissed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge KING and Judge DEVER joined.
OPINION
WILLIAMS, Circuit Judge.
1
In this appeal from a final order of removal, we must determine whether the Board of Immigration Appeals (BIA) erred in rejecting Petitioner Ajmal Jahed's claim of United States citizenship. Jahed, a native of Afghanistan, contends that he attained derivative citizenship pursuant to 8 U.S.C. § 1432(a) after his parents' 1991 Pakistani divorce and upon his father's 1995 naturalization. Jahed, however, has failed to demonstrate that his parents were legally separated for purposes of United States immigration law. Because this failure is fatal to Jahed's claim of citizenship, we have no jurisdiction to review the BIA's final order of removal, and accordingly we dismiss the petition for review.
I.
2
Jahed was born in Afghanistan on May 7, 1979. His parents, Mohammed Zia Jahed and Aiesha Jahed, are both natives of Afghanistan. They married on June 15, 1955, and have six children. In 1984, fearing Communist forces in Afghanistan, Mohammed and his family fled to Pakistan, where they applied for refugee status at the United States embassy. The family then moved to the United States and received an adjusted status as aliens admitted for lawful permanent residence.
3
In December 1991, Mohammed and Aiesha went to Pakistan to choose a wife for one of their sons (not Jahed), and they had a disagreement over the choice of the wife. Because of this disagreement and Aiesha's lack of obedience, Mohammed decided to divorce his wife at a refugee camp called Pubi. There, the divorce took place in accordance with Islamic law and was entered by an Imam, Mohamed Jan Afzali. Also in accordance with Islamic law, Mohammed was given custody of Jahed. On May 18, 1995, before Jahed's eighteenth birthday, Mohammed became a naturalized United States citizen.
4
In February 2001, Jahed was convicted in a Virginia court of two counts of carnal knowledge of a minor, in violation of Code of Virginia § 18.2-63. On September 3, 2003, the Immigration and Naturalization Service (INS)1 commenced removal proceedings by issuing a Notice to Appear against Jahed. The Notice to Appear charged Jahed with being an alien removable from the United States based on his underlying conviction, which constituted an aggravated felony. See 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 2005 & Supp. 2006) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). Jahed denied that he was an alien, claiming that he had acquired derivative citizenship in 1995 when his father became a naturalized citizen. Jahed also requested asylum, withholding of removal, and protection under the Convention Against Torture (the Convention).
5
The Immigration Judge (IJ) determined that Jahed was not a citizen of the United States but instead only a citizen of Afghanistan. The IJ based this ruling on his conclusion that Jahed's parents' Islamic divorce was not valid for purposes of United States immigration law, and thus, Jahed could not automatically acquire derivative citizenship. The IJ also concluded that Jahed was not eligible for asylum or withholding of removal because he was "convicted . . . of a particularly serious crime." 8 U.S.C.A. § 1158(b)(2)(A)(ii) (West 2005 & Supp.2006). Finally, the IJ granted Jahed's application for deferral of removal under the Convention, finding that Jahed likely would be tortured upon return to Afghanistan because he was a Muslim who converted to Christianity.
6
Jahed appealed, and on July 16, 2004, the BIA remanded the case to the IJ because the hearing tape was defective. On September 21, 2004, after a new hearing, the IJ entered an effectively identical order, denying Jahed's claims of citizenship, asylum, and withholding of removal, but granting Jahed's application for deferral of removal under the Convention. In resolving the citizenship claim, the IJ found that "under U.S. law and for [i]mmigration purposes, there was no legal separation under U.S. law of [Jahed's] parents, and therefore, [Jahed] did not obtain derivative citizenship." (J.A. at 488.) The BIA affirmed the IJ's decision on June 20, 2005, denying both Jahed's appeal and the Government's cross-appeal.
7
While Jahed's legal battle was ongoing in the immigration courts, on May 24, 2004, he also filed a 28 U.S.C. § 2241 habeas petition in the Eastern District of Virginia with respect to his continued detention awaiting removal. On March 3, 2005, the district court dismissed Jahed's petition for failure to exhaust administrative remedies, i.e., because the immigration courts had yet to reach a final decision on Jahed's numerous appeals.2
8
On March 25, 2005, Jahed filed a petition for review in this Court of the district court's habeas dismissal. This petition for review was filed prior to the BIA's final decision entered on June 20, 2005. To complicate matters further, Congress enacted the REAL ID Act that same summer. See REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 231. The REAL ID Act eliminated access to habeas corpus for purposes of challenging a removal order. 8 U.S.C.A. § 1252(a)(5). In doing so, it instructed that all such challenges should proceed directly to the Courts of Appeals as petitions for review. See Francois v. Gonzales, 448 F.3d 645, 647 (3d Cir.2006). Accordingly, we converted Jahed's appeal of the district court's habeas dismissal to a petition of review of the BIA's final order of removal.
II.
9
Although 8 U.S.C.A. § 1252(a)(2)(C) (West 2005 & Supp.2006) states that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense . . .," we retain jurisdiction to determine jurisdiction. See Argaw v. Ashcroft, 395 F.3d 521, 523 (4th Cir.2005) ("We have jurisdiction, however, to determine whether the facts that would deprive us of jurisdiction are present."). In other words, we have jurisdiction to determine whether Jahed is an alien, which would deprive us of further jurisdiction, or a national, which would free Jahed's petition for review from the constraints of § 1252(a)(2)(C).
10
Congress has detailed how we must review Jahed's nationality claim. If we find "from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, [we] shall decide the nationality claim." 8 U.S.C.A. § 1252(b)(5)(A) (West 2005 & Supp.2006). If, however, we find that genuine issues of material fact do exist, we must "transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim." 8 U.S.C.A. § 1252(b)(5)(B). In making de novo review by the district court hinge on the existence of genuine issues of material fact, "Congress intended the language to be interpreted similarly to that in [Federal Rule of Civil Procedure] 56." Agosto v. INS, 436 U.S. 748, 754, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978).
11
Because both parties (for the purposes of this petition) admit that (1) Jahed is an Afghani national born in Afghanistan, (2) Jahed's parents (while domiciled in Virginia) were divorced in Pakistan in accordance with Islamic law, (3) Jahed's father was given custody of Jahed pursuant to that divorce, and (4) after the Islamic divorce, but before Jahed turned eighteen, Jahed's father became a nationalized United States citizen, no genuine issues of material fact remain. We therefore conclude that the record here is sufficiently clear so that we can decide Jahed's nationality claim without transferring the proceeding to the district court.
III.
12
There are "two sources of citizenship, and two only: birth and naturalization." United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 42 L.Ed. 890 (1898). It is within Congress's enumerated powers "[t]o establish an uniform Rule of Naturalization." U.S. Const. art. I, § 8, cl. 4. Congress has "exclusive constitutional power" over nationalization, and therefore citizenship may be conferred upon foreign-born persons only by act of Congress. INS v. Pangilinan, 486 U.S. 875, 882, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988).
13
Jahed claims that he acquired derivative citizenship via 8 U.S.C. § 1432(a), repealed by Pub.L. 106-395, § 104, which provided,3 inter alia, that a child born outside of the United States of alien parents would become "a citizen of the United States upon fulfillment of the following conditions:"
14
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
15
(4) Such naturalization takes place while such child is under the age of eighteen years; and
16
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of . . . the parent naturalized under clause . . . (3) of this subsection. . . .
17
8 U.S.C. § 1432(a).
18
The sole question before us is a legal one: whether Jahed acquired derivative citizenship upon his father's naturalization in 1995. Jahed contends that he became a citizen at that point because his parents were legally divorced in Pakistan in 1991, his father was granted custody of Jahed at that time, and the divorce and grant of custody should be recognized as a matter of comity. The Government, on the other hand, argues that the divorce and custody grant is not valid for the purposes of § 1432(a) because his parents were not domiciled in Pakistan at the time of their divorce. We agree in principle with the Government's argument.
19
"The general rule is that a [foreign] decree of divorce valid where rendered4 is valid everywhere and will be recognized . . . under the principle of comity, provided that recognition would not contravene public policy." Matter of Luna, 18 I. & N. Dec. 385, 386 (BIA 1983) (footnote added). But the "foreign court must have jurisdiction to render a valid decree, . . . and a divorce obtained in a foreign country will not normally be recognized as valid if neither of the spouses had a domicile in that country . . . ." Id.
20
As an initial matter, we must decide which jurisdiction's law governs to determine whether that jurisdiction would recognize the Pakistani divorce as a matter of comity. Ordinarily, in the immigration context, the validity of a prior divorce is addressed to determine whether a subsequent marriage is lawful. See, e.g., Matter of Hosseinian, 19 I. & N. Dec. 453 (BIA 1987). In such situations, the BIA "look[s] to the law of the state where the subsequent marriage was celebrated to determine whether or not that state would recognize the validity of the divorce." Id. at 455. "In this case, however, there is no subsequent marriage. Consequently we must decide whether . . . the divorce in question should be recognized on the basis of comity without any [single] state's law as a reference point." Matter of Ma, 15 I. & N. Dec. 70, 71 (1974); see also Afeta v. Gonzales, 467 F.3d 402 (4th Cir.2006) (applying uniform federal law to question of whether there has been a "legal separation" under § 1432(a)).
21
In Matter of Ma, the BIA decided the validity of a Korean divorce of two Korean citizens who were not domiciled in Korea. Matter of Ma, 15 I. & N. Dec. at 71-72. The BIA found that although the divorce was valid where rendered, it was nonetheless "invalid in the United States for purposes of the immigration law." Id. at 72. The court considered the following factors in reaching that conclusion: (1) whether the parties were divorced in the same jurisdiction in which they were married; (2) whether they lived in the divorcing jurisdiction as husband and wife; (3) whether they were present in the jurisdiction at the time of the divorce or otherwise consented to personal jurisdiction; and (4) whether they were citizens of the country granting the divorce. Id. The BIA found that both parties were married and divorced in Korea, were citizens of Korea, and consented to the Korean divorce. Nonetheless, the BIA found the divorce invalid because they were "never domiciled together as husband and wife in Korea." Id.
22
This analysis dooms Jahed's claim. Jahed's parents were married in Afghanistan, but divorced in Pakistan. Although they both consented to the divorce in Pakistan and were physically present for the divorce, they were not citizens of Pakistan at the time, or at any time before or thereafter. And most important, Jahed's parents never established domicile in Pakistan. See Matter of Luna, 18 I. & N. Dec. at 386 ("The domicile of the parties has long been recognized as the primary, if not the exclusive, basis for the judicial power to grant a divorce."); see also Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945) ("Under our system of law, judicial power to grant a divorce—jurisdiction, strictly speaking—is founded on domicil[e].").
23
As a general matter, a domicile is understood to be "a person's true, fixed, principal and permanent home." Black's Law Dictionary 523 (8th ed.2004). "Domicil[e] implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance." Williams, 325 U.S. at 229, 65 S.Ct. 1092. To change domiciles, a person must intend to make the new place her home. See, e.g., Ecker v. Atl. Ref. Co., 222 F.2d 618, 621 (4th Cir.1955) ("For the establishment of domicile the intention must be not merely to live in the place but to make a home there." (internal quotation marks omitted)).
24
Although Jahed's parents traveled to Pakistan before coming to the United States in 1984, they did so for the purposes of fleeing the war in Afghanistan and requesting asylum at the United States embassy. And although they again traveled to Pakistan in 1991, they did so for the purpose of finding a wife for their son. They never traveled to Pakistan with any intent to make a home and remain there permanently. Rather, they traveled to Pakistan to undertake specific purposes, and Pakistan was therefore—for purposes of United States law—powerless to enter a divorce over the two Afghan nationals who were domiciled in the Commonwealth of Virginia. In short, their Pakistani divorce was "utterly lacking in extraterritorial validity." Harrison v. Harrison, 214 F.2d 571, 573 (4th Cir.1954) (finding a Mexican divorce decree invalid because, inter alia, domicile was never established in Mexico).
25
In fact, the evidence suggests that even Jahed's parents did not view their Islamic divorce as a legal, civil divorce for purposes of United States immigration law. For example, in Jahed's father's 1995 citizenship application, both Jahed's mother and father claimed to be married and living together in 1995. Jahed's mother was naturalized in 2000, and in her May 27, 2000, interview with the INS, she stated that she was still married and living at the same address as the father. As late as 2000, then, the religious divorce that occurred in Pakistan in 1991 did not affect Jahed's parents' views of their marriage for purposes of United States immigration law.
26
In sum, neither of Jahed's parents were domiciled in Pakistan at the time of the divorce or prior to the divorce. Moreover, his parents were neither Pakistani citizens nor married in Pakistan. Therefore, for purposes of United States immigration law,5 their Pakistani divorce was not valid and cannot be used to show that Jahed's parents were legally separated pursuant to § 1432(a).
IV.
27
For the foregoing reasons, Jahed cannot show that his parents were legally separated for purposes of § 1432(a) at the time of his father's naturalization. Because Jahed cannot make this showing, we need not, and do not, decide whether the Pakistani award of custody was sufficient for purposes of the statute. Finally, because we determine that Jahed is an alien and there is no dispute over his prior conviction, we have no jurisdiction to review the BIA's final order of removal. See 8 U.S.C.A. § 1252(a)(2)(C); Soliman v. Gonzales, 419 F.3d 276, 280 (4th Cir.2005) (holding that we must dismiss a petition for review of a person who is removable by reason of having committed a criminal offense if we conclude that the petitioner is (1) an alien and (2) has been convicted of an aggravated felony). Jahed's petition for review is therefore dismissed.
28
DISMISSED.
Notes:
1
The INS has since been consumed and reorganized under the Department of Homeland SecuritySee Homeland Security Act of 2002, Pub.L. No. 107-296, § 441, 116 Stat. 2135, 2192.
2
Jahed had a habit of appealing multiple orders against him, regardless of the orders' finality. He sometimes attempted to appeal to the BIA and this Court at the same time. For example, we twice dismissed earlier appeals and petitions by Jahed on July 15, 2004, No. 04-1366, and March 3, 2005, No. 04-2440,cert. denied, ___ U.S. ___, 126 S.Ct. 197, 163 L.Ed.2d 207 (2005).
3
8 U.S.C. § 1432(a) has since been repealed by Act of Congress and replaced with 8 U.S.C.A. § 1431 (West 2005 & Supp.2006), which, inter alia, grants derivative citizenship on a child upon the naturalization of one parent so long as the child resides in physical and legal custody of that parent. Jahed makes no argument that § 1431 is retroactive and applies to this case, and even if he did, such argument would fail because "[a]t all relevant times [—Jahed's birth, the family's move to the United States, his father's divorce, his father's naturalization, and his eighteenth birthday—] former § 1432(a) was in effect."Bagot v. Ashcroft, 398 F.3d 252, 257 n. 3 (3d Cir.2005).
4
We assume, without deciding, that Pakistani law would treat an Islamic divorce between two parties domiciled in Virginia as valid in Pakistan
5
We note that even if we were to apply Virginia law, as the place of domicile, as opposed to uniform federal law, Jahed's claim would still failSee, e.g., Corvin v. Commonwealth, 131 Va. 649, 108 S.E. 651, 653 (1921) (holding that when a person travels to a foreign jurisdiction without a determination to make the jurisdiction her legal domicile and obtains a divorce in that jurisdiction, the divorce is void); Furman v. Furman, 3 Va. Cir. 82, 82, 1983 Va. Cir. LEXIS 97, at *1 (Va. Cir. Feb.9, 1983) (holding that a foreign divorce will not be recognized as a matter of comity in Virginia unless at least one of the spouses was a domiciliary in that country at the time the divorce was granted). | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1918576/ | 101 B.R. 405 (1989)
In re GIBSON & CUSHMAN DREDGING CORP. (Two Cases).
Nos. CV 88-3613, CV 89-0740.
United States District Court, E.D. New York.
June 16, 1989.
*406 Harvis & Zeichner, New York City, for debtor.
Phillip R. Mann, New York City, for Creditors' Committee.
Robert Herzog, New York City, for claimant DiIorio.
John Esposito, Garden City, N.Y., trustee.
MEMORANDUM AND ORDER
WEXLER, District Judge.
In the above-referenced cases the creditors' committee appeals orders of the United States Bankruptcy Court for the Eastern District of New York (Goetz, J.) extending the time period in which the debtor Gibson & Cushman Dredging Corp. ("Gibson" or the "Debtor") enjoys the exclusive right to file a plan of reorganization (the "exclusivity period"). Arguing that the orders appealed from are either non-final or non-appealable interlocutory orders, the Debtor challenges this Court's jurisdiction to decide these appeals. In the event that this Court reaches the merits of the appeals, the Debtor argues in favor of affirmance. Because these cases are addressed to the same issue, the Court will consolidate the cases. Since the time period referred to in the case filed under docket number CV 88-3613 has expired, the Court will, for practical reasons, consider only the extension granted in the case filed under docket number CV 89-0740. Accordingly, for the balance of this opinion, the Court will refer to the orders appealed from in the singular.
For the reasons set forth below, the Court holds that in the ordinary case a decision extending the exclusivity period is not a final appealable order within the meaning of 28 U.S.C. § 158. Where, as here, however, the Bankruptcy Court has granted successive motions that have the effect of extending the period in which the Debtor may file a plan to over one and one half years after the filing of the petition, the Court holds that a review of the merits of the appeal is warranted. Considering the merits, the Court denies the appeal. The Court notes, however, that infinite extensions of the exclusivity period are not envisioned by the Bankruptcy Code and, absent a showing of substantial progress on the Debtor's part, are not likely to be affirmed by this Court in the future.
I. Background: Proceedings in the Bankruptcy Court
A. The Filing of the Petition and Assertion of Claims
On February 26, 1988 Gibson filed a voluntary petition in bankruptcy under Chapter 11. The record reveals that the filing of the petition was prompted by Gibson's desire to maintain its business while challenging the validity of a $2.5 million dollar state tort judgment rendered against the Debtor in favor of Joseph P. DiIorio (the "DiIorio Judgment"). According to Gibson, the DiIorio Judgment will likely be *407 reversed by the state appellate court because, inter alia, it was fraudulently obtained.
In addition to the DiIorio Judgment, two major claims have been noticed against the Debtor's estate. One claim alleges breach of contract and seeks approximately $600,000 in damages. The final major claim seeks to hold Gibson liable in the amount of two million dollars for personal injuries allegedly suffered by a plaintiff other than DiIorio. Gibson has noted its objection to each of the claims and, to date, no final decision has been reached as to the merits of any of the claims.
B. Rulings as to the Exclusivity Period
11 U.S.C. § 1121 ("Section 1121") sets forth the identity of the parties who are permitted to file a plan of reorganization. Although the statute extends the right to file a plan to any "party in interest," the debtor is given the exclusive right to file a plan within 120 days of the filing of the petition. See 11 U.S.C. § 1121(b). The debtor is then granted 180 days in which to obtain acceptance of the plan. The 120 and 180 day periods run concurrently.
As noted above, the time period referred to in Section 1121 is referred to as the debtor's "period of exclusivity." Section 1121 grants the Bankruptcy Court discretion, upon the request of a party in interest and a finding of "cause," to reduce or increase the debtor's period of exclusivity. 11 U.S.C. § 1121(d).
Here, upon the request of the Debtor, the Bankruptcy Court extended Gibson's period of exclusivity on three separate occasions. Although the Bankruptcy Court denied Gibson's request for an extension of the exclusivity period to sixty days following the state court's determination of the DiIorio appeal, limited extensions have been granted. The last appealed ruling of the Bankruptcy Court, as reflected in the case filed under docket number CV 89-0740, extends the debtor's opportunity to file a plan to and including September 12, 1989 and extends the period for acceptance of the plan to and including December 12, 1989. Thus, the Bankruptcy Court has extended the Debtor's exclusivity period to a date that is more than one and one half years after the filing of the petition.
II. Appealability
As a threshold matter, this Court must decide whether jurisdiction exists to decide the pending appeal. Pursuant to 28 U.S.C. § 158(a) this Court has jurisdiction to hear appeals from decisions of bankruptcy courts. While leave of Court is not required where the order appealed from is final, such leave is necessary if the order appealed from is interlocutory. 28 U.S.C. § 158(a). Although the creditors' committee has characterized this case as an appeal from a final order of the bankruptcy court, that characterization has been challenged by the Debtor. Thus, this Court's initial inquiry must be aimed at determining whether the order appealed from is final or interlocutory.
In the realm of bankruptcy law, the term "final order or judgment" is given a somewhat more expansive interpretation than in the ordinary civil case. See Bowers v. Connecticut National Bank, 847 F.2d 1019, 1022 (2d Cir.1988); In re Leibinger-Roberts, Inc., 92 B.R. 570, 572 (E.D.N.Y. 1988). While a final order in the ordinary case is characterized as an order that "ends the litigation and leaves nothing for the court to do but execute the judgment," Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945), a final order in a bankruptcy case is one that finally resolves a "particular proceeding or controversy within the entire bankruptcy proceeding," In re Chateaugay, 80 B.R. 279, 282-83 (S.D.N.Y.1987), or an order that "conclusively determines a separable dispute over a creditor's claim or priority." In re Beker Industries Corp., 89 B.R. 336, 340 (S.D.N.Y.1988) (quoting In re Johns-Manville Corp., 824 F.2d 176, 179 (2d Cir. 1987)); see also Maiorino v. Branford Savings Bank, 691 F.2d 89, 93 (2d Cir.1982) (single bankruptcy may involve several "final" decisions).
In the leading case discussing finality, the court held as final an order determining *408 a claim's entitlement to priority because such an order "conclusively determines a separable dispute over a creditor's claim or priority". See In re Saco Local Development Corp., 711 F.2d 441, 445-46 (1st Cir. 1983) (hereinafter "Saco"). Applying this same standard, other courts have characterized as final an order selling the property of an estate, see In re Exennium, Inc., 715 F.2d 1401, 1402-03 (9th Cir.1983), an order disallowing a homestead exemption, see In re White, 727 F.2d 884, 885-86 (9th Cir.1984) and an order denying reclaimation on the grounds that the party had no interest in the property, see In re Bestmann, 720 F.2d 484, 485-86 (8th Cir.1983).
On the other hand, courts have held as non-final orders that, in the court's view, do not resolve a particular dispute within the overall bankruptcy estate. Applying the same standard referred to in Saco it has, for example, been held that an order that denies a request to appoint an official committee for shareholders is not a final order. See In re Johns-Manville Corp., 824 F.2d 176, 179-80 (2d Cir.1987).
A relaxed finality rule is applied in bankruptcy cases because it is believed that application of a strict finality concept would seriously delay the adjudication of individual claims without advancing the final resolution of the entire bankruptcy proceeding. In re Johns-Manville Corp., 824 F.2d at 180. Thus, it has been held that an order that does not directly affect the disposition of an estate's assets and neither determines the outcome of the proceeding nor irrevocably decides a dispositive issue of law or the rights of any party is not a final order. In re Leibinger-Roberts, Inc., 92 B.R. 570, 572-73 (E.D.N.Y.1988).
Applying these principles here leads the Court to conclude that an initial order extending the exclusivity period is not a final order that is appealable as of right. The order merely extends the time in which the debtor may file a plan. It does not accept the plan nor foreclose the right of any party to contest that plan. Thus, such an order does not finally dispose of an estate's assets nor does it finally and irrevocably decide the rights of any party to the bankruptcy.
The Court recognizes that other District Courts, within and outside of this circuit, have decided appeals from orders ruling on changes in the exclusivity period. The Court notes, however, that the appealability question does not appear to have been presented to those courts. The Court further notes that the only other court to rule directly on this issue is in accord with the holding of this Court. See First American Bank of New York v. Century Glove, Inc., 64 B.R. 958 (D.Delaware 1986). There, the Court was faced with the question of whether a second extension of the exclusivity period constituted a final order. Finding, as this Court has, that such an order does not foreclose, but merely postpones, the creditor's right to propose a plan, the Court declined to hold that the order was final. Id. at 960.
Having held that the order appealed from is not a final order, this Court must decide whether leave should be granted to appeal. Procedurally, such an inquiry is appropriate because Rule 8003 of the Bankruptcy Rules allows this Court to treat the notice of appeal as a motion for leave to appeal. See Bankr.R. 8002(c).
When determining whether leave to appeal an interlocutory order should be granted the Court considers, by anology, the criteria set forth in 28 U.S.C. § 1292(b). See In re Johns-Manville Corp., 47 B.R. 957, 960-61 (S.D.N.Y.1985). Under that statute leave to appeal is properly granted when the order at issue "involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation. . . ." 28 U.S.C. § 1292(b).
Although the Court is aware that a contrary result was reached in a similar case, see First American Bank of New York, 64 B.R. at 966-68, the Court holds that it is appropriate, in this case, to reach the merits of the present appeal. The Bankruptcy Court has extended the Debtor's exclusivity period to more than one and one half *409 years after the filing of the petition. Although that Court has refused to sign an order extending the exclusivity period until the termination of the state court litigation against the Debtor, it appears that interim extensions may be granted that will have the same practical effect. In the meantime, a review of the record reveals that while progress has been made, the Debtor has not yet proposed a plan that is acceptable to the creditors. It thus appears to the Court that review of the exclusivity issue at a time when the bankruptcy proceeding is more than one and one half years old will not foster piecemeal litigation and may result in a speedier termination of the proceeding. Under these circumstances, and in light of the relaxed appealability standard that is applied in bankruptcy cases, the Court holds that review of the merits is appropriate.
III. The Merits
As noted above, Section 1121 allows the Bankruptcy Court to alter the exclusivity period where "cause" is shown. See 11 U.S.C. § 1121(d). The party seeking the change in the statutory time period bears the burden of establishing that the requisite cause exists. See In re Washington-St. Tammany Electric Cooperative, Inc., 97 B.R. 852, 854 (E.D.La.1989) (hereinafter "WST"); In re Texaco Inc., 76 B.R. 322, 326 (Bankr.S.D.N.Y.1987). The decision of whether or not to grant a request to extend or shorten the exclusivity period lies within the sound discretion of the Bankruptcy Judge. WST, 97 B.R. at 854; In re Sharon Steel Corp., 78 B.R. 762, 763 (Bankr.W.D.Pa.1987). Accordingly, an order altering the exclusivity period will not be set aside absent an abuse of discretion. WST, 97 B.R. at 854. In addition, the findings upon which the Bankruptcy Court's decision rest must be upheld unless found by this Court to be clearly erroneous. Bankruptcy Rule 8013; see 71 B.R. at 299; 10 B.R. at 342-43.
The "cause" standard referred to in Section 1121 has been referred to as a general standard that allows the Bankruptcy Court "maximum flexibility to suit various types of reorganization proceedings." In re Public Service Company of New Hampshire, 88 B.R. 521, 534 (Bankr.D.New Hampshire 1988). When determining whether cause exists, courts have been guided by the legislative history surrounding the enactment of Section 1121 and by a comparison of Section 1121 to prior practice under the bankruptcy law.
Referring to the House Report to the 1978 Bankruptcy Act (the "House Report"), Courts note that "cause" may be found if there is "an unusually large or unusually small case, delay by the debtor or recalcitrance among creditors." In re Perkins, 71 B.R. 294, 297 (W.D.Tenn.1987) (quoting House Report, H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 406 (1977), U.S. Code Cong. & Admin.News, 1978 pp. 5787, 6362. See also WST, 97 B.R. at 854. Courts have also relied on the Senate Report to the 1978 Bankruptcy Act, stating that a finding of cause should be premised upon "some promise of probable success" and an extension "should not be employed as a tactical device to put pressure on parties in interest to yield to a plan they consider unsatisfactory." S.Rep. No. 95-989, 95th Cong.2d Sess. 118 (1978), U.S. Code Cong. & Admin.News 1978 p. 5904. See also WST, 97 B.R. at 854; In re Texaco, 76 B.R. at 326; In re Perkins, 71 B.R. at 297.
Finally, a Court considering an alteration of the exclusivity period must consider the general reason for the enactment of Section 1121. Prior to the enactment of Section 1121 a debtor enjoyed the exclusive right to propose a plan of reorganization throughout the bankruptcy proceeding. Section 1121 was passed to place limits on the debtor's exclusive right to propose a plan and in recognition of the creditor's stake in the debtor's business. See WST, 97 B.R. at 855; In re Texaco, 76 B.R. at 325-26. Thus, the present Section 1121 seeks to cure the prior practice that gave debtors "undue barganining leverage" to delay and thereby "force a settlement out of otherwise unwilling creditors." WST, 97 B.R. at 855 (quoting House Report, U.S. Code Cong. & Admin.News 1978 p. 6191). Taking such considerations into account, it *410 has been held that courts considering extensions of the exclusivity period must "avoid reinstituting the imbalance between the debtors and its creditors that characterized proceedings" under prior law. In re Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363, 372 (5th Cir.1987) (en banc), aff'd, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); see also In re Southwest Oil Co. of Jourdanton, Inc., 84 B.R. 448, 450 (Bankr.W.D.Tex.1987) (hereinafter "Southwest Oil").
Although it has been held that the pendency of an appeal from an adverse judgment does not constitute cause for extending the exclusivity period, see In re American Federation of Television and Radio Artists, 30 B.R. 772, 774 (Bankr.S.D.N.Y. 1983) (hereinafter "AFTRA"), a pending appeal, along with the consideration of other factors, may lead to a finding of cause for extending the exclusivity period, see In re United Press Internat'l, Inc., 60 B.R. 265, 270 (Bankr.D.Colo.1986) (hereinafter "UPI"). For example, in UPI, the Court held that an extension of the exclusivity period was warranted where the debtor needed additional time to settle an "avalanche" of appeals and adversary proceedings. There, the extension was granted because, in addition to the appeals, the Court found that the debtor acted with diligence throughout the proceedings and proposed a plan within a year of filing the petition.
On the other hand, In re Lake in the Woods, 10 B.R. 338 (E.D.Mich.1981), presented a situation where the pendency of a dispute between the parties did not warrant an extension of the exclusivity period. There, the Bankruptcy Court extended the exclusivity period until the time when it would rule on a dispute between the debtor and creditor over title to a particular parcel of real estate. In the meantime, the debtor refused to file a plan of reorganization unless the creditor conceded to the debtor's position on the title issue. Finding that a debtor may not use extensions of the exclusivity period to delay reorganization, the District Court reversed the order of the Bankruptcy Court. Concluding, the District Court held that extensions of the exclusivity period are "impermissible if they are for the purpose of allowing the debtor to prolong reorganization while pressuring a creditor to accede to its point of view on an issue in dispute." In re Lake in the Woods, 10 B.R. at 345-46.
Where pending litigation is an issue Courts often consider the debtor's financial position. If the debtor's assets are likely to be depleted during the requested extension, it is unlikely that an extension will be granted. Thus, for example, in Southwest Oil, the Court declined to grant the debtor's request for an extension of the exclusivity period where the debtor's financial position deteriorated during the initial 120 day period and was likely to continue to deteriorate. Southwest Oil, 84 B.R. at 453. See also In re Ravenna Industries, Inc., 20 B.R. 886, 890 (Bankr.N.D.Ohio 1982) (ninth extension of exclusive period denied where debtor's cash position was deteriorating).
When the above-referenced principles are applied here, the Court concludes that the Bankruptcy Court did not err when granting extensions of the Debtor's exclusivity period. The Bankruptcy Judge issued a detailed opinion explaining, at length, her reasons for extending the time in which the Debtor could file a plan. That opinion explains the Debtor's proposed plans and its continued attempts to negotiate with the creditor's committee. The opinion describes the recalcitrance of the creditors and their intent to liquidate rather than negotiate with the debtor to agree upon an equitable plan of reorganization. In addition to noting the creditor's reluctance to negotiate, the Bankruptcy Court considered the Debtor's ability to carry on its business during the bankruptcy proceeding and noted that there was no danger of a dissipation of assets to the creditor's detriment. On the contrary, the Court noted that the debtor's assets were not only being preserved, but augmented.
The Bankruptcy Court's opinion was issued after a full hearing. The evidence adduced at that hearing amply supports the ultimate finding that the Debtor demonstrated *411 cause for extending the exclusivity period. This Court finds no error in that finding and holds that the purpose of Section 1121 has not been thwarted by the Bankruptcy Court's ruling. Section 1121 was enacted, as noted above, to create a balance between the debtor and creditors. The statutory intent is to give creditors a say in the future of a company in which they have a substantial financial interest. Under the circumstances present here and in view of the creditors' intent to liquidate, the Court holds that the extension granted by the Bankruptcy Court is not at odds with the purpose of Section 1121.
CONCLUSION
The cases filed under docket numbers CV 88-3613 and CV 89-0740 are ordered to be consolidated. The order extending the Debtor's exclusivity period is, in this case, appealable. Although the Court affirms the Bankruptcy Court's order the Court notes that the exclusivity period has been extended to one year and seven months after the date of the filing of the petition. Since this time period represents a significant departure from the statutory allotment, further extensions may not be appropriate. Although the Court expresses no opinion, at this time, as to the propriety of further extensions, the Court notes that any requests for further extensions will, in all probability, require a new hearing and a new set of findings. At this juncture, the Court rules only that the order of the Bankruptcy Court extending the Debtor's exclusivity period is affirmed.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918747/ | 730 So. 2d 777 (1999)
Kevin WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee.
No. 97-2457.
District Court of Appeal of Florida, Third District.
March 24, 1999.
Rehearing Denied May 5, 1999.
*778 Bennett H. Brummer, Public Defender, and Christina A. Spaulding, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Christine E. Zahralban, Assistant Attorney General, for appellee.
Before NESBITT, JORGENSON and SORONDO, JJ.
SORONDO, J.
Kevin Williams (defendant) appeals his conviction and sentence for the crime of second degree murder.
The defendant was charged with first degree murder and armed burglary in connection with the killing of Osvaldo "Eddie" Gonzalez. At trial he admitted that he shot and killed Mr. Gonzalez during a marijuana sale but maintained that he did so in self-defense. The state presented testimony at trial which suggested that the defendant killed Gonzalez because the latter refused to sell defendant a set of car rims.
During trial, the defendant testified and presented his claim of self-defense. Before the defendant testified, defense counsel advised the trial judge that he wished to ask defendant about the nature of his prior felonies. The state objected and the trial court sustained the objection and forbade any mention of the nature of the prior offenses. During direct examination, defense counsel asked defendant whether he had ever been convicted of a felony and, if so, how many times. The defendant responded that he had been convicted seven times. Defense counsel additionally asked whether he had gone to trial on any of his prior cases. The state again objected and again the trial judge sustained the objection.
The law is clear that the defendant should have been allowed to explain the nature of his prior convictions, and should have been allowed to tell the jury that he had not gone to trial in his previous cases in order to "`reduce the harmful consequences' by explaining something about the nature or character of the damaging informationin other words, to rehabilitate [himself] before he [was] impeached." Lawhorne v. State, 500 So. 2d 519, 521 (Fla.1986). See also Bell v. State, 491 So. 2d 537 (Fla.1986); Scurry v. State, 701 So. 2d 587 (Fla. 2d DCA 1997); Ziermann v. State, 696 So. 2d 491 (Fla. 4th DCA 1997). The Court in Lawhorne stated:
[W]hile the impeaching party may only inquire as to the existence of convictions and their number (or, if the matter be denied, may show the convictions by documentary evidence) the party presenting the testimony of the witness may delve into the nature or circumstances of the convictions for the purpose of rehabilitating the witness by attempting to diminish the effect of the disclosures.
500 So.2d at 522 (emphasis added).
In McArthur v. Cook, 99 So. 2d 565 (Fla. 1957), the plaintiff testified at trial. The defense questioned him about whether he had ever been convicted of a crime. The trial judge disallowed this question. On appeal, the Supreme Court held that the existence of a previous conviction of a witness was admissible. The Court also addressed the witness' right to respond to such a question:
If the witness so desires he may of his own volition state the nature of the crime and offer any relevant testimony that would eliminate any adverse implications; for example, the fact that he had in the meantime been fully pardoned or that the crime *779 was a minor one and occurred many years before.
Id. at 567. In the present case the defendant was on trial for the charges of first degree murder with a firearm and armed burglary. During his direct testimony he admitted that he had been previously convicted of seven felonies. He further wished to tell the jury the nature of those crimesall non-violent drug offenses which were not committed with firearms. It is clear that he wanted to avoid "any adverse implications," by establishing that the crimes were "minor" in nature. He had a right to do so and the denial of that right was error.
The dissent observes that Scurry and Ziermann involved prior crimes which were totally different from the crime(s) being tried. It goes on to suggest that in this case "the defendant's seven prior felony convictions were similar to the crime for which he was being tried." The defendant was being tried for the crimes of first degree murder and armed burglaryviolent crimes which are totally different from the defendant's priors. The dissent does not address the trial court's refusal to allow the defendant to tell the jury that he had not gone to trial in his previous cases, information clearly admissible under Lawhorne.
The state's suggestion that any error was harmless is unpersuasive. The evidence in this case boiled down to the testimony of one state witness, himself no saint, and the defendant, who claimed that he killed the alleged victim in self-defense. The credibility of the defendant in this case was, as it was in Ziermann, critical to the deliberations of the jury.
Reversed and remanded for a new trial.
NESBITT, J. concurs.
JORGENSON, Judge, dissenting.
I respectfully dissent. Defendant's claim of self defense was based upon his testimony that during a drug transaction with the victim, the victim became alarmed when defendant's beeper went off and defendant reached for it, revealing his weapon. The victim's response in turn led the defendant to believe that the victim was reaching for a weapon of his own; the defendant then pulled out his firearm and shot and killed the victim.
In my view, the trial court properly prohibited the defense from conducting an anticipatory rehabilitation of the defendant in these circumstances. The court is correct in stating that such testimony is generally admissible to mitigate the State's anticipated attack on a defendant's credibility when it attempts to impeach the defendant on cross examination. See Lawhorne v. State, 500 So. 2d 519 (Fla.1986) (holding that defendant could, on direct examination when testifying on his own behalf, bolster his credibility by testifying that in previous convictions he had pled guilty); Bell v. State, 491 So. 2d 537, 538 (Fla.1986) (holding that the State could question its witness about his prior inconsistent statements in order "to take the wind out of the sails of a defense attack on the witness's credibility"); Scurry v. State, 701 So. 2d 587 (Fla. 2d DCA 1997); Ziermann v. State, 696 So. 2d 491 (Fla. 4th DCA 1997); see generally Ehrhardt, Florida Evidence § 608.2 (1998 ed.)
However, that evidentiary rule should not apply in this case. In both Scurry and Ziermann, the defendants were charged with sexual offenses. In Scurry, the defendant sought to testify on direct examination as to the nature of his prior felony conviction, which was for a drug offense. 701 So. 2d at 588 ("Scurry wanted to testify that his prior conviction was for a drug offense, not for an offense involving dishonesty or a false statement.... Credibility was clearly an issue."). In Ziermann, the defendant sought to testify about the substance of his prior convictions, which concerned credit card fraud. 696 So. 2d at 491 ("If the defense had been permitted to ask appellant about the substance of his prior convictions, the jury would have learned that appellant's prior convictions concerned credit card fraud, i.e., not sexual assault type offenses."). In each case, our sister courts held that such anticipatory rehabilitation was proper to allow the jury to learn that the defendants' prior convictions had not been for sexual crimes.
In both Scurry and Ziermann, the nature of the prior convictions was so far removed from that of the crime charged that eliciting the details of the prior convictions would *780 bolster the defendant's credibility and mitigate the convictions' impact on the jury when the defendant was impeached by the State. In this case, however, the defendant's seven prior felony convictions were similar to the crime for which he was being tried, and the general rule allowing such testimony should not apply.
Even if the testimony should have been admitted, it is difficult to understand how the jurors would have found the defendant more credible if they had learned he had committed seven prior drug-related offenses. In weighing the defendant's credibility, the jurors would have juxtaposed those prior drug-related offenses with the current murder charge that admittedly arose during the commission of yet another drug offense. The defense argument would ask the jury to infer that, despite the inherent risk of violence associated with drug offenses, defendant's seven prior convictions did not involve any murders, and therefore he was not guilty of the murder with which he was charged. However, it is common knowledge that drug transactions often involve the use of firearms and violence. See Reyes v. State, 581 So. 2d 932, 933 (Fla. 3d DCA 1991). Therefore, I believe that error, if any, was harmless. See Johnson v. State, 679 So. 2d 791 (Fla. 3d DCA) (holding that harmless error analysis applies to evidentiary rulings related to anticipatory rehabilitation), review denied, 689 So. 2d 1070 (Fla.1997).
I would affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342300/ | 9 S.W.3d 3 (1999)
STATE of Missouri, Respondent,
v.
Stefan Koda WILLIAMS, Appellant.
No. WD 56507.
Missouri Court of Appeals, Western District.
November 16, 1999.
As Modified December 21, 1999.
Motion for Rehearing and/or Transfer Denied December 21, 1999.
Application for Transfer Denied January 25, 2000.
*7 Andrew A. Schroeder, Asst. Public Defender, Kansas City, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before: ULRICH, P.J., and EDWIN H. SMITH and HOWARD, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied December 21, 1999.
EDWIN H. SMITH, Judge.
Stefan Koda Williams appeals the judgment of his jury conviction in the Circuit Court of Boone County for trafficking in the second degree, § 195.223,[1] for which he was sentenced to eighteen years imprisonment in the Missouri Department of Corrections.
The appellant raises two points on appeal. In Point I, he claims that the trial court erred in denying his oral motion at trial to dismiss and replace his trial counsel because he did not receive effective assistance of counsel, as guaranteed by the Constitutions of the United States and Missouri, in that an irreconcilable conflict arose between himself and his trial counsel, resulting in a complete breakdown of communication between them. In Point II, he claims that the trial court erred in overruling his pretrial motion to suppress and admitting certain evidence at trial resulting from an alleged illegal search warrant because its issuance was not supported by probable cause in that the supporting affidavit: (1) was based on hearsay which was uncorroborated or provided by an informant who was not known to the affiant as being reliable; and (2) did not provide current and relevant information to demonstrate a fair probability that crack cocaine would be found at the appellant's residence.
We affirm.
Facts
On January 20, 1998, the Columbia Police Department received an anonymous CrimeStoppers tip that the appellant was selling cocaine at 2621 Quail Drive, Apt. C, in Columbia, Missouri, and that he had just received a large shipment of the same. The informant also stated that the appellant drove an older-model green Pontiac and lived with his girlfriend, "Kay."
The tip was investigated by Detective Michael Himmel. During his investigation, he checked the utilities at the Quail Drive address and learned that they were registered in the name of Kaylicia Vanee Patrick. He also conducted surveillance and observed a green Pontiac parked at the apartment complex at 2621 Quail Drive. In addition to confirming the information about the appellant's car and girlfriend, Detective Himmel spoke with several other police officers and learned that the appellant was suspected of drug trafficking and that, approximately one year prior, he had been arrested for the sale of cocaine at the Quail Drive address and, approximately four months prior, he had been arrested for possession of cocaine.
Based on his investigation, Detective Himmel, on January 22, 1998, filed an *8 application and supporting affidavit for a search warrant in the Circuit Court of Boone County, Missouri. The affidavit stated:
This affidavit is in regards to ongoing narcotics activity involving a suspect identified as Stefan Koda Williams. This subject has a state ID # 00745045. Subject has an (sic) FBI # 980086LA2. Subject shows numerous prior arrests for narcotics violations. Williams presently has two active cases pending here in Boone County reference to narcotics violations.
During the month of January 1997 a cooperative citizen was utilized and a controlled purchase was made from Stefan Williams. The location of this activity was 2621 Quail Apt C.
On 09/06/97 a debriefing was conducted from the cooperative citizen and during this debriefing Stefan Williams was identified as selling $50 and $100 rocks of crack cocaine from his apartment at 2621 Quail Apt C.
On 09/16/97 Stefan Williams was arrested for a narcotics violation. This was filed under case 97013019. Stefan Williams identified his address as 2621 Quail Apt C. During this case file investigation which involved a short car chase in the area of Quail and Sylvan approximately 4 ounces of cocaine was recovered. During interview of Williams, he admitted to being in possession of the cocaine but stated it belonged to someone else. This case is still pending. On 01/20/98 the Columbia Police Dept received information via crimestopper report that Stefan Williams was selling drugs on Quail Drive. The crimestopper went on to state that Stefan received a large quantity of cocaine to sell. A crimestopper also stated Stefan drives an older model green Pontiac. Crimestopper continued by stating that Stefan lives with a girlfriend by the name of Kay.
After receiving this information I had contact with Det Hammond and Det Parsons and learned that Stefan Williams was operating narcotics activity out of 2621 Quail Drive Apt C. I also conducted further follow up by conducting a utility check and learned that a Kaylicia Vanee PATRICK was living at 2621 Quail Drive Apt C. I located information within our computer system that she is associated to Stefan Williams also at this location. I have also conducted surveillance for this location and have observed Stefan Williams' vehicle parked in the rear of this complex.
It appears the information received from the Crimestopper in regards to Stefan Williams still operating at this location is accurate and correct. It appears that Stefan Williams is still conducting narcotics activity that is consistent with the information received in the above described paragraphs dating back to January of 1997.
After considering the application and supporting affidavit, the trial court found probable cause to issue and issued a search warrant for the Quail Drive address.
On January 23, 1998, officers from the Columbia, Missouri, Police Department arrived at 2621 Quail Drive, Apt. C, to execute the warrant. They knocked on the door, announced their presence, and then, after receiving no answer, forced open the door. When they entered the apartment, they discovered that the appellant was the only person present. He was wearing shorts and a shirt, but no shoes or socks. An officer ordered the appellant to lie down on the floor, then restrained him by handcuffing him.
While conducting a search of the residence, one officer noticed that the appellant had both of his hands down the back of his shorts. The officer pulled the appellant's hands out of the back of his shorts, then patted down the back and front. As a result of the frisk, the officer discovered a plastic bag containing what appeared to be five rocks of crack cocaine. It was later *9 determined that it was cocaine with a combined weight of 3.17 grams. Also, in their search, the officers recovered nearly $2,000 in cash, a police scanner, and an electronic scale, with what was later determined to be cocaine residue on it.
The appellant was indicted on March 27, 1998, and was charged by information with one count of trafficking in the second degree in the Circuit Court of Boone County, Missouri. On April 30, 1998, his defense counsel filed a motion to withdraw from the case because he was having difficulty contacting the appellant and would not attend scheduled meetings with him. This motion was overruled.
On May 12, 1998, the appellant filed a written motion to suppress "all property or matters seized from [the appellant during the search of the Quail Drive residence], including all papers, documents, clothing and other physical effects." In support of the motion, the appellant alleged that the search and seizure was illegal because the issuance of the warrant lacked probable cause. The appellant contended that the items seized should be excluded from evidence under the "fruit of the poisonous tree" doctrine.
On June 26, 1998, the appellant filed a motion to dismiss claiming that his prosecution under § 195.233 violated the equal protection clause of the U.S. CONST. amend. XIV, § 1 and MO. CONST. art. I, § 10. Specifically, he alleged that the statute provides the same penalty for possession of two grams of cocaine in its "rock" form as possession of 150 grams in its "powder" form without any regard for its cocaine content. He further alleged that this results in discrimination against minorities and low-income persons because they are more likely to possess crack cocaine and, thus, represent a greater percentage of those arrested for and prosecuted under the statute in question. This motion was subsequently overruled.
On June 29, 1998, a hearing was held on the appellant's motion to suppress. The appellant did not appear. However, at trial, he claimed that he did not attend the suppression hearing because he was not apprised of it by his attorney. At the hearing on the motion to suppress, defense counsel told the court that he was encountering difficulty in contacting the appellant. He stated: "[The appellant] has failed to come to my office, even after several times when I've talked to him in person, and he's failed to do so within 30 minutes of when I've asked him to come." Further, the defense counsel confirmed that he had advised the appellant of the suppression hearing and that he had tried to contact the appellant by phone, but had only left messages with other people. After evidence was heard on the motion to suppress, it was taken under advisement. Sometime thereafter and before trial, the trial court overruled both the appellant's motion to suppress and his motion to dismiss.
The appellant's trial commenced on July 16, 1998. Before voir dire, the appellant told the court that he did not believe he had received adequate representation because he could not make contact with the defense counsel to properly prepare for trial. As a result, he was making an oral pro se motion to dismiss and replace his trial counsel. The appellant said he had spoken with his counsel two days before the trial, but that he had hired replacement counsel to represent him. However, replacement counsel did not appear. Under questioning from the court, the appellant admitted that he had not technically hired replacement counsel because he had not yet paid his fee as requested. After further questioning by the court as to his reasons for wanting to replace his trial counsel, the trial court overruled the appellant's motion.
The appellant's trial lasted one day. At the conclusion of all the evidence, the jury was instructed and retired for deliberations. The jury subsequently returned a verdict finding the appellant guilty of trafficking, as charged. The appellant filed a *10 motion for a new trial, which was overruled. He then was sentenced on October 13, 1998, to eighteen years imprisonment.
This appeal follows.
I.
In Point I, the appellant claims that the trial court erred in denying his oral motion at trial to dismiss and replace his trial counsel because he did not receive effective assistance of counsel, as guaranteed by the Constitutions of the United States and Missouri, in that an irreconcilable conflict arose between himself and his trial counsel, resulting in a complete breakdown of communication between them. We disagree.
Initially, we address the State's contention that, because the appellant's claim was "being made for the first time on this appeal," it was "reviewable only as `plain error' under Rule 30.20, V.A.M.R." With respect to this issue, the record would reflect that the appellant did raise with the trial court the issue of replacing his trial counsel for an irreconcilable conflict, so that it is not being raised for the first time on appeal.
We will not disturb a trial court's ruling on a motion to dismiss and replace counsel unless there is a clear abuse of discretion. State v. Owsley, 959 S.W.2d 789, 792 (Mo. banc 1997), cert. denied,___ U.S.___, 119 S. Ct. 191, 142 L. Ed. 2d 156 (1998). In our review, we "`will indulge every intendment in favor of the trial court.'" Id, (quoting State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989)).
A criminal defendant "is not entitled to the aid of a particular attorney as a matter of constitutional right." State v. Taylor, 778 S.W.2d 276, 279 (Mo.App.1989) (citing State v. Bell, 719 S.W.2d 763, 767 (Mo. banc 1986)). Instead, a defendant's right to be represented by chosen counsel "is qualified by the public right to effective and efficient administration of justice." Id. "To warrant substitution of counsel, a defendant must show `justifiable dissatisfaction' with appointed counsel." Hornbuckle, 769 S.W.2d at 96 (citing State v. Gilmore, 697 S.W.2d 172, 174 (Mo. banc 1985)). "To obtain a change of attorney on the eve of trial, a defendant must demonstrate an irreconcilable conflict with his appointed counsel." Id. For the appellant to prevail on a claim of irreconcilable conflict with his counsel, he must show through objective evidence a "`total breakdown in communication.'" Owsley, 959 S.W.2d at 792 (quoting State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994)). However, he cannot have created the irreconcilable conflict through his own misconduct. Id. at 793.
A careful review of the record reflects that, although the appellant made a pro se oral motion to dismiss and replace his trial counsel on the day of trial, the communication problems alleged between them had been ongoing. In this respect, the record reflects that on April 30, 1998, appellant's trial counsel filed a motion to withdraw from the case, which was overruled. In support of the motion, he alleged that he was having difficulty contacting the appellant and that the appellant refused to attend scheduled meetings with him. In addition, the record would reflect that the appellant's trial counsel had been unable to reach and speak with him over the telephone, and the appellant had not returned messages left for him. From this, if it chose to believe the appellant's trial counsel, which it was free to do, State v. Clouse, 964 S.W.2d 860, 864 (Mo.App. 1998), the trial court could have reasonably concluded that the appellant created the irreconcilable conflict alleged in his pro se motion to dismiss and substitute trial counsel through his own misconduct. Owsley, 959 S.W.2d at 793. Hence, we find no clear abuse of discretion in the trial court's denying the appellant's motion to replace his trial counsel on the day of trial.
Point denied.
*11 II.
In Point II, the appellant claims that the trial court erred in overruling his pretrial motion to suppress and admitting certain evidence at trial because the search and seizure at the Quail Drive location was illegal in that the warrant was not supported by probable cause. Specifically, the appellant contends that the affidavit filed in support of the search warrant was deficient in that: (1) it was based on hearsay which was uncorroborated or provided by an informant who was not known to the affiant as being reliable; and (2) it did not provide current information to demonstrate a fair probability that crack cocaine would be found at the appellant's residence. From this he asserts that the challenged evidence should have been excluded under the "exclusionary rule" as being fruit of the poisonous tree. We disagree.
"`Ordinarily, a ruling on a pretrial motion to suppress may not be asserted as a ground of error on appeal because the pretrial motion to suppress and the admission at trial of the challenged evidence are two distinct procedures.'" State v. Beishline, 926 S.W.2d 501, 508 (Mo.App.1996) (quoting State v. Norton, 904 S.W.2d 265, 271 (Mo.App.1995)). Absent an objection at trial to the admission of the evidence challenged in the motion, the issue is not preserved for appellate review. Id. Here, although the appellant filed a pretrial motion to suppress the crack cocaine seized, as well as the rest of the State's evidence relating to the alleged illegal search of his apartment, the record reflects that he failed to object at trial to the admission of this evidence. As such, we do not review the denial of his motion to suppress, but review the admission of the challenged evidence at trial for plain error, which the appellant requests.
Initially, the question arises as to whether the appellant's claim is reviewable under Rule 29.12(b) or Rule 30.20 in that the Missouri Supreme Court, as well as all three districts of the Missouri Court of Appeals, have held both ways, as discussed, infra. The Missouri Supreme Court has on numerous occasions held that Rule 30.20 provides the proper standard of review in the case of plain error resulting from properly briefed, but otherwise unpreserved, error. See, e.g., State v. Clemons, 946 S.W.2d 206, 224 (Mo.banc), cert. denied, 522 U.S. 968, 118 S. Ct. 416, 139 L. Ed. 2d 318 (1997); State v. Taylor, 944 S.W.2d 925, 936 (Mo. banc 1997); State v. Ervin, 835 S.W.2d 905, 921 (Mo. banc 1992). However, on other such occasions, it has cited Rule 29.12(b) as controlling. See, e.g., State v. Whitfield, 939 S.W.2d 361, 366 (Mo.banc), cert. denied, 522 U.S. 831, 118 S. Ct. 97, 139 L. Ed. 2d 52 (1997); State v. Harris, 620 S.W.2d 349, 354 (Mo. banc 1981). All three districts of the Missouri Court of Appeals have also gone back and forth between the two rules as being controlling. For example, in the Eastern District, the court held in State v. Candela, 929 S.W.2d 852, 860 (Mo.App.1996), that Rule 29.12(b) controlled, but in State v. Davis, 914 S.W.2d 21, 22 (Mo.App.1995), that Rule 30.20 controlled. Likewise, in the Southern District, the court cited Rule 30.20 as controlling in State v. Bogard, 836 S.W.2d 87, 88 (Mo.App.1992), but relied on Rule 29.12(b) in State v. Phelps, 816 S.W.2d 227, 229 (Mo.App.1991). In the Western District, this court relied on Rule 30.20 in State v. Robinson, 864 S.W.2d 347, 350 (Mo.App.1993), but in State v. Sloan, 664 S.W.2d 41, 42-43 (Mo.App.1984), cited Rule 29.12(b) as controlling.
In interpreting and applying supreme court rules, we are to give the language used its plain and ordinary meaning. State ex rel. Streeter v. Mauer, 985 S.W.2d 954, 957 (Mo.App.1999). Rule 30.20 provides:
Allegations of error that are not briefed or are not properly briefed on appeal shall not be considered by the appellate court except errors respecting the sufficiency of the information or indictment, verdict, judgment, or sentence. Whether briefed or not, plain errors affecting *12 substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.
By its express terms, the rule would apply to error that is unpreserved, regardless of whether briefed or not. Rule 29.12(b) provides: "Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." The rule, on its face, would seem to cover the same ground as Rule 30.20. However, even though Rule 29.12(b) references "the court," without specifying trial, appellate, or both, the general heading of Rule 29 reads "MISDEMEANORS OR FELONIESVERDICT, SENTENCE AND NEW TRIAL" and sets forth what is required of a trial judge with respect to these matters, which would indicate that Rule 29.12(b) governs trial courts, not appellate courts. The fact remains, however, that our appellate courts have cited both rules with respect to our plain error review on appeal.
In resolving the issue of which rule controls for our plain error review here, we are mindful of the fact that we are bound by the most recent pronouncement of our supreme court, Crede v. City of Oak Grove, 979 S.W.2d 529, 534 (Mo. App.1998), which, according to our research, would appear in Clemons, which relied on Rule 30.20. Clemons, 946 S.W.2d at 224. It was decided in the same year as, but after, Whitfield, which relied on Rule 29.12(b). Whitfield, 939 S.W.2d at 366. The court made no mention of Whitfield in Clemons. In any event, for the reasons stated, we are bound by the supreme court's decision in Clemons, 946 S.W.2d at 224, and we will apply Rule 30.20 in determining whether to grant the appellant plain error review of his claim.
Rule 30.20 provides, in pertinent part, that "[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." "`The plain error rule should be used sparingly and does not justify a review of every [alleged] trial error that has not been properly preserved for appellate review.'" State v. McMillin, 783 S.W.2d 82, 98 (Mo. banc 1990) (quoting State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983)); see also State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 1995).
A plain reading of the rule indicates that plain error review involves a two-step process. Under the rule, the first step involves an examination to determine whether the claim for review "facially establishes substantial grounds for believing that `manifest injustice or miscarriage of justice has resulted,'" or in other words, whether on the face of the claim, "plain error" has, in fact, occurred. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). In the absence of such a determination, a court should "decline to exercise its discretion" to review a claim of error under Rule 30.20. Id. The rule makes it clear that not all prejudicial error that is, reversible error can be deemed plain error. Plain errors are those which are "evident, obvious and clear." State v. Bailey, 839 S.W.2d 657, 661 (Mo.App.1992). If plain error is found on the face of the claim, then the rule authorizes, as a matter of court discretion, a second step to determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.
The defendant bears the burden of showing that plain error has occurred which resulted in manifest injustice or a miscarriage of justice. State v. Isa, 850 S.W.2d 876, 884 (Mo. banc 1993). "Mere allegations of error and prejudice will not suffice." Id. "The determination [of] whether plain error exists must be based on a consideration of the facts and circumstances of each case." State v. Cline, 808 S.W.2d 822, 824 (Mo. banc 1991) (citing State v. Sanders, 541 S.W.2d 530, *13 533 (Mo. banc 1976)). When guilt is established by overwhelming evidence, no injustice or miscarriage of justice results requiring relief under the rule. State v. Jordan, 627 S.W.2d 290, 293 (Mo. banc 1982) (citing State v. Bainter, 608 S.W.2d 429, 431 (Mo.App.1980)).
In claiming that the challenged evidence was inadmissible under the exclusionary rule, the appellant contends that it was "fruit of the poisonous tree" because it resulted from an illegal search and seizure in that the issuance of the search warrant in question was not supported by probable cause, as required by the Constitutions of the United States and Missouri, and § 542.276.4. Thus, in determining whether to grant plain error review, we must initially determine whether the appellant's claim facially establishes substantial grounds for believing that it was plain error for the trial court to admit the evidence in question because the search warrant was obviously and clearly not supported by probable cause, which admission resulted in manifest injustice or a miscarriage of justice.
While the meaning of probable cause is a legal issue[,] its existence in a particular case is a question of fact. Thus, appellate review is not de novo. We give great deference on review to the initial judicial determination of probable cause made at the time of the issuance of the warrant and we reverse only if that determination is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990); State v. Hawkins, 760 S.W.2d 926, 927 (Mo.App.1988).
State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990).
Evidence is suppressed pursuant to the "exclusionary rule," which is based on the Fourth Amendment. Willis v. State, 630 S.W.2d 229, 233-34 (Mo.App. 1982). The rule is "an extraordinary sanction, judicially imposed, to limit searches and seizures to those conducted in strict compliance with the Fourth Amendment. It is a judicially created remedy designed to safeguard Fourth Amendment rights...." Id. (citations omitted). The purpose of the Fourth Amendment is to protect the privacy and security of individuals from arbitrary invasions by the government by imposing a reasonableness standard on the discretion exercised by law enforcement officials in conducting searches and seizures. State v. Damask, 936 S.W.2d 565, 570-71 (Mo. banc 1996) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979)).
State v. Kriley, 976 S.W.2d 16, 21 (Mo. App.1998). Stated another way, the exclusionary rule is a sanction designed to deter violations of the Fourth Amendment's guarantee of being free from illegal searches and seizures. In this respect, "[t]he Fourth Amendment guarantees that `no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'" Berry, 801 S.W.2d at 66.
The Fourth Amendment probable cause requirement for the issuance of search warrants is found in MO. CONST. art. I, § 15 and codified in § 542.276.4. Pursuant to § 542.276.4, probable cause is to be determined from the application for the search warrant and any supporting affidavit. As to such an application, § 542.276.2 requires, inter alia, that it be in writing and "[s]tate facts sufficient to show probable cause." § 542.276.2(5). Section 542.276.3 governs supporting affidavits and provides that:
The application may be supplemented by a written affidavit verified by oath or affirmation. Such affidavit shall be considered in determining whether there is probable cause for the issuance of a search warrant and in filling out any deficiencies in the description of the person, place, or thing to be searched or of the property, article, material, substance, or person to be seized. Oral testimony shall not be considered.
*14 Under the exclusionary rule, evidence will be suppressed if the warrant is "`based on an affidavit "so lacking in indicia of probable cause as to render [official belief in] its existence entirely unreasonable."` " State v. Hammett, 784 S.W.2d 293, 297 (Mo.App. 1989) (quoting United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677, 699 (1984)).
"[P]robable cause is a `fair probability that contraband or evidence of a crime will be found,'" Berry, 801 S.W.2d at 66 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)), which is to be determined from the totality of the circumstances. Id. In making this determination, the judge
must make a "practical, commonsense decision whether ... there is a fair probability that contraband or evidence of a crime will be found." [Gates, 462 U.S.] at 238, 103 S. Ct. at 2332. That decision is made from all the circumstances set out in the affidavit, including the "basis of knowledge" and "veracity" of persons providing hearsay information. Id.
Id. A probable cause determination to support the issuance of a search warrant depends on the specific facts and circumstances of each case. State v. Jones, 959 S.W.2d 829, 833 (Mo.App.1997). "Only the probability of criminal activity, not a prima facie showing, is the standard of probable cause." State v. Miller, 815 S.W.2d 28, 32 (Mo.App.1991) (citing Gates, 462 U.S. at 235, 103 S. Ct. at 2330, 76 L.Ed.2d at 546 (1983)).
As stated, supra, the appellant's claim is based, inter alia, on his contention that the supporting affidavit of Detective Himmel was deficient because it was based on hearsay which was uncorroborated or provided by an informant who was not known to the affiant as being reliable. In this respect,
[a]n affidavit which relies on hearsay is sufficient as long as there is a substantial basis for crediting the hearsay. Hammett, 784 S.W.2d at 296. Hearsay in an affidavit may be found reliable when it is based on personal observation and it is corroborated. State v. Hill, 854 S.W.2d 814, 818 (Mo.App.1993).
State v. Dawson, 985 S.W.2d 941, 949-50 (Mo.App.1999). If the hearsay can be properly credited, there is no need to show the informant was reliable. State v. Ambrosio, 632 S.W.2d 262, 265 (Mo.App.1982). The State does not dispute that the affidavit of Detective Himmel contained hearsay; however, it contends that proof of the reliability of the informant was not necessary in that the hearsay was properly verified.
The determination of whether the hearsay is creditable requires necessarily that the issuing magistrate determine the "`veracity' and `basis of knowledge' of [the] persons supplying [the] hearsay information." Dawson, 985 S.W.2d at 949. "The concepts of `veracity,' `reliability,' and `basis of knowledge' are relevant considerations but they are not entirely separate and independent requirements to be rigidly applied in every case." State v. Hill, 854 S.W.2d 814, 817 (Mo. App.1993) (citing Gates, 462 U.S. at 230, 103 S. Ct. at 2328, 76 L.Ed.2d at 543). "Corroboration from other witnesses and from independent observations of police officers creates a substantial basis for crediting the hearsay statements in an affidavit." Dawson, 985 S.W.2d at 950; see also State v. Williams, 937 S.W.2d 330, 332 (Mo.App.1996).
In Berry, the Missouri Supreme Court addressed the level of corroboration that is necessary to establish probable cause on the basis of hearsay contained in a supporting affidavit to justify the issuance of a search warrant. Berry, 801 S.W.2d at 66-67. There the sheriff's office received an anonymous tip concerning a quantity of marijuana at the home of the defendants. The tip described with particularity the outside of the defendants' home and indicated personal knowledge of the existence of the marijuana, including, inter alia, the quantity involved and the defendants' handling *15 of it. Id. at 65. To the extent possible, the accuracy of the information provided was verified, including the location, vehicle, and exterior description given by the informant. Id. at 67. The supreme court, in concluding that, from the facts set forth in the supporting affidavit, the issuing court was justified in finding probable cause, stated, "`[W]ith every other bit of [the informant's] information being [thus personally] verified, [the officer] had "reasonable grounds" to believe that the remaining unverified bit of [the informant's] information[that the [defendants'] home contained marijuana]was likewise true.'" Berry, 801 S.W.2d at 67 (quoting Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327, 332 (1959)).
In ruling as it did, the Berry court relied on the decision in United States v. Jackson, 898 F.2d 79 (8 th Cir.1990). As to this decision, the court stated:
In United States v. Jackson, 898 F.2d 79 (8th Cir.1990), a police officer based a warrant application on an anonymous telephone call. The caller described the location to which he had gone earlier that day in order to remove his daughter, who had been living at that location with the defendant. The caller also stated that he had seen what his daughter identified as marijuana in both the garage and the bedroom. The officer stated in his application that he had verified the location and description of the house and that the defendant lived there. The search warrant was issued on that basis and the Jackson court concluded that "a neutral and detached magistrate could make a practical, common-sense decision that probable cause existed." Id. at 81.
Berry, 801 S.W.2d at 66-67.
In the instant case, as in Berry and Jackson, the police received an anonymous tip from an ordinary citizen, providing information as to alleged criminal activity, some of which, but not all, could be verified by investigation. "[H]earsay information in a search warrant affidavit from an ordinary citizen is `more deserving of a presumption of reliability than are informants from "the criminal milieu."'" Dawson, 985 S.W.2d at 950 (quoting State v. Dudley, 819 S.W.2d 51, 54 (Mo.App. 1991)). The record would reflect that, to the extent possible, Detective Himmel investigated and verified that the appellant's motor vehicle, as described by the informant, was routinely parked behind the Quail Drive apartment complex in question and that the utilities of the apartment were in the name of a woman named Kay who was believed to be the girlfriend of the appellant. However, this information was information that anyone might have known and did not indicate any special or personal knowledge of the appellant or his activities, criminal or otherwise.
In Gates, the United States Supreme Court emphasized that, in corroborating information from an anonymous tip to establish probable cause for a search warrant, statements as to circumstances which readily would be known to anyone and mere conclusions not based on personal observations would not be sufficient in and of themselves to establish the requisite probable cause for issuing a search warrant. Gates, 462 U.S. at 239, 245-46, 103 S. Ct. at 2332-33, 2335-36. In Hammett, the Eastern District of this court reversed the trial court's overruling of the defendant's motion to suppress based on an illegal search warrant resulting from a deficient affidavit to establish probable cause. Hammett, 784 S.W.2d at 295-96. There, relying on Gates, the court, in support of its holding, reasoned that the affidavit in question was deficient because it did not include any information not readily known to others or personal observations of the drug activities alleged. Id. at 296.
Although being mindful of the fact that "Hammett has been characterized `as standing for the proposition that uncorroborated fourth-hand hearsay is not enough,'" Dudley, 819 S.W.2d at 54 (quoting Berry, 801 S.W.2d at 67), the factual situation in Hammett is similar to the one *16 here, other than the fact fourth-hand hearsay was not involved. As was the case in Hammett, Detective Himmel's affidavit is devoid of any references which could reasonably be interpreted as indicating that the informant had any special knowledge of the appellant or had personally observed his receipt of the alleged drug shipment, which would lend veracity to the informant's hearsay tip. However, this does not end our inquiry in that the "totality of the circumstances" analysis requires us to look at this information in light of all the circumstances, which would include references in the affidavit to alleged present and prior criminal activity. As stated, supra, "The concepts of `veracity,' `reliability,' and `basis of knowledge' are relevant considerations but they are not entirely separate and independent requirements to be rigidly applied in every case." Hill, 854 S.W.2d at 817. Moreover, the fact the informant may not have actually observed criminal activity or contraband is not fatal to establishing probable cause. Miller, 815 S.W.2d at 30-32.
We believe that Detective Himmel's affidavit can be read reasonably as confirming through his own knowledge and the personal observations of other police officers that the appellant previously had been engaged in and arrested for criminal drug activity, in which he was thought to be engaging still. A suspect's past criminal behavior can be considered in determining whether probable cause exists to justify a search. DaVee v. Mathis, 812 S.W.2d 816, 822 (Mo.App.1991); State v. Byler, 810 S.W.2d 677, 682 (Mo.App.1991). "Corroboration from ... independent observations of police officers creates a substantial basis for crediting the hearsay statements in an affidavit." Dawson, 985 S.W.2d at 950. In this respect, the United States Supreme Court has stated,
"Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number." United States v. Ventresca, 380 U.S. 102, 111, 85 S. Ct. 741, 747, 13 L. Ed. 2d 684, 690 (1965). Professor La-Fave has observed, "Following the lead of Ventresca, lower courts have consistently held that another law enforcement officer is a reliable source and that consequently no special showing of reliability need be made as a part of the probable cause determination." 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(a), at 4 (2d ed.1987). See, e.g., United States v. Griffin, 827 F.2d 1108, 1112 (7th Cir.1987), cert. denied, 485 U.S. 909, 108 S. Ct. 1085, 99 L. Ed. 2d 243 (1988); United States v. May, 819 F.2d 531, 536 (5th Cir.1987); [United States v. Flynn, 664 F.2d 1296, 1302-03 (5th Cir.1982) ]; United States v. Beusch, 596 F.2d 871, 874 (9th Cir.1979); State v. Morrill, 205 Conn. 560, 534 A.2d 1165, 1170 (1987); Caffo v. State, 247 Ga. 751, 279 S.E.2d 678, 681 (1981); State v. Alger, 100 Idaho 675, 603 P.2d 1009, 1013 (1979).
Dudley, 819 S.W.2d at 54-55.
Although the appellant recognizes that past criminal behavior can be relevant to determine probable cause for a search warrant, he contends that the information contained in Detective Himmel's affidavit as to his past criminal drug activity was too stale and attenuated to be considered in establishing such probable cause. In support of this contention, he cites us to Sgro v. United States, 287 U.S. 206, 53 S. Ct. 138, 77 L. Ed. 260 (1932), holding that "the proof [establishing probable cause] must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro, 287 U.S. at 210, 53 S. Ct. at 140. The appellant bases his contention on the fact that the prior criminal activity referred to in Detective Himmel's affidavit was apparently in reference to an arrest, which occurred approximately one year prior to the search in question, for the sale of crack cocaine at 2621 Quail Drive, Apt. C, and an arrest for possession of cocaine *17 found in his car, which occurred approximately four months prior. We disagree.
Although not sufficient in and of itself, we are not convinced that continued illicit drug activity, throughout the preceding year, including activity within the last four months, is too stale to be considered, along with all the other relevant circumstances alleged, to determine whether there was a fair probability that the appellant was engaging presently in such activity, especially where, as here, there were observations of narcotic activity by police officers other than the affiant. See United States v. Golay, 502 F.2d 182, 187 n. 10 (8th Cir.1974) (holding that information in an affidavit that an informant had seen stolen diamonds in defendant's hotel room sixteen days prior to the day the search warrant issued was not too stale to support a finding of probable cause for issuance of the warrant to search the room). We also do not believe that the fact that one of the arrests referenced involved a crime with respect to the appellant's motor vehicle, as opposed to the Quail Drive apartment, rendered it so attenuated as to be irrelevant to a probable cause determination with respect to the present criminal activity alleged. We are not so naive as to believe that an alleged drug dealer would limit his or her sales to one location such that he or she would not likely transport it by motor vehicle from one place to another.
"Even cases where the sufficiency of the affidavit is marginal should be largely determined by the preference to be accorded to warrants." Hill, 854 S.W.2d at 819 (citing State v. Sheffield, 821 S.W.2d 859, 862 (Mo.App.1991)). As such, based on the reasoning of the Missouri Supreme Court in Berry, relying on Jackson, we believe that the hearsay information provided in Detective Himmel's affidavit in support of the search warrant issued in this case was sufficiently verified, when viewed in light of the observations of the police officers as to criminal activity, so as to allow the issuing court to "have made a practical, common-sense decision that there existed a fair probability" that crack cocaine would be found at 2621 Quail Drive, Apt. C, and that a search warrant should issue for the same. Berry, 801 S.W.2d at 67.
For the reasons stated, we find that the appellant's claim, that the search warrant was illegal, on its face, does not assert substantial grounds for believing that the trial court erred in issuing the search warrant. Hence, we decline plain error review.
Point denied.
Conclusion
The circuit court's judgment of the appellant's jury conviction for trafficking, § 195.223, is affirmed.
All concur.
NOTES
[1] All statutory references are to RSMo 1994, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2352928/ | 404 Pa. 412 (1961)
Althouse Estate.
Supreme Court of Pennsylvania.
Argued April 21, 1961.
June 26, 1961.
*413 Before JONES, C.J., BELL, MUSMANNO, JONES, COHEN, BOK and EAGEN, JJ.
*414 George Scott Stewart, III, with him John Morgan Davis, Paul A. Davis, 4th, and Davis, Bellis & Kolsby, and Smillie, Bean, Davis & Tredinnick, for appellant.
M. Paul Smith, with him Walter Y. Howson, Richard L. Grossman, and Truscott, Kline, O'Neill & Howson, and Smith, Cahall & Aker, for appellees.
OPINION BY MR. JUSTICE BELL, June 26, 1961:
The net assets of Althouse's Estate increased in value approximately $200,000 between the time when the maximum marital deduction was determined and the date of distribution of assets to the marital deduction trust. The principal question involved is whether the testator made a gift in a dollar amount in the nature of a pecuniary gift equal to his maximum marital deduction, in which case it would not share in the increased value of the assets of the estate during its administration, or whether he made a fractional share gift, in which case it would share in such increased value. This is a case of first impression in our Court. A subsidiary question concerns the proper disposition of the testator's non-residential real estate.
Alfred K. Althouse died on November 5, 1955, leaving a will dated May 16, 1955. He was survived by his widow, who has since remarried, by his son, Alfred K. Althouse, Jr., the appellant, and by two daughters. Letters Testamentary were granted to Fidelity-Philadelphia Trust Company and his widow. The executors were also named as trustees of the trusts created by the will.
The Fifth paragraph of testator's will reads, in part, as follows: "Fifth: So much of my estate,[*] of whatever nature and wherever situate, together with other property included in my adjusted gross estate qualifying for the marital deduction which passes or has *415 passed from me to my wife, . . . shall equal the maximum marital deduction as provided in Section 2056 of the Internal Revenue Code, or such other corresponding provision as may be in effect at the time of my death, I give, devise and bequeath to my trustees hereinafter named, in a separate trust known as Trust A . . . . [Subparagraphs a and b of the Fifth paragraph, although not contained in the record as they should have been, provide that the income from Trust A is to be paid to testator's wife for life and she is given a general power to appoint the principal by will, and in default of such appointment the principal is to be added to and become a part of the trust for testator's children known as Trust B, which is set up in the Sixth paragraph of his will.]
"(c) It is my intention that this Trust A shall qualify under the marital deduction provisions of Section 2056 of the Internal Revenue Code, or such corresponding provision as may be in effect at the time of my death, and any provisions in this Trust A which might prevent the attainment of that objective shall be reconciled or ignored."
Paragraph Sixth reads, in part, as follows: "Sixth: All the rest, residue and remainder of my estate not hereinbefore provided for, I give, devise and bequeath to my trustees hereinafter named, in a separate trust to be known as Trust B[*] . . . ."
The matter came before the lower Court on exceptions to the Executor's schedule of distribution which construed the fifth paragraph as creating a fractional share gift and distributed to the marital trust approximately 5/9 of the appreciation in assets of the estate and also an undivided 5/9 interest in testator's non-residential real estate. Appellant, who is testator's *416 son, contended that the entire appreciation of assets and all the non-residential real estate should be distributed to the residuary estate. From the decree of the lower Court which dismissed his exceptions and confirmed the schedule of distribution, Alfred K. Althouse, Jr. took this appeal.
Before analyzing the aforesaid paragraphs of the will, it is well to consider the test which must be applied. We said in Cannistra Estate, 384 Pa. 605, 121 A.2d 157: "No rule regarding wills is more settled than the great General Rule that the testator's intent, if it is not unlawful, must prevail. . . . Moreover, `The testator's intention must be ascertained from the language and scheme of his will [and the attendant circumstances]: "it is not what the Court thinks he might or would have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words": Britt Estate, 369 Pa. [450, 454, 87 A.2d 243]': Sower's Estate, 383 Pa. 566, 119 A.2d 60."
The first applicable section of the Internal Revenue Code is Section 2056[*] which became effective August 16, 1954. The maximum Estate Tax Marital Deduction is 50% of the adjusted gross estate. See Section 2056 (c). The relevant sections of the Internal Revenue Code provide:
"§ 2056. Bequests, etc. to surviving spouse.
(a) Allowance of Marital Deduction.[**] For purposes of the tax imposed by section 2001, the value of *417 the taxable estate shall, except as limited by subsections (b), (c), and (d), be determined by deducting from the value of the [adjusted] gross estate an amount equal [in value] to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. . . .
(c) Limitation on aggregate of deductions.
(1) General rule. The aggregate amount of the deductions allowed under this section (computed without regard to this subsection) shall not exceed 50 percent of the value of the adjusted gross estate, as defined in paragraph (2).
(2) Computation of adjusted gross estate.
(A) General rule. Except as provided in subparagraph (B) of this paragraph, the adjusted gross estate shall, for purposes of subsection (c) (1), be computed by subtracting from the entire value of the gross estate the aggregate amount of the deductions allowed by sections 2053 and 2054.
"§ 2053. Expenses, indebtedness, and taxes.
(a) General rule. For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate such amounts
"The marital deduction statute endeavors to accomplish tax-wise in common law states what is provided by the civil law in the community property states. Accordingly, where the surviving spouse has absolute control (actual or potential) over the share received by him or her, the requirement of the marital deduction statute is met and no federal estate tax is assessed against that property."
See also: In re Buckhantz' Estate, Cal. App. 1953, 260 P.2d 794; Lincoln Bank & Trust Co. v. Huber, Ky., 1951, 240 S.W.2d 89; Foerster v. Foerster, Ohio Prob. 1954, 122 N.E.2d 314; Baylor v. National Bank of Commerce of Norfolk, 1952, 72 S.E.2d 282, 194 Va. 1.
*418 (1) for funeral expenses,
(2) for administration expenses,
(3) for claims against the estate, and
(4) for unpaid mortgages on, or any indebtedness in respect of, property where the value of the decedent's interest therein, undiminished by such mortgage or indebtedness, is included in the value of the gross estate,
as are allowable by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered. . . ."
It quickly became apparent that to provide by will for the maximum marital deduction was no easy matter. This was due in large part to the complexity of the language in the Internal Revenue Code. Under the provisions of the Code, the marital deduction was to be based (as above set forth) on the adjusted gross estate which was to be arrived at by subtracting certain specified allowable deductions from the gross estate. However, the gross estate for federal tax purposes is frequently different from the estate which passes under the testator's will, because the former includes life insurance and other property which is often not included in a testator's will.
It is usually impossible for a testator, at the time he prepares his will, to know what the exact amount of his estate or the exact amount of his marital deduction will be; and the tax can not be computed without knowing what the marital deduction will be. In most cases these are interrelated. A testator is, therefore, in a dilemma. If he gives a specific sum or specific assets to his widow (outright or in a marital trust) it may fall short of the allowable amount and thus fail to utilize the maximum marital deduction (underqualifying). He may avoid this dilemma by using a formula to provide a gift which exactly equals the marital deduction allowable, and at the same time carry out *419 his testamentary wishes and intent. Testator here elected to use a formula. Formula clauses are usually divided into (a) those creating a gift in a pecuniary amount and (b) those giving a fractional share of the residue. How to accurately express this formula and at the same time carry out the testator's dominant intent, viz., free his estate from as much of the Federal Estate Tax as is possible, has perplexed and baffled many.[*]
The problem is discussed by Professor A. James Casner in a well considered article "Estate Planning Marital Deduction Provisions of Trusts", 64 Harv. L. Rev. 582 (1951). Casner gives examples of pertinent language for nonformula gifts and for formula gifts. The words suggested by Professor Casner for a pecuniary formula gift are "an amount equal to the maximum estate tax marital deduction . . . diminished by. . ."; while the formula he suggests for a fractional share gift is "that fractional share of my residuary estate which will equal the maximum estate tax marital deduction . . . diminished by . . ."
The testator in the present case did not use either of these phrases. He provided "So much of my estate, of whatever nature and wherever situate, together with other property included in my adjusted gross estate. . . [as] shall equal the maximum marital deduction. . . I give, devise and bequeath . . . to Trust A [the marital deduction trust]." We must decide which *420 type of gift the testator meant by those words.
We have found no case in Pennsylvania where the subject is discussed; only six cases[*] in other jurisdictions have been cited to us, and our independent research has found only two others.[**] In none of these cases did the testator use the words "so much of my estate."
The nearest case on its facts is Estate of Odgen A. Kantner, Deceased, 50 N.J. Super. 582, 143 A.2d 243.[***]
The pertinent language in that case was "a portion of my estate equal in value to (a) one-half of the value of my adjusted gross estate". The Court held that this was a pecuniary gift and that it should be satisfied by distributing to it enough shares of stock at their distribution time (higher) value as to make up the amount of the marital deduction reported in the Federal Estate Tax Return. There, as here, the marital trust was set up in one clause of the will, Article Third, and there, as here, the residuary estate was set up in a succeeding paragraph, Article Fourth. That Court considered such a pattern as an important factor in determining the testator's intention. It said: "As though to eliminate the slightest doubt that the marital deduction *421 gift was not intended to be of the residue formula type is the express direction in Article Fourth of the will that the trust there provided for should be constituted from the `rest, residue and remainder of my property,' the conventional verbiage for reference to the residuary estate. It would be inexcusable disregard of the unequivocal cast of the document to construe the gift . . . (the marital deduction trust) as a disposition of the residuary estate or part of it."
We believe that the testator was clearly attempting and intending to take full advantage of the maximum marital deduction and to give all such (presently) tax-exempt property to his trust for his wife known as Trust A; and to give all the rest, residue and remainder of his estate to his residuary trust estate which he denominated Trust B. We are convinced that this was his dominant intent. The appellees have fallen into error in considering that Trust A was a gift of 5/9 or 1/2 or some fraction of testator's entire estate Trust A is not a residuary gift either in a 5/9 fraction or in a 1/2 or other fraction. Had testator intended to give his entire estate 5/9 or 1/2 to his wife and the other 4/9 or 1/2 to his children and issue he could very easily have created a residuary trust estate and divided it into two trusts, the marital trust consisting of 5/9th known as Trust A, and the trust of the remainder for his children and issue known as Trust B; or even more clearly he could have specifically given a fractional share of his residuary estate to his marital trust and the other fraction to Trust B. He did not do so; instead he created a marital deduction trust in paragraph Fifth, and did not set up a trust for his residuary estate until after that had been accomplished. In other words, testator used the words "so much of my estate which [with other property passing from me to my wife] shall equal the maximum marital deduction" advisedly, and he thereby intended to convey his desire and intent *422 that this marital trust was to receive exactly the amount of assets equal to the maximum marital deduction allowed by law no more and no less! When testator wrote his will he could not know, we repeat, the exact amount of his gross estate or his adjusted gross estate in dollars and cents, but he (and his attorney) did know that the exact dollar amount of the marital deduction would be ascertained and determined when his Federal Estate Tax Return was subsequently computed and determined. They knew that this return would show in dollars and cents the exact amount which was allowable as the marital deduction, and testator intended this exact amount to be paid to (his marital) Trust A, unaffected by any subsequent fluctuation of the market during the period of the executors' administration or by any possible but unforeseeable capital gains or losses.
The testator's intention will be even clearer if we consider what would have been the result had the securities declined during the executors' administration, rather than increased in value. If such a situation had occurred and the marital trust was tendered securities which had a lesser value at date of distribution, Trust A would not receive "so much" of testator's estate as would equal the maximum marital deduction allowed by the Internal Revenue Code. If "so much" cannot mean "less than", it cannot mean "more than".
We hold that the testator's gift to the marital deduction trust known as Trust A was a gift in the dollar amount which was shown on (and determined by) the Federal Estate Tax Return; that this was, in effect, a pecuniary gift of that exact dollar amount, and that this amount should be paid by the executors to the trustees of Trust A with cash and/or assets valued, in the case of securities, as of the date of distribution (or dates of distribution if there were partial distributions on account) to Trust A.
*423 We now come to the question of the proper disposition of the testator's non-residential real estate. The Fourth clause of decedent's will provides as follows: "Fourth: I give and devise unto my said wife my residence in Colonial Village, Wayne, Pennsylvania, if occupied by me as my residence at the time of my death, or such other property as I may own and occupy as my residence at the time of my decease, absolutely and in fee. Any and all real estate owned by me at the time of my death, not occupied as my residence, shall become a part of my residuary estate."
It is the contention of the appellees, concurred in by the lower Court, that the last sentence of this clause was not, in itself, a devise of the non-residential real estate, but since he did not use the words "give and devise" it was merely a limitation of the specific devise of his residence property. They likewise seek to apply canons of construction which are irrelevant and inapplicable.
We disagree with this construction and with their other contentions in attempted support thereof. When testator executed his will and at his death he had a residential property. However, the next sentence read in connection with the gift to his wife of his residence, namely, "Any and all real estate owned by me at the time of my death, not occupied as my residence, shall become a part of my residuary estate",[*] is such a clear, plain and unambiguous expression of testator's intent that consideration of or reference to technical rules of construction is unnecessary. Where a testator's intention is clear, Courts should not resort to canons of construction in an attempt to unravel what needs no unraveling.
We therefore hold that it is clearly apparent that testator intended his non-residential real estate to be *424 a part of his residuary trust estate known as Trust B. It follows that the lower Court was in error in confirming the Schedule of Distribution which awarded an undivided 564,243/1,021,053 interest in the non-residential real estate to the marital deduction trust and such order must be reversed.
The Decree of the lower Court is reversed and the record is remanded to that Court with directions to order the executors to file an amended Schedule of Distribution in conformity with this opinion; costs to be equally divided between the principal of Trust A and the principal of Trust B.
NOTES
[*] Italics throughout, ours.
[*] This trust, we are informed, contains provisions for testator's children and issue.
[*] Similar provisions were contained in Section 812(e) of the 1939 Internal Revenue Code.
[**] In Rosenfeld Estate, 376 Pa. 42, 101 A.2d 684, the Court said (pages 42-43):
"The marital deduction provision in the United States Revenue Act of 1948, Section 812(e) Internal Revenue Code, was passed to equalize the federal estate tax between residents of common law states and residents of community property states. . . .
[*] Few lawyers who specialize in the tax field can agree upon the exact language of the formula and even these lawyers are frequently revising the formula they had previously prescribed. Tax specialists and trust company officers could read with great profit an article in the Pennsylvania Bar Association Quarterly dated June, 1961, by Malcolm Muir, entitled "Marital Deduction Tax Traps". The article vividly illustrates and exposes the decisional conflicts and absurdities, as well as the injustice often resulting therefrom.
[*] In re Estate of Ogden A. Kantner, Deceased, 50 N.J. Super. 582, 143 A.2d 243, 52 N.J. Super. 24, 144 A.2d 553; King v. Citizens & Southern National Bank of Atlanta, Ga., 103 So. 2d 689; In re Reben's Will, 115 N.Y.S.2d 228; In re Lewis's Will, 115 N.Y.S.2d 791; Bush's Will, 156 N.Y.S.2d 897; In re Estate of Florence E. Bing, 200 N.Y.S.2d 913.
[**] Inman's Estate, 196 N.Y.S.2d 369; McTarnahan's Estate, 202 N.Y.S.2d 618.
[***] It would extend this opinion to too great a length, and would serve no useful purpose, to analyze the other cases cited. Under the particular language in each case, some were held to be pecuniary gifts, and some were held to be fractional share gifts. None of them are binding upon us, and their discussion does not relate to "so much".
[*] Which as we have seen was given, bequeathed and devised to Trust B for testator's children and issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1011966/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ADRIENNE WARD,
Plaintiff-Appellant,
v.
RONALD T. KNIGHT, Individually and
in his capacity as Sheriff of
Spotsylvania County, Virginia, No. 03-1319
Defendant-Appellee,
and
MATTHEW VAUGHN RATHBUN,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-02-717-A)
Argued: October 29, 2003
Decided: November 25, 2003
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Saundra Rosemary Mastro, Benjamin James Trichilo,
TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS,
2 WARD v. KNIGHT
P.C., Fairfax, Virginia, for Appellant. Leslie Ann Winneberger,
BEALE, BALFOUR, DAVIDSON & ETHERINGTON, P.C., Rich-
mond, Virginia, for Appellee. ON BRIEF: Heather K. Bardot,
TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS,
P.C., Fairfax, Virginia, for Appellant. William F. Etherington,
BEALE, BALFOUR, DAVIDSON & ETHERINGTON, P.C., Rich-
mond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After being assaulted by Mathew Vaughn Rathbun, then a deputy
sheriff of Spotsylvania County, Virginia, Adrienne Ward brought this
action pursuant to 42 U.S.C. § 1983, against Rathbun and the Sheriff
of the County, Ronald Knight. Rathbun settled the suit; the district
court granted summary judgment to Sheriff Knight. Ms. Ward appeals
and we affirm.
I.
On April 29, 2000, at Rathbun’s invitation, Ms. Ward, then seven-
teen, J.A. 12, accompanied him in his police car on his 4 p.m. to 2
a.m. patrol shift. Pursuant to a written general order, G.O. 3-6, the
Sheriff’s Department permits interested civilians to participate in ride-
alongs with deputies during their patrol duties. But G.O. 3-6 only
allows ride-alongs if certain procedures are followed (e.g. a Ride-
Along Application form is completed and approved) and it does not
permit persons under "18 years of age" to take part in ride-alongs.
During the unauthorized April 29 ride-along, Ms. Ward maintains that
Rathbun sexually assaulted her and required her to perform oral sex
on him. Rathbun denies assaulting Ms. Ward but concedes that they
engaged in consensual sexual activity.
WARD v. KNIGHT 3
On August 20, 2000, Ward filed a formal complaint with the Sher-
iff’s Office. Immediately upon receipt of this complaint, Sheriff
Knight initiated an investigation and four days later fired Rathbun. On
March 19, 2001, Rathbun pled guilty in state court to felony criminal
solicitation; the court sentenced him to a twelve month suspended
sentence.
On May 22, 2002, Ms. Ward filed this action, alleging several state
and federal claims against Rathbun and Sheriff Knight in his official
and individual capacities. She ultimately chose only to pursue her
§ 1983 claim. After extensive discovery, Sheriff Knight moved for
summary judgment on that claim, which the district court granted on
December 30, 2003. Shortly thereafter, Rathbun settled Ms. Ward’s
claim against him.
II.
The district court issued a well-reasoned opinion explaining the
rationale for its grant of summary judgment to Sheriff Knight. See
Adrienne Ward v. Matthew Vaughn Rathbun, Civil Action No. 02-
717-A (E.D. Va. Dec. 30, 2002). At the outset, the court recognized
that Ms. Ward contended that "Rathbun deprived her of her right to
be free from state-occasioned damage to her bodily integrity by forc-
ing her to perform oral sodomy upon him during the ride-along" and
that she further claimed that Sheriff Knight "is responsible for Rath-
bun’s conduct because he was deliberately indifferent to the risk of
such conduct posed by the ‘atmosphere of sexual permissiveness’ in
the Sheriff’s Office." J.A. 906.
The district court correctly reasoned that Ms. Ward could prevail
on her official capacity claim against Sheriff Knight only by proving
a "deficient training policy" or an improper but "condoned custom
and usage" demonstrating the Sheriff’s "deliberate indifference" to
her rights and that one of these "caused" the incident by rendering it
a "reasonable probability". J.A. 907, 912; see Spell v. McDaniel, 824
F.2d 1380, 1389-91 (4th Cir. 1987). The court determined that Ms.
Ward had not proffered evidence of deficiencies in training or knowl-
edge of a developed custom that demonstrated the required "deliber-
ate indifference" by Sheriff Knight. J.A. 907-911; see Spell, 824 F.2d
at 1389-91. The district court also reasoned that Ward had not offered
4 WARD v. KNIGHT
evidence of a "legally sufficient causal link between any deficiencies
in training or failure to correct violations of G.O. 3-6, attributable to
Knight and the specific constitutional harm allegedly done to her by
Rathbun." J.A. 911. For these reasons, the court granted Sheriff
Knight summary judgment on Ms. Ward’s official capacity claim
against him.
The district court then turned to Ms. Ward’s individual capacity
claim, which she premised on the Sheriff’s asserted supervisory liabil-
ity. The court properly recognized that to prevail on this claim, Ms.
Ward had to meet the test set forth in Shaw v. Stroud, 13 F.3d 791,
799 (4th Cir. 1994). See J.A. 913. Noting that there was "no evidence
in the record to indicate that Knight had any knowledge whatsoever
of Rathbun’s sexual proclivities before August 20, 2000," the court
found "insufficient evidence to hold Knight individually liable for
deliberate indifference in his supervision of Rathbun." J.A. 913-914.
III.
After carefully considering the record, the briefs, and governing
legal principles, and having had the benefit of oral argument, we con-
clude that the district court properly granted summary judgment to
Sheriff Knight. Accordingly, we affirm for the reasons well stated by
the district court. In doing so, we note that we do not in any way con-
done the inappropriate sexual activity in which some Spotsylvania
County deputies have engaged while on duty. However, as the district
court noted, this activity "between consenting adults," some of which
had not even taken place prior to Rathbun’s assault on Ms. Ward, did
not suffice to put Sheriff Knight "on notice of a threat that an
employee might sexually assault a minor." J.A. 911.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1011819/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4503
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS WAYNE FITZGERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-02-09)
Submitted: October 17, 2003 Decided: October 28, 2003
Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory John Ramage, Raleigh, North Carolina, for Appellant. Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dennis Wayne Fitzgerald pled guilty to escaping from the
Salvation Army Community Corrections Center, in violation of 18
U.S.C. § 751(a) (2000). The presentence investigation report
(“PSR”) recommended that Fitzgerald be sentenced as a career
offender based on the instant offense, his prior felony conviction
for selling cocaine, and his two prior felony convictions for
escape. The district court adopted the findings in the PSR and
sentenced Fitzgerald to forty-three months of imprisonment, to be
followed by a three-year term of supervised release.
Fitzgerald’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but raising two issues: (1) whether
the district court erred in finding Fitzgerald to be a career
offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2001), by
determining that the instant offense of escape and Fitzgerald’s
prior escape convictions constituted crimes of violence; and (2)
whether Fitzgerald received ineffective assistance of counsel
because counsel failed to move for a downward departure based on an
overstated criminal history. Fitzgerald was advised of his right
to file a pro se supplemental brief but has declined to do so.
We have reviewed the record and conclude that the district
court properly sentenced Fitzgerald as a career offender. See
United States v. Dickerson, 77 F.3d 774 (4th Cir. 1996).
2
Furthermore, Fitzgerald’s claim of ineffective assistance of
counsel should be brought, if at all, in a proceeding under 28
U.S.C. § 2255 (2000), because the record in this appeal does not
conclusively establish ineffective assistance of counsel. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Fitzgerald’s
conviction and sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583322/ | 728 N.W.2d 852 (2007)
STATE
v.
WILKINS.
No. 05-1984.
Court of Appeals of Iowa.
January 18, 2007.
Decision without published opinion. Reversed and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859050/ | Welch v. Cardwell
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-531-CV
DAVID WELCH,
APPELLANT
vs.
JERRY CARDWELL,
APPELLEE
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 92-0-98, HONORABLE WILLIAM C. BLACK, JUDGE PRESIDING
PER CURIAM
Appellant David Welch filed an election contest on March 23, 1992, against
appellee Jerry Cardwell over the March 10, 1992, Democratic Party primary election for the
Caldwell County precinct-four constable's office. Welch claims that Cardwell was not lawfully
elected in the primary election because Cardwell did not meet the residency requirements. Tex.
Elec. Code Ann. § 141.001(a)(5) (West 1986). The district court signed its final judgment
denying Welch's claims on June 30, 1992.
Welch filed the appeal bond with the clerk of the district court on September 25,
1992. The Election Code, however, requires that an appellant in a contest to a primary election
file the perfecting instrument not later than the fifth day after the date the district court's judgment
in the contest is signed. Tex. Elec. Code Ann. § 232.014(b) (West 1986); Bailey v. Clark,
407 S.W.2d 520, 521 (Tex. Civ. App.--Fort Worth 1966, no writ) (interpreting Election Code,
52d Leg., R.S., ch. 492, § 208(11), 1951 Tex. Gen. Laws 1097, 1178 (Tex. Elec. Code Ann.
art. 13.30, since amended and repealed)). The perfecting instrument was, therefore, due not later
than July 6, 1992. Because the perfecting instrument was not timely filed, we must dismiss the
appeal. See Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978).
The appeal is dismissed for want of jurisdiction.
Before Justices Powers, Aboussie and Jones
Dismissed for Want of Jurisdiction
Filed: February 23, 1994
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1918825/ | 421 Pa. 492 (1966)
Conrad
v.
Pittsburgh.
Supreme Court of Pennsylvania.
Argued January 11, 1966.
April 22, 1966.
*493 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN AND ROBERTS, JJ.
John B. Nicklas, Jr., with him McCrady & Nicklas, for plaintiff.
David Stahl, City Solicitor, with him Thomas S. White and Cyril A. Fox, Jr., Assistant City Solicitors, for City of Pittsburgh, defendant.
*494 George E. Flinn, C. Holmes Wolfe, Jr., and Moorhead & Knox, for Stadium Authority of City of Pittsburgh.
Charles M. Thorp, Jr., John H. Neely, and Thorp, Reed & Armstrong, and Neely, Stockdale & Phillips, for amicus curiae.
Kennedy Smith, and Kline & Smith, for amicus curiae.
OPINION BY MR. JUSTICE ROBERTS, April 22, 1966:
On October 29, 1965, plaintiff, a resident and taxpayer of the City of Pittsburgh, Allegheny County, Pennsylvania, instituted an action in the Court of Common Pleas of Allegheny County to restrain defendants, the City of Pittsburgh and the Stadium Authority of the City of Pittsburgh,[1] from proceeding with a contemplated construction of a multi-purpose public stadium. Plaintiff also sought to have adjudged illegal and void a contract entered into between defendants for the purpose of carrying out said project.
Defendants, on November 8, 1965, filed a preliminary objection in the nature of a demurrer to plaintiff's complaint. On the same date, defendants petitioned this Court to assume original jurisdiction of the cause. In view of the exigency which exists in the matter to which the suit relates, on November 22, 1965, we directed the issuance of a special certiorari to the court below removing the record in the proceedings for *495 consideration and action by this Court.[2] Such is the present posture of the litigation.[3]
Due to the nature of the action and the issues presented, it is necessary that the factual background of the litigation, as established by the averments of plaintiff's complaint and the exhibits annexed to defendants' preliminary objection, and thereby made part of the record of the case,[4] be set forth.
*496 The City of Pittsburgh, desiring to provide its residents with a facility for civic and athletic events of interest to the community, organized the Stadium Authority of the City of Pittsburgh. The Authority was formed pursuant to the Public Auditorium Authorities Law [herein referred to as the "enabling act"], Act of July 29, 1953, P.L. 1034, 53 P.S. §§ 23841-23857, for the purpose of constructing a public stadium facility.[5] In order to facilitate the project, the City proposed to provide the site upon which the stadium was to be constructed and to loan certain sums to the Authority for the purpose of initiating the endeavor.
Acting with the approval of the City and in accordance with powers granted under the enabling act, the Authority adopted a plan whereby it would finance and construct a multi-purpose stadium to be leased to private parties for operation as an Authority facility.[6] In furtherance of that plan, the Authority entered into negotiations with various parties for the construction, financing and letting of the proposed facility.
*497 As a result of these negotiations, agreement was reached with the Pittstad Management Corporation, subject to the execution of formal instruments, under which Pittstad would enter into a lease of the stadium for a forty year term at an annual rental of $860,000. Pittstad, in turn, proposed to sub-let the facility for a like term to the Pittsburgh Athletic Co., Inc. and the Pittsburgh Steelers Football Club, Inc. at an aggregate annual rental of $421,000.
At the same time, tentative agreement was also reached with the Public Parking Authority of the City of Pittsburgh, a public corporation organized pursuant to the Act of June 5, 1947, P.L. 458, 53 P.S. §§ 341-356, for a lease of the parking facilities to be constructed in connection with the stadium. It is contemplated that these facilities would in turn be sub-let to the Alco Parking Corporation for a term of forty years at an annual rental of $500,000.
On June 30, 1965, the Stadium Authority, proceeding under powers granted by the enabling act, Act of June 29, 1953, P.L. 1034, § 5, 53 P.S. § 23845(B) (i), entered into a loan agreement with various banks under which interim financing in the amount of $28,000,000 was obtained to pay construction and other costs of the project pending the sale of Authority bonds. Concurrently with the execution of the above mentioned agreement, the City and the Stadium Authority entered into the agreement which is the principal subject of the present suit.
Section 10(B) of the enabling act provides as follows: "Any municipality may and it [sic] is hereby authorized to make annual grants from current revenues to the Authority to assist in defraying the costs of operation, maintenance and debt service of the project and to enter into long term agreements providing for the payment of the same." Act of July 29, 1953, P.L. 1034, 53 P.S. § 23850(B).
*498 Acting pursuant to this provision, the City and the Stadium Authority entered into an agreement whereunder the City agreed to make an annual grant to the Authority in the event and to the extent of any deficiency between the income to be derived from the tenants of the stadium and the amount required by the Authority to service its debt and maintain the facility. Specifically, the agreement provides that the City shall appropriate and pay to the Authority from "current revenues" a sum equal to "the amount . . . by which the total funds . . . available in . . . [each] calendar year to pay the cost to the Authority of the operation and maintenance of the Project and debt service on the Bonds are less than the cost to the Authority of such operation, maintenance and debt service." The agreement to remain in force for the duration of any outstanding indebtedness of the Authority on its bonds, further provides that "in the event that any annual grant is not paid in full when due, the deficiency is to be paid out of the current revenues of the City in the subsequent year or years."
Plaintiff, attacking the agreement, contends that the provision therein contained providing for annual grants by the City in the event of an operating deficiency by the Authority constitutes a debt incurred in violation of §§ 8 and 10 of Article IX of the Constitution of this Commonwealth.
Article IX, § 8 of the Constitution of Pennsylvania provides: "The debt of any county, city, borough, township, school district, or other municipality or incorporated district . . . shall never exceed seven (7) per centum upon the assessed value of the taxable property therein, nor shall any such county, municipality or district incur any debt, or increase its indebtedness to an amount exceeding two (2) per centum upon such assessed valuation of property, without the consent of *499 the electors thereof at a public election in such manner as shall be provided by law."
Section 10 of Article IX requires: "Any county, township, school district or other municipality incurring any indebtedness shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years."
As of the execution of the agreement, the assessed valuation of taxable property of the City of Pittsburgh was $1,694,897,000. Its outstanding indebtedness was $18,000,000. Thus, the City was free to incur an additional indebtedness of $15,897,000 without the prior approval of the electorate.
It is the position of plaintiff, however, that by reason of its agreement with the Authority, the City has undertaken to guarantee the $28,000,000 obligation of the Authority and has thereby incurred an "indebtedness" within the meaning of Article IX, §§ 8 and 10, which, when aggregated to its present indebtedness, exceeds 2% of the assessed valuation of taxable property of the City. Since the City did not submit the issue of the grant to the voters or levy a tax sufficient to amortize the asserted "debt", plaintiff contends that the obligation sought to be created is invalid and the agreement null and void. We are unable to agree with the proposition urged.
At the outset, we note that the obligation of the City under the agreement with the Authority is both contingent and unliquidated. Performance is required and payment due only in the event and to the extent that the Authority sustains a deficit between its operating income and its debt service and maintenance costs. This Court has not to date had the occasion to determine whether such an obligation constitutes a "debt" within the meaning of Article IX, §§ 8 and 10. The decisions of courts of other jurisdictions which have considered *500 the problem in light of restraints on municipal spending similar to those contained in our Constitution have not been uniform.[7]
However, we find it unnecessary to reach the question of whether a contingent liability is a debt within the meaning of Article IX, §§ 8 and 10, since our consideration of the matter compels the conclusion that the decision of this Court in Greenhalgh v. Woolworth, 361 Pa. 543, 64 A.2d 659 (1949), requires the rejection of plaintiff's contention.
*501 In Greenhalgh v. Woolworth, supra, an injunction was sought to restrain the School District of the Borough of West Mifflin from entering into a proposed lease agreement with the State Public School Building Authority on the ground that the agreement would work a subterfuge whereby the School District would acquire a capital asset and incur a debt in violation of the Constitution. Under the challenged agreement, the Authority was to construct a school building to be leased to the School District for a term of thirty years at a rental sufficient to pay the interest and principal of the bonds issued to finance the construction and that portion of the Authority's administrative expenses allocable to the project. As in the instant case, rental payments were to be paid only from current revenues of the School District and it was expressly provided that if the entire rental for any year was not paid out of the current revenues of that year, the balance remaining due was to be paid out of the current revenues of succeeding years. In the event of default by the School District or the Authority, the power of any receiver appointed was limited to the operation and maintenance of the project. Thus, the assets of the Authority or the land upon which the project was erected could not be sold or disposed of by such receiver.
Finding that the current and reasonably anticipated future revenues of the School District would be sufficient to meet its rental obligations under the lease agreement, the Court held that the project was "self-liquidating" within the special meaning given that term in Kelley v. Earle, 325 Pa. 337, 190 A. 140 (1937), and that no debt within the contemplation of the Constitution was thereby created. Since obligations which do not overreach current revenues are not debts within the meaning of Article IX, §§ 8 and 10, see, e.g., Gemmill v. Calder, 332 Pa. 281, 284, 3 A.2d 7, 9 (1938); *502 Kelley v. Earle, 325 Pa. 337, 347, 190 A. 140, 145 (1937); Keller v. Scranton, 200 Pa. 130, 135, 49 A. 781, 782 (1901); Wade v. Oakmont Borough, 165 Pa. 479, 488, 30 A. 959, 962 (1895); Appeal of the City of Erie, 91 Pa. 398, 403 (1879), the anticipated ability of the School District to provide the required rental payments out of current revenues when such obligations become due was held sufficient to dispose of the objection.
More significantly for the case at hand, the Court determined that the immunity of the project from sale or execution on default and the inability of the creditors to compel payments beyond sums available from current revenues was of itself sufficient to support the conclusion that no debt in the constitutional sense was created. As the Court stated: "[I]nasmuch as the rental is, by the terms of the proposed lease, payable solely from current revenues, there is no question present of any possible increase in the indebtedness of the School District through its execution of the proposed contract with the Authority and the consequent lease." Greenhalgh v. Woolworth, 361 Pa. 543, 555, 64 A.2d 659, 665 (1949).
Although in the instant case we are not confronted with a lease agreement, we are of the view that the principles underlying the decision of this Court in Greenhalgh v. Woolworth, supra, are equally applicable here. We discern no distinction between the nature of the obligation undertaken by the City in the instant case and that incurred by the School District in Greenhalgh v. Woolworth which would justify according them different treatment for purposes of Article IX, §§ 8 and 10.
In the present case, as in Greenhalgh v. Woolworth, the obligation of the City of Pittsburgh to make payment to the Stadium Authority in the event the Authority sustains an operating deficit is expressly *503 limited to the availability of current revenues. This is made abundantly clear by that provision of the agreement which provides that in the event current revenues are not available to meet the deficit of the Authority in any given year, the unpaid balance shall be paid out of the current revenues of the City in the subsequent year or years. Thus, the contract, by its very terms, could not overreach the City's current revenues. Cf. Greenhalgh v. Woolworth, supra, at 555, 64 A.2d at 665. As this Court has consistently held, contracts or engagements which create obligations not exceeding current revenues do not constitute debts within the contemplation of the Constitution. Apollo Borough School District v. Kiskiminetas Township School District, 399 Pa. 80, 159 A.2d 705 (1960); Detweiler v. Hatfield Boro. School District, 376 Pa. 555, 104 A.2d 110 (1954); Greenhalgh v. Woolworth, 361 Pa. 543, 64 A.2d 659 (1949); Gemmill v. Calder, 332 Pa. 281, 3 A.2d 7 (1938); Kelley v. Earle, 325 Pa. 337, 190 A. 140 (1937); Keller v. Scranton, 200 Pa. 130, 49 A. 781 (1901); Wade v. Oakmont Borough, 165 Pa. 479, 30 A. 959 (1895); Appeal of the City of Erie, 91 Pa. 398 (1879).
Moreover, in the event of default by the City and the Authority, the power of the bondholders is limited to the operation and maintenance of the project and they are without power to sell or dispose of any assets held in connection with the project. Act of July 29, 1953, P.L. 1034, § 7, 53 P.S. § 23847. Thus, the limitation restricting the City's obligation to current revenues may not be circumvented by subjecting the assets of the project to sale or execution. Cf. Greenhalgh v. Woolworth, supra; Kelley v. Earle, supra; Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289 (1934). Under such circumstances, we are unable to conclude that the provision of the agreement between the City of Pittsburgh and the Stadium Authority here *504 in dispute creates a debt within the purview of the Constitution.
Plaintiff cites Kelley v. Earle, 320 Pa. 449, 182 A. 501 (1936); Lesser v. Warren Borough, 237 Pa. 501, 85 A. 839 (1912); and Brown v. City of Corry, 175 Pa. 528, 34 A. 854 (1896), contending that they compel a contrary conclusion. These cases are inapposite as each involved the acquisition of a capital asset which was subject to execution and sale in the event of default. See Greenhalgh v. Woolworth, supra at 556, 64 A.2d at 665, Kelley v. Earle, 325 Pa. 337, 351, 190 A. 140, 147 (1937).
Our conclusion that the challenged agreement does not violate the restrictions contained in Article IX, §§ 8 and 10 is reinforced by the recent decision of this Court in MacCalman v. Bucks County, 411 Pa. 316, 191 A.2d 265 (1963) (per curiam). In MacCalman, an authority was created to construct and operate a sewer line and treatment plant designed to serve certain municipalities located within Bucks County. The Authority proposed to enter into agreements with the municipalities to be served. Under the proposal, each municipality would pay a proportionate share of the annual debt service and operating expense of the Authority. Since it was anticipated that the participating municipalities would be unable to supply the required sums until such time as the number of sewer connections had increased sufficiently so as to provide funds to liquidate the annual expense, the County proposed to enter into a so-called "service agreement", by the terms of which the County would provide funds sufficient to make up any deficiency between the income and expenses, including debt service, of the facility. The agreement contemplated the appropriation from current revenues of amounts which would not exceed, on the average, $120,000 annually over a ten year period. Presumably, at the end of that term, it was contemplated *505 that the number of connections would have increased sufficiently to make the project self-sustaining and further county aid unnecessary.
The proposed "service agreement" was sought to be enjoined on the ground that it constituted an unlawful incurring of indebtedness by the County. The complaint was dismissed and this Court affirmed. By the very terms of the agreement, no indebtedness in the constitutional sense could be incurred. The source of payment having been limited expressly to current revenues, payment beyond the County's ability to provide the grant from current revenues could not be compelled. Thus, in MacCalman, as in the present case, no debt in the constitutional sense was created by the agreement.
We have carefully examined and considered the remaining allegations contained in plaintiff's complaint and are of the view that they fail to state a cause of action which would entitle him to the relief sought. Cf. Martin v. Philadelphia, 420 Pa. 14, 215 A.2d 894 (1966); Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 160 A.2d 539 (1960); Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 109 A.2d 331 (1954); Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289 (1934).
The preliminary objection is sustained and the complaint dismissed with prejudice.
Each party to pay own costs.
CONCURRING OPINION BY MR. CHIEF JUSTICE BELL:
The provisions with respect to a 40-year agreement and payments of deficits and debts by the City certainly violate the spirit and I believe the language of the Constitution mandated in Article IX, §§ 8 and 10.
There is probably no Judge on the bench who is as rabid a football fan as I, and who would like as much as I would to see an appropriate, attractive stadium built for football and other sports in Pittsburgh. However, *506 this furnishes neither an excuse nor a justification for violating the Constitution.
Nevertheless, because of several prior decisions of this Court with which I strongly disagree I feel obliged to concur in the result.
CONCURRING OPINION BY MR. JUSTICE MUSMANNO:
I heartily concur in the Majority Opinion which has excellently covered the various issues involved in this litigation. I would make an observation on the constitutional aspects of the case raised by the plaintiff and the Civic Club of Allegheny County, amicus curiae. The plaintiff contends that the agreement between the Stadium Authority and the City of Pittsburgh creates a debt which is violative of §§ 8 and 10 of Article IX of the Pennsylvania Constitution. The word "debt" is at most an ambiguous, equivocal term. As stated by this Court in Pennsylvania Co. v. Scott, 346 Pa. 13, "It is true that, while every debt is an obligation, not every obligation is a debt." The word, therefore, where the Constitution is involved, must be given its popular meaning. "Any provision of the Constitution must be interpreted in the popular sense and as understood by the people who adopted it." Goodwin v. Allegheny County, 182 Pa. Super. 28.
The Pennsylvania Legislature made its interpretation of the word "debt" very clear when it declared in the Act of June 29, 1953, P.L. 1034, that: "Any municipality may and it is hereby authorized to make annual grants from current revenues to the Authority to assist in defraying the costs of operation, maintenance and debt service of the project and to enter into long term agreements providing for the payment of the same."
It is to be noted here that the Legislature laid down no restrictions or limitations on grants to be made by the municipality. Did the Legislature violate the Constitution *507 in so authorizing the City to enter into the agreements here in controversy? I do not believe so. In Com. ex rel. v. Sunbury School District 335 Pa. 6, we specifically stated: "All legislation must be construed as intending to favor the public interest."
The Legislature in making the authorization, which the City has utilized, was not only presumably acting in the public interest but its sole purpose was to make possible the fulfillment of a public need. What is meant by public need? Public need "should be construed in such manner as to give constitutional sanction and life to the constantly changing conditions and needs of the people, not only of the horse and buggy age and the automobile age, but also of the airplane age, and the atomic age." (Evans v. W. Norriton Township Municipal Authority, 370 Pa. 150.)
In this litigation we are not dealing with the horse and buggy age, but with the atomic age. But, more than that, we are dealing with a modern development in an age which properly regards as essentials for all the people services which heretofore were enjoyed only by the wealthy and the affluent. There is need today to provide the public with facilities for recreation, sports and enjoyment of outdoor athletic competition. Even passive participation as an onlooker in competitive sports stimulates a desire for physical exercise. In any event it takes the spectator into the open air and provides him with exuberant escape from the cares of the day and arms him with recharged energy to meet responsibilities as a citizen. All this helps to build up a healthy community.
It is argued by the Civic Club of Allegheny County, amicus curiae, that the construction of the Pittsburgh Stadium is not a proper use of municipal authority because, it says, it provides for "luxury service rather than an essential service." Therefore, the construction should not be allowed under the conditions set out in *508 the various obligations. It says that "the community can survive without a baseball and football stadium, but it must have police, fire, school, sewage disposal, and other basic services."
The objective of a community is not merely to survive, but to progress, to go forward into an ever-increasing enjoyment of the blessings conferred by the rich resources of this nation under the benefaction of the Supreme Being for the benefit of all the people of that community.
If a well governed city were to confine its governmental functions merely to the task of assuring survival, if it were to do nothing but provide "basic services" for an animal survival, it would be a city without parks, swimming pools, zoo, baseball diamonds, football gridirons and playgrounds for children. Such a city would be a dreary city indeed. As man cannot live by bread alone, a city cannot endure on cement, asphalt and pipes alone. A city must have a municipal spirit beyond its physical properties, it must be alive with an esprit de corps, its personality must be such that visitors both business and tourist are attracted to the city, pleased by it and wish to return to it. That personality must be one to which the population contributes by mass participation in activities identified with that city.
Hardly anything in America symbolizes a large city more than its National or American League baseball team. To take the Pittsburgh baseball team out of Pittsburgh would be to deprive its people of the opportunity for a spontaneous outburst of civic pride, for which there is no substitute. In fact, it is practically impossible to visualize Pittsburgh without its Pirates. To take the Pirates out of Pittsburgh would be like taking them out of the history of the Spanish Main, it would be like diverting the course of the Allegheny and Monongahela River so that they would not form *509 the Ohio at the immortally historical Fort Pitt, it would be like turning the Golden Triangle into a Tin Pan Alley, it would be like transforming the 42-story Cathedral of Learning into a one-room country school-house.
But it is not enough to want the Pirates to stay, they must have a home. The Civic Club of Allegheny County says it does not argue against the Pirates, yet to deprive them of a place in which to perform their wholesome and exciting endeavors is equivalent to driving them out of Pittsburgh. Since Forbes Field will soon be only a memory, where are the Pirates to battle for the glory and pride of Pittsburgh, if the stadium is not constructed? It would be a sad day indeed if the Pirates should leave Pittsburgh and not return. Not to have the gladsome and thrilling Opening Day of the Baseball Season each spring, not to watch the tension-charged race of the home team against the teams from afar, not to be constantly buoyed up with the hope that with every game Pittsburgh may be getting closer to the coveted National League pennant and then go on to the electrifying sensation of the World Series when for a week, all foreign and domestic troubles and the vexations of the high cost of living are drowned out in the flood of throbbing anticipations not to have all this would be tragedy indeed in the history and life of Pittsburgh.
The Civic League does not seem to realize this and simply refers to baseball as a "luxury service" instead of accepting it, which it is, as an indispensably integral part of our municipal American way of life. If the Civic League wants to do away with all services except those which are indispensable to maintain life in a humdrum, lackluster existence, they should urge also the elimination of city parks, city swimming pools, city recreation centers, city museum, flower conservatory and public libraries.
*510 The Civic Club speaks derogatorily of the Pittsburgh Stadium as a "facility used exclusively for athletic sports." So are the parks and swimming pools devoted exclusively to athletic sports. Athletics are conducive to good health, they keep the blood stream supplied with invigorating oxygen, developing muscles and stamina, and it is as much a part of municipal function to encourage athletics as it is to clean out the swamps and malarial marshes. Rome and Greece at the height of their glory were as proud of their athletic excellences as they were of their military conquests.
The Civic Club says that the City is buying a "pig in a poke." It is difficult to see how one can call the proposed stadium a "pig in a poke." There is nothing clandestine about it; it will be large enough for the world to see, its financing is as clear as the sunshine in which it will operate. To employ the colloquialism of the Civic Club, it could be said that not only is the Pittsburgh Stadium not a "pig in a poke," but not to have a stadium would be to put Pittsburgh in the class of "a slow poke" so far as large cities are concerned, in the great race of athletic competition which does as much for the spirit of any community as prosperity does for its economic circulation.
Then the Civic Club complains because the financial commitment of the City will run for 40 years. Is 40 years long in the life of a city the size of Pittsburgh? What are 40 years in the history of Rome, Paris or London? 40 years may be a long time to wait for a bus or streetcar, but in the sands of time running through the hour glass of history, 40 years is but a wink into posterity.
The Civic Club looks to the future pessimistically and argues that Pittsburgh may not meet its obligations. It paints the coming years with the black paint of gloom, and it ties mortuary ribbons on the long horizon. It says that we cannot depend on continued *511 prosperity and then summons up the skeletons of the depression of yesteryear, dismally predicting that those same skeletons may again dance a grisly hornpipe across the greensward of Pittsburgh's tomorrow.
This kind of thinking, if it had been adhered to through the years since the time of the Indians, would have retained Pittsburgh as a trading post on the Ohio, visited by teachers and school children who would listen to a guide relate how George Washington had come to this backwoods frontier in 1753, and how it might have developed into a city, indeed a metropolis, except for groups of well-intentioned citizens that condemned expansion of the post, strengthening of the fort, development of the stage trails and later laying down of railroad tracks for fear that the financial commitments involved might not be met. "The next tour of the colonial cemetery will be at 3 o'clock in the afternoon."
I am certain that the members of the Civic Club will change their minds about the Pittsburgh Stadium after the baseball season has begun, and is under way. There is nothing in sportsland to surpass the thrill of watching the Flag rising on the Center Field flagpole to the accompaniment of the spine-tingling strains of the Star Spangled Banner, of jumping with attention to the umpire's sonorous cry of "Play Ball!", of listening to the dramatic crack of the bat as the ball goes soaring out into space, then watching the dust of the diamond exploding into clouds as the runner with the winning run comes furiously sliding into the home plate.
There is no song more symbolical of America's love of outdoor fun than "Take Me Out To The Ball Game!" I am sure that the Civic Club will, upon reflection, be happy that this Court will now assure Western Pennsylvania and surrounding territory that we will always have a ball game to watch and a home team to cheer. *512 The Club will have further reason for gratification that Pittsburgh will also continue to be assured of a home for the Pittsburgh Steelers. And it will be a matter of civic pride and local patriotism, always wholesome for a community, that these two fine teams will continue to have the opportunity to display their talents and abilities in the new, beautiful and magnificent Pittsburgh Stadium.
NOTES
[1] Also named as defendants in the complaint were the Mayor of the City of Pittsburgh, members of the City Council, the Director of Parks and Recreation, and the members of the Board of Directors of the Stadium Authority.
[2] Article V, § 3 of the Constitution of Pennsylvania vests in this Court, in the exercise of its discretion, Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 448 n.2, 160 A.2d 539, 541 n.2 (1960), "original jurisdiction in cases of injunction where a corporation is a party defendant . . . ." "Such jurisdiction extends to corporations which are municipal in nature." Ibid: Breslow v. Baldwin Township School District, 408 Pa. 121, 122-23, 182 A.2d 501, 502 (1962).
[3] Since the present matter comes before this Court upon the pleadings, on defendants' preliminary objection to plaintiff's complaint, it is appropriate to note at the outset that such objection admits only those facts which are well pleaded and relevant and the inferences which may be reasonably deduced therefrom. Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 448-49, 160 A.2d 539, 541 (1960). Thus, conclusions of law, expressions of opinion, argumentative allegations or inferences unwarranted by the admitted facts are not deemed admitted. Id. at 449, 160 A. 2d at 541. Finally, if to sustain the preliminary objections will result in a denial of plaintiff's claim, such objections will be sustained only in those cases which are clear and free from doubt. Schrader v. Heath, 408 Pa. 79, 182 A.2d 696, 698 (1962); Hyam v. Upper Montgomery Joint Authority, supra at 449, 160 A.2d at 541-42.
Plaintiff's complaint refers to various documents upon which reliance is placed in seeking equitable relief. Such documents were not annexed to the complaint. In their preliminary objection demurring to the complaint, defendants attached as exhibits true and correct copies of such documents. These documents, forming in part the foundation of the suit, may be considered by this Court in determining whether plaintiff has alleged facts which justify the equitable relief sought. See Detweiler v. Hatfield Borough School District, 376 Pa. 555, 104 A.2d 110 (1954); St. Peter's Roman Catholic Parish v. Urban Redevelopment Authority of Pittsburgh, 394 Pa. 194, 146 A.2d 724 (1958).
[4] See note 3 supra.
[5] The enabling act provides: "Every Authority incorporated under this act shall be a public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof, and shall be for the purpose of acquiring, holding, constructing, improving, maintaining and operating, owning, leasing, either in the capacity of lessor or lessee, public auditoriums, the purpose and interest of this act being to benefit the people of the Commonwealth by, among other things, increasing their commerce and prosperity and promoting their educational, cultural, physical, civic, social and moral welfare." Act of July 29, 1953, P.L. 1034, § 5, 53 P.S. § 23845. The term "public auditorium" is defined to include "any structure appropriate for large public assemblies, the holding of conventions, sporting tournaments, athletic contests and exhibitions. . . and other business, social, cultural, scientific and recreational events and all facilities necessary or incident thereto, including provisions for adequate off-street parking." Act of July 29, 1953, P.L. 1034, § 2, 53 P.S. § 23842.
[6] See Act of July 29, 1953, P.L. 1034, § 5, 53 P.S. §§ 23845(A), 23845(B) (d).
[7] Numerous courts have ruled that the mere incurring of a contingent future liability does not create an indebtedness within the ambit of such restrictions. See, e.g., American Co. v. City of Lakeport, 220 Cal. 548, 32 P.2d 622 (1934), but see City of Palm Springs v. Ringwald, 52 Cal. 2d 620, 342 P.2d 898 (1959) (semble); Quill v. City of Indianapolis, 124 Ind. 292, 23 N.E. 788 (1890); City of Springfield v. Monday, 353 Mo. 981, 185 S.W.2d 788 (1945); City of Lebanon v. Schneider, 349 Mo. 712, 163 S.W.2d 588 (1942); Marks v. City of Mandan, 70 N.D. 474, 296 N.W. 39 (1940); Borek v. Golder, 190 Misc. 366, 74 N.Y.S.2d 675 (S. Ct. Oneida Co. 1947); Davidson v. City of Elmira, 180 Misc. 1052, 44 N.Y.S.2d 302 (S. Ct. Chemung Co.), aff'd 46 N.Y.S.2d 655 (App. Div. 1943), appeal denied, 47 N.Y.S.2d 604 (App. Div. 1944); Pearson v. Salt Lake County, 9 Utah 2d 388, 346 P.2d 155 (1959); Comfort v. City of Tacoma, 142 Wash. 249, 252 P. 929 (1927); cf. Walla Walla City v. Walla Walla Water Co., 172 U.S. 1, 19 S. Ct. 77 (1898); Ward v. City of Big Spring, 161 S.W.2d 821 (Tex. Civ. App. 1942), rev'd on other grounds, 140 Tex. 609, 169 S.W.2d 151 (1943). See also 15 McQuillin, Municipal Corporations §§ 41.18, 41.23 (3d ed. 1950).
Other courts, however, while recognizing that a contingent liability is not a "debt" in the technical sense of that term, have resolved the issue by placing a more general and comprehensive construction on restrictions on municipal spending and have held such restrictions applicable to obligations incurred in any manner, or for any purpose, including contingent liabilities. See, e.g., Smith v. Town of Guin, 229 Ala. 61, 155 So. 865 (1934); Austin v. Healy, 376 Ill. 633, 35 N.E.2d 78 (1941); Wickey v. Muscatine County, 242 Iowa 272, 46 N.W.2d 32 (1951); Button v. Day, 205 Va. 629, 139 S.E.2d 91 (1964). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583946/ | 24 So. 3d 1284 (2010)
Susan MATHIS, Appellant,
v.
Jim COATS, as Sheriff of Pinellas County, Florida, Appellee.
No. 2D09-193.
District Court of Appeal of Florida, Second District.
January 8, 2010.
*1286 Elihu H. Berman of Elihu H. Berman, P.A., Clearwater, for Appellant.
Sherwood S. Coleman, Largo, for Appellee.
LaROSE, Judge.
Susan Mathis appeals a final summary judgment entered in favor of Sheriff Jim Coats.[1] She sued the Sheriff for false arrest. Ms. Mathis raises three issues for our review. First, she challenges the trial court's determination that she was under arrest when she was taken to Central Breath Testing (CBT). Second, she challenges the trial court's conclusion that a deputy had probable cause to arrest her for driving under the influence (DUI). Third, she challenges the denial of her motion to file an amended complaint. We reverse and remand to allow Ms. Mathis to file an amended complaint. We affirm in all other respects.
Factual Background
On a summer afternoon in 2004, Ms. Mathis was driving north on U.S. Hwy. 19 in Pinellas County. Deputy McKenzie saw her strike the center median, nearly sideswipe another vehicle, and then strike the center median again. A backup deputy stopped Ms. Mathis. She does not contest the validity of the stop.
Deputy McKenzie told Ms. Mathis that she failed to maintain a single lane and nearly caused a collision. According to Deputy McKenzie, Ms. Mathis seemed agitated and moved in a very jerky fashion. He also testified that she had bloodshot eyes.[2] In his written report, Deputy McKenzie noted that Ms. Mathis had slow coordination, exhibited difficulty following conversation, and had a flushed face. Yet, she was cooperative, did not smell of alcohol, and had clear speech. At the scene, Ms. Mathis reported that she had no sleep the previous night, took medication, and wore contact lenses. Although she denied being sick or injured at the scene, Ms. Mathis later reported that she had a broken right radius and complained of being nauseous at CBT.
Based on his observations, Deputy McKenzie administered a series of field sobriety tests that Ms. Mathis could not satisfactorily complete. He concluded that she was driving under the influence, in violation of section 316.193, Florida Statutes (2003).
Deputy McKenzie handcuffed Ms. Mathis, placed her in his cruiser, and drove her to CBT. There, she was subjected to another *1287 set of field sobriety tests. Ms. Mathis also submitted to a breath test; there was no indication of alcohol. Due to the inconsistency between the breath test and the field sobriety test results, Deputy McKenzie requested a urine sample from Ms. Mathis, and another deputy conducted a drug recognition evaluation.[3] At that point, about 6:30 p.m., Ms. Mathis was given a DUI citation and taken to the jail's booking area. She was released from jail at about noon the next day.
The On-Scene Arrest
Ms. Mathis argues that she was not under arrest until sometime after she arrived at CBT. As we understand her argument, there was no probable cause to arrest her based on the observations made at CBT. Thus, she argues that the trial court erred in concluding that she was under arrest when she was placed in the cruiser at the scene of the stop. Ms. Mathis also contends that she was not under arrest at the scene because she was not told specifically that, indeed, she was under arrest. She claims that she was being detained only for investigation.
A determination of when Ms. Mathis was under arrest is important to assess whether her false arrest claim is barred by the existence of probable cause. As the trial court recognized, it must "analyze whether there was probable cause at the time [Ms. Mathis] was arrested."
A lawful arrest occurs when there is:
1) a purpose or intention to effect an arrest; 2) an actual or constructive seizure or detention by a person having present power to control the person arrested; and 3) communication by the arresting officer to, and an understanding by, the person whose arrest is sought of the officer's purpose and intention to effect an arrest.
Dep't of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1167 n. 2 (Fla. 5th DCA 2003) (citing Kearse v. State, 662 So. 2d 677, 682-83 (Fla.1995)). Griggs v. State, 994 So. 2d 1198, 1199 (Fla. 5th DCA 2008), is instructive. There, the accused was handcuffed and told he was being detained following a traffic stop. Police searched his vehicle while he sat by the side of the road. Id. He was placed in a cruiser and taken to a police building. Id. The officers never used the word "arrest." Id. After an interview, the accused was released. Id. The Fifth District held that the officers "undoubtedly communicated their intention to effect an arrest by their actions," regardless of whether the word "arrest" was used. Id. at 1201. "`Where... the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest.'" Id. (quoting Saturnino-Boudet v. State, 682 So. 2d 188, 193 (Fla. 3d DCA 1996)). See also Whitley, 846 So.2d at 1167 n. 2 (noting that an officer need not notify the detained individual that she is under arrest; officer's conduct alone may be sufficient to inform the person).
Also noteworthy is State v. Rivas-Marmol, 679 So. 2d 808, 809 (Fla. 3d DCA 1996), where the Third District determined that an arrest of an individual accused of DUI occurred after he failed a field sobriety test and was handcuffed, placed in the back of a police cruiser, and advised he was going to the police station.
In the case before us, Ms. Mathis was detained and, after failing to complete the field sobriety tests, handcuffed and involuntarily *1288 transported to CBT. Ms. Mathis was notified that her car would be impounded if alternate arrangements were not made to secure it. Although Deputy McKenzie told Ms. Mathis why she was stopped and testified that he transferred her to CBT to continue the DUI investigation, these statements are insufficient to establish mere detention. See Rivas-Marmol, 679 So.2d at 809 (holding that an arrest occurred despite an officer's testimony that the accused was only detained prior to a breath test). The trial court correctly concluded that Ms. Mathis was under arrest at the scene of the traffic stop.
Probable Cause
We must now determine whether the trial court properly concluded that probable cause existed at the time of arrest. We review the trial court's decision de novo. See City of Clearwater v. Williamson, 938 So. 2d 985, 988 (Fla. 2d DCA 2006) (applying a de novo standard of review in a case involving an underlying probable cause question). Sufficient probable cause to justify an arrest exists where the facts and circumstances allow a reasonable officer to conclude that an offense has been committed. State v. Riehl, 504 So. 2d 798, 800 (Fla. 2d DCA 1987); Mailly v. Jenne, 867 So. 2d 1250, 1251 (Fla. 4th DCA 2004). The existence of probable cause requires an examination of the totality of the circumstances. Williamson, 938 So.2d at 989. The facts are to be analyzed from the officer's knowledge, practical experience, special training, and other trustworthy information. City of Jacksonville v. Alexander, 487 So. 2d 1144, 1146 (Fla. 1st DCA 1986).
Many factors contribute to a finding of probable cause for a DUI arrest. David A. Demers, "Probable Cause for DUI Arrest," in DUI Handbook § 4.6(c) (11 West's Fla. Practice Series 2008-2009 ed.). For example, although an odor of alcohol is significant, it may not be dispositive. State v. Kliphouse, 771 So. 2d 16, 23 (Fla. 4th DCA 2000). Other factors "may include the defendant's reckless or dangerous operation of a vehicle, slurred speech, lack of balance or dexterity, flushed face, bloodshot eyes, admissions, and poor performance on field sobriety exercises." Id. (footnotes omitted); see also Ingram v. State, 928 So. 2d 423 (Fla. 1st DCA 2006) (determining that law enforcement had probable cause to arrest defendant for DUI where defendant drove erratically, drove completely off the road, and had watery and bloodshot eyes and impeded speech); Whitley, 846 So.2d at 1166 (holding that there was probable cause to arrest defendant for DUI where, among other factors, the officer observed defendant driving erratically and defendant's eyes were glassy); McNall v. Dep't of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1163 (Fla. 20th Cir.Ct.2006) (determining there was probable cause for a DUI arrest where a vehicle made a sudden jerk movement to the right and then back to the left while going eastbound, during that movement both left tires crossed the white line into the center eastbound lane, vehicle slowed down and sped up suddenly and made several drifting movements within the right lane, defendant's eyes were red and watery, and defendant had problems with the field sobriety tests).
Ms. Mathis argues that Deputy McKenzie unreasonably declined to accept her excuses for her erratic driving, unusual behavior, and difficulties performing the field sobriety tests. The deputy need not eliminate all possible defenses in order to establish probable cause. See Williamson, 938 So.2d at 990 (stating that an officer is not required to take every conceivable step to investigate a defendant's excuses prior to making a probable cause determination). *1289 Deputy McKenzie's determination that probable cause for arrest existed was reasonable under the circumstances and based on information then available to him. The arrest was lawful. Probable cause barred an action for false arrest on the record as then developed. See Bolanos v. Metro. Dade County, 677 So. 2d 1005, 1005 (Fla. 3d DCA 1996).
Amended Complaint
After the trial court orally announced the grant of the Sheriff's motion for summary judgment, Ms. Mathis filed a motion for reconsideration and sought leave to file an amended complaint. The trial court denied her requests. Reasonably read, the amendment purportedly asserted a cause of action based on Ms. Mathis's unlawful seizure and subsequent detention in jail for an unreasonable length of time.[4] Absent an abuse of discretion, a trial court's decision to permit or refuse an amendment will stand. Ohio Cas. Ins. Co. v. MRK Constr., Inc., 602 So. 2d 976, 978 (Fla. 2d DCA 1992). "It is an abuse of discretion to disallow amendment of a pleading unless it clearly appears the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile." Colandrea v. King, 661 So. 2d 1250, 1251 (Fla. 2d DCA 1995).
To the extent Ms. Mathis purported to revitalize a false arrest claim, she must fail. The proposed amendment as to either the Sheriff or Deputy McKenzie on a false arrest theory would be futile; probable cause existed to arrest Ms. Mathis at the scene of the traffic stop.
We cannot say the same to the extent that the proposed amendment challenged her continued detention at CBT. Though not exacting in its details, the proposed amendment appears to assert a cause of action for false imprisonment. False arrest and false imprisonment are closely related, but false imprisonment is a broader common law tort; false arrest is only one of several methods of committing false imprisonment. See § 787.02(1)(a), Fla. Stat. (2004) ("The term `false imprisonment' means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will."); Everett v. Fla. Inst. of Tech., 503 So. 2d 1382, 1383 (Fla. 5th DCA 1987) (holding that a claim that a hospital involuntarily held the plaintiff without complying with Baker Act provisions adequately alleged the tort of false imprisonment); Candy H. v. Redemption Ranch, Inc., 563 F. Supp. 505, 516 (M.D.Ala.1983) (recognizing a cause of action for false imprisonment against a home for unwed girls); Big Town Nursing Home, Inc. v. Newman, 461 S.W.2d 195, 197 (Tex.Civ.App.1970) (affirming judgment for false imprisonment by a nursing home). Indeed, a person improperly detained pursuant to a lawful arrest may have the right to bring an action for false imprisonment. Andrews v. Fla. Parole Comm'n, 768 So. 2d 1257, 1266 (Fla. 1st DCA 2000).
The essential elements of a cause of action for false imprisonment include: (1) the unlawful detention and deprivation of liberty of a person; (2) against that person's will; (3) without legal authority or "color of authority"; and (4) which is unreasonable and unwarranted under the circumstances. Montejo v. Martin Mem'l Med. Ctr., Inc., 935 So. 2d 1266, 1268 (Fla. *1290 4th DCA 2006) (citing Johnson v. Weiner, 155 Fla. 169, 19 So. 2d 699, 700 (1944); Jackson v. Navarro, 665 So. 2d 340, 341 (Fla. 4th DCA 1995)).
Although probable cause existed at the time Ms. Mathis was arrested at the scene, she may be able to demonstrate that probable cause evaporated at some point after she was transported to CBT and jailed. After transport to CBT, Ms. Mathis's breathalyzer test showed a .000 reading. A subsequent urinalysis indicated no level of drug or other intoxicants. We cannot say that Ms. Mathis's proposed amended complaint was futile. See Sponar v. S.C. Dep't of Pub. Safety, 361 S.C. 35, 603 S.E.2d 412, 416 n. 3 (2004) (noting that an individual whom authorities continued to detain for DUI after registering below.05% on a breath test may have recourse in a civil action for false imprisonment); McConney v. City of Houston, 863 F.2d 1180, 1185 (5th Cir.1989) (concluding that "a person may constitutionally be detained for at least four or five hours following a lawful warrantless arrest for public intoxication without the responsible officers having any affirmative duty during that time to inquire further as to whether the person is intoxicated"; an arrestee should be released once it is ascertained that he is not intoxicated); Babers v. City of Tallassee, Ala., 152 F. Supp. 2d 1298, 1309 (M.D.Ala. 2001) ("[F]ollowing a lawful warrantless arrest, a police officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the basis for the arrest was unfounded.").
Conclusion
We conclude that Ms. Mathis was under arrest when she was placed in the cruiser for transport to CBT. Probable cause existed to arrest Ms. Mathis for DUI at that point. However, Ms. Mathis should have been given leave to amend her complaint to pursue claims as to whether she was unlawfully detained after, and if, probable cause ceased to exist to justify her continued detention.
Affirmed in part, reversed in part, and remanded.
ALTENBERND and VILLANTI, JJ., Concur.
NOTES
[1] A motion for summary judgment may be granted if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). We review the trial court's ruling de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000).
[2] A drug evaluation form indicates that Ms. Mathis's eyes were glassy, not bloodshot.
[3] The urinalysis proved negative, although the results were obtained some days later.
[4] We note that section 943.0585, Florida Statutes (2009), provides that a court can order a criminal justice agency to expunge the "criminal history record" of an individual. See generally 15 Fla. Jur. 2d Criminal Law § 2105 (2009) (providing an overview of the expunction procedure). Our record is silent as to whether Ms. Mathis has pursued this option. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583304/ | 728 N.W.2d 61 (2006)
HANNAN
v.
STATE.
No. 05-0146.
Iowa Court of Appeals.
November 30, 2006.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558409/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
No. 04-20-00289-CR
Neil Howard MCGINNIS,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 6774
Honorable Kirsten Cohoon, Judge Presiding
ORDER
On August 10, 2020, we advised the court reporter that the records were late. On August
17, 2020, court reporter Connie Calvert advised this court that counsel has not asked her to
prepare the reporter’s records.
We ORDER Appellant to provide written proof to this court within TEN DAYS of the
date of this order that (1) Appellant has delivered a written request to prepare the reporter’s
records to court reporter Connie Calvert that designates any exhibits to be included, see TEX. R.
APP. P. 34.6(b), and (2) either the arrangements have been made to pay the reporter’s fee, or
Appellant is entitled to free reporter’s records, see TEX. R. APP. P. 20.2.
If Appellant fails to respond as ordered, Appellant’s briefs will be due within THIRTY
DAYS of the date of this order, and the court will only consider those issues or points raised in
Appellant’s briefs that do not require a reporter’s record for a decision. See TEX. R. APP. P.
37.3(c).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of August, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1583417/ | 728 N.W.2d 223 (2006)
CEJVANOVIC
v.
STATE.
No. 05-1226.
Iowa Court of Appeals.
December 13, 2006.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918591/ | 411 B.R. 774 (2009)
In re ALL STAR MORTGAGE FINANCIAL CORP., Debtor.
Barry E. Mukamal, Chapter 7 Trustee, Plaintiff,
v.
Leymi Lima and Francisco Hernandez, Defendants.
Bankruptcy No. 07-15984-BKC-AJC. Adversary No. 08-01853-BKC-AJC.
United States Bankruptcy Court, S.D. Florida, Miami Division.
July 17, 2009.
*776 Timothy S, Kingcade, Esq., Miami, FL, for Debtor.
Daniel N. Gonzalez, Esq., Michael S Budwick, Esq., Miami, FL, for Plaintiff.
Stuart M. Gold, Esq., Miami Lakes, FL, for Defendants.
ORDER GRANTING PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' VERIFIED MOTION FOR SUMMARY JUDGMENT
A. JAY CRISTOL, Chief Judge.
THIS MATTER came on for hearing before the Court on May 18, 2009 at 10:00 a.m. upon Defendants' Motion for Summary Judgment ("Defendants' Motion") [D.E. 12] and upon the Plaintiffs Cross-Motion for Summary Judgment and Incorporated Memorandum of Law (the "Trustee Motion") [D.E. 25]. The Court having reviewed the Trustee Motion, the Defendants' Motion and the Court file, having heard argument of counsel, and having considered the documentary evidence of record, the Trustee Motion is GRANTED and the Defendants' Motion is DENIED. Summary Judgment is entered in favor of the Trustee accordingly.
Undisputed Facts
1. On July 31, 2007, All Star Mortgage Financial Corp. ("All Star") filed a Voluntary Petition under Chapter 7 of the United States Bankruptcy Code and an Order for Relief was duly entered.
2. Barry E. Mukamal (the "Trustee and/or Plaintiff") is the duly appointed Chapter 7 Trustee in this case.
3. All Star was a mortgage brokerage business that performed direct lending services. More specifically, All Star had a warehouse line (the "Warehouse Line") of credit from Gateway Bank which it used to fund loans to individuals that "qualified" under All Star's lending criteria.
4. Upon All Star funding/making a loan to a "qualified" individual from its Warehouse Line, All Star would then sell the loan documents to an institutional lender. Upon the sale of the loan documents to an institutional lender, All Star was supposed to use those monies to put back into its Warehouse Line.
5. Potential All Star borrowers included friends and business associates of All Star's principal, Steven Dubberly, and other employees of All Star.
*777 Mrs. Lima and Mr. Hernandez
6. Mrs. Lima and Mr. Hernandez are married.
7. On November 21, 2003, Frank Hernandez ("Mr. Hernandez") entered into a Subscription Agreement with All Star (the "Subscription Agreement"). A copy of the Subscription Agreement is attached as Exhibit "A" to the Trustee Motion.
8. Pursuant to the Subscription Agreement, Mr. Hernandez purchased 100 shares of All Star's Series A Preferred Stock for a price of $100,000 ($1,000 a share).
9. Paragraph 5 of the Subscription Agreement provides that the Subscription Agreement is non-transferable or assignable.
10. On February 14, 2004, Mr. Hernandez gifted to Leymi Lima ("Ms. Lima,")(collectively, Mr. Hernandez and Mrs. Lima will be referred to as the "Defendants") his 100 shares of All Star's Series A Preferred Stock and assigned to her the Subscription Agreement.
11. In addition, on November 21, 2003, Mr. Hernandez, and not Ms. Lima, loaned All Star $120,000, which loan was evidenced by a promissory note, and mortgage (the "Note and Mortgage") on All Star's parcel of real property located at 8830 Coral Way, Miami, FL 33165 (the "Property") in the name of Mr. Hernandez only. Attached as Composite Exhibit "B" to the Trustee Motion are the Note and Mortgage.
12. The Note and Mortgage were never recorded in the public records of Miami-Dade County, Florida.
The State Court Lawsuit
21. On June 1, 2007, Mrs. Lima sued All Star in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Case No. 06-06852 CA 22 (the "State Court Action") for Breach of Contract and Impression of Lien. A copy of the complaint initiating the State Court Action is attached as Exhibit "C" to the Trustee Motion. Mr. Hernandez was not a party to the State Court Action.
22. In addition, Mrs. Lima recorded a Notice of Lis Pendens on March 30, 2007, in Official Records Book 25494, page 0404, of the Public Records of Miami-Dade County, Florida (the "Lis Pendens"). A copy of the Lis Pendens is attached as Exhibit "D" to the Trustee Motion. Mr. Hernandez is not named, nor referenced, in the Lis Pendens.
23. Pursuant to the Breach of Contract count in the complaint filed by Mrs. Lima in the State Court Action, Mrs. Lima alleged that Mr. Hernandez performed the terms of the Subscription Agreement by tendering to All Star the $100,000 in exchange for the 100 shares of All Star's Series A Preferred Stock, but that All Star had breached the Subscription Agreement by failing to make the "payments of the preferred return ... as required under the terms of the Subscription Agreement."
24. Pursuant to the Impression of Lien count in the complaint filed by Mrs. Lima in the State Court Action, Mrs. Lima alleged that All Star was allowing the Property to go into foreclosure. As a result, Mrs. Lima requested the entry of a judgment: appointing a receiver to sell the Property; establishing an equitable lien/contractual lien against the Property in the amount of the preferred return under the Subscription Agreement; and, directing that the value of her 100 shares of All Star's Series A Preferred Stock be distributed to her prior to any payments being made to the other equity holders of All Star.
24. Nowhere in the complaint in the State Court Action was there a mention of *778 the Note and Mortgage. The complaint is based upon the Series A Preferred Stock in All Star.
Sale of the Property by the Trustee
25. On December 5, 2007, the Trustee sold the Property pursuant to 11 U.S.C. § 363. The net proceeds from the sale of the Coral Way Property are approximately $466,000 (the "Sale Proceeds"), which are currently being held by the Trustee.
26. Mrs. Lima and Mr. Hernandez have claimed an interest in the Sale Proceeds by virtue of the unrecorded Note and Mortgage.
27. On November 19, 2007, one day after the expiration of the deadline to file proofs of claim, Mrs. Lima filed a secured proof of claim in the amount of $225,239.10 based on the unrecorded Note and Mortgage. See Proof of Claim 19 filed in All Star's main bankruptcy case.
28. On November 13, 2008, Mrs. Lima, together with Mr. Hernandez, filed an amended secured proof of claim in the amount of $212,313.25 (the "Amended Claim") based on the unrecorded Note and Mortgage. See Proof of Claim 28 filed in All Star's main bankruptcy case.
29. Prior to the filing of the Amended Claim, Mr. Hernandez had not filed a proof of claim in the All Star bankruptcy case.
30. It is undisputed that, on the Petition Date, the Trustee was not aware that Mr. Hernandez was claiming an equitable lien on the Property by virtue of his unrecorded Note and Mortgage as neither was recorded in the public records of Miami-Dade County, Florida.
31. Mrs. Lima and Mr. Hernandez have communicated to the Trustee that they are asserting a secured claim in the amount of the unrecorded Note and Mortgage against the Sale Proceeds as a result of the filing of the Lis Pendens.
Conclusions of Law
This Court has jurisdiction over this contested matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (K).
A. Standard for Summary Judgment
Pursuant to Fed.R.Civ.P. 56, as incorporated by Fed.R.Bankr.P. 7056, summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Once the moving party identifies those portions of the record that demonstrate the absence of a genuine issue of material fact, any party opposing summary judgment must set forth specific facts showing a genuine issue for trial, and may not rely on mere allegations or denials. Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Martin v. Commercial Union Ins. Co., 935 F.2d 235, 238 (11th Cir.1991). If the record as a whole could not lead a rational finder of fact to find for the non-moving party, then there is no genuine issue of fact precluding summary judgment. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B. The Defendants Did Not Have an Equitable Lien on the Petition Date
In the their Motion, the Defendants state that "to establish an equitable lien under Florida law, [a] mortgagee need only establish a contract with [the] debtors showing the intent to charge property with a debt or obligation, which the Defendants have done in this case." See Defendants' Motion at ¶ 12. In support of this statement, the Defendants cite In re Diamond, *779 196 B.R. 635 (Bankr.S.D.Fla.1996), wherein the Court determined that an equitable lien could be found "upon (1) a contract showing an intent to charge a particular property with a debt or an obligation or (2) a court may impose such a lien out of general considerations of right or justice." Id. at pg. 639; see also Cohen v. State of New Jersey (In re Tsiolas), 236 B.R. 85, 88 (Bankr.M.D.Fla.1999).
While the court in Diamond determined the foregoing to be an appropriate assessment of the law under the circumstances, the facts of this case do not warrant or compel such a result. Diamond does not stand for the proposition that a mortgage holder has an automatic equitable lien on real property when it fails to record a mortgage. Rather, Diamond involved a situation where First Union National Bank of Florida ("First Union") lent money to the debtors and in return First Union received a note and mortgage on the debtors' homestead property. Id. at 637-638. However, First Union lost the note and mortgage prior to recording the mortgage in the public records. Id. at 638. As a result, First Union filed an action in state court for reestablishment of the lost note and mortgage, which the debtors answered and admitted that they executed and delivered the note and mortgage to First Union. Id. In addition, First Union recorded a notice of lis pendens on the debtors' property, which notice of lis pendens expressly stated that the state court action was an action for the reestablishment of the lost note and mortgage. Id. Thereafter, the debtors filed for Chapter 7 bankruptcy protection. Id.
During their Chapter 7 case, First Union commenced an adversary proceeding seeking to determine the validity, priority and extent of the lost note and mortgage on the debtors' property. Id. First Union sought the imposition of an equitable lien and further argued that the recording of the notice of lis pendens charged prospective purchasers "with constructive notice of the pendency of the litigation and such purchasers and encumbrances would take subject to the decree of the state court regarding First Union's alleged lien." Id. at 639. In response, the debtors asserted that any lien held by First Union was avoidable pursuant to 11 U.S.C. § 544 on the basis that a bankruptcy trustee has the power to avoid any unperfected lien, and that the notice of lis pendens only provided constructive notice of First Union's alleged lien which could be avoided by Section 544. Id. Finding that the debtors did have notice of First Union's alleged equitable lien, the Court ruled in favor of First Union. Id. at 641.
Diamond is unpersuasive for several reasons. First, in Diamond there was a contract showing an intent to charge a particular property with a debt or an obligation (i.e. the note and mortgage). Second, the debtors in Diamond acknowledged that they knew of the existence of the note and mortgage on the petition date. Third, the notice of lis pendens in Diamond expressly referenced that the lawsuit pending in state court involved the reestablishment of a lost note and mortgage on the debtors' property. And fourth, it is common knowledge that First Union was a bank in the business of making loans.
In the instant case, on the Petition Date, the Trustee did not know of the existence of the Note and Mortgage as neither was recorded in the public records. Second, Mrs. Lima's State Court Action was not predicated on a contract showing an intent to charge a particular property with a debt or an obligationrather, the State Court Action involved the breach of a subscription agreement and the request for the imposition of an equitable lien *780 based on such breach, not on a contract showing an intent to charge the Property with a debt or obligation. The Lis Pendens recorded by Mrs. Lima did not describe, or even reference, the Note, Mortgage, or claim for an equitable lien. In addition, the Lis Pendens did not mention Mr. Hernandezthe holder of the unrecorded Note and Mortgage. And, the Defendants were not a bank, such as First Union. Clearly, the Diamond case is inapplicable to the instant case.
The Defendants also rely on In re Gunn, 2005 WL 2445909 (Bankr.S.D.Fla. Jan.12, 2005) to support their position, but the Court finds Gunn to be equally unpersuasive as the facts in Gunn are distinguishable from the facts in the instant case. In Gunn, the Chapter 7 trustee attempted to avoid the conveyance of a parcel of property as a result of a defect in the deed conveying the property. The Court found that based on the documents recorded in the public records (including a mortgage, the defective deed, and a lis pendens referring to the mortgage), the Chapter 7 trustee was on notice of the interest of a third party in such property, even though the deed was defective, and therefore the Chapter 7 trustee could not avoid the conveyance of the property. The facts, and equities, apparent in Gunn are just not present in this case, and the Court finds Gunn inapplicable herein.
The relief Defendants request is not consistent with the policies of the Bankruptcy Code. As Judge Paskay stated in In re G & R Builders, Inc. 123 B.R. 654, 660 (Bankr.M.D.Fla.1990) (citations omitted), "[t]he recognition of equitable liens where available means of perfecting legal liens have not been employed is hereby declared to be contrary to the policy of this section." In the instant case, the Defendants had almost four years to record the Note and Mortgage but simply failed, or re-fused, to do so. This Court finds that the Defendants do not have an equitable lien on the Sale Proceeds.
C. The Trustee is a Bona Fide Purchaser or Creditor Without Notice
The Defendants argue that the Lis Pendens provided the Trustee with both constructive and/or inquiry notice of Mr. Hernandez's unrecorded Note and Mortgage, and therefore, the Trustee was not a bonafide purchaser or creditor without notice for purposes of 11 U.S.C. § 544. Pursuant to 11 U.S.C. § 544, the Trustee may avoid any transfer of All Star's property or any obligation that All Star incurred that is voidable by a bonafide purchaser or a creditor without notice. Under Florida law, the Trustee here is a bonafide purchaser or creditor without notice, since the Trustee had neither actual, constructive, or inquiry notice of the Note and Mortgage. See In re Gunn, 2005 WL 2445909 (Bankr.S.D.Fla. Jan.12, 2005).
Here, it is material that the Note and Mortgage were in the name of Mr. Hernandez only. However, the State Court Action and Lis Pendens were in the name of Mrs. Lima only. For purposes of reviewing the public records, the Trustee was on notice (via the Lis Pendens) that Mrs. Lima was claiming an equitable lien on the Property as a result of the All Star's alleged breach of the Subscription Agreement. However, the Trustee could not have been on notice of Mr. Hernandez's Note and Mortgage because such Note and Mortgage were never recorded nor did the Lis Pendens describe the Note and Mortgage or mention Mr. Hernandez's name. A search of the public records would not have revealed the existence of the unrecorded Note and Mortgage, nor would it have led the Trustee to inquire whether Francisco Hernandez had any *781 type of interest in the Property. See e.g. In re CJW, Ltd., Inc., 172 B.R. 675, 685 (Bankr.M.D.Fla.1994).
It is undisputed that the Trustee did not have constructive notice of the Note and Mortgage because neither was recorded in the public records, and the notice of Lis Pendens only referenced the State Court Action in the name of Mrs. Lima, which lawsuit also failed to claim the existence of the Note and Mortgage. In re Gunn, 2005 WL 2445909 at *4 (noting that constructive notice "is notice of all claims which are revealed by the public records").
Moreover, the Trustee did not have inquiry notice, also known as implied actual notice, of the Note and Mortgage. Inquiry notice is "notice inferred from the fact that the person had means of knowledge, which it was his duty to use and which he did not use." Id. at *5 (internal quotations omitted). There are two requirements for the duty of inquiry to presumptively arise: (1) "the circumstances must be such as should reasonably suggest inquiry;" and, (2) "even if the circumstances suggest inquiry, if the search, even though not conducted, was certain to be futile, the presumption of the duty to inquire is rebutted, and no notice should be imputed." See Smith v. The Fed. Deposit Ins. Corp., 61 F.3d 1552, 1558 (11th Cir. 1995). Inquiry notice prevents a person from remaining "wilfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand." See Crown Gen. Stores, Inc. v. Ultra Meat Market, Inc., 843 So.2d 287, 289 (internal quotations omitted).
The Defendants misunderstand the significance of the filing Lis Pendens since they erroneously argue that the Lis Pendens provides the Trustee with both constructive or inquiry notice of the unrecorded Note and Mortgage. Under Florida law, a lis pendens does not extend beyond the prayer for relief, as it is notice of all facts apparent on the face of the pleadings and such other facts in the pleadings which would necessarily provide the purchaser inquiry notice. See Marchand v. De Soto Mortgage Co., 149 So.2d 357 (Fla. 2d DCA 1963). Because the Lis Pendens at issue herein references the State Court Action which fails to state in its pleadings the existence of the Note and Mortgage, or the name of Mr. Hernandez, the Trustee cannot be charged with inquiry notice of Defendants' asserted equitable lien based upon Mr. Hernandez's unrecorded Note and Mortgage. Unlike Diamond or Gunn, neither the Lis Pendens nor State Court Action referenced the Note and Mortgage, or Mr. Hernandez, in a way that would lead the Trustee to inquire as to the possible existence of the unrecorded Note and Mortgage. Accordingly, the Trustee could not be charged with notice of the unrecorded Note and Mortgage.
D. The Trustee, as a Bonafide Purchaser or Creditor Without Notice, has a Hypothetical Lien Perfected as of the Bankruptcy Petition Date, Thereby Allowing the Trustee to Avoid, Pursuant to the Trustee's Strong-Arm Powers, Defendants' Unperfected Lien
The Court having determined that the Trustee is a bonafide purchaser or creditor without notice, the Trustee has a hypothetical lien, perfected as of the bankruptcy petition date, pursuant to 11 U.S.C. § 544. See Trodglen v. Hastings (In re Trodglen), 155 B.R. 601 (Bankr.S.D.Fla. 1993); First Am. Bank & Trust Co. of Athens, Ga. v. Harris (Matter of Stewart), 74 B.R. 350 (Bankr.M.D.Ga.1987). The Defendants failed to perfect their lien, as evidenced by their unrecorded Note and Mortgage, as of the bankruptcy petition *782 date. Thus, the Trustee's perfected hypothetical lien is superior to the Defendants' unperfected interest. See Trodglen, 155 B.R. at 601 (creditors' unperfected lien could be avoided by trustee pursuant to strong-arm powers in 11 U.S.C. § 544); Stewart, 74 B.R. at 350 (Chapter 7 trustee, as a hypothetical lien creditor, has priority over creditor's unperfected security interest).
Under Florida law, the right of a subsequent valid lienholder without notice is superior to the right of a holder of an equitable lien. Nat'l Bank of Miami v. Gen. Coffee Corp. (In re Gen. Coffee Corp.), 828 F.2d 699, 706 (11th Cir.1987). An equitable lien is superior to all persons except bona fide purchasers or subsequent valid lienholders, without notice. Gen. Coffee Corp., 828 F.2d at 706. See also Cohen v. State of New Jersey (In re Tsiolas), 236 B.R. 85 (Bankr.M.D.Fla.1999). Here, the Trustee was never on notice of the unrecorded Note and Mortgage, nor could the Lis Pendens have placed the Trustee on notice of the unrecorded Note and Mortgage being that the Lis Pendens did not reference the unrecorded Note and Mortgage or Mr. Hernandez.
In further support of their argument, the Defendants cite § 695.01, Fla. Stat. (2008) for the proposition that on the date Ms. Lima "recorded her notice of Lis Pendens the equitable lien became effective against subsequent creditors." See Defendants' Motion at ¶ 16. However, on the date Ms. Lima recorded her Lis Pendens she merely had a claim to an equitable lien for breach of a subscription agreement, not an entitlement to an equitable lien as she suggests. Specifically, § 695.01, Fla. Stat. (2008), provides in pertinent part:
(1) No conveyance, transfer, or mortgage of real property, or of any interest therein ... shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law...."
Here, the Defendants' alleged equitable lien is not good against the Trustee as a creditor or subsequent bonafide purchaser because Mrs. Lima failed to record her yet-to-exist equitable lien, or Mr. Hernandez's unrecorded Note and Mortgage, and Defendants' lawsuit merely claims an equitable lien. Defendants had not received a judgment entitling them to an equitable lien at the time of the bankruptcy petition. See In re Mabbott, 255 B.R. 787 (Bankr. M.D.Fla.2000) (unperfected equitable interest is subordinate to the interest of a judicial lien creditor under Florida law).
The Trustee is a bonafide purchaser or a subsequent lienholder, without notice, and thus, the Trustee's claim to the Sale Proceeds is superior to Defendants' asserted equitable lien. Accordingly, the Trustee, as a perfected hypothetical lienholder, can avoid Defendants' purported equitable lien pursuant to the strong-arm powers of 11 U.S.C. § 544.
As there is no genuine issue as to any material facts, it is
ORDERED AND ADJUDGED that the Trustee's Motion is GRANTED and Defendants' Motion is DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918611/ | 730 So.2d 1040 (1999)
STATE of Louisiana, Appellee,
v.
Joseph Stacy SEBASTIEN, Appellant.
Nos. 31,750-KA, 31,751-KA, 31,752-KA.
Court of Appeal of Louisiana, Second Circuit.
March 31, 1999.
Rehearing Denied April 27, 1999.
*1042 Kidd & Culpepper By Paul Henry Kidd, Monore, Counsel for Appellant.
Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Whitley R. Graves, Robert Randall Smith, Assistant District Attorneys, Counsel for Appellee.
Before WILLIAMS, STEWART and GASKINS, JJ.
STEWART, J.
The defendant, Joseph Stacy Sebastien, pled guilty to three counts of DWI-4th offense, violations of La. R.S. 14:98. The defendant was sentenced on two counts to concurrent ten year sentences, with all but two years suspended and five years active supervised probation. After the third DWI-4th offense, the district court revoked the defendant's probation and imposed an additional ten year sentence at hard labor, and without benefit of probation, parole, or suspension, to run consecutive to the sentence on the first two counts. In this out-of-time appeal, the defendant argues that his guilty pleas were not knowingly and voluntarily made. We amend the defendant's sentence in accordance with the sentencing transcript and affirm.
FACTS
On September 22, 1995, Officer Bonnie Rhodes observed the defendant operating a motor vehicle while under suspension. Upon noticing the officer, the defendant pulled into a trailer park and threw an open can of beer out of the vehicle's window. Two other officers joined Officer Rhodes in stopping the defendant. The officers noticed a strong smell of alcohol on the defendant. The defendant denied having had anything to drink and stated that he had taken cough medicine. The defendant refused to submit to field sobriety tests. The defendant was arrested and charged with DWI-4th offense, docket number 80,335, hereinafter referred to as "No. 80,335."
On October 8, 1996, the day before the defendant was to appear in court for proceedings on No. 80,335, the defendant was observed traveling eastbound on Interstate 20 at ninety miles per hour in a fifty-five miles per hour zone. When officers stopped him, the defendant appeared unsteady and smelled of alcohol. The defendant failed field sobriety tests and refused the intoxilizer test. Rock-like substances, suspected to be "crack" cocaine, were found in the defendant's possession, and the defendant admitted to having ingested one of the rocks prior to being stopped. The defendant was again arrested and charged with a DWI-4th offense, *1043 docket number 83,268, hereinafter referred to as "No. 83,268."
At his court appearance the next day, October 9, 1996, the defendant pled guilty to the charge of DWI-4th offense in No. 80,335 and the charge of DWI-4th offense from the day before in No. 83,268. On December 20, 1996, the district court sentenced the defendant on each DWI-4th offense charge to concurrent sentences of ten years at hard labor with all but two years suspended and five years of active probation. One of the conditions of probation was that the defendant refrain from alcohol and drug use. The defendant was allowed to serve the two years in an in-house treatment program.
In February 1997, the assistant district attorney filed a "Motion For Arrest Warrant" alleging that the defendant had been seen at a bar in Bossier City in violation of the conditions of his probation. Shortly thereafter, on April 20, 1997, the defendant crashed his vehicle into a barrier at Barksdale Air Force Base in Bossier City, Louisiana, and was determined to be under the influence of alcohol and cocaine, a Schedule II controlled dangerous substance. The defendant was again charged with a DWI-4th offense in docket number 84,911, hereinafter referred to as "No. 84,911."
The defendant pled guilty to this last charge on May 19, 1997. At this proceeding, John S. Odom, Jr., Special Assistant, United States Attorney for the Western District of Louisiana, agreed to forego federal prosecution of the defendant in exchange for his guilty plea and imposition of a ten year sentence to run consecutive to the prior sentences, the revocation of his probation in No. 80,335 and No. 83,268, and restitution for damages at Barksdale. The defendant was sentenced that same day in No. 84,911 to ten years at hard labor without benefit of probation, parole, or suspension. His probation was revoked and the sentences imposed in No. 80,335 and No. 83,268 were reinstated. The district court ordered the defendant to serve the ten year sentence on No. 84,911 consecutive to the prior concurrent sentences in No. 80,335 and No. 83,268.
The defendant now appeals and asserts several assignments of error pertaining to the validity of his guilty pleas and the revocation of probation.
DISCUSSION
Plea Colloquies and Sentencing
The defendant asserts that the district court erred in taking consolidated guilty pleas for the 1995 charge in No. 80,335 and the 1996 charge in No. 83,268. The defendant complains that confusion resulted because only one plea colloquy was held and only one sentencing hearing was held. According to the defendant, the plea colloquy violated La.C.Cr.P. art. 556.1 as he was not informed of the possible sentences or of the nature of the charges against him. The defendant also asserts that he was not informed of the sentencing range or the nature of the charges against him in regards to his guilty plea in No. 84,911. The defendant further complains that the district court did not pronounce determinate sentences.
During the plea colloquy on October 9, 1996, the defendant was informed of his Boykin rights and waived those rights. The defendant was informed of the sentencing range through the district court's recitation of the penalty provision for DWI-4th offense, La. R.S. 14:98(E). The district court also informed the defendant that he faced a maximum exposure of sixty (60) years for the two charges. The facts behind both the 1995 charge, No. 80,335, and the 1996 charge, No.83,268, were recited by the district attorney on the record and in the presence of the defendant prior to the entry of his guilty pleas.
Our review of the record reveals no factual basis for the defendant's claims that he was not informed of the nature of the charges in No. 80,335 and No. 83,268 or of the possible sentences and that the plea colloquy and sentencing proceeding resulted in confusion. We find that the defendant's claims are factually without merit and that his guilty pleas in No. 80,335 and No. 83,268 were knowingly and voluntarily entered.
Similarly, during the plea colloquy on May19, 1997, for the charge in No.84,911, the defendant was informed of his Boykin rights *1044 and waived them. The defendant was also informed of the facts behind the charge prior to pleading guilty. Although the defendant was not informed of the sentencing range, he was informed that he would receive a sentence of ten years at hard labor and without benefit. The record indicates that this sentence was part of an agreement between the prosecutor and defense counsel. The agreement enabled the defendant to avoid federal prosecution which would have exposed him to the possibility of life imprisonment.
The entry of a guilty plea must be a free and voluntary choice by the defendant. State v. Hill, 30,552 (La.App. 2nd Cir. 5/13/98), 714 So.2d 814; State v. Clay, 30,770 (La.App. 2nd Cir. 5/13/98), 714 So.2d 123. In addition to advising the defendant of his Boykin rights, courts have been required to advise the defendant of other facts which bear on the knowing and voluntary nature of the plea.[1]State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982); State v. Hill, supra. One such requirement is that the district court inform the defendant of the possible sentence ranges for the offense to which he pled guilty. State v. Hill, supra; State v. Clay, supra; State v. Cassels, 27,227 (La. App. 2nd Cir. 11/1/95), 662 So.2d 861. This requirement includes the defendant's understanding of the maximum and minimum sentence he faces by pleading guilty and any other direct sentencing consequences from his plea. State ex rel. LaFleur v. Donnelly, supra; State v. Clay, supra.
In State v. Jones, 28,929 (La.App. 2nd Cir. 4/2/97), 691 So.2d 858, we reviewed the extensive line of jurisprudence from this circuit addressing additional elements which must be considered in determining whether a defendant has knowingly and voluntarily entered a guilty plea. From our review, we found that while this circuit never expressly required the trial court to explicitly enumerate the possible sentences, this circuit did hold that a guilty plea will not be rendered invalid where there is an affirmative showing on the record that the defendant understood the charge against him and was aware of the permissible penalty range.
In the present case, the defendant was aware of the sentence that he would receive prior to entry of his guilty plea. Defense counsel stated that the terms of the plea agreement had been explained to the defendant. The United States Attorney recited the terms of the plea agreement on the record and stated that, in exchange for the plea agreement, no steps would be taken to subject the defendant to federal prosecution for the April 20, 1997 incident. The district court also questioned the defendant regarding his understanding of the sentence and reviewed the terms of the sentence. This exchange revealed that the defendant had already satisfied the portion of the plea agreement requiring restitution to the federal government for damages to the gate at Barksdale. The defendant also answered affirmatively when asked whether he understood what his sentence would be.
Under these specific circumstances, we find no error in the district court's failure to inform the defendant of the sentence range for the charge of DWI-4th offense in No. 84,911. The defendant entered his guilty plea pursuant to a plea agreement and with full knowledge of the sentence to be imposed. In addition, the defendant had previously pled guilty to two counts of the same offense in No. 80,335 and No. 83,268. We find that the record affirmatively shows the defendant understood the charge against him and was aware not only of the penalty range, but also of the specific penalty to be imposed. We find that the defendant's guilty plea in No. 84,911 was knowingly and voluntarily entered.
The defendant also claims that the district court erred in not pronouncing determinate sentences on the separate charges in *1045 No. 80,335 and No. 83,268. The district court is required to pronounce a determinant sentence for each count for which the defendant is convicted and is required to express its intent concerning concurrent or consecutive service of the sentences in accordance with La.C.Cr.P. art. 883. State v. Fairley, 597 So.2d 1081 (La.App. 2nd Cir.1992); State v. Volentine, 565 So.2d 511 (La.App. 2nd Cir. 1990). The district court complied with this requirement. When pronouncing sentences on the charges in No. 80,335 and No. 83,268 on December 20, 1996, the district court stated, "On each count of the DWI Four convictions the court sentences you to ten years at hard labor. They are to run concurrently." This statement by the district court clearly indicates that the defendant was sentenced to ten years on each count and that the sentences were to run concurrently. The district court further suspended all but two years of each sentence and permitted the defendant to spend the two years in an in-house correctional drug abuse facility. We find that the district court entered determinate sentences for each conviction.
These assignments of error lack merit.
Assignment of Cases
The defendant contends that the district court erred in accepting his guilty pleas in No. 80,268 and No. 84,911 because these two cases were improperly assigned to the district judge to whom No. 80,335 was properly assigned. The defendant alleges that the assignment of cases amounts to "judge shopping" by the prosecution.
To meet due process requirements, capital and other felony cases must be allotted for trial to the various divisions of the court, or to judges assigned criminal court duty, on a random or rotating basis, or under some other procedure adopted by the court which does not vest the district attorney with power to choose the judge to whom a particular case is assigned. State v. Simpson, 551 So.2d 1303 (La.1989). Even if the allotment system is found to violate due process, the violation is subject to harmless error analysis. State v. Jones, 600 So.2d 875 (La.App. 1st Cir.1992), writ denied, 92-2351 (La.5/12/95), 654 So.2d 346.
Rule 34 of the Twenty-Sixth Judicial District Court provides for the random allotment of criminal cases. Rule 34 further provides that if multiple charges are filed against an individual, and if the charges arise out of the same criminal investigation, series of investigations, or if they occur within a 180-day period, then the cases are to be handled by the same division, the division having the bill of information with the lowest number. The assignments of No. 83,268 and No. 84,911 to the same district court judge assigned No. 80,335 do not fall within any of the exceptions to random allotment set forth in Rule 34.
The basic purpose served by the random allotment system is to assure that the accused is tried before an impartial judge. State v. Jones, supra. Although the defendant asserts that the cases were improperly assigned, the defendant does not argue that any prejudice occurred as a result of the allotment. The defendant does not allege any bias on the part of the district judge to whom the cases were assigned, and the record does not indicate any bias against the defendant. The assignment of No. 83,268 to the same judge assigned No. 80,335 appears to have helped, rather than harmed, the defendant. When the defendant pled guilty to the DWI-4th offense charges in No. 80,335 and No. 83,268, he received the minimum sentence allowed for each offense and was permitted to serve the sentences concurrently. When the defendant pled guilty to the third charge of DWI-4th offense in No. 84,911, he again received the minimum sentence of ten years at hard labor. We find that the defendant was not prejudiced by the assignment of cases. Accordingly, any error in the assignment of cases was harmless error. This assignment of error lacks merit.
Plea and Sentencing Delays
The defendant asserts that the district court erred in accepting his guilty plea in No. 83,268 which was entered less than twenty-four hours after the offense occurred. As provided in La.C.Cr.P. art.559(B), the court shall not accept a guilty plea to a felony within forty-eight hours of the defendant's arrest. When such a plea is accepted within *1046 the forty-eight hour period, the court, upon motion filed by the defendant within thirty days after entry of the plea, shall set aside the plea and any sentence imposed thereon. La.C.Cr.P. art. 559(B). Although the district court erred in accepting the defendant's guilty plea in No. 83,268 within forty-eight hours after the defendant's arrest, the defendant waived his remedy by failing to file a motion to set aside the plea within thirty days of the entry of the plea. In fact, the defendant did not question the plea until after his conviction and sentence in No. 84,911. We find that the defendant knowingly and voluntarily entered his guilty plea and waived his remedy.
The defendant also asserts that the district court erred in sentencing him on the same day as entry of the guilty plea in No. 84,911. If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. La.C.Cr.P. art. 873. However, if the defendant waives the delay or pleads guilty, sentence may be imposed immediately. Id. Since the defendant entered a guilty plea in No. 84,911, no delay was necessary between the plea and sentencing. Therefore, we find no error in the sentencing of the defendant on the same day as entry of his guilty plea in No. 84,911.
These assignments of error lack merit.
Presence of United States Attorney
The defendant asserts that his guilty plea in No. 84,911 was not knowingly and voluntarily entered due to the pressure exerted by the presence of John S. Odum, Jr., a United States Attorney. The defendant describes his plea as a "best interest" guilty plea not voluntarily made.
The "best interest" or Alford plea, derived from North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant pleads guilty while maintaining his innocence. State v. Calhoun, 96-0786 (La.5/20/97), 694 So.2d 909. Despite the defendant's description of his guilty plea as a "best interest" plea, nothing in the record indicates that the defendant entered the guilty plea in No. 84,911 while maintaining his innocence. Rather, the defendant indicated that the facts underlying the charge were correct when recited by the prosecutor. The defendant's plea cannot be considered a "best interest" guilty plea, notwithstanding the presence of the United States Attorney.
Mr. Odum's presence actually served as a benefit to the defendant. The defendant received assurance, on the record, that he would not be subject to federal prosecution after pleading to the charge in No. 84,911, after revocation of probation, and after restitution for damages at Barksdale Air Force Base. Also, the plea agreement was arranged prior to the date of the guilty plea, so the defendant had time to weigh his options before his court appearance. The record indicates that the defendant actually made restitution to Barksdale prior to the entry of his guilty plea, thus satisfying one component of the plea agreement prior to entry of the plea.. We find that the defendant's guilty plea in No. 84,911 was knowingly and voluntarily made and was not influenced by the presence of the United States Attorney. This assignment of error lacks merit.
Revocation of Probation
The defendant asserts that the trial court erred in revoking probation in No. 80,335 and No. 83,268 because revocation proceedings were not initiated with either an arrest warrant or issuance of summons supported by an affidavit. Our review of the record reveals that the defendant's assignment of error is unfounded.
When the defendant was sentenced on December 20, 1996, in the above two cases, the district court suspended all but two years of the sentences and allowed those two years to be spent in an in-house drug abuse treatment facility. If released earlier from the facility, the defendant would be required to spend the remainder of the two years in jail. The district court stated that after spending two years in treatment or in jail, the defendant would be on supervised probation for five years. As a condition of probation, the defendant was required to refrain from alcohol and drug use.
On February 18, 1997, pursuant to a motion filed by the assistant district attorney, the district court granted an order for the defendant's arrest. The motion alleged that *1047 the defendant had been seen at a bar in Bossier City in violation of the terms of his sentence and sought the defendant's arrest and execution of the sentence imposed in December 1996. Thereafter, the defendant was involved in the incident at Barksdale Air Force Base and charged with a subsequent DWI-4th offense, No. 84,911, to which he pled guilty on May 19, 1997. The defendant's probation was revoked and the defendant was ordered to serve the concurrent ten year sentences imposed December 20, 1996 in No.80,335 and No. 83,268.
Although a defendant has no right to appeal from a revocation of his probation, the court can treat the appeal as an application for a supervisory writ. State v. Manuel, 349 So.2d 882 (La.1977); State v. McDonald, 471 So.2d 834 (La.App. 2nd Cir.1985). Probation revocation proceedings may be initiated by either the issuance of a warrant for the defendant's arrest for violation of any of the conditions of probation or by the issuance of a summons to appear and answer a charge of violation or attempted violation. La. C.Cr.P. art. 899(A); State v. Duhon, 95-2724 (La.5/21/96), 674 So.2d 944. At the revocation hearing, if the court determines that the defendant violated a condition of his probation, the district court may revoke the defendant's probation. La.C.Cr.P. art. 900. When a defendant who is on probation for a felony commits or is convicted of another felony under the laws of this state, the court may revoke the defendant's probation. La. C.Cr.P. art. 901.
In this instance, two grounds exist for the district court's revocation of probation and ordered execution of the sentences in No. 80,335 and No. 83,268. First, the district court issued a warrant for the defendant's arrest as required by La.C.Cr.P. art. 899. While the record does not contain an affidavit in support of the motion for the arrest warrant, we find no requirement that an affidavit must accompany the motion. In State v. Black, 97-0774 (La.12/12/97), 706 So.2d 423, the Louisiana Supreme Court addressed the split in the circuits as to whether an affidavit must accompany a rule to revoke probation and concluded that an affidavit is not required. The court found no statutory or constitutional basis for the affidavit requirement and concluded that there is no apparent reason requiring the state to adhere rigidly to statutes relating to arrests or summons of the general public when the arrests or summons are for revocation proceedings involving parties who do not enjoy the same level of protection as the general public. The court explained that courts applying the affidavit requirement have assumed that the probationer occupies a similar position to that of a person who has not been convicted of a crime. However, a person on probation has been convicted of a crime and sentenced. The probationer remains free only at the discretion of the court. The rationale of State v. Black applies to this situation as well. We find that the arrest warrant satisfies the requirements of La.C.Cr.P. art. 899 and provides a valid basis for the revocation of the defendant's probation and ordered execution of sentence.
Second, the defendant violated his sentencing agreement and committed a felony. When arrested in April 1997, after crashing into a barrier at Barksdale Air Force Base, the defendant was determined to have alcohol and cocaine in his system, thus violating the terms of his December 1996 sentencing agreement which required him to refrain from drug and alcohol use. The defendant stipulated to the violation of his probation and sentencing agreement. The defendant further agreed to revocation of probation and execution of the sentences in No. 80,335 and No. 83,268 as part of an agreement to avoid federal prosecution. The defendant was charged with DWI-4th offense in No. 84,911 and pled guilty on May 19, 1997. Under these circumstances, we find the revocation of probation and execution of sentences imposed December 20, 1996 valid and proper.
This assignment of error lacks merit.
Ineffective Assistance of Counsel
The defendant asserts that the assistance of defense counsel was such as to render his guilty pleas invalid. Through his various complaints, the defendant alleges that defense counsel's only strategy was to avoid trial.
*1048 As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief ("PCR") in the trial court. State v. Green, 27,652 (La.App. 2nd Cir. 1/24/96), 666 So.2d 1302, writ denied, 97-0504 (La.10/31/97), 703 So.2d 14. The PCR process affords an applicant the opportunity for a full evidentiary hearing under La.C.Cr.P. art. 930. Id. However, when the record is sufficient, the court may resolve the issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La. 1982).
In this instance, we find that the defendant would be better served in having his ineffective assistance of counsel claim addressed through the PCR process in which his claims might be briefed in a more thorough manner. We, therefore, decline to address this assignment of error.
Error Patent
Pursuant to La.C.Cr.P. art. 920(2), we have reviewed the record for error patent and note discrepancies in the written judgments and the sentencing transcripts regarding sentences imposed in No. 80,335 and No. 83,268. The written judgments signed in July 1998, provide that after revocation of probation, the sentences imposed in No. 80,335 and No. 83,268 run consecutive. The minutes are ambiguous. However, the transcript from the proceeding on May 19, 1997, clearly indicates that the district court imposed the concurrent ten year sentences in No. 80,335 and No. 83,268 and imposed an additional ten year sentence in No. 84,911 to be served consecutive to the concurrent sentences in the previous two cases, for a total sentence of twenty years. The district court did not order the sentences in No. 80,335 and No. 83,268 to be served consecutively.
The district court is required to pronounce sentence, but a written judgment is not required. La.C.Cr.P. art. 871; State v. Boyte, 571 So.2d 722 (La.App. 2nd Cir.1990). Discrepancies between a written judgment and the sentencing transcript should be resolved in favor of the oral sentence reflected in the sentencing transcript. State v. Boyte, supra. The transcript likewise prevails when there are discrepancies between it and the minutes. Id. The sentence as set forth in the sentencing transcript is in accordance with the plea agreement, which is also discussed in the transcript. Discrepancies in the written judgments and ambiguities in the minutes do not affect the substantial rights of the defendant. La.C.Cr.P. art. 921. Therefore, reversal is not warranted.
In accordance with the sentencing transcript of May 19, 1997 and for the sake of clarity, we amend the defendant's sentence to provide that probation in No. 80,335 and No. 83,268 is revoked and the concurrent ten year sentences at hard labor and without benefit of probation, parole, or suspension of sentence are imposed. We further amend in accordance with the sentencing transcript of May 19, 1997, to provide that in No. 84,911, the defendant is to serve an additional ten years at hard labor, without benefit of probation, parole, or suspension of sentence, consecutive to the concurrent sentences in No. 80,335 and No. 83,268.
DECREE
In accordance with the aforementioned reasons, we affirm the convictions and sentences of the defendant, as amended.
AFFIRMED.
NOTES
[1] The legislature enacted La.C.Cr.P. art. 556.1, effective August 15, 1997, to clarify the jurisprudence concerning the knowing and voluntary nature of guilty pleas. La Acts 1997, No. 1061. Article 556.1 requires the court to address the defendant in open court and inform him of the nature of the charge to which the plea is offered, the mandatory minimum penalty, if any, and the maximum possible penalty. This article is interpretive in nature and, consequently, informs and guides our consideration of this case, even though it was not in effect and not utilized at the May 19, 1997 plea colloquy and sentencing. See State v. Hill, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918615/ | 730 So.2d 443 (1999)
Gary BORDES
v.
Roselyn Zito BORDES.
No. 98-C-1004.
Supreme Court of Louisiana.
April 13, 1999.
*444 Richard M. Michalczyk, Metairie, for Applicant.
Bernadette R. Lee, Edith H. Morris, New Orleans, Suzanne E. Ecuyer, Mandeville, William H. Cook, Jr., Shreveport, for Respondent.
JOHNSON, Justice.[*]
We granted certiorari in this case to review the court of appeal's ruling that the disability retirement benefits paid by the Parochial Employees' Retirement System of Louisiana are community property. For reasons discussed below, we reverse the judgment finding the benefits paid by the Parochial Employees' Retirement System of Louisiana are community property.
FACTS AND PROCEDURAL HISTORY
Mr. Gary Bordes and Ms. Roselyn Zito Bordes were married on December 5, 1981. The parties were divorced after ten years of marriage by a petition filed on May 8, 1991. One son was born to this union and he lives with Mr. Bordes. Prior to their marriage, Mr. Bordes was employed with the Water Department of Jefferson Parish. This employment, which began May 1, 1974, continued until November 17, 1994 when Mr. Bordes was declared totally disabled due to aplastic anemia and avascular necrosis of his hips. As a result of his total disability, Mr. Bordes began receiving disability retirement benefits from the Parochial Employees' Retirement System of Louisiana ("Parochial System") and the Employees' Retirement System of Jefferson Parish ("Jefferson System"). He receives $1,310.24 from the Parochial System and $503.69 from the Jefferson System, for a total of $1,813.93 per month.
On October 5, 1995, Ms. Bordes filed a petition to partition the community of acquets and gains along with a sworn detailed descriptive list. A trial on the merits of the petition was held on December 17, 1996. Before the trial began, the parties entered into a consent judgment stipulating to the following matters:
(1) That there will be a judgment rendered in favor of Ms. Bordes and against Mr. Bordes for one-half of the amount received from cashing in any community U.S. Savings Bonds from May 8, 1991 through December 17, 1996, the trial date of the partition.
(2) That there would be judgment in favor of Mr. Bordes and against Ms. Bordes for one-half of the principal reduction of the mortgage on her separate property residence paid during the marriage.
(3) That the parties would enter into a Qualified Domestic Relations Order ("Q.U.A.D.R.O") reflecting Ms. Bordes' 23% interest in the retirement plan of Mr. Bordes from both the Parochial System and the Jefferson System, to be effective May 17, 2012.
(4) That the parties have settled a claim regarding the patio and roof in favor of Mr. Bordes and against Ms. Bordes in the amount of $500.00 and agreed to divide the furniture and fixtures in kind.
The parties also stipulated to the following dates:
(1) The date of employment of Mr. Bordes with Jefferson Parish is May 1, 1974.
(2) The date of marriage is December 5, 1981
(3) The date of termination of the community is May 8, 1991.
(4) The date of Mr. Bordes' disability and termination of employment is November 17, 1994.
(5) The date Mr. Bordes would be eligible for normal retirement is May 17, 2012.
After the stipulations, the only issue remaining for trial was the classification of the disability retirement benefits received by Mr. Bordes since November 17, 1994. The trial court determined that the disability retirement *445 benefits are based on the total years of service and the maximum salary earned during the highest three years of payment. Therefore, the benefits are deferred compensation which Mr. Bordes has elected to receive via early retirement and as such they are community assets. The court also ordered that the community interest of Ms. Bordes in the disability retirement benefits be determined using the formula established in Sims v. Sims, 358 So.2d 919 (La.1978).
On appeal, the Fifth Circuit Court of Appeal determined that there was sufficient evidence to support the trial court's conclusion that Ms. Bordes was entitled to share in the benefits received from the Parochial Employees' Retirement System. The court found the benefits from the Parochial System were deferred compensation within the meaning of T.L. James & Company, Inc. v. Montgomery, 332 So.2d 834 (La.1975); Sims v. Sims, 358 So.2d 919 (La.1978); and Hare v. Hodgins, 586 So.2d 118 (La.1991). However, the Jefferson Parish benefits were distinguished from the Parochial benefits. The court found the Jefferson benefits were not based on the actual years employed, but on a formula which allows additional years to be added; the benefits were only available upon disability; and Ms. Bordes would not receive any portion of the benefits remaining after Mr. Bordes' death because she would not be a surviving spouse. The portion of the trial court judgment finding the Jefferson System benefits to be community funds was reversed. In all other respects, the trial court judgment was affirmed. Bordes v. Bordes, 97-967 (La.App. 5th Cir. 1/27/98), 707 So.2d 471. We granted Mr. Bordes' writ to review the correctness of this ruling that the benefits paid by the Parochial Employees' Retirement System are community assets. Bordes v. Bordes, 98-1004 (La.7/2/98), 721 So.2d 897.
DISCUSSION
It is well settled in Louisiana that a former spouse is entitled to a pro rata share of the retirement benefits of a member spouse to the extent the retirement benefits were attributable to the former community. Frazier v. Harper, 600 So.2d 59 (La.1992); Sims v. Sims, 358 So.2d 919 (La.1978). The issue presented by this case is whether disability retirement benefits constitute deferred compensation in the nature of retirement or pension income so as to be classified as community property.
The courts of appeal have addressed the classification of disability benefits on numerous occasions. See Hyde v. Hyde, 96 1725 (La.App. 1st Cir. 6/26/97); 697 So.2d 1061, writ denied, 97-1987 (La.11/7/97); 703 So.2d 1274; Mercer v. Mercer, 95-1257 (La.App. 3rd Cir. 4/3/96); 671 So.2d 937; Brant v. Brant, 26,508 (La.App. 2nd Cir. 1/25/95); 649 So.2d 111; Arnaud v. United Brotherhood of Carpenters and Joiners of America, 577 So.2d 184 (La.App. 1st Cir.), writ not considered, 580 So.2d 369 (La.1991); Johnson v. Johnson, 532 So.2d 503 (La.App. 1st Cir. 1988); Lachney v. Lachney, 529 So.2d 59 (La.App. 3rd Cir.), writ denied, 532 So.2d 764 (La.1988).
In Lachney v. Lachney, 529 So.2d 59, the Third Circuit Court of Appeal considered a disability insurance policy available through the employee-spouse's employer. The employee spouse had not paid for the disability insurance coverage and the policy had no cash surrender value. Further, if the employee reached the age of sixty-five (65) without suffering a disability, the employee would never receive any benefits under the policy. The court held that the disability payments made under the policy were not deferred compensation, but were in the nature of tort damage awards and worker's compensation benefits. Accordingly, the court determined that the employee's spouse had no interest in the employee's monthly disability benefits received after dissolution of the community.
When presented with another opportunity to determine the appropriate classification of disability benefits, the Third Circuit again held that disability payments under a policy purchased with community funds were the separate property of the claimant spouse. Mercer v. Mercer, 671 So.2d 937, 939-940. The court reasoned that since the disability policy had no cash surrender value, required periodic medical examinations for continuation of the benefits, and provided for termination of the disability benefits upon the claimant's death or the attainment of the age *446 of sixty-five (65); the disability payments made pursuant to the policy were substitutions for wage losses and did not constitute deferred compensation in the nature of retirement or pension income to which his spouse had a legally recognizable claim.
The Second Circuit Court of Appeal followed the same line of reasoning as the Third Circuit when it decided Brant v. Brant, 649 So.2d 111. The court determined that disability payments, which represented compensation a claimant would have earned if not for his illness, were not deferred income and required classification of those benefits in accordance with the approach used by the courts in allocating tort damage awards and worker's compensation benefits.
In Johnson v. Johnson, 532 So.2d 503, the First Circuit held that disability benefits received by an employee spouse pursuant to La.Rev.Stat. Ann. 33:2113.1 were community assets. The disability benefits were paid from a fund comprised, in part, of employee contributions; the payment was a percentage of the employee's average compensation; and the actual percentage was based on the number of years of service of the injured employee. Upon retirement, the accumulated contributions of the employee, together with an amount taken from the pension account, were placed in a reserve account for the payment of future retirement benefits. The court explained that the employee's right to receive compensation for his disability was based entirely on his contributions to the fund from community earnings and his years of service. Accordingly, the court determined that the disability benefits were community property.
More recently, the First Circuit concluded that disability benefits received by an employee-spouse until he reaches age sixty-five (65) are not deferred compensation and are not in the nature of retirement benefits. Hyde v. Hyde, 697 So.2d 1061. The court found that the employee-spouse did not make any contribution to the disability plan whatsoever. If he had continued to work without suffering from a disabling condition, he would not have been entitled to receive any disability benefits and if he was able to return to work, his monthly disability benefits would be discontinued. Further, at retirement age (65 years old), the employee-spouse would receive unreduced retirement benefits, a proportionate interest of which would belong to his spouse. Therefore, the court found that the disability benefits received by the employee-spouse as a result of his disability were more representative of compensation for lost earnings due to an inability to work and, as such, were his separate property. Hyde, 697 So.2d at 1065.
The case sub judice involves disability retirement benefits from two separate retirement systems, the Parochial Employees' Retirement System of Louisiana and the Employees' Retirement System of Jefferson Parish. The Court of Appeal determined that benefits paid by the Employees' Retirement System of Jefferson Parish are the separate property of Mr. Bordes. Ms. Bordes did not seek review of the correctness of this determination, therefore, the only issue before this Court is the proper classification of the benefits paid by the Parochial Employees' Retirement System of Louisiana.
PAROCHIAL EMPLOYEES' RETIREMENT SYSTEM OF LOUISIANA
Mr. Bordes applied for disability retirement with the Parochial System on November 17, 1994. A member of the Parochial System is eligible to retire and receive a disability benefit if he has at least five years of creditable service, is not eligible for normal retirement, and suffers disability. La. Rev.Stat. Ann. 11:1943. Mr. Bordes has 20.46575 years of creditable service with Jefferson Parish, he has been disabled by aplastic anemia with avascular necrosis of both hips, and he is not eligible for normal retirement.[1] Having met the conditions for disability *447 retirement benefits, Mr. Bordes is required to undergo a medical examination every year for the first five years of disability and once every three years thereafter until he attains normal retirement age. La. Rev.Stat. Ann. 11:1934(A). If he engages in or is able to engage in gainful occupation, his disability retirement benefits will be terminated. La.Rev.Stat. Ann. 11:1934(B). In order to insure that he is not able to engage in gainful employment, Mr. Bordes is required to submit an annual income statement to the Parochial System.
As an employee of the Water Department, Mr. Bordes was eligible to participate in the Jefferson Parish and the Parochial Retirement Systems. Membership in the two retirement systems was a benefit of employment with the Water Department. He made contributions to both retirement systems and the Water Department made contributions as well. Mr. Bordes' contributions went into an annuity savings account and his employer's contributions went into the general fund of the pension plan. According to Mr. A.C. Tynes, Secretary-Manager of the Jefferson System, the annuity savings account accumulates until the employee starts receiving a monthly benefit. The funds in the annuity savings account are exhausted first, then payments are made from the general fund.
Mr. Bordes elected to receive the maximum allowance from the Parochial System. This election gives Mr. Bordes the maximum disability retirement allowance payable for life, with no provisions for a survivor benefit. If Mr. Bordes should die before having received in retirement benefits the amount he contributed to the system, the balance will be refunded in a lump-sum payment to his designated beneficiary. The disability payment is determined by multiplying the years of creditable service by three percent and then multiplying that number by the employee's highest total earnings for any 36 successive months. This calculation gave Mr. Bordes a total monthly benefit of $1,813.93, of which $1,310.24 is paid by the Parochial System. The remaining $503.69 is paid by the Employees' Retirement System of Jefferson Parish.
The normal retirement age for Mr. Bordes is age sixty. When he reaches this age, his disability retirement benefit will automatically become a normal retirement benefit. Unlike the disability insurance policies reviewed by the Courts of Appeal in Mercer, 671 So.2d 937; Brant, 649 So.2d 111; and Lachney, 529 So.2d 59, the benefits payable under this plan are not really disability benefits. Rather the significance of disability under this retirement plan is that disability triggers the early entitlement to retirement benefits which, but for the disability, would not be payable until normal retirement age. Further, the Parochial System plan does not provide for termination of monthly disability retirement benefits when the employee reaches normal retirement age. To the contrary, when Mr. Bordes reaches normal retirement age the amount of payment does not change, nor does the source of payment. The only changes are the discontinuance of the income statement requirement and the periodic medical examination. However, like the aforementioned plans, Mr. Bordes' monthly disability retirement benefits will be terminated if he is able to return to work.
The purpose of paying benefits under a retirement plan is different when the benefits are payable because the employee spouse becomes disabled than when the benefits are payable because the employee spouse reaches normal retirement age. When the divorced employee spouse receives benefits because of disability, the benefits are paid in lieu of income that would otherwise be the employee spouse's separate property. Basing the classification of benefits upon the purpose of the payment of the benefits is fair and equitable, and provides ease of administration.[2] When the employee spouse becomes *448 disabled, the benefits replace the working wages he or she can no longer earn. On the other hand, the non-employee spouse can continue to earn (and keep) one hundred percent of the wages he or she was earning when the employee spouse became disabled. Awarding a share of disability retirement benefits to the non-employee spouse who does not need to replace wages lost because of inability to work, while reducing the amount of benefits payable to the disabled spouse who has such a need, is contrary to the purpose of a disability feature in a retirement plan.
While the source of Mr. Bordes' disability retirement benefits is the same as his normal retirement benefits, this alone does not make the payments more representative of retirement income. Other factors support classifying the benefits as compensation for lost earnings. They include the fact that the payments are conditioned on Mr. Bordes' continuing disability, that he is required to undergo periodic medical examinations and submit annual income statements while receiving the benefits, and the benefits automatically convert to a normal retirement benefit upon his reaching retirement age. If the disability retirement benefits were normal retirement benefits, there would be no changes when the employee reaches normal retirement age. It is clear that Mr. Bordes' disability retirement benefits are more akin to compensation for lost earnings due to serious injury or illness. Under La. Civ.Code Ann. art. 2344, damages due to personal injuries, including the portion of the award designed to compensate for loss of earnings, are separate property. Accordingly, Mr. Bordes' disability retirement benefits are his separate property and Ms. Bordes is not entitled to share in these benefits.
As previously stated, Mr. Bordes' disability retirement benefits will automatically convert into a normal retirement benefit when he reaches age sixty. A spouse's right to receive benefits payable by a retirement plan is an asset of the community. Sims, 358 So.2d 919, 922 (La.1978). At the time of partition, the non-employee spouse is entitled to a declaration of the interest attributable to the community in retirement benefits, if and when they become due. When they do become due, the non-employee spouse is entitled to receive the proportion of them recognized as attributable to the other spouse's employment during the existence of the community. Sims, 358 So.2d 919, 923-924. The parties entered into a consent judgment which recognized Ms. Bordes' 23% interest in the retirement plan from both the Parochial System and the Jefferson System to be effective May 17, 2012.[3] Therefore, Ms. Bordes is entitled to receive the proportion of Mr. Bordes' retirement benefits attributable to his employment during the community on May 17, 2012.
Finally, we address Ms. Bordes' potential claim for reimbursement for a share of the funds contributed to the annuity savings account during the existence of the community. It is uncontested that during the existence of the community Mr. Bordes and his wife paid into the annuity from which his retirement benefits were to one day be drawn.[4] When Mr. Bordes began receiving a monthly disability benefit from the Parochial and Jefferson Systems, funds were first drawn from the annuity savings account. According to Mr. Tynes, upon depletion of an employee's annuity account, benefit payments are made from the general pension fund. Mr. Bordes' personal annuity account has, in fact, now been depleted, and the source of his current disability retirement payment is the general pension fund.[5] If the situation were different, *449 and funds had never been withdrawn from the account, upon his death, the balance of the annuity account would normally be refunded in a lump-sum payment to his designated beneficiary, subject to a claim by his former wife for her portion of the account. However, because this annuity account has been depleted during disability and before regular retirement, and because Mr. Bordes has declined a survivorship benefit, if he dies before reaching normal retirement age, Ms. Bordes will never realize the benefit of her contributions to the annuity during the existence of the community. On the other hand, when Mr. Bordes reaches normal retirement age, his former wife may more than recoup her share of the marital funds paid into the annuity account in the form of a 23% share of her ex-husband's retirement benefits, depending on the length of his survival and the amount of retirement benefits he, and, correspondingly, she, receive after he reaches age sixty. If and when the situation arises where Ms. Bordes is not able to recoup her share of the funds paid into the annuity account from the regular retirement benefits, we reserve her right to a claim for reimbursement. Until that time, she is not entitled to share in her former husband's income replacing disability retirement benefits.
DECREE
For the foregoing reasons, we reverse the portion of the court of appeal judgment finding the benefits received from the Parochial Employees' Retirement System of Louisiana are community property. It is ordered that there be judgment in favor of Mr. Bordes, and against Ms. Bordes, that the disability retirement benefits received from the Parochial Employees' Retirement System of Louisiana are his separate property. Further, it is ordered that there be judgment in favor of Ms. Bordes recognizing her 23% interest in the retirement benefits to be paid by the Parochial Employees' Retirement System of Louisiana and the Employees' Retirement System of Jefferson Parish effective May 17, 2012. The matter is remanded to the trial court for further proceedings in accordance with this order.
REVERSED AND REMANDED.
VICTORY, J., concurs.
NOTES
[*] Knoll, J., not on panel. See Rule IV, Part 2, Sec. 3.
[1] Pursuant to La.Rev.Stat. Ann. 11:1941, a member of the Parochial System is eligible to retire if he has at least:
(1) Thirty years of creditable service, regardless of age.
(2) Twenty-five years of creditable service, and is at least age fifty-five.
(3) Ten years of creditable service, and is at least age sixty.
Mr. Bordes was 42 years old when he applied for disability retirement benefits, failing to meet the eligibility requirements for normal retirement.
[2] Basing the classification of benefits upon the purpose of the payment adheres to the real subrogation rule for classification. If the payment substitutes for income that would be separate property, the disability payment should also be separate property. Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise, Matrimonial Regimes § 3.3 (2nd ed.1997).
[3] On May 17, 2012, Mr. Bordes will reach age sixty and be eligible for normal retirement.
[4] A spouse is entitled to be recognized as the owner of one-half of the value attributable to property acquired during the existence of the community. La. Civ.Code Ann. art. 2338; Sims, 358 So.2d 919 (La.1978); T.L. James & Co., 332 So.2d 834 (La.1976).
[5] According to Mr. Tynes, it usually takes an employee two to three years to deplete the annuity savings account. As of 12/31/91, the balance of Mr. Bordes' annuity account with the Parochial System was $20,253.02 (the balance of this account on the date of retirement was not included in the record). Mr. Bordes receives $15,722.88 per year in disability retirement benefits from the Parochial System. Even assuming his contributions from 1/1/92 through 11/17/94 totaled $5,000, Mr. Bordes would have exhausted the annuity account before he collected two years of disability retirement benefits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918616/ | 764 A.2d 351 (2000)
136 Md. App. 153
John R. WILLIAMS
v.
MARYLAND DEPARTMENT OF HUMAN RESOURCES, et al.
No. 3052, Sept. Term, 1999.
Court of Special Appeals of Maryland.
December 28, 2000.
*355 James C. Strouse, Columbia, for appellant.
Elise Song Kurlander, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellees.
Argued before BYRNES, ADKINS and MARVIN H. SMITH (Retired, Specially Assigned), JJ. *352 *353
*354 ADKINS, Judge.
John R. Williams, appellant, sued his former employer after it promoted a woman instead of appellant. He asserted sex discrimination, age discrimination, constructive discharge, and breach of contract claims against the State of Maryland Department of Human Resources (the "Department"), and Bert Finklestein, who was then Inspector General of the Department (collectively "appellees"). The Circuit Court for Anne Arundel County granted summary judgment in favor of appellees on all counts. On appeal, appellant raises the following issues, which we have rephrased.
I. Did the trial court err in granting summary judgment on the sex discrimination claim?
II. Did the trial court err in granting summary judgment on the age discrimination claim?
III. Did the trial court err in granting summary judgment on the constructive discharge claim on the grounds that appellant failed to comply with the Maryland Tort Claims Act?
IV. Did the trial court err in granting summary judgment on the breach of contract claim?
We shall affirm the judgments on all counts except for the sex discrimination claim. Because there was sufficient direct evidence that gender bias affected the employment decision, we shall reverse the judgment on that count, and remand for further proceedings.
FACTS AND LEGAL PROCEEDINGS
The Department hired appellant in May 1985. Eventually, appellant became a Fiscal Specialist II. This job involved "prevent[ing], detect[ing] and eliminat [ing] fraud, waste, mismanagement and corruption within the Department...." In late 1993, the Department announced that it was creating a new Fiscal Specialist III position "to serve as an auditor-in-charge." According to Finklestein, the new position did not require supervisory experience.
Eleven employees from the Department initially expressed interest in the position. In an affidavit, Finklestein stated that he informally interviewed each of the eleven candidates, and then selected three of them as finalists. Appellant was not chosen as a finalist. Two of the three finalists were male and the other, Linda Heaton, was female. Each of the finalists was *356 interviewed individually by a panel consisting of Finklestein and three other supervisors. In April 1994, the panel selected Heaton for the position.
Finklestein stated in his affidavit that he did not choose appellant as a finalist because his "[i]nterview was not as good as [the three] top candidates [and his] [a]bility to interact at [the] supervisory level [was] questionable." During discovery, appellees produced memoranda detailing problems relating to appellant. After being passed over for the promotion, in January 1995, appellant was referred to the Employee Assistance Program ("EAP")[1] because of his inability to follow directions.
On March 26, 1998, appellant filed a complaint in the circuit court based on his failure to gain the promotion. After a hearing on appellees' motion for summary judgment, the circuit court granted summary judgment on all claims against Finklestein, and on all claims against the Department except the sex discrimination count. After discovery, the Department renewed its motion on the sex discrimination count. The court granted the motion. This appeal followed.
Additional facts will be added as necessary to the following discussion.
DISCUSSION
Appellant contends that the trial court erred in granting summary judgment on all counts of appellant's complaint. Accordingly, we shall address each count separately.
I.
Standard Of Review
Summary judgment is appropriate where there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501. In reviewing the grant of a motion for summary judgment, we review the trial court's ruling as a matter of law. See Fearnow v. Chesapeake & Potomac Tel. Co., 104 Md.App. 1, 48, 655 A.2d 1, rev'd in part on other grounds, 342 Md. 363, 676 A.2d 65 (1996) (1995). Additionally, we review the same information from the record and decide the same issues of law as the trial court. See Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591-92, 578 A.2d 1202 (1990).
II.
Discrimination Claims
A.
Sex Discrimination Claim
Appellant contends that the trial court erred in granting appellees summary judgment on his sex discrimination claim under Title VII. See 42 U.S.C. § 2000e-2(a)(1). According to appellant, "the evidence of record establishes at the very least a question of fact on each and every element necessary to establish a prima facie case of discrimination under Title VII." In his brief, he points to the following evidence of gender discrimination that he contends raised sufficient factual disputes to require denial of summary judgment: (1) testimony by a Department supervisor that others in the Department, including a member of the panel that selected Heaton, stated that a female had to be selected for the position; (2) evidence that he was more qualified than Heaton; and (3) evidence that the Department failed to follow its own rules and procedures in the promotion process.
In the pretrial context of a motion for summary judgment, there are significant differences in the analytical framework and proof burdens depending on whether the employee's evidence of discrimination is "direct" or "circumstantial" evidence. These differences frame our review of this claim. For this reason, we first summarize the applicable law, and then proceed *357 to consider whether appellant's evidence was sufficient to raise a material dispute of fact preventing summary judgment on his sex discrimination claim.
1.
Analytical Framework And Evidentiary Burdens
An employee may prove that gender played a part in an employer's decision not to promote the employee by using either direct evidence or circumstantial evidence. In this case, appellant has advanced both a direct evidence theory and a circumstantial evidence theory as grounds for reversal. Accordingly, we shall review the nature of these alternative theories.
"Evidence is `direct' ... when it consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision." Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir.2000); see also Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.1999) (en banc), cert. denied, ___ U.S. ____, 120 S.Ct. 1243, 146 L.Ed.2d 101 (2000). Generally, direct evidence is sufficient to establish a prima facie case of "mixed motive" discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989). "Once there is credible direct evidence, the burden of persuasion shifts to the defendant to show that it would have [made the same employment decision] had it not been motivated by discrimination." Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999)."In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman." Price Waterhouse, 490 U.S. at 250, 109 S.Ct. at 1790. The combination of gender and non-discriminatory reasons create the "mixed motive."
Circumstantial evidence will support a discrimination case when it meets the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).[2] This test involves proving a prima facie case of discrimination, which shifts to the employer the burden of offering a non-discriminatory reason for the contested employment decision. If the employer meets this burden, the employee must show that the employer's stated reason for the decision was a pretext for discrimination. The employee may meet this burden with evidence tending to show that the assigned reason was false, and in this manner use circumstantial evidence to prove that discrimination occurred. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,___, 120 S.Ct. 2097, 2104, 147 L.Ed.2d 105 (2000).
Generally, mixed motive cases based on direct evidence of discrimination are more likely to survive summary judgment than pretext cases, which are discrimination cases that are based on circumstantial evidence. As the First Circuit recently recognized, there are significant advantages for an employee who can present *358 sufficient direct evidence of discrimination to establish a mixed motive case.
A plaintiff alleging disparate treatment... usually proceeds by means of the familiar framework engendered in McDonnell Douglas Corp. v. Green,.... [T]his approach [is] customarily called the "pretext" approach.... What is significant... is that, under pretext analysis, the burden of persuasion remains with the plaintiff throughout the case.
In some situations, however, a plaintiff may be entitled to use an approach that relieves her of this unremitting burden of persuasion. The key that unlocks this door is the existence of direct evidence that a proscribed factor (such as age, gender, race, or national origin) played a motivating part in the disputed employment decision. See Price Waterhouse. Such evidence, if accepted by the factfinder, shifts the burden of persuasion to the employer, who then must establish that he would have reached the same decision regarding the plaintiff even if he had not taken the proscribed factor into account. Although the plaintiff's initial burden under this "mixed-motive" approach is heavier than the de minimis showing required to establish a prima facie case under the pretext approach, most plaintiffs perceive the Price Waterhouse framework and its concomitant burden-shifting as conferring a pronounced advantage. In the average case, the employee thirsts for access to it, while the employer regards it as an anathema.
Febres, 214 F.3d at 59.
Summary judgment is less likely in a mixed motive case because the employer bears the burden of convincing the fact finder that its motives, intent, and action were not tainted by discrimination. Like other motive and intent issues generally, an employer's "we would have done the same thing" defense to a mixed motive case of discrimination is ill-suited for resolution on summary judgment. The employer's evidence of its intent must be weighed against the direct evidence of discrimination offered by the employee. Because "credibility determinations in respect to direct evidence [of discrimination] are for a properly instructed jury, not for the judge," id. at 61 n. 3, the employer frequently may not obtain summary judgment once the employee has offered credible direct evidence of discrimination. See, e.g., Laderach v. U-Haul, 207 F.3d 825, 828 (6th Cir.2000) (reversing summary judgment based on plaintiff's direct evidence of discrimination).
In contrast, in a pretext case based on circumstantial evidence of discrimination, summary judgment may be predicated on an employee's failure to satisfy the burden of production that it bears at two of three stages under the McDonnell Douglas model. If the employee fails to offer sufficient evidence to dispute the employer's reason, summary judgment is appropriate. In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court recently clarified this burden, holding that "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [employer's] explanation that the employer is dissembling to cover up a discriminatory purpose." Id. at___, 120 S.Ct. at 2108. In doing so, the Reeves Court recognized that, to establish a prima facie case of discrimination, circumstantial evidence is generally not sufficient, by itself, to defeat an employer's motion for summary judgment in a pretext case.
B.
Direct Evidence Of Sex Discrimination:" "A Lady Had To Be Selected"
Appellant offered the testimony of his immediate supervisor, John Belt, as direct evidence that the Department discriminated against him because he is male. Belt testified at his deposition that during the selection process, "[t]here was talk that a lady had to be selected for that *359 position." Apx81. He also testified that one of the persons who engaged in such "talk" was Harry Burns, the Department's Director of Audits. Burns served with Finklestein on the panel that interviewed the three finalists and ultimately selected Heaton. These statements led Belt to believe that the position was not truly open to any of the male candidates.
Q: Do you believe that Mr. Williams was not chosen because he was a man? A: I believe that.
Q: Would it surprise you to know there were 2 other men who were in contention for the job?
A: I don't know. Q: Why do you believe that?
A: There were certain talks around the office, there were certain statements and all which indicated that Linda Heaton was a frontrunner ... for the supervisory position, and it appeared because she was a female she had been selected. We had no females in a ... supervisory or managerial position within the audit unit.
Q: There was some talk, some discussion. Who was doing the talking and who was doing the discussing?
A: We had discussions. It wasn't a formal discussion or what have you. There was talk that a lady had to be selected for that position....
Q: [D]o you recall if that was discussion among some of the auditors in the place or do you recall who may have made that statement?
A: I believe Mr. Burns made that statement. He said we had to select a female. Additionally right after I was supervising Linda Heaton at a Prince George's County audit, and we were going out to the exit conference and Mr. Burns stated that we are fairly represented because we have a Jew, who was Bert Finklestein, we have a black, who was me, we have a female who is Linda Heaton, and we have a[c]aucasian who was Harry Burns so those types of remarks were made quite frequently....
Q: Now just so I am clear on all of that, Mr. Burns is the individual you recall having made that comment that a woman had to be selected for this position?
A: Yes.[3]
Appellant argues that Belt's testimony about Burns' statement is "direct evidence of bias and discrimination in the decision making process of an employer [that] indicates [the Department's] stated reasons for a decision are pretextual and requires that the employee's discrimination claim be submitted to a fact finder." Appellees counter that at best, Burns' alleged statement was merely an inadmissible "stray remark" that cannot be attributed to them because Burns was not involved in the decision not to promote appellant.
As we have discussed, direct evidence of a defendant's discriminatory animus may be sufficient to raise a factual dispute as to whether the employer's decision was motivated by both legitimate and discriminatory reasons. See, e.g., Laderach, 207 F.3d at 829-30 (reversing summary judgment for employer based on finding that fellow employee's unrefuted testimony that supervisor stated that he would not promote plaintiff because she was a woman was sufficient direct evidence of discriminatory animus to raise factual dispute). The issue raised in this case is whether Burns' alleged statement constituted direct evidence of discrimination.
*360 In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court addressed when statements made by a supervisor will support a mixed motive sex discrimination claim. In Price Waterhouse, a female employee supported her claim that she had been denied admittance into a partnership because of her gender with evidence that male partners made sexist comments in evaluating her candidacy.
One partner described her as `macho;' another suggested that she `overcompensated for being a woman;' a third advised her to take `a course at charm school.' Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only `because it's a lady using foul language.'
Id. at 235, 109 S.Ct. at 1782. The Court held that remarks such as these will support a plaintiff's claim for sex discrimination because the comments support the conclusion that the decision not to admit the plaintiff to the partnership was based on "stereotypical notions about women's proper deportment." Id. at 256, 109 S.Ct. at 1794. The court cautioned, however, that not every remark made in the workplace will support a claim for sex discrimination. Writing for a plurality of the court, Justice Brennan explained:
Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part.
Id. at 251, 109 S.Ct. at 1791.
Several federal cases have addressed the circumstances when remarks by supervisors constitute direct evidence of unlawful discrimination. In Emmel v. Coca-Cola Bottling Co., 95 F.3d 627 (7th Cir.1996), the plaintiff contended that she was the victim of unlawful sex discrimination based on her being bypassed for several upper-management positions. In support of her position, the employee presented evidence that she had a longer career with the employer than the employees chosen for promotion, and that only men were promoted. Further, she presented evidence that a supervisor told her that she was "the only other one qualified" for the promotion and that "you know, as we all know, they wanted men in these positions in the past...." Id. at 631. She "also introduced evidence of a number of statements by the top officers at [the employer] indicating a corporate bias against women holding upper-management positions." Id. at 632.
The Seventh Circuit upheld a jury verdict in favor of the employee, explaining that
the statements in question are more than just stray comments.... They are from the top policymakers in the company, the owner, president, vice president and two regional vice presidents, who are ultimately responsible for the company's employment practices. They directly address the policy at issue, the employment of women in upper-management positions at the company.... The jury could readily conclude that the statements demonstrated a pervasive attitude that women do not belong in the upper echelons at [the employer].
Id. at 632.
A similar result was reached in EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir.1990). In Alton, an employee, who had worked for the employer for a number of years, filed a race discrimination claim against his employer. At trial, one witness testified that the general manager of the plant had stated "if it was his company, he wouldn't hire any black people." Id. at 922. The Eleventh Circuit held this evidence was sufficient to support a claim of race discrimination because the general manager "was a decision maker, and he *361 made the remark in reference to hiring." Id. at 924.
Although discriminatory remarks are particularly probative if they are made by the ultimate decisionmaker with respect to the contested employment action, direct evidence of discriminatory statements and actions by someone other than the decisionmaker also may be sufficient to raise a factual dispute. Courts have imputed the bias of an inferior employee to an ultimate decisionmaker when the inferior employee has had an opportunity to influence either the contested employment decision or the decisionmaker's assessment of the employee. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir.1994). "Summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action." Id. at 1459. In Dey, the Seventh Circuit held that evidence that an employee who expressed a discriminatory animus toward the plaintiff also gave an unflattering assessment of the plaintiff's job performance to the person who ultimately made the contested employment decision, was sufficient to establish that the lower level employee was part of the employer's decisionmaking team. The appellate court reversed the trial court's grant of summary judgment in favor of the employer. See id. (general counsel who sexually harassed employee, then gave an unfavorable performance report to the general manager, who terminated her, participated in that termination decision).
In this case, appellees assert that they were entitled to summary judgment because Finklestein, not Burns, was the decisionmaker, and because two of the three finalists were male, thus "proving" that appellant's gender was not a reason for his exclusion.[4] We disagree with both contentions, and hold that Burns' alleged statement that "a lady needed to be selected" qualifies as direct evidence of a discriminatory intent with regard to the contested employment decision. We explain.
First, we cannot say as a matter of law that Burns had no role in the decision not to promote appellant. The record shows that Burns participated in the ultimate decision to select Heaton, as a member of the panel that interviewed and chose her. Under the circumstances, Burns was sufficiently close to the decisionmaking process to be a participant in it, and to allow the inference that his viewpoint represented that of the Department's management. Moreover, the statement he is alleged to have made related directly to gender and to the specific employment decision at issue. Thus, it was not merely a "stray remark."
The evidence that Finklestein made the decision not to select appellant as a finalist or that two other men were included in the three finalists does not require a different conclusion, as appellees contend. Belt's testimony regarding Burns' statement can be construed as direct evidence that from the outset, the Department decided to select a woman for the position. Burns' statement that "a lady had to be selected" may be considered by the fact finder as an admission that the two-step selection procedure was merely Departmental "window dressing" for a decision that had already been made. Thus, Belt's testimony was direct evidence that Heaton had already been pre-selected because she was female.
We disagree with the trial court's conclusion that Belt's testimony regarding *362 Burns' alleged statement was hearsay. Burns' participation in the selection process and his status as a member of the Department's management team removes his statement from the category of inadmissible hearsay. His statement regarding the gender qualifications for the position is an admissible statement by a party-opponent in a representative capacity, under Maryland Rule 5-803(a)(1). See, e.g., B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., 324 Md. 147, 157-58, 596 A.2d 640 (1991) ("[s]tatements by agents concerning a matter within the scope of the agent's employment and made during the existence of the agency relationship should be admissible without the necessity of proving that the agent had authority to speak or that the statements were part of the res gestae ").
If the fact finder ultimately believes Belt's testimony, appellees must prove by a preponderance of the evidence that they would have reached the same decision in the absence of discrimination. See Price Waterhouse, 490 U.S. at 242, 109 S.Ct. at 1786. Because we cannot summarily discount or credit Belt's testimony about Burn's statement at this stage of the proceeding, we shall reverse judgment on this claim, and remand for further proceedings.
2.
Circumstantial Evidence Of Sex Discrimination: Qualifications And Tests
In addition to Belt's testimony, appellant also relies on circumstantial evidence of discrimination. Specifically, he contends that there was sufficient evidence that he was more qualified than Heaton, and that the Department failed to follow its own rules and procedures in the promotion process, to establish that appellees' reasons for not promoting him were pretextual under the McDonnell Douglas framework.
Because appellant's sex discrimination claim survives as a mixed motive case on the strength of Belt's testimony, we need not decide these contentions. Circumstantial evidence of discrimination is admissible in a mixed motive case to corroborate the direct evidence of discrimination. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir.1992) (plaintiff may utilize both direct and circumstantial evidence to prove that employment decision was motivated by discriminatory factors); Levy v. Comm'n on Human Rights, 236 Conn. 96, 671 A.2d 349, 356 n. 16 (1996) (same). Thus, appellant is free to offer evidence regarding appellant's qualifications and applicable Departmental rules and procedures on the issue of whether appellees would have made the same decision regardless of appellant's gender.
We note, however, that this evidence, by itself, would not be sufficient to establish appellant's claim. Appellees have articulated a legitimate nondiscriminatory reason for their decision, by offering evidence that Heaton was chosen for the position because of her strong interview and that appellant was not selected as a finalist because his interview was not as strong as the three finalists, and because his ability to interact at a supervisory level was questionable. Appellant's proffer of his qualifications for the position does not discredit appellees' asserted reasons for not selecting him. Indeed, employers are not required to choose the most qualified person for a promotion. See Emmel, 95 F.3d at 633; see also Causey v. Balog, 929 F.Supp. 900, 910 (D.Md.1996) ("courts are not to impose their own judgments for nondiscriminatory employer decisions").
Moreover, a disgruntled employee's self-serving statements about his qualifications and abilities generally are insufficient to raise a question of fact about an employer's honest assessment of that ability. See Dey, 28 F.3d at 1460. Similarly, courts give little weight to corroborating statements by co-workers or supervisors. See id. The reason is that such evidence "does not shed any light on *363 whether the employer honestly based its employment decision on performance-related considerations, which is the focus of [the] inquiry...." Id. Only evidence that goes beyond generalized assertions to directly address the specific performance deficiencies identified by the employer is sufficient to dispute the employer's asserted reasons. See id. at 1460-61.
Nor does appellant's complaint that "unlike [appellant], Heaton had not taken the statewide test and had not been certified as eligible for the position by State authorities" necessarily undermine appellees' asserted reasons for passing over appellant. It is undisputed that appellant was number eight on the Department's eligible list and that Heaton was not on the list. But appellant's reliance on COMAR 06.01.01.32A[5], which provides that "[t]he appointing authority shall select the person or persons to be appointed from those whose names were certified by the Secretary," is misplaced. We agree with appellees that COMAR 06.01.01.32 does not apply, because the new position was a "reclassification," which does not require the use of the eligibility list under COMAR 06.01.01.13C.(2).[6] The Fiscal Specialist III position was created "[a]s part of audit regionalization" and did not exist at the time the job announcement was made. Moreover, it is clear from the record that the new position was to be filled by a person who was already in the department. COMAR 06.01.01.32-2 addresses promotions. It provides:
An appointing authority may fill a vacancy by selection of promotional candidates from any certification of eligibles list in the following manner:
A. An appointing authority shall select any one of the first five available promotional candidates certified in accordance with § B.
B. An appointing authority may select from a list consisting of:
(1) Employees of the appointing authority; or
(2) Other employees within the same principal department as the appointing authority; or
(3) All other employees certified as promotional.
Under this section, the appointing authority has discretion whether to use the eligibility list in promotional decisions. The regulation unambiguously states that the appointing authority may select from an eligibility list, but also gives the appointing authority the option of selecting an employee "within the same principal department as the appointing authority." In the instant case, the appointing authority advertised the position in the Department and compiled a list from those interested. This manner of promotion was authorized under COMAR 06.01.01.32-2 B. (2).
B.
Age Discrimination Claim
Appellant also appeals the judgment entered on his age discrimination claim. In his brief, he argues that Finklestein discriminated against him because his "seniority, long experience in the field, and broad competence was a threat to the advancement of Finklestein's career."
We shall affirm summary judgment on this count of the complaint because appellant abandoned his claim for age discrimination during the summary judgment hearing. *364 THE COURT: So your position is you agree with [appellees' counsel] that I should grant [appellees'] motion with regard to age.
[APPELLANT'S COUNSEL]: Yes, Your Honor.
[THE COURT]: Okay, then we will grant it as to age....
Maryland law is well settled that "`[t]he right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal.'" Osztreicher v. Juanteguy, 338 Md. 528, 534, 659 A.2d 1278 (1995) (quoting Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531 (1966)). Appellant's assertion on appeal is inconsistent with his acquiescence to summary judgment on the age discrimination claim before the circuit court. We hold, therefore, that appellant may not challenge the grant of summary judgment on the age discrimination claim.
III.
Other Claims
A.
Constructive Discharge Claim
Appellant contends that the circuit court erred in dismissing his constructive discharge claim against the Department. We agree with appellees that appellant's failure to follow Md.Code (1984, 1999 Repl.Vol.), section 12-106 of the State Government Article ("SG"), bars his constructive discharge claim, and explain.
The State of Maryland has waived its immunity in tort actions provided certain procedures are followed. See SG § 12-104(a). SG section 12-106(b) provides, in pertinent part:
(b) Claim and denial required.A claimant may not institute an action under this subtitle unless:
(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim;
(2) the Treasurer or designee denies the claim finally[.]
The purpose of this notice requirement is to give the State notice of claims against it. See Johnson v. State, 331 Md. 285, 296, 628 A.2d 162 (1993). "That early notice, in turn, affords the State the opportunity to investigate the claims while the facts are fresh and memories vivid, and, where appropriate, settle them at the earliest possible time." Haupt v. State, 340 Md. 462, 470, 667 A.2d 179 (1995). The notice requirement is mandatory, so that failure to provide the requisite notice bars any suit against the State. See Rivera v. Prince George's County Health Dept., 102 Md.App. 456, 469, 649 A.2d 1212 (1994), cert. denied, 338 Md. 117, 656 A.2d 772 (1995). The bar applies "even though the State may have suffered no prejudice from the plaintiff's failure to comply with the requirement." Johnson, 331 Md. at 291, 628 A.2d 162.
In his complaint, appellant alleges that his injuries occurred in 1994 when he was denied promotion in favor of Heaton, and in 1995 when he was reassigned and referred to the EAP. Appellant filed suit on March 26, 1998. According to an uncontrovered affidavit submitted by J. Vincent McCann, "the designee of the State Treasurer for purposes of the Maryland Tort Claims Act," appellant has never filed notice of a claim with the Treasurer's office. Therefore, appellant's constructive discharge count is barred against the Department because he failed to comply with SG section 12-106(b).
Even if appellant had provided the requisite notice, he has not provided sufficient facts to support his claim for constructive discharge. "[A] constructive discharge occurs ... when an employer deliberately causes or allows the employee's working conditions to become `so intolerable' that the employee is forced into an involuntary resignation." Beye v. Bureau *365 of Nat'l Affairs, 59 Md.App. 642, 650, 477 A.2d 1197, cert. denied, 301 Md. 639, 484 A.2d 274 (1984). Maryland courts have applied an objective standard in determining whether an employee was constructively discharged. "`The applicable standard to determine if the resignation is, in effect, a constructive discharge, is whether the employer has deliberately caused or allowed the employee's working conditions to become so intolerable that a reasonable person in the employee's place would have felt compelled to resign.'" Moniodis v. Cook, 64 Md.App. 1, 11, 494 A.2d 212 (1985) (quoting Beye, 59 Md.App. at 653, 477 A.2d 1197). For example, in Moniodis, certain employees refused to take a polygraph examination. In response, the employer "impose[d] such hour and location conditions as would make continued employment simply fruitless for those who refused polygraphs." Id. at 11, 494 A.2d 212. Moreover, evidence was presented that a supervisor stated that "what I want to do is cut her hours back until there is no longer any value for her to work here. She will become frustrated." Id. We held that this evidence was sufficient to support a claim for constructive discharge because the employer imposed measures "as would reasonably ensure its goal [of terminating the employees] was achieved." Id. at 12, 494 A.2d 212. See also Staggs v. Blue Cross of Maryland, Inc., 61 Md.App. 381, 392-93, 486 A.2d 798 (1985) (holding that plaintiffs' allegation that they were induced to resign under threat of discharge presented a factual issue inappropriate for resolution by summary discharge).
In support of his claim of constructive discharge, appellant contends that "Finklestein waged a campaign of harassment against [appellant]; he maliciously stated untruths about [appellant]; he placed memoranda in [appellant's] personnel file that were untrue (concerning the mileage request and the Charles County audit); he maliciously sent [appellant] to the Department's EAP program to show that [appellant] had problems in the workplace." Appellant, however, never resigned. The evidence indicates that his position was abolished based on budget constraints. Therefore, because he did not resign, he cannot complain that his working conditions were so intolerable that he felt reasonably compelled to resign. For these reasons, we hold that the trial court properly granted appellees summary judgment on appellant's constructive discharge claim.
B.
Breach Of Contract Claim
Lastly, appellant contends that the circuit court erred in dismissing his breach of contract claim. According to appellant, "Finklestein's and Burns' numerous and continuous acts of harassment against [appellant] constitutes constructive discharge and constitutes a direct violation of the grievance procedures that were part of [appellant's] contract rights and obligations." We find appellant's contention without merit.
Appellant's complaints regarding a breach of contract are identical to his claims of constructive discharge.[7] As discussed supra, appellant never resigned from his position; therefore, he cannot contend that his employment conditions were so intolerable that he felt reasonably compelled to resign.
Moreover, appellant has not presented any evidence that he had a contract with the Department. Rather, he contends that the violation of certain regulations amounted to a breach of contract. Appellant cites only one statute to support his position, Md.Code (1993, 1997 Repl.Vol.), § 12-109 of the State Personnel and Pensions Article, which provides that "[e]ach party to a grievance shall make every effort to resolve the grievance at the lowest level *366 possible."[8] Appellant contends that any grievance should have been handled by his immediate supervisor, Belt.
Section 12-109 does not provide appellant with contractual rights. The statute simply states the general policy consideration that grievances are to be handled at the lowest level possible. The statute does "not promise appellant, or any of [the Department's] other employees, any specific and definite benefit." MacGill v. Blue Cross of Maryland, Inc., 77 Md.App. 613, 619, 551 A.2d 501 (1989). They are no more than "`general statements of policy,' which do not, and indeed could not, `meet the contractual requirements for an offer.' "Id. at 620, 551 A.2d 501. For this reason, the trial court did not err in dismissing appellant's breach of contract claim.
JUDGMENT REVERSED AS TO COUNT I OF THE COMPLAINT, AFFIRMED AS TO ALL OTHER COUNTS. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID ONE HALF BY APPELLANT AND ONE HALF BY APPELLEES.
NOTES
[1] The EAP is a counseling program that was established" to assist in retaining valuable employees experiencing personal problems that adversely affect their job performance."
[2] In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set out the prima facie elements of a discrimination case, requiring a plaintiff to prove: "(i) that he belongs to a [protected] minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiff's] qualifications." Id. at 802, 93 S.Ct. at 1824. In failure to promote cases, the test is stated in a slightly different manner. Instead of proving that the position remained open after the plaintiff's termination, a plaintiff must prove that the "plaintiff was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir.1991).
[3] We note that Belt's deposition testimony contradicts his earlier affidavit, in which he stated that Finklestein made the alleged statement. When asked about the discrepancy, Belt confirmed that "[i]t was Harry Burns," and stated that the affidavit was not accurate, perhaps due to "a typo error." Of course, neither we nor the trial court may resolve the conflict, or make any credibility determinations regarding this testimony. That is a job for the fact finder. See Pittman v. Atlantic Realty Co., 359 Md. 513, 537, 754 A.2d 1030 (2000).
[4] We note that the Department has not asserted that the Fiscal Specialist III selection process was subject to an applicable, constitutionally permissible affirmative action policy designed to eliminate agency work force imbalances on a case by case basis. Cf. Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) (agency may take into account candidate's gender as one factor in determining a promotion, if its affirmative action policy comports with constitutional requirements).
[5] The regulations contained in COMAR part 6 have since been repealed and restated in part 17.
[6] COMAR 06.01.01.13C.(2) provides:
An appointing authority may promote from within an organizational unit a qualified candidate who is the incumbent in a position that is reclassified without requiring that the qualified candidate be on an eligible list for the particular classification, provided pertinent documentation is retained.
[7] In his brief, appellant styles his argument for breach of contract as "[t]he prima facie case of breach of contract due to constructive discharge."
[8] We note that appellant incorrectly identified this statute as section 12-201 of the State Personnel and Pensions Article. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918618/ | 411 B.R. 507 (2009)
In the matter of Kathy A. CLARK, Debtor.
Kathy A. Clark, Individually and as custodian and legal guardian of Kathryn Renea Clark, Plaintiff
v.
Palm Harbor Homes, Inc., Scott Lamirand, Michael Marx, and Bryan County, Defendants.
Bankruptcy No. 06-41391. Adversary No. 08-4006.
United States Bankruptcy Court, S.D. Georgia, Savannah Division.
May 29, 2009.
*509 Matthew M. Bush, Duffy & Feemster LLC, Savannah, GA, for Plaintiff.
Robert Abney Fricks, The Fricks Firm, PC, Warner Robins, GA, Charles H. Brown, Brown Rountree PC, Laura H. Wheaton, Statesboro, GA, Richard Keith Strickland, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, LLP, Brunswick, GA, for Defendants.
MEMORANDUM AND ORDER
LAMAR W. DAVIS, JR., Bankruptcy Judge.
Debtor filed for Chapter 13 on October 3, 2006. On February 8, 2008, Debtor filed an adversary proceeding, and on July 8, 2008, Defendants Palm Harbor Homes, Inc. ("PHH"), Scott Lamirand ("Scott"), and Michael Marx ("Marx") filed a Motion to Dismiss Debtor's adversary. On August 11, 2008, Debtor filed a brief in response to the Motion to Dismiss. After a hearing on the merits, I now enter the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
Debtor contracted with Defendant PHH to purchase a new Palm Harbor modular home and for PHH to provide the delivery, set up and other components such as foundation, HVAC, septic, well, electric, culvert, and land clearing and grading. Complaint, Dckt.No. 1, ¶ 6; Answer, Dckt.No. 5, ¶ 6. Debtor claims that:
Defendant failed to timely deliver the home, delaying set up for more than eight months after the contract was signed. Even after the home was set, it had problems with leaks, severe foundation and support problems, serious electrical issues and various other defects which PHH would not repair.
Brief, Dckt.No. 21, pg. 1-2 (August 11, 2008).
Debtor initiated a lawsuit in the Superior Court of Chatham County against Defendants PHH, Scott, Marx, and Bryan County ("County"). PHH then moved to stay the proceedings and compel arbitration. The Superior Court found the matter was governed by the Georgia Arbitration Code (O.C.G.A. § 9-9-1 et seq.) and entered an order compelling arbitration. Complaint, Dckt.No. 1, ¶ 8; Answer, Dckt. No. 5, ¶ 8.
Thereafter, Debtor filed for Chapter 13 which stayed the arbitration and the Superior Court proceeding. PHH filed a secured claim in Debtor's case for $225,814.10. On February 30, 2007, Debtor filed an objection to PHH's claim. Objection, Case No. 06-41391, Dckt.No. 30.
After a response filed by PHH and a hearing, this Court ordered relief from stay on April 3, 2007 for the purpose of litigating the matter before an arbitrator. The order specifically stated:
IT IS HEREBY ORDERED, ADJUDGED and DECREED that Palm Harbor's Motion for Relief from the Automatic Stay be accordingly, GRANTED for the limited purpose of arbitrating the disputed amount;
IT IS FURTHER ORDERED that Palm Harbor's current claim in this case be allowed in the principal amount of $112,554.03, plus accrued interest and *510 late charges from the date of filing, less $2,000 in payments by debtor;
IT IS FURTHER ORDERED that following the arbitration between the parties, the allowed claim of Palm Harbor shall be adjusted to include amounts awarded, if any, from said arbitration;
Consent Order, Case No. 06-41391, Dckt.No. 38, pg. 1 (April 3, 2007).
The parties thereafter arbitrated the matter before arbitrator Donald M. McDonald with the American Arbitration Association construction arbitration tribunal. Complaint, Dckt.No 1, ¶ 10; Answer, Dckt.No. 5, ¶ 10.
On November 19.2007, Mr. McDonald entered an arbitration award ("Award"). The Award provided the following in "three parts to conform with the consolidated order of" this Court.
Part 1. "... for the limited purpose of arbitrating the disputed amount;" The disputed amount being $44,632.00 as set forth in Mechanic's Lien ...
The arbitrator AWARDS a total of $50,26448 including interest of 7% per annum through November 30, 2007 for the disputed amount to the Claimant.
Part 2. "... Palm Harbor's current claim in this case be allowed in the principal amount of $112,554.03 plus accrued interest and late charges from the date of filing. Less $2,000 in payments by debtor;"...
The arbitrator AWARDS a total of $119,439.33 including interest of 7% per annum through November 30, 2007, without any late Charges, for the currently due principal amount to the claimant.
Part 3. "... the allowed claim of Palm Harbor shall be adjusted to include amounts awarded, if any, from said arbitration;"...
The arbitrator AWARDS as follows in the above subject areas:
a) [delays in constructing and completing the modular home:] The arbitrator is convinced that the delays in constructing and completing the modular home contributed to the loss of permanent financing by the [Debtor] and led to other expenses that may have been precluded with more timely completion which is a much advertised advantage for a modular home. Proper follow-up on warranty items would also have minimized these costs. These costs total $59,306.08 which is herewith AWARDED to the [Debtor].
b) [disregard of the contract, particularly the Move-In-Policy, when the homeowner moved into the home prior to closing and remained in the home for some 15 months without any payments:] Since no claims were made by either party in this area, no AWARD is granted. The Claimant may have been held liable for any losses or damages during this period ...
c) [complete breakdown in relationships between the parties including lack of civility and a misappropriated check:] An AWARD of $9,907.00 is granted to the [Debtor] in this area which includes $9,000.00 in punitive damages.
d) [claims for medical treatment and payment for medical bills:] No AWARD is granted in this area. It must be noted that the arbitrator stated that he had no expertise to evaluate medical claims and how they might relate to this home construction. No testimony was heard on this claim. This claim should be considered, if at all, in a forum different from construction arbitration.
e) [rejection of home and return of same to Claimant:] No AWARD is *511 granted in this area. In fact, no testimony was heard on this claim which was first meaningfully presented in [Debtor's] POST TRIAL BRIEF received by the arbitrator after the close of oral hearings. Such claims must be denied.
f) [attorney's fees] No AWARD is granted in this area. Any claim for attorney fees must be made in a court of competent jurisdiction.
The arbitration Award concluded:
In summary, the arbitrator AWARDS $169,703.81 to [PHH and Scott] and AWARDS $69,213.08 to [Debtor]. The net AWARD of $100,490.73 to [PHH and Scott] will be due within 90 days of the date of this AWARD to enable [Debtor] to obtain permanent financing. [PHH and Scott] must withdraw the Mechanic's Lien immediately and forego any foreclosure attempts for the same 90 day period. No interest, or other charges, shall accrue during this grace period.
Complaint, Dckt.No. 1, Exhibit.
On February 8, 2008, Debtor filed an adversary proceeding seeking: (1) that the Court confirm the arbitration award, subject to some modifications; (2) this Court to order Defendant Palm Harbor Homes, Inc ("PHH") to repair her mobile home or award Debtor for the cost of repairs; (3) an award of attorney's fees; (4) that the Court compel Defendant Bryan County to enforce its ordinance with regard to building codes and cite Defendant PHH for its failure to construct the home in accordance with its building codes; (5) enjoin all collection and foreclosure proceedings; and (6) allow Debtor additional time to secure permanent financing and an injunction against collection efforts by PHH until it has repaired her mobile home. Complaint, Dckt.No. 1.
After filing their answer, Defendants PHH, Scott, and Marx filed a Motion to Dismiss Debtor's Adversary Proceeding with prejudice, arguing that "[Debtor's] adversary proceeding and the allegations raised therein are, in whole or in part barred by virtue of the doctrine of res judicata, in as much as they are identical to that raised in the binding arbitration between plaintiff and Palm Harbor. Further, any issue raised in this adversary is certainly barred by the doctrine of collateral estoppel." Defendants also argue that this Court does not have jurisdiction over this adversary proceeding because it "is little more, if any, than an appeal of binding arbitration and cannot be heard as an appeal in this Court." Motion, Dckt. No. 9 (July 8, 2008).
Debtor filed her Response to Defendants' Motion, arguing that (1) in arguing res judicata and collateral estoppel, Defendant should have filed a Summary Judgment and not a Motion to Dismiss thus "the threshold to withstand such a motion is `exceedingly low'."; (2) the arbitration did not even discuss "mandamus relief against the County requiring it to act in accordance with its obligation to inspect and enforce building codes;" thus res judicata has "no relevance" in that issue; (3) the arbitration award explicitly stated it lacked jurisdiction to determine whether attorney's fees should awarded; (4) O.C.G.A. § 9-9-13(b)(5) expressly empowers the court to scrutinize and vacate a portion or all of an arbitration award; and (5) PHH is obligated to make the repairs to the house and their refusal to do so is in blatant disregard of the law. Brief, Dckt. No. 21 (August 11, 2008).
At the hearing on August 27, 2008, a dispute arose as to whether PHH had the obligation to repair Debtor's home. Since the repairs had not been done, Debtor argued that prevented her from receiving *512 alternative; financing as required by the arbitration arder. PHH on the other hand argued that the arbitration award implied that RHH no longer has the obligation of repairing Debtor's home.
Because of this dispute, Debtor requested clarification from the Arbitrator. Specifically, Debtor asked for the following:
[Debtor] requests that the Court clarify its order by making the finding that Palm Harbor is obligated to correct all deficiencies with regard to the house, including any deficiencies in the foundation and footings pursuant to its warranty. Ms. Clark further requests that the Court extend' the time for her to acquire a final loan on the property until at least 60 days after the date which Palm Harbor completes all corrections of defects in accordance with its warranty.
In the event that the Arbitrator contends that he has already made a finding with regard to damage and repair in its previous award, Ms. Clark requests that the court clarify as to how Palm Harbor is not obligated to make repairs pursuant to its warranty and further asks that the Arbitrator break down its damages award to show the amounts awarded for repairs and specific repairs found.
Correspondence Letter, Dckt.No. 31, pgs. 5-6 (March 17, 2009).
The Arbitrator then replied:
After more than 80 years of service as an arbitrator. I am rarely surprised by an unprecedented and unpredictable actions of the Parties.
In this matter, requesting "clarifications" some 14 months after the AWARD is well beyond any reasonably contemplated time frame (i.e., 20 days is set forth for "modifications" in the Arbitration Rules). The Rules also state: "The Arbitrator is not empowered to redetermine the merits of any claim already decided."
The Arbitrator finds that any attempt to address the "clarifications" motions would necessarily become involved in the redetermination of the merits already decided and therefore DENIES the Motions for Clarification.
In support of this finding:
It must be noted that the Respondent/Counterclaimant's Motion's statements go well beyond any testimony and/or exhibits presented during the evidentiary hearings.
Several examples:
. . .
3. "... Ms. Clark requests that the Court (sic) clarify as to how Palm Harbor is not obligated to make repairs pursuant to its warranty ..." The Arbitrator can find nothing in the AWARD in support of the foregoing statement.
4. "... and the Claimant anticipates that the County will condemn this house without this repair." This possibility was not given any consideration by either Party during the evidentiary hearings. Despite the dire findings by the State of Georgia, which were unpersuasive to the Arbitrator, no legal action has been taken by the Respondent/Counterclaimant to rectify the alleged unlivable conditions.
Correspondence, Dckt.No. 29, pgs. 3-4 (March 5, 2009).
CONCLUSIONS OF LAW
Defendants PHH, Scott, and Marx filed a Motion to Dismiss alleging: (1) that this Court does not have jurisdiction over this adversary proceeding because it "is little more, if any, than an appeal of binding arbitration and cannot be heard as an appeal in this Court;" and (2) "[Debtor's] adversary proceeding and the allegations raised therein are, in whole or in part *513 barred by virtue of the doctrine of res judicata, in as much as they are identical to that raised in the binding arbitration between plaintiff and Palm Harbor. Further, any issue raised in this adversary is certainly barred by the doctrine of collateral estoppel." Motion, Dckt.No. 9 (July 8, 2008).
Whether the arbitration matter is governed by the Georgia Arbitration Code (O.C.G.A. § 9-9-1 et seq.) or the Federal Arbitration Act (9 U.S.C. § 1 et seq.)., this Court has the ability to confirm, modify, or vacate an arbitrators award. The Georgia Arbitration Act provides, in pertinent part:
O.C.G.A. § 9-9-12. Confirmation of an award.
The court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified by the court as provided in this part.
O.C.G.A. § 9-9-14. Modification of award
(b) The court shall modify the award if....
(2) The arbitrators awarded on a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted.
The modification provision "must be strictly construed, and ... the statutory bases of [this provision] provide the exclusive grounds for the modification of an arbitration award." Ralston v. City of Dahlonega, 236 Ga.App. 386, 387, 512 S.E.2d 300, 302 (Ga.Ct.App.1999)(citing Greece v. Hundley, 266 Ga. 592, 594-95, 468 S.E.2d 350 (Ga.1996)). The Federal Arbitration Act provides, in pertinent part:
9 U.S.C. § 9. Award of arbitrators; confirmation; jurisdiction; procedure
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award may pursuant to the arbitration, and shall specific the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in section 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.
9 U.S.C. § 11. Same; modification or correction; grounds; order
In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration
(b) where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
The order may modify and correct the award, so as to effect the intent (thereof and promote justice between the parties.
In this Court's order granting PHH relief from stay to proceed in arbitration, this Court limited the purpose of the arbitration to determining the disputed amount of Debtor's underlying state law claim and adjustment of the allowed claim of PHH to include any amounts awarded by the Arbitrator. See Consent Order, Case No. 06-41391, Dckt.No. 38, pg. 1. Despite the limitations of that order, the Arbitrator also provided a 90 day period for Debtor to pay the full amount so she *514 could obtain permanent financing. See Complaint, Dckt.No. 1, Exhibit.
The Arbitrator exceeded the scope of this Court's instructions and under both Georgia and Federal statutes, this Court has the jurisdiction to modify and correct the arbitration award. See Universal Mgmt. Concepts, Inc. v. Noferi, 270 Ga. App. 212, 214-15, 605 S.E.2d 899, 901-02 (Ga.Ct.App.2004)(held that an arbitrator's award, entered in binding arbitration of a dispute between employee and employer over commissions due under written employment contract could be modified by trial court so that award could conform with provisions of settlement agreement between employer and employee when arbitrator exceeded the parameters established by said agreement.).
As a result, this Court now modifies the arbitration award and deletes the part of the Award that requires Debtor to pay the arbitration award to Defendants within 90 days and requires Debtor to obtain permanent financing. Subject to this modification, I hold that the arbitration award shall be enforced in this Court in that Palm Harbor is allowed a claim in the amount of $100,490.73. That claim will be treated as a secured claim.
Defendants ask for Debtor's entire adversary to be dismissed with prejudice based on the doctrine of res judicata. For Plaintiffs adversary to be dismissed on res judicata grounds, both under Georgia law[1] and federal law,[2] the parties must have been identical in both causes of action. County was not represented in the arbitration, thus Debtor's adversary can not be dismissed under the res judicata doctrine.
However, "if the elements of collateral estoppel are met, the doctrine of collateral estoppel could be applied to the arbitration Award, notwithstanding the fact that it is unconfirmed" or the award contains no findings of fact. Borchers v. DBL Liquidating Trust (In re Drexel Burnham Lambert Group, Inc.), 161 B.R. 902, 907 (S.D.N.Y.1993); see also Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985); In re Gelinas, 2007 WL 1184075, at *4 (Bankr. S.D.Fla. Apr.18, 2007); Bennett v. Cotton, 244 Ga.App. 784, 785, 536 S.E.2d 802, 804 (Ga.Ct.App.2000)("Under Georgia law, preclusion doctrines apply to arbitration proceedings.").
*515 Under Georgia law, a party may only assert the doctrine of collateral estoppel if the issue was (1) raised in a prior proceeding, (2) actually litigated and decided, and (3) necessary to final judgment. Boozer v. Higdon, 252 Ga. 276, 278, 313 S.E.2d 100, 102 (Ga.1984)("In order to successfully plead collateral estoppel, ... one must prove that the contested issues, even though arising out of a different claim, were actually litigated and decided and were necessary to the prior decision."); see also Kent v. Kent, 265 Ga. 211-12, 452 S.E.2d 764 (Ga.1995)("collateral estoppel applies where an issue of fact or law is actually litigated and determined by a valid by a valid judgment, and the determination is essential to the judgment.").
Federal law has similar factors: (1) the issue at stake must be identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding. CSX Transp., Inc. v. Bhd, of Maint. of Way Employees, 327 F.3d 1309, 1317 (11th Cir.2003).
Based on these factors, I find that the following issues were decided by the arbitrator, critical and necessary to the Award judgment, Debtor had a full and fair opportunity to litigate, and will not be relitigated in this Court:
(1) the amount of PHH's current claim;
(2) the amount of the Mechanic's lien;
(3) the following damages incurred by Debtor:
(a) delays in constructing and completing the modular home
(b) disregard of the contract, particularly the Move-In-Policy, when the homeowner moved into the home prior to closing and remained in the home for some 15 months without any payments.
(c) complete breakdown in relationships between the parties including lack of civility and misappropriated check.
(d) rejection of home and return of same to defendant.
The following issues were either not ruled on by the arbitrator, the arbitrator exceeded the scope of his authority, or he reserved the issue for another court to decide, thus collateral estoppel does not apply. These issues must be litigated further.
(1) Whether PHH is obligated to make warranty repairs of the home and whether the warranty period is extended from its contractual expiration date.
(2) Whether Debtor is obligated to seek permanent financing and the time frame for performance.
(3) The method and time frame of Debtor's payment on Defendants claims.
(4) whether to compel Defendant Bryan County to enforce its ordinance with regard to building codes and cite Defendant PHH for its failure to construct the home in accordance with its building codes;
(5) whether to enjoin all collection and foreclosure proceedings; and
(6) the following damages alleged to have been incurred by Debtor:
(a) claims for medical treatment and payment for medical bills
(b) attorney fees
(c) any damages not discovered at the time the arbitration matter was presented to the arbitrator and which came to light as a result of inspections by city of county or state authorities.
*516 ORDER
Based on the foregoing, IT IS THE ORDER OF THIS COURT that the Defendants' Motion to Dismiss is Denied.
FURTHER ORDERED that the parties are granted forty-five (45) days to complete discovery and a Final Pre-Trial Order is due on July 22, 2009.
NOTES
[1] Under Georgia Law,
The doctrine of res judicata provides that [a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside. That is, res judicata prevents the relitigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action... A privy has generally been defined as one who is represented at trial and who is in law so connected with a party to the judgement as to have such an identity of interest that the party to the judgment represented the same legal right. It has also been said that before privity can be established, the interests of the party must fully represent the interests of the privy and be fully congruent with those interests.
Butler v. Turner, 274 Ga. 566, 568, 555 S.E.2d 427 (Ga.2001); see also Morris v. Nexus Real Estate Mortgage & Inv. Co., 296 Ga.App. 477, 675 S.E.2d 511 (Ga.Ct.App.2009).
[2] "In the Eleventh Circuit, a party seeking to invoke the doctrine [of res judicata] must establish its propriety by satisfying four initial elements: (1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action." In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1012124/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: COMMUNITY MANAGEMENT
CORPORATION OF MARYLAND,
Debtor.
BENJAMIN B. WEITZ; SHENANDOAH
ASSOCIATES LIMITED PARTNERSHIP;
JEFFERSON HOUSE ASSOCIATES LIMITED
PARTNERSHIP; LEESBURG MANOR No. 03-1020
ASSOCIATES LIMITED PARTNERSHIP;
WOODSTOCK ASSOCIATES LIMITED
PARTNERSHIP,
Defendants-Appellants,
v.
BARDYL R. TIRANA,
Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-01-2848-PJM, BK-00-11624-PM, AP-00-1595-PM,
AP-01-1046-PM, AP-01-1045-PM)
Argued: October 30, 2003
Decided: December 16, 2003
Before WILKINS, Chief Judge, and NIEMEYER and
SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 IN RE: COMMUNITY MANAGEMENT CORP.
COUNSEL
ARGUED: Alan I. Baron, DORSEY & WHITNEY, Washington,
D.C., for Appellants. David Drake Hudgins, HUDGINS LAW FIRM,
Alexandria, Virginia, for Appellee. ON BRIEF: Linda Popejoy,
DORSEY & WHITNEY, Washington, D.C.; Ronald L. Early,
LERCH, EARLY & BREWER, Bethesda, Maryland; Janet M. Nesse,
STINSON MORRISON HECKER, L.L.P., Washington, D.C., for
Appellants. Sean C.E. McDonough, HUDGINS LAW FIRM, Alexan-
dria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The bankruptcy court imposed sanctions in this adversary proceed-
ing against Bardyl Tirana, counsel for the debtor, Community Man-
agement Corporation of Maryland ("CMC"), under Bankruptcy Rule
9011 for filing and pursuing this proceeding against Benjamin Weitz
and partnerships in which he had an interest (collectively, "Weitz").
On appeal, the district court reversed by an order dated October 11,
2002, and we now affirm that order.
Prior to bankruptcy, in 1991, Weitz sold his ownership interest in
CMC to two former employees of CMC by means of a complex trans-
action involving a promissory note and collateralization of the note
with the stock of CMC. When payment under the note became in
default, the parties instituted multiple litigations in Maryland and in
Virginia, each involving claims and counterclaims.
In February 2000, CMC filed a petition in bankruptcy under Chap-
ter 11, and thereafter the trustee hired Bardyl Tirana, who had repre-
sented CMC in its other litigation against Weitz, to represent CMC’s
IN RE: COMMUNITY MANAGEMENT CORP. 3
interests in bankruptcy-related litigation. Tirana filed this adversary
action on behalf of CMC, which Weitz alleged was the fourth suit in
which CMC asserted the same or similar claims. On Weitz’ motion,
the bankruptcy court dismissed most of CMC’s claims on the ground
that they were barred by res judicata and collateral estoppel and
imposed sanctions against Tirana in the amount of $33,000 because
Tirana filed the complaint "in the face of a clear bar based upon the
doctrines of res judicata or collateral estoppel." The bankruptcy court
rejected Weitz’ alternative ground for sanctions based on the argu-
ment that the claims were barred by the Colorado River doctrine. See
Colorado River Water Conservation District v. United States, 424
U.S. 800 (1976). The bankruptcy court concluded:
Defendant’s reliance upon the Colorado River doctrine in
support of this motion is inappropriate. The doctrine is a
type of abstention that is discretionary. Therefore, this court
will not consider the application of the Colorado River doc-
trine as a basis for the imposition of sanctions.
(Citations omitted).
On appeal to the district court, the district court reversed the bank-
ruptcy court’s imposition of sanctions, concluding that CMC’s claims
were not clearly barred by res judicata and collateral estoppel. Hav-
ing not been presented with the alternative argument under the Colo-
rado River doctrine, it did not review the bankruptcy court’s ruling
on that doctrine.
In this appeal, Weitz does not challenge the district court’s ruling
that CMC’s claims were not clearly barred by res judicata and collat-
eral estoppel. Instead, he relies on the alternative ground presented to
the bankruptcy court that CMC’s claims against Weitz were barred
under the Colorado River doctrine.
Without resolving the complex question of whether the bankruptcy
court’s ruling on the Colorado River doctrine is before us, see Scher-
ing Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996);
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 741 (D.C. Cir.
1995), we conclude that the bankruptcy court did not abuse its discre-
tion in rejecting Weitz’ alternative argument that sanctions should be
4 IN RE: COMMUNITY MANAGEMENT CORP.
imposed because the claims were barred by the Colorado River doc-
trine.
Under the Colorado River doctrine, a federal court may, in rare
cases, abstain from exercising jurisdiction over a federal action when
a parallel state suit exists. 424 U.S. at 818-19. Abstention, however,
is "the exception rather than the rule," with the balance of factors
"heavily weighted in favor of the exercise of [federal] jurisdiction."
Al-Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. 2002) (citation
and internal quotation marks omitted). Weitz contends that sanctions
were warranted because Tirana filed duplicative pleadings and should
have known that the bankruptcy court would invoke the Colorado
River doctrine and refuse to exercise jurisdiction. However, given the
discretionary nature of the Colorado River doctrine and the heavy
presumption in favor of the exercise of jurisdiction, application of the
doctrine would rarely, if ever, be so certain as to warrant sanctions for
the filing of a parallel action in federal court. Certainly, the bank-
ruptcy court did not abuse its discretion in rejecting this ground for
sanctions.
Accordingly, we affirm the October 11, 2002 order of the district
court denying sanctions.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1012126/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4188
TROY WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-02-110)
Submitted: November 21, 2003
Decided: December 15, 2003
Before TRAXLER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Tracy Weese, Shepherdstown, West Virginia, for Appellant. Kasey
Warner, United States Attorney, R. Gregory McVey, Assistant United
States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WILLIAMS
OPINION
PER CURIAM:
Troy Williams was convicted after a bench trial of conspiracy to
distribute cocaine base and distribution of cocaine base. Following
trial, the Probation Office recommended finding that Williams was a
career offender under U.S. Sentencing Guidelines Manual § 4B1.1(a)
(2000), based on two prior felony drug convictions. Williams
objected, asserting that his prior convictions were related and should
not have been counted separately and that application of the "inter-
vening arrest" rule would violate the Ex Post Facto Clause. The dis-
trict court overruled his objections, found that Williams was a career
offender, and sentenced him to 210-months imprisonment. Williams
now appeals the career offender determination.
A defendant is a career offender if (1) he was at least eighteen at
the time of the instant offense; (2) the instant offense of conviction
is a violent or drug felony; and (3) the defendant has at least two prior
violent or drug felony convictions. USSG § 4B1.1(a). Williams does
not dispute the first two requirements; however, with regard to the
third requirement, Williams contends that his prior convictions were
related and should not be counted separately.
Prior sentences imposed in related cases are to be treated as one
sentence for purposes of USSG § 4B1.1. USSG §§ 4A1.2, comment.
(n.3); 4B1.2, comment. (n.3). Nevertheless, prior sentences are not
considered related if they were for offenses that were separated by an
intervening arrest. USSG § 4A1.2, comment. (n.3). It is undisputed
that Williams’ prior convictions were separated by an intervening
arrest.
However, Williams contends that application of the commentary to
USSG § 4A1.2 to offenses committed before its November 1991
effective date would violate the Ex Post Facto Clause. Williams’ prior
convictions used to determine his career offender status were for
offenses committed in 1989, prior to adoption of the commentary.
Nonetheless, we find no ex post facto problem.
UNITED STATES v. WILLIAMS 3
The provisions of § 4A1.2 and its commentary were enacted before
Williams committed the instant offense of conviction, which is the
relevant offense for an ex post facto analysis. See United States v.
Allen, 886 F.2d 143, 146 (8th Cir. 1989) (so long as actual crime for
which defendant is being sentenced occurred after the effective date
of new statute, there is no ex post facto violation); see also Gryger
v. Burke, 334 U.S. 728, 732 (1948) ("Nor do we think that the fact
that one of the convictions that entered into the calculations by which
petitioner became a fourth offender occurred before the Act [which
enhanced the punishment for being a fourth time offender] was
passed, makes the Act invalidly retroactive . . ."). Moreover, USSG
§ 1B1.11 instructs courts to apply the Guidelines in effect on the date
of sentencing. However, if the guidelines violate the Ex Post Facto
Clause, the court shall use the guidelines in effect "on the date that
the offense of conviction was committed." USSG § 1B1.11(b)(1).
Williams’ offense of conviction was committed in 2000-2001, and
Williams was sentenced in 2003. Under § 1B1.11, the 1991 commen-
tary of § 4A1.2 applies regardless of an ex post facto determination
by the district court. See United States v. Brewster, 137 F.3d 853,
858-59 (5th Cir. 1998).
It is undisputed that Williams’ two offenses were separated by an
intervening arrest. Thus, they are not related, and as there is no ex
post facto problem, they were properly counted separately in deter-
mining that Williams was a career offender. Accordingly, we affirm
Williams’ sentence. We deny Williams’ motions to substitute attor-
neys and for a continuance. We dispense with oral argument, because
the facts and legal contentions area adequately presented in the mate-
rials before the court and argument would not aid the decisional pro-
cess.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918619/ | 730 So.2d 277 (1999)
Fernando FERNANDEZ, Appellant,
v.
STATE of Florida, Appellee.
No. 84,700
Supreme Court of Florida.
February 25, 1999.
Rehearing Denied April 15, 1999.
*278 Alfonso M. Saldana, Miami, Florida, for Appellant.
Robert A. Butterworth, Attorney General, and Randall Sutton, Assistant Attorney General, Miami, Florida, for Appellee.
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Fernando Fernandez. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions. However, because we find that appellant's death sentence is not proportional, given the circumstance that Fernandez was not a triggerman, to the life sentences of his codefendants Pablo Abreu and Pablo San Martin, we vacate the death sentence and remand for imposition of a life sentence.
Fernandez and codefendants Leonardo Franqui, Ricardo Gonzalez, San Martin, and Abreu were charged with first-degree murder of a law enforcement officer, armed robbery with a firearm, aggravated assault, unlawful possession of a firearm while engaged in a criminal offense, third-degree grand theft, and burglary.[1] Fernandez was tried before a jury in May 1994.
*279 On January 3, 1992, a cash box was stolen at gunpoint from a drive-in teller at the Kislak National Bank in North Miami. The perpetrators fled the scene in two stolen grey Chevrolet Caprice cars. During the robbery, two gunmen shot and killed North Miami police officer Steven Bauer. Shortly thereafter, the stolen vehicles were found abandoned two blocks from the bank.
The day after the murder, appellant was watching television at the home of Claudio Prado when a report of the North Miami bank robbery and murder was broadcast. Prado testified that appellant listened to the television report and then told Prado that he had been involved in the crime and wanted to see a Santeria priest known as a babalao. Prado testified that he took appellant that same day to see Lazaro Hernandez, who was a babalao, and that appellant asked Hernandez to perform a ritual to prevent appellant from being apprehended. Hernandez subsequently informed police as to appellant's statements to him regarding the crime and shared a $100,000 reward with Prado.
Upon his arrest, appellant led police to the codefendants, who confessed that they had participated in the robbery and murder. Ballistics evidence showed that Gonzalez fired a .38 revolver, hitting the victim in the neck, and Franqui fired a .9 mm handgun. San Martin took the money tray, and Abreu drove a getaway car in which he waited a few blocks from the crime scene and then transported the perpetrators to his apartment.
Five months after the robbery and murder, inmate Luis Sanchez befriended appellant while both were in jail. Sanchez testified that appellant told him that a friend named Gary Cromer had described a bank robbery plan to him and that appellant had "stolen" the plan for his own use. Appellant told Sanchez that he obtained the guns used in the robbery, stole the getaway cars, drove the codefendants to the crime scene, witnessed the crime, facilitated the getaway, and shared in the proceeds of the robbery. Cromer testified that he and a friend had devised the bank robbery plan in 1991, and Cromer had later described the plan to appellant. Three or four weeks before the crime, appellant introduced Cromer to the codefendants. Cromer then went with appellant and the codefendants to the bank and showed them the usual routine of the bank tellers as they opened their stations for business. Cromer said he did not participate in the robbery or share in the proceeds.
Abreu pled guilty prior to trial and received a life sentence. The remaining defendants moved in pretrial motions to suppress their confessions and sever their trials based upon their allegedly inconsistent statements given to police. After hearings, the court denied all of the codefendants' motions except for appellant's motion to sever his trial. Pursuant to the court's order, the confessions of the codefendants were not admitted at trial against appellant. The codefendants were tried together with two juries, designated "Jury A" to hear appellant's case and "Jury B" to hear the cases of Franqui, Gonzalez, and San Martin.[2] Jury A found appellant guilty of first-degree murder of a law enforcement officer, armed robbery, aggravated assault, and both counts of grand theft and burglary.
During the penalty phase, the State relied on evidence presented during the guilt phase. The defense presented testimony of appellant's mother, who testified that she once *280 asked appellant to sell cocaine in order to raise money to post bond for appellant's father, who was in jail on a drug charge. Appellant's sister testified that she and appellant used illegal drugs at home and that their parents never tried to stop them. The defense also presented testimony of a prison chaplain who stated that appellant was remorseful and a psychologist who stated that appellant tested just below the low-average range of intelligence and that he had a personality disorder. Appellant testified that he tried to back out of the robbery on the morning of the crime but could not because Franqui threatened to shoot him and harm his family. The jury recommended a death sentence by a vote of seven to five.
A sentencing proceeding was held before the court, and additional testimony was presented. The defense presented a transcript of the statement that appellant made to police two weeks after the murder of Officer Bauer in which appellant stated that he participated in the crime under duress because of threats by Franqui. The State presented testimony of Hialeah police detective Albert Nabut, who interviewed appellant after an attempted robbery and murder near Hialeah. The detective stated that appellant told him he had informed Franqui and San Martin of the existence of a check-cashing business run by Danilo Cabanas and his son. Franqui, San Martin, and Abreu subsequently attempted to rob Cabanas at gunpoint after he left a bank with $25,000 accompanied by his son and Raul Lopez. During the attempted robbery, Lopez was killed by a bullet consistent with a .357 revolver used by Franqui.[3]
In this case, the judge considered the jury's recommendation and sentenced appellant to death, finding three aggravating circumstances: previous convictions of violent felonies; murder committed during the course of a robbery and for pecuniary gain (merged into one aggravator); and murder for the purpose of avoiding or preventing lawful arrest or effecting an escape from justice and that the victim was a law-enforcement officer (merged into one aggravator). See § 921.141(5)(b), (d), (e), (f), (j), Fla. Stat. (1993). The court gave great weight to these aggravating circumstances and found no statutory mitigating circumstances. Of the nonstatutory mitigating circumstances proffered by the defense, the court found that only two were proven: family history of cocaine use by appellant and his parents and appellant's cooperation with authorities. The court gave these mitigating circumstances little weight. In the sentencing order, the trial court provided an Enmund-Tison[4] analysis and concluded that appellant was eligible for the death penalty because he was a major participant in the crime, intended lethal force to be used, and had exhibited a reckless indifference to human life.
In this Court, appellant appeals his convictions and death sentence and raises twelve issues.[5]
*281 GUILT PHASE
Appellant first contends that the trial court erred in granting the State's challenges for cause against four prospective jurors who stated during voir dire that they were opposed to the death penalty. Appellant alleges that these four venirepersons should not have been excused because, upon examination by defense counsel, they stated that they could follow the law. First, defense counsel did not specifically object on these grounds to the State's challenges to the four venirepersons or to the court's granting of them. See Turner v. State, 645 So.2d 444, 446 (Fla. 1994). Therefore, this claim is procedurally barred. Even if this claim had been properly preserved for appellate review, our examination of the prospective jurors' statements during voir dire reveals that this claim has no merit. The standard for determining whether a prospective juror may be excused for cause because of his or her views of the death penalty is whether the prospective juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the juror's instructions or oath. See Foster v. State, 679 So.2d 747 (Fla. 1996). It is within a trial court's province to determine whether a challenge for cause is proper, and the trial court's determination of juror competency will not be overturned absent manifest error. See Mendoza v. State, 700 So.2d 670, 675 (Fla. 1997), cert. denied, ___ U.S. ___, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998). The four prospective jurors to whom appellant points gave equivocal responses to questions from the prosecutor, defense counsel, and the court as to whether they could follow the law and set aside their beliefs concerning the death penalty. We find that no manifest error has been shown here.
Appellant next argues that the trial court erred in denying a defense motion for mistrial based on unduly prejudicial references in the prosecutor's opening statement. Appellant contends that the prosecutor's references to appellant as "a robber and a murderer" and to the victim as singing a Christian song just before he was shot were designed to inflame the jury. Appellant also argues that the prosecutor further attempted to inflame the jury by describing the bullet's trajectory through the victim's body. A trial court has discretion in controlling opening statements, which are not evidence. See Occhicone v. State, 570 So.2d 902, 904 (Fla. 1990). We will not interfere unless an abuse of discretion is shown. See Moore v. State, 701 So.2d 545, 551 (Fla. 1997), cert. denied ___ U.S. ___, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998). We find the trial court did not abuse its discretion in allowing these statements, which were later supported by evidence presented.
As part of this second claim, appellant also contends that the trial court erred in permitting two bank tellers at the Kislak National Bank to testify as to Officer Bauer's last words inquiring as to the well-being of the tellers. Appellant argues that the statements were hearsay and not relevant to any issue in the case and any possible probative value was outweighed by the prejudicial effect of the statements. We previously addressed this same issue in the direct appeal of codefendant San Martin and found the claim to be without merit. San Martin v. State, 717 So.2d 462 (Fla. 1998). We concluded that the trial court did not err in admitting Bauer's statements through the tellers' testimony. Id. The complained-of statement was relevant to the victim's duties as a police officer, and the victim's employment status at the time of the robbery was pertinent to the potential penalty and to the applicability of the law-enforcement-officer aggravator. As in San Martin, we find no abuse of discretion by the trial court.
*282 In his third issue, appellant argues that the trial court erred in allowing into evidence the victim's bloodstained police shirt and undershirt. At trial, defense counsel objected to admission of these items based on an argument that the evidence was cumulative to previously admitted photographs and was unduly prejudicial. The trial court overruled the objection, finding the shirts to be relevant evidence because the bullet hole was not visible in photographs of the clothing that were admitted. In similar circumstances, we have held that actual clothing is admissible. See Larkins v. State, 655 So.2d 95, 99 (Fla. 1995); Reaves v. State, 639 So.2d 1, 5 (Fla. 1994). Determination of whether certain evidence is admissible should be made in the context of the relevancy test. Larkins, 655 So.2d at 99. As to admission of the bloody shirts, the record reflects that the shirts were relevant evidence to establish the fact that the victim was a police officer and to assist the prosecutor's expert witness in explaining how the shooting occurred.
Appellant contends in this appeal that even if the blood-stained clothing was relevant evidence, its probative value was substantially outweighed by the danger of unfair prejudice under section 90.403, Florida Statutes (1991). A trial judge must balance the import of the evidence with respect to the case of the party offering it against the danger of unfair prejudice. See Williamson v. State, 681 So.2d 688, 696 (Fla. 1996). In this case, as in Williamson, the record reflects that the trial judge performed the necessary weighing. We conclude that the shirt was relevant to support the State's expert testimony explaining the shooting and was not made a feature of the trial. Therefore, we find no abuse of discretion as to this claim.
Appellant argues in his fourth issue that the trial court erred in allowing witnesses Hernandez and Prado to testify as to inculpatory statements appellant made in their presence. Appellant argues that these statements were privileged under the clergy communications privilege, section 90.505, Florida Statutes (1993), because the witnesses were, respectively, a Santeria priest and a novice Santeria priest.
We find that appellant's claim as to Prado was not preserved for appellate review because the defense made no objection on these grounds when Prado testified. As to Hernandez, we find no merit in appellant's claim that Hernandez' testimony concerning appellant's statements qualifies as a privileged communication. Communications to a member of the clergy which are confidential and made for the purpose of seeking spiritual advice are privileged. § 90.505, Fla. Stat. (1993). Assuming that Hernandez was a member of the clergy to whom appellant went for spiritual advice, we still must determine under section 90.505 whether appellant's communication to him was confidential. Our review of the record indicates that Hernandez testified on direct examination that Hernandez' wife and children, in addition to appellant's girlfriend and her children, were present in the room at the time appellant made his statement concerning the crime. On cross-examination, Hernandez testified that he met with appellant "[n]ot so privately." Section 90.505 explicitly defines confidential communications for the purpose of clergy privilege as those communications that are "made privately." § 90.505(1)(b), Fla. Stat. (1993). Thus, we find no abuse of discretion in the trial court's ruling against any claim to clergy communications privilege as to Hernandez because appellant's statement to Hernandez was made in the presence of others.
In his fifth issue, appellant contends that the trial court erred in limiting the defense counsel's cross-examination of witnesses Prado and Hernandez which was designed to impeach their credibility. Appellant contends that defense counsel should have been allowed to attempt to establish that Prado and Hernandez had violated religious oaths in talking to police about appellant's statements to them. We have held that evidence of particular acts of ethical misconduct cannot be introduced to impeach the credibility of a witness. The only proper inquiry into a witness's character for impeachment purposes goes to the witness's reputation for truth and veracity. See Farinas v. State, 569 So.2d 425, 429 (Fla. 1990). Allowing this testimony would violate sections *283 90.608, 90.609, and 90.610, Florida Statutes (1993), which prohibit impeachment by reference to specific bad acts other than convictions for felonies or misdemeanors involving dishonesty. We find no error in the trial court's limitation of cross-examination of Prado and Hernandez on grounds that the defense questioning was irrelevant and thus no abuse of discretion as to this claim.
We find no reversible error in the guilt phase of appellant's trial. We find that appellant's convictions are supported by competent, substantial evidence, and we affirm his convictions.
PENALTY PHASE
Turning to the penalty phase, we discuss only appellant's ninth claim, which presents the dispositive penalty-phase issue as to appellant's individual culpability and the proportionality of the death sentence in this felony murder. Appellant claims that, under Enmund-Tison, a death sentence is not appropriate because he was merely a getaway driver, not a triggerman in the crime. Appellant contends that the trial court erred in finding that he was a major participant in the crime, and compares his role in the robbery-murder to that of the defendants in Enmund and Jackson v. State, 575 So.2d 181 (Fla. 1991). In Enmund, the United States Supreme Court reversed a death sentence based on evidence that the defendant had no role in the robbery-murder other than that of a getaway driver. Enmund, 458 U.S. at 785, 102 S.Ct. 3368. In Jackson, this Court similarly reversed a death sentence in a case based on circumstantial evidence pointing to Jackson as merely a getaway driver. Jackson, 575 So.2d at 192-93.
In this case, the record shows that appellant was inside a getaway car during the robbery-murder at the Kislak National Bank. The record reveals and we find that appellant's degree of participation in the crime was similar to that of codefendant Abreu, a getaway driver who received a life sentence after a plea negotiation. Additionally, this Court reversed the jury-override death sentence of codefendant San Martin, who was unarmed during the robbery-murder and whose role in the crime was to take the money tray from the bank tellers and to dispose of the guns. We find that a death sentence for appellant, who did not directly participate in the actual killing, would be disproportionate relative to the life sentences of Abreu and San Martin, who also did not directly participate in the killing.
We find appellant's penalty-phase claims six through eight to be moot in light of our reversal of the death sentence. Claims ten through twelve are procedurally barred because they were not preserved for appellate review.
CONCLUSION
For the reasons expressed, we affirm appellant's convictions, reverse his death sentence, and remand for a sentence of life in prison without possibility of parole.[6]
It is so ordered.
HARDING, C.J., SHAW, ANSTEAD, and PARIENTE, JJ., and OVERTON and KOGAN, Senior Justices, concur.
WELLS, J., dissents with an opinion.
WELLS, J., dissenting.
The majority holds that under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), a death sentence is not appropriate in this case because appellant was merely a getaway driver, not a triggerman, in the crime. However, my close reading of the record reflects that, although appellant did serve as a getaway driver, he also played a far more extensive role in the robbery-murder and thus was a first-degree principal and a major participant. Under these circumstances, a death sentence is proportional as compared with the codefendants' sentences *284 and with those of other defendants convicted of first-degree murder. I find no error in the jury's recommendation and the trial court's imposition of a sentence of death.
The record reveals that appellant's degree of participation in the crime was greater than that of codefendant Abreu, who received a life sentence after a plea negotiation, and greater than that of codefendant San Martin, whose jury-override death sentence was reduced to life imprisonment by this Court. According to the record, it was appellant who brought to the group the plan for the robbery, stole the getaway cars, obtained the murder weapons, then drove the codefendants to the scene of the crime, remained there to witness the crime, and shared in the proceeds of the robbery. By contrast, Abreu was solely a getaway driver whose participation in the robbery was to wait a few blocks away to aid the defendants in their escape. Codefendant San Martin's role was limited to taking the money tray from the bank tellers and disposing of the guns used in the murder.[7]
Appellant further contends that the trial court erred in finding him recklessly indifferent to human life. He argues that no evidence shows that appellant knew just before the robbery that guards would be nearby and that there would be any need for deadly force. However, as the trial judge in this case stated in the Enmund-Tison portion of his sentencing order:
The defendant was the first of these defendants to know the intended target of their nefarious scheme. He knew that the target was not an easy mark; he knew that there would be a police officer or armed guard protecting the tellers; he knew or should have known that the officer would not just allow the robbery to happen; he knew that his accomplices were armed and he knew that they were violent men who had already acted violently in the attempted robbery of the Cabanas, another robbery he had set up from behind the scenes.
Thus, based on the trial court's finding that appellant was a major participant in the crime and was recklessly indifferent to human life, I would affirm the trial court's Enmund-Tison analysis, which was thoroughly set forth in the sentencing order. Accordingly, I would affirm the death sentence.
NOTES
[1] After its opening statement, the State filed a nolle prosequi as to one count of aggravated assault and the charge of unlawful possession of a firearm during a criminal offense.
[2] The jury recommended a life sentence for San Martin, and the judge overrode the recommendation and imposed a death sentence. This Court affirmed San Martin's conviction but vacated his death sentence and remanded for a life sentence on a finding of the trial court's improper override of the jury's recommendation of a life sentence. San Martin v. State, 717 So.2d 462 (Fla. 1998). The jury recommended and the court imposed death sentences upon Franqui and Gonzalez. This Court affirmed the convictions of Franqui and Gonzalez but vacated the death sentences and remanded for new penalty-phase proceedings based on the erroneous admission of the codefendants' statements that implicated each other as the aggressor. Gonzalez v. State, 700 So.2d 1217, 1219 (Fla. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1393, 140 L.Ed.2d 652 (1998), and cert. denied, ___ U.S. ___, 118 S.Ct. 1856, 140 L.Ed.2d 1104 (1998); Franqui v. State, 699 So.2d 1332, 1336 (Fla. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1337, 140 L.Ed.2d 499 (1998), and cert. denied, ___ U.S. ___, 118 S.Ct. 1582, 140 L.Ed.2d 797 (1998).
[3] San Martin and Franqui were tried and sentenced to death for the Hialeah crime. This Court affirmed their death sentences. San Martin v. State, 705 So.2d 1337 (Fla.1997), cert. denied, ___ U.S. ___, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998); Franqui v. State, 699 So.2d 1312 (Fla. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1337, 140 L.Ed.2d 499, and cert. denied, ___ U.S. ___, 118 S.Ct. 1582, 140 L.Ed.2d 796 (1998). Abreu negotiated a plea and testified at the penalty phase as to the planning of the crime.
[4] Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In Enmund, the United States Supreme Court held that the Eighth Amendment of the United States Constitution does not permit imposition of the death penalty on a defendant "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." 458 U.S. at 797, 102 S.Ct. 3368. In Tison, the Supreme Court held that "major participation in the felony committed, combined with reckless indifference to human life is sufficient to satisfy the Enmund culpability requirement" for imposing a death sentence under a felony murder theory. 481 U.S. at 158, 107 S.Ct. 1676.
[5] Appellant's claims are as follows: (1) the trial court erred in granting the State's challenges for cause against four prospective jurors; (2) the trial court erred in denying a defense motion for mistrial based on unduly prejudicial statements in the State's opening statement; (3) the trial court erred in admitting the victim's bloody shirts; (4) the trial court erred in permitting State witnesses Prado and Hernandez to testify as to statements appellant made in their presence; (5) the trial court erred in limiting defense counsel's cross-examination of State witnesses Prado and Hernandez; (6) the trial court erred in denying defendant's motion for a continuance of the penalty phase; (7) the trial court erred in finding that certain aggravators had been proven beyond a reasonable doubt; (8) the trial court erred in weighing proffered mitigation; (9) the trial court erred in imposing a death sentence because the individual culpability test has not been met and therefore a death sentence is not proportional; (10) the trial court erred in instructing the jury during the penalty phase; (11) the trial court erred in allowing the State to make improper comments during closing argument; and (12) the death sentence constitutes cruel and unusual punishment under the United States or Florida constitutions.
[6] If a death sentence is not imposed, the penalty for first-degree murder of a law enforcement officer is life imprisonment without eligibility for release. See § 775.0823(1), Fla. Stat. (1991). The jury's guilt-phase verdict specifically found that Steven Bauer was a law enforcement officer. Therefore, appellant is to be sentenced to life imprisonment without possibility of parole.
[7] Appellant also notes that this Court has reversed death sentences against two codefendants, Franqui and Gonzalez, who were the actual shooters during the robbery-murder. However, our reversal of the death sentences of Franqui and Gonzalez was on grounds entirely unrelated to the proportional culpability issue under the Enmund-Tison requirement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918622/ | 764 A.2d 138 (2001)
Ronald GOSSET et al.
v.
Susan REID.
No. 99-233-Appeal.
Supreme Court of Rhode Island.
January 9, 2001.
Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Lauren E. Jones, Providence, for Plaintiff.
Thomas R. Bender, David P. Whitman, Providence, for Defendant.
OPINION
PER CURIAM.
Given a plaintiff who wouldn't or who couldn't go to trial, a Superior Court motion *139 justice ruled that he shouldn't. Consequently, she entered a judgment dismissing his complaint. On appeal, following a prebriefing conference, a single justice of this Court ordered the plaintiffs to show cause why the issues raised in their appeal should not be summarily decided. Because they failed to do so, we proceed to decide the appeal at this time.
The plaintiff Ronald Gosset (Gosset), and the other plaintiffs his wife, Linda, and their children, Mellissa and Verity rented a portion of certain premises owned by the defendant, Susan Reid (Reid), in the city of Newport. The complaint claimed that Gosset had injured himself in 1990 while he was on Reid's property. Apparently, a large stone fell from a wall and struck him. The blow from the stone, he alleged, caused him to fall and hit his head. The complaint asserted that the stone wall surrounding the courtyard of Reid's property was unsafe and defective and that Reid knew or should have known of its unsafe condition. The complaint requested damages for Gosset's injuries, for his wife's resulting loss of consortium, and for his children's loss of parental society and companionship.
Before the court's eventual dismissal of this case, plaintiffs had sought and obtained numerous continuances to avoid starting the trial. Indeed, the trial justice granted no fewer than eight separate continuances in response to plaintiffs' motions to defer the trial because of Gosset's chronic illness and his inability to pay for experts. Gosset also refused to submit to a videotaped deposition of himself. Eventually, pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure, defendant moved to dismiss the complaint based upon the plaintiffs' failure to comply with the court's order requiring Gosset to submit to the taking of his videotaped deposition. Rule 41(b)(2) provides:
"On motion of the defendant the court may, in its discretion, dismiss any action for failure of the plaintiff to comply with these rules or any order of court or for lack of prosecution as provided in paragraph (1) of this subdivision."
Paragraph (1) of Rule 41(b) provides that an action may be dismissed for lack of prosecution if it has been pending for more than five years, or, at any time, if plaintiff fails to proceed when the case is reached for trial. Here, although defendant moved to dismiss based upon plaintiffs' failure to comply with a court order, plaintiffs' complaint also had been pending for more than five years when the court dismissed the case.
In granting the motion to dismiss, the motion justice cited two reasons. First, she noted that Gosset had failed to comply with her previous order requiring him to submit to a videotaped deposition. But she also noted that she was "not making this ruling based solely upon the deposition issue." The motion justice observed that she had a duty to move cases along and to make sure that they were handled with equal regard to the rights of defendants and plaintiffs. She stated: "In this case, I don't think it is fair to require the defendant to continue to bear the burden of this pending litigation until Mr.Gosset's situation improves financially and/or medically so that she can then be called into court to defend herself."
We review the motion justice's decision in this case under an abuse of discretion standard. In Hyszko v. Barbour, 448 A.2d 723, 726 (R.I.1982), this Court held that "[a]buse of discretion is the applicable standard to be used when reviewing a [motion] justice's dismissal of a civil action for lack of prosecution pursuant to * * * Rule 41(b)(2)." A similar standard is applicable for cases dismissed for failure to comply with a discovery order. See Mumford v. Lewiss, 681 A.2d 914, 916 (R.I.1996) (per curiam). The order requiring Gosset to submit to a videotaped deposition was analogous to a discovery order. Therefore, given Gosset's failure to prosecute this case and his failure to submit to a *140 videotaped deposition, we review the dismissal order under a deferential abuse-of-discretion standard of review.
The plaintiffs argue that no evidence indicated that defendant would be prejudiced by the delay in the commencement of trial. The motion justice noted, however, that Reid would "be required to defend herself and to present evidence and testimony from witnesses who, if they are still around, are going to be asked to recall events which occurred, allegedly occurred ten years ago."
The plaintiffs counter that, in considering a motion to dismiss under Rule 41(b)(2), the motion justice is required to weigh conflicting interests. The court's need to manage its docket, the public interest in the expeditious resolution of litigation, and any prejudice to the defendant caused by the delay are placed on one side of the scale. On the other side, the court must factor in the goal of trying to dispose of cases on their merits rather than on procedural defaults. See Hyszko, 448 A.2d at 726. In the present case, it appears to us that the trial justice duly weighed the respective equities involved before granting Reid's motion to dismiss. The motion justice discussed the order requiring Gosset tosubmit to a videotaped deposition and noted that she "wanted to be sure that that deposition would take place under circumstances most benign to Mr. Gosset and with due regard for his medical conditions which are compromising him." She also noted that Gosset could have arranged for a caregiver to be present during the deposition to assure his comfort. The motion justice commented that ordering the videotaped deposition to proceed was the "gentlest thing [the court] could do and yet be fair to all parties." Given the absence of any indication from plaintiffs about when or if Gosset's medical and financial situation might improve enough to allow the trial to proceed, and because Gosset had refused to preserve his testimony in a videotaped deposition, the motion justice ultimately concluded that the case should be dismissed for plaintiffs' failure to proceed with a trial in a timely fashion.
The plaintiffs cite two federal cases in support of their argument that the trial justice abused her discretion in dismissing this case: McCombs v. Pittsburgh-Des Moines Steel Co., 426 F.2d 264 (10th Cir.1970) and Benjamin v. Aroostook Medical Center, Inc., 57 F.3d 101 (1st Cir.1995). In McCombs, the district court dismissed the plaintiff's case when the plaintiff requested a continuance because of the sudden illness of a key witness. McCombs, 426 F.2d at 265. On appeal, the Tenth Circuit determined that this dismissal was overly harsh in light of the totality of the circumstances. Id. at 266. The court noted that the testimony of the absent witness was alleged to be unique and vital to the plaintiff's case. Id. Because the plaintiff otherwise was ready for trial, the court concluded that there was no question of deliberate delay or lack of good faith. Id. And in Benjamin, the trial court dismissed the plaintiff's case because the plaintiff's attorney was absent from scheduled proceedings. Benjamin, 57 F.3d at 103. The First Circuit determined that the dismissal was an abuse of discretion because the attorney was absent because of illness, the attorney had apprised the court of this situation by filing two motions for enlargement of time, and the litigation had been pending for less than one year. Id. at 108.
Although both McCombs and Benjamin involved circumstances in which litigation was delayed because of the illness of a key participant in the trial, their similarity with the present case is largely limited to that fact. In both McCombs and Benjamin, the dismissal of plaintiff's case occurred after only a short or insignificant delay. Benjamin, 57 F.3d at 103; McCombs, 426 F.2d at 265. In this case, however, the complaint had been pending since 1993 and plaintiffs had requested numerous trial continuances over the course of the two years before the dismissal. Although both McCombs and Benjamin involved only the issue of illness, here, *141 plaintiffs have alleged that they were unprepared for trial not only because of illness, but also because of financial problems. Finally, in this case, the motion justice accorded plaintiffs an opportunity to go forward despite the illness of the complaining witness by having Gosset submit to a videotaped deposition of his testimony. The plaintiffs' failure to do so contributed as much to the dismissal of the case as did their repeated failure to proceed when the case was reached for trial.
The plaintiffs contend that the trial justice should have dismissed the case without prejudice so that plaintiffs would have the opportunity to refile their complaint. To do so, however, would trivialize Reid's interests in obtaining a final resolution of this matter, one that began with an incident that occurred in 1990 and had been pending in court since 1993. In addition, as Reid has argued, if the plaintiffs' claims had been dismissed without prejudice, the plaintiffs would have had the opportunity to refile their complaint, and the process of awaiting trial would have begun anew for Reid. This would have effectively given the plaintiffs a prolonged continuance one that they were not entitled to obtain in the first place. In light of the equities involved, we hold that the motion justice did not abuse her discretion in ultimately dismissing this case with prejudice.
For these reasons, we deny the plaintiffs' appeal and affirm the judgment in favor of the defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918627/ | 411 B.R. 913 (2009)
In the matter of Patricia Lynn ALLEN, Debtor.
No. 07-42066.
United States Bankruptcy Court, S.D. Georgia, Savannah Division.
May 12, 2009.
*915 Kimberly S. Ward, H. Lehman Franklin, PC, Statesboro, GA, for Debtor.
MEMORANDUM AND ORDER ON MOTION OF THE UNITED STATES TRUSTEE TO DISMISS PURSUANT TO § 707(b)
LAMAR W. DAVIS, JR., Bankruptcy Judge.
FINDINGS OF FACT
Debtor's Chapter 7 was filed on December 18, 2007. On March 17, 2008, the United States Trustee filed a Motion to Dismiss. The United States Trustee argues that Debtor's Chapter 7 case constitutes an abuse of Chapter 7, contending that (1) an unrebutted presumption of abuse arises under § 707(b)(2)(A)(I) or (2) abuse has been shown under § 707(b)(3)(B) and its totality of circumstances test. Following discovery, the parties entered into a joint stipulation of *916 facts which is incorporated herein verbatim.
1. The debtor filed a voluntary chapter 7 bankruptcy petition on December 18, 2007 (the "petition date"). Along with her petition, the debtor filed, inter alia, bankruptcy schedules, a statement of financial affairs, a statement of intention, and a Chapter 7 Statement of Current Monthly Income and Means-Test Calculation (the "Means Test Form"). See Exhibit A (petition and related filings).
2. The debts at issue in the debtor's case are primarily consumer debts.
3. For most of 2007, the debtor's youngest daughter (date of birth: 6/10/88) lived with the debtor in her household. However, the debtor's daughter moved away from the debtor's home at the beginning of December 2007. As a result, the debtor had only one person (herself) living in her household on the petition date. The debtor claimed her youngest daughter as a dependent on her 2007 tax return. See Exhibit B (debtor's 2007 income tax return).
4. On January 15, 2008, the U.S. Trustee's office sent an email to counsel for the debtor, with a copy to the Chapter 7 Trustee, detailing the questions raised by the U.S. Trustee's initial review of the documents filed by the debtor and requesting further documents. The email requested that the Chapter 7 Trustee continue the meeting of creditors to allow the debtor a reasonable time to produce the documents requested by the U.S. Trustee. See United States Trustee email of January 15, 2008 attached hereto as Exhibit C.
5. On January 17, 2008, the Chapter 7 Trustee convened the meeting of creditors. The debtor appeared and testified. Pursuant to the U.S. Trustee's request, the Chapter 7 Trustee adjourned the meeting of creditors and announced that the meeting would reconvene on February 7, 2008 at 3:00 p.m. The debtor did not object to the adjournment.
6. On February 4, 2008, the debtor responded to the U.S. Trustee's email inquiry of January 15, 2008. Attached to the debtor's email were various documents offered to satisfy the U.S. Trustee's request for documentation. See Debtor's email of February 4, 2008 attached hereto as Exhibit D.
7. After completing its review, the U.S. Trustee's office sent an email to debtor's counsel (with a copy to the Chapter 7 Trustee) on February 6, 2008 detailing the results of the U.S. Trustee's analysis regarding the presumption of abuse, notifying the debtor that her appearance at the continued meeting of creditors would not be required, and requesting that the Chapter 7 Trustee conclude the meeting of creditors when it reconvenes. See United States Trustee email of February 6, 2008 attached hereto as Exhibit E.
8. On February 7, 2008, the Chapter 7 Trustee reconvened and concluded the meeting of creditors without further appearance or testimony from the debtor.
9. The U.S. Trustee filed a Statement of Presumed Abuse on February 19, 2008. February 17, 2008 was a Sunday. February 18, 2008 was a federal holiday, Washington's Birthday.
10. On March 17, 2008, the U.S. Trustee filed a motion to dismiss, asserting dismissal claims based on the presumption of abuse under § 707(b)(2) and based on the totality of the debtor's financial circumstances under § 707(b)(3).
11. On the petition date, the debtor owned a home at 1173 Highway 21, Springfield, GA that she intended to surrender to the secured creditor. Prior to *917 the petition date, the debtor failed to make the monthly mortgage payments due October 1, 2007; November 1, 2007; and December 1, 2007. The debtor made no postpetition mortgage payments and promptly surrendered possession of her home to the secured creditor.
12. On the petition date, the debtor owned a 2006 Toyota Solara that she intended to surrender to the secured creditor. The debtor made no postpetition payments to the secured creditor and promptly surrendered possession of the vehicle to the secured creditor.
13. On the petition date, the debtor owned a 2001 Volkswagen Jetta in fair condition with no liens against it. After the petition date, the debtor gave possession of this vehicle to her youngest daughter. The debtor received no money in return for the vehicle, and the debtor continues to pay $79.00 per month to insure this vehicle for her daughter to drive.
14. On January 18, 2008, the debtor's mother purchased a 2008 Dodge Caliber for the debtor to drive. The debtor's mother is the title owner of the vehicle, but the debtor agreed to make all of the monthly payments on the vehicle. The purchase price of $18,688.96 was financed, and the finance contract requires monthly payments of $359.00 over 72 months. Debtor's mother has agreed to transfer title of the vehicle to the debtor after the last payment is made.
15. Attached hereto as Exhibit F is a spreadsheet showing both the debtor's and the U.S. Trustee's means test analysis. The spreadsheet illustrates the line entries that the parties assert to be correct on the means test form. The parties agree that the numbers appearing on the spreadsheet are accurate and that there are no facts in dispute as to these amounts. The legal issues in dispute as to the means test line entries are described in detail in the U.S. Trustee's motion to dismiss and the debtor's response thereto.
16. Attached hereto as Exhibit G are stipulated Schedules I and J showing the debtor's income and expenses as of the petition date. The parties agree that the numbers appearing on these schedules are accurate.
17. Attached hereto as Exhibit H are stipulated Schedules I and J showing the debtor's current income and expenses. The parties agree that the numbers appearing on these schedules are accurate through January 27, 2009. The debtor is moving to a new residence in February 2009. Her income will remain the same, but her utility expenses may change.
18. The debtor is currently 41 years old and in good health. She is employed as a registered nurse with Lifelink Foundation earning an annual base salary of $56,000.00 for 40 hours per week (80 hours per bi-weekly pay period). See Exhibit I (Lifelink payment advices dated 10/17/08-12/12/08). Any overtime earned by the debtor would be in addition to the $56,000.00 base salary. The debtor continues to live alone and has no dependents living in her household other than herself.
19. The U.S. Trustee issued three sets of interrogatories to the debtor. The debtor's answers to each set of interrogatories are attached hereto as Exhibit J, Exhibit K, and Exhibit L.
In her Means Test calculation, Debtor claimed four deductions that the United States Trustee disputes and this Court will address: (1) a $699.68 deduction on Line 42A and a $265.00 deduction on Line 42B for future secured debt payments on a first lien and second lien respectively on *918 her house and a $438.96 deduction on Line 42C for future secured debt payments on the Toyota Solara; and (2) a $332.00 vehicle ownership deduction under the Internal Revenue Service standards on Line 24 for the 2001 Volkswagen Jetta.[1]
CONCLUSIONS OF LAW
I. Timeliness of the Motion to Dismiss
In a threshold issue, Debtor argues that the United States Trustee's motion to dismiss was not timely. 11 U.S.C. § 704(b) provides in pertinent part:
(b)(1)(A) the United States trustee ... shall review all materials filed by the debtor and, not later than 10 days after the date of the first meeting of creditors, filed with the court a statement as to whether the debtor's case would be presumed to be an abuse under 707(b); and
...
(2) The United States trustee ... shall, not later than 30 days after the date of filing a statement under paragraph (1), either file a motion to dismiss or convert under section 707(b) or file a statement setting forth the reasons the United States trustee ... does not consider such a motion to be appropriate.
Debtor argues § 707(b)(1) requires the United States Trustee to file his statement of abuse within 10 days of the beginning, or "first" meeting of creditors. Conversely, the United States Trustee argues the 10-day period runs from the "conclusion" of the first meeting of creditors. For the reasons stated in the Honorable Susan D. Barrett's decision In re Molitor, 395 B.R. 197, 201-04 (Bankr.S.D.Ga.2008), I agree with the United States Trustee. Therefore, I find that the Trustee's motion to dismiss under § 707(b) was timely.
II. Presumption of Abuse under § 707(b)(2)
Section 707(b)(2)(A) states that this Court shall presume that a debtor's case is an abuse of Chapter 7 if the debtor's current monthly income, less the amounts deductible under § 707(b)(2)(A)(ii)(iii), and (iv), over a 60-month period, equals or exceeds $182.50 ($10,950/60). Debtor's Form B22A shows that her monthly income is $4,620.93 and her monthly deductions total $4,966.71. That negative number falls well below the $10,950 threshold. However, if the deductions that the United States trustee disputes are disallowed, the presumption of abuse will arise.
A. Future Payments on Secured Claims-Line 42
The United States Trustee's calculations show disposable income of $988.09. Because Debtor was obligated on a mortgage at the time of the filing which she intended to surrender, the United States Trustee allowed her $696.00 on Line 20(b). Based on In re James, ___ B.R. ___, 2008 WL 6782491 (Bankr.S.D.Ga.2008)(Davis, J.), I now rule that she is entitled to the deductions on Line 42(a) and (b), thus reducing her disposable income by those figures. However, the United States Trustee's allowance of $696.00 then needs to be eliminated. In addition, based on the precedent in James, Debtor is entitled to the deduction on Line 42(c) for the Toyota Solara she intended to surrender but was contractually obligated to make payments on at the time of the petition. The result of all these calculations using the United States Trustee's numbers is that her disposable *919 income is reduced to $280.45 per month ($988.09 [United States Trustee's Monthly Disposable Income]-$699.68 [First Mortgage]-$265.00 [SecondMortgage]-$438.96 [Automobile Payment] + $696.00 [Deduction Allowed by the United States Trustee]). Since $280.45 is still above the $182.50 threshold, unless some of Debtor's other deductions are allowed, she remains above the presumption of abuse threshold.
B. Deductions under IRS Standards
Besides allowing a deduction for future payments on secured claims, 11 U.S.C. § 707(b)(2) also allows a monthly expense deduction under the IRS standards. Section 707(b)(2)(A)(ii)(I) defines "monthly expenses" as follows:
The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor's actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service for the area in which the debtor resides ... Notwithstanding any other provision of this clause, the monthly expenses of the debtor shall not include any payments for debts.
The National and Local Standards referenced in the statute are found in the IRS's Financial Analysis Handbook, which is, in turn, contained in the IRS's Internal Revenue Manual ("IRM").[2] Revenue agents use the IRM to assess the financial condition of delinquent taxpayers in order to determine how much they can afford to pay back to the government. The IRM specifies three types of expenses: National Standards, Local Standards, and Other Expenses. See IRM § 5.15.1.7.
The IRS National Standards include items such as food, clothing, household supplies, personal care, and miscellaneous expenses. For these items, a debtor's allowable expenses are uniform, regardless of where the debtor lives. The IRM's Local Standards set out two categories of expenses: transportation and housing/utilities, and these amounts vary from place to place. A third category, Other Necessary Expenses, includes such items as monthly payments on student loan debt, taxes, mandatory payroll deductions, health care, and telecommunication services. For these, a debtor is allowed to deduct the actual amount that the debtor spends on a monthly basis, without any specified limitation on such expenses.
On the stipulated means test chart, Debtor claims a vehicle ownership deduction for a 2001 Volkswagen Jetta equal to the full $332.00 available under the IRS standard for a second vehicle. The United States Trustee on the other hand allowed no ownership deduction on Line 24, but did increase the Operations Expense deduction on Line 22 by $200.00 for an old car from $260.00 to $460.00.
The issue here is whether Debtor can deduct a vehicle ownership expense pursuant to § 707(b)(2)(A)(ii)(I), notwithstanding that the debtor owns the vehicle free and clear of any liens or encumbrances. The IRS Local Standards apply to transportation costs, which are divided into two components: a nationwide allowance for ownership costs and an allowance to cover the cost of operating one or two motor vehicles or the cost of public transportation. See IRM § 5.15.1.
The United States Trustee contends that Debtor "may claim the owner-ship/lease *920 expense deduction only if the vehicle in question is either [actually] (1) leased, or (2) owned but subject to an obligation to a secured creditor." U.S. Trustee's Post Trial Brief, Dckt.No. 69. pg. 13-14 (March 11, 2009). Debtor, on the other hand, argues that "applicable" expenses are those that apply to the debtors by virtue of their geographic region and number of cars, regardless of whether the debtor has an actual loan or lease payment.
There is a split among courts over this issue, and "[m]ost courts on either side of the split base their respective positions on a plain meaning interpretation of § 707(b)(2)(A)(ii). The meaning of the phrase, `the debtor's applicable monthly expense amounts specified under the Local Standards,' is the point of division between the courts ..." In re Ransom, 380 B.R. 799, 803 (9th Cir. BAP 2007)(internal citations omitted).
One court of appeals and two bankruptcy appellate panels adopt the so-called "plain language approach." This approach holds that a debtor who owns his car outright may take the deduction because
`applicable' refers to the selection of an expense amount corresponding to the appropriate geographic region and number of vehicles owned by the debtor. In other words, under the plain language approach, the Local Standard vehicle ownership deduction `applies' to the debtor by virtue of his geographic region and number of cars, regardless of whether that deduction is an actual expense.
In re Ross-Tousey, 549 F.3d 1148, 1157-58 (7th Cir.2008)(internal citations omitted); see also In re Kimbro, 389 B.R. 518, 532 (6th Cir. BAP 2008); In re Pearson, 390 B.R. 706, 714 (10th Cir. BAP 2008) order vacated 309 Fed.Appx. 216, 2009 WL 205408 (10th Cir.2009).
Two other bankruptcy appellate panels have adopted an opposite "IRM approach" and "read `applicable' to mean that the debtor can deduct a vehicle ownership expense under the Local Standards only if he or she has such an expense in the first place." In re Ransom, 380 B.R. at 805; see also In re Wilson, 383 B.R. 729, 734 (8th Cir. BAP 2008). In describing this approach, the Seventh Circuit that the courts using this approach "use the methodology of the IRM as an interpretive guide for the means test." In other words, "[decisions favoring the IRM view generally reason that we should look not only to the Local Standards themselves (which are simply dollar amounts) in conducting a debtor's means test, but also to the manner in which the IRM uses the Local Standards in the revenue collection process." In re Ross-Tousey, 549 F.3d at 1158. "Under the I.R.S. methodology, if a taxpayer has no car payment, the taxpayer is entitled only to the transportation operation deduction, not the ownership deduction." Id. at 1159.
For the reasons stated in In re Ross-Tousey, 549 F.3d 1148 (7th Cir.2008), I adopt the "plain meaning approach" and hold that even though Debtor owns her car outright, she may make the deduction under Line 24 of the Means Test Form. Furthermore, because I will allow the $332.00 deduction on Line 24, she can only receive $260.00 on the United States Trustee's calculations for Transportation Operations Expenses on Line 22 and would not receive the additional $200.00 allowance proposed by the United State Trustee. Her disposable income would thus be reduced by $132.00. ($332.00 [Vehicle Ownership Deduction]-$200.00 [Decrease in Operations Expense Deduction]).
Thus starting with the tentative $280.45 per month disposable income derived from *921 my rulings supra at page 918-19, this additional deduction reduces Debtor's disposable income to $148.45 per month. ($988.09 [United States Trustee's Monthly Disposable Income]-$699.68 [First Mortgage]-$265.00 [Second Mortgage]-$438.96 [Secured Payments on Toyota Solara] + $696.00 [United States Trustee's Allowed Deduction]-$332.00 [Vehicle Ownership Deduction] + $200 [Decrease in Operations Expense Deduction]). Since that number is below the $182.50 threshold, the presumption of abuse does not arise.
III. Totality of Circumstances of Debtor's financial situation demonstrates "abuse" under § 707(b)(3)(B)
The United States Trustee has alternatively asked this Court to dismiss Debtor's Chapter 7 under 11 U.S.C. § 707(b)(3)(B), arguing that the granting of relief would be an abuse of the provisions of Chapter 7 given the totality of circumstances of Debtor's financial situation.[3] That section states:
In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption in subparagraph (A)(1) of such paragraph does not arise or is rebutted, the court shall consider
(B) the totality of circumstances ... of the debtor's financial situation demonstrates abuse.
11 U.S.C. § 707(b)(3)(B).
Since the presumption did not arise, the United States Trustee bears the burden of proving that a totality of circumstances of the debtor's financial situation demonstrates "abuse." In re Cribbs. 387 B.R. 324, 332 (Bankr.S.D.Ga.2008)(Davis, J.). "[I]n order to prove a totality of circumstances of a debtor's financial condition demonstrates abuse, the United States Trustee must show more than a debtor's ability to fund a Chapter 13 plan." In re James, ___ B.R. ___, ___ _ ___, 2008 WL 6782491, *8-9 (Bankr.S.D.Ga. 2008)(Davis, J.).
"`[T]he sheer mathematical ability to fund a chapter 13 plan can, and properly should, be considered and weighed as one, but only one, factor within a totality of circumstances analysis. To artificially limit this Court's examination of the debtor's financial condition to one factor `is at odds with the totality of circumstances inquiry mandated by Congress.'" Id., (quoting In re Beckerman, 381 B.R. 841, 845 (Bankr. E.D.Mich.2008)). Therefore even though the primary factor is whether a debtor has the ability to repay a meaningful portion of his debts from future income, the United States Trustee must prove more. Some of the factors for "proving more" include:
(1) Whether the bankruptcy filing was precipitated by an unforseen or sudden calamity, such as an illness or unemployment;
(2) Whether the debtor is eligible for chapter 13 relief;
(3) Whether the debtor has made any efforts to repay his debts or negotiate with creditors; whether there are non-bankruptcy remedies available to the debtor; or whether the debtor can obtain relief through private negotiations;
(4) Whether the debtors could provide a "meaningful" distribution in a chapter 13 case;
*922 (5) Whether the debtor's expenses could be reduced significantly without depriving them and their dependents of necessities, including whether the debtor's schedules and statement of current income and expenses reasonably and accurately reflect the true financial condition;
(6) the period of time over which the debts were incurred; and
(7) whether the debtor has a stable source of future income.
Id.
I hold that the United States Trustee has satisfied its burden of showing the totality of Debtor's financial situation demonstrates "abuse." To determine whether Debtor can provide a "meaningful" distribution in a hypothetical Chapter 13, courts consider the debtor's schedules, statements, and any other facts that are necessary for this analysis. There is no bright-line rule establishing what is "meaningful." Rather a court should consider both the percentage of unsecured debt a debtor is capable of paying as well as the dollar amount payable to any particular creditor or class. Id. at ___, 2008 WL 6782491, *10. In trying to create an objective standard to help in this analysis, I found in James that the $182.50 threshold fixed in § 707(b)(2)(A) is "a helpful tool for determining whether a case should be dismissed for abuse under § 707(b)(3)(B)" in that "[i]t assists courts in analyzing what is meaningful based on Debtors' projected future income from Schedules I and J." Id. at ___, 2008 WL 6782491, *10.
In this case, I find that Debtor can make a meaningful distribution. As of the date of the hearing, the schedules showed disposable income of $669.53 per month. However, based on additional stipulations at trial,[4] Debtor's total monthly expenses should be increased by $65.00 thus making Debtor's disposable income $604.53 or $36,271.80 over a 5 year plan, which is more than three times the $182.50 threshold. Stipulation, Exhibit H.
Debtor currently has no secured debt because she has surrendered her home and has surrendered the 2006 Toyota Solara. However, Debtor does have $15,358.14 in priority unsecured debt and $40,834.77 in nonpriority unsecured debt. See Stipulation, Dckt.No. 66, Exhibit A (petition), Schedule D, E & F. After subtracting the $15,358.14 in priority unsecured debt from the disposable income, Debtor would have approximately $20,913.66 in disposable income to pay the $40,834.77 in nonpriority unsecured debt which would yield approximately a 51.2% dividend which is more than double the alternative 25% threshold.
Having established the primary factor of "meaningful ability," the United States Trustee must still show more, and that showing has been made. First, Debtor is eligible for a Chapter 13 and has a stable source of future income. Debtor is gainfully employed as a registered nurse earning an annual gross salary of $56,000.00, which is much higher than the median gross income of $38,086.00 for a one-person household in the state of Georgia on the petition date. In fact, Debtor has moved twice during the pendency of this case and has successfully changed employment both times. Also, Debtor's unsecured *923 debt easily falls within the Chapter 13 debt thresholds of 11 U.S.C. § 109(e).
Second, there is no evidence that Debtor filed for bankruptcy because of an unforseen calamity such as sudden illness, disability, or unemployment. Instead, at the time of the petition, Debtor was employed as a registered nurse at Beaufort Memorial Hospital for over three years, making approximately $3,040 per month. Stipulation, Exhibit A (petition), Schedule I.
Third, Debtor has the ability to reduce her monthly expenses and fund a higher yielding Chapter 13 plan. Currently, Debtor is paying $225.00 in support to her adult children who are not living at home. Id., Exhibit H, Schedule J, Line 15. Though supporting college-age children is admirable when parents have the means to do so, this Court reaffirms its long-held precedent in following The Honorable W. Homer Drake, Jr., and numerous other colleagues in finding "that supporting adult children at the expense of unsecured creditors is not permissible." In re Walker, 383 B.R. 830, 838-39 (Bankr.N.D.Ga. 2008)(and cases cited therein). If this expense is eliminated, Debtor would have $829.53 per month in disposable income ($604.53 [Debtor's disposable income] + $225.00 [Support of her adult children], which over a five-year Chapter 13 plan would yield approximately an 84% dividend to unsecured creditors $49,771.80 [$829.53 disposable income multiplied by 60 months]-$15,358.00 [priority unsecured debt] divided by $40,834.77 [non-priority unsecured debt]).
Debtor is also paying $79.00 per month for insurance on the 2001 Jetta her youngest daughter drives, a vehicle which Debtor gave to her youngest daughter after the petition date, receiving no money in return. After that gift Debtor incurred a $359.00 per month expense on a new vehicle. See Id., Line 13a; Exhibit K. If the United States Trustee succeeded in its argument that these deductions should not be allowed, Debtor could conceivably have $1,360.87 per month in disposable income ($604.53 + $225 + $79 + $359 + 93.34), which over a 5-year Chapter 13 plan would yield a 100% dividend to unsecured creditors ($81,652.20 minus $15,358.14 divided by $40,834.77).
Because Debtor can fund a meaningful repayment under Chapter 13 and because multiple factors have been proven in accordance with my earlier rulings on this point, I find the United States Trustee has prevailed on the totality of circumstances showing for dismissal.
ORDER
Pursuant to the foregoing Findings of Fact and Conclusions of Law, IT IS THE ORDER OF THIS COURT that the case is dismissed unless Debtor converts her Chapter 7 to a voluntary Chapter 13 on or before May 22, 2009.
NOTES
[1] In his post-trial brief, the United States Trustee also disputes Debtor's deduction of $32.04 for the vehicle ownership deduction on Line 23 for the Toyota Solara. However, the United States Trustee concedes that this deduction is not dispositive in this case, thus this Court will not address this issue. Brief, Dckt.No. 69, pg. 13
[2] The IRM, including the Financial Analysis Handbook, can be found on the IRS website, at http://www.irs.gov/irm.
[3] At the hearing, Debtor asked this Court to reject its prior reasoning in Cribbs and James and find that if Debtor passes the means test under § 707(b)(2) then this Court should only dismiss a case under § 707(b)(3) if there is evidence of bad faith. However, this ignores that BAPCPA explicitly bifurcated § 707(b)(3) so that a court may find abuse under this section if debtor filed the petition in bad faith OR the totality of the circumstances of the debtor's financial situation demonstrate abuse.
[4] U.S. Trustee's post-trial brief stated "the debtor's electricity and heating fuel expense is now $200.00 per month rather than $90, and the debtor's telephone and internet/cable expense are now consolidated in a single pack-age that costs $115.00 per month rather than $160.00. These adjustments increase the debtor's total monthly expenses by $65.00." Post-Trial Brief, Dckt.No. 69, pg. 19 n. 8. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440523/ | 970 N.E.2d 631 (2009)
386 Ill. App. 3d 1137
PEOPLE
v.
CRUTCHFIELD.
No. 5-07-0039.
Appellate Court of Illinois, Fifth District.
February 18, 2009.
Affirmed in part, reversed in part & remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918577/ | 764 A.2d 20 (2001)
COMMONWEALTH of Pennsylvania, Appellant,
v.
John KRATSAS, Appellee.
Commonwealth of Pennsylvania, Appellant,
v.
George M. Kratsas, Appellee.
Commonwealth of Pennsylvania, Appellant,
v.
Amusement Supply Company, Appellee.
Supreme Court of Pennsylvania.
Argued March 6, 2000.
Decided January 8, 2001.
*22 Stephen A. Zappala, Jr., Pittsburgh, Jennifer Digiovanni, Philadelphia, for Com.
James A. Wymard, Pittsburgh, for John Kratsas.
Anthony Mark Mariani, Pittsburgh, for George M. Kratsas.
David B. Wasson, Lower Burrell, for Amusement Supply Co.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
*21 OPINION
SAYLOR, Justice.
The trial court barred the Commonwealth from prosecuting Appellees for dealing in gambling devices and related offenses, although they are alleged to have distributed video poker machines and other devices modified to permit gambling in violation of an express statutory prohibition. Finding, inter alia, that local governmental officials in Western Pennsylvania tolerated gambling activities, the court concluded that the prosecution would be fundamentally unfair and would violate principles of due process under the United States and Pennsylvania constitutions, and the Superior Court affirmed this holding. We reverse.
Appellees, John and George Kratsas, are proprietors of Amusement Supply Company, a third-generation, family-owned business that leases game and vending machines to establishments throughout Allegheny County. Among the devices supplied are video poker and video slot machines, which are commonly placed in taverns, private clubs, service stations, and grocery and convenience stores. In January of 1991, the Pennsylvania State Police, Bureau of Liquor Control Enforcement ("BLCE"), began investigating allegations of illegal gambling activities in Allegheny County. During the investigation, Appellees were identified as suppliers of particular electronic game machines that had been used for gambling. Specifically, it was alleged that video poker and slot machines were equipped by either Appellees or the machine's distributors with a "knock-off" feature, permitting the removal of credits or games accumulated by a player and thereby allowing the owner of the establishment to pay a dollar value per *23 credit, typically 25 cents.[1] In addition, the machines purportedly contained accounting devices (meters) that recorded the credits, enabling Appellees and the establishment owners to divide the profits. Such devices are significant in determining whether a particular machine is a gambling device. See generally Commonwealth v. Twelve Dodge City Poker Machines, 517 Pa. 363, 367, 537 A.2d 812, 814 (1988) (addressing the effect of clearing and recording features upon the determination of whether a machine is a gambling device per se).
On December 14, 1993, BLCE officers executed a search warrant at the office of Appellee, Amusement Supply Company, seizing records and video devices equipped with knock-off mechanisms and internal meters. Search warrants were subsequently executed at eleven establishments in which Appellees had placed video poker and slot machines, and during these searches, machines were seized, inspected, and found to contain knock-off devices and meters. Based upon the information gathered from the investigation and the searches, Appellees were charged with three counts of corrupt organizations, eight counts of gambling devices, criminal conspiracy and dealing in the proceeds of unlawful activities. Charges were not lodged against the manufacturers or distributors of the gaming machines, nor were any charges filed against the proprietors of the establishments from which the machines had been seized.
Prior to trial, Appellees filed an omnibus pre-trial motion, seeking, inter alia, dismissal of the prosecution as violative of fundamental fairness and, correspondingly, the due process clauses of the United States and Pennsylvania constitutions. Although Appellees' motion did not further refine the underlying legal theory supporting the requested relief, they emphasized allegations that gambling is pervasive in Pennsylvania; local officials and law enforcement officers issued amusement device licenses or permits to Appellees and others authorizing the use of video poker and slot machines with knowledge that such devices were used for gambling; and the fees to license video poker and slot machines were higher than those required for other game machines, because the devices were used for gambling. Predicated upon these factual averments, throughout their motion Appellees put forward the assertion that "it is the public policy of Pennsylvania that gambling is legal and/or de facto legal" as a basis for dismissal.
The trial court conducted a lengthy series of pre-trial hearings on the motion from July of 1995 through September of 1996, during which both Appellees and the Commonwealth presented extensive testimony and other evidence concerning the practice, procedure, and knowledge of local officials relating to the licensing of video poker and slot machines. In particular, Appellees presented evidence that 10,000 video poker and slot machines existed within various establishments throughout Allegheny County, including ninety-nine percent of all private clubs, and that such machines were delivered openly, visibly displayed and played, and, more important, openly used for gambling.[2] Municipal officials license these machines, and, in some instances, police departments affix permits or licenses on the machines themselves. Moreover, Appellees offered testimony that local officials are aware that gambling occurs on the machines; higher licensing or permit fees are charged for the video poker and slot machines; these devices generate significant revenue for the municipalities; and local officials "turn a blind eye" toward gambling. In addition, Appellee, George Kratsas, testified *24 that officials within the communities indicated that there was nothing wrong with using such machines for gambling, and that based upon these conversations and the practice of licensing video poker and slot machines, he believed that gambling on the machines was legal.
In response, the Commonwealth challenged the propriety of the pre-trial motion to dismiss, arguing that the due process issue required factual findings that would be more appropriately rendered by a jury. On the substantive points, the Commonwealth offered evidence that: most gambling prosecutions are initiated at the state level; it is difficult to enforce the gambling laws because some of the machines are legal, at least as manufactured; the machines seized in this case contained knock-off devices and meters, which rendered such devices illegal per se; and while local officials issued licenses, they did not authorize gambling. The Commonwealth also presented testimony that many of the video poker and slot machines contained warnings that the devices were for amusement only, and, similarly, the local ordinances and the amusement device permits did not authorize gambling. Furthermore, the Commonwealth offered the text of local ordinances indicating the official policy to follow state law, as well as testimony from local officials stating that they refused to license devices that contained clearing and recording features and that they were unaware that video poker and slot machines were used for gambling. Finally, the Commonwealth elicited from George Kratsas that no state official had ever advised him that gambling was legal. Following the hearings, Appellees submitted proposed findings of fact and conclusions of law, and the Commonwealth filed a brief in opposition.
In ruling on Appellees' motion, initially the trial court determined that challenges to a prosecution on due process grounds are properly made to a court as opposed to a jury, since the United States Supreme Court has explained that such claims may prevent the government from proceeding with a prosecution. See generally United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 674, 93 S.Ct. 1804, 1817, 36 L.Ed.2d 567 (1973)[hereinafter "PICCO"]. In relation to the merits of the motion, the trial court adopted, in full, Appellees' proposed findings of fact and conclusions of law, including but not limited to the findings that the deployment of illegally modified video poker and slot machines was prevalent, open and notorious throughout Allegheny County; local officials issued licenses or permits for such machines with knowledge that these devices were used for gambling; the fees for the licenses were higher when the device was a video poker or slot machine precisely because of the gambling function; the municipalities gained substantial revenue through such licensure; and, because of the licensing practices of the municipalities, the lack of enforcement of the gambling statute, and conversations with public officials, Appellees believed that their conduct was legal. In the application of due process principles to these findings, the trial court invoked a doctrine predicated upon reliance on misrepresentations of law by government officials, sometimes referred to in the decisional law and commentary as the "official statement mistake of law doctrine," and "entrapment by estoppel."[3] In this regard, the trial court analogized the case to a trilogy of United States Supreme Court cases, Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and PICCO, 411 U.S. at 655, 93 *25 S.Ct. at 1804, which, universally, are recognized as laying the groundwork for the doctrine. The trial court stated:
Just like the defendants in Raley, Cox [and] PICCO ..., the defendants in this case were affirmatively led to believe that they were acting within the prescriptions of the law in engaging in the conduct at issue in this case. Because the licensing process was mandatory and the licensing of gambling devices was accepted and promoted, the defendants were obviously within reason to rely upon the conduct of the highest ranking officials of the municipalities in licensing the use of the video gambling devices for the commonly known purpose of gambling.
It is patently unreasonable to hold [Appellees] criminally culpable for the conduct described in the Information filed in this case. Government officials not only permitted, they encouraged and benefited from video gambling. They allowed the defendants in this case to believe that they were engaging in conduct that would not result in criminal prosecution. The clear, overriding evil sought to be remedied by the Raley, Cox and PICCO cases and their progeny is fundamental unfairness in the initiation of criminal prosecutions. Allowing prosecution of the defendants, under the facts of this case "would be to sanction an indefensible sort of entrapment by the State." The prosecutions of [Appellees] fall squarely within the purview of these cases and this Court should "prevent the Government from proceeding with the prosecution."
(citations omitted). Thus, the trial court accepted Appellees' position that the prosecution violated the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. The Commonwealth lodged an appeal, and a divided panel of the Superior Court affirmed in a one-page, memorandum decision, relying upon the findings of fact and conclusions of law that were adopted by the trial court, with Judge Ford Elliott concurring in the result. Because this case presents issues of first impression in this Commonwealth, we allowed appeal.
Presently, the Commonwealth maintains its position that Appellees' reliance claim should have been submitted to a jury at trial. Further, the Commonwealth contends that uncontroverted evidence demonstrates that Appellees fully apprehended that gambling (and distribution of gambling devices) was proscribed by law. In this regard, the Commonwealth emphasizes Appellees' multi-generational experience in the game business, from which it argues that familiarity with applicable laws can be inferred. Even if in their general experience Appellees did not gain such awareness, the Commonwealth asserts, they would have necessarily obtained inquiry notice by virtue of the manufacture of the machines without clearing/recording devices necessary to permit gambling, and by encountering the label and manual warnings, as well as other admonitions in written ordinances and other documents pertinent to the licensing and permitting process. According to the Commonwealth, the ad hoc method by which machines are modified to permit gambling further evidences Appellees' intent to evade enforcement. Additionally, the Commonwealth notes that the primary enforcement of the gambling laws is accomplished by state, rather than local, officials, and directs our attention to Appellees' admitted awareness of particular law enforcement efforts. Centrally, the Commonwealth asks the Court to distinguish between reasonable reliance based upon a bona fide belief that one's conduct truly complies with the written law, and mere reliance upon lax enforcement and nonfeasance by certain local officials, with a corresponding expectation of freedom from prosecution. Citation is made to the decision of the United States District Court for the Western District of Pennsylvania in United States v. Conley, 859 F.Supp. 909 (W.D.Pa.1994)(Lee, J.), in which arguments very similar to those presented *26 by Appellees were considered and rejected.
Appellees, on the other hand, maintain that the trial court properly heard and decided the due process issue as a question of law. Further, they provide many citations to the portions of the record upon which the trial court based its conclusions that municipal authorities acceded to, and indeed, benefited from, the gambling activities in their communities. Appellees contend that this evidence amply supports the trial court's conclusion that government and law enforcement officials affirmatively misled them into believing that they would not be subject to criminal prosecution for distributing gaming devices. Although Appellees indicate that they received express assurances that their conduct was in fact legal, they also take the position that affirmative misrepresentations by a government official are not an essential prerequisite to the reliance doctrine. Rather, Appellees assert that a citizen may be misled by governmental conduct, and, in the present case, they view the conduct of local officials in licensing devices with the knowledge that they would be used for gambling as sufficient to render their prosecution fundamentally unfair. Defending against the Commonwealth's evidence concerning Appellees' awareness of illegality (or at least potential illegality), Appellees argue that their "belief that they would not be prosecuted, in the context of this case, is no different than a belief that their conduct was legal, especially in light of the identities of the persons creating that belief."
Section 5513 of the Crimes Code, captioned "Gambling devices, gambling, etc.," provides that a person is guilty of a misdemeanor of the first degree if he
intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards[.]
18 Pa.C.S. § 5513. As noted, it is well established that machines containing clearing and recording features of the type Appellees are alleged to have distributed are per se gambling devices subject to the statutory prohibition. See Commonwealth v. Irwin, 535 Pa. 524, 528, 636 A.2d 1106, 1107-08 (1993).
In view of this enactment by the Pennsylvania General Assembly, we summarily reject Appellees' assertion, repeated throughout their motion to dismiss, that it is the law of Pennsylvania that gambling is legal on an actual or de facto basis. The law is plainly otherwise, as the General Assembly has spoken explicitly, and there is no present challenge to the constitutional validity of its dictate. Appellees cite no authority for the proposition that this or any other court can or should nullify a legislative enactment on the basis that its objectives have been frustrated, or even thwarted pervasively, even by those who are charged with enforcement responsibility. See generally Conley, 859 F.Supp. at 934 (stating that, "[a]ssuming that Pennsylvania law enforcement authorities tolerate the use of video poker machines for gambling purposes, the Court holds that such toleration does not in fact legalize otherwise illegal conduct"); State v. Guzman, 89 Hawai'i 27, 968 P.2d 194, 210 n. 20 (1998) (stating that "[t]he interests embodied in the criminal law are public interests of the greatest weight[;] [n]o official or agency of government has the authority to waive the public interest, and nonesave the legislaturecan define the limits of the criminal law") (quoting Note, Applying Estoppel Principles in Criminal Cases, 78 YALE L.J. 1046, 1051-52 (1969)).[4]
*27 Given the centrality of Appellees' position concerning the general state of Pennsylvania law to their written motion to dismiss, arguably, the trial court could have denied the requested relief based on the failure of such position alone. As the motion contains serious factual averments concerning the conduct of local officials relative to Appellees' own conduct, however, the trial court was justified in making additional inquiry. Thus, while we proceed to evaluate Appellees' legal contentions that prevailed in the trial court and in the Superior Court, we emphasize that these arguments are materially distinguishable from the erroneous conclusion that the statutory laws underlying the indictments should be deemed by the judiciary to have been effectively extinguished.
As noted, the trial court's disposition rests upon the due process clauses of the United States and Pennsylvania constitutions, which, generally, embody the principle of fundamental fairness, entitling every individual to be free from arbitrary or oppressive government conduct. See generally Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974).[5] The due process inquiry, in its most general form, entails an assessment as to whether the challenged proceeding or conduct "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' " Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d 281 (1977) (citation omitted), and that "define[s] the community's sense of fair play and decency." Dowling v. United States, 493 U.S. 342, 353, 110 S.Ct. 668, 676, 107 L.Ed.2d 708 (1990)(quoting Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952)). Although due process is viewed as a fluid concept, see generally County of Sacramento v. Lewis, 523 U.S. 833, 851, 118 S.Ct. 1708, 1719, 140 L.Ed.2d 1043 (1998) (citation omitted), several categories of claims implicating its protections have emerged in the decisional law. For example, one line of cases pertains to due process claims involving outrageous government misconduct. See, e.g., Commonwealth v. Benchino, 399 Pa.Super. 521, 526, 582 A.2d 1067, 1069 (1990)(discussing due process implications of government involvement in a crime), cited with approval in Commonwealth v. Mance, 539 Pa. 282, 290, 652 A.2d 299, 303 (1995).
Similarly, the reliance doctrine emerged from the trilogy of United States Supreme Court decisions cited by the trial court: Raley, 360 U.S. at 423, 79 S.Ct. at 1257, Cox, 379 U.S. at 559, 85 S.Ct. at 476, and PICCO, 411 U.S. at 655, 93 S.Ct. at 1804. In Raley, four individuals were convicted of criminal contempt for refusing to answer questions from Ohio's Un-American Activities Commission after the committee chairman erroneously informed them that they were protected under the state constitution's privilege against self-incrimination (the chairman failed to mention that an Ohio immunity statute applied to their testimony and deprived them of the privilege). The Supreme Court set aside three of the convictions as fundamentally unfair *28 and violative of the Due Process Clause of the Fourteenth Amendment. In reaching this conclusion, the Court emphasized both the source and the content of the advice that the defendants had received. See id. at 437, 79 S.Ct. at 1266 (stating that "[t]he Chairman of the Commission, who clearly appeared to be the agent of the State in a position to give such assurances, apprised [the defendants] that the privilege in fact existed"); id. at 438, 79 S.Ct. at 1266 (describing the chairman's comments as active misleading).[6] The Supreme Court also appeared to take into consideration the element of immediacy connected with the testimonial setting. See id. at 438-39, 79 S.Ct. at 1267 (characterizing the chairman as "the voice of the State most presently speaking to the [defendants]"). The Court explained that sustaining a conviction under the circumstances "would be to sanction the most indefensible sort of entrapment by the Stateconvicting a citizen for exercising a privilege which the State clearly had told him was available to him." Id. at 426, 79 S.Ct. at 1260.[7]
In Cox, the Supreme Court applied Raley to reverse a conviction for violating a statute prohibiting demonstrations near a courthouse, because the picketers had been advised by the local police chief that they could lawfully protest across the street. See Cox, 379 U.S. at 571, 85 S.Ct. at 484 (stating that the "highest police officials of the city, in the presence of the Sheriff and Mayor, in effect told the demonstrators that they could meet where they did"). The Court noted the "lack of specificity" in the use of the word "near" in the statute, which the Court found "foresees a degree of on the spot administrative interpretation by officials charged with responsibility for administering and enforcing it" and renders it "apparent that demonstrators ... would justifiably tend to rely on this administrative interpretation of how `near' the courthouse a particular demonstration might take place." Id. at 568-69, 85 S.Ct. at 483.
Finally, in PICCO, the Court addressed a conviction for violating a statute that prohibited the discharging of refuse into navigable waters. At the time of the offense, the responsible administrative agency, the Army Corps of Engineers, had interpreted the statute as applying solely to water deposits that affected navigation, and such interpretation was reflected in the agency's regulations. See PICCO, 411 U.S. at 658 59, 93 S.Ct. at 1808-09. At trial, the court refused to allow PICCO to present evidence and obtain a jury instruction that it had acted upon a good faith belief that the administrative construction given the statute rendered its conduct of discharging industrial refuse permissible. The Supreme Court reasoned, however, that PICCO had a right to consult the Corps of Engineers' regulations for guidance respecting the requirements of the statute, and that "to the extent that the regulations deprived PICCO of fair warning..., traditional notions of fairness prevent the Government from proceeding with the prosecution." Id. at 674, 93 S.Ct. at 1816-17. Thus, the Court remanded the case, holding that PICCO was entitled to present evidence to support its claim that it was affirmatively misled. See id. at 675, 93 S.Ct. at 1817.
Developments in due process jurisprudence, perhaps by necessity, have frequently occurred incrementally in the context of specific cases, with the Supreme Court reserving broader analysis for future cases. Raley, Cox and PICCO are no exceptions, and have raised many questions, *29 as reflected in the following critical commentary:
Although defendants increasingly invoke entrapment by estoppel, courts have not adequately considered basic questions such as: From whence does entrapment by estoppel derive? What are the prerequisites to entrapment by estoppel? Does it apply equally to crimes requiring specific intent, general intent, and no intent at all? Does entrapment by estoppel raise a question for a judge or a jury?
Sean Connelly, Bad Advice: The Entrapment by Estoppel Doctrine in Criminal Law, 48 U. MIAMI L.REV. 627 (Jan.1994)[hereinafter "Connelly, Bad Advice"].[8] Such questions are implicated by the Commonwealth's arguments as framed, the first of which suggests that the jury should have a role in determining the reliance doctrine's applicability. Subsumed within this issue are additional questions concerning the doctrine's relevance in relationship to the determination of the substantive elements of criminal offenses, whether its invocation should be permitted as a common law affirmative defense, and, if not, whether there is a due process justification for its consideration by a jury where the factual basis is not sufficient to warrant preclusion of the prosecution on a pre-trial basis.
The reliance doctrine has been described as a narrow exception to the maxim that ignorance of law is no excuse. See, e.g., United States v. Spires, 79 F.3d 464, 466 (5th Cir.1996); United States v. Bruscantini, 761 F.2d 640, 642 (11th Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985). Some state legislatures, following the example in Section 2.04(3)(b) of the Model Penal Code, have enacted statutes providing for a limited defense based upon a mistake of law in a manner that parallels the reliance doctrine, affording an elemental structure and the status of an affirmative defense.[9] In such jurisdictions, it is clear that, even if the circumstances involving an official misrepresentation are not sufficient to require dismissal of the prosecution on due process grounds, the defendant would generally be permitted to present them to the jury in the context of the affirmative defense. However, the availability of a reliance defense on such terms (independent of constitutional due process principles and constraints) is not so clear in Pennsylvania although the General Assembly adopted many provisions of the Model Penal Code in enacting the comprehensive Crimes *30 Code,[10] it declined to adopt Section 2.04(3)(b) or to effectuate any substantial equivalent. Indeed, official commentary reflects the legislative intent that "[g]enerally speaking, ignorance or mistake of law is no defense." 18 Pa.C.S. § 304 (official comment). Although this Court would appear to have substantially endorsed a reliance defense in overturning a contempt conviction in Commonwealth v. Fisher, 398 Pa. 237, 248, 157 A.2d 207, 213 (1960), criminal contempt is a unique area of the law, and it is thus questionable how broadly the Court's analysis in Fisher should be read. Moreover, Fisher preceded the comprehensive enactment of the Crimes Code, and thus, even to the extent that the holding was intended to be read broadly, the continued viability of such construction must be determined in light of the subsequent legislative prescriptions.
Likewise, it is questionable whether, and to what extent, the reliance doctrine is relevant to substantive elements of criminal offenses, in particular, the element of intent. Several commentators advocate the substantial dilution of the maxim that ignorance of law is no excuse, and there would appear to be some movement in this direction in the federal courts.[11] Certainly, there are policy arguments to be made toward this end.[12] To the extent that such a course is not mandated by constitutional principles, however, in Pennsylvania, the enactments and intentions of the General Assembly must play a central role in evaluating its wisdom. See Davies, The Jurisprudence of Willfulness, 48 DUKE L.J. at 412-13 (arguing that a construction of specific intent requirements that requires proof of an accused's knowledge of the law is inimical to congressional judgments and, therefore, violates the rule of law and principles of separation of powers). In this regard, the legislative admonition that, "[g]enerally speaking, ignorance or mistake of law is no defense," 18 Pa.C.S. § 304 (official comment), is, again, highly *31 relevant.[13]See generally Conley, 859 F.Supp. at 930 (finding that "specific intent in the sense of an intention to violate a known legal duty is not in any way an element of the illegal gambling business offense at issue").[14]
Although the invocation of a reliance defense in the trial setting thus raises substantial and complex questions, our present review concerns a pre-trial motion to dismiss and thus implicates a narrower range of issues. In this respect, we have no doubt that the due process provisions of the United States and Pennsylvania constitutions, at least in a narrow set of unique and compelling circumstances, would serve both as an exception to the maxim that mistake of law is no defense, see generally Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957); Rankin v. Mortimere, 7 Watts 372, 374 (1838), and ultimately to foreclose a criminal prosecution. See PICCO, 411 U.S. at 674, 93 S.Ct. at 1817(stating that the absence of fair warning "prevent[s] the government from proceeding with the prosecution"). Therefore, where an adequate claim of such circumstances is presented in the form of a pre-trial motion to dismiss, it is incumbent upon the trial courts to determine the doctrine's applicability and effect. They are fully authorized to take evidence, to the extent necessary, and to make dispositive findings and conclusions concerning whether trial should proceed. See generally Conley, 859 F.Supp. at 931 (concluding that "the Due Process reliance on misleading government conduct [doctrine], being founded upon the Constitutional notion of fundamental fairness ... is an appropriate issue for the Court to determine"); cf. United States v. Gonzales, 927 F.2d 139, 143-44 (3d Cir.1991)(describing the procedure for claims made under the due process doctrine of outrageous government conduct, and characterizing the reliance doctrine as "closely analogous"). Thus, our disposition of this case need not rest, as the Commonwealth's arguments intend, upon the relevance (or irrelevance) of a reliance defense before a jury. Further, additional consideration of the availability of reliance as an affirmative defense, and its relationship to substantive elements of gambling crimes, is unnecessary at this juncture. See generally Conley, 859 F.Supp. at 928 (noting that "the issue of fundamental unfairness due to the defendant's reliance on misleading government conduct is independent of the element of intent"). Accordingly, we confine our remaining inquiry to the matter at *32 hand, namely, whether the trial court erred in its determination that principles of fundamental fairness proscribed Appellees' prosecution.[15]
With our present inquiry thus limited, we return to the source of the due process reliance doctrine, Raley, Cox and PICCO, to examine the doctrine's contours. Raley represented a very narrow context for its application: the testimonial setting, in which there was a high degree of immediacy, and an imposing authority delivering the advice while already asserting some degree of control over the defendants. Cox, however, made it clear that the doctrine could be applied more broadly, although the element of immediacy was still evident. PICCO confirms that the doctrine applies in a broader range of circumstances, where the erroneous advice from a governmental official is neither immediate nor direct. See also United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581, 17 L.Ed.2d 526 (1967). See generally Parry, Mistake, Culpability, 25 AM. J.CRIM. L. at 41 (characterizing the decisions of the United States Supreme Court as "setting the stage for the emergence of entrapment by estoppel as a general equitable and constitutional constraint upon government action").[16]
These decisions, nevertheless, must be read in light of the Court's admonition that the doctrine is inherently a narrow one and, as other courts have indicated, "rarely available." United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995).[17] Thus, courts, in attempting to apply the doctrine within appropriate constraints, have framed a series of relevant considerations, which vary to some degree among jurisdictions. See generally West Indies Transport, 127 F.3d at 312 (collecting cases).
First, in order to support invocation of the doctrine, most jurisdictions require that there be an affirmative representation that certain conduct is legal. See Cox, 379 U.S. at 571, 85 S.Ct. at 484; West Indies Transport, 127 F.3d at 312; United States v. Aquino-Chacon, 109 F.3d 936, 938 (4th Cir.), cert. denied, 522 U.S. 931, 118 S.Ct. 335, 139 L.Ed.2d 260 (1997); Guzman, 968 *33 P.2d at 207; Miller, 492 S.E.2d at 488.[18] It is frequently observed that mere laxity in law enforcement will not satisfy this condition, see, e.g., Hurst, 951 F.2d at 1499, nor will vague or contradictory messages. See Ramirez-Valencia, 202 F.3d at 1109; Smith, 940 F.2d at 715. Second, the representation should be made by an official or a body charged by law with responsibility for defining permissible conduct respecting the offense at issue. See generally Spires, 79 F.3d at 466 (stating that the official must be empowered to render the claimed erroneous advice or must be an agent who has been authorized to render such advice); United States v. Austin, 915 F.2d 363, 366 (8th Cir.1990) (explaining that "it is the authority, whether apparent or actual, of the government official that is crucial to the entrapment by estoppel doctrine"), cert. denied, 499 U.S. 977, 111 S.Ct. 1626 (1991). Third, actual reliance upon the official's statements should be present, see West Indies Transport, 127 F.3d at 313, which condition has also been stated as a requirement that the defendant believe the official. See Corso, 20 F.3d at 528; Hedges, 912 F.2d at 1405. Finally, the view is commonly held that reliance must be in good faith and reasonable given the identity of the government official, the point of law represented, and the substance of the statement. See West Indies Transport, 127 F.3d at 313. "Reliance is reasonable and in good faith only where a person truly desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries." Id. at 313 n. 13. Courts generally impose the burden upon the defendant to satisfy all elements. See, e.g., id. at 313.
Upon consideration of these factors, particularly as elaborated in West Indies Transport, we endorse them as a useful guide on consideration of a colorable claim based upon the due process reliance doctrine. In harmony with the United States Supreme Court's approach to due process challenges, and considering the impossibility of identifying all forms of conduct and practices that may implicate protection, we recognize that such requirements should not be applied rigidly as against a defendant whose claims clearly implicate fundamental fairness. See generally Parry, Mistake, Culpability, 25 AM. J.CRIM. L. at 44 (suggesting that the "Supreme Court did not view entrapment by estoppel as a separate doctrine of due process, but just as one way of describing basic due process principles"). These considerations do, nevertheless, properly channel the fairness inquiry in the totality of the circumstances and appropriately reflect the substantial constraints upon the reliance doctrine. See generally Smith, 940 F.2d at 714. We also note that the relevant considerations have been developed in cases considering the applicability of the doctrine both in the pre-trial and in the trial context where permitted as a defense. In the pre-trial setting, however, the defendant's ultimate burden is to establish the rare circumstance in which a prosecution may be deemed fundamentally unfair pursuant to exacting due process standards. See Dowling, 493 U.S. at 353, 110 S.Ct. at 674.
*34 More specific to the circumstances presently before us, we also have the benefit of the detailed decision by the United States District Court for the Western District of Pennsylvania in Conley, 859 F.Supp. at 909, addressing a substantially identical due process claim lodged in federal court. The Conley defendants were the owner and operator of Duffy's Vending and his associates and employees; Duffy's Vending facilitated gambling activities employing video poker machines, and the defendants were charged with federal crimes predicated upon such activities. See generally United States v. Conley, 833 F.Supp. 1121, 1124 (W.D.Pa.1993). Several of the defendants pursued a motion to dismiss based, inter alia, upon the reliance doctrine. The parties stipulated that video poker machines were present throughout Western Pennsylvania, found most frequently in bars, lounges, taverns, restaurants, coffee shops, social halls or fraternal and veterans' organizations, and laundromats; municipalities imposed annual fees or charges on amusement devices; and some of the defendants had paid such fees and charges and received licenses. At hearings, the defendants attempted to introduce testimony concerning the licensing of gambling devices; however, the district court sustained the government's objection, indicating that
[b]ecause not all video poker machines are per se illegal in Pennsylvania, ... the mere issuance of a license for a video poker machine, without a showing that the issuing authority had actual knowledge of the machines' intended illegal use, was insufficient support for a doctrine of de facto legality.
Conley, 859 F.Supp. at 916; see also id. at 931 (noting that "the Court cut short Defendants' presentation of their evidence on the basis that it was insufficient as a matter of law and hence irrelevant"). The district court nevertheless permitted the defendants to make various proffers, in which they indicated that they would have presented, inter alia, facts very similar to those found by the trial court in this case, including, that: it was common knowledge that video poker machines were used for illegal gambling; municipalities and Pennsylvania law enforcement officials tolerated the use of video poker machines for gambling purposes; municipalities adjusted permitting fees annually, due to the fact that the governing bodies knew the amount of revenue generated by video poker machines; and enforcement efforts at both the local and state levels were extremely lax or nonexistent. See Conley, 859 F.Supp. at 918-20. In response, the government challenged the adequacy of the record upon which the defendants relied, contending that, under the reliance doctrine, any assurances of legality must originate from a federal official, and maintaining that the issuance of permits and licenses in a permissive atmosphere is not the type of government conduct sufficient to support invocation of the doctrine. See Conley, 859 F.Supp. at 921.
In assessing the defendants' due process claim, the district court indicated that it would review the factual allegations in the light most favorable to them, since it had cut short their factual presentation. See Conley, 859 F.Supp. at 931. After detailing the background and holdings of Raley, Cox and PICCO, and rejecting the government's argument that the federal government could not be prevented from enforcing its criminal laws by the conduct of state or local officials,[19] the district court indicated that the material allegations of the motion nevertheless did not satisfy the reliance doctrine for several reasons. With regard to the presence or absence of a misrepresentation, the court indicated that none of the defendants' proffered evidence sufficed to demonstrate that the *35 conduct of Pennsylvania officials raised any ambiguity as to the legality of gambling conducted through the use of illegal poker machines. The court explained that, in such circumstances, it was bound to defer to the government's decision to prosecute a defendant, absent certain limited classes of abuse of prosecutorial discretion. See Conley, 859 F.Supp. at 933.[20] Further, the court stated:
Assuming that Pennsylvania law enforcement authorities tolerate the use of video poker machines for gambling purposes, the Court holds that such toleration does not in fact legalize otherwise illegal conduct. Such toleration is not a valid ground upon which to base a claim of having been misled by the government and reliance on lax enforcement is not reasonable in view of the clear state of Pennsylvania law throughout the relevant period prohibiting gambling with video poker machines.
Conley, 859 F.Supp. at 934.
The district court then discounted various specific proffers made by the defendants in terms of their effect in establishing an affirmative misrepresentation on the part of the Commonwealth. See Conley, 859 F.Supp. at 934-35. Indeed, the court found that various of the defendants' proffers affirmatively established that the defendants were in fact on notice that Pennsylvania authorities considered their activities unlawful. Conley, 859 F.Supp. at 934. With regard to the conduct of local authorities, the court determined that the defendants could not rely upon the municipal ordinances pursuant to which licenses were issued, since the ordinances generally were written to prohibit licensure for gambling purposes. See Conley, 859 F.Supp. at 935. While acknowledging that the "[d]efendants' proffer alleges a disconcerting state of affairs regarding local governments' relationships with illegal video poker gambling in the Western District of Pennsylvania," the court indicated that it was "not persuaded that the [d]efendants' being prosecuted is fundamentally unfair within the meaning of the Due Process clause." Id. Describing two ways in which the local government conduct alleged could be interpreted, the court stated:
First, the local government conduct can be given a sinister interpretation. Under this interpretation, local government officials condoned, allowed, and literally placed their stamps of approval on conduct they knew to be illegal in exchange for licensing fees. But ... "[a]llowing a state official's alleged complicity in illegal activities to void the convictions here would violate the intent of Congress in enacting section 1955 and distort the clear due process doctrine set forth in Cox and Raley. Moreover, corruption of government officialsfederal, state or localcertainly does not raise Due Process concerns about prosecuting any of the parties involved.
Second, the local government officials, notwithstanding their alleged knowledge of the intended use of the machines, may have issued licenses relying upon the clear Pennsylvania law indicating that not all machines are per se illegal and relying on other agencies to ensure compliance with the Pennsylvania gaming statute. This scenario reflects a mere laxity in enforcement, which, in view of prosecutorial discretion, cannot invalidate an otherwise valid prohibition.
* * *
The conduct of local government officials may have created a certain ambiguity in the form of mixed signals to the [d]efendants. [The] [d]efendants, however, are charged with conducting an illegal gambling *36 business in violation of state law, not in violation of the local ordinances. Reliance upon the ambiguous conduct of local officials in enforcing an otherwise clear statute of state-wide application is not reasonable. The ordinances adopted by the local governments did not purport to alter state law, and the [d]efendants have proffered no evidence indicating that the local governments ever claimed the authority to interpret the state statute.
No government official at any level ever expressly reassured the [d]efendants that their conduct in the ambiguous local milieu was in fact legal. The [d]efendants' proffer may support an inference that, in the years before 1988, they believed they would not be prosecuted for their gambling activities. Nonetheless, the proffer and record is devoid of evidence... that the [d]efendants actually believed their gambling activities were in fact legal activities under Pennsylvania law, and their lobbying activities strongly suggest to the contrary.
Conley, 859 F.Supp. at 935-36. Thus, the district court held that, under the totality of the circumstances, the defendants had not been misled by government officials into believing that their illegal gambling activities were, in fact, legal, id. at 936, and, accordingly, the defendants had failed to persuade the court that their prosecution was fundamentally unfair. See id.
The Conley decision is noteworthy for the procedure employed by the trial court, the comprehensiveness of its analysis, and its sound merits disposition. Faced with a pre-trial motion raising at least an arguable claim that the defendants' prosecution should be barred on grounds of fundamental fairness, the Conley court proceeded to conduct a hearing to allow the defendants to establish a factual basis for this claim. The court, however, asserted a substantial degree of control over the presentation of the evidence. When it became apparent that the defendants were proceeding on a theory that was not sufficient to warrant dismissal, the court truncated the hearing, but nevertheless permitted the defendants to make their proffers, which could be (and were) taken into account in the court's ruling on the merits of the defense. The court's handling was clearly appropriate to the circumstances and judicious in administration. On the merits, the court recognized and gave full effect to the patent distinction between the defendants' claim of de facto legalization and good faith, reasonable reliance upon an official representation that conduct is in fact legal. Thus, it properly denied the claim, concluding the pre-trial proceedings and permitting the prosecution to move forward.
In the present case, in their written motion, Appellees employed an approach very similar to that of the defendants in Conley. They described the state of affairs in Western Pennsylvania, characterized by the Conley court as "disconcerting," alleging conduct on the part of local officials that certainly presented a colorable basis to support a conclusion that Appellees might have been unfairly misled. Their motion, however, was patently ambiguous as to whether the claim they were asserting was that they were truly ignorant of state law and acted in the good faith, reasonable belief that the laws of Pennsylvania did not criminalize the conduct. The motion left open the substantial possibility that Appellees were aware or had reason to believe that their conduct was in technical violation of the law, but chose to proceed based upon lax or collusive conduct of local officials and a corresponding expectation that they would not be prosecuted.[21] In the face of such an *37 ambiguity, a degree of judicial skepticism was warranted from the outset, particularly in view of Appellees' longstanding connection to the game/vending industry. Although Appellees proceeded to develop an extensive record, most of their evidence remains susceptible to multiple interpretations such as those described in Conley, 859 F.Supp. at 935-36, and therefore does not satisfy Appellees' burden in relation to the critical distinction that must be made in the application of the reliance doctrine as it relates to a pre-trial motion to dismiss. Indeed, Appellees' own expert witness effectively made this point in the following cross-examination by the district attorney concerning the effect of a local ordinance:
Q: [W]ould you agree with me that any of these ordinances do not legalize gambling?
A: They don't legalize it. But what they do is, I believe they place it in a position of video poker machine gambling or video gambling on a de facto basis. They are saying we are turning a blind eye to this type of activity and we are not enforcing the laws generally speaking in regard thereto.
Since the trial court adopted Appellees' factual findings and legal conclusions, its disposition similarly mixes their conception of de facto legalization into the due process inquiry. This distortion of focus is evident not only in the fact that the trial court hinged its ultimate conclusion upon its finding that Appellees "believe[d] that they were engaging in conduct that would not result in criminal prosecution," but also from the fact that the trial court's analysis accords no significance to the Commonwealth's evidence that Appellees were at least on notice sufficient to require additional inquiry concerning whether their conduct was proscribedsuch evidence included, for example, Appellees' experience in the game business; the character and necessity for modifications to machines; the labels and warnings provided by manufacturers;[22] the terms of written ordinances;[23] the testimony of some local officials concerning their refusal to license devices that contained clearing and recording devices; and Appellees' knowledge of *38 at least some enforcement efforts, albeit sporadic, originating from the state level.[24]
Focusing our inquiry upon whether Appellees established good faith, reasonable reliance upon an interpretation of the law (as opposed to acting upon an expectation of non-enforcement), we find that Appellees failed to establish that the due process reliance doctrine should operate to bar their prosecution. Simply put, the indicators are strong and prevalent that one substantially involved in the gaming business would have good reason to inquire as to the state of the gambling laws, and that Appellees' circumstances were not unique. Thus, the claimed reliance upon the circumstances found to be present cannot be said to be objectively reasonable.[25] Moreover, each of the decisions in Raley, Cox and PICCO involved either some element of immediacy or of ambiguity in the written law, and thus, susceptibility to administrative interpretation. Here, there is no similar immediacy, as the record reflects a long-term practice of dealing in gambling implements, and no room for administrative interpretation of the gambling laws concerning the distribution of per se gambling devices.[26]
The court in Conley perhaps employed a degree of understatement in describing the state of affairs described by the defendants in that case, and Appellees here, as disconcerting. Certainly there is unequal treatment where Appellees are subject to criminal prosecution while many others escape it, and the lodging of criminal charges against Appellees in these circumstances touches upon community mores. The trial court's decision is understandable from this broader frame. But the exercise of prosecutorial discretion by necessity is substantially insulated from judicial review, and therefore, in the limited context of assessing a due process claim seeking to bar a criminal prosecution, the assessment proceeds from a narrower perspective. As noted by the United States Supreme Court, *39 Judges are not free, in defining `due process,' to impose on law enforcement officials [their] `personal and private notions' of fairness and to `disregard the limits that bind judges in their judicial function.' [They] are to determine only whether the action complained of ... violates those `fundamental conceptions of justice which lie at the base of our civil and political institutions,' and which define `the community's sense of fair play and decency[.]'
Dowling, 493 U.S. at 353, 110 S.Ct. at 674 (citations omitted).
In summary, we hold that Appellees failed to establish a claim pursuant to the due process reliance doctrine that would bar their prosecution for gambling and related offenses. Accordingly, the order of the Superior Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice ZAPPALA concurs in the result.
NOTES
[1] A "knock-off" or clearing device may involve a remote control, a coded series of playing buttons, inputting the player's initials next to the high score, tilting the machine forward, or merely unplugging it.
[2] In this regard, the testimony indicated that virtually every video poker and slot machine was used for gambling.
[3] Some courts have disavowed the use of the phrase entrapment by estoppel to describe the doctrine, explaining that it stems from the Fourteenth Amendment's Due Process Clause, not from common law principles of contract, equity or agency, and that it is not an entrapment. See United States v. Brady, 710 F.Supp. 290, 295 (D.Colo.1989); Miller v. Commonwealth, 25 Va.App. 727, 492 S.E.2d 482, 487 n. 4 (1997). For the sake of clarity and ease of reference, the doctrine is hereinafter referred to as the reliance doctrine.
[4] Appellees' use of the phrase "de facto legal" parallels comments made by former Attorney General Ernest Preate to a legislative committee in 1990, to the effect that, "In most areas of Pennsylvania, video poker machines were so widespread, enforcement efforts were so intermittent and the resulting sanctions so minor that the situation was tantamount to the de facto legalization of video poker gambling." Conley, 859 F.Supp. at 919 n. 2 (quoting Prepared Statement of Attorney General Ernest D. Preate, Jr., before the House of Representatives Finance Committee, May 24, 1990). These comments must be read in the context of the former Attorney General's advocacy to the Legislature for his position that his office lacked the resources to properly serve its enforcement function, not as a reflection of the substantive law of Pennsylvania.
[5] Article I, Section 9 of the Pennsylvania Constitution provides, inter alia, that a person cannot be deprived of liberty, "unless by the judgment of his peers or the law of the land." This provision has been construed as the functional equivalent of the due process provision in the United States Constitution. See Commonwealth v. Snyder, 552 Pa. 44, 52, 713 A.2d 596, 600 (1998). While Appellees have suggested that this Court has the ability to construe Article I, Section 9 more broadly than federal due process, they have offered no particular reasons to support such a departure; therefore, we continue to treat the pertinent constitutional guarantees as coterminous for purposes of this opinion.
[6] The fourth conviction was affirmed by an equally divided Court.
[7] This passage from Raley appears to be the basis for the source of the "entrapment by estoppel" denomination for the reliance doctrine. In this context, however, the Court's allusion to the doctrine of entrapment has been aptly characterized as a metaphor, intended to sharpen the focus upon fundamental fairness. See generally Parry, Culpability, Mistake and Official Interpretations of Law, 25 A.J.CRIM. L. 1, 37 (Fall 1997)[hereinafter "Parry, Culpability, Mistake"].
[8] See generally Conley, 859 F.Supp. at 926 (noting that "[t]he interpretations given the [reliance] doctrine have been less than uniform"); Parry, Culpability, Mistake, 25 A.J.CRIM. L. at 3 (observing that "[n]o court or commentator has provided a convincing and coherent account of the basis for the doctrine or made a sustained effort to define its limits beyond stating that it is required by due process").
[9] Section 2.04 of the Model Penal Code provides, in relevant part:
(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
(a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for interpretation, administration or enforcement of the law defining the offense.
(4) The defendant must prove a doctrine arising under Subdivision (3) of this Section by a preponderance of evidence.
MODEL PENAL CODE § 2.04(3)(a-b), (4) (rev. ed.1985). See, e.g., Ark.Code Ann. § 5-2-206(c) (1999); Haw.Rev.Stat. § 702-220 (1999); Ill.Rev.Stat. ch. 720, para. 5/4-8(b) (2000); Kansas Stat. Ann. § 21-3203(2) (1999); Mo.Rev.Stat. § 562.031(2) (2000); Mont.Code Ann. § 45-2-103(6) (1999); Utah Code Ann. § 76-2-304(2) (1999). See generally Guzman, 968 P.2d at 207 n. 17.
[10] For example, Section 304 of the Crimes Code, 18 Pa.C.S. § 304 (Ignorance or mistake), pertaining to mistakes of fact, is derived from Section 2.04 of the Model Penal Code. Section 304 provides that:
Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if:
(1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required [to] establish a material element of the offense; or
(2) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
18 Pa.C.S. § 304.
[11] See generally Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theory of Excusable Neglect, 48 DUKE L.J. 341, 367-87 (Dec.1998)(citing the United States Supreme Court decisions in Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), and Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), as reflecting an evolving "jurisprudence of willfulness," fostering the construction of specific intent provisions in federal statutes as requiring proof of an accused's knowledge of the law)[hereinafter "Davies, The Jurisprudence of Willfulness"]; Connelly, Bad Advice, 48 U. MIAMI L.REV. at 648 (arguing that "[w]here a criminal statute already requires specific proof of culpable intent, the constitutional doctrine is superfluous because a defendant who acted in good faith reliance on government advice that his conduct was legal cannot have intended to commit the offense"); Richard G. Singer, The Proposed Duty to Inquire as Affected by Recent Criminal Law Decisions in the United States Supreme Court, 3 BUFF.CRIM. L.REV. 701, 754 (2000)(predicting, in light of United States Supreme Court decisions, that "[t]he prospect of a requirement of a full mens rea applied to mistakes of both fact and law is on the horizon").
[12] See, e.g., Parry, Culpability, Mistake, 25 AM. J.CRIM. L. at 49 (arguing that "a moral system of criminal responsibility can no longer allow the punishment of individuals whose assessments and choices were not blameworthy, and who lacked a fair opportunity or capacity to adjust their behavior to the law due to an official misinterpretation of the law"). Such commentators frequently argue that, since the maxim arose in context of malum in se offenses, its application should be reevaluated in the current environment in which the citizenry must conform their conduct to a plethora of statutes and regulations that are malum prohibitum in nature. See id. at 7-17.
[13] Similar commentary has been made concerning the doctrine of entrapment, with questions arising concerning its common-law basis, constitutional implications, status as an affirmative defense, and relevance in relation to substantive elements of a crime. See, e.g., Note, Reconfiguring the Entrapment and Outrageous Government Conduct Doctrines, 84 GEO. L.J. 1945, 1952-62 (May 1996). In comparison to a reliance defense, however, the doctrine of entrapment, while also focusing upon the conduct of law enforcement officials, see Commonwealth v. Weiskerger, 520 Pa. 305, 312, 554 A.2d 10, 14 (1989), is a legislatively recognized affirmative doctrine under the Pennsylvania Crimes Code. See 18 Pa.C.S. § 313.
[14] In contrast to Conley's holding essentially foreclosing presentation of a reliance defense at trial, a number of courts have analyzed the doctrine as in the nature of an affirmative defense, thus permitting it to be presented to the factfinder even in instances in which the trial court has made a pre-trial determination that the prosecution is not barred on due process grounds. See, e.g., United States v. West Indies Transport, Inc., 127 F.3d 299, 311-12 (3rd Cir.1997), cert. denied, 522 U.S. 1052, 118 S.Ct. 700, 139 L.Ed.2d 644 (1998); United States v. Smith, 940 F.2d 710, 714 (1st Cir.1991); Guzman, 968 P.2d at 210; Miller, 492 S.E.2d at 488. Accord Spires, 79 F.3d at 466; United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994); United States v. Abcasis, 45 F.3d 39, 42-43 (2nd Cir.1995); United States v. Hurst, 951 F.2d 1490, 1499 (6th Cir.1991), cert. denied, 504 U.S. 915, 112 S.Ct. 1952, 118 L.Ed.2d 556 (1992); United States v. Hedges, 912 F.2d 1397, 1405-06 (11th Cir. 1990). Indeed, in light of the Third Circuit Court of Appeals' treatment in West Indies Transport, it is arguable that this portion of the Conley court's analysis has been implicitly overruled for purposes of Third Circuit jurisprudence.
[15] Significantly, although our research has disclosed substantial questions as to the availability of a reliance defense outside the context of a pretrial motion to dismiss, see generally Conley, 859 F.Supp. at 936 (indicating that the evidence underlying the failed claim under the reliance doctrine would be excluded from trial), the Commonwealth in this case fully endorses its availability at trial. See Brief for Appellant at 18 (stating that "[i]f proven at trial and credited by the jury, the [reliance defense] prevents a conviction"). Thus, there is presently no advocate for the contrary position. Further, the parties have not developed specific positions concerning the defense as it relates to the substantive elements of gambling offenses or, more generally, the intent of the General Assembly, or its derivation as an affirmative defense. Rather, their arguments focus upon their respective interpretations of the facts, and the overall assessment of fairness. Matters of substantial significance and complexity are best decided in cases where the parties in the first instance have sharpened the focus, and where such matters are essential to the disposition at hand. Since neither of these conditions is present, sound jurisprudential principles weigh in favor of our decision to limit our remaining analysis and holding here to the pre-trial context.
[16] For commentary arguing that Cox, Laub and PICCO properly should have been decided on different grounds, see Parry, Culpability, Mistake, 25 AM. J.CRIM. L. at 41-46.
[17] See also Guzman, 968 P.2d at 209-10 (cautioning that a due process reliance doctrine is only applicable in a narrow range of circumstances and where essential elements are clearly established); United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1166 (10th Cir.) ("`[t]he courts invoke the doctrine of estoppel against the government with great reluctance'" (citation omitted)), cert. denied, 528 U.S. 1011, 120 S.Ct. 513, 145 L.Ed.2d 397 (1999). See generally United States v. Tallmadge, 829 F.2d 767, 776 (9th Cir.1987) (Kozinski, J., dissenting)(stating that the doctrine must be "`construed very narrowly because it permits the individual official to suspend or alter statutory penal law simply by misinterpreting it'" (citation omitted)).
[18] While this condition is often framed in terms of "active misleading" or "affirmative misrepresentation," because some official statements may not be truly mistaken, as with an administrative interpretation, the phrase affirmative representation allows for those circumstances. See Guzman, 968 P.2d at 207 n. 18. In many cases, courts have found the reliance doctrine unavailable based upon a failure to allege a sufficient affirmative misrepresentation or active misleading. See, e.g., United States v. Ramirez-Valencia, 202 F.3d 1106, 1108 (9th Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 218, 148 L.Ed.2d 154 (2000); West Indies Transport, 127 F.3d at 313; United States v. Aquino-Chacon, 109 F.3d 936, 939 (4th Cir.), cert. denied, 522 U.S. 931, 118 S.Ct. 335, 139 L.Ed.2d 260 (1997); United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir.)(doctrine rejected because government agent had spoken ambiguously, rather than inaccurately), cert. denied, 513 U.S. 1005, 115 S.Ct. 523, 130 L.Ed.2d 428 (1994); United States v. Corso, 20 F.3d 521, 528 (2nd Cir. 1994); Hurst, 951 F.2d at 1499; United States v. Brebner, 951 F.2d 1017, 1025-26 (9th Cir.1991).
[19] See Conley, 859 F.Supp. at 932 (stating that "[a] per se rule in a federal criminal prosecution predicating the availability of the Due Process doctrine on federal action saps the notion of fundamental fairness of its flexibility and leaves the door open for fundamentally unfair prosecutions to be upheld").
[20] The district court further explained:
The exercise of prosecutorial discretion in a world of limited resources may entail choosing upon which crimes to focus. A choice at a point in time or by a particular administration to focus on certain crimes is also a choice to make the enforcement of the crimes not chosen a lesser priority.
Conley, 859 F.Supp. at 933.
[21] As noted, we reject the argument that an expectation of non-enforcement, at least in the absence of extraordinary circumstances, will support application of the reliance doctrine to bar a prosecution. Although the United States Supreme Court has employed rhetoric that might support such application, see Laub, 385 U.S. at 487, 87 S.Ct. at 581 (suggesting that the reliance doctrine may apply to "assurance[s] that punishment will not attach"), we read this in the context of the other seminal reliance cases, and the Court's other decisional law. See, e.g., United States v. Socony-Vacuum, 310 U.S. 150, 226, 60 S.Ct. 811, 846, 84 L.Ed. 1129 (1940)(indicating that tacit approval by, or the implicit assurance of immunity from, government officials for actions known to be illegal is no defense). See generally Parry, Culpability, Mistake, 25 AM. J.CRIM. L. at 42-43 (noting that "[t]he Socony-Vacuum principle prevents the reliance doctrine from undermining the evenhanded enforcement of the criminal law and decreases the incentives for corruption that could arise if `assurance[s] that punishment will not attach' created a valid due process doctrine").
Moreover, to the extent that the focus of the inquiry could be shifted to enforcement rather than illegality, local officials clearly lack the authority to bind state officials in this regard. Therefore, the reliance defense should not be made available based upon their advice or conduct concerning enforcement efforts, particularly where the primary enforcement occurs at the state level.
[22] For example, the following warning from a manual was read into the record:
For Amusement Only. The operation of these games and the features therein may be subject to various state and local laws and regulations. It is not intended therein to solicit the sale of such games in any jurisdiction wherein the same may not be lawfully sold or operated.
[23] For example, the Oakmont ordinance provided that:
[n]othing in this ordinance shall be in any way construed to authorize, license or permit any gambling devices whatsoever for any machine or mechanism. Nothing in this ordinance shall in any way be construed to authorize, license or permit any gambling device whatsoever or any machine mechanism that has been judicially determined to be a gambling device or in any way contrary to law or that may be contrary to any future law of the Commonwealth of Pennsylvania.
[24] We acknowledge the need for deference from an appellate court to the trial court's factual findings and credibility determinations. The absence of consideration for the Commonwealth's evidence and proposed inferences, however, appears to have resulted from the trial court's wholesale adoption of Appellees' proposed findings and conclusions, rather than from any assessment of credibility.
[25] We note that official conduct and not the defendant's mental state is the primary focus of the inquiry, see Smith, 940 F.2d at 714; however, the defendant's state of mind remains relevant as a measure of actual reliance. See id. Moreover, the reasonableness of that reliance in the totality of the circumstances remains an essential consideration. See generally id.; Nichols, 21 F.3d at 1018 (stating that "the defendant's reliance must be reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation" (citations omitted)); People v. Woods, 241 Mich.App. 545, 560, 616 N.W.2d 211, 218 (2000) ("when the citizen knows or should know better, but attempts to seek immunity by claiming reliance on misinformation obtained from a government employee, prosecution is not unfair and estoppel by entrapment should have no application").
[26] See generally United States v. Weitzenhoff, 35 F.3d 1275, 1290 (9th Cir.1993)(emphasizing the focus of the reliance doctrine upon "a person sincerely desirous of obeying the law" and the presence or absence of "notice to make further inquiries"), cert. denied sub nom. Mariani v. United States, 513 U.S. 1128, 115 S.Ct. 939, 130 L.Ed.2d 884 (1995); United States v. Barker, 546 F.2d 940, 956 (D.C.Cir.1976) (Merhige, J., concurring)("[t]he reasonableness of reliance may dissipate if one depends on nonenforceable advisory opinions of minor officials"); Conley, 859 F.Supp. at 936 ("[r]eliance upon the ambiguous conduct of local officials in enforcing an otherwise clear statute of state-wide application is not reasonable"); id. at 935 ("corruption of government officialsfederal, state or localcertainly does not raise Due Process concerns about prosecuting any of the parties involved"); Parry, Culpability, Mistake, 25 AM. J.CRIM. L. at 41 ("[a]lthough these requirements [for the reliance doctrine] properly should be relaxed in situations in which individuals are more likely to rely upon the statements of a government official, the same conditions suggest that such representations should not bind the state beyond the immediate context in which they were provided"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583381/ | 728 N.W.2d 853 (2007)
IN RE B.G.F.
No. 06-0627.
Court of Appeals of Iowa.
January 18, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583388/ | 31 So.3d 786 (2010)
ATKINS
v.
STATE.
No. 2D10-238.
District Court of Appeal of Florida, Second District.
March 22, 2010.
Decision Without Published Opinion Mandamus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918634/ | 411 B.R. 521 (2009)
In the matter of William M. BLOCKER, Jr., Debtor.
Cale Blocker, Debtor.
Blocker Farming Enterprises, L.L.C., Debtor.
Lynn S. Wyatt and Wyatt Processing, L.L.P., Movants
v.
William M. Blocker, Jr., Cale Blocker, and Blocker Farming Enterprises, L.L.C., Respondents.
Nos. 09-60002, 09-60003, 09-60004.
United States Bankruptcy Court, S.D. Georgia, Statesboro Division.
June 25, 2009.
J. Michael Hall, Hall & Kirkland, PC, Statesboro, GA, for Debtors.
*522 MEMORANDUM AND ORDER ON DEBTORS* MOTION FOR STAY PENDING APPEAL
LAMAR W. DAVIS, JR., Bankruptcy Judge.
FINDINGS OF FACT
Debtors Cale Blocker ("Cale"), William M. Blocker, Jr. ("Bill"), and Blocker Farming Enterprises, LLC ("Blocker Farming") filed for Chapter 12 on January 5, 2009. Movants Lynn S. Wyatt ('Wyatt") and Wyatt Processing, LLP ("Wyatt Processing") sought relief from the automatic stay. The essence of that motion was that an order in Cale and Bill's previous bankruptcy required that they pay Wyatt and Wyatt Processing $2,462,799.81 in several installments. Upon default on said payments, Cale and Bill agreed to waive any protection under the automatic stay in any future bankruptcies. Cale and Bill later defaulted on this obligation, the present bankruptcies were filed, and Movant's moved for relief from the automatic stay. Motion, Dckt.No. 45 (April 6, 2009). This Court entered an Order and Memorandum granting Movant's motion for relief, finding that the waiver of stay protection in the previous bankruptcy was enforceable in the present bankruptcy. Order, Dckt. No. 75 (June 5, 2009). Debtors have filed a notice of appeal of this Order. Notice of Appeal, Dckt.No. 79 (June 11, 2009). Pursuant to Federal Rule of Bankruptcy Procedure 8005, Debtors have filed a Motion to Stay the enforcement of this Court's Order. Motion to Stay Order and Memorandum, Dckt.No. 80 (June 11, 2009). Movants object to this motion. Objections, Dckt.Nos. 81 & 82 (June 18, 2009).
CONCLUSIONS OF LAW
Debtors ask this Court to stay the enforcement of the order pending the appeal of the order pursuant to Federal Rule of Bankruptcy Procedure 8005. Rule 8005 states that the "bankruptcy judge may suspend or order the continuation of other proceedings in the case under the Code or make any other appropriate order during the pendency of an appeal on such terms as will protect the rights of all parties in interest." (emphasis added).
"In determining whether a discretionary stay should be granted, courts have adopted a four factor test that examines the following: 1) the likelihood the movant will prevail on the merits on appeal; 2) whether, absent a stay, the movant will suffer irreparable damage; 3) whether the adverse party will suffer no substantial harm from the issuance of the stay; and 4) whether the public interest will be served, rather than disserved, by issuing the stay."
"Ordinarily, the first factor, likelihood of an appeal's success, is the most important factor when determining whether to grant a stay pending appeal. However, a movant does not always have to demonstrate a probable likelihood of success on the merits on appeal. Where the balance of the equities (factors 2 through 4) weigh heavily in favor of granting the stay, the movant need only show a `substantial case on the merits.'" In re Arnal, 2003 WL 22709326, at *1 (Bankr.S.D.Ga.2003)(citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986)).
Debtor has not met the burden of showing a "probable" likelihood of success on the merits on appeal. He did not demonstrate that this Court's factual findings were clearly erroneous. Furthermore, Debtor did not demonstrate any persuasive authority that would lead this Court to a different legal conclusion. However, there may still be a "substantial case on the merits" which could warrant this *523 Court's granting the stay pending the appeal. However, that lesser burden is not applicable unless Debtor shows that the "balance of the equities" in granting a stay weigh heavily in his favor. This he has not done.
Debtor has failed to prove that Movants will not suffer substantial harm if the stay is granted. Debtor's argument on this point is focused on the contention that the real estate that Cale and Bill own could be sold in ninety days for just under $2.5 million. Because Debtor contends that the Wyatts claims in their entirety are slightly under $2 million, this leaves a theoretical equity cushion of $500,000.00 which might protect their interest during the pendency of an appeal. I reject that contention for the following reasons. In scheduling that debt, Debtors must necessarily be taking the amount of the claim set in the earlier Consent Order in this case and reducing it by the amount of subsequent payments. However, Cale and Bill's entire effort in the underlying order is to undo a portion of that same Consent Order wherein they agreed that the automatic stay would not prevent Wyatt and Wyatt Processing from realizing on their collateral if another bankruptcy were filed. If, in fact, Cale and Bill are to have this second bite at the apple, then I can only conclude that Wyatt and Wyatt Processing would as well. They have filed a claim in this case of over $2.8 million of which $2.5 million plus is claimed to be secured. Based on these numbers, there is no equity in the property as of the date of filing to form the basis for any protection "of the Movants' interest. In addition, interest, even under the Consent Order, was to accrue at a rate of eight percent per annum. Real estate property taxes are accruing which, if they remain unpaid, take a first priority position ahead of the secured interest of the Wyatts and the Wyatts will incur attorney's fees to defend this appeal.
Second, the public interest will not be served by issuing the stay. In this rather unique case, the issuance of a stay pending appeal would permit the Debtor to do indirectly what I have previously ruled he cannot do directly. That is, circumvent the terms of this Court's previous Consent Order in which all issues between Debtors and the Movants were resolved, resulting in a substantial reduction in the claim held by the Movants combined with an agreement by Cale and Bill not to claim the benefit of an automatic stay if they subsequently filed any bankruptcy case. Despite the clear and unambiguous terms of that Order, Debtors filed another bankruptcy and in defense of a Motion for Relief from Stay, attempted to reopen that issue. In my Order, which is currently under appeal, I found that the waiver of automatic stay protection in the Consent Order was enforceable not only because of collateral estoppel, but because I found prospective relief to be appropriate. I concluded that the resolution between the parties evidenced by that Consent Order "served the salutary purpose of reaching finality in litigation, judicial economy, and compromise. It was approved by this Court. Failing to enforce it would make a charade of the entire process and leave parties to be disinclined to settle cases. That path I refuse to follow." Memorandum and Order, Dckt. No. 75, pg. 8 (June 5, 2009).
In assessing the public interest element of the Motion for Stay Pending Appeal, I reaffirm those findings and hold that those conclusions demonstrate clearly that the public interest is best served if the parties are not permitted to make a mockery of the previous final Consent Order as would be the result if a stay pending appeal were granted. I can fathom no public interest that is served, or at least none that is more important than this, were I to agree to *524 stay the issue pending appeal. Only the private interests of Cale and Bill would be served as I have already found, and that interest would have the potential of substantially harming the Movants. See S.C. of Okaloosa, Inc. v. Brignac, 2006 WL 2356007, at *4 (W.D.La. Aug. 14, 2006)("the public interest is served by `upholding the integrity of settlement agreements'.").
Thus, Debtors have failed to prove or establish that the second of the three elements exist in this case. Because they have failed to do that, it is not necessary to address the third element. That is whether they would be irreparably harmed absent a stay. While I do not accept the notion that they would be irreparably harmed because they still maintain a state law forum to litigate any issues they may have with the Wyatts, I rule that even if they are harmed by the absence of a stay, the weight of the equities clearly falls on the side of refusal to issuance of the stay and the Motion is therefore DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918857/ | 411 B.R. 211 (2009)
In re Edward Lewis SCHWENK, Sr. and Ro Schwenk, a/k/a Ro Doyle, Debtors
Roberta A. Deangelis, Acting United States Trustee, Movant
v.
Edward Lewis Schwenk, Sr. and Ro Schwenk, a/k/a Ro Doyle, Respondent.
No. 1:08-bk-03055MDF.
United States Bankruptcy Court, M.D. Pennsylvania.
April 10, 2009.
*213 Keith B. DeArmond, DeArmond and Associates, York, PA, for Debtors.
OPINION
MARY D. FRANCE, Bankruptcy Judge.
Before me is the motion of the United States Trustee ("UST") to dismiss the chapter 7 bankruptcy case of Edward and Ro Schwenk ("Debtors"). Invoking 11 U.S.C. § 707(b)(3) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8 ("BAPCPA"), the UST alleges that this case should be dismissed because it was filed in bad faith and because under the totality of the circumstances, the filing is an abuse of chapter 7. For the reasons set forth below, the UST's motion will be granted.
Procedural History
Debtors filed their bankruptcy petition on August 26, 2008 and Schedule "I" (income) and Schedule "J" (expenses) on September 5, 2008. They amended Schedules "I" and "J" twice thereafter, filing their final schedules on October 29, 2008.[1] The UST moved to dismiss the case on December 5, 2008, to which Debtors filed an objection. A hearing was held on January 12, 2009. The matter is ready for decision.[2]
Factual Findings
Debtors are a married couple who resided in Seven Valleys, Pennsylvania during the 180-day period before they filed their bankruptcy petition. Although no testimony was provided about Debtors' ages, Edward Schwenk ("Edward") was employed by the federal government until he retired in August 2008. Ro Schwenk ("Ro"), Edward's wife, had been employed as a clinical assistant at a dental practice in York, Pennsylvania until Debtors relocated to *214 Sunset Beach, North Carolina on August 14, 2008. She voluntarily terminated her job in Pennsylvania and was unemployed on the hearing date. Debtors have no dependents.
Edward testified that he retired because he no longer would be permitted to work overtime, which significantly reduced his monthly income. He also concluded that continuing to work at his base pay would not increase his monthly pension income when he retired, so he opted to retire immediately. As part of his retirement package, Edward received a lump sum, after taxes, of approximately $11,000.00 as compensation for unused sick leave. No portion of this sum was used to reduce existing debt, instead most of the funds were used to defray costs associated with Debtors' relocation to Sunset Beach.[3]
a. Calculation of Debtors' actual net monthly income
Having substituted a rental unit in place of their mortgaged home, Debtors no longer will be able to claim deductions for mortgage interest or for state and local real estate taxes on their federal income return.[4] Debtors assert that with the loss of these deductions they will be forced to use the standard deduction and, accordingly, will not receive significant tax refunds in the future. Therefore, the annual tax refund that was amortized at $678.59 a month on Schedule "I" will not be available as a source of income in the future. No evidence rebutting this assertion was introduced by the UST. Thus, for purposes of the Discussion below, I will assume that Debtors' monthly income in the future will not include a tax refund.
In the first Schedule "I" Debtors filed with the Court, they reported that their gross income consisted of Edward's monthly pension of $4,860.61 and Ro's net monthly wages of $1,760.62. In their Second Amended Schedule "I," prepared using the information available after they moved to North Carolina, Debtors reported that Edward's monthly pension was $4,392.00 and his monthly Social Security payment was $450.00.[5] Edward's monthly pension income was lower in the revised schedule because Edward purchased a survivor benefit for Ro so that she could continue to receive a portion of his federal pension in the event that he predeceased her. To pay for this benefit, $468.00 is deducted from Edward's gross monthly pension payment of $4,860.61. As I will discuss below, Edward's purchase of this benefit is unjustified and, therefore, the benefit payment will be "added back" when calculating Debtors' monthly income for purposes of this case.
After the following additional items are deducted from Edward's monthly pension *215 payment he is left with net monthly pension income of $3,983.40:
$4,860.61 Gross monthly pension payment
$ (314.47) health insurance (Blue Cross/Blue
Shield) premiums
$ (406.44) federal income tax
$ (112.88) dental insurance
$ ( 43.42) vision insurance
__________
$3,983.40 Net monthly pension payment
Thus, if I assume that Debtors will receive no federal income tax refund in future years and that Ro will not obtain employment, Debtors' joint net monthly income going forward will consist of a pension payment of $3,983.40 and a monthly Social Security benefit of $435.00 for a total monthly amount of $4,318.40.
b. Calculation of Debtors' monthly expenses
Debtors' initial Schedule "J" and final Schedule "J" include the following expenses:
INITIAL FINAL
Mortgage/rent $3,411.55 $1,395.00
Electricity and heating fuel $ 600.00 $ 150.00
Water and sewer $ 65.00 $ 55.00
Telephone $ 125.00 $ 30.00
Other $ 195.00 $ 125.00
Home maintenance $ 100.00 $ 30.00
Food $ 500.00 $ 600.00
Clothing $ -0- $ 50.00
Laundry and dry cleaning $ -0- $ 30.00
Medical and dental $ 100.00 $ 120.00
Transportation $ 300.00 $ 200.00
Recreation $ 100.00 $ 100.00
Charitable contributions $ -0- $ 100.00
Taxes $1,210.61 $ 750.00
Second Mortgage $1,280.89 $ -0-
Pet care $ 40.00 $ 40.00
Personal $ 100.00 $ 100.00
Time share $ -0- $ 87.28
Time share maintenance $ -0- $ 20.83
Student loans $ -0- $ 170.00
Storage unit $ -0- $ 90.00
_________ __________
TOTAL EXPENSES $8,608.05 $4,759.02
As of the date of the hearing, Debtors had surrendered their time share and, therefore, no longer were incurring expenses related to purchasing or maintaining this asset. When they moved to their smaller living quarters in North Carolina, Debtors put some of their furniture in storage because they did not have space for all of their items. Later, Edward gave the furniture to his son and his son's fiancé, which allowed Debtors to forego the monthly rental expense for the storage unit. (N.T. 18). After eliminating these expenditures, Debtors' actual monthly expenses are $4,560.91. Deducting the revised expense amount of $4,560.91 from Debtors' anticipated net monthly income of $4,318.40 produces a monthly shortfall of $242.51. Therefore, at the date of the hearing, Debtors did not have disposable income available to devote to a chapter 13 plan.
Debtors' Schedule "F" reports total unsecured, nonpriority debt of $34,451.85. Of this sum, $11,210.85 (32%) is attributable to a non-dischargeable student loan debt that Ro incurred in the spring of 2006 while pursuing medical assistant training.
Discussion
Section 707(b)(3) of title 11 requires a bankruptcy court to dismiss a chapter 7 case if granting relief would constitute an abuse of the provisions of chapter 7. In relevant part, § 707(b)(3) states that:
(3) In considering ... whether the granting of relief would be an abuse of the provisions of this chapter ... the court shall consider
(A) whether the debtor filed the petition in bad faith; or 5
(B) [whether] the totality of the circumstances... of the debtor's financial situation demonstrates abuse.
11 U.S.C.A. § 707(b)(3).
The UST bears the burden of proving by a preponderance of the evidence that the filing of the petition constitutes abuse. In re Miller, 335 B.R. 335 (Bankr. E.D.Pa.2005); In re Colgate, 370 B.R. 50 (Bankr.E.D.N.Y.2007). In support of its motion in the within case, the UST offers evidence both of bad faith under § 707(b)(3)(A) and of an ability to pay debt *216 under § 707(b)(3)(B), which is one component of the totality of the circumstances test.
a. Bad faith under § 707(b)(3)(A)
A few weeks before Debtors' filed their chapter 7 petition, Edward retired, Ro quit her job, and Debtors expended a considerable sum of cash to move from their suburban Pennsylvania home to a rental unit in a North Carolina beach town. The UST suggests that this sequence of events demonstrates that Debtors' petition was filed in bad faith. According to the UST, Debtors filed their bankruptcy petition to enable the couple to retire free of debt, using the lump sum payment Edward received shortly after he retired to further this scheme. Rather than cutting back on expenses and using the lump sum to satisfy the claims of creditors, Debtors voluntarily reduced their income and used the windfall to finance their move to a more desirable climate.
1. Edward's retirement
Edward testified that he retired because he was no longer permitted to work overtime to supplement his base pay and working longer would not increase the monthly amount that he would receive through his pension. Debtors report on Form 22A that Edward's average monthly income for the six calendar months prior to the filing of the bankruptcy case was $7,401.29. No evidence was introduced, however, of the pay Edward would have received if he had remained employed at his base salary. Notably, the UST has not asserted that Edward's decision to retire was made in bad faith, although this decision reduced his income by more than 40 percent. Therefore, I will not consider the reduction in income or the timing of Edward's decision to retire as an indicator of bad faith.
2. Ro's voluntary termination of employment
Ro's decision to quit her job so that Debtors could move to North Carolina reduced Debtors' monthly income by $1,760.62. However, because the relocation enabled Debtors to reduce their expenses as well as their income, there was no net adverse impact on Debtors' monthly bottom line. Debtor's monthly budget actually improved by $255.93 as an indirect result of Ro's voluntary termination of her employment. The UST argues that although eliminating their first and second mortgages enabled Debtors to significantly reduce their expenses, the benefit of these reduced expenses could have inured to the benefit of Debtors' creditors, rather than Debtors, if they had moved into less expensive housing in the York area and Ro had continued to work.
3. Debtors' eve-of-bankruptcy expenditures
Debtors do not contest that the payout on Edward's accumulated leave provided a substantial cash windfall on the eve of bankruptcy. Further, they do not dispute that the funds could have been used to reduce their outstanding debt. They agree that, although they were aware that these funds could have been used to pay their creditors, they opted to use Edward's lump sum payment to finance their relocation to North Carolina.[6]
*217 At least one bankruptcy court has found evidence of bad faith when a debtor uses a windfall shortly prior to his chapter 7 filing to make unnecessary purchases rather than paying down debt. In In re James, 345 B.R. 664 (Bankr.N.D.Iowa 2006), the debtor received employment-related bonuses totaling $13,160.00 a few months before he filed his chapter 7 petition. Instead of applying these funds to paying down his total unsecured debts of $24,165.22, James purchased a variety of unnecessary consumer items, such as a new kennel for his dog and trip to a professional football game.[7]Id. 345 B.R. at 666. The Court found that these actions demonstrated a "lack of honesty of purpose or fair dealing," providing evidence of bad faith. Id. Based on these findings the Court sustained the 707(b) motion and dismissed the case.
As my findings above indicate, the instant Debtors and the debtor in In re James reported similar levels of unsecured debt and spent similar sums on other expenditures that otherwise could have been devoted to debt reduction. A notable distinction between the cases, however, is that although Debtors could have used the lump sum payment to pay creditors, at least the funds were used to lower Debtors' monthly living expenses. In contrast, the expenditures of the debtor in In re James were frivolous and failed to improve his financial situation.
The UST argues that instead of spending $11,000.00 to relocate to North Carolina, Debtors could have acquired less expensive housing locally, enabling Ro to keep her position as a dental assistant. If Debtors had remained in Pennsylvania, they would have enjoyed a monthly income of $6,079.02 because Ro's monthly pay of $1,760.62 would have supplemented Edward's monthly pension and Social Security benefits of $4,318.40. Edward attempted to discount the loss of Ro's income by explaining that living expenses were lower in North Carolina. However, he did not quantify this representation or provide evidence that the loss of income was offset by a concomitant reduction in expenses. Even if Debtors' expenses were $500.00 a month higher in Pennsylvania, Debtors would have had approximately $1,000.00 a month in disposable income to devote to a chapter 13 plan, which would allow them to pay off all of their unsecured debt in less than three years.
In In re Manske, 315 B.R. 838 (Bankr. E.D.Wis.2004), joint debtors in a chapter 7 case both voluntarily resigned from their jobs in Wisconsin, moved to Tennessee, and three months later filed for bankruptcy. The debtors testified that the decision to move was prompted by the desire of the debtor-wife to care for her elderly mother. The bankruptcy court, unmoved by the debtors' explanation, sustained the UST's motion to dismiss, finding that the debtors were "knowingly ... taking an unfair advantage of their creditors. Had they remained in Wisconsin and kept their jobs, they easily would have had the ability ... to fund a chapter 13 plan and provide their creditors with a substantial dividend." Id. 315 B.R. at 844.
Similarly, in the instant case, Debtors have demonstrated no compelling reason for their decision to relocate to North Carolina. Debtors did not suggest, for example, that Ro had greater employment opportunities in North Carolina, or that their health required relocation to a more temperate climate. Although Edward stated that he has arthritis, there is no evidence in the record to demonstrate that *218 the move was prompted by health concerns. In short, Debtors' move was prompted by their desire to pursue a different lifestyle, a lifestyle financed by Debtors' creditors.[8]
Rather than cut expenses in order to pay down debt, Debtors chose to reduce their income so that they could adopt a more agreeable lifestyle. Further, when Edward elected to retire and live on his pension, he used the lump sum leave reimbursement not to satisfy creditor claims, but to finance Debtors' new living arrangement. I find that these actions constitute bad faith and that the petition is subject to dismissal on these grounds.
b. Totality of the circumstances under § 707(b)(3)(B)
In addition to alleging bad faith, the UST also asserts that Debtors' case should be dismissed under the totality of the circumstances. Specifically, the UST alleges that Debtors have sufficient monthly disposable income to permit them to pay a substantial amount of their unsecured debt. As I have discussed above, an analysis of Debtors' current income and expenses (assuming that Ro is unable to find employment in North Carolina) does not support the UST's allegation that Debtors have an ability to pay their debts out of future income. As of the date of the hearing, Debtors were living on Edward's income, which is insufficient to cover their anticipated reasonable and necessary expenses. Therefore, it is appropriate to disregard the "ability to pay" factor for purposes of examining the totality of the circumstances in this case.
In In re Miller, 302 B.R. 495 (Bankr.M.D.Pa.2003), I adopted the "hybrid approach" to analyze the totality of the circumstances under § 707(b) used by the Sixth Circuit in In re Krohn, 886 F.2d 123, 126 (6th Cir.1989) as supplemented by additional factors considered by the Fourth Circuit in In re Green, 934 F.2d 568 (4th Cir.1991). I have determined that it is appropriate to consider the same factors when a motion to dismiss for abuse under § 707(b)(3) is considered in a case filed after the enactment of BAPCPA. See In re Hoffman, 2008 WL 5158292, *3 (Bankr.M.D.Pa.2008). These factors include the following: (1) whether the bankruptcy petition was filed because of sudden illness, calamity, disability, or unemployment; (2) whether the debtor made consumer purchases far in excess of his ability to repay; (3) whether the debtor's proposed family budget is excessive or unreasonable; (4) whether the debtor's schedules and statements of current income and expenditures reasonably and accurately reflect his true financial condition; (5) whether the bankruptcy petition was filed in bad faith;[9] (6) whether the debtor had engaged in eve of bankruptcy purchases; (7) whether the debtor enjoys a stable *219 source of future income; (8) whether he is eligible for adjustment of his debts through chapter 13 of the Bankruptcy Code; (9) whether there are state remedies with the potential to ease his financial predicament; (10) the degree of relief obtainable through private negotiations; and (11) whether the debtor's expenses can be reduced significantly without depriving him of adequate food, clothing, shelter and other necessities. In re Hoffman, 2008 WL 5158292 at *3 (Bankr.M.D.Pa.2008).
1. Whether the bankruptcy petition was filed because of sudden illness, calamity, disability, or unemployment
Debtors' petition was not filed because of sudden illness, disability or other similar calamity. Debtors filed their petition after Debtors voluntarily chose to reduce their income as well as their monthly expenses.
2. Whether debtors made consumer purchases far in excess of their ability to repay
In the instant case, Debtors did not use their credit cards to make consumer purchases the value of which exceeded their annual income. Debtors' Schedule "F" states that Debtors accumulated $34,451.85 in unsecured, nonpriority debts since November 2005. In 2006, Debtors' gross income was $100,886.00. In 2007 it was $128,233.00. Thus, their unsecured debt on the date of the petition was only 15% of their total income ($229,119.00) for the two calendar years (2006 and 2007) in which they carried that debt before filing their petition. I do not find this to be an amount "far in excess of their ability to repay."
Of the total debt listed in Schedule "F," $11,210.85 (32%) is attributable to student loans that Ro obtained in the spring of 2006 to pursue a degree as a medical assistant. Student loan debts are generally not dischargeable absent a showing by the debtor of undue hardship under 11 U.S.C. § 523(a)(8). Thus, Debtors would be liable for $11,210.85 in unsecured debt even if they were to be granted a chapter 7 discharge. Most of the remaining $23,241.00 in unsecured, nonpriority debt owed by Debtors is attributable to credit card purchases.[10] Again, none of these expenditures suggest that Debtors used unsecured debt to make consumer purchases far in excess of their ability to pay.
3. Whether debtors' proposed family budget is excessive or unreasonable
Debtors' expenses disclosed in Schedule "J" generally appear to be necessary and reasonable. However, in Debtors' amended Schedule "I," they report that after the petition was filed, Edward's monthly pension payment was reduced because Edward arranged for $468.00 to be deducted from his monthly payment in order to purchase a "survivors' benefit" for Ro. Edward testified that this expenditure will enable his wife to continue to receive a portion of his federal pension in the event that he predeceases her. Courts generally have found similar expenses to be unreasonable in a § 707(b) context. See In re Leung, 311 B.R. 626 (Bankr.S.D.Fla.2004) (sum deducted from paycheck toward life insurance was not "reasonably necessary" for debtor's support, and thus was "disposable income" for § 707(b) purposes). Accord In re Woodward, 265 B.R. 179 (Bankr.S.D.Iowa 2001) (lump sum expended *220 in year before bankruptcy to purchase survivor benefit for debtor's wife was unreasonable when wife was employable and could support herself). In re DeRosear, 265 B.R. 196 (Bankr.S.D.Iowa 2001); In re Katz, 203 B.R. 227 (Bankr.E.D.Pa.1996); In re Vianese, 192 B.R. 61 (Bankr. N.D.N.Y.1996); In re Smith, 187 B.R. 678 (Bankr.D.Idaho 1995). Therefore, I conclude that it is indicative of abuse for Edward to reduce his income in order to provide for a future benefit to Ro in the absence of any evidence that she will be unable to provide for her own support.
4. Whether debtors' schedules and statements of current income and expenditures reasonably and accurately reflect debtor's true financial condition
Debtors admit that their schedules do not reasonably and accurately reflect their true financial condition. For example, on Schedule "I" Debtors report $678.59 in monthly income that they do not anticipate receiving in the future. This inaccuracy, however, does not demonstrate that Debtors were not forthcoming with the Court, but simply provides full disclosure of income that was received in the past.
5. Whether the debtors engaged in eve of bankruptcy purchases
Except for the purchases and expenditures that accompanied their relocation to North Carolina, Debtors do not appear to have engaged in any eve of bankruptcy purchases. No such purchases are apparent on Schedules "D" or "F."
6. Whether the debtors enjoy a stable source of future income
With Edward's federal pension and Social Security benefits, Debtors enjoy a stable source of future income. The testimony indicated that this income may be supplemented in the future if Ro is successful in finding employment in North Carolina.
7. Whether the debtors are eligible for adjustment of their debts through chapter 13
Debtor is eligible to be a debtor under chapter 13 pursuant to 11 U.S.C. § 109(e).
8. Whether the debtors' expenses can be reduced significantly without depriving them of adequate food, clothing, shelter and other necessities
Debtors' monthly expenses as listed on Schedule "J" generally appear to be reasonable and necessary for Debtors' support. In fact, Debtors have significantly reduced their expenditures post petition by reducing their housing costs and by eliminating expenses related to the time share they previously owned.
9. Other factors
There is no information present in the record to determine whether there are state remedies that might ease Debtors' financial predicament or if Debtors may obtain relief through private negotiations.
Other than the post-petition deduction to provide for a survivors' benefit to Ro, there are no factors in the totality of the circumstances analysis that strongly suggests that the case should be dismissed under § 707(b)(3)(B).
Conclusion
A bankruptcy court may dismiss a case for abuse under 11 U.S.C. § 707(b)(3) either because the case was filed in bad faith or if under the totality of the circumstances a debtor's financial situation demonstrates abuse. Although Debtors' financial circumstances under the Krohn/Green test do not suggest abuse, I find that the petition was filed in bad faith. Debtors *221 incurred substantial debt on the eve of bankruptcy by relocating to North Carolina rather than paying down their debt. In addition, they chose to use funds that otherwise would have been available to pay creditors to finance their move. Their decision to relocate also caused Ro to become unemployed and, thus, further hampers Debtors' ability to satisfy the claims of creditors. If these actions had not been taken Debtors would have been able to repay their debts in a relatively short time. Accordingly, I find that the filing of Debtors' case was an abuse of chapter 7 and, therefore, the case will be dismissed under § 707(b)(3)(A) unless Debtors opt to convert to chapter 13 within ten (10) days of the date of the Order entered in accordance with this Opinion.
NOTES
[1] Due to the fluidity of Debtors' financial situation, even their twice-amended schedules did not accurately reflect their actual income and expenses on the date of the hearing. In the Factual Findings below, the information provided in the schedules was adjusted based upon the testimony provided at the hearing.
[2] I have jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157 and 1334. This matter is core pursuant to 28 U.S.C. § 157(b)(2)(A). This Opinion constitutes findings of fact and conclusions of law required to be made by Federal Rule of Bankruptcy Procedure ("FRBP") 7052, which is applicable to contested matters pursuant to FRBP 9014.
[3] Edward estimated that from this $11,000.00, they expended $1,400.00 to repair a vehicle, $1,400.00 for their first month's rent in Sunset Beach, $6,000.00 for moving expenses, $400.00 for renters' insurance, and $400 for North Carolina motor vehicle taxes and tags. (N.T. 48-49).
[4] By Order entered on October 21, 2008, Countrywide Home Loans, Inc., the servicer of the mortgage against the Seven Valleys residence, obtained relief from the automatic stay so that foreclosure proceedings could commence against the property. The motion for relief from the stay, to which Debtors did not respond, alleged that Debtors had failed to tender their regular mortgage payment of $3,515.69 for the months of March through September 2008, inclusive. No evidence was presented that Debtors intend to purchase a home in North Carolina.
[5] On Schedule "I," Debtors reported that Edward's monthly Social Security payment was $450.00. However, at the hearing Edward testified that the correct payment amount is $435.00. (N.T. 29).
[6] I acknowledge that Debtors would have incurred some expenses related to moving because they could not continue to make mortgage payments of $3,411.55 a month after Edward retired. However, it is reasonable to assume that their expenses would have been significantly less if they had obtained alternative housing in the community where they were living and Ro was employed.
[7] His other purchases included a black powder rifle, a bowling ball and bag, hunting boots, a snowblower, and a new washing machine and dryer. Id. 345 B.R. at 666.
[8] I do not suggest in this opinion that a debtor's decision to move to another part of the country is indicative, per se, of bad faith. To the contrary, a debtor's refusal to consider relocation in order to obtain employment that would enable a debtor to pay his or her debts may be evidence of bad faith. See In re Richie, 353 B.R. 569 (Bankr.E.D.Wis.2006) (debtor abused chapter 7 who lacked ability to pay creditors only because of an unwillingness to relocate from southern Wisconsin or to work outside chosen profession). My finding that Debtors' decision to move to North Carolina is indicative of bad faith is based on the particular facts of this case.
[9] One of the factors considered in the totality of the circumstances analysis under the Krohn test is whether the petition was filed in bad faith. Because under BAPCPA a case may now be dismissed on bad faith alone under § 707(b)(3)(A), the totality of the circumstances analysis will be applied most often in cases in which evidence of bad faith either is not present or is a minor factor.
[10] Schedule "F" lists a joint debt to Navy Federal Credit Union in the amount of $18,169.73 along with a debt to Reed's Jewelers of $2,370.00 for purchases made in December 2005. The four remaining debts listed on Debtors' Schedule "F" include a utility bill ($655.94), and three claims for medical services totaling $2,045.33. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1012134/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1593
FRANK A. BALCAR,
Plaintiff - Appellant,
versus
BELL & ASSOCIATES LLC; HARRY F. BELL, JR., AIC
Attorney; WILLIAM L. BANDS; AVEMCO INSURANCE
COMPANY; A. CHURCHEY, West Virginia Resident
Agent; CAROLE HARTMAN, West Virginia Resident
Agent; JOHN WATSON, AIC Managing General
Agent; GREGG A. PIKE, AIC Managing General
Agent; RICHARD BOESCHEN; STEVEN M. HOMENDA,
AIC Managing General Agent; GENE SCHEIL, AIC
Managing General Agent; RICHARD HOMEL, AIC
Managing General Agent; JAMES NELSON, AIC Vice
President; JOHN DOES, I thru XX, as they may
appear; THOMAS OFFUTT, AIC Assistant Vice
President - Legal,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CA-02-2-5)
Submitted: October 3, 2003 Decided: December 15, 2003
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank A. Balcar, Appellant Pro Se. Harry Fullerton Bell, Jr.,
William L. Bands, BELL & BANDS, P.L.L.C., Charleston, West
Virginia; Charles M. Love, III, Diana Leigh Johnson, BOWLES, RICE,
MCDAVID, GRAFF & LOVE, P.L.L.C., Charleston, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Frank A. Balcar appeals the district court's order imposing
monetary sanctions against him. Balcar has failed to properly
preserve the issue of sanctions for appeal by failing to allege any
error by the district court in his informal brief. See 4th Cir. R.
34(b). Accordingly, we affirm on the reasoning of the district
court. See Balcar v. Bell & Assoc., No. CA-02-2-5 (N.D.W. Va. Apr.
4, 2003). In addition, we have reviewed Balcar’s response to our
order to show cause as to why he should not be sanctioned for
filing frivolous appeals and enjoined from filing further actions
in this court unless he pays the sanctions and a district court
finds that the action is not frivolous. We find his response fails
to show cause why sanctions and an injunction should not be
imposed. We therefore grant Appellees’ motions for sanctions.
Accordingly, having filed numerous frivolous appeals in this court
from district court orders dismissing his civil complaints as
frivolous and for failure to state a claim, Balcar is sanctioned
$500 for filing frivolous appeals and enjoined from filing further
actions in this court unless he pays the sanction and a district
court judge finds that the appeal is not frivolous. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545990/ | 77 F.2d 977 (1935)
GARGOTTA
v.
UNITED STATES.
No. 10091.
Circuit Court of Appeals, Eighth Circuit.
May 10, 1935.
William L. Vandeventer, of Springfield, Mo. (Calvin, Vandeventer & Kimbrell, of Kansas City, Mo., on the brief), for appellant.
Randall Wilson, Asst. U. S. Atty., and Sam C. Blair, Asst. U. S. Atty., both of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.
Before WOODROUGH and FARIS, Circuit Judges, and DONOHOE, District Judge.
DONOHOE, District Judge.
Appellant, hereinafter referred to as the defendant, was convicted on all three counts of an indictment, which charged him with receiving, concealing, and retaining in his possession with intent to convert to his own use, two certain pistols, property of the United States, with knowledge of the fact that such property had heretofore been stolen. His punishment was fixed at three years imprisonment on each count, to run concurrently, and a fine on the third count of $5,000. By appropriate proceedings, an appeal has been prosecuted to this court, which presents for our consideration certain errors alleged to have occurred during the trial, and the sufficiency of the evidence to support the verdict.
One of the errors alleged is based on the fact that Mrs. Florence McCoy, a contract stenographer employed on behalf of the government in the office of the district attorney, was present during the sessions of the grand jury that returned the indictment against the defendant, and took down the testimony. She was sworn not to divulge any of the testimony so recorded, *978 and in the course of the proceedings she was called upon to read to the grand jury testimony pertaining to another case. She was not present during the deliberation. On the strength of these facts, a plea in abatement was entered on the ground that an unauthorized person was permitted to be present in the grand jury room during the time it was hearing testimony on which the indictment herein was based. The plea in abatement was overruled, and that order is assigned as error.
Section 556, title 18 USCA (as amended May 18, 1933), disposes of this alleged error. The testimony which she read to the jury during its deliberation had to do with a Mr. Claiborne's case, rather than the case of the defendant, and consequently no prejudicial error could be predicated on that circumstance.
Another alleged error is based on a statement made by the district attorney in his closing argument to the jury, which it is contended referred to the fact that the defendant did not take the stand in his own behalf. The language is as follows:
"Gentlemen, you have those two positive witnesses. That is not circumstantial evidence, Mr. Calvin. That is direct testimony going to the very vitals of this case. One of those witnesses testified that he took a concealed weapon from this man, the other that he had a gun in his hand, shooting at him, and threw it down. You have there the uncontradicted testimony of these two officers, not mere private citizens, but sworn officers of the law, that this man possessed both of these guns.
"Now, is there any explanation how he got possession of them? No explanation is offered to you, gentlemen of the jury. This man McLaughlin might try to insinuate some way, but you are not trying this case on insinuations of attorneys. There is no explanation of how he got the guns. If he got them honestly, if he did not receive them as stolen property, why did they not offer an explanation?"
While we think that this language approaches dangerously close to the forbidden zone, still it hardly encroaches thereon. The criticism seemed to be directed to the attorneys, who were conducting the case for the defendant. The attorneys might have called other witnesses, if any there were, to explain the possession of the guns. For the attorney in his argument to refer to the fact that there were no such other witnesses called would not be objectionable. Then, too, it will be observed that the pronoun "they" was used in the last question quoted instead of the pronoun "he." From this it would seem that the language could not be fairly construed as a comment on the defendant's failure to testify in his own behalf, and hence we do not find the statement to constitute reversible error.
The question of the sufficiency of the evidence is the serious question in the case. The first contention, that there was no competent evidence proving that the pistols in question were the property of the United States previously stolen, is readily disposed of. The testimony of Major Chafin in that connection, received without objection, was positive and direct, and sufficient in itself to take the case to the jury on that point. Hence we do not consider it necessary to dwell upon the other corroborating testimony. We think that the ownership and theft of these pistols was sufficiently and amply proven.
The remaining contention, that there is not on the record sufficient evidence to take the case to the jury touching defendant's knowledge that the pistols were stolen when he possessed them and when he concealed one of them, is to our mind the real and only question in the case. We will quote the testimony in detail in order that the evidence, or rather the lack of evidence, may speak for us:
The witness, Thomas B. Bash, sheriff, testified:
"Q. I will ask you to tell the jury about where you were about one o'clock a. m. on the morning of August 12, 1933? A. Driving south on Forest Avenue, between Armour and 34th Street.
"Q. And who was accompanying you? A. My wife, Deputy Hodges, and a little girl by the name of a little orphan girl, I don't just remember her name at this time.
"Q. Did you reach the intersection of Forest Avenue and Armour Boulevard? A. No, I hadn't quite reached the intersection of Armour and Forest.
"Q. How near the intersection did you get? A. Approximately, somewhere between fifty and seventy-five feet.
"Q. I will ask you to state to the jury whether or not you saw the defendant, Charles Gargotta? A. I did.
"Q. At that place, at that time? A. I did.
*979 "Q. Now, state to the jury what he was doing when you first saw him? A. He was shooting.
"Q. At whom? A. Me.
"Q. How far were you away from him? A. At that particular time I was some little distance. I wouldn't just exactly know in feet, twenty-five or thirty feet.
"Q. What was he shooting at you with? A. A revolver.
"Q. What kind of a revolver? A. .45 Colt Automatic.
"Q. I will hand you Government Exhibit No. 1, and ask you to state to the jury whether or not that is the revolver with which he was shooting at you? A. That is the revolver with which he was shooting at me.
"Q. Not a revolver, but an automatic pistol, I understand? A. Yes, sir.
"Q. Now, what happened then, Mr. Bash? A. He dropped the pistol, threw up his hands, and screamed for me not to shoot him.
"Q. What caused you to stop on that occasion? A. Because I had seen him drop this revolver and I thought he was defenseless at that time, that particular time.
"Q. I mean how did you happen to stop at that particular intersection? A. I heard some shooting and screaming.
"Q. I don't want to lead you, but you got out of the your car A. Got out of the car, yes, sir.
"Q. Did you have any weapon in your car? I had a riot gun that I carry in my car at all times.
"Q. Then what did you do with reference to Gargotta? A. I placed this gun on him.
"Q. This riot gun, you mean? A. This riot gun, backed him up against the east side of the apartment building located on the southwest corner of Armour and Forest and then moved him around to the south side, just around to the south side, keeping my eye on this pistol at all times, at the same time, and immediately thereafter, my deputy, Hodges, started walking around from behind the car that the two men were in that I had just shot, and I told him to pick up the pistol that this man had dropped, and he did and brought me the pistol, and I placed it in my left trouser pocket."
(Here the witness identified the pistol as delivered to him by his deputy, and which contained the number "377,675," marked as Government Exhibit 1.)
Officer Hale testified that he was one of the officers who took the defendant to the station when he was arrested, immediately after the shooting referred to by the sheriff, and related the following as having taken place on the way:
"Q. Going over to the station did you take anything off of Charles Gargotta? A. Yes, sir.
"Q. What did you take? A. A .45 automatic.
"Q. A .45 automatic? A. Yes, sir.
"Q. Do you know whether it resembled Government's Exhibit 2 or not? A. Yes, sir, resembled that.
"Q. From where did you take it? A. No. 6 Station.
"Q. No, I mean from where did you take this pistol off of his person? A. Over his right rear pocket.
"Q. At the time or just prior to the time you took it off what did he say to you, if anything? A. My understanding is he said: `You better take this off of me.' That is, at the time I took the gun from him.
"Q. Was it concealed? A. Yes, sir.
"Q. What did you do with the gun? A. Turned it to No. 6 Station. * * *
"Q. Do you know how it happened that Gargotta said to you `You had better take this off of me'? A. No, sir.
"Q. Did you know he had it? A. When I felt it with my elbow. I was sitting very near him.
"Q. Do you mean over his pocket? A. Well, in the belt there.
"Q. You mean belt of his trousers? A. Yes.
"Q. Was it stuck inside of the trousers? A. Yes. * * *
"Q. Will you please state to the Court and jury, if you can, how Charles Gargotta was dressed on the evening that you saw him, as to his headgear? A. Why, he had on a dark gray cap."
The witness, Miss Houston, identified a written statement, prepared shortly after the shooting, which she read to Mr. Gargotta sentence by sentence. She stated that after reading a sentence, a Mr. Mastin propounded the question to the defendant, "Is *980 that true?" and to each of these questions the defendant answered in the affirmative. The written statement is as follows: "My name is Charley Gargotta. I live at 633 Garfield, I am 33 years old, born and raised in Kansas City, married, have one son five years old. About 10:30 tonight, I ate supper on 5th Street at the White Kitchen between Grand and Walnut on 5th Street. There were several people around the Kitchen. I ate some sardines and potato salad. I went into the Kitchen and ate by myself. I was in the Kitchen about ten or fifteen minutes. I sat around 5th and Grand for a while, perhaps fifteen or twenty minutes or maybe a half hour. I walked from 5th and Grand to 7th Street and got a taxicab. The cab was standing at the southeast corner of 7th and Grand. I got in the cab and drove to the Cavalier Apartment at 1109 Armour. I gave the cab man fifty cents and I went in the apartment. I walked upstairs to the fourth floor and saw a young lady named Helen. I met her two nights ago or maybe three nights ago. I met her at Grand Avenue between 10th and 11th. Met her again tonight about the same place, this was about 11:00 o'clock, maybe five or ten minutes before or after, and she asked me to come to see her. She and I came to 7th and Grand, got in the cab and went to her apartment. I stayed there until about one o'clock, maybe ten or fifteen minutes earlier or later. I walked down the steps and walked out to the sidewalk. I didn't see anyone at the apartment or on the sidewalk that I knew. I started walking toward a cab that was waiting there when I heard some shooting. I was walking a little east to get the cab and heard the shooting begin. The shooting seemed to be east of me and out in the middle of the street. There were several shots fired. I saw a fellow standing in the street. I didn't see him shoot or have a gun. I ran across Armour Boulevard to sidewalk on north side of the street. A man walked towards me with a shotgun in his hand and said `stick up your hands.' He told me several times to hold my hands up and I kept them up. This man handcuffed me and kept me until two policemen came and took me to No. 6 Station. I didn't see anyone near the apartment or the shooting whom I recognized. I had nothing in my hand when I crossed the street and had no gun or pistol of any kind. I never have owned an automatic pistol. The policeman did not take an automatic from me or out of my pocket or possession after they had me in their car or at any time. I had no revolver or pistol in my possession at all. I never wore a cap in my life. I usually wear a hat and did tonight. I had my hat when I came out of the apartment and missed it just after the man with the gun said `stick them up.' The cap I saw in the sheriff's office is not mine. Helen is a tall dark complected woman. I don't know whether her hair was blond, dark or red. She walked up the the four flights of steps with me."
The witness, Edward E. Conroy, special agent, testified that he saw the defendant on the morning of May 10, 1934, and talked to him concerning the possession of these pistols; that the defendant was asked regarding them, and he denied that he had ever had them in his possession, and stated that he did not know anything about the guns; that the defendant read aloud Government Exhibit 17, especially the typewritten part in the center thereof; that the witness paid particular attention while the defendant read the numbers of the guns and read the phrase "Property of the United States of America." Exhibit 17 referred to is the complaint filed on the 10th of May, 1934, and which contains the words "said pistols then and there being the personal property of the United States."
The witness Anderson, special agent, testified that on the morning of May 10, 1934, he asked the defendant what he knew about the guns named in the complaint, and the defendant answered that he did not know a thing about the guns; that he didn't carry guns; and that he never had the two guns in question in his possession.
The witness Trainor, special agent, testified that he was present during the interview of May 10, 1934; that he had a conversation with the defendant in which he asked the defendant what knowledge he had concerning the pistols, and how he could explain the charge; that the defendant then stated that he had no knowledge of the pistols; that he had never had them in his possession and knew nothing whatever about them.
The pistols, Government Exhibits 1 and 2, had stamped on the magazine, below the barrel, on the left hand side, the words: "United States property." The stamp is indented in caps, 10 point long primer type, and extends along the magazine 1¾ inches. Both are identical, and neither show any attempt at obliteration or mutilation.
*981 The foregoing constitutes the sum total of the evidence. The defendant did not testify, nor did he call any witness in his own behalf, and the verdict of conviction must either be upheld or reversed on this record.
The writer hereof has difficulty in keeping his mind from reverting to the fact that the defendant was with gangsters, and was using one of the pistols in a deadly assault on the sheriff when they were first found in his possession. No doubt the jurors had the same difficulty in their deliberations. The prosecuting officers have seen fit to press the minor offense for reasons not appearing of record. The defendant is not on trial for the major offense. That is left for another day and another jurisdiction, and must not be permitted to prejudice the defendant in his constitutional right to a fair trial on the charges of the indictment.
The nature of the situation calls for calm and dispassionate deliberation. The court should not recede from its well-defined and often announced principles of law, nor should we expand or contract those principles in order that we may make a special application to this case. It may be a gangster to-day, while tomorrow it may be a first citizen. Since a chain is no stronger than its weakest link, our constitutional rights and guaranties are no more secure, and we may expect no greater protection than is given to us by the court's weakest decision. In fact, it has been intimated somewhere to this court that a reversal herein would outrage public opinion in Kansas City, where the alleged crime was committed, and the cause of law enforcement would suffer resultant injury. Law enforcement should be within the law. Law officers should be meticulous in giving to every culprit the protection of his every lawful right, and consequently the resultant fair trial. There is but little difference in principle between unlawful mass action countenanced or tolerated by a court, and the unbridled movement of the mob on the street or in the alley. The defendant is presumed to be innocent, and this presumption is a real presumption in his favor which abides with him at every stage of the trial. The burden of proof was on the government to prove his guilt beyond a reasonable doubt. No principles of criminal law are more firmly fixed than these. They have been proclaimed by every court of record throughout the land. They go to the very basis of our liberties.
With safety then, may we not in the performance of this duty keep this principle foremost in our minds, and at least for the time being keep our mind free from thoughts of the character of the defendant, and other crimes that may or might be chargeable to him?
The proven facts may be summarized as follows:
(1) That the pistols were stolen from the supply room of the National Guard Armory at Seventh and Barnett streets, in Kansas City, Kan., on October 23, 1932.
(2) That they were found in the possession of the defendant at Armour and Forest avenue, Kansas City, Mo., at about 1 o'clock on the morning of August 12, 1933.
(3) That the defendant, when arrested, on the morning of August 12, 1933, denied the possession of the pistols. On the same day, he again denied possession when arraigned, and said he knew nothing about them, and again on May 10, 1934, he stated he knew nothing about the pistols, and had not ever had them in his possession.
(4) That on May 10, 1934, the defendant read aloud the complaint, including the words contained therein: "Said pistols then and there being the personal property of the United States."
(5) That the pistols had stamped thereon the serial numbers 377,675 and 69,791, and the words "United States Property" and "Model of 1911, U. S. Army."
The gist of the offense charged in all three counts of the indictment is that he knew, or had knowledge, that the pistols had been stolen at the time that he received, concealed, or aided in the concealment, or had or retained them in his possession.
This court has frequently announced and committed itself to the rule: "Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial judge to instruct the jury to return a verdict for the accused, and where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of this court to reverse a judgment against the plaintiffs in error." Van Gorder v. United States (C. C. A. 8) 21 F.(2d) 939, 942; Spalitto v. United States (C. C. A. 8) 39 F.(2d) 782; Cravens v. United States (C. C. A. 8) 62 *982 F.(2d) 261; Peightel v. United States (C. C. A.) 49 F.(2d) 235. Consequently, we must examine and consider this evidence without doing violence to this rule of law.
The evidence relied upon by the government as showing, or tending to show, the guilty knowledge is circumstantial, and the circumstances of a criminatory nature relied upon are:
(a) That the pistols were found in his possession; that he admitted on the way to the station possession of one, by saying: "You better take this off of me."
(b) No evidence was offered to explain the possession.
(c) He denied that he ever had the pistols in his possession on different occasions, and said he had not ever had them in his possession, and knew nothing about them.
(d) That he could read English.
(e) That stamped on the pistols were the serial numbers, and the words "United States Property" and "Model of 1911, U. S. Army."
There is no evidence to show, or tending to show, either direct or circumstantial, when, where, or the circumstances under which the defendant acquired or came into possession of the property, nor the length of time they were in his possession. There is no evidence, either direct or circumstantial, showing any fabrication, suppression, or spoliation of evidence by the defendant. The evidence does not show that the defendant made any inconsistent explanation of any of the circumstances in the case, but merely consistently denied that he had the pistols in his possession, or knew anything about them. Neither is there any evidence to show an attempt to hide or secrete or dispose of the pistols.
Is the circumstantial evidence here sufficient to sustain the verdict, or must there be other circumstances presumed before we can reach any such conclusion? In United States v. Ross, 92 U.S. 281, 284, 23 L. Ed. 707, the court, in announcing the law, said: "Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed."
That court cited with approval the rule stated in Starkie on Evidence, page 80, as follows: "In the first place, as the very foundation of indirect evidence is the establishment of one or more facts from which the inference is sought to be made, the law requires that the latter should be established by direct evidence, as if they were the very facts in issue."
The court further stated in that same case: "The law requires an open, visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences."
And further: "A presumption which the jury is to make is not a circumstance in proof; and it is not, therefore, a legitimate foundation for a presumption."
And again by the same court: "They are inferences from inferences; presumptions resting on the basis of another presumption. Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which are uncertain."
This court has likewise held, and it is well settled in this circuit, that presumptions cannot be based on presumptions. Brady v. United States, 24 F.(2d) 399 (C. C. A. 8); Vernon v. United States, 146 F. 121 (C. C. A. 8); Miller v. Union Pac. Ry. Co. (C. C. A.) 63 F.(2d) 574.
It should be readily conceded that the mere possession alone of the pistols 293 days after the larceny would not in itself raise the legal presumption that the defendant stole them. Mere possession alone, after such a lapse of time, cannot in any sense be considered so recent a possession as to sustain a finding of guilty knowledge that the property was stolen.
In the case of Van Gorder v. United States, 21 F.(2d) 939, 941 (C. C. A. 8), it was said:
"Counsel for the government argue that the fact that on April 15, 1924, when the defendant was arrested, 87 days after the keys were missed at Poplar Bluff, they were found among the effects of the defendant, raised the legal presumption that he stole them on January 17, 1924. Conceding that facts and circumstances may exist in a case from which such a presumption may arise from the recent possession by a defendant of stolen property that he had guilty knowledge that the property was stolen, and hence that he was the thief, nevertheless, in such a case the presumption that the defendant was the thief rests on the presumption that he had guilty knowledge that the property was stolen. *983 In the case in hand the only evidence against the defendant was his possession of the missing keys and the mere possession of stolen property is insufficient to sustain a finding that the possessor had guilty knowledge that it was stolen, much less, the subsequent presumption that he was the thief. Degnan v. U. S. (C. C. A.) 271 F. 291; Kasle v. U. S. (C. C. A.) 233 F. 878, 888, 889, 890, and cases there cited; Minor v. State, 55 Fla. 90, 96, 45 So. 818.
"Moreover, the possession of stolen goods alone raises no presumption of guilty knowledge or of stealing by the possessor, unless it was recent, so recent that ample time and opportunity may not have been given to transfer the stolen property from the thief to another between the date of the theft and that of the arrest or seizure."
And again, by the same court: "Eighty-seven days after the alleged theft was not so recent a possession under the facts and circumstances of this case as to sustain a finding of either guilty knowledge of the defendant that the keys were stolen property or of the fact that he was the thief."
The cases relied upon by the government as authority for its contention that the fact of possession standing alone is some evidence to be considered with all the other facts are cases where the other evidence or circumstances relied upon are of an entirely different nature, and upon examination will disclose that there was inconsistent statement, attempt to conceal, an attempt to sell for less than the fair value, spoliation, fabrication, suppression of evidence, or contradictory explanations of the possession, all of which are entirely absent in the case at bar.
The fact that no explanation was offered by the defendant of his possession is answered by the fact that he consistently denied such possession, and denied all knowledge of the pistols, which of course left no explanation of his possession necessary. Had he offered an explanation inconsistent with his denial of possession, then we might have a different case; but his failure to offer an explanation is not inconsistent with his denial of possession.
Was the fact that the pistols bore the inscription "United States Property," and the fact that the defendant could read English, sufficient as a circumstance to show guilty knowledge? In considering these facts, we are first met with the proposition that we must presume:
First. That he had the pistols either in the lamplight or the daylight. The evidence shows that they were found in his possession at 1 o'clock in the morning on the street.
Second. We next must presume that he read the inscription in the lamplight or daylight, and then we next must infer that the effect of reading the inscription was sufficient to register in his mind the consciousness that it was stolen property.
We have a situation of two circumstances not proved, but presumed, on which we are asked to presume that the defendant had guilty knowledge. This is the very thing which the authorities hereinbefore cited condemn.
Does the fact that he denied possession of the stolen property show, or tend to show, guilty knowledge? Does it have any evidential value in that respect? At the time of the denials, he was in custody. Again we must rely upon circumstantial evidence to determine the purpose of the false statements. May these statements be considered as evidence of guilty knowledge that the pistols had been stolen, or were they made to avoid prosecution by the state of Missouri? From the facts disclosed, it would seem that he might have been prosecuted for any one of three separate felonies; namely; Assault with intent to kill; exhibiting a deadly weapon in a rude, angry, and threatening manner; and carrying concealed on or about his person a dangerous and deadly weapon. If the defendant had in mind any such prosecution, his denials then would merely amount to a claim of innocence, so that in this case, for the denials to have any evidential value, the jury would have to presume, even in the broadest view, that the defendant had in mind that he was going to be arrested and prosecuted for unlawful possession with guilty knowledge. They must first draw the inference that the defendant at the time of these denials had in mind and anticipated this prosecution, and from that fact they must draw another inference that his denials were prompted by a consciousness of guilty knowledge, for unless the defendant had in mind this prosecution, and not some other threatened or impending prosecution, his denials would have no evidential value as showing the condition of his mind with reference to this cause.
Going back to the proposition of law heretofore stated, is the government's evidence, *984 both direct and circumstantial, as consistent with innocence as it is with guilt? If it is, then it is insufficient to sustain the verdict. The circumstances relied upon, that the defendant was found in possession of the pistols, that they had stamped thereon the words "United States Property," we believe are just as consistent with the innocence of the defendant as with his guilt in this case, and we have been unable to find substantial evidence of fact which excludes every other hypothesis than that of guilt. For example, may we not infer from the proven facts:
(a) That the defendant purchased the pistols for a fair price.
(b) That the defendant came into the possession of the pistols innocently.
(c) That he obtained the pistols from some person lawfully in possession thereof.
(d) That the defendant came into possession of the pistols immediately before the conflict or shooting, or during the progress thereof.
(e) That the pistols were received by him in the dark, and that he never had them in the light to see or read the inscription thereon, or that he had picked up the pistols hurriedly in the apartment of the lady, or that she thrust them into his hands at the time he left, when the shooting commenced.
In any one of these situations, the defendant would be wholly innocent of the charge of guilty knowledge.
After a careful study of the authorities, and a scrutiny of the evidence, we are unable to divest our minds of the conclusion that there was not sufficient evidence of guilt of the defendant to sustain the verdict.
The judgment is therefore reversed, and the case remanded to the court below for further proceedings.
WOODROUGH, Circuit Judge (dissenting).
In my opinion a prima facie case was made out against Gargotta which was for the jury. He had in his possession two automatic pistols belonging to the United States, stolen from an armory not an hour's ride distant from the place of his arrest; they bore the legend stamped conspicuously upon them, "Property of the United States of America," and he could read that legend. It was shown that ordnance property generally belonging to the government had never been offered for sale to the public. The President had been authorized by Congress to sell guns and ammunition to members of the National Rifle Association and other recognized associations for the encouragement of small arm target practice, but there was no evidence that the power had ever been exercised. Some weapons like those in the possession of the accused were on occasions sold to regular officers of the United States Army, but only upon certification that they were for the officers' personal use. When asked about his possession of the weapons by federal agents whom he knew to be concerned about the government property, the accused declared he never had them.
Perhaps it was not impossible for him to have come into possession of the weapons without anything to put him on notice that they were the property of the United States and stolen. It may not be impossible that he found them on the street in the dark, just before his arrest; or had them handed to him there; or had not had a chance to read the inscriptions on them. Such speculative possibilities can always be conjured up because we have no absolute demonstration of knowledge or intent. If a man is seen to be admiring a world's masterpiece in the art gallery and is found with it cut from the frame and rolled up under his coat within the hour, there is always the same thing to be said; possibly he found it, or had it handed to him, or did not know it had been stolen. If he keeps perfectly still and nobody saw the crime committed, such conjectural possibilities may persist.
But the ruling does not turn thereon. It turns on reasonable inference. What is the reasonable inference to be drawn from the accused's possession of these weapons one of them drawn in his hand, the other hidden in his bosom; and from his denial that he had them?
Light is thrown on the question by occurrences too widely published and generally known to be ignored by the courts; namely, the frequent robberies of armories and arsenals in late years and the arming of public enemies with government weapons so obtained. It ought not to be assumed that a man who is found with two such weapons so stolen from a nearby armory has never read or heard about it like his neighbors. The government stamps the declaration of its ownership on the weapons and takes precautions to prevent them *985 from falling into other possession or ownership. They are not so entirely unique as art masterpieces, but they do have a special character that immediately suggests inquiry when they are found out of their setting. They can hardly come into the hand of a layman unless crime has been committed to obtain them. When the inevitable inquiry arises, the spontaneous exclamation, "How did you get those government pistols," and the answer of the possessor is, "I never had them", you infer guilty knowledge, and nothing else. It is the reasonable and natural inference.
I think the court should confront this actuality directly. The injuries and disorders which are inflicted on society by evilly disposed persons who succeed in possessing themselves of these deadly government weapons are but too well known. An individual who is found with two of them on his person, clearly marked and proved to have been stolen, and who has falsely denied his possession is more than a suspect. There is proof against him which sustains belief and calls for explanation if he is innocent. To hold him to his proof deprives him of no right or immunity which any man ought to have. If he came by the guns in some such way that he did not know they were stolen property, the fact could doubtless be shown; but I think that in the absence of any such showing the duty of the court was to let the jury decide.
There is no direct precedent to the contrary, and sensible regard for the public safety, under conditions as they are, requires that the conviction be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546212/ | 40 B.R. 458 (1984)
In re Thomas Ewell RIGGIN, Debtor.
Bankruptcy No. 84-B-0196.
United States Bankruptcy Court, D. Maryland.
June 6, 1984.
Lloyd Whitehead, Salisbury, Md., for debtor.
MEMORANDUM OF DECISION
PAUL MANNES, Bankruptcy Judge.
Thomas Ewell Riggin filed a voluntary petition under Chapter 7 of the Bankruptcy Code on February 10, 1984. He and his spouse, Deborah Ann Riggin, had previously filed a Chapter 11 proceeding on April 5, 1983. That proceeding had been dismissed by Judge Schneider on January 6, 1984, on debtors' motion. The counsel for Mr. Riggin in the previous Chapter 11 and in the present Chapter 7 is Lloyd O. Whitehead, Esquire, an experienced bankruptcy attorney whose Rule 2016(b) statement filed in this action indicated promised compensation of $1,000. On February 28, 1984, Judge Schneider passed a Show Cause Order *459 directing Mr. Whitehead and his client to appear in bankruptcy court in Salisbury on April 6, 1984, to respond to the Judge's order stating:
"The amount appears unusually high for an individual Chapter 7 case, particularly since counsel also represented the debtor in a joint Chapter 11 case which was dismissed little more than a month prior to the filing of this case. The debtor's counsel filed a Rule 2016 Statement in the Chapter 11 case, No. 83-B-1355, disclosing that a retainer of $800 had been paid against a minimum fee of $3,000 for representation in that case. Normally, this Court would not have approved additional compensation had Case No. 83-B-1355 merely been converted from Chapter 11 to Chapter 7."
Prior to the return date, counsel filed a response noting that the Rule 2016 Statement filed in Case No. 83-B-1355 was in error. He corrected the statement by pointing out that the agreement that he had with his clients was that they would pay compensation of $90 an hour plus expenses, with a minimum fee of $2000.
Counsel's response stated further that his fees and expenses in the previous proceeding aggregated $2,901 less $1,000 paid, leaving a balance due on the previous Chapter 11 proceeding of $1,901.
The $1,901 account payable was not listed on debtor's Schedules in the Chapter 7 proceeding. Counsel explained this omission in paragraph 3 of his response to the Show Cause Order:
"3. That the Debtor has agreed to pay the $1901.00 balance due on the bill as he is able to accumulate the money toward payment, and has agreed with his attorney that the said sum is a reasonable bill for the time spent by the attorney working on his affairs."
In other words, counsel and his client have agreed to except from discharge in the Chapter 7 case the balance due in the Chapter 11 proceeding. The prospective fee of $1,000 is apparently satisfactory to the debtor, as is presumably the arrangement to pay the $1,901 account payable despite the forthcoming discharge in bankruptcy.
Counsel's response to the Show Cause Order issued by Judge Schneider concluded with the following paragraph:
"9. That in the event the Court should decide that for some reason the undersigned attorney has overcharged the undersigned debtor, which neither the attorney who has charged the fee, nor the Debtor who has to pay it, believes to be the case, the attorney is willing to withdraw immediately from this case and let the Debtor find another attorney of his choosing and to pay that other attorney under the supervision of this court, or to have this Court appoint an attorney of its choice to represent the debtor in this matter, but under no circumstances does Counsel desire to continue in this matter if he has no prospects of being paid."
By this paragraph, counsel suggests that if this court has the impertinence to question his compensation, he will practice somewhere else. He further suggests that the court has the power to appoint an attorney of its choice to represent the debtor.
The price that Mr. Riggin has agreed to pay for the representation of the counsel of his choice is $2,901, consisting of his agreement to pay the account payable, notwithstanding discharge, and an additional $1,000.
This matter is governed by § 329 of the Bankruptcy Code and Bankruptcy Rule 2017(b). These provisions are set out below:
§ 329. Debtor's transactions with attorneys
(a) Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of and in connection with the case *460 by such attorney, and the source of such compensation.
(b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to
(1) the trustee, if the property transferred
(A) would have been property of the estate; or
(B) was to be paid by or on behalf of the debtor under a plan under chapter 11 or 13 of this title; or
(2) the entity that made such payment.
Rule 2017. Examination of Debtor's Transactions With His Attorney
* * * * * *
(b) Payment or Transfer to Attorney After Commencement of Case. On motion by the debtor or on the court's own initiative, the court after notice and a hearing may determine whether any payment of money or any transfer of property, or any agreement therefor, by the debtor to an attorney after the commencement of a case under the Code is excessive, whether the payment or transfer is made or is to be made directly or indirectly, if the payment, transfer, or agreement therefor is for services in any way related to the case.
Although neither the Code nor the Rules provide a procedure for the judicial examination of compensation, that responsibility clearly falls upon the court and requires the court's own initiative. See Collier on Bankruptcy § 329.05 (15th Ed.1984 Supp.).
The measure of counsel's compensation in this Chapter 7 proceeding must be examined independent of his claim for an account receivable that would be otherwise dischargeable. Boiling down the arrangement between attorney and client in this particular case, we find that counsel is to receive $1,901 for a Chapter 7 proceeding, much of the work having been done previously in the unsuccessful Chapter 11. The court finds this compensation to be excessive, and holds that the fee requested cannot be allowed. Although the debtor consents to the fee, that is true of every bankruptcy case. The attorney could not be hired without the consent of the client. Furthermore, in cases under Title 11 the client is most often in a desperate situation and will agree to almost any arrangement.
The court adopts the language of Judge Brody in the case of Matter of Olen, 8 B.C.D. 555, 5 C.B.C. 944, 946-7, 15 B.R. 750 (Bkrtcy.E.D.Mich.1981):
Section 329(b), derived from section 60d of the Bankruptcy Act and Bankruptcy Rule 220(a), provides that the court may examine into reasonableness of compensation paid by a debtor to an attorney for services rendered or to be rendered in contemplation of filing a bankruptcy proceeding and may order the return of any part of that payment to the extent it is excessive. "It matters very little to a bankrupt whether his attorney fee is large or small, since it will be paid out of the assets which, in any event, would normally be consumed in distribution." Committee on the Judiciary, House of Representatives, Report on H.R. 2833 (An Act to Amend Subdivision d of Section 60 of the Bankruptcy Act). H.R.Rep. No. 88-99, 88th Cong., 1st Sess., reprinted in U.S.Code Cong. and Admin.News 88th Cong., 1st Sess. 638 (1963). In this context, the need for judicial scrutiny of legal fees paid to an attorney for a debtor contemplating bankruptcy, becomes self-evident. Conrad v. Pender, 289 U.S. 472 [53 S.Ct. 703, 77 L.Ed. 1327] (2d Cir.1933); In re Wood and Henderson, 210 U.S. 246 [28 S.Ct. 621, 52 L.Ed. 1046] (8th Cir.1908); In re Louisiana Loan and Thrift Corporation, 416 F.2d 898 (5th Cir.1969); In re Buchanan, 66 F.2d 416 (2d Cir.1933); cert. denied Mackey v. Irving Trust Co., 290 U.S. 682 [54 S.Ct. 120, 78 L.Ed. 588] (1933); In re David Bell Scarves, Inc., 61 F.2d 771 (2d Cir.1931); In re Klein-Moffett Co., 27 F.2d 444 ([D.C.Md.] 1928); In re Stolp, et al., 199 F. 488 (1912); In re Cybern Education, Inc., 378 F.Supp. 835 (N.D.Ill.1974); In the *461 Matter of Knickerbocker Leather & Novelty Co., Inc., 158 F.Supp. 236 (S.D.N.Y.1958); In the Matter of Alexis J. Guy, 2 B.C.D. 1474 (Minn.1976).
By any standard, the requested fees are excessive. In the colloquy between the court and counsel, counsel was asked whether he would formally relinquish any right or claim to compensation in the prior Chapter 11 proceeding, provided that he would undertake to represent the client for the agreed fee in this case. Counsel did not elect that option, standing on his "right to receive $3,000 from his clients."
Obviously, this court cannot prevent Mr. Whitehead from collecting and Mr. Riggin from paying the account receivable of $1,901. Were Mr. Riggin to seek other counsel, he would find that the debt would be discharged and the $1,000 compensation sought in this case is as described by Judge Schneider, "unusually high for an individual Chapter 7 case." The fee statement filed by counsel with the petition is rejected. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/627128/ | 10-2425-ag
Jakaj v. Holder
BIA
Videla, IJ
A074 855 359
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12th day of April, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
MIRELLA JAKAJ,
Petitioner,
v. 10-2425-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Mary Elizabeth Delli-Pizzi, Babylon
Village, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; Michael P. Lindemann,
Assistant Director, Office of Immigration
Litigation; Lyle D. Jentzer, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Mirella Jakaj, a native and citizen of Albania, seeks
review of a June 15, 2010, order of the BIA affirming the
July 31, 2008, decision of Immigration Judge (“IJ”) Gabriel
C. Videla denying her motion to reopen. In re Mirella
Jakaj, No. A074 855 359 (B.I.A. June 15, 2010), aff’g No.
A074 855 359 (Immig. Ct. N.Y. City July 31, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case. We review the agency’s
denial of a motion to reopen for abuse of discretion. Kaur
v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
Because Jakaj’s motion to reopen was untimely, she was
required to establish changed country conditions to except
it from the time limit or that the time limit should be
equitably tolled because she received ineffective assistance
of counsel. See 8 U.S.C. § 1229a(c)(7)(C); Cekic v. INS,
435 F.3d 167, 170 (2d Cir. 2006). The agency found that she
established neither, and accordingly denied her motion as
untimely.
2
Jakaj argues that the agency abused its discretion in
failing to consider her evidence about conditions in Albania
and concluding that she did not establish changed country
conditions. This argument is unavailing because the record
does not compel the conclusion that the agency did not
consider Jakaj’s evidence. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 338 (2d Cir. 2006) (providing that
this Court will “presume that [the agency] has taken into
account all of the evidence before [it], unless the record
compellingly suggests otherwise”). Indeed, the agency
explicitly discussed the key parts of Jakaj’s evidence of
changed country conditions: her evidence about general
conditions in Albania and her claim that her uncle was
murdered. While the agency did not explicitly address
Jakaj’s evidence that in 1993 masked men looking for her
confronted her family in Albania or that in 2008 a family
member was attacked by masked men, that evidence did not
show a material change in country conditions, as the 1993
incident occurred before Jakaj’s initial removal hearing and
Jakaj did not present evidence establishing the identity or
motives of the 2008 attackers, or why that incident
established a change. See Matter of S-Y-G-, 24 I. & N. Dec.
3
247, 253 (BIA 2007) (explaining that in evaluating whether
an applicant has established changed country conditions, the
agency “compare[s] the evidence of country conditions
submitted with the motion to those that existed at the time
of the merits hearing below.”).
Having considered her evidence, the agency did not
abuse its discretion in finding that Jakaj did not establish
changed country conditions. When Jakaj first applied for
asylum in 1997 she asserted that the Socialist Party killed
and threatened its opponents. As the agency reasonably
concluded, any evidence that the Socialist Party continued
to perpetrate political violence did not show a change in
country conditions, but at most that conditions had not
changed despite the 2005 election following which the
Socialist Party lost power. As the agency concluded, the
murder of Jakaj’s uncle in 2004, though regrettable,
established only the continued persecution of her family
(while the Socialist Party was in power), not a change in
conditions in Albania.
Jakaj also argues that the agency erred in failing to
reopen her proceedings based on her allegation of
ineffective assistance of counsel. However, because Jakaj’s
4
motion to reopen was filed nearly ten years after her
initial removal order, she was required to show that she
“‘exercised due diligence in pursuing the case’” in order to
toll the time limits on motions to reopen. See Cekic, 435
F.3d at 170 (quoting Iavorski v. INS, 232 F.3d 124, 135 (2d
Cir. 2000)). The agency did not abuse its discretion in
finding that she did not meet this burden because Jakaj
submitted no evidence that she pursued her case in any way
between 1998 and 2008. Id.
Finally, Jakaj was not deprived of due process because
she had an opportunity to present her evidence to the IJ and
BIA in her motion to reopen and the agency did not err in
denying that motion as untimely. See 8 U.S.C.
§ 1229a(c)(7)(C); Li Hua Lin v. U.S. Dep’t of Justice, 453
F.3d 99, 104-05 (2d Cir. 2006) (noting that due process
requires that an applicant receive “a full and fair
opportunity to present her claims”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5 | 01-03-2023 | 04-12-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1583615/ | 31 So.3d 953 (2010)
OFFICE OF INSURANCE REGULATION, Appellant,
v.
LIFE INSURANCE SETTLEMENT ASSOCIATION, Appellee.
No. 1D09-2654.
District Court of Appeal of Florida, First District.
April 9, 2010.
S. Marc Herskovitz, Tallahassee, for Appellant.
Brady J. Cobb and Stephanie Alexander of Tripp Scott, P.A., Ft. Lauderdale, for Appellee.
WOLF, J.
Appellant, the Office of Insurance Regulation (Office), challenges an administrative order finding portions of a proposed rule regulating viatical settlements were invalid. We affirm as to all issues except one. The administrative law judge erred in finding a portion of the proposed rule which requires viatical settlement providers to document changes to the provider's method of operation in an annual report was invalid.
*954 Appellee, Life Insurance Settlement Association, challenged portions of an annual report to be filed by viatical settlement providers which was incorporated by reference in proposed rule 69O-204.030(1)(a). This opinion addresses Interrogatory 1.d., contained in the annual report. This interrogatory required viatical settlement providers to answer, "[s]ince the latter of the date of application or the last annual report filed with the Office has there been any change in the Provider's: . . . d. Method of operation as described in its most recent plan of operations filed with the Office." If answered "yes," the interrogatory required supporting documentation be attached.
The specific authority cited for the proposed rule was section 626.9925, Florida Statutes, which states the Financial Services Commission, of which the Office is a part, "may adopt rules to administer this act, including . . . rules providing for the collection of data. . . ."
Several statutes were cited as laws implemented by the proposed rule, including section 626.9913(2), which requires viatical settlement providers to file an annual report "containing information the commission requires. . . ." Also cited as a law implemented was section 626.9912(3)(b)-(c), which requires that in an application for licensure as a viatical settlement provider, a provider must submit:
(b) A copy of the applicant's basic organizational documents, if any, including the articles of incorporation, articles of association, partnership agreement, trust agreement, or other similar documents, together with all amendments to such documents.
(c) Copies of all bylaws, rules, regulations, or similar documents regulating the conduct of the applicant's internal affairs.
Section 626.9912(5) provides upon the filing of an application, "the office shall investigate each applicant and may issue the applicant a license if the office finds that the applicant: (a) Has provided a detailed plan of operation."
The ALJ found Interrogatory 1.d. enlarged the specific provisions of law implemented as contemplated by section 120.52(8)(c). The ALJ determined although section 626.9912(3) gave the Office the authority to require certain information from applicants, this authority did not extend to permit the Office to seek this information from licensees filing annual reports.
Clearly the organizational information required in an application under section 626.9912(3), which is characterized as a "plan of operation" in section 626.9912(5), is the same information to which Interrogatory 1.d. refers as the "[m]ethod of operation as described in its most recent plan of operations filed with the Office."
To read section 626.9912(3) in this limited manner, as giving the Office only the authority to require this information from applicants, would essentially render this section meaningless. Nothing would prevent a viatical settlement provider from filing an application and then immediately changing its method of operation, making the information in the application obsolete. Once the Legislature determined it was important for the Office to have information concerning settlement providers' method of operation, it necessarily contemplated that the Office would be apprised of any substantial change. Therefore, because the Office has the authority to receive information concerning a viatical settlement provider's method of operation pursuant to section 626.9912(3), the proposed rule did not enlarge the specific provision of law implemented by requiring updates when this information changes.
*955 For the foregoing reasons, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.
WEBSTER and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585388/ | 508 So.2d 87 (1987)
Frank JUROVICH, Sr.
v.
Michael CATALANOTTO, et al.
No. 87-C-1096.
Supreme Court of Louisiana.
June 19, 1987.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918727/ | 411 B.R. 516 (2009)
In the matter of William M. BLOCKER, Jr., Debtor.
Cale Blocker, Debtor.
Blocker Farming Enterprises, L.L.C., Debtor.
Lynn S. Wyatt And Wyatt Processing, L.L.P., Movants.
v.
William M. Blocker, Jr., Cale Blocker, and Blocker Farming Enterprises, L.L.C., Respondents.
Nos. 09-60002, 09-60003, 09-60004.
United States Bankruptcy Court, S.D. Georgia, Statesboro Division.
June 5, 2009.
*517 J. Michael Hall, Hall & Kirkland, PC, Statesboro, GA, for Debtors.
A. Stephenson Wallace, Augusta, GA, Trustee.
MEMORANDUM AND ORDER ON MOTION FOR RELIEF FROM STAY
LAMAR W. DAVIS, Bankruptcy Judge.
FINDINGS OF FACT
Debtors Cale Blocker ("Cale"), William M. Blocker, Jr. ("Bill"), and Blocker Farming Enterprises, LLC ("Blocker Fanning") filed the present Chapter 12 case on January 5, 2009. Movants Lynn S. Wyatt ("Wyatt") and Wyatt Processing, LLP ("Wyatt Processing") seek relief from the automatic stay. The essence of the motion is that an order in Cale and Bill's previous bankruptcy required that they pay Wyatt and Wyatt Processing $2,462,799.81 in several installments. Upon default on said payments, Cale and Bill agreed to waive any protection under the automatic stay in any future bankruptcies. Motion, Dckt. No. 45 (April 6, 2009).
Prior to this filing, Cale had filed three previous bankruptcies; (1) Case No. 99-60968 was filed on November 1, 1999, in his name and in the name of Blocker Farms, and was terminated on April 17, 2000; (2) Case No. 00-60380 was filed on May 1, 2000, in his name and Blocker Farms, and was terminated on April 20, 2001; and (3) Case No. 06-60547 was filed individually on November 6, 2006, and terminated on November 4, 2008. Bill had *518 filed one previous Chapter 12 case on November 6, 2006, which was terminated on May 20, 2008. See Exhibit 4. Blocker Farming is a new entity that is 5% owned by Cale and 95% owned by Bill.
Cale, Bill, and Blocker Farming's current bankruptcies are being jointly administered. However, they all filed separate petitions and the cases have not been substantively consolidated. Blocker Farming's petition states that it does not own any real property. See Case No. 09-60004, Dckt.No. 1, Schedule A. Cale's petition states he owns 176.46 acres (Kennedy Farm) in Evans County and 110.72 acres (Griner Farm) in Evans County, and Bill's petition states he owns 504.96 acres in Tattnall County. See Case Nos. 09-60003 & 09-60002, Dckt.No. 1, Schedule A.
In Cale and Bill's 2006 bankruptcies, Wyatt filed a secured claim in the amount of $2,612,253.98, and Wyatt Processing filed an unsecured claim in the amount of $1,238,750.55. Claim Nos. 10 and 13 in Case No. 06-60547 & Claim Nos. 7 and 11 in Case No. 06-60546. On March 26, 2007, Cale and Bill each filed objections to both claims arguing that the amount due to Wyatt was "in excess of the amounts rightfully due said creditor" and that they were "not indebted to [Wyatt Processing] in any amount." See Objections, Case No. 06-60547, Dckt.Nos. 38 & 39; Case. No. 06-60546, Dckt.Nos. 39 & 41. On April 11, 2007, Wyatt and Wyatt Processing filed a response and requested a hearing on Debtors' objections. Response, Case No. 06-60547 & Case No. 06-60546, Dckt.No. 55.
After several continuances of the hearing on the objection, Cale filed a Motion to Sell Real and Personal Property, which was amended several times. See Motion, Case No. 06-60547, Dckt.No. 101 (October 9, 2007); Amended Motions, Dckt.No. 104 (October 19, 2007) & 106 (November 5, 2007). The final Amended Motion to Sell was filed on December 7, 2007. That Motion stated that the disputed amounts of Wyatt and Wyatt Processing had been resolved. Furthermore, Cale and Bill had received two binding offers to purchase portions of their farming enterprise. The first offer was for $400,000.00 and involved the sale of approximately 17 acres of Cale and Bill's property and adjoining packing shed and related equipment located therein. Cale and Bill also received another offer for the purchase of approximately 216 acres of woodland and ponds for the price of $600,000.00. Cale and Bill sought approval from the Court to sell the property free and clear of the liens and to pay the proceeds from the sale to Wyatt and Wyatt Processing. Third Amended Motion, Dckt.No. 117.
On January 2, 2008, this Court signed an order granting the motion. Order, Dckt. No. 123. Several months later, Wyatt, Wyatt Processing, Cale, and Bill entered into a consent order, which I approved and filed of record. It reflected the previously approved sale and settled all other issues between the parties:
1. Cale Blocker shall be allowed to sell approximately 17 acres of the debtor's property together with a packing shed and related equipment located on said property as well as an additional tract of land consisting of approximately 216 acres of woodland and ponds. Said 216 acres being a portion of the 332.95 acre parcel of land on which Lynn S. Wyatt holds a first lien position. The sale of said property shall take place on or before the 31st day of December 2007. Lynn S. Wyatt is to receive the net proceeds in the amount of $1,000,000.00 from said sale.
. . . .
4. Cale Blocker shall pay to Lynn S. Wyatt the sum of $800,000 together with interest at a rate of 8% on the 31st day *519 of December, 2008. Cale Blocker agrees to give notice to Lynn S. Wyatt by November 1, 2008 if said payment cannot be made to allow Wyatt to foreclose on the remaining 332.95 acres of property owned by Cale Blocker. At such time Wyatt will be allowed to begin foreclosure proceedings in anticipation of said default.
5. The remaining balance of approximately $1,000,000.00 shall be paid on or before the 31 st day of December, 2009
. . . .
6. William M. Blocker, Jr. shall dismiss his pending bankruptcy and give to Lynn S. Wyatt a deed in lieu of foreclosure to be held in trust until a default shall occur under the terms of this Order, if the indebtedness is satisfied, said deed shall be returned.
7. Lynn S. Wyatt and Wyatt Processing, LLP (the "Wyatts") shall retain their existing liens on property of Cale Blocker and William Blocker until all monies are paid ...
8. Whenever a default shall occur under the terms of this Order, Lynn S. Wyatt and Wyatt Processing, LLC shall be allowed immediately, without any further order of the Court, to enforce their security interest in the property set forth in the deeds to secure debt and immediately take all steps necessary and allowable under state law.
9. Except as noted above all other claims of the Wyatts or Oscar Wyatt are deemed withdrawn and disallowed. The provision of this Order shall apply in the instant bankruptcy proceedings as well as any future case(s) filed by either of the debtors such that the debtors waive any protection under the automatic stay in the event of a default in the payments outlined above.
Order, Dckt.No. 158 (March 7, 2008 nunc pro tunc December 7, 2007).
Cale paid the $1,000,000 by December 31, 2007. On March 18, 2008, Bill voluntarily dismissed his case. Motion to Dismiss, Dckt.No. 127. After filing a Chapter 12 plan but prior to confirmation, Cale voluntarily dismissed his case on September 17, 2008. Motion to Dismiss, Dckt. No. 203.
In December 2008, Movants began foreclosure proceedings under Georgia state law. Notices of the foreclosure ran in the Claxton Enterprise and Glennville Sentinel on December 11, 18, 25, and January 1. Wyatt did not receive the $800,000 payment that was due on December 31, 2008. Prior to the foreclosure date, Debtors filed for Chapter 12.
CONCLUSIONS OF LAW
Debtors assert that the pre-petition waiver of the automatic stay in the Consent Order is not enforceable.[1] I disagree. The Consent Order entered in the previous bankruptcy provided relief for Wyatt and Wyatt Processing as protection if Cale or Bill failed to perform their duties as laid out in the Consent Order. It is undisputed that Cale and Bill consented to the Consent Order, were represented by counsel, and were aware of the prospective relief granted to Wyatt and Wyatt Processing. The consent order was signed by me, was not appealed, and became final. "Accordingly, [Wyatt and Wyatt Processing are] collaterally estopped from attacking the validity and enforceability of the *520 Consent Order."[2]Daniels v. J.P. Morgan Chase Bank, 2006 WL 897211, at *2 (E.D.Va. April 5, 2006); see Celotex Corp. v. Edwards, 514 U.S. 300, 313, 115 S.Ct. 1493, 1501, 131 L.Ed.2d 403 (1995)(held that when a bankruptcy court with proper jurisdiction issues an injunction, the parties are expected to obey that order until it is modified or reversed by the bankruptcy court and can not collaterally attack that order in the district court); In re Edwards, 222 B.R. 527, 528 (Bankr.E.D.Va. 1998)(held that debtor was estopped from collaterally attacking a consent order that provided prospective relief from stay because debtor consented to said order, did not appeal and the consent order was valid); Abdul-Hasan v. Firemen's Fund Mortgage (In re Abdul-Hasan), 104 B.R. 263, 267-68 (Bankr.C.D.Cal.1989)(held that debtor was collaterally estopped from objecting to relief from stay in the current case because debtor failed to appeal the stay relief order granting prospective relief in the previous case).
Even if collateral estoppel does not prevent Debtors from challenging the enforceability of the Consent Order, the bankruptcy court still had the ability to provide prospective relief in the prior case under 11 U.S.C. § 105. This Court is allowed under 11 U.S.C. § 349(a) and § 105(a) to restrict a debtor's ability to file subsequent petitions. "In contrast to a dismissal with prejudice to the future filing of a bankruptcy petition, an order granting a particular secured creditor prospective relief from the automatic stay does not deny the debtor future access to the bankruptcy court." In re Hamer, 2000 WL 1230496, at *6-7 (E.D.Pa. Aug. 18, 2000)(citing In re Felberman, 196 B.R. 678, 683 (Bankr.S.D.N.Y.1995); In re Abdul-Hasan, 104 B.R. at 267). "If prohibiting future filings may be deemed 'necessary or appropriate to carry out the provisions of [the Bankruptcy Code under § 105(a) ],' so must the more moderate remedy of granting prospective relief from the automatic stay." Id. at *7.
I find that prospective relief was appropriate. The Wyatt and Wyatt Processing claims were reduced from $3.4 million to $2.8 million, and a repayment schedule was agreed to. That resolution coupled with the provision for prospective stay relief served the salutary purpose of reaching finality in litigation, judicial economy, and compromise. It was approved by this Court. Failing to enforce it would make a charade of the entire process and lead parties to be disinclined to settle cases. That path I refuse to follow.
ORDER
Pursuant to the foregoing Findings of Fact and Conclusions of Law, IT IS THE ORDER. OF THIS COURT that the Motion for Relief from Stay is hereby GRANTED.
NOTES
[1] Debtors argue that this Court should use the four part test found in In re Desai, 282 B.R. 527 (Bankr.M.D.Ga.2002) (Laney, J.) to determine whether the pre-petition waiver of the stay is valid. While the test enumerated by my good colleague is well reasoned, 1 decline to apply it here, for I resolve this issue in light of the principles of collateral estoppel, while his analysis ultimately turned on issues of equity in property and feasibility, classic stay relief factors.
[2] Debtors argue that Wyatt and Wyatt Processing were the ones who breached the Consent Order. Debtors assert that Cale and Bill did not provide notice in November 2008 to Wyatt and Wyatt Processing that Debtors would be unable to make their December 31, 2008 payment. Debtors state Wyatt and Wyatt Processing, even without this notice, initiated foreclosure proceedings in November 2008, an act which prevented Debtors from selling parts of the property and making the December 2008 payment. This argument, even if meritorious, can be raised in state court. That court has concurrent jurisdiction to entertain challenges to non-judicial foreclosures. By obtaining the consent order from this Court, Debtors waived their right to a federal forum when they agreed, in effect, that any foreclosure would not be stayed. In the absence of a stay, the state court forum is the only one available. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440527/ | 967 N.E.2d 503 (2008)
382 Ill. App. 3d 1226
359 Ill. Dec. 773
IN RE ADOPTION OF PAYTON G.
No. 4-08-0112.
Appellate Court of Illinois, Fourth District.
July 7, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583578/ | 427 So. 2d 911 (1983)
Jennifer S. RONSTADT, Plaintiff-Appellant,
v.
BEGNAUD MOTORS, INC., Defendant-Appellee.
No. 82-485.
Court of Appeal of Louisiana, Third Circuit.
February 3, 1983.
Writ Denied March 25, 1983.
*912 Charles Brandt, Lafayette, for plaintiff-appellant.
Pugh & Boudreaux, Donlon Pugh, Lafayette, for defendant-appellee.
Before STOKER, YELVERTON and KNOLL, JJ.
STOKER, Judge.
Is an automobile repairman who performs faulty work responsible to a driver criminally attacked when the vehicle breaks down on the open road?
The plaintiff sues defendant, Begnaud Motors, Inc., for damages she received in the course of a rape, beating, and robbery which occurred while plaintiff was stranded in her employer's automobile. Plaintiff had just previously picked up the vehicle from the defendant, which had done repair work on the vehicle.
Plaintiff appeals from the trial court's ruling sustaining defendant's peremptory exception of no cause of action. We affirm.
The plaintiff contends on appeal that her petition states causes of action based on two theories of recovery, tort and breach of contract. With reference to the breach of contract theory, we find that plaintiff has not alleged damages arising out of failure to perform the contract. With reference to the tort theory, the risk to which the plaintiff was exposed did not fall within the scope of the duty owed by the defendant to the plaintiff.
FACTS
Inasmuch as we must accept the allegations contained in plaintiff's petition as true for the purposes of reviewing the validity of the exception, we quote from the petition as follows:
(2)
"On or about April 14, 1981, petitioner Jennifer S. Ronstadt, was employed by Sullair Gulf States, Inc., a subsidiary of Sullair Corporation. She had been provided with a company vehicle, particularly a 1981 Oldsmobile, Model 88, which she brought to Begnaud Motors, Inc., to have certain repair work done, particularly to replace an air conditioner belt because the air conditioner was not working.
*913 (3)
"While the vehicle was in the shop being repaired, a plug which fit into the alternator of the subject vehicle was disconnected, apparently in order to effect repairs.
(4)
"The employee or employees who repaired the vehicle in question failed to replace this plug.
(5)
"Petitioner received her vehicle from Begnaud Motors and was advised that it had been repaired satisfactorily.
(6)
"At approximately 5:00 P.M. on April 14, 1981, after taking delivery of the subject vehicle from Begnaud Motors, Inc., petitioner began a trip to New Orleans, Louisiana. When petitioner reached the Gramercy exit she turned her lights on and her car slowed down as if it were going to stop and her lights went out. She turned off on the Gramercy exit in an effort to get to a mechanic to have the problem resolved.
(7)
"After traveling a number of miles in a vain search for help, she made a U-turn and started back towards the interstate. The car stopped running and completely died several miles from the interstate.
(8)
"Petitioner pulled the vehicle onto the shoulder of the road and stopped. A few moments later a man in a pickup truck approached her under the pretense of rendering aid. At the time her vehicle had stopped she had her windows approximately one half rolled down and the individual who had stopped, purportedly to render aid, asked her to pull the latch on her hood so that he could examine her engine compartment. When she did so, he reached inside the door and pulled open the lock, and opened the door.
(9)
"Producing a pistol, he shoved it in her face and threatened to kill her if she did not cooperate. He shoved her violently around in the interior of the vehicle onto the passenger floor side. He stole petitioner's valuables, and after twisting petitioner's neck back and forth by jerking her by the hair, this unknown male subject raped petitioner.
(10)
"This unknown male subject then made good his getaway.
(11)
"Soon thereafter three men came to her rescue, and, examining her vehicle, found that the plug connecting to the alternator had not been replaced at the repair shop by the employees of Begnaud Motors.
(12)
"Replacing the plug, these men gave her a jump start and escorted her back to the interstate where she was able to flag down an officer of the law.
(13)
"The above described injury to petitioner resulted solely from the negligence of the defendant in the following particulars:
(A) In failing to properly repair petitioner's vehicle;
B) In failing to discover that the alternator plug was disconnected;
C) In failing to reattach the alternator plug to the alternator;
D) In disconnecting the plug to the alternator;
E) In failing to do what they could have done to prevent petitioner's car from breaking down;
F) In causing petitioner's car to malfunction.
*914 (14)
"Defendant is also liable to petitioner for breach of contract under Article 1930 of the Louisiana Civil code for all damages which petitioner has sustained by the default of defendant.
(15)
"As a result in the above described negligence petitioner suffered severe and painful personal injuries, including, but without limitation, acute traumatic cervical strain, acute traumatic upper thoracic sprain, acute traumatic cervical brechial syndrome, cervical and upper thoracic myofacitis, myalgia, a reoccurance of a dormant condition known as diffuse gastritis and irritable bowel disorder with mixed emotional features including anxiety, depression, with some psyiophysicologic muskuloskeletal components.
(16)
"Although petitioner had attempted to work, she has been diagnosed as completely disabled at this time.
(17)
"Petitioner has been hospitalized and treated by numerous physicians in connection with the injuries suffered.
(18)
"At the time of her injury, petitioner was engaged in the business of oilfield sales and was, in addition to her salary of $1,600 per month, paid a commission on all sales together with being provided with a company car, medical insurance, and an expense account which petitioner alleges is the equivalent of a ____
(19)
"Petitioner has suffered severe pain and endured keen mental anguish as a result of the negligence of defendant.
(20)
"Petitioner avers that she is entitled to the following amounts from the defendant as a result of the accident and negligence set forth herein above.
1) Hospital expenses, past
and future $20,000.00
2) Surgeons services, past
and future 20,000.00
3) Physical pain and suffering 500,000.00
4) Loss of wages to date of
filing suit 24,000.00
5) Permanent disability and
loss of the enjoyment of
life 500,000.00
6) Loss of future wages 1,440,000.00
7) Mental anguish and pain 500,000.00
8) Loss of personal items stolen 7,245.00
_____________
TOTAL $3,011,000.00
"WHEREFOR, petitioner prays that after due proceedings, there be judgment herein favor of petitioner, JENNIFER S. RONSTADT, and against the defendant, BEGNAUD MOTORS, INC., in the sum of $3,011,000.00 together with legal interest from date of judicial demand and for all costs of these proceedings."
BREACH OF CONTRACT THEORY
We conclude that plaintiff's petition does not state a cause of action for breach of contract. To properly state such a cause of action a plaintiff must allege a violation of the contract and that damages were sustained as a result. LSA-C.C. art. 1930. Damages recoverable for breach of contract are set out in LSA-C.C. art. 1934, which is quoted in pertinent part as follows:
"Art. 1934. Measure of damages for breach of contract
"Art. 1934. Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not *915 meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will."
* * * * * *
Since plaintiff Ronstadt alleged no fraud or bad faith, defendant's liability for the damages set out in paragraph twenty of plaintiff's petition must either have been contemplated or must reasonably be supposed to have entered into the contemplation of the parties. We do not believe the possible liability of the defendant for the damages so set forth in plaintiff's petition could have entered into the minds of the plaintiff and defendant's employees at the time the contract for repair was entered into. It may be that the parties contemplated such items of damages as towing charges, additional repair charges, or rental car charges in the event that defendant breached the contract. However, we do not believe damages sustained as the result of a beating, rape and robbery of the plaintiff would reasonably have been within the contemplation of the parties.
TORT THEORY
To reverse the trial court and reinstate the plaintiff's case, we must find that, accepting the facts as alleged in the petition to be true, Begnaud Motors was negligent, the negligence was a cause-in-fact of the accident and it was a legal cause of the accident. This involves a duty-risk analysis. Tilley v. Mount Vernon Ins. Co., 411 So. 2d 72 (La.App. 3rd Cir.1982).
Using a duty-risk analysis, we conclude that because the risk of injury from the violent acts from a third person did not fall within the duty of the defendant to properly repair the automobile, defendant's alleged negligence is not the legal cause of plaintiff's injuries. Therefore, the plaintiff has failed to state a cause of action under a tort theory of recovery.
Without doubt the defendant's alleged failure to replace the alternator plug was a cause-in-fact of the injuries allegedly suffered by the plaintiff, and the alleged act was the breach of a duty the defendant owed plaintiff (negligence). However, the duty breached must have been intended to protect against the particular risk of harm to which the plaintiff was exposed and which caused her injuries.
We conclude that the risk that an unknown person would commit violent and harmful acts against the plaintiff does not fall within the scope of protection of defendant's duty owed to plaintiff. Although it is foreseeable that the plaintiff could suffer harm in this manner, foreseeability is not the only criterion to be considered. Whether or not the risk falls within the scope of the duty owed must be determined by the court on a case-by-case basis, with each court weighing the policy factors it considers important. Tilley v. Mount Vernon Ins. Co., supra, and Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So. 2d 620 (La.1972).
In this case, the policy considerations tip the scales in favor of affirmance of the trial court. The plaintiff's alleged damages were sustained in a manner not easily associated with the traditional risk of faulty automobile repairs. Ordinarily, when a mechanic performs repairs negligently, the result is that a plaintiff suffers damage from a collision with another vehicle or a stationary object. The alleged crimes committed against plaintiff only remotely occurred in time and distance with respect to the alleged acts of the defendant. The damages alleged would not have been incurred but for the unpredictable acts of a third person. Most courts have been reluctant to hold a defendant liable for the acts of a third person. Hill v. Lundin & Associates, Inc., supra. Although we deplore the wrong done to plaintiff, we conclude that the trial court was correct in dismissing the plaintiff's suit.
For the foregoing reasons the trial court correctly sustained defendant's exception of no cause of action. The judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918649/ | 411 B.R. 636 (2009)
In re Larry Weldon TREADWELL and Carole Elaine Treadwell, Debtors.
Larry Weldon Treadwell and Carole Elaine Treadwell, Plaintiffs,
v.
Glenstone Lodge, Inc., Defendant.
Glenstone Lodge, Inc., Counter-Claimant,
v.
Larry Weldon Treadwell and Carole Elaine Treadwell, Counter-Defendants.
Bankruptcy No. 08-61627. Adversary No. 08-6058.
United States Bankruptcy Court, W.D. Missouri.
June 16, 2009.
*640 Kenneth P. Reynolds, Reynolds, Gold & Grosser, Springfield, MO, for Plaintiffs/Counter-Defendants.
Lee J. Viorel, III, Lowther Johnson, LLC, Springfield, MO, for Defendant/Counter-Claimant.
MEMORANDUM OPINION
ARTHUR B. FEDERMAN, Bankruptcy Judge.
Debtors Larry and Carole Treadwell filed this adversary proceeding to avoid Defendant Glenstone Lodge, Inc.'s judicial lien on their home. Glenstone Lodge filed a Counterclaim against the Debtors, seeking a determination that the Debtors' debt to it is nondischargeable under 11 U.S.C. § 523(a)(2), (a)(4), and (a)(6). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons that follow, judgment will be entered in favor of the Debtors as to both the lien avoidance and the nondischargeability action.
I. FACTUAL BACKGROUND
Larry and Carole Treadwell are equal owners in a travel agency business known as Memory Travel. As part of that business, Carole Treadwell organizes trips for groups of people, such as one-day bus excursions to area casinos and occasional cruises for small groups of people. In April 2005, Carole began organizing a trip to Gatlinburg, Tennessee, which she referred to as the "Tennessee Redhatters 2006 Spring Event," which was to occur in April of the following year. The Red Hat Society, Inc. (the "Red Hat Society") is a corporation with social chapters, primarily for women over age fifty, which organizes events and gatherings for its members around the country. Although Carole advertised the trip to members of the Red Hat Society, and she used the corporation's logos on her advertisements and correspondence, the trip was not officially *641 sanctioned by the Red Hat Society.[1]
As she began to put the trip together, Carole contacted the Gatlinburg Department of Tourism in April 2005 to assist her in finding appropriate lodging and meeting space for the event. The Department of Tourism sent out a Sales Lead to hotels with facilities capable of accommodating the group, including Glenstone Lodge. After receiving the Sales Lead, Glenstone Lodge's Director of Sales at the time, Claudette Geoffrion, contacted Carole with a proposal for accommodations. Carole and Claudette communicated for the following several months as to the number of sleeping rooms and in making arrangements for various activities to occur during the weekend event.
On June 24, 2005, Claudette and Carole each signed an initial Rooms Contract for a total of 150 rooms over the course of April 20 to April 23, 2006. The Rooms Contract required Carole to pay a $250 deposit when the Contract was signed, which she paid. The Contract further required that the first night's room and tax deposit be paid when Carole submitted the rooming list (a list of rooms, with the names of the ladies staying in each room), which was due by March 31, 2006, and that the balance be paid at check-in. The trip included lodging, organized breakfasts with entertainment, a Hawaiian luau, and a 50's-style sock hop dinner banquet, all at the lodge. It also included day trips and an off-site group lunch in Gatlinburg. Carole made all of the arrangements for the lodging, food, and entertainment. The ladies purchased the trips from Carole, selecting the type of room they wanted and the events they wished to attend. Carole stated on more than one occasion to Glenstone Lodge during the organizational process that the ladies were to book and pay for the trip through her, rather than booking and paying for their rooms individually. Carole would then pay Glenstone Lodge. The advertised trip proved to be very popular with the Red Hat ladies such that, by the time of the trip, Carole had booked approximately 429 room nights at the Lodge over the course of the long weekend of April 20 to 23.
By all accounts, the event was highly successful. The Treadwells stated at the time, and still state, that they were extremely satisfied with Glenstone Lodge's services. The Treadwells approved all charges for lodging and services at the Lodge.
Although the contract had required the Treadwells to pay a deposit for the first night's rooms three weeks prior to the event, and to pay the balance at check-in, they did not do so. In fact, the Treadwells left the Glenstone Lodge on either Sunday, April 23, or Monday, April 24, 2006, without checking out at the front desk or notifying anyone of their departure, and without paying for any of the charges, except for the initial $250 deposit. The charges totaled over $60,000.
On Monday, April 24, upon discovering that the Treadwells had left without paying the tab, Glenstone Lodge's employees immediately began attempts to contact them for payment. Carole finally responded to an e-mail on about April 26, at which time Carole stated that she had turned over the bill to her bookkeeper, indicating that she would pay it after some minor adjustments were made to the bill. Glenstone Lodge was extremely anxious for payment because it could not make its *642 payroll that Friday without it. On April 26, 2006, as partial payment, Carole Treadwell issued a check from the Treadwell Family Revocable Living Trust's bank account[2] to Glenstone Lodge, in the amount of $20,000, and overnighted it to the Lodge. However, Glenstone Lodge did not receive the check the following day. As a result, on or about April 27, Carole arranged for her bank to wire $15,000 to the Lodge, with the promise of a $5,000 check to immediately follow. After Glenstone Lodge did not receive the promised $5,000 check, it attempted to cash the $20,000 check, but Carole had issued a stop payment on it when she wired the $15,000.
Carole testified at trial that she did not have the money to pay the bill at Glenstone Lodge. She had collected some pre-payments and deposits from the ladies in the months prior to the event, but she had used all of that money by end of the event to pay for the entertainers, the lunch in Gatlinburg, and other costs associated with the event. She also candidly admitted that she had used $9,850 of the deposits and prepayments for her mother's burial expenses in January 2006. She had hoped to collect enough money at the actual event, from the ladies who had not pre-paid, to pay Glenstone Lodge's bill. However, as discussed more fully below, Carole knew long before the event that she had underestimated the costs associated with the trip, such that the price she charged the ladies for their individual bookings would not be enough to cover her costs. Consequently, in addition to collecting payment from the ladies for this event, Carole testified that she was counting on revenues coming in from people at the Lodge booking possible future events. As it turned out, Carole collected only about $20,000 during the actual 2006 Spring Event, which she deposited into the Treadwell Family Trust account when she returned home from Gatlinburg. Ultimately, only about $15,000 of those deposits cleared. Those deposits were the source of the $15,000 wire to Glenstone Lodge. She said she had to stop payment on the $20,000 check because the account did not contain sufficient funds to cover it after making the $15,000 wire transfer. The Treadwells made no other payments to Glenstone Lodge after that wire transfer.
Glenstone Lodge sued the Treadwells and their Trust, asserting (i) fraud pursuant to § 62-7-107(b) of the Tennessee Code;[3] (ii) violations of the Tennessee Consumer Protection Act; (iii) conversion; (iv) breach of agreement; (v) fraud, promissory fraud, mail and wire fraud; and (vi) violation of various provisions of the Tennessee Code based on the stop payment on the $20,000 check. The lawsuit prayed for judgment in the amount of $50,000, asked that the judgment be trebled pursuant to the Tennessee Consumer Protection Act, and sought recovery of fees and costs. Glenstone Lodge also initially named The Red Hat Society, Inc. as a defendant in the lawsuit, but after the Red Hat Society denied any involvement in the trip, and cross claimed against the Treadwells, Glenstone Lodge dismissed it as a defendant.
*643 When the Treadwells and their Trust failed to answer in the lawsuit, the Chancery Court for Sevier County, Tennessee, entered a default judgment against each of them in the amount of $153,611.44,[4] plus costs. Glenstone Lodge registered its judgment in Missouri, creating a lien against the Debtors' residence. Glenstone Lodge seeks a determination that the debt is nondischargeable under § 523(a)(2)(A), (a)(4), and (a)(6). The Treadwells ask that the judgment lien be avoided.
II. GLENSTONE LODGE'S CLAIMS FOR NONDISCHARGEABILITY
11 U.S.C. § 523(a)(2)(A)
Section 523(a)(2)(A) provides that a discharge under § 727 does not discharge an individual debtor from any debt "for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . . false pretenses, a false representation, or actual fraud."[5]
Normally, exceptions to discharge are to be narrowly construed against the creditor and liberally against the debtor, thus effectuating the fresh start policy of the Code. However, the Bankruptcy Code has long prohibited debtors from discharging liabilities incurred on account of their fraud, embodying a basic policy animating the Code of affording relief only to an honest but unfortunate debtor.[6]
Fraud may be proved by direct or circumstantial evidence, since palpable evidence of the mental state of an individual is rarely, if ever, available.[7]
Actual Fraud
At the outset, Glenstone Lodge points to § 62-7-107(b) of the Tennessee Code, which formed one of the bases for the lawsuit in Tennessee, and which provides that, inter alia, it is "prima facie evidence of intent to defraud" to procure accommodations or restaurant services by false pretense or to have procured accommodations or restaurant services and thereafter to abscond without paying or offering to pay for such accommodations. As I stated in the Order Denying [Glenstone Lodge's] Motion for Summary Judgment, because the Tennessee Judgment did not specify on which of the pleaded theories it was based, this Court cannot apply collateral estoppel effect to that Judgment. Glenstone Lodge nevertheless asserts that the Treadwells' conduct falls within that statute and, therefore, it has met the burden of making a prima facie case for fraud, including the element of justifiable reliance. However, "the issue of nondischargeability [is] a matter of federal law governed by the terms of the Bankruptcy Code."[8] Accordingly, this Court is not bound by the Tennessee statute, and must instead look to bankruptcy law to determine whether the debt is nondischargeable for fraud.
In order to prevail on a nondischargeability cause of action for actual fraud under § 523(a)(2)(A), Glenstone Lodge must prove, by a preponderance of *644 the evidence: (1) that the Treadwells made representations; (2) that at the time they made the representations they knew they were false; (3) that they made such representations with the intention and purpose of deceiving Glenstone Lodge; (4) that Glenstone Lodge justifiably relied on such representations; and (5) that Glenstone Lodge sustained the alleged loss and damages as a proximate result of the representation having been made.[9]
Both before and during the event, the Treadwells' communications with Glenstone Lodge were primarily with Claudette. As a result, she was the person who would have had the most directly relevant conversations with the Treadwells regarding payment, but she did not testify at trial. However, as to the communications prior to the event, Glenstone Lodge produced several e-mails in which Carole and Claudette discussed the payment arrangements. Carole stated on more than one occasion that the ladies were to pay her for their individual trips and that she would then pay Glenstone Lodge. For example, in an e-mail dated May 5, 2005, Carole told Claudette not to worry about Carole's commission, that each of the ladies would make her reservation directly through Memory Travel, and that she would pay the Lodge "via one check." This, I find, was an express representation by Carole that the Treadwells would pay Glenstone Lodge for the lodging and services to be provided.
As to the representations regarding payment that the Treadwells made throughout the actual event, the undisputed testimony was that Claudette was, again, the person who dealt most directly with the Treadwells while they were at the Lodge. Although one would certainly suspect that Claudette asked the Treadwells about payment throughout the event, and that the Treadwells made numerous express representations to her about payment, since Claudette did not testify, there was no evidence of such express representations at the Lodge itself. However, two other employees of Glenstone Lodge, who were present at the Lodge and spoke with the Treadwells over the course of that weekend, Ursula House and Rita Marshall, did testify at trial. Neither of them testified that the Treadwells made an express representation about payment directly to them, personally, during the event. However, Ms. House, who was, at the time, an assistant manager at the Lodge and was present during the Redhatters Spring Event, testified that she was aware that when anyone at the Lodge asked the Treadwells about payment, both at checkin and throughout the event, the Treadwells responded with reasons why they had not "finalized numbers," and stating that the Lodge would be paid by one check when they checked out. Based on that, Ms. House said, the staff agreed to let them stay without prepayment.
Nevertheless, although there was no direct evidence of express representations during the event, I find that both of the Treadwells made at least implied representations, both when they took the keys at check-in and throughout the event, that they would pay the tab before leaving the Lodge, even though, as discussed below, at least Carole knew that they did not have the money to do so. "It is well established that a debtor's silence as to a material fact or when there is an affirmative duty to speak constitutes a representation for the purposes of finding fraud under § 523(a)(2)(A)."[10] Based on the evidence, *645 I find that the Treadwells made representations, both express (by Carole before the event) and implied (by both of them during the event), to Glenstone Lodge that they would pay the Lodge for its services. Those representations were false.
Glenstone Lodge failed to meet its burden of proving that either of the Treadwells knew, at the time the agreement was made on June 24, 2005, that they would not be able to pay for the rooms. Instead, based on Carole's testimony, I find that she simply underestimated many of the expenses associated with the event. Making an error in business judgment does not mean that a debtor made an intentional misrepresentation. However, at some point prior to the event, Carole did become aware that she was not going to have funds sufficient to pay under the terms of her agreement. Although she testified that she hoped to take in enough unpaid receipts from the ladies as they arrived at the Lodge to pay the bill, she testified that she knew, as early as October 2005, that the price she had charged the ladies for their individual trips was insufficient to cover her costs. Specifically, Carole testified that she had grossly underestimated the cost of the entertainment, decorations, transportation, and other incidentals when she set the individual prices for the trip. For example, she testified that she had estimated the cost of the entertainers based on an experience she had in Branson several years earlier, but the actual cost for the entertainers in Gatlinburg was double or triple what she had estimated. Despite knowing this as early as October, Carole never mentioned to anyone at the Lodge that her receipts would not cover the bill there. In addition, she candidly testified that she spent nearly $10,000 of the money she had received on her mother's funeral expenses in January 2006. Carole testified that she also hoped to take in receipts from the ladies booking possible future events, but her stated expectation that these deposits would be sufficient to cover the $60,000 bill for the Spring Event lacks credibility. As a result, I find that, at least by October 2005, Carole knew full well that she would not be able to pay the bill. From that time on, her representations that she would pay the bill were, therefore, knowingly false.
As to Larry, although it is likely that he was also aware that they did not have the money to pay the bill, there was no actual evidence of that fact. Consequently, although I find that Larry made implied representations about payment, unlike Carole, I cannot find that his representations were knowingly false.
I further find that Carole made the representations that she would pay with the intent to deceive Glenstone Lodge. Carole certainly knew that Glenstone Lodge would not let her check in, and would not provide her with the services for the luau, sock hop, and the breakfasts, without both a promise to pay the bill and a representation that she could pay the bill. This is evidenced by the Lodge's policy of requiring prepayment, which Carole somehow persuaded the Lodge to waive in her case. Indeed, Carole admitted that she was sure the Lodge thought it would be paid by the time they left. Thus, by making the representations that she would pay for the services, Carole intended to induce Glenstone Lodge to provide her with the services for which she could not pay. In addition, Glenstone Lodge was, clearly, damaged as a result of those false representations.
However, I find that Glenstone Lodge has not demonstrated that it justifiably relied on the misrepresentations.
Although the plaintiff's reliance on a misrepresentation must be justifiable. . . this does not mean that his conduct *646 must conform to the standard of a reasonable man. Justification is a matter of the qualities and the characteristics of the particular plaintiff, and circumstances of the particular case rather than of the application of a community standard of conduct of all cases.[11]
Further, "a person is required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation."[12] "It is only where, under the circumstances, the facts should be apparent to one of his knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own."[13]
Glenstone Lodge is a relatively sophisticated plaintiff, as evidenced in part by its representatives who testified at trial. The Lodge's own Contract provided for payment of the first night's lodging three weeks in advance, with the balance due at check-in. Glenstone Lodge's representatives testified that this was their customary contract and there was no evidence that the Lodge had waived that requirement in any situation of this size prior to the Redhatters Spring Event. Most importantly, there was no evidence as to why the Lodge waived the requirement in this instance. Although the apparent association with the Red Hat Society may have lent some legitimacy to the Treadwells as the event's planners, there was no evidence to suggest that Carole advised the Lodge that the Red Hat Society would be responsible for, or otherwise guarantee, payment. Nor was there any evidence that the Lodge confirmed the Red Hat Society's involvement in the event. Moreover, there was no evidence that the Lodge did any sort of background or credit check on Memory Travel or the Treadwells before it permitted them to have the event without the customary prepayment.
Glenstone Lodge further alleges that its reliance was justifiable because the Treadwells appeared, from Carole's e-mails and from the Treadwells' pre-event visit to the Lodge in January 2006, to be sophisticated and to have extensive experience as travel agents. However, based on my review of the e-mails and my observation of the Treadwells at the trial, I cannot agree with Glenstone Lodge that they present themselves as such experienced and sophisticated travel agents that absolutely no investigation or other protection of the Lodge's interests would be called for.
I recognize, as the Bankruptcy Appellate Panel did in In re Guske, that the standard for justifiable reliance is fairly low and that a party may justifiably rely on a misrepresentation even when it could have ascertained its falsity by conducting an investigation.[14] "However, the reliance on misrepresentations known to the victim to be false or obviously false is not justified; falsity which could have been discovered by senses during a cursory glance may not be relied upon. . . . In other words, if there are any warning signs (i.e., obvious or known falsities) either in the *647 documents, in the nature of the transaction, or in the debtor's conduct or statements, the creditor has not justifiably relied on his representation."[15]
Here, the Treadwells' repeated excuses for not complying with the Lodge's contract terms for deposits and prepayment, particularly given the size of the event, should have been an obvious warning sign to the Lodge that they were not in a position to make good on their representations of payment. It may well have been that, had Claudette, who was the employee who dealt with the Treadwells prior to and during the event, been available at trial, she would have been able to testify as to why the Lodge relied on the Treadwells' promise to pay even though they had not made the advance deposit and had not paid the remaining room balance at check-in. However, since Claudette apparently left her employment at the Lodge soon after these events, she was not available at trial. Based on the evidence which was offered, the Lodge extended $60,000 worth of credit to the Treadwells without any investigation whatsoever of their ability to repay, and despite the fact that the Treadwells repeatedly failed, in the weeks leading up to the event, to comply with the contract's terms regarding payment. Glenstone Lodge had many opportunities to protect itself, but for whatever reason, it did not. Because Glenstone Lodge presented no evidence as to why it waived the protections in its contract, and bearing in mind that Glenstone Lodge bears the burden on this issue, I find that its reliance on Carole's representations that she would pay the bill was not justifiable. Consequently, Glenstone Lodge has not met its burden of proving each of the elements of actual fraud under § 523(a)(2)(A).
False Pretenses
Although many courts have blurred the distinction between actual fraud and false pretenses, other courts have recognized a difference.[16] In Field v. Mans, the Supreme Court indicated that there is such a difference because, although it decided that justifiable reliance was the standard for actual fraud, it expressly declined to decide whether the requisite level of reliance would differ in a case of false pretense or representation, but not fraud.[17] If there were no distinction between actual fraud on the one hand, and false pretense or representation on the other, it seems to me that the Supreme Court would not have decided the reliance issue under one, but expressly declined to answer it under the others. Consequently, I conclude that there is a distinction.
A false pretense under § 523(a)(2)(A) involves an implied misrepresentation *648 of conduct intended to create and foster a false impression.[18]
The concept of false pretenses is especially broad. It includes any
intentional fraud or deceit practiced by whatever method in whatever manner. False pretenses may be implied from conduct or may consist of concealment or non-disclosure where there is a duty to speak, and may consist of any acts intended to deceive. It is a series of events, activities, or communications which, when considered collectively, create a false and misleading set of circumstances, or a false and misleading understanding of a transaction, by which a creditor is wrongly induced by a debtor to transfer property or extend credit to the debtor. Silence or concealment as to a material fact can constitute false pretenses. In short, false pretenses can be made in any of the ways in which ideas can be communicated.[19]
This is a case which is based on a contract entered into by Carole on behalf of Memory Travel. That contract contained a promise to pay, and it is the breach of that promise which forms the basis of this dischargeability action. Arguably, the conduct of both of the Treadwells may have created a false and misleading set of circumstances by which Glenstone Lodge was wrongly induced to extend credit to them. However, since this a case that is based on the representations contained in the contract between the parties, as well as other actual and implied representations, I question whether false pretenses would be applicable. It is not logical to argue that false pretenses applies to circumstances where an actual or implied misrepresentation was made, but inadequate proof of reliance was offered. In other words, false pretenses should not be used to circumvent the requirements of actual fraud simply because one of the elements of actual fraud, i.e., justifiable reliance, is not present. Since this case is based upon both actual and implied representations, Glenstone Lodge is obligated to prove some level of reliance on those representations.
The conclusion that Glenstone Lodge is required to demonstrate some level of reliance is supported by the Supreme Court's statement that it did "not mean to suggest that the requisite level of reliance would differ if there should be a case of false pretense or representation but not fraud." This suggests that some level of reliance is required, even in false pretenses cases. Again, however, the Supreme Court declined to answer the question of what level of reliance was required, and I found no authority subsequent to Field v. Mans which has answered that question. As it turns out, I need not decide that question here, either, because the justifiable reliance standard adopted in Field v. Mans is lower than the alternative reasonable reliance considered by the Supreme Court. For the same reasons discussed above as to actual fraud, I find that Glenstone Lodge did not justifiably rely on the Treadwells' false pretenses. Consequently, if the standard is reasonable reliance, Glenstone Lodge clearly did not meet that higher standard, either. Since I hold that Glenstone Lodge was required to prove at least that it was justified in relying on the misrepresentations as to payment, its failure to do so is fatal to any cause of action it may have had for false pretenses.
11 U.S.C. § 523(a)(4)
In order to prevail on a nondischargeability cause of action under *649 § 523(a)(4), Glenstone Lodge must prove that the debt was for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. Glenstone Lodge does not assert a fiduciary capacity existed; rather, it asserts nondischargeability under this provision based on embezzlement or larceny. Those grounds for nondischargeability are described as follows:
Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking. The required elements of embezzlement are: (1) appropriation of funds for the debtor's own benefit by fraudulent intent or deceit; (2) the deposit of the resulting funds in an account accessible only to the debtor; and (3) the disbursal or use of those funds without explanation of reason or purpose. For purposes of section 523(a)(4) it is improper to automatically assume embezzlement has occurred merely because property is missing, since it could be missing simply because of noncompliance with contractual terms.
Larceny is the fraudulent and wrongful taking and carrying away of the property of another with intent to convert the property to the taker's use without the consent of the owner. As distinguished from embezzlement, the original taking of the property must be unlawful. . . .[20]
Neither embezzlement nor larceny applies here because both contemplate the wrongful appropriation or taking of another party's funds or property. Here, the Treadwells did not "take" anything tangible from Glenstone Lodge; rather, the relationship between the parties was a credit transaction whereby Glenstone Lodge provided services in exchange for payment. As a result, I find that § 523(a)(4) does not apply.
11 U.S.C. § 523(a)(6)
In order to prevail under § 523(a)(6), Glenstone Lodge must show that the debt was for a "willful and malicious injury" as that term is defined under bankruptcy law. Willful and malicious are two distinct requirements that Glenstone Lodge, as the party seeking to avoid the discharge of the debt, must prove by a preponderance of the evidence.[21] Willfulness is defined as headstrong and knowing conduct, and malicious is defined as conduct targeted at the creditor at least in the sense that the conduct is certain or almost certain to cause harm.[22] The Treadwells must have acted with the intent to harm Glenstone Lodge rather than merely acting intentionally in a way that resulted in harm.[23]
Even though the evidence was that Carole knew she would not be able to pay the bill, and the conduct was, therefore, "willful," there was no evidence at trial that either of the Treadwells intended to harm Glenstone Lodge. Rather, the evidence was that the Treadwells intended from the beginning to host a successful event at the Lodge, and that they even hoped to have future events there. As unrealistic as it was by the time of the event that they *650 would be able to pay for it, there was no evidence that either of the Treadwells intended that Glenstone Lodge be harmed. Carole simply took on an event which was larger than anything she had ever done, miscalculated the costs associated with the event, and proceeded with the hope that she would be able to raise sufficient funds at the event itself to get her out of the hole she had dug for herself. There is no basis to conclude that she intended to harm Glenstone Lodge.
III. LIEN AVOIDANCE
Section 522(f)(1) provides, in relevant part, that a debtor "may avoid the fixing of a lien on an interest in property to the extent that such lien impairs an exemption to which the debtor would have been entitled. . . if such lien is . . . a judicial lien."[24] Although the parties disputed what effect, if any, a finding of nondischargeability would have on the lien avoidance issue, Glenstone Lodge has agreed that, due to the value of the Treadwells' home and the amount of the secured debt, its judgment lien would be avoidable if the debt were found to be dischargeable. Consequently, since I have found that the debt is dischargeable, Glenstone Lodge's judicial lien on the Treadwells' home will be avoided pursuant to § 522(f)(1)(A).
IV. CONCLUSION
For the foregoing reasons, I find that Glenstone Lodge failed to meet its burden of proving nondischargeability under § 523(a)(2)(A), (a)(4), or (a)(6). I further find that Glenstone Lodge's judicial lien is avoidable pursuant to § 522(f)(1)(A). An Order in accordance with this Memorandum Opinion will be entered this date.
NOTES
[1] Carole testified that, although the trip was not officially sanctioned by the Red Hat Society, she was authorized, as a member of the organization, to use its logos and trademarks, so long as nothing she advertised referred specifically to the Red Hat Society organization.
[2] The Treadwells sometimes used an account held in the name of the Treadwell Family Revocable Living Trust to operate Memory Travel. There was no evidence that the Trust has any assets of value.
[3] Section 62-7-107(b) provides that, inter alia, it is "prima facie evidence of intent to defraud" to procure accommodations or restaurant services by false pretense or to have procured accommodations or restaurant services and thereafter to abscond without paying or offering to pay for such accommodations.
[4] The judgment amount was treble the actual damages incurred by the Glenstone Lodge.
[5] 11 U.S.C. § 523(a)(2)(A).
[6] Ostertag v. Overall (In re Overall), 248 B.R. 146, 150 (Bankr.W.D.Mo.2000) (quoting Caspers v. Van Horne (In re Van Horne), 823 F.2d 1285, 1287 (8th Cir.1987); Cohen v. de la Cruz, 523 U.S. 213, 118 S. Ct. 1212, 1216, 140 L. Ed. 2d 341 (1998)) (internal quotation marks omitted).
[7] Id. (citations omitted).
[8] Grogan v. Garner, 498 U.S. 279, 284, 111 S. Ct. 654, 658, 112 L. Ed. 2d 755 (1991).
[9] See In re Ophaug, 827 F.2d 340 (8th Cir. 1987), as supplemented by Field v. Mans, 516 U.S. 59, 116 S. Ct. 437, 444, 133 L. Ed. 2d 351 (1995).
[10] Kansas Bankers Surety Co. v. Eggleston (In re Eggleston), 243 B.R. 365, 373 (Bankr. W.D.Mo.2000).
[11] Field v. Mans, 516 U.S. 59, 71, 116 S. Ct. 437, 444, 133 L. Ed. 2d 351 (quoting Restatement (Second) of Torts (1976), § 545A, Comment b).
[12] Id. (quoting Restatement (Second) of Torts (1976), § 541, Comment a; internal quotation marks omitted).
[13] Id. (quoting W. Prosser, Law of Torts § 108, p. 718 (4th ed.1971)).
[14] Guske v. Guske (In re Guske), 243 B.R. 359, 363 (8th Cir. BAP 2000).
[15] Id. at 363-64 (citations omitted) (emphasis added). See also Waring v. Austin (In re Austin), 317 B.R. 525, 531 (8th Cir. BAP 2004) (the court must look at the creditor and its experience with the debtor to determine if it was justified in relying upon the debtor's statements).
[16] See, e.g., In re Beza, 310 B.R. 432, 437-38 (Bankr.W.D.Mo.2004) (addressing false representation and false pretenses separately). See also In re Eggleston, 243 B.R. 365 (Bankr. W.D.Mo.2000) (noting that some courts have drawn the distinction, but others have not, and stating that "courts in this jurisdiction lean toward an application of the single action test of actual fraud for all claims made under § 523(a)(2)(A)."); In re Ellingsworth, 212 B.R. 326, 333 (Bankr.W.D.Mo.1997) (suggesting that the three torts listed in § 523(a)(2)(A) "are all subject to the single action test of actual fraud").
[17] 516 U.S. at 71 n. 8, 116 S. Ct. at 444 n. 8 ("Although we do not mean to suggest that the requisite level of reliance would differ if there should be a case of false pretense or representation but not fraud, there is no need to settle that here.").
[18] Merchants Nat'l Bank v. Moen, 238 B.R. 785, 791 (8th Cir. BAP 1999).
[19] In re Gilmore, 221 B.R. 864, 872 (Bankr. N.D.Ala. 1998) (quoted by In re Overall, 248 B.R. at 150) (citations and internal quotation marks omitted).
[20] 4 Collier on Bankruptcy ¶ 523.10[2] (15th ed. rev.)
[21] In re Scarborough, 171 F.3d 638, 641 (8th Cir.1999) (citations omitted).
[22] Id.
[23] Id.; Kawaauhau v. Geiger, 523 U.S. 57, 118 S. Ct. 974, 977, 140 L. Ed. 2d 90 (1998).
[24] 11 U.S.C. § 522(f)(1)(A). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558410/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
No. 04-20-00294-CR
Neil Howard MCGINNIS,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 6779
Honorable Kirsten Cohoon, Judge Presiding
ORDER
On August 10, 2020, we advised the court reporter that the records were late. On August
17, 2020, court reporter Connie Calvert advised this court that counsel has not asked her to
prepare the reporter’s records.
We ORDER Appellant to provide written proof to this court within TEN DAYS of the
date of this order that (1) Appellant has delivered a written request to prepare the reporter’s
records to court reporter Connie Calvert that designates any exhibits to be included, see TEX. R.
APP. P. 34.6(b), and (2) either the arrangements have been made to pay the reporter’s fee, or
Appellant is entitled to free reporter’s records, see TEX. R. APP. P. 20.2.
If Appellant fails to respond as ordered, Appellant’s briefs will be due within THIRTY
DAYS of the date of this order, and the court will only consider those issues or points raised in
Appellant’s briefs that do not require a reporter’s record for a decision. See TEX. R. APP. P.
37.3(c).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of August, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1585397/ | 508 So.2d 260 (1987)
Jean RICKARD, as Executrix of the Estate of Isephene Jo Haggard Trousdale, deceased
v.
Gilbert Leon TROUSDALE.
85-1304.
Supreme Court of Alabama.
May 29, 1987.
Robert M. Hill, Jr., and Margaret Helen Young of Hill, Young & Boone, Florence, for appellant.
Lucy Fay Malone and James H. LeMaster of LeMaster, Smith & Malone, Florence, for appellee.
SHORES, Justice.
This case originates from a petition filed by Jean Rickard for the probate of the last will and testament of her mother, Isephene Jo Haggard Trousdale, and a subsequent petition filed by Gilbert Leon Trousdale, claiming to be the surviving spouse of the decedent, for his elective share, exempt property, and homestead allowance.
The estate was removed to the circuit court on July 10, 1984, and proceeded to trial on the sole issue of whether a common law marriage existed between Gilbert Leon Trousdale and Isephene Jo Haggard Trousdale at the time of the latter's death. The circuit court entered a partial decree in favor of Mr. Trousdale on this issue, but reserved the other issues raised in the pleadings for future determination. Pursuant to Rule 54(b), A.R.Civ.P., the court directed entry of a final judgment, and this appeal followed.
Gilbert and Isephene were the parties to a ceremonial marriage in Tishomingo County, Mississippi, on September 11, 1976. At the time of the ceremony, however, Gilbert was already married to Bobbie Jean Trousdale.
There is no dispute that the ceremonial marriage between Gilbert and Isephene was null and void for bigamy. The question with which we are faced concerns the effect of Leon's divorce from Bobbie Jean, March 22, 1978, on the continued cohabitation of Leon and the deceased after that date.
On appeal, Ms. Rickard contends that the ceremonial marriage between her mother *261 and Leon did not ripen into a common law marriage when Leon's marriage to Bobbie Jean was dissolved, because Isephene could not consent to a common law marriage where the bigamy, though corrected, was intentionally concealed and never revealed to her.
In Campbell's Administrator v. Gullatt, 43 Ala. 57, 69 (1869), the Court held that "a marriage good at the common law, is ... a valid marriage in this State." A marriage at common law in Alabama requires the following:
"[T]here must be a present agreement or mutual understanding to enter into the marriage relationship, the parties must be legally capable of making the contract of marriage, and there must follow cohabitation as man and wife and a public recognition of that relationship."
Luther v. M & M Chemical Co., 475 So.2d 191, 193 (Ala.Civ.App.1985).
It is the well-settled rule that if parties in good faith marry at a time when in fact a legal impediment exists to their marriage, and they continue to live together as husband and wife after the removal of the impediment to their lawful union, the law presumes a common law marriage. Boswell v. Boswell, 497 So.2d 479 (Ala.1986), King v. King, 269 Ala. 468, 114 So.2d 145 (1959); Barnett v. Barnett, 262 Ala. 655, 80 So.2d 626 (1955); Hill v. Lindsey, 223 Ala. 550, 137 So. 395 (1931).
In the case at bar, Leon and Isephene continued to live together as husband and wife after Leon obtained his divorce from Bobbie Jean. Testimony at trial showed that the public recognized Leon and Isephene as husband and wife, and that Isephene believed until her death that she was legally married to Leon. Clearly, the evidence supports the presumption of a common law marriage between Leon and Isephene.
To rebut the presumption of a common law marriage, Ms. Rickard contends that Leon intentionally concealed his prior marriage from Isephene, and, thus, that the necessary element of consent was missing. In a case with similar facts, the Florida Supreme Court held as follows:
"The marriage of a man and woman, where one of them has a husband or wife by a prior marriage, who is then living and undivorced, is generally held to be absolutely void, and not merely voidable, and, being a nullity, no judicial decree is ordinarily necessary to avoid same. But where an absolutely void bigamous marriage is innocently contracted by one of the parties in ignorance of the existing impediment, and as a result of fraud and deceit practiced upon him by the opposite party, the fact that such void marriage has subsequently ripened into a presumptively valid common-law marriage through continued cohabitation of the parties after the disbarring prior marriage has been dissolved ... should not bar or preclude the innocent party to such fraud from treating the resultant common-law marriage as one that is voidable within a reasonable time after discovery of the fraud practiced upon him, and thereupon having a judicial annulment of same, such as was sought in this case."
Jones v. Jones, 119 Fla. 824, 832, 161 So. 836, 839 (1935).
In Osoinach v. Watkins, 235 Ala. 564, 180 So. 577 (1938), the court held that a void marriage may be attacked after the death of one or both of the parties by the personal representative of a deceased spouse; however, if the marriage is merely voidable the action must be brought during the lifetime of both spouses. See also, Abel v. Waters, 373 So.2d 1125 (Ala.Civ. App.) cert. denied, 373 So.2d 1129 (Ala. 1979).
Consequently, even if we were to assume that Leon fraudulently concealed from Isephene the fact of his prior marriage to Bobbie Jean, which we are not at liberty to do since fraud was neither alleged in the pleadings nor proved at trial, his fraud would operate only to make the common law marriage voidable, and a voidable common law marriage cannot be attacked after the death of one of the parties to the marriage.
*262 For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
JONES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736261/ | 519 So. 2d 677 (1988)
Duane GRIFFIN, Appellant,
v.
STATE of Florida, Appellee.
No. 86-970.
District Court of Appeal of Florida, Second District.
January 22, 1988.
*678 James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
LEHAN, Judge.
The juvenile defendant appeals the revocation of his probation and the convictions and sentences imposed. We affirm the revocation, convictions and sentences, with the exceptions noted below.
The written order of probation revocation and the written judgment and sentence include a reference to a charge of burglary which was not one of the charges for which defendant was originally placed on probation. On remand those documents should be revised to delete all references to this burglary charge.
The order of revocation also refers to violations of conditions of probation concerning failure to pay costs of supervision, leaving the county without consent, and failure to pay restitution. At the probation revocation hearing, the trial court found that the state had not proven those violations, although violations of other conditions were proven. On remand the order should be revised to delete all references to violations of the three conditions listed above.
One issue raised by defendant on this appeal that adult sanctions were improperly imposed upon him should have been raised, if at all, in an appeal when defendant was originally placed on probation and is not appropriately raised in this appeal from a revocation of that probation. See Bailey v. State, 403 So. 2d 1106 (Fla. 2d DCA 1981).
Defendant also contends that the trial court erred in imposing convictions and sentences for both grand theft and dealing in stolen property because both charges arose from the same course of conduct. If it is true that both charges involved the same scheme or course of conduct, then defendant is correct that he can be convicted of only one of the two charges. See § 812.025, Fla. Stat. (1985); Repetti v. State, 456 So. 2d 1299 (Fla. 2d DCA 1984). Since we cannot conclusively determine from the record whether defendant's contention is correct, on remand the trial court should make that determination and, if appropriate, vacate one of the two convictions.
Defendant further contends that the sentence for several of the charges was an improper upward departure from the sentencing guidelines. Without giving written reasons, the trial court imposed a one-cell upward departure, apparently pursuant to the amendment to Florida Rule of Criminal Procedure 3.701 which authorized a one-cell upward departure for probation violation. However, since two of the crimes for which defendant's probation was revoked were committed prior to the effective date of that amendment, the amendment could not properly have been applied in this case. See Miller v. Florida, ___ U.S. ___, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987). Nonetheless, even prior to the amendment, a probation revocation could have been a valid basis for departure. Accordingly, the failure to designate the probation revocation as a written reason for departure in this situation was harmless error. See Peters v. State, 516 So. 2d 60 (Fla. 2d DCA 1987).
DANAHY, C.J., and BOARDMAN, F. EDWARD (Ret.) J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1012823/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1959
HAILU SEBSIBE,
Petitioner,
versus
JOHN D. ASHCROFT, Attorney General for the
United States,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A78-600-206)
Submitted: February 19, 2004 Decided: March 16, 2004
Before WILKINSON, LUTTIG, and KING, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Aragaw Mehari, Washington, D.C., for Petitioner. Peter D. Keisler,
Assistant Attorney General, Terri J. Scadron, Assistant Director,
S. Nicole Nardone, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Hailu Sebsibe, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals (“Board”). The order affirmed, without opinion, the
immigration judge's order denying Sebsibe's applications for
asylum, withholding of removal, and relief under the United Nations
Convention Against Torture. For the reasons discussed below, we
deny the petition for review.
Sebsibe challenges the immigration judge's finding that
he failed to demonstrate past persecution or a well-founded fear of
future persecution. The decision to grant or deny asylum relief is
conclusive “unless manifestly contrary to the law and an abuse of
discretion.” 8 U.S.C. § 1252(b)(4)(D) (2000). We have reviewed
the immigration judge’s decision and the administrative record and
find that the record supports the immigration judge’s conclusion
that although Sebsibe’s testimony was credible, he failed to
establish his eligibility for asylum on a protected ground. See 8
C.F.R. § 1208.13(a) (2003) (stating that the burden of proof is on
the alien to establish his eligibility for asylum); INS v.
Elias-Zacarias, 502 U.S. 478, 483 (1992). As the decision in this
case is not manifestly contrary to law, we cannot grant the relief
that Sebsibe seeks.
Additionally, we uphold the immigration judge's denial of
Sebsibe's application for withholding of removal. The standard for
- 2 -
withholding of removal is more stringent than that for granting
asylum. Chen v. INS, 195 F.3d 198, 205 (4th Cir. 1999). To
qualify for withholding of removal, an applicant must demonstrate
“a clear probability of persecution.” INS v. Cardoza-Fonseca, 480
U.S. 421, 430 (1987). Because Sebsibe fails to show that he is
eligible for asylum, he cannot meet the higher standard for
withholding of removal.
Finally, we conclude that Sebsibe has failed to prove
that it is more likely than not that he would be subjected to
torture upon his return to Ethiopia, in violation of the Convention
Against Torture. Based on our review of the record and the
immigration judge’s decision denying relief, we find that Sebsibe
failed to show a “clear probability of persecution” or show that it
is “more likely than not” that he would face torture if returned to
Ethiopia. See 8 C.F.R. § 1208.16(c)(2) (2003) (stating that to
qualify for protection under the Convention Against Torture, an
alien must show “it is more likely than not that he . . . would be
tortured if removed to the proposed country of removal”).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583575/ | 728 N.W.2d 851 (2007)
GRAY
v.
OSBORN.
No. 05-1850.
Court of Appeals of Iowa.
January 18, 2007.
Decision without published opinion. Reversed and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918738/ | 411 B.R. 455 (2007)
In the Matter of Steven WILLIS, Darlene Willis, Debtors.
Gerrald Auto Sales, Movant
v.
Steven Willis, Darlene Willis, and James L. Drake, Jr., Trustee, Respondents.
No. 07-41009.
United States Bankruptcy Court, S.D. Georgia, Savannah Division.
August 28, 2007.
*456 Darlene Willis, pro se.
MEMORANDUM AND ORDER ON MOTION FOR RELIEF FROM STAY
LAMAR W. DAVIS, Jr., Bankruptcy Judge.
FINDINGS OF FACT
The Debtors filed a Chapter 7 bankruptcy case on July 6, 2007. The Debtors have previously filed several Chapter 13 and Chapter 7 cases in both the Northern District of Georgia and in this District. The most recent case prior to the current case was a Chapter 13 case filed in this District on October 4, 2006, which was dismissed on May 23, 2007. In connection with that case, the Debtors had received credit counseling *457 on October 4, 2006. However, when the current case was filed, because that latest credit counseling had occurred more than 180 days prior to the filing of this case (See 11 U.S.C. § 109(h)), the Debtors were informed by the Clerk's Office that their Chapter 7 case was defective because no certificate of counseling was included. See Dkt. No. 7 (July 11, 2007). Thereafter, the Debtors obtained credit counseling and filed a certificate of that fact on July 23, 2007. See Exhibit M-2.
As their previous Chapter 13 case was on the verge of dismissal and prior to the filing of this case, Debtors purchased a 1997 Saab automobile from the Movant for approximately $5,300.00, promising to pay $1,000.00 down with bi-weekly payments of approximately $160.00 each. After this debt was incurred, the Debtors' payments became sporadic with the latest payment being tendered on June 6, 2007, and the Movant attempted a self-help repossession under state law on July 3, 2007. The Debtors immediately sought relief in this Court and gave notice to the Movant on July 6, 2007, that they had filed bankruptcy.
The parties stipulated the value of the vehicle is currently $2,700.00. After the creditors' meeting was held on August 9, 2007, the Chapter 7 Trustee concluded that he would not oppose the granting of stay relief inasmuch as there was insufficient value in the collateral to sell it and administer the proceeds for the benefit of unsecured creditors.
When the Debtors filed their case, they filed a statement with regard to this vehicle, as required by § 521(a)(2), stating that their intention was to surrender the vehicle to the creditor. However, they contend that they should not be compelled to turn the vehicle over to this creditor at this stage in the proceeding. Rather, in order to be afforded a "breathing spell" and a fresh start in their Chapter 7 case, they contend that they should be afforded the right to possess the vehicle until this proceeding is concluded.
This Motion for Relief is predicated on two theories. First, the Movant contends that the Debtors are ineligible to have filed the Chapter 7 case because they had not complied with the credit counseling requirements of § 11 U.S.C. § 109(h). The Movant further contends that since they were ineligible to file the case, the Court has the authority and should rule that the automatic stay was not in effect ab initio. Second, the Movant contends that under provisions of 11 U.S.C. § 362(d), the elements for granting stay relief have been established in that there is no equity in the vehicle and that the vehicle is not necessary to the Debtors' reorganization.
CONCLUSIONS OF LAW
Section 362 of the Bankruptcy Code creates an automatic stay which enjoins creditor actions against the assets of a debtor's estate upon a filing of a bankruptcy petition under §§ 301, 302, and 303. 11 U.S.C. § 362(a). The statute provides that "on request of a party in interest and after notice and a hearing, the court shall grant relief from the stay, ... by terminating, annulling, modifying, or conditioning" the stay. Id. § 362(d). The code establishes two general grounds for granting relief: "(1) for cause, including the lack of adequate protection of an interest in property of such party in interest," or (2) if the debtor does not have any equity in such property and the property is not necessary to an effective reorganization. Id.
1. The Motion for Relief should be granted because there is no equity in the vehicle and it is not necessary for the Debtors' reorganization.
For the following reasons, I conclude that (1) there is no equity in the automobile and (2) that the car is not necessary for an effective reorganization.
*458 The Debtors contend that there is equity because the car is worth more than the amount they have paid to date. However, this is not the test. There is no equity in the car because the debt on the car is higher than the value of the car. Equity is defined as the difference between the value of the subject property and the encumbrances against it. In re Sutton, 904 F.2d 327, 329 (5th Cir.1990). In the present case, the parties have stipulated that the value in the car is no higher than $2,700.00 and the debt is in excess of $4,000.00. As a result, I conclude that the creditor has established the first prong of the showing required to obtain stay relief.
Second, the Debtors have not met their burden of proving that the vehicle is necessary for an effective reorganization. First, the Debtors filed a Chapter 7 case, which results in liquidation and not reorganization. In re Prestwood, 185 B.R. 358, 361 (M.D.Ala.1995). See In re Kennemer, 143 B.R. 275, 280 n. 10 (N.D.Ala.1992) (In Chapter 7 cases, the court abandons the requirement of 11 U.S.C. 362(d)(2)(B), as the debtors' reorganization is not at issue); see also In re Lyons, 19 B.R. 66, 67 (Bankr.N.D.Ga.1982). Second, the Debtors filed a statement that they intended to surrender the vehicle to the creditor. Since they have no intent to retain this vehicle, it clearly is not necessary to their reorganization.
Because the Debtors have no equity in the vehicle and because the vehicle is not necessary for an effective reorganization, I hold that the stay will be lifted.
2. The Motion for Relief should be granted for Cause because the Debtors failed to obtain credit counseling within 180 days prior to filing petition.
The movant argues that relief should be granted because the Debtors failed to obtain credit counseling within 180 days prior to filing the petition pursuant to 11 U.S.C. § 109(h). These sections generally require each individual seeking bankruptcy relief to obtain pre-petition credit counseling and file a certificate of such counseling as a predicate of eligibility for bankruptcy relief.
This statute is clear on its face. This section clearly states an individual may not be a debtor unless the individual has had credit counseling within 180-days prior to filing a petition. In this case, the Debtors have admitted that they had not received credit counseling during this period. Therefore, the Debtors are ineligible under Section 109(h) on its face. See In re Jones, 352 B.R. 813 (Bankr.S.D.Tex.2006); See also In re Ross, 338 B.R. 134 (Bankr. N.D.Ga.2006). As I held in a similar eligibility case, "`[w]e must presume that Congress said what it meant and meant what it said." In re Stuart, 297 B.R. 665, 668 (Bankr.S.D.Ga.2003)(citing Lewis, 285 F.3d at 1331 (quoting Adams v. Fla. Power Corp., 255 F.3d 1322, 1324 (11th Cir. 2001))).
Even if I were to look beyond the plain meaning of the statute, the Debtors would still be ineligible. I have previously stated "[j]udicial interpretation of a statute outside its literal terms is appropriate only when a literal application of the statute would lead to an absurd or unconstitutional result." In re Stuart, 297 B.R. at 668 (citing In re Richardson, 217 B.R. 479, 489 (Bankr.M.D.La.1998)) (citing Pub. Citizen v. Dep't of Justice, 491 U.S. 440, 109 S. Ct. 2558, 105 L. Ed. 2d 377 (1989)); (also citing Green v. Bock Laundry Mack Co., 490 U.S. 504, 109 S. Ct. 1981, 104 L. Ed. 2d 557 (1989)). That is not the case here. Congress provided limited exceptions to the 180 day rule in §§ 109(h)(3) and (4), and I can conceive of no plausible argument that *459 on these facts the result to the Debtors is absurd or violates any constitutional right.
This finding, however, raises the issue of whether a debtor who is found ineligible by filing a petition without receiving credit counseling is subject to dismissal or subject to a finding that the case is a nullity. There is a split among the courts over whether to dismiss the case or strike the petition when an ineligible debtor files. This question is not purely academic since whether the ineligible debtor filing results in a "case" or not implicates the rights of parties if a later case is filed.
The Nullity View
Section 302 provides that a case is "commenced by the filing ... of a single petition... by an individual that may be a debtor under such chapter ..." Since only an "eligible debtor" may file a petition to commence a case and since the plain language of Section 109(h), as discussed above, states an individual is not eligible if he or she fails to obtain credit counseling within 180-days prior to filing a petition, some courts hold that no "case" was commenced. See In re Thompson, 344 B.R. 899 (Bankr.S.D.Ind.2006); In re Elmendorf, 345 B.R. 486 (Bankr.S.D.N.Y.2006); In re Rios, 336 B.R. 177 (Bankr.S.D.N.Y. 2005); In re Hubbard, 333 B.R. 377 (Bankr.S.D.Tex.2005); In re Salazar, 339 B.R. 622 (Bankr.S.D.Tx.2006); In re Valdez, 335 B.R. 801 (Bankr.S.D.Fla.2005). Since no case was commenced, the remedy is to strike the petition, not dismissal.
Majority ViewDismissal of the Case
"The majority of courts addressing this issue have concluded that when the Debtor is not eligible to file a bankruptcy petition, the Court should dismiss the case, not `strike the petition.'" In re Jones, 352 B.R. at 821 citing In re Westover, 2006 WL 1982751 (Bankr.D.Vt.2006); In re Tomco, 339 B.R. 145 (Bankr.W.D.Pa.2006); In re Racette, 343 B.R. 200 (Bankr. E.D.Wis.2006); In re Mills, 341 B.R. 106 (Bankr.D.D.C.2006); In re Brown, 342 B.R. 248 (Bankr.D.Md.2006); In re Seaman, 340 B.R. 698 (Bankr.E.D.N.Y.2006). See also In re Ross, 338 B.R. at 136 ("... the filing of a petition by a debtor ineligible to do so nevertheless commences a bankruptcy case that is neither a `nullity' nor void ab initio. Consequently, upon timely determination that an individual ineligible to be a debtor under Section 109(h) has filed a petition, the property remedy is dismissal of the case."). In other words, the courts "that have favored' dismissal of the case hold that a `case' is `commenced,' even when the petition is filed by an ineligible debtor." In re Jones, 352 B.R. at 821.
The Jones court justified this finding by stating,
There is extensive jurisprudence holding even though a petition was filed by a person declared ineligible under § 109, the filing of the petition commenced a case that existed until it was dismissed; the Court had jurisdiction under 28 U.S.C. § 1334(a) and (b) because a case existed; the case was not void ab initio or a nullity. There is no reason to conclude that language in § 109(h) is to be read any differently from identical language in § 109(a), (b), (c), (d), (e) and (g). Id. at 821-22.
This view is consistent with my holding in Stuart which held that a case is commenced despite the debtor failing to satisfy Section 109(g)(2). 297 B.R. at 670. In that case, I stated "[i]n that 109(g)(2) is a provision governing only Debtor's eligibility for relief and not the power of this Court to afford such relief, any relief received prior to Hall's challenge under 109(g)(2) may not be challenged for lack of jurisdiction of this Court over Debtor as `a debtor.'" That rationale is equally applicable to Section 109(h). Thus, I conclude that if a debtor who is ineligible files a petition, the automatic stay is triggered. *460 When the fact of ineligibility is established, dismissal is a proper remedy. In this case, however, Movant did not request dismissal.
Nevertheless, due to that ineligibility, I find cause exists to grant the Motion for Relief under Section 362(d)(1). In a perfect world ineligible debtors would not file cases and no stay would be imposed, even for a few days or weeks. When such a case is filed and a creditor seeks relief from a stay that should never have arisen, the creditor who demonstrates that ineligibility has also proven "cause" for granting the motion for relief.
ORDER
Pursuant to the foregoing Findings of Fact and Conclusions of Law, IT IS THE ORDER OF THIS COURT that the Motion for Relief from Stay filed by Gerrald Auto Sales is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918746/ | 411 B.R. 268 (2008)
In re William Bernard WHITE, Debtor.
No. 07-30899.
United States Bankruptcy Court, W.D. North Carolina, Charlotte Division.
April 17, 2008.
*269 O. Max Gardner, III, Shelby, NC, for Debtor.
*270 ORDER GRANTING DEBTOR'S MOTION TO MODIFY CONFIRMED CHAPTER 13 PLAN
GEORGE R. HODGES, United States Bankruptcy Judge.
This matter is before the court on the debtor's Motion to Modify Chapter 13 Plan to Remove Debts. In his motion, the debtor seeks to reduce his monthly Plan payment and to shorten the term of his payments to less than sixty months. The debtor's motion raises the issue of whether a Chapter 13 Plan that, at the outset, was required to run for 60 months may be modified after confirmation for a shorter commitment period. In addition, the court must determine whether the debtor is bound by the calculations on Form B22C when computing the minimum payment to unsecured creditors in the context of a post-confirmation modification. The court has concluded that 11 U.S.C. § 1329(a) permits post-confirmation modification of a Chapter 13 Plan to less than 60 months notwithstanding the provisions of § 1325(b)(1)(B) relating to the confirmed commitment period. Finally, the court finds that the debtor should consider Schedules I and J when determining disposable income in a post-confirmation modification.
Statement of the Case
1. The debtor filed a Chapter 13 petition with this court on April 30, 2007. Along with the petition, the debtor filed the Form B22C "Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income," which identified him as being an above-median income debtor. Consequently, the court confirmed the debtor's Plan with a five year applicable commitment period pursuant to 11 U.S.C. § 1325(b)(4)(A)(ii).
2. Based on the debtor's calculations on Form B22C, he arrived at $0 in Monthly Disposable Income with which to pay unsecured creditors. However, the debtor's original Schedule I indicated average monthly income of $3,045.92 and Schedule J reflected average monthly expenses of $2,451.67, the difference of which is $594.25. Accordingly, the original Plan payment was projected at the rate of $580.00 per month for a term of 60 months. In sum, the debtor's calculations on Form B22C served as the basis for determining the term of his Plan, and Schedules I and J served as the basis for setting the amount of his monthly Plan payments.
3. Subsequent to the confirmation of the debtor's Plan, several events took place that have fundamentally altered the debtor's financial situation and prompted his filing the motion to modify pursuant to 11 U.S.C. § 1329(a). First, the debtor's automobile, for which AmeriCredit Financial Services ("AmeriCredit") held a secured claim, was declared a total loss after it was wrecked. GMAC Insurance offered to settle the insurance claim for $9,400. Consequently, the debtor filed a Motion to Approve Physical Damage Insurance Settlement, and the debtor entered into a consent order with AmeriCredit allowing him to purchase a substitute vehicle that was mutually acceptable to the debtor and AmeriCredit.
4. The debtor and AmeriCredit could not agree upon a replacement vehicle, so the debtor obtained credit from a new lender, which allowed him to purchase a 2002 Ford Explorer for the price of $9,004.85 with a maximum monthly payment of $318.93. The debtor is making these monthly payments outside of the Chapter 13 Plan. On November 28, 2007, the court entered an Order Terminating the Automatic Stay, which allowed Ameri-Credit to collect the insurance proceeds on *271 its vehicle and served to remove Ameri-Credit's secured claim from the Plan.
5. In addition to the automobile accident, On December 19, 2007, the court terminated the automatic stay on the debtor's home with respect to Chase Home Finance, LLC ("Chase") due to the debtor's failure to comply with the terms of a consent order entered into with Chase.
6. Finally, the debtor suffered a torn rotator cuff, which required surgery and caused the debtor to miss a significant amount of work.
7. As a result of these changes in circumstance, the debtor filed the motion to modify to remove the secured claims of Chase and AmeriCredit. In addition, the motion to modify seeks to reduce the debtor's monthly plan payment to $125.00 due to the removal of the above-referenced secured claims.[1] Due to the removal of the secured claims, the reduced monthly payment amount would be sufficient to pay the unsecured creditors the amount originally proposed, but in a period of only 41 months.
8. In support of the motion to modify, the debtor filed amended Schedules I and J, an Amended Summary of Schedules, and an Amended Statistical Summary of Certain Liabilities and Related Data. The Amended Schedules I and J reflect current average monthly income of $3,045.92 and average monthly expenses of $2,892.00, leaving a monthly net income of approximately $153.92. Despite this reduction, the debtor's income remains above the median family income for a family of one in the Western District of North Carolina.
9. The Chapter 13 Trustee filed the following response to the debtor's motion to modify:
The proposed modification may not comply with the requirements of 11 U.S.C. Section 1325(b)(1)(B). The debtor has only made 33 payments to the trustee and the proposed modification to $150.00 for [a] ten percent dividend would only require eight more payments. The debtor's form B22C indicates he is an above median income debtor and would be subject to an applicable commitment period of 60 months.
Discussion
10. The court must determine whether a post-confirmation modification pursuant to § 1329 must comply with the applicable commitment period requirement of § 1325(b)(1)(B).
11. In addition, the debtor seeks to have the court determine whether he is bound by the results of the calculation on Form B22C, regardless of changes in actual income or expenses, when calculating the minimum payment to unsecured creditors in the context of a § 1329 post-confirmation modification.
12. Post-confirmation modification of a Chapter 13 plan is controlled by 11 U.S.C. § 1329. Therefore, the court looks to the language of § 1329, which provides in pertinent part:
(a) At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor, the trustee, or the holder of an allowed unsecured claim, to
*272 (1) increase or reduce the amount of payments on claims of a particular class provided for by the plan;
(2) extend or reduce the time for such payments;
(3) alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan; or
(4) reduce amounts to be paid under the plan by the actual amount expended by the debtor to purchase health insurance for the debtor....
(b)(1) Sections 1322(a), 1322(b), and 1323(c) of this title and the requirements of section 1325(a) of this title apply to any modification under subsection (a) of this section.
(2) The plan as modified becomes the plan unless, after notice and a hearing, such modification is disapproved,
(c) A plan modified under this section may not provide for payments over a period that expires after the applicable commitment period under section 1325(b)(1)(B)...
See 11 U.S.C. § 1329.
13. The Trustee asserts that the debtor's proposed modification under § 1329 may not comply with the requirements of § 1325(b)(1)(B) because the debtor is an above median income debtor and is, therefore, subject to an applicable commitment period of 60 months.
14. Section 1325(b)(1)(B) mandates that a debtor's plan "provide[] that all of the debtor's projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan" be applied to make payments to unsecured creditors. Section 1325(b)(4) in turn defines "applicable commitment period" as three years for those debtors whose current monthly income ("CMI") is less than the applicable median family income and not less than five years for those debtors whose CMI is more than the applicable median family income. Pursuant to § 1325(b)(4)(B), the applicable commitment period may be less than 3 or 5 years if the plan provides for payment in full of all allowed unsecured claims over a shorter period. Finally, §§ 1325(b)(2) and (3) provide for how a debtor's plan payments must be computed pursuant to Form B22C and the means test.
15. As a starting point, the court notes that neither the pre- nor the post-Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA") versions of § 1329(a) and (b) make reference to the requirements of § 1325(b). When it enacted BAPCPA, Congress did add a reference to § 1325(b) in § 1329(c), which provides that a modified plan may not require a commitment period that exceeds that specified in § 1325(b)(1)(B) unless the court, for cause, approves a longer period. But, there is no express prohibition of a modified commitment period that is shorter than the commitment period required by § 1325(b)(1)(B). The court also notes that BAPCPA's failure to provide such an express prohibition is in a context in which such pre-BAPCPA modifications were common.
16. Although the courts are split, a significant number of pre-BAPCPA cases determined that § .1325(b) did not apply to the post-confirmation modification of a Chapter 13 plan under § 1329. See In re Sunahara, 326 B.R. 768, 774-781 (9th Cir. BAP2005) (summarizing cases on this issue and holding that the incorporation of § 1325(a) into § 1329(b)(1) "is not ... the functional equivalent of an indirect incorporation of § 1325(b)"); In re Forbes, 215 B.R. 183, 191 (8th Cir.BAP1997); In re *273 Sounakkene, 249 B.R. 801, 805 (Bankr. S.D.Cal.2000); In re Anderson, 153 B.R. 527, 528 (Bankr.M.D.Tenn.1993); and In re Moss, 91 B.R. 563, 566 (Bankr.C.D.Cal. 1988). But see In re Guentert, 206 B.R. 958, 963 (Bankr.W.D.Mo.1997); In re McKinney, 191 B.R. 866, 869 (Bankr.D.Or. 1996); and In re Solis, 172 B.R. 530, 532 (Bankr.S.D.N.Y.1994).
17. In Sunahara, the court recognized that § 1329(b) specifically requires that post-confirmation modifications comply with certain Code sections, but § 1325(b) is not one of them. See Sunahara at 781. In that regard, the court stated that "[sjimply put, the plain language of § 1329(b) does not mandate satisfaction of the disposable income test of 1325(b)(1)(B) with respect to modified plans. Had Congress intended to impose such a requirement, it could have easily done so by making the appropriate incorporating reference. If the absence of the reference to § 1325(b) was indeed an oversight, it is the province of the legislature, and not the judiciary, to make the correction." See id. (citation omitted). And, as noted above, when presented with the opportunity to add the reference to § 1325(b) in § 1329(b) with BAPCPA, Congress declined to do so.
18. Although the Fourth Circuit has not ruled on the issue of whether a post-confirmation modification pursuant to § 1329 must comply with the applicable commitment period requirement of § 1325(b)(1)(B), In re Arnold, 869 F.2d 240 (4th Cir.1989) and In re Murphy, 474 F.3d 143 (4th Cir.2007) offer this court some guidance with respect to post-confirmation modifications in Chapter 13 cases.
19. In Arnold, the Fourth Circuit considered whether the Bankruptcy Court abused its discretion by increasing the debtor's monthly payments from $800 to $1,500 after the debtor's post-confirmation income increased from $80,000 per year to more than $200,000 per year. The Court held that the Bankruptcy Court did not err in increasing the debtor's payments pursuant to § 1329(a) given the unanticipated and substantial change in the debtor's financial condition following confirmation of the Chapter 13 plan. See Arnold at 241. Significant to the issue before this court is the fact that in its detailed analysis of the post-confirmation modification under § 1329(a), the Fourth Circuit included no discussion of § 1325(b).
20. In Murphy, the Fourth Circuit strongly reaffirmed its decision in Arnold. Murphy involved two different cases in which the Chapter 13 Trustee sought to modify confirmed Chapter 13 plans to increase the amount to be paid to unsecured creditors. The Fourth Circuit combined the cases for decision and set forth the analysis bankruptcy courts should use when considering a motion for modification pursuant to §§ 1329(a)(1) or (a)(2). See Murphy, 474 F.3d at 150.
21. Specifically, the Murphy Court stated:
[P]er In re Arnold, when a bankruptcy court is faced with a motion for modification pursuant to §§ 1329(a)(1) or (a)(2), the bankruptcy court must first determine if the debtor experienced a substantial and unanticipated change in his post-confirmation financial condition.... If the change in the debtor's financial condition was either insubstantial or anticipated, or both, the doctrine of res judicata will prevent the modification of the confirmed plan. However, if the debtor experienced both a substantial and unanticipated change in his post-confirmation financial condition, then the bankruptcy court can proceed to inquire whether the proposed modification is limited to the circumstances provided by § 1329(a). If the proposed *274 modification meets one of the circumstances listed in § 1329(a), then the bankruptcy court can turn to the question of whether the proposed modification complies with § 1329(b)(1).
See id.
22. In its thorough analysis of post-confirmation modifications under §§ 1329(a)(1) or (a)(2), the Murphy Court never made reference to § 1325(b). Presumably it was so evident to the Fourth Circuit that § 1325(b) was not incorporated into any of the relevant provisions of § 1329, either directly or indirectly, that reference to § 1325(b) was not even worthy of a footnote. In contrast, the Court went to some lengths to include in footnotes the full text of those statutory sections that it did consider relevant.
23. Finally, this court is persuaded by the reasoning stated in In re Ireland, 366 B.R. 27 (Bankr.W.D.Ark.2007). There the issue was whether the debtors, who, like the debtor in this case, had experienced a significant reduction in post-filing income, were prohibited by the provisions of BAPCPA from modifying their Chapter 13 plan to reduce payments to unsecured creditors.
24. On Form B22C, the debtors reported a combined annual gross income of $66,499.04, which is above the median income for a family of two in Arkansas. In addition, Form B22C revealed that the debtors had disposable monthly income of $1,014.96, and the confirmed plan provided for a monthly plan payment of $1,640.00 for 60 months, which would pay unsecured creditors in full. See Ireland, 366 B.R. at 29.
25. The debtors subsequently filed an amended Schedule I evidencing a $848.99 reduction in net monthly income as a result of the male debtor's job change. See id. In addition, the debtors' filed a Fourth Modified Plan, which reduced the plan payment to $1,000.00 per month for sixty months. The debtors calculated the plan payment by subtracting the current average monthly expenses of $2,710.00 on Schedule J from the current average monthly income of $3,710.89 on Schedule I. See id. Significantly, the debtor's current gross income of $4,247.12 per month, when multiplied by twelve, was still above the median family income for a family of two in Arkansas. Finally, pursuant to the Fourth Modified Plan, general unsecured creditors would receive a 19% rather than a 100% dividend. See id.
26. The Trustee objected to the debtors' Fourth Modified Plan because it was inconsistent with the original calculation in Form B22C that dictated a 100% dividend to unsecured creditors. See id. She argued that the debtors were bound by the result of the Form B22C calculation regardless of any post-confirmation changes in income. See id. The debtors, on the other hand, argued that their proposed post-confirmation modification was allowed pursuant to § 1329 because it was warranted by a change in circumstances. See id. Because the plan remained a 60 month plan, the term of the plan was not an issue before the bankruptcy court.
27. At the outset, the Ireland court observed that in order to avoid the preclusive effect of the principle of res judicata, the debtors' proposed modification must be dictated by "an unanticipated substantial change in circumstances affecting the debtors' ability to pay," and in this case the Trustee did not challenge the validity of the debtors' alleged change in circumstances that prompted the post-confirmation modification. See id. at 33.
28. Ultimately the Ireland court held that the debtors should compare Schedules I and J to determine disposable income in a plan modified pursuant to § 1329 rather *275 than being bound by the calculations of Form B22C. See id. at 34. In that regard, the court concluded the following:
Absent a clear statutory command that 1325(b) applies to modifications under 11 U.S.C. § 1329, the Court is not inclined to adopt a tortured view of this statute in order to reach an absurd result. There is no indication that with the enactment of BAPCPA, Congress intended to repeal, by implication, the provisions of 11 U.S.C. § 1329 that give the Bankruptcy Court flexibility to deal with changed circumstances after a plan has been confirmed. Therefore, the only method left to determine disposable income/projected disposable income in a modified plan filed pursuant to 11 U.S.C. § 1329 is to compare Schedules 1 and J.
See id. at 34.
29. This court has concluded it should follow the reasoning in Ireland. It is consistent with the Arnold and Murphy decisions because it recognizes that the debtor must have experienced a substantial and unanticipated change in his post-confirmation financial condition in order to avoid the preclusive effect of the doctrine of res judicata,. The Murphy decision in particular gives the parties to a bankruptcy case and the court the tools they need to deal with substantial and unanticipated changes in a debtor's circumstances that may occur during the lengthy pendency of a Chapter 13 planboth positive and negative. When a debtor's circumstances improve, the creditors should benefit from that change. On the other hand, when a debtor's circumstances deteriorate, the debtor should not be locked into unrealistic or overly burdensome requirements established by a rigid historic snapshot of past circumstance.
30. In addition, and as the Ireland court held, § 1329 simply does not require compliance with § 1325(b) for post-confirmation modifications. Applying those principles to this case, the court holds that the debtor's post-confirmation modifications pursuant to § 1329(a) need not comply with the requirements of § 1325(b)(1)(B) and, therefore, are not subject to a 60 month applicable commitment period as asserted by the Trustee. In addition, the debtor should compare Schedules I and J to determine disposable income in the context of a § 1329 post-confirmation modification and is not bound by the Form B22C calculations required by § 1325(b)(2) and (3).[2] The court notes that this modification will not reduce the amount paid to the debtor's unsecured creditors pursuant to his original confirmed plan.
31. Finally, the court also notes that there are ample measures in place to protect creditors from erosion of the commitment period by post-confirmation modification. First, the debtor must have experienced a substantial and unanticipated change in circumstances to qualify for Plan modification. And, second, the debtor's *276 Plan is always governed by the principle of good faith. Whether the requirements for modification and good faith are met is a determination that will depend on the circumstances of each case. Here, the court has concluded that the requirements are met by the debtor's change in circumstances and the fact that he remains committed to pay his creditors the same percentage of their claims as was confirmed in his original Plan of reorganization. In fact, the debtor's modified Plan will pay creditors that same percentage of their claims sooner than the original Plan would have.
32. The debtor's financial (and physical) adversity resulted in his returning a car and losing his house to foreclosure, thereby satisfying those secured creditors and removing their secured claims from this bankruptcy case. Now, if the debtor was forced to remain in his case for 60 months, the dividend to unsecured creditors would be increased. In light of the debtor's adversity, it seems unfair to require him to pay more to unsecured creditors than was originally confirmed without objection by any of them. Rather, given his setbacks, it seems more appropriate to afford the debtor his fresh start at an earlier date.
It is therefore ORDERED that the debtor's Motion to Modify Chapter 13 Plan to Remove Debts is GRANTED. The Chapter 13 Trustee is directed to set the monthly plan payment at an amount consistent with this Order and with the needs of the plan.
NOTES
[1] The court notes that in his motion to modify, the debtor requests that his monthly plan payment be reduced to $125.00. However, in the debtor's brief in support of his motion to modify, he seeks a reduction to $150.00. Given this discrepancy, the court will order the Chapter 13 Trustee to set the monthly plan payment at an amount consistent with this Order and with the needs of the Plan.
[2] This holding is consistent with this court's reasoning in Plumb, 373 B.R. 429 (Bankr. W.D.N.C.2007), in which the issue before the court was whether § 1325(b) requires abovemedian income debtors to determine projected disposable income solely based on Form B22C or whether Schedules I and J should be taken into consideration in making that calculation. In Plumb the court held that Form B22C was the starting point for determining projected disposable income for above-median income debtors but debtors must also take Schedules I and J into consideration when making that calculation because "[t]he reality of most debtor's finances is that they are dynamic and subject to change for any number of reasons. To shoehorn that financial reality into a static Form B22C would result in many cases in a required plan payment schedule that does not reflect the debtor's actual ability to pay their creditors." See Plumb at 435. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918665/ | 411 B.R. 225 (2008)
In re Linda Carlista DAVIS, Debtor.
No. 08-16117DK.
United States Bankruptcy Court, D. Maryland, at Baltimore.
November 12, 2008.
*226 Louise M. Carwell, Baltimore, MD, for Debtor.
MEMORANDUM OF OPINION
DUNCAN W. KEIR, Bankruptcy Judge.
On October 28, 2008, the court held a hearing to consider confirmation of the Amended Chapter 13 plan filed by Debtor on September 8, 2008. At the conclusion of the hearing the court summarized its findings and conclusions and ruled that upon presentation of an appropriate Order, the Amended Chapter 13 Plan would be confirmed. The Chapter 13 Trustee had filed an objection to confirmation in which the Trustee asserted that the treatment of the claims of three secured creditors described in paragraph 2.e.iii. of the proposed Amended Plan did not comply with requirements which the Trustee asserted were imposed by 11 U.S.C. § 1325(a)(5)(B).[1] Debtor filed a response *227 to the objection of the Trustee on this issue on October 25, 2008 to which the Trustee filed a reply two days later. This Memorandum Opinion sets forth the findings and conclusions of the court as to the issues raised by the Trustee's objection and the Debtor's response concerning the treatment of the three secured claims described in the identified paragraph of the Amended Plan.
With the petition commencing this case, Debtor filed Schedule A listing real property known as 819 North Aisquith Street, Baltimore, Maryland 21202 having a value of $91,000.00. Schedule D filed by Debtor lists creditor, Countrywide Home Loans, as having a deed of trust interest in that property securing a debt in the amount of $51,864.00. Schedule A also lists three judgment liens held against the subject property by HK Insurance Services, Inc., Ashland Park Mews II Condominium, and BGE. The three listed judgment lienors are hereinafter referred to as the "Judgment Creditors."
The provision in the Amended Plan for the secured claims of the Judgment Creditors is as follows:
iii. The following secured claims will be paid in full, as allowed, at the designated interest rates through equal monthly amounts under the plan:
Monthly No.
Claimant Amount % Rate Payment of Mos.
Ashland Park Mews II Condominium 6,005.33 0.00% 158.03 38
BGE 1,729.00 0.00% 45.50 38
HK Insurance Services, Inc. 7,407.97 0.00% 194.95 38
Debtor's Amended Plan, filed 9/8/08 (emphasis in original). The proposed Amended Plan was served upon all of the creditors appearing on the matrix of the case. This included all three of the Judgment Creditors. No objection by any Judgment Creditor to the proposed treatment of the secured claims has been filed.
However, the Chapter 13 Trustee filed an objection to confirmation asserting therein that the proposed treatment of the Judgment Creditors' claims failed to satisfy a required element of the Bankruptcy Code set forth in Section 1325(a)(5)(B). Section 1325(a)(5) reads as follows:
(a) Except as provided in subsection (b), the court shall confirm a plan if
...
(5) with respect to each allowed secured claim provided for by the plan
(A) the holder of such claim has accepted the plan;
(B)(i) the plan provides that
(I) the holder of such claim retain the lien securing such claim until the earlier of
(aa) the payment of the underlying debt determined under nonbankruptcy law; or
(bb) discharge under section 1328; and
(II) if the case under this chapter is dismissed or converted without completion of the plan, such lien shall also be retained by such holder to the extent recognized by applicable nonbankruptcy law;
(ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; and
(iii) if
(I) property to be distributed pursuant to this subsection is in the form of periodic payments, such *228 payments shall be in equal monthly amounts; and
(II) the holder of the claim is secured by personal property, the amount of such payments shall not be less than an amount sufficient to provide to the holder of such claim adequate protection during the period of the plan; or
(C) the debtor surrenders the property securing such claim to such holder.
11 U.S.C. § 1325(a)(5). The Trustee argues that Section 1325(a)(5)(B)(ii) is a requirement that is not met by the proposed plan because the proposed treatment of the judgment claims is to pay the amount of such claims with equal monthly installments but at a zero rate of interest. As a result, the payment over time of the claims will not be equal in present value, as of the effective date of the plan, to the allowed amount of these claims.
In response Debtor does not dispute the Trustee's conclusion that the proposed treatment of the judgment claims will not provide the value, as of the effective date of the plan, equal to the allowed amount of the claims. That is, without payment of a discount rate or interest, the delayed payoff of these claims has a present value less than the face amount. Instead, Debtor makes four arguments in attempting to defeat the Trustee's objection. The first assertion by Debtor is that the Trustee does not have standing to make the objection as to the treatment of the Judgment Creditors' claims, where the Judgment Creditors have not filed any such objection. The court disagrees. Section 1302(b)(2) states that the Trustee shall appear and be heard at any hearing that concerns confirmation of a plan. This section provides to the Trustee statutory standing to raise any issue relevant to confirmation of a Chapter 13 plan. See e.g., Andrews v. Loheit (In re Andrews), 49 F.3d 1404, 1408 (9th Cir.1995)("The trustee's requirement [in Section 1302(b)] to `appear and be heard' at a confirmation hearing would be illusory if the trustee could not object when the plan fails to comply with `the provisions of this chapter and with the other applicable provisions of this title.'").
The Debtor's second argument is that none of the provisions of Section 1325(a) are mandatory requirements that must be satisfied before a plan can be confirmed. In making this objection Debtor calls attention to the distinction between the language of Section 1322(a) as opposed to Section 1325(a). The preamble in Section 1322(a) states: "The plan shall...." There follows four subparagraphs which describe mandatory provisions that must be in a plan. Section 1325(a) begins: "Except as provided in subsection(b), the court shall confirm a plan if...." There follows nine enumerated paragraphs plus a "hanging paragraph" thereafter.[2]
From this difference in language, Debtor argues that a court must confirm a plan if it complies with Section 1322(a) and all of the applicable provisions of Section 1325(a). However, Debtor argues that a plan which complies with all of the portions of Section 1322(a) can be confirmed even if one or more provisions of Section 1325(a) is not satisfied.
The courts have differed as to this question.[3] Because of the court's ruling upon *229 the remaining issues raised by this dispute, the court does not reach this question of legal interpretation. The court does note that it might be surprising that the court has the power as argued by Debtor, to confirm a plan that does not comply with Section 1325(a)(2) requiring fees to have been paid, or (3) requiring that a plan be proposed in good faith and not be means forbidden by law. Certainly nothing appears in the arrangement of Section 1325(a) that would differentiate between the requirements enunciated in subparagraph (5) as opposed to the other subparagraphs including subparagraphs (2) and (3).
The third argument raised by Debtor is that the Judgment Creditors by their failure to object are deemed to have "accepted" the plan and thus Section 1325(a)(5)(A) is satisfied. If this section is satisfied, Section 1325(a)(5)(B) does not apply and the failure by the plan to conform to subsection (B) is not an impediment to confirmation. A number of courts have opined that in Chapter 13, unlike Chapter 11, the failure by a secured creditor to object to confirmation of the plan which provides for the claim of such creditor, constitutes an acceptance by the creditor of the plan.[4] Under the specific facts of this case, this court agrees with that holding. However, the court finds that this doctrine can be applied only after strictly reviewing whether constitutionally mandated notice of the proposed treatment has been afforded to the effected creditor as required by due process. The United States Court of Appeals for the Fourth Circuit discussed due process in the context of a chapter 13 plans' Section 506(a) valuation in Piedmont Trust Bank v. Linkous (In re Linkous), 990 F.2d 160 (1993). There the court wrote: "In order to satisfy due process requirements, `the notice [of the proceedings] must be of such nature as reasonably to convey the required information....'" Id. at 162 (citing Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)).
In order to satisfy the requisite due process requirement, the information received by the creditor must openly and notoriously inform the creditor of the proposed treatment of their claim and that the court will determine this issue at the confirmation hearing. In Linkous, the Court of Appeals held that the creditor must be notified of the hearing and the fact that a valuation of its claim would be made at that hearing. The court wrote: "Therefore, in order `reasonably to convey the required information,' Linkous' notice to creditors must state that such a hearing will be held." Id. at 163. In addition, the court must examine whether adequate delivery of a properly formulated notification has been provided to the creditor.
In this case, as quoted above, the language of the proposed Amended Plan concerning treatment of the judgment claims is clearly, openly and emphatically stated. Each creditor is named along with the amount of the claim to be paid, the equal monthly installment for such payment, the duration of those monthly installments and the specific interest rate proposed by Debtor to be paid upon the claim. In this case the interest is affirmatively *230 stated as "0.00%." This proposed treatment is not "buried" in a lengthy paragraph nor otherwise difficult to discern. In addition, in an obvious attempt to insure the notoriety of this notice, the language is printed in bold print, as opposed to the language of the form plan within which it is contained. From these facts the court concludes that the content of the Amended Plan openly and notoriously provides notice of the proposed treatment of the claims. The Amended Plan was filed to be considered at a confirmation hearing and thus the Judgment Creditors were also on notice that the treatment of their claims would be decided as a part of the confirmation decision.
Finally, the court has examined the certificate of service of the Amended Plan and finds that it specifically certifies that the proposed Amended Plan was mailed to each of the Judgment Creditors at their scheduled address, which addresses upon further review, appear to have provided effective delivery of the information to the creditor sufficient to satisfy due process.[5]
As recited above, subparagraphs (A)(B) and (C) of Section 1325(a)(5) are in the disjunctive. The word "or" follows a semicolon at the end of sub-sub paragraph (B). In other words, the requirement is that A, or B, or C be satisfied. See Andrews, 49 F.3d at 1409 and cases cited therein. Having found that these Judgment Creditors accepted the proposed treatment of their claims as provided for in the Amended Plan, the Trustee's objection under Section 1325(a)(5)(B) must fall by the wayside as that section becomes unnecessary as a requirement to confirmation. In conclusion, the court finds that the Trustee's objection under Section 1325(a)(5)(B) therefore must be denied.
NOTES
[1] Hereinafter references to Title 11 of the United States Code shall be referred simply by the word "Section."
[2] The "hanging paragraph" is not enumerated nor indented as the other subparagraphs of this part of Section 1325(a). It was added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 and its unusual arrangement has led it to be informally referred to as the "hanging paragraph."
[3] See Colliers on Bankruptcy ¶ 1325.01 at 1325-8, fn 9 (comparing In re Chappell, 984 F.2d 775 (7th Cir.1993); In re Szostek, 886 F.2d 1405 (3d Cir.1989); In re Brady, 86 B.R. 166, 169 (Bankr.D.Minn.1988) with Barnes v. Barnes (In re Barnes), 32 F.3d 405 (9th Cir.1994)).
[4] See In re Jones, 530 F.3d 1284 (10th Cir. 2008); Andrews, 49 F.3d at 1409; In re Szostek, 886 F.2d at 1406; In re Montoya, 341 B.R. 41 (Bankr.D.Utah 2006); In re Brown, 108 B.R. 738, 740 (Bankr.C.D.Cal.1989).
[5] The Trustee does not dispute that the Judgment Creditors received sufficient notice of the proposed treatment of their claims and the fact that the court would determine such treatment as a part of the confirmation hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583521/ | 31 So. 3d 181 (2010)
GREEN
v.
STATE.
No. 2D08-6034.
District Court of Appeal of Florida, Second District.
March 26, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918694/ | 411 B.R. 319 (2008)
In re Robert Warren PAIGE, Debtor.
Dudley R. Stanley and Flagship Financial Corporation, Plaintiffs,
v.
Robert Warren Paige, Defendant.
Bankruptcy No. 04-20147-RLJ-7. Adversary No. 08-2011.
United States Bankruptcy Court, N.D. Texas, Amarillo Division.
September 17, 2008.
*323 Bart N. Pruitt, Peterson Farris Pruitt & Parker, Amarillo, TX, for Plaintiff.
David L. Woods, Jeffrey R. Seckel, Marc W. Taubenfeld, McGuire, Craddock & Strother, Dallas, TX, for Defendant.
MEMORANDUM OPINION
ROBERT L. JONES, Bankruptcy Judge.
Before the Court are the claims of plaintiffs Dudley R. Stanley and Flagship Financial Corporation ("Stanley/Flagship") that the discharge previously granted to defendant Robert Warren Paige ("Paige") in his chapter 7 bankruptcy case should be revoked under either subsection 727(d)(2) or (3) of the Bankruptcy Code. Paige contends that Stanley/Flagship's claims are barred by res judicata as such claims arise out of the same facts and circumstances that were addressed by the Court in a prior Memorandum Opinion and Order issued in connection with a motion for sanctions initiated by the chapter 7 trustee, Kent Ries (referred to as "Ries" or "the trustee"), in Paige's chapter 7 bankruptcy case. Paige also contends that the facts here do not implicate either subsection 727(d)(2) or (3) (which incorporates subsection (a)(6) of section 727).
The Court has jurisdiction over this matter under 28 U.S.C. § 1334(b); this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). This Memorandum Opinion contains the Court's findings of fact and conclusions of law. Bankruptcy Rule 7052.
*324 Statement of Facts
The claims here are, in large part, based on the same facts as those set forth by the Court in the Memorandum Opinion of March 28, 2007 (the "Memorandum Opinion"). The Memorandum Opinion resulted from a hearing before the Court on Ries's Motion to Compel Debtor to Turnover or to Approve Unauthorized Sale and to Sanction Debtor (the "Motion for Sanctions"). The Court hereby restates the facts from the Memorandum Opinion and sets forth the disposition of the Motion for Sanctions, followed by a statement of additional facts adduced from the hearing held on July 28, 2008 in the instant adversary proceeding.
1. Facts from March 28, 2007 Memorandum Opinion
Paige filed this chapter 7 case on February 6, 2004. Ries is the appointed chapter 7 trustee charged with the responsibility of administering the assets in Paige's bankruptcy estate. Paige is a medical doctor; in 2004, he was paid $869,810 from his professional association.
This case has spawned several lawsuits and other contested matters, including an objection to certain of Paige's exemptions, which was converted to an adversary proceeding; an adversary complaint by the trustee seeking to recover certain alleged fraudulent transfers; and a declaratory judgment action initiated by LaDon Paige, Paige's wife, to which the trustee filed a counterclaim. Following the trial of the exemption adversary on November 15, 2005, the principal parties involved in the various disputes began discussing a global settlement. The parties involved in such negotiations were Ries, as bankruptcy trustee representing the interests of the bankruptcy estate, Paige, and Paige's non-filing spouse, LaDon Paige. Settlement discussions culminated in a settlement conference held on December 14, 2005, at which time the terms of a global settlement were agreed upon.2
2. The actual parties to the Settlement and Mutual Release Agreement are Dr. Robert Warren Paige, LaDon Carper Paige, Robert W. Paige, LaDon Carper Paige and Glenda J. Carper, as Co-Trustees of the Robert Clayton Paige Trust # 1992 and the William Clarke Carper Paige Trust # 1992 under a trust indenture dated May 4, 1992, Bobladon, Ltd. d/b/a Catco and Maverick Enterprises, Bobladon Management, L.L.C., Blessen Road Investments, L.L.C., Robert Warren Paige, M.D., P.A., Paige Real Estate Investments, L.P., Riders-in-the-Sky, Inc., and chapter 7 trustee, Kent David Ries, in his capacity as chapter 7 trustee and on behalf of the bankruptcy estate of Robert W. Paige.
Following the settlement conference, the parties began working on a formal settlement agreement and their due diligence related to same. By the settlement, the Paiges desired to resolve the various exemption issues, the fraudulent transfer suit relating to their children's trusts, the suit regarding LaDon Paige's separate property which, in turn, related to a post-nuptial agreement with Paige and issues regarding Paige's professional association. The estate, via the trustee Ries, desired to recover assets, either cash or property, for use in making distributions to creditors. A key aspect of the settlement from the estate's perspective was LaDon Paige's agreement to waive any claim to an entity, Bobladon, Ltd., in exchange for the estate waiving any community property interest to certain personal property that she claimed as her separate property. Bobladon, Ltd. did business under at least two other names, one, "Catco," which held several classic cars and motorcycles; and the other, "Paige Real Estate," which owned a storage building for Catco for use in storing the classic automobiles and motorcycles. It also owned six duplexes and a rental house. The issue of whether Paige, at the time of the bankruptcy filing, owned *325 a one-half undivided interest in Bobladon, Ltd. or the entirety of the interest in Bobladon, Ltd. was resolved by the settlement with the bankruptcy estate receiving the entire interest in Bobladon, Ltd.
The parties signed the settlement agreement on June 7, 2006. The Court approved the settlement by its order entered on July 12, 2006, on Ries's motion seeking approval of the compromise. The parties closed the deal on August 10, 2006. As part of the settlement, eleven of the thirty classic vehicles and motorcycles owned by Bobladon, Ltd. were sold back to Paige for $854,538.03, which was the stated "book value" for the vehicles. Bobladon, Ltd., and thus the bankruptcy estate, retained the remaining nineteen vehicles. The settlement agreement specifically provides that the estate's ownership of Bobladon, Ltd. was effective as of February 6, 2004, the petition date.
The parties and their respective counsel attended the August 10, 2006 closing of the settlement agreement, along with representatives from Amarillo National Bank, FirstBank Southwest, and Dudley Stanley, a creditor of Paige. The documents were signed and the parties ostensibly worked out the logistics for having titles to the various vehicles transferred to reflect the agreement. Specifically, each title was reviewed and physically transferred to either the bankruptcy estate or Amarillo National Bank (for the debtor). Two titles were missing and Paige promised to deliver the missing two titles to the trustee. In addition, at the August 10, 2006 closing, the actual location of each car to be retained by Bobladon, Ltd. was supposedly verified by Paige. The "verified" locations for the cars to be retained by Bobladon, Ltd. were consistent with an inspection by Ries on February 6, 2006.
A few weeks prior to the closing, Paige called Ries to inquire about purchasing additional vehicles from the bankruptcy estate. Ries told Paige that such a sale was possible, but would have to take place after the closing of the settlement and upon notice in accordance with bankruptcy procedures. Ries also told Paige that his acceptance of any proposal would depend solely on whether any such sale was in the estate's best interest. On July 27, 2006, Paige submitted an offer to purchase seven of the nineteen vehicles that were to be retained by Bobladon, Ltd. under the settlement agreement. At the August 10, 2006 closing, however, Paige told the trustee that he was no longer interested in purchasing the seven vehicles, but indicated another offer may be forthcoming. Ries told Paige that he would consider any offers, but that the estate's auctioneer, Assiter & Associates, would be handling all sales negotiations concerning the vehicles.
Immediately after the August 10, 2006 closing, Ries began plans to liquidate the Bobladon, Ltd. assets. He hired real estate brokers to sell the Paige real estate properties and began negotiations with Barrett-Jackson Auction Company of Scottsdale, Arizona, with which the estate's main auctioneer, Assiter & Associates, had an affiliation. Barrett-Jackson is a leading auctioneer of classic vehicles. The trustee obtained an offer from Barrett-Jackson regarding the rate of commission, and other expenses, along with an agreement to highlight the vehicles held by Bobladon, Ltd. at a scheduled January 2007 Barrett-Jackson auction. On or about September, 2006, Ries learned from his auctioneer that four of the nineteen cars were missing. At this same time, specifically on September 14, 2006, Paige submitted to Ries a handwritten fax offer to purchase the missing four cars. Over the next few weeks, the trustee's auctioneer was able to locate the four cars and learned that they had been moved to a *326 Canadian auction house previously used by Paige, RM Auctions, Inc. The trustee then learned that the four missing cars had been sold by Paige through RM Auctions on August 5, 2006, at the Meadow Brook Hall in Rochester, Michigan. The sale took place, therefore, one week prior to the closing of the global settlement agreement. Paige's removal and sale of the four cars was not authorized by or known to the trustee. The total gross sales price received at the sale through RM Auctions, Inc. for the four cars was $648,500. By agreement between the trustee on the one hand and RM Auctions, Inc. and Paige on the other hand, and approved by this Court, the $648,500 was turned over to the trustee and the titles delivered to the purchasers at the RM Auction, Inc. auction.
The offer made by Paige for the seven cars on July 27, 2006, included the four missing cars at an aggregate price for the four cars of $565,000, the so-called "book value" for the four cars. His subsequent offer for the four cars, on September 14, 2006, after Ries learned the cars were missing, was $657,000.
At the hearing on the motion for sanctions, Paige was called as an adverse witness by the trustee, but, in response to all questions, he asserted his Fifth Amendment privilege and refused to testify.
March 28, 2007 Memorandum Opinion at 2-6.
2. Disposition of Motion for Sanctions
By the March 28, 2007 Memorandum Opinion, the Court determined that Paige's conduct in taking and selling the four cars was "intentional, deceitful, and done in bad faith. . . ." Id. at 11. The Court, therefore, sanctioned Paige in the amount of $80,000, which amount was, "in the Court's judgment, the minimum amount necessary to cover both the additional [attorney's] fees and expenses incurred by the [t]rustee in recovering the proceeds from the four cars and to deter similar conduct by Paige . . ." in the future. Id. at 13. The order entered on the Motion for Sanctions was not appealed and Paige paid the $80,000 sanctions' amount to the trustee.
3. Additional facts
(a) Additional facts regarding Paige's disposition of the four cars
Around the time Ries entered into the settlement agreement with Paige, he contacted Tommy Assiter, a local auctioneer with whom he had worked with on other cases, and requested that Mr. Assiter review the inventory of vehicles owned by Bobladon, Ltd. and advise him regarding a possible auction of the vehicles. In his efforts to evaluate the cars and to provide advice to the trustee, Assiter had several conversations with Paige. These conversations included inquiries regarding certain cars that were missing, including the four cars that are the subject of both this adversary proceeding, the trustee's adversary (discussed below), and the trustee's Motion for Sanctions. Paige told Assiter (as well as a Mr. Bennett who was apparently employed by Barrett-Jackson auction firm) that certain of the cars were in Canada undergoing repairs. He did not advise Assiter that he had sold the four cars through the RM Auction. In addition, Paige requested that Assiter speak to the trustee concerning Paige's proposal to purchase certain of the cars, including the four cars that he had sold.
Assiter recommended to Ries that the inventory of cars be placed with a larger, national auction firm, specifically Barrett-Jackson Auction Company. After reviewing the inventory of cars and speaking multiple times with Paige, and after having provided his recommendation to the trustee, Assiter had no further involvement in *327 the ultimate disposition of the Bobladon cars. He was never formally employed by Ries and has thus made no claim against the estate for his services.
The four cars sold through RM Auction are described as a 1935 Lincoln Convertible Coupe, a 1937 Hudson 8 Convertible Coupe, a 1939 Graham model 97 SC, and a 1933 Chrysler Imperial Phaeton. The 1935 Lincoln was sold for the sum of $210,000; the documentation concerning the sale of the Lincoln reflects that Paige was the consignor as well as the seller. The 1937 Hudson was sold for $66,000; the documentation concerning the auction of the 1937 Hudson reflects that Paige was the consignor and Bobladon, Ltd. was the seller. The 1939 Graham was sold for the sum of $117,500; the documentation concerning the sale of the Graham reflects that Paige was the consignor and Bobladon, Ltd. was the seller. The 1933 Chrysler Imperial was sold for the sum of $255,000; the documentation concerning the sale of the Chrysler reflects that Paige was the consignor and Bobladon, Ltd. was the seller.
(b) Ries v. Paige Adversary No. 07-2015
A few months after disposition of the Motion for Sanctions, Ries, on August 10, 2007, filed a separate adversary action against Paige ("Ries v. Paige"), adversary number 07-2015, in which he asserted causes of action against Paige for fraud and misrepresentation, fraud in the inducement, breach of warranty, and conversion. He requested the following forms of relief: revocation of an order dismissing a prior adversary proceeding, actual and punitive damages, rescission of the settlement agreement between the trustee and Paige, a preliminary injunction requiring the maintenance of certain life insurance policies and other accounts, and revocation of the discharge that was granted to Paige in his bankruptcy case. The trustee's counsel on this action was Bart Pruitt, who also represents Stanley/Flagship here. (Mr. Pruitt subsequently withdrew from his representation of the trustee.) This complaint was based on the same set of facts upon which the Motion for Sanctions was based. By its Memorandum Opinion of July 23, 2008, the Court granted a motion for summary judgment filed by Paige. The Court held that the proceedings and the ruling on Ries's Motion for Sanctions barred the trustee's causes of action in 07-2015 under principles of res judicata.
(c) Paige's discovery responses and invocation of Fifth Amendment privilege
In connection with adversary number 07-2015, Paige, on January 2, 2008, answered interrogatories served on him by Ries through Ries's counsel, Mr. Pruitt, in which he made "general objections," including his assertion that he was not waiving his right to assert his privilege under the Fifth Amendment. Pls' Ex. 38-A. He also made specific objections to specific interrogatories. Id. Ries moved the Court to compel Paige's answers to the interrogatories. The Court, by order of January 23, 2008, overruled Paige's objections to certain interrogatories. Pls' Ex. 40-A. The issue of Paige's Fifth Amendment privilege was not raised by the parties and obviously not by the Court at such time.
On February 1, 2008, Paige submitted amended answers to the interrogatories, specifically interrogatory numbers 1, 8, 18 and 19. The interrogatories and the amended answers are as follows:
1. Identify each person you plan to call as a fact witness at the trial of the above adversary proceeding.
Answer:
*328 Robert Warren Paige, LaDon Paige, Kent Ries, Spanky Assister [sic], ANB Bank representative and Rob Myers (and/or other RM Auctions designee). This answer does not include rebuttal witnesses.
8. Do you contend that the Debtor owned the four vehicles described in the Memorandum Opinion dated March 28, 2007, attached hereto as Exhibit "A" at the time the Debtor sold the vehicles, and if so, state the factual basis for such contention?
Answer:
No. BobLadon, Ltd. d/b/a CATCO owned the four vehicles at the time that the vehicles were consigned for auction for sale.
18. Do you contend that you had any valid authority allowing you to take possession of and consign for auction the four cars described in the Court's Memorandum Opinion dated March 28, 2007?
Answer:
Defendant has not formed a contention with respect to the legal issue as to whether he had `valid authority.' While Defendant does not contend that he had express authority, he contends that his prior course of conduct may have conferred upon him implied authority.
19. If your answer to the preceding Interrogatory is in the affirmative, then state how you believe you had or acquired valid authority to take possession of and consign for auction the cars in question.
Answer:
The four vehicles at the time of consignment were owned by BobLadon, Ltd. through its assumed name CATCO. Since Defendant was only a limited partner, he was not specifically authorized by BobLadon, Ltd. to consign the four vehicles in question. Moreover, LaDon Paige, as general partner of BobLadon, Ltd., did not expressly authorize Defendant to consign the four cars at auction. However, prior to the bankruptcy case, it was the regular and accepted practice for Defendant to manage CATCO and consign for auction vehicles owned by BobLadon, Ltd. d/b/a CATCO. As a result, Bobadon [sic] Ltd. d/b/a CATCO may have implicitly conferred valid authority by virtue of Defendant's prior course of conduct.
Pls' Ex. 38-B.
On April 30, 2008, Paige's deposition was taken in connection with both the instant adversary proceeding and adversary number 07-2015. In response to questions from Mr. Pruitt, as counsel for Stanley/Flagship, concerning Paige's disposition of the four cars, and whether he had any right or authority to take possession of and sell the four cars, Paige invoked the Fifth Amendment privilege and refused to answer such questions. Pls' Ex. 39-A. In addition, during the deposition, Paige confirmed his answer to the above interrogatory numbers one, eight, eighteen, and nineteen. Id. But, in doing so, he invoked his Fifth Amendment privilege and refused to answer any followup questions from the interrogatory answers. Id. In summary, Paige, during the deposition, did nothing more than agree that he previously answered interrogatory numbers one, eight, eighteen, and nineteen, but otherwise invoked the privilege as to any questions asked regarding his interrogatory answers.
Discussion
1. Res judicata defense
Paige contends that the March 28, 2007 Memorandum Opinion and the Order entered in connection with the Motion for Sanctions precludes Stanley/Flagship under principles of res judicata from asserting the causes of action here because of their involvement in the prior proceeding. *329 Stanley/Flagship submit that they were not parties to the Motion for Sanctions, that they had, in effect, no standing to bring the Motion for Sanctions, and that such action was solely within the province of the trustee, Ries, and their participation was merely supportive of the trustee's position.
Under res judicata, subsequent suits may be barred under claim preclusion, true res judicata, or collateral estoppel, better known as issue preclusion. Test Masters Educ. Serv., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005). A party is barred from bringing subsequent litigation over claims that have previously been litigated or should have been litigated. Id. Res judicata applies when:
(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.
Id. Paige asserts the res judicata defense as to all of Stanley/Flagship's claims, both the subsection 727(d)(2) claim for acquiring property of the estate, and knowingly and fraudulently failing to report such acquisition or to surrender such property to the trustee; and the subsection 727(d)(3) claim (incorporating subsection (a)(6)) for refusing, on a ground other than the properly invoked privilege against self-incrimination, to respond to a material question approved by the Court or to testify.
(a) Res judicata not applicable to 727(d)(3) claim
As a threshold matter, the Court draws a distinction between the application of res judicata to Stanley/Flagship's claim under subsection (d)(2) of section 727 as opposed to its application to subsection (d)(3) of section 727. The (d)(2) claim is based on the same facts as those upon which the Motion for Sanctions was based. The second claim, the (d)(3) claim, is not based on the same facts. It arises, in large part, out of Paige's discovery responses, specifically his January 2, 2008 answers to interrogatories, his February 1, 2008 amended answers to interrogatories, and his invocation of the Fifth Amendment privilege during the April 30, 2008 deposition. The subsection 727(d)(2) claim arises out of the "same nucleus of operative facts" as did the Motion for Sanctions; just as clearly, the subsection 727(d)(3) claim (and (a)(6)) does not. Accordingly, the same cause of action is not involved both here and in the Motion for Sanctions on the (d)(3) claim and res judicata is not applicable. See July 23, 2008 Memorandum Opinion in Ries v. Paige, adversary no. 07-2015, 2008 WL 2938545.[1]
(b) Applicability of res judicata to 727(d)(2) claim identity of parties element
The Court addresses the elements of res judicata as they apply to the subsection 727(d)(2) claim made by Stanley/Flagship. First, the second and third elements of res judicata are not in dispute. Plus, the Court held in Ries v. Paige that Ries's revocation claims arose from the same nucleus of operative facts as those considered in the Motion for Sanctions proceeding, and thus concluded that the same cause of action was involved in both actions. As *330 stated, Stanley/Flagship base their revocation claim under subsection 727(d)(2) upon the same facts, the facts that are quoted above from the Court's March 28, 2007 Memorandum Opinion. As with Ries v. Paige, the (d)(2) claim involves the same cause of action as did the Motion for Sanctions. The question, then, is whether Stanley/Flagship's involvement and interest in the Motion for Sanctions proceeding mean they satisfy the identity of parties requirement, the first element of res judicata.
Considered to be one of the fundamentals of American Jurisprudence is the notion that one not a party to a suit is not bound by the judgment. Martin v. Wilks, 490 U.S. 755, 761-62, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (citations omitted). "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Id. at 762. Typically, in order to bind one to the lawsuit, the parties must follow the procedures of joinder or intervention as set forth in the Federal Rules of Civil Procedure, or as in this case, the Federal Rules of Bankruptcy Procedure. See id. at 763. "`Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.'" Id. (quoting Chase Nat'l Bank v. Norwalk, 291 U.S. 431, 441, 54 S.Ct. 475, 78 L.Ed. 894 (1934)).
(c) Taylor v. Sturgell virtual or adequate representation/other exceptions
Paige argues that Stanley/Flagship must either be considered to have been parties to the Motion for Sanctions or, alternatively, to have been "virtually represented" by the trustee, Ries, in connection with the Motion for Sanctions. Whether Stanley/Flagship's participation in the Motion for Sanctions or the trustee's handling of the matter is sufficient to satisfy the first element of res judicata is a complex question. To begin the analysis, the Court turns first to the recent opinion of the Supreme Court in Taylor v. Sturgell, ___ U.S. ___, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). In Taylor v. Sturgell, the Supreme Court addressed "whether there is a virtual representation" exception to the general rule "that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Id. at 2166-67. The Supreme Court noted that "[a] person who was not a party to a suit generally has not had a `full and fair opportunity to litigate' the claims and issues settled in that suit." Id. at 2171. The Supreme Court recognized, however, that "[t]hough hardly in doubt, the rule against nonparty preclusion is subject to exceptions." Id. at 2172. The Supreme Court grouped the recognized exceptions into six categories.[2]
First, "[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.". . . .
Second, nonparty preclusion may be justified based on a variety of pre-existing "substantive legal relationship[s]" between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U.S., at 798, 116 S.Ct. 1761, 135 L.Ed.2d 76. Qualifying *331 relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor....
Third, ... "in certain limited circumstances," a nonparty may be bound by a judgment because she was "adequately represented by someone with the same interests who [wa]s a party" to the suit. Richards, 517 U.S., at 798, 116 S.Ct. 1761, 135 L.Ed.2d 76 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U.S., at 762, n. 2, 109 S.Ct. 2180, 104 L.Ed.2d 835 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). See also 1 Restatement § 41.
Fourth, a nonparty is bound by a judgment if she "assume[d] control" over the litigation in which that judgment was rendered. Montana, 440 U.S., at 154, 99 S.Ct. 970, 59 L.Ed.2d 210. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 262, n. 4, 81 S.Ct. 557, 5 L.Ed.2d 546 (1961); 1 Restatement § 39. Because such a person has had "the opportunity to present proofs and argument," he has already "had his day in court" even though he was not a formal party to the litigation....
Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R.I. & P.R. Co. v. Schendel, 270 U.S. 611, 620, 623, 46 S.Ct. 420, 70 L.Ed. 757 (1926); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper § 4454, pp. 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment....
Sixth, in certain circumstances a special statutory scheme may "expressly foreclos[e] successive litigation by nonlitigants... if the scheme is otherwise consistent with due process."
Id. at 2172-73.
In addition to the above six established categories, the Supreme Court noted that "some lower courts have recognized a `virtual representation' exception to the rule against nonparty preclusion." Id. at 2173. The Supreme Court stated as follows:
Some Circuits use the label [of virtual representation], but define "virtual representation" so that it is no broader than the recognized exception for adequate representation. (citations omitted) But other courts, including the Eighth, Ninth, and D.C. Circuits, apply multifactor tests for virtual representation that permit nonparty preclusion in cases that do not fit within any of the established exceptions. (citations omitted)
Id. at 2173. The Supreme Court rejected a broad doctrine of virtual representation, holding that a
party's representation of a nonparty is "adequate" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned (citations omitted); and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, (citation omitted). In addition, adequate representation sometimes requires (3) notice *332 of the original suit to the persons alleged to have been represented....
Id. at 2176.
As stated, Paige argues that the trustee, Ries, virtually represented Stanley/Flagship in connection with the Motion for Sanctions. However, the Supreme Court emphasized that its rejection of the broad doctrine of virtual representation rested on the limitations attending nonparty preclusion based on the adequate representation exception. As a result, neither the virtual representation exception nor the adequate representation exception can be applied here. Ries and Stanley/Flagship do not, by the terms of the statute, have the same interests in a revocation of discharge action. Subsection 727(d) provides that the trustee, a creditor, or the United States trustee may request a revocation of discharge. 11 U.S.C. § 727(d). Each potential partythe trustee, a creditor, or the United States trusteehas an independent right to bring a revocation of discharge claim under subsection 727(d). The Cadle Co. v. Reed, 392 B.R. 675, 682-83 (N.D.Tex.2008); see also In re Hansen, 368 B.R. 868, 879 (9th Cir. BAP 2007) (holding that a creditor's interest in a subsection 727(a) action, an action seeking denial of discharge, is similar but not identical to the interests of a trustee in such action and therefore the creditor cannot be bound by the trustee's settlement of a subsection 727(a) action that is based on the same grounds).
(d) Stanley/Flagship as parties to the Motion for Sanctions
The question, then, devolves to whether Stanley/Flagship were in fact parties to the Motion for Sanctions proceeding or whether their involvement satisfies one of the other recognized exceptions. In Taylor v. Sturgell, the party against whom res judicata was asserted was clearly not a party to the first action. Parties to federal lawsuits are generally easily identified. The named plaintiff and named defendant are parties. Ries and Paige were clearly parties to the Motion for Sanctions proceeding. Stanley/Flagship, as creditors, are parties to Paige's underlying bankruptcy case in which the Motion for Sanctions, a contested matter, arose. They also participated extensively in the Motion for Sanctions proceeding. They filed a response to the Motion for Sanctions and joined the trustee in his request for sanctions (and/or damages) and a constructive trust. Their counsel, Mr. Pruitt, took Paige's deposition; at the hearing on the Motion for Sanctions, their counsel made an opening statement, questioned witnesses, and made a closing argument. Their involvement was as extensive as was the trustee's.
Stanley/Flagship argue that the Motion for Sanctions was solely the trustee's motion and that they were merely cheerleading. The Court concedes that while Stanley/Flagship were not seeking a direct recovery from Paige, they were, as major creditors in the case, fully cognizant that they would share in any recovery or sanction awarded on the matter, especially if an award was made in the amount requested both by the trustee and Stanley/Flagship.
Stanley/Flagship argue that they should not be deemed parties to the Motion for Sanctions because they are not signatories to the underlying settlement agreement which Paige arguably breached by taking and selling the four cars. However, while they did not sign the settlement agreement itself, Dudley Stanley was present at the closing of the settlement agreement; and they were fully aware of the terms of the settlement agreement. They knew that the settlement agreement was negotiated by the trustee with the best interests *333 of creditors in mind, specifically Stanley/Flagship. They were formally provided with notice of the settlement agreement and the Court's consideration of the settlement agreement. They filed no objection to the settlement agreement; the Court infers that they specifically approved of the terms of the settlement agreement and knew they would be the primary beneficiaries of the settlement agreement. They clearly had a stake in the matter; Paige's wrongful conduct triggered both the trustee's and Stanley/Flagship's response the filing and prosecution of the Motion for Sanctions.
The Motion for Sanctions was prosecuted by the trustee for the benefit of the bankruptcy estate. Stanley/Flagship, the Court concludes, chose to make themselves parties to the action. They were just as much a party as one that has joined a typical federal lawsuit under Rule 20 of the Federal Rules of Civil Procedure. No objection was raised to their joinder and they proceeded to participate as a moving party. The Court concludes that Stanley/Flagship were parties to the Motion for Sanctions.
(e) Stanley/Flagship as nonparties assuming control
The Court recognizes that the foregoing analysis may, arguably, be properly made within the context of the fourth exception recognized by the Supreme Court in Taylor v. Sturgellthe assumption of control exception. To extend the analysis within the parameters of this exception, the Court looks first to the Restatement (Second) of Judgments at section 39, which states that "[a] person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party."
[O]ne who ... assists in the prosecution or defense of an action in aid of some interest of his own, and who does this openly, to the knowledge of the opposing party, is as much bound by the judgment... as he would be if he had been a party to the record.
Souffront v. La Compagnie des Sucreries de Porto Rico, 217 U.S. 475, 487, 30 S.Ct. 608, 54 L.Ed. 846 (1910). The nonparty's participation has been characterized as elevating a nonparty to a de facto party thereby subjecting them to the preclusionary effects of the prior litigation. See 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4451 (2d ed.2002); see also Southmark Properties v. Charles House Corp., 742 F.2d 862, 869-70 (5th Cir.1984) (holding that president of corporation sufficiently participated in the proceedings to be considered a party).
The determination of how much control satisfies the exception is a question of fact "to be determined by looking for that measure of `practical control' that makes it fair to impose preclusion." FEDERAL PRACTICE AND PROCEDURE § 4451. The level of control does not require named parties to relinquish control, but sufficient control as would be expected between co-parties. Id. The Supreme Court has characterized the necessary control as one having a "sufficient `laboring oar' in the conduct of the [prior] litigation." Montana v. United States, 440 U.S. 147, 154-55, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (quoting Drummond v. United States, 324 U.S. 316, 318, 65 S.Ct. 659, 89 L.Ed. 969 (1945)).
Stanley/Flagship's control was no less than that of a co-party. They had a "sufficient `laboring oar' in the conduct" in the sanctions hearing and had their day in court. See Montana, 440 U.S. at 154-55, 99 S.Ct. 970; see also Schnell v. Peter *334 Eckrich & Sons, Inc., 365 U.S. 260, 262, n. 4, 81 S.Ct. 557, 5 L.Ed.2d 546 (1961). Stanley/Flagship's participation rose to the level of a de facto party and, therefore, satisfies the control exception. See Southmark, 742 F.2d at 869-70.
(f) Whether Stanley/Flagship could have or should have sought revocation of discharge
The four elements of res judicata are met on Stanley/Flagship's subsection 727(d)(2) claim. The Court must still determine whether Stanley/Flagship's claim could have or should have been brought in the prior proceeding, however. Howe v. Vaughan (Matter of Howe), 913 F.2d 1138, 1145 (5th Cir.1990). The Court, in Ries v. Paige, found this requirement was met because the trustee, Ries, had an awareness of the other potential claims against Paige and that the bankruptcy procedures, specifically the adversary rules under part seven of the Bankruptcy Rules, afforded the necessary procedural means for litigating such claims. See July 23, 2008 Memorandum Opinion on Ries v. Paige, at *8-9, citing In re Intelogic Trace, 200 F.3d 382, 388 (5th Cir.2000). Just as the Court found in Ries v. Paige, the Court discerns no practical reason why Stanley/Flagship was prevented or thwarted in any way from asserting their revocation claims within the context of the prior proceeding.
Even if Stanley/Flagship are technically characterized as nonparties to the Motion for Sanctions, but with sufficient control to satisfy the control exception, the Court looks to the undisputed named-party, here the trustee, Ries, in resolving this could-have or should-have requirement.
Both parties and their privies are barred from relitigating matters that could or should have been raised in the prior proceeding. Eubanks v. FDIC, 977 F.2d 166, 173 (5th Cir.1992) (quoting Miller v. Meinhard-Commercial Corp., 462 F.2d 358, 360 (5th Cir.1972)). In determining whether the action could or should have been litigated, the courts look to the parties in the previous proceeding. Eubanks, 977 F.2d at 173 (stating that the focus is on whether the prior party could have or should have brought the claim). A party includes one who is a named party or one who rises to the level of a de facto party. See Southmark, 742 F.2d at 870. In the case of privies, the court still looks at whether the representative party could or should have brought the action in the prior proceeding. See Eubanks, 977 F.2d at 173; In re Intelogic Trace, 200 F.3d at 388. For the reasons summarized above and as explained in detail in Ries v. Paige, the trustee could have or should have brought his substantive claims; therefore, so could have Stanley/Flagship. Id.
2. Subsection 727(d)(3) (and (a)(6)(C)) claim
Subsection 727(d)(3) states that the court shall revoke a discharge if the debtor commits any act specified in subsection 727(a)(6). § 727(d)(3). Stanley/Flagship allege that Paige violated subsection 727(a)(6)(C), which provides that the debtor's discharge may be denied if
(6) the debtor has refused, in the case
...
(C) on a ground other than the properly invoked privilege against self-incrimination, to respond to a material question approved by the court or to testify....
§ 727(a)(6)(C). Thus, in order for the Court to revoke Paige's discharge, it must be shown first that Paige improperly invoked his privilege against self-incrimination, and, second, that Paige refused to answer a material question approved by the Court.
*335 (a) Invocation of a privilege against self-incrimination
A party may invoke his privilege against self-incrimination if the answer to a question or testimony poses a real danger of criminal responsibility. See McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924). A party may, however, waive his ability to invoke his privilege to subsequent questioning by answering questions that already disclosed incriminating facts. Rogers v. United States, 340 U.S. 367, 372-73, 71 S.Ct. 438, 95 L.Ed. 344 (1951). Moreover, "[d]isclosure of a fact waives the privilege as to details." Id. at 373, 71 S.Ct. 438. Thus, a party who voluntarily reveals incriminating facts cannot invoke the privilege to prevent disclosure regarding the details of those facts. Id. Nonetheless, the court's analysis does not end there because the court must determine whether further questioning "subject[s] the witness to a `real danger' of further crimination." Id. at 374, 71 S.Ct. 438. In fact, "the [party] may still `refuse to answer any questions about a matter already discussed, even if facts already revealed are incriminating, as long as the answers may tend to further incriminate [the party].'" In re Hulon, 92 B.R. 670, 674 (Bankr.N.D.Tex.1988) (quoting In re Master Key Litigation, 507 F.2d 292, 294 (9th Cir.1974)); see also Duffy v. Currier, 291 F.Supp. 810, 814-15 (D.Minn. 1968) (finding that subsequent questioning in deposition would cause the defendant to further incriminate himself).
Duffy is on point with the case at hand. Duffy dealt with a wrongful death action that stemmed from a car accident. Duffy, 291 F.Supp. at 811-12. The plaintiff served the defendant with a set of interrogatories which the defendant answered, admitting that the defendant drank beer and drove the car involved in the accident. Id. at 814. The plaintiff then took an oral deposition of the defendant at which the defendant invoked his privilege against self-incrimination. Id. The plaintiff argued that the privilege had been waived by the defendant's earlier answers to interrogatories. Id. The district court, nonetheless, sustained the defendant's assertion of privilege because the court found that further questioning would further incriminate the defendant beyond what might have been done by answering the interrogatories. Id.
Here, Paige asserted his privilege against self-incrimination during an oral deposition after already answering interrogatories that dealt with the same facts. Stanley/Flagship allege that Paige waived his privilege by answering the interrogatories and therefore has improperly invoked his privilege against self-incrimination. Stanley/Flagship, however, never attempted to compel Paige to answer the deposition question and never sought a determination from this Court of whether Paige could invoke his privilege against self-incrimination. The deposition questioning, at least arguably, could have further incriminated Paige. If so, Paige still had the right to invoke his privilege against self-incrimination. See Rogers, 340 U.S. at 374, 71 S.Ct. 438.
(b) Material question approved by the court
Even if the Court determined that Paige improperly invoked his privilege against self-incrimination, the Court must decide if Paige refused to answer a material question approved by the Court. See § 727(a)(6)(C); see also In re Jones, 490 F.2d 452, 456 (5th Cir.1974) (the court held in an action under the Bankruptcy Act that the right to a discharge is statutory and the construction of a provision of the Act that results in denial of the discharge should be made "liberally in favor *336 of the bankrupt and strictly against the objecting creditor"). The questions, therefore, which a debtor refuses to answer must be material and approved by the court. See Chicago Title Ins. Co., Inc. v. Mart (In re Mart), 90 B.R. 547, 548 (Bankr.S.D.Fla.1988) (finding that proponent of the deposition did not seek approval of the questions); see also Gore v. Kressner (In re Kressner), 206 B.R. 303, 317 (Bankr.S.D.N.Y.1997) (refusing to answer question in Rule 2004 examination ordered by the court did not amount to a refusal to answer a question ordered by the court). "The debtor's refusal to answer a question that has not been approved by the court is not a basis for denial of a discharge." 6 GOLDSTEIN, SHEINFELD, SOMMER & ZARETSKY, COLLIER ON BANKRUPTCY ¶ 727.09[3] (15th ed. rev.2008). The burden to seek approval by the court is on the proponent of the question. See In re Mart, 90 B.R. at 548. In fact, if the proponent of the question never seeks approval, the debtor does not violate subsection 727(a)(6)(C). Id.
The Court was unable to find any case law addressing whether a prior approved interrogatory is deemed an approved question by the court when asked at a subsequent oral deposition. However, the analysis should be similar to the analysis in determining whether a debtor can invoke his privilege against self-incrimination during an oral deposition even though the debtor revealed incriminating facts in an interrogatory. See e.g., Duffy, 291 F.Supp. at 814. In other words, each question should be considered separate and apart from the prior question. Furthermore, the discharge provision should be construed in favor of the debtor and against the party seeking revocation. See In re Jones, 490 F.2d at 456. Thus, it falls upon the party seeking revocation to obtain court approval of the question. See In re Mart, 90 B.R. at 548. If the party fails to seek court approval, even though a prior similar question was approved earlier by the court, the debtor may refuse to respond without violating subsection 727(a)(6)(C). See id.
Paige did not improperly invoke his privilege against self-incrimination; the Court was not called upon to "approve" a question, thus Paige did not refuse to answer such a question. See In re Hulon, 92 B.R. at 674 (stating that privilege still exists if question further incriminates the debtor); Duffy, 291 F.Supp. at 814 (same); In re Mart, 90 B.R. at 548 (stating that debtor does not violate discharge provision if the question was not approved by the court). While Paige did reveal incriminating facts during the interrogatory, he can still invoke his privilege against self-incrimination if the questions asked at the deposition posed a real danger of further incrimination. See In re Hulon, 92 B.R. at 674. The Court concludes that Paige did not violate subsection 727(a)(6)(C) of the Bankruptcy Code.
Conclusion
For the reasons stated, the Court concludes that res judicata bars Stanley/Flagship's claim made under subsection 727(d)(2) of the Bankruptcy Code. In addition, Stanley/Flagship's claim for revocation of discharge under subsection 727(d)(3) (and such provision's incorporation of subsection 727(a)(6)) is not barred by res judicata because such claim does not arise from the same facts as does the Motion for Sanctions proceeding and, therefore, is not the same cause of action. Such other facts do not, however, satisfy the specific requirements of subsection (a)(6) of section 727. A careful analysis of the facts do not support a conclusion that Paige either improperly invoked his privilege against self-incrimination or that the *337 questions asked to which the privilege was asserted were "approved" by the Court.
In reaching this decision, the Court in no way condones Paige's conduct that is outlined here and in the Court's prior Memorandum Opinion. Such conduct may, at the very least, constitute a fraud on the trustee, the bankruptcy estate, its creditors, and the Court. The prior adjudication before this Court on the Motion for Sanctions did, at least in part, address Paige's improper conduct. However, the application of res judicata prevents the Court from deciding whether another and further remedy is proper.
NOTES
[1] The Court's July 23, 2008 Memorandum Opinion issued in the Ries v. Paige adversary proceeding addressed whether substantive claims by the trustee were barred by res judicata, specifically, whether such claims involved the same cause of action as raised in the Motion for Sanctions. As discussed therein, resolution of this question turned on the Fifth Circuit's opinion in In re Intelogic Trace, 200 F.3d 382 (5th Cir.2000).
[2] The Supreme Court stated that the established grounds for nonparty preclusion could be organized differently and that its list was intended to provide a framework for its consideration of the question of virtual representation, which was the specific exception to the rule against nonparty preclusion that was before the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918701/ | 411 B.R. 447 (2009)
In re S & I INVESTMENTS, a Florida General Partnership, Debtor.
No. 08-26220-BKC-RBR.
United States Bankruptcy Court, S.D. Florida, Broward Division.
June 17, 2009.
*449 S & I Investments, a Florida General Partnership, pro se.
Chad P. Pugatch, Esq., Mark S. Roher, Esq., Ft. Lauderdale, FL, for Petitioning Creditor.
Eyal Berger, Ft. Lauderdale, FL, James H. Fierberg, Esq., Miami, FL, Leslie S. Osborne, Esq., Boca Raton, FL, for Trustee.
Denyse Heffner, Office of the U.S. Trustee, Miami, FL, U.S. Trustee.
ORDER GRANTING TRUSTEE'S MOTION TO ASSUME LEASE
RAYMOND B. RAY, Bankruptcy Judge.
THIS MATTER came before the Court for hearing on May 18, 2009 (the "Hearing") upon the Trustee's Motion to Assume Lease (the "Motion") [D.E. 95], The Court deems the complaint filed in Adversary Proceeding No. 09-01474-RBR-A to constitute a responsive pleading with respect to the Motion. The Court, having heard from counsel, reviewed the contents of the case file and being otherwise duly informed, makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
This case was commenced by the filing of an involuntary petition (the "Involuntary Petition") [D.E. 1] under chapter 11 of the Bankruptcy Code on October 29, 2009 (the "Petition Date"). The Involuntary Petition was filed by Stephanie Richmond, a 50% owner of the Debtor. Sisters Stephanie Richmond and Ilene Richmond (the "Richmonds") own the Debtor in equal shares. On January 7, 2009, the Court entered an order for relief in the case [D.E. 36]. On February 6, 2009, the Court appointed Leslie S. Osborne as the chapter 11 trustee [D.E. 63]. On February 18, 2009, the Debtor filed its schedules [D.E. 75]. The lease that is the subject of the Motion is reflected as an asset on Schedule B and as an Executory Contract in Unexpired Lease on Schedule G. The Trustee filed the Motion [D.E. 95] on April 23, 2009.
On April 27, 2009, Lori D. Ritenour and Steven G. Ritenour as co-trustees of the Lori D. Ritenour and Steven G. Ritenour Living Trust U/A (the "Ritenour Trust"), Lorraine Vreeland as successor trustee of the Harold S. Vreeland and Lorraine Vreeland Living Trust (the "Vreeland Trust"), and A. Lorraine Vreeland as trustee of the A. Lorraine Vreeland Revocable Living Trust (the "Vreeland Revocable Trust") (collectively the "non-Richmond Fee Owners"), whose interests constitute two-thirds (2/3) of the underlying fee in the Property, initiated an adversary proceeding (Adv.Pro. No. 09-01474-RBR-A) against the Trustee, the Richmonds, and Payless Flea Market, Inc. The complaint filed by the non-Richmond Fee Owners seeks, inter alia, a judgment that declares that the Debtor has no interest in a lease between Cornelia DeVeauz Vreeland and *450 Ilene Corporation due to the lack of a written, recorded assignment.
Other than cash and causes of action, if any, the sole material asset of the estate is its alleged interest in the above referenced ground lease (the "Lease") originally dated March 12, 1955 by and between Corenila DeVeaux Vreeland (the "Lessor") and Ilene Corporation, a Florida corporation. The term of the Lease was originally 49 years. On or about January 17, 1962, the Lease was amended to extend the total term of the Lease to 99 years, until 2054. The subject of the Lease is a parcel of commercial real estate located at 2941 East Las Olas Blvd and 136 Almond Avenue, Fort Lauderdale, Florida (the "Property"). The Property consists of a strip mall type development located very close to Fort Lauderdale Beach. According to the Trustee and Stephanie Richmond, the remaining term of the Lease has substantial value. The Court makes no finding on the value of the Lease, but acknowledges that it is within the business judgment of the Trustee to seek Court approval to assume the lease.
The Lease provides for rental payments to be increased periodically based upon a formula tied to the Consumer Price Index. The non-Richmond Fee Owners allege that the increased rental payments have never been made.
On or about April 10, 1991, the interest of Ilene Corporation was assigned of record to Ilene Richmond and Stephanie Richmond, individually, in accordance with the provisions of Article VII of the Lease. At some point prior to 1991, a decision was made to operate the leasehold interest through a Florida general partnership, and the Richmonds created the Debtor. The Richmonds have always been the sole equal partners of the Debtor. Subsequent to April 10, 1991, the Richmonds contributed their leasehold interests to the Debtor; however, no formal assignment of the leasehold interests to the Debtor was ever written or recorded.
At the Hearing, the Trustee introduced a document called Business Property Lease, dated August 24, 1995, between the Debtor and Payless FleaMarket (the "Payless Sublease"). The exhibit was acknowledged by the Trustee and Stephanie Richmond to be incomplete, but the Court was advised that it was only being introduced to demonstrate that as early as August 1995 the Debtor acted consistently with the position that it was the lessee under the Lease. The Court accepts the Payless Sublease for that sole evidentiary purpose. The Trustee also introduced various bank statements and cancelled checks of the Debtor that show payments were tended to the non-Richmond Fee Owners, or their predecessors in interest, since at least June 1997. The copies of the checks introduced by the Trustee do not bear any restrictive endorsement of any kind. Except as set forth in the next paragraph, the checks were consistently accepted, endorsed (without restriction) and negotiated by the non-Richmond Fee Owners and their predecessors in interest.
Beginning in late 2007, Lori D. Ritenour and Steven G. Ritenour, as co-trustees of the Ritenour Trust, appear to have ceased accepting rent checks from the Debtor. It appears from testimony at the Hearing that A. Lorraine Vreeland, as trustee of the Vreeland Revocable Trust, continued accepting, endorsing, and negotiating rent checks until the Petition Date. Ilene Richmond has never refused rent payments.[1]
The Richmonds have consistently had joint operational control of the Debtor *451 through the date of the appointment of the Trustee. At the Hearing, counsel for Ilene Richmond appeared and advised the Court that Ilene Richmond supports the Motion.
Stephanie Richmond was the sole testifying witness at the Hearing. The Court having listened to her testimony under oath, as well as her cross-examination, and having had the opportunity to review her candor and demeanor, finds her testimony to be truthful and reliable.
The non-Richmond Fee Owners did not introduce any documents into evidence or call any witnesses.
CONCLUSIONS OF LAW
The issues before the Court are: (1) whether the non-Richmond Fee Owners waived the requirements for assignment set out in Article VII of the Lease, and (2) whether the anti-waiver provision in Article XVII (A) of the Lease would prevent any such waiver.
Under 11 U.S.C. § 541(a)(1), "all legal or equitable interests of the debtor in property as of the commencement of the case" become property of the estate. This section is interpreted broadly. United States v. Whiting Pools, Inc., 462 U.S. 198, 204-205, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983); In re Builders Transport, Inc., 471 F.3d 1178 (11th Cir.2006).
Accordingly, the Debtor's interest in the unexpired 45 year term of the Lease is property of the estate, which the Trustee may assume or reject under 11 U.S.C. § 365 if the Debtor was a lessee at the Petition Date. See In re Key Largo Watersports, Inc., 377 B.R. 738, 741 (Bankr. S.D.Fla.2007); In re Yanks, 39 B.R. 908 (Bankr.S.D.Fla.1984).
Property interests in bankruptcy are created and defined by state law. Butner v. U.S., 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), In re Porterfield, 331 B.R. 480 (Bankr.S.D.Fla.2005).
Under Florida law, a "lessor's failure to enforce the provisions of a lease prevents the lessor from subsequently enforcing those provisions." In re Boogaart of Florida, Inc., 17 B.R. 480, 485 (Bankr. S.D.Fla.1981). Thus, a waived lease provision is effectively stricken from the lease. Id.
Florida law defines a waiver as either an intentional or voluntary relinquishment of a known right, or conduct giving rise to an inference of a relinquishment of a known right. Sentry Ins. v. Brown, 424 So.2d 780, 784 (Fla. 1st DCA 1982). Waiver requires the existence at the time of the alleged waiver of a right which may be waived, actual or constructive knowledge of that right, and the intention to relinquish that right. Matter of Garfinkle, 672 F.2d 1340, 1347 (11th Cir. 1982). The doctrine of waiver holds that a party may waive a covenant of a contract for whose benefit it is inserted. In re Marineland Ocean Resorts, Inc., 242 B.R. 748, 757 (Bankr.M.D.Fla.1999). Waiver may be express or implied from conduct. Id. For waiver to be implied from conduct, the acts, conduct or circumstances relied upon to show waiver must make out a clear case. Fireman's Fund Ins. Co. v. Vogel, 195 So.2d 20, 24 (Fla. 2nd DCA 1967). Determination of a waiver is a factual inquiry for the trier of fact. Matter of Garfinkle, 672 at 1348.
Article VII of the Lease provides that a valid assignment must be recorded in the Office of the Circuit Court in and for Broward, County, Florida, and for the lessee to provide additional documentation to the lessor (the "Assignment Requirements"). Such a provision is typically for the benefit of the original lessor to *452 assure that the financial bona fides of the proposed assignee are established. Stephanie Richmond and Ilene Richmond did not comply with the Assignment Requirements when they assigned their interests to the Debtor.
However, the course of dealing between the Debtor and the non-Richmond Fee Owners since at least 1997 demonstrably indicates that the non-Richmond Fee Owners knew of the role of the Debtor in the Lease. Here, given the long-term acceptance of performance from the Debtor without protest, the non-Richmond Fee Owners engaged in a course of conduct that was reasonably susceptible of a good faith construction by the Debtor that the unrecorded assignment had been accepted and the condition waived. For nearly twelve (12) years, the non-Richmond Fee Owners accepted payments and had knowledge of the operation of the Property by the Debtor. See Moskos v. Hand, 247 So.2d 795, 796 (Fla. 4th DCA 1971) (holding that a lessor is estopped to assert a forfeiture for a breach of condition of a lease, or it waives the right to such forfeiture, where after the breach, he accepts rent from the tenant with full notice thereof). By accepting rent from the Debtor and only the Debtor from at least 1997, there is a reasonable basis to conclude that the non-Richmond Fee Owners knew that they were dealing with the Debtor from that time. Given the above, the non-Richmond Fee Owners waived the Assignment Requirements set out in Article VII of the Lease.
The Lease also contains an "anti-waiver" provision. Article XVII (A) of the Lease states: "It is covenated and agreed that no waiver or breach of any of the covenants contained (sic) shall be construed to be a waiver of any succeeding breach of the same covenant."
While the Court of Appeals for the Eleventh Circuit generally recognizes that anti-waiver provisions can be enforceable and have been upheld by Florida courts, such recognition is not without limitation. See MCA Television Ltd. v. Public Interest Corp., 171 F.3d 1265, 1270 (11th Cir.1999); Western World, Inc. v. Dansby, 603 So.2d 597, 601 (Fla. 1st DCA 1992). An examination of the specific language contained in the particular anti-waiver provision is required. See Dansby, 603 So.2d at 601. In Dansby, the Court found that an anti-waiver provision, which had very similar language to the provision in this Lease, did not prevent a waiver, because the language did not specifically state that certain types of behavior did not constitute a waiver. Id. By contrast in Philpot v. Bouchelle, the court upheld an anti-waiver provision because it determined that the parties had specifically agreed that acceptance of late rental payments would not constitute a waiver of the lessor's rights. 411 So.2d 1341, 1344-1345 (Fla. 1st DCA 1982). The difference in the anti-waiver provisions in Philpot and Dansby lie in the specificity of the behavior that would or would not constitute a waiver. See Philpot, 411 at 1344-1345; Dansby, 603 at 601.
Here, the Debtor and the non-Richmond Fee Owners did not specifically agree that an assignment not in compliance with the Assignment Requirements would prevent a waiver. Thus, the anti-waiver provisions of the Lease are not enforceable in that context.
For all the foregoing reasons, it is ORDERED that
1. The Motion [D.E. 95] is GRANTED. The Court will set a time and date for an evidentiary hearing to determine the amount of post-petition rental payments due under the Lease and the cure amount due in connection with the assumption *453 of the Lease pursuant to 11 U.S.C. Section 365.
2. The Court will enter a separate Order dismissing the Adversary Proceeding.
NOTES
[1] Ilene Richmond through her interest in the Ilene Richmond Living Trust owns the remaining one-third (1/3) interest in the underlying fee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918704/ | 411 B.R. 524 (2009)
In the Matter of GLOBAL ONE, L.L.C., Debtor.
Suntrust Bank, Movant
v.
Global One, L.L.C., Respondent.
No. 08-41197.
United States Bankruptcy Court, S.D. Georgia, Savannah Division.
July 21, 2009.
*525 C. James McCallar, Jr., McCallar Law Firm, Savannah, GA, for Debtor.
MEMORANDUM AND ORDER ON MOTION FOR RELIEF FROM STAY
LAMAR W. DAVIS, JR., Bankruptcy Judge.
FINDINGS OF FACT Debtor filed a Chapter 7 case on July 7, 2008. In its schedules and statement of *526 financial affairs, Debtor reported it owned approximately 102 acres on Noel C. Conway Road, Effingham County, Georgia (the. "Property"), a checking account at SunTrust Bank, and a counterclaim against Portrait Homes-South Carolina LLC ("Portrait Homes") in the Superior Court of Chatham County, Georgia, Case No. 07-0603-BR. See Schedules, Dckt. No. 8, pgs. 3-4, 6 & 11 (July 22, 2008); Answer and Counterclaim, Dckt.No. 71, Exhibit (June 16, 2009); Statement of Financial Affairs, Dckt. No. 8, pg. 15. Debtor described the nature of its business as a "single asset LLC to develop property," admitted it is receiving no income from the operation of the business, and also identified its business as a "single asset real estate" business as defined in 11 U.S.C. § 101. Statement of Financial Affairs, Dckt. No. 8, pgs. 14 & 19. SunTrust Bank ("SunTrust") holds a first mortgage on the Property in the amount of $548,159.21, and Nancy Dickinson holds a second mortgage on the Property in the amount of $237,653.00. See Claim Nos. 2 &4.
On March 19, 2009, SunTrust filed a Motion for Relief from the Automatic Stay. SunTrust asks for relief under 11 U.S.C. § 362(d)(1) arguing that it is not adequately protected because as of December 1, 2008, the value of the real property is $460,000.00, far less than the secured claim.. SunTrust also asks for relief under § 362(d)(3) arguing that the Property securing its claim is "single asset real estate" as defined under 11 U.S.C. § 101(51B) and that Debtor and the Chapter 7 Trustee have not initiated interest payments as required under (d)(3)(B). Motion, Dckt. No. 38. After a hearing on the Motion on May 22, 2009, SunTrust filed a brief in support of their Motion. Brief, Dckt.No. 70 (June 5, 2009).
At the hearing, SunTrust's only witness was Joel Crisler, an appraiser. Crisler stated that in his expert opinion the fair market value of the Property was $460,000.00, a value which is based upon a future value of $1,197,800.00 with a five year holding period at a discount rate of twenty percent. Debtor's first witness, Johnnie Ganem, who is also an appraiser but did not conduct an independent appraisal of the Property, testified that in his opinion a three year holding period and a twelve percent discount rate were more appropriate valuation parameters. Adapting Crisler's appraisal with these changes, Ganem testified the value of the Property would yield a value of between $750,000.00 to $800,000.00. Debtor's second witness, Derek Pommerenck, a principal of Debtor, testified in his opinion the property was worth $1,200,000.00. This opinion is based on a previous sales contract with Portrait Homes in January 18, 2006, a contract which is the subject of the above litigation with Portrait Homes.[1]
On June 16, 2009, Debtor filed a brief in opposition of the Motion. Debtor argues (1) that SunTrust failed to satisfy its burden of establishing that there is no equity in the property; and that (2) this case is not a "single asset real estate" case because it possesses another asset: the counterclaim against Portrait Homes and § 362(d)(3) does not apply to cases under Chapter 7. Brief, Dckt.No. 71.
CONCLUSIONS OF LAW
SunTrust's Motion for Relief based on § 362(d)(1) requires SunTrust to carry the burden of showing there is no equity in this property. See 11 U.S.C. § 362(g). After considering the expert testimony of appraisers for both parties, I conclude that SunTrust did not carry its *527 burden as of the date of the hearing. Sun-Trust's expert established a value of $460,000.00 utilizing what he believed the value of the property would be in five years and discounting it to present day value at twenty percent per year. Debtor's expert believed that a three year holding period with a discount rate in the range of twelve to thirteen percent was more appropriate and concluded to a value in the range of $750,000.00 to $800,000.00. I am unable to conclude what the proper discount rate would be after hearing the testimony of these two appraisers, but assuming a five year holding period at a lower discount rate of twelve percent, the value of the property today would exceed $600,000.00. Similarly, a shorter three year holding period at a twenty percent discount rate would yield a value of roughly $675,000.00. Without reaching a precise conclusion as to what the value of the property is, however, I am able to conclude, given a pre-petition SunTrust debt totaling approximately $550,000.00, that there remains some equity in this property.[2] As a result, the burden is not carried under § 362(d)(1), and I move on to the consideration of the Motion based on 11 U.S.C. § 362(d)(3).
Section 362(d)(3) provides
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay
. . .
(3) with respect to a stay of an act against single asset real estate under subsection (a) by a creditor whose claim is secured by an interest in such real estate, unless, not later than the date that is 90 days after the entry of the order for relief (or such later date as the court may determine for cause by order entered within that 90-day period) or 30 days after the court determines that the debtor is subject to this paragraph, whichever is later
(A) the debtor has filed a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time; or
(B) the debtor has commenced monthly payments that
(i) may, in the debtor's sole discretion, notwithstanding section 363(c)(2), be made from rents or other income generated before, on, or after the date of the commencement of the case by or from the property to each creditor whose claim is secured by such real estate ...
(ii) are in an amount equal to interest at the then applicable nondefault contract rate of interest on the value of the creditor's interest in the real estate; ...
Debtor argues that § 362(d)(3) does not apply here "because this is not a single asset case and § 362(d)(3) does not apply to a Chapter 7 case." Brief, Dckt.No. 71, pg. 4.
1. The property on which relief is sought is "single asset real estate."
Section 101(51B) of the Bankruptcy-Code provides
The term "single asset real estate" means real property constituting a single property or project, other than residential real property with fewer than 4 residential units, which generates substantially all of the gross income of a debtor who is not a family farmer and *528 on which no substantial business is being conducted by a debtor other than the business of operating the real property and activities incidental.
11 U.S.C. § 101(51B).
SunTrust's motion requests that this Court determine that the Property securing its claim is "single asset real estate." Unless I so find, SunTrust can not rely on § 362(d)(3) but only § 362(d)(1) and (2), which would impose the burden of establishing that there is no equity in the property to obtain relief, a burden that Sun-Trust cannot meet as described above. See 11 U.S.C. § 362(g).
There is no doubt that the property meets the definition. It constitutes a single project and is not residential, Debtor is not a family farmer, and no business is being conducted on the property. See Statement of Financial Affairs, Dckt.No. 8, pgs. 14 & 19. Therefore, the Property qualifies as a "single asset real estate."
However, Debtor argues that (d)(3) does not apply because it has a counterclaim against Portrait Homes in Superior Court, which "is clearly not real property nor is it an attachment or appurtenance to the property." Brief, Dckt.No. 71, pg. 6. This fact does not change this Court's finding. The focus of the definition is not whether the case involves a "single asset" but rather whether the stay applies to "single asset real estate" held by a bankruptcy estate.
The § 101(51B) definition focuses upon whether
"substantially all of the gross income of [the] debtor" was generated by the property, not on whether the chapter 7 estate has assets other than the property. As a company in a chapter 7 case, Debtor is not operating and generating no income at all. A recovery from litigation prosecuted by [Debtor] can hardly be considered income from the operation of the debtor's business for purposes of § 101(51B).
In re Charterhouse Boise Downtown Properties, LLC, 2008 WL 4735264, at *2 (Bankr.D.Idaho Oct.24, 2008).
In light of the foregoing, I hold that despite the fact that the bankruptcy case may involve more than a single asset, the Property is "single asset real estate" within the meaning of § 362(d)(3).
2. Section 362(d)(3) applies in Chapter 7 cases
Debtor alternatively argues that § 362(d)(3) can not apply to "single asset real estate" under Chapter 7. I disagree. "The starting point in any case involving the meaning of a statute [ ] is the language of the statute itself." Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 210, 99 S.Ct. 1067, 1073, 59 L.Ed.2d 261 (1979). "In construing a federal statute it is appropriate to assume that the ordinary meaning of the language that Congress employed `accurately expresses its legislative purpose.'" Mills Music, Inc. v. Snyder, 469 U.S. 153, 164, 105 S.Ct. 638, 645, 83 L.E.2d 556 (1985)(quoting Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985)). "[F]or where, as here, the statute's language is plain, `the sole function of the courts is to enforce it according to its terms.'" United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)(quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192,194, 61 L.Ed. 442 (1917)).
First, 11 U.S.C. § 103(a) states that "chapter [ ] ... 3 ... appl[ies] in a case under chapter 7, 11, 12 or 13 of this title." Second, the plain language of § 362(d)(3) does not limit its applicability to Chapter 11 cases. Third, § 362(d)(3)(B), which provides for lifting of the stay when a *529 debtor has not made interest payments to the secured creditor within 90 days of the order for relief, can apply to cases under Chapter 7 as well as Chapter 11. Therefore, the plain language of the statute is conclusive that § 362(d)(3) applies to Chapter 7 cases. See Riggs Bank, N.A. v. Planet 10, L.C. (In re Planet 10, L.C.), 213 B.R. 478, 480 (Bankr.E.D.Va.1997).
Despite this, Debtor asserts that applying this section to a Chapter 7 Trustee produces an absurd result. Specifically, it argues
Consider cases where a Chapter 7 trustee holds real property worth millions of dollars with one secured debt of only $200,000 and no cash on hand. Is it not absurd to think that the court must grant relief if he does not file a Chapter 11 plan that has a reasonable possibility of being confirmed within a reasonable time or stats making monthly payments to the secured creditor?
Brief, Dckt. No. 71, pg. 8 (emphasis in original).
This Court may "look beyond the plain language of a statute if applying the plain language would produce an absurd result." Lehman v. VisionSpan, Inc., 205 F.3d 1255 (11th Cir.2000). However, applying § 362(d)(3) to Chapter 7 Trustees does not produce an absurd result. Under this section, it is not mandatory to grant unconditional relief from stay. Section 362(d) allows this Court to modify or condition the stay as alternatives to terminating or annulling it. If the Court faces a situation like Debtor describes, a court may condition the stay to allow a Chapter 7 Trustee time to try to sell property of the estate under 11 U.S.C. § 363(b). See In re Planet 10, L.C. 213 B.R. at 480.
Having concluded that there is, at the present time, some equity in this property, although slight equity, I hold that while it is mandatory that I grant stay relief under § 362(d)(3), it is not mandatory that I grant unconditional relief from stay. Instead, I am permitted under that section to condition or modify the stay in accordance with the evidence.
ORDER
Pursuant to the foregoing, I therefore ORDER the Trustee, if he has not already done so, to meet with the listing agent for this property immediately and determine whether further reduction in the asking price is necessary in order to attempt to sell it within a short to medium time horizon.
In light of post-petition interest accruals which have increased the debt to approximately $600,000.00 as of today, I FURTHER ORDER that the Trustee out of any available estate funds or as a result of contributions made by the Debtor or Debtor's principal commence maintaining the monthly interest accrued on this loan of $3,574.50 commencing October 1, 2009. If the debt service payment does not commence on October 1, 2009, or this Court has not approved a contract for the sale of the real estate by that date, then SunTrust is permitted to file an affidavit of that fact which if not contradicted factually within a period of ten (10) days will result ill ah order of this Court granting immediate relief from the automatic stay.
NOTES
[1] The contract was for $1,183,055.00.
[2] That debt will increase by the amount of $3,574.50 per month from July 2008 forward to the extent of equity in the property, so as of the date of this Order the debt has increased by over $42,000.00 for a total of nearly $600,000.00. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918719/ | 411 B.R. 650 (2009)
In re Jonathan W. DEITZ and Stephanie J. Deitz, Debtors.
Security First Bank, Plaintiff,
v.
Jonathan W. Deitz and Wellness Dimension, P.C., Defendants.
Bankruptcy No. 08-30689. Adversary No. 08-7032.
United States Bankruptcy Court, D. North Dakota.
September 1, 2009.
*651 Jon R. Brakke, Vogel Law Firm, Fargo, ND, for Debtors.
MEMORANDUM AND ORDER
WILLIAM A. HILL, Bankruptcy Judge.
This case is before the Court on two separate motions: Defendants Jonathan *652 W. Deitz and Wellness Dimension, P.C.'s motion for partial judgment and Plaintiff Security First Bank's motion to compel discovery.
By complaint filed November 4, 2008, Plaintiff initiated an adversary proceeding seeking a determination that certain debts owed by Defendants Jonathan W. Deitz and Wellness Dimension, P.C. are nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B) and (4). Plaintiff further seeks to impose a lien against all assets of Wellness Dimensions, P.C. On November 11, 2008, Plaintiff served Defendants with Interrogatories and Requests for Production of Documents. On December 15, 2008, Defendants each responded to Plaintiff's demand for production of documents in separate responses. Defendants filed their answer on November 17, 2008. On December 22, 2008, Plaintiff filed a motion to compel discovery. On January 28, 2008, this Court denied Plaintiff's motion to compel on the ground that Plaintiff had failed to demonstrate the meet and confer requirement had been met. The Court did not address Plaintiff's allegations contained in Plaintiff's motion to compel.
Defendants filed a motion for summary judgment on January 7, 2009, moving the Court to find that there are no issues of material fact and to find as a matter of law that Plaintiff has failed to prove the elements for nondischargeability under 11 U.S.C. § 523(a)(2)(B) and (4).
On February 13, 2009, Plaintiff filed a motion to amend complaint.
In its Memorandum and Order, filed April 13, 2009, this Court denied Defendants' motion for summary judgment and granted Plaintiff's motion to amend complaint.
Plaintiff filed an amended complaint on June 2, 2009, alleging the debts owed by Defendants are nondischargeable pursuant to 11 U.S.C. § 523, as well as seeking a denial of Debtors' bankruptcy discharge under 11 U.S.C. § 727(a)(3). On June 26, 2009, Defendants filed a motion for partial judgment on the pleadings relating to Plaintiff's claims under 11 U.S.C. § 727. On July 8, 2009, Plaintiff filed a motion to compel discovery and a certification affidavit. On the same day, Plaintiff also filed its brief in opposition to Defendants' motion for partial judgment. On July 15, 2009, Defendant filed a reply brief in support of its motion for partial judgment. On July 23, 2009, Defendants filed a response to Plaintiff's motion to compel discovery consisting of 187 pages inclusive of exhibits.
FINDINGS OF FACT
In 2005, Defendant Deitz was president of Jonathan Chiropractic, P.C. Defendant Deitz sought a loan from Plaintiff, and on May 13, 2005, Defendant Deitz provided Plaintiff with a financial statement indicating a net worth of $545,119.00. On May 25, 2005, Defendant Deitz, as president, signed a promissory note and revolving line of credit agreement for $100,000.00. The loan was a multiple-advance, open-end credit loan for the purpose of purchasing equipment and advertising. Defendant Deitz also signed a personal guaranty for the loan. The following year, on July 26, 2006, Defendant Deitz provided Plaintiff with a financial statement indicating a net worth of $799,571.00. The original loan was renewed in July 2006, and Defendant Deitz again signed a new promissory note and revolving line of credit agreement, as president. Defendant Deitz also signed a personal guaranty. Plaintiff advanced funds on the loan in the amount of $86,500.00 in April 2007. As in the previous two years, Defendant Deitz submitted to Plaintiff a financial statement on June 15, 2007, this time indicating a net worth of $1,860,583.00 and assigning an approximate *653 value of $825,000.00 to the corporation. Defendant Deitz signed a new promissory note and revolving line of credit agreement as president on July 20, 2007. Defendant Deitz also signed a commercial security agreement and a personal guaranty.
Defendant Deitz filed a chapter 7 bankruptcy petition on July 10, 2008. On the same day, Defendant Deitz formed Wellness Dimensions, P.C.
Plaintiff filed its complaint on November 4, 2008, alleging Plaintiff relied upon the accuracy of the June 15, 2007 financial statement, and Defendant Deitz induced Plaintiff to make the July 2007 loan based upon that financial statement. Plaintiff further alleges Defendant Deitz knew the financial statement was materially false and misleading and published it with the intent to deceive Plaintiff. Plaintiff also alleges it holds a "wrap around" security interest in all assets of Jonathan Chiropractic, P.C. and it continues to hold all assets as collateral. Plaintiff alleges Defendant willfully and wrongfully transferred a substantial portion of the assets to Wellness Dimensions, P.C., ignoring Plaintiff's security interest to the detriment of Plaintiff. Plaintiff further alleges that all transfers created a debt for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny.
Kip M. Kaler, the chapter 7 trustee assigned to this case, conducted a 2004 examination on November 26, 2008. On December 5, 2008, Defendant Deitz was granted a discharge under section 727. On February 13, 2009, Plaintiff filed a motion to amend complaint. This Court granted Plaintiff's motion to amend because new information surfaced upon Plaintiff's review of the 2004 examination transcript, the Court had already granted a discovery extension and trial continuance, and there was no undue delay nor disruption to the trial schedule to allow Plaintiff to amend its complaint.
Plaintiff served Defendants with a second set of discovery requests on April 21, 2009. Plaintiff filed its motion to compel and captioned the document, "Renewal of Plaintiff's motion to compel discovery and memorandum in support of renewal of motion." Plaintiff's attorney certified in his affidavit that he has made at least five contacts with Defendants' attorney seeking compliance with the discovery requests. On approximately May 26, 2009, Defendants answered and objected to all interrogatories and document requests (with the exception of interrogatory # 1) stating that "no amended complaint has been filed. . ." Defendants also objected to each interrogatory on the bases of relevance and overbreadth. In their response to Plaintiff's motion to compel, Defendants stated they object to the second set of discovery requests on the grounds of relevance and overbreadth.
Plaintiff filed its amended complaint on June 2, 2009. In addition to the original section 523 claim, the amended complaint includes allegations of a section 727 claim, a claim for piercing the corporate veil, and a claim for fraudulent conveyance.
CONCLUSIONS OF LAW
A. Motion to Compel
Plaintiff suggests it is renewing its December 22, 2008 motion to compel. Plaintiff's July 8, 2009 motion and brief refer only to Defendants' failure to properly comply with the second set of interrogatories and demand for documents served on Defendants in April 2009. The Court finds that Plaintiff's motion to compel is not a renewal of its December 22, 2008 motion and deems it a new motion.
Defendants answered all interrogatories on May 26, 2009, with a blanket objection *654 that no amended complaint had been filed. A copy of the proposed amended complaint was attached to Plaintiff's motion to amend on February 13, 2009. Defendants were also on notice that the amended complaint was forthcoming pursuant to this Court's April 13, 2009 Order granting Plaintiff's motion to amend complaint. Although Plaintiff waited until June 2, 2009 to file its amended complaint, the contents of the amended complaint have not been a mystery to Defendants. Since the filing of the amended complaint on June 2, 2009, Defendants have made no attempt to supplement the interrogatories and requests for production of documents.
The court has broad discretion in managing discovery. U.S. v. Scott, 26 F.3d 1458, 1463 (8th Cir.1994) (citing Voegeli v. Lewis, 568 F.2d 89 (C.A.S.D. 1977)). Answers to interrogatories and documents relating to Defendant Deitz's finances and ownership in property, business dealings and the transfer of property to Defendant Wellness Dimensions may be relevant to Plaintiff's claim. Relevance cannot be determined until that information is released and reviewed.
B. Partial Judgment
Rule 56 of the Federal Rules of Civil Procedure governs the granting of summary judgment motions and is made applicable to bankruptcy proceedings by Rule 7056 of the Federal Rules of Bankruptcy Procedure. Summary judgment is appropriate if, "assuming all reasonable inferences favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Tudor Oaks Ltd. P'ship v. Cochrane (In re Cochrane), 124 F.3d 978, 981-82 (8th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998) (citations omitted). Procedurally, the initial burden is on the moving party to establish the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Dennis v. Novotny (In re Novotny), 224 B.R. 917, 921 (Bankr.D.N.D.1998). However, summary judgment will not be granted in the moving party's favor "unless the moving party has established the right to a judgment with such clarity as to leave no room for controversy.'" Simundson v. United Coastal Ins. Co., 951 F.Supp. 165, 166-67 (D.N.D.1997) (quotation omitted). The court views the record in light most favorable to the nonmoving party and affords that party all reasonable inferences. Blocker v. Patch (In re Patch), 526 F.3d 1176, 1180 (8th Cir.2008).
1. Section 727 claim
Defendants assert that Plaintiff has failed to comply with 11 U.S.C. § 727(d) and that Plaintiff's amended complaint fails to state a claim for which relief may be granted on its section 727 claim, its claim for piercing the corporate veil and its claim for fraudulent conveyance.
Section 727 provides:
(d) On request of the trustee, a creditor, or the United States trustee, and after notice and a hearing, the court shall revoke a discharge granted under subsection (a) of this section if
(1) such discharge was obtained through the fraud of the debtor, and the requesting party did not know of such fraud until after the granting of such discharge;
(2) the debtor acquired property that is property of the estate, or became entitled to acquire property that would be property of the estate, and knowingly and fraudulently failed to report the acquisition of or entitlement to such *655 property, or to deliver or surrender such property to the trustee;
(3) the debtor committed an act specified in subsection (a)(6) of this section; or
(4) the debtor has failed to explain satisfactorily
(A) a material misstatement in an audit referred to in section 586(f) of title 28; or
(B) a failure to make available for inspection all necessary accounts, papers, documents, financial records, files, and all other papers, things, or property belonging to the debtor that are requested for an audit referred to in section 586(f) of title 28.
(e) The trustee, a creditor, or the United States trustee may request a revocation of a discharge
(1) under subsection (d)(1) of this section within one year after such discharge is granted; or
under subsection (d)(2) or (d)(3) of this section before the later of
(A) one year after the granting of such discharge; and
(B) the date the case is closed.
11 U.S.C. § 727(d) and (e).
Defendants cite Wright v. Asbury (In re Asbury), 250 B.R. 59 (Bankr.D.Md.2000), and argue that Plaintiff has not filed a motion for revocation of discharge and the amended complaint does not state any facts upon which a revocation of discharge might be based. In its response, Plaintiff concedes that its amended complaint is inartfully drafted but that it should not be the basis for partial judgment. Plaintiff also argues that Defendants' failure to provide discovery hinders its ability to defend the motion for partial judgment. Further, Plaintiff admits that it has not filed a request to revoke discharge, but argues that should the Court find this is a fatal flaw, a request to revoke the discharge "could be brought."
As in this case, In re Asbury also involved a complaint that was filed prior to the granting of a discharge. 250 B.R. at 61. The creditor amended its complaint several times prior to discharge, and filed a third amended complaint after discharge in which the allegations were not substantially different from its first complaint. Id. at 61-64. The court in In re Asbury held that a discharge could be granted while a complaint alleging a section 523 claim is pending because the relief requested in the complaint is that one or more debts to be excepted from discharge. Id. at 65. However, because the granting of a discharge is incompatible with a pending complaint to completely deny a discharge, a complaint objecting to discharge may not be maintained after a discharge has been granted, without first seeking to strike the discharge if the Code permits. Id. at 66.
In this case, Defendant Deitz was granted a discharge under section 727. On February 13, 2009, Plaintiff filed a motion to amend its complaint. This Court allowed leave to amend the complaint based upon the facts that new information had surfaced, the Court had already granted a discovery extension and trial continuance, and there would be no undue delay or disruption to the trial schedule in allowing Plaintiff to amend its complaint. The Court also recognized that discovery was not complete. Although Plaintiff did not file its request to revoke discharge at the time it filed the amended complaint, and indeed has yet to file said request even after Defendants pointed out this flaw, the fact remains that the statute of limitations has not yet tolled for the *656 filing of the request to revoke discharge under section 727(e). Additionally, there is nothing in section 727(e) that requires Plaintiff to file a request to revoke discharge simultaneously with an amended complaint. The facts of this case are distinguishable from In re Asbury. In this case, the Court granted leave to amend the complaint based on new discovered information after Plaintiff reviewed the 2004 examination transcript, whereas in In re Asbury, the creditor was given several opportunities to amend its complaint prior to discharge, filed a third amended complaint after discharge with allegations that were not substantially different from its first complaint. The court in In re Asbury summed it up by saying the court had given the plaintiff in that case "four or five bites at the apple. . . This was the last bite." This is not yet the case here. This Court declines to apply In re Asbury to the facts of this case because the Court agrees that Plaintiff is not sufficiently capable of defending the motion for partial judgment when Defendants continue to delay discovery and Plaintiff's inartful drafting of the amended complaint is not a basis for granting judgment on the pleadings. Plaintiff's failure to file a request to revoke discharge at the time is not grounds to grant Defendants' motion for partial judgment. A section 727(d) request is necessary, however, for Plaintiff to proceed to trial with its section 727 claim.
2. Piercing the Corporate Veil
Defendants argue that judgment should be granted relating Plaintiff's piercing the corporate veil allegation because it is a "waste of the Court's time." Plaintiff alleges that the claim sets out the facts showing that Defendant Deitz commingled funds and transfers between himself and various business entities and that Defendant Deitz and Jonathan Chiropractic are one and the same. These factual allegations, if disallowed at trial, could hinder Plaintiff's ability to present its other claims. The Court does not believe presentation of evidence relating to this allegation is a "waste of the Court's time."
3. Fraudulent Conveyance
Defendants argue that Plaintiff's fraudulent conveyance claim fails on one of two grounds. First, Defendants suggest that if the Court determines this proceeding is a core proceeding then Plaintiff's lack standing to pursue the fraudulent conveyance claims under 11 U.S.C. § 548. Second, Defendants assert that if the Court determines this proceeding is a noncore proceeding then Plaintiff, as a secured creditor, does not have a claim for fraudulent conveyance under state law.
Title 28 U.S.C. § 157 states that a bankruptcy judge "may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title." Section 157(2) details the following nonexclusive list of core proceedings:
(A) matters concerning the administration of the estate;
(B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11;
*657 (C) counterclaims by the estate against persons filing claims against the estate;
(D) orders in respect to obtaining credit;
(E) orders to turn over property of the estate;
(F) proceedings to determine, avoid, or recover preferences;
(G) motions to terminate, annul, or modify the automatic stay;
(H) proceedings to determine, avoid, or recover fraudulent conveyances;
(I) determinations as to the dischargeability of particular debts;
(J) objections to discharges;
(K) determinations of the validity, extent, or priority of liens;
(L) confirmations of plans;
(M) orders approving the use or lease of property, including the use of cash collateral;
(N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate;
(O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims; and
(P) recognition of foreign proceedings and other matters under chapter 15 of title 11.
The proceeding at hand is a core proceeding and falls within a few of the nonexclusive list under Section 157(2). Theses proceedings are to determine, avoid, or recover fraudulent conveyances, relate to determinations of dischargeability of particular debts, and relate to objection to discharge.
Defendants also argue that only a trustee has standing to pursue a section 548 fraudulent conveyance claim in a core proceeding.
Title 11 U.S.C. § 548 discussing fraudulent transfers and obligations states:
(a)(1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily
(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
(B) (i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;
(II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital;
(III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability *658 to pay as such debts matured; or
(IV) made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business.
A recent Eighth Circuit case, In re Racing Services, Inc., 540 F.3d 892 (8th Cir.2008) involved a creditor attempting to bring claims under sections 547 and 548. The Eighth Circuit held that a creditor may proceed derivatively to pursue its claims when it shows that a Chapter 7 trustee is "unable or unwilling" to pursue the claims. Id. at 898. In re Racing Services, Inc., outlines the elements of this requirement. Id. at 898-701. Further, the Eighth Circuit held that derivative standing is also available to a creditor when it shows that a Chapter 7 trustee consents to the creditor's suit. Id. at 902. Therefore, case law is clear that bringing such claims is not limited to the trustee. Should Plaintiffs proceed with its fraudulent conveyance claim, Plaintiff must follow the procedure and prove the elements recited in In re Racing Services, Inc.
A pattern is emerging in this case of retaliatory filings which are indicative of the parties' general uncooperativeness. In each instance, Plaintiff files a motion, Defendants return with a motion for summary judgment and Plaintiff returns with yet another motion. In more cases than not, an unnecessary return is filed to each motion response. As noted in a previous summary judgment order, the parties inundate the Court with voluminous motions and numerous filings, and each is followed by a plethora of responses and returns with attached superfluous exhibits.
Beginning with Plaintiff's first motion to compel and its disregard for the meet and confer requirement, continuing with its "inartful drafting" and delayed filing of its Amended Complaint, and most recently Plaintiff's failure to file a request to revoke discharge to date, the Court strongly suggests that from here forward, Plaintiff do its homework and properly proceed to trial for each claim it intends to pursue. Allegations also remain that Defendant Dietz has not been forthcoming in providing discovery and has failed to keep or produce records. Reiterating one of the Court's previous orders, without discovery being complete and presentation of all the evidence, this Court cannot make a determination as to the accuracy of the financial statements, Plaintiff's reliance upon those statements, Defendant Dietz's intent in publishing the financial statements, or Defendant Deitz's intent and actions related to the conveyance of his assets. Further, the Court cannot make a determination as to Plaintiff's section 727 claim, its claim for piercing the corporate veil or its claim for fraudulent conveyance without discovery being complete.
Defendants have not established the right to judgment with such clarity to leave no room for controversy. Viewing the record in light most favorable to Plaintiff, partial judgment is not appropriate at this juncture. As such, Defendants are not entitled to judgment as a matter of law.
Accordingly, Defendants Jonathan W. Deitz and Wellness Dimension's motion for partial judgment is DENIED in its entirety and Plaintiff Security First Bank's Motion to Compel Discovery is GRANTED.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583528/ | 682 F. Supp. 459 (1988)
CENTERRE BANCORPORATION, Plaintiff,
v.
R. Crosby KEMPER, Jr., et al., Defendants.
No. 88-127C-(1).
United States District Court E.D. Missouri, E.D.
March 25, 1988.
*460 Thomas C. Walsh, J. Thomas Archer, Steven A. Nieters, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., Edward D. Herlihy, Wachtell, Lipton, Rosen & Katz, New York City, for plaintiff.
Robert F. Ritter, Gray & Ritter, St. Louis, Mo., for defendant.
James F. Duncan, Thomas M. Cunningham, Watson, Ess, Marshall & Enggas, Kansas City, Mo., for United Missouri Bancshares, Inc.
Thomas E. Deacy, Jr., Patrick C. Cena, Deacy & Deacy, Kansas City, Mo., for Kemper.
MEMORANDUM
NANGLE, Chief Judge.
In Count II of its complaint, plaintiff Centerre Bankcorporation (Centerre) alleges that defendants United Missouri Bancshares, Inc. (United) and R. Crosby Kemper, Jr.[1] violated the Bank Holding Company Act of 1956 (BHCA), 12 U.S.C. §§ 1841 et seq., by acquiring direct or indirect ownership or control of more than 5% of Centerre's voting shares without the prior approval of the Federal Reserve Board (FRB). Plaintiff seeks an injunction enjoining defendants from acquiring additional shares of Centerre stock, from voting any stock obtained in violation of the BHCA, and from pursuing an acquisition of Centerre or a merger between Centerre and United. This matter is now before the Court on defendants' motion to dismiss Count II for failure to state a claim upon which relief can be granted and motion to strike all references to violations of the BHCA in Count III.
In passing on a motion to dismiss, the Court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). A complaint should not be dismissed merely because it does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure § 1216 at 120 (1969). However, a motion to dismiss will be granted if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. at 102.
Plaintiff asserts that defendants' conduct of acquiring more than 5% of Centerre's voting stock without FRB approval violated 12 U.S.C. § 1842(a)(3). Section 1842(a)(3) provides in pertinent part:
(a) It shall be unlawful except with the prior approval of the Board, ...
(3) for any bank holding company to acquire direct or indirect ownership or control of any voting shares of any bank if, after such acquisition, such company will directly or indirectly own or control more than 5 per centum of the voting shares of such bank....
Any company which willfully violates or any individual who willfully participates in violation of any provision of the BHCA is subject to criminal penalties. 12 U.S.C. § 1847(a). The FRB has the authority to issue orders and regulations that are necessary to carry out the purposes of the BHCA, 12 U.S.C. § 1844(b), and may assess and collect civil penalties up to $1,000 per day against companies or individuals who violate the Act. 12 U.S.C. § 1847(b). Any party aggrieved by a FRB determination may obtain judicial review in the United States Courts of Appeals. 12 U.S.C. § 1848.
As the parties concede, the BHCA does not expressly provide for a private cause of *461 action for any violations of the BHCA. Therefore, in order to determine whether plaintiff states a claim for relief, the Court must ascertain whether plaintiff has an implied cause of action under the BHCA.
It is clear that violation of a federal statute and resulting harm to some person does "not automatically give rise to a private cause of action." Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S. Ct. 1946, 1953, 60 L. Ed. 2d 560 (1979). The key inquiry with respect to the existence of a private cause of action is whether Congress intended to create a private cause of action when it enacted the statute. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377-378, 102 S. Ct. 1825, 1838-39, 72 L. Ed. 2d 182 (1982); California v. Sierra Club, 451 U.S. 287, 293, 101 S. Ct. 1775, 1778, 68 L. Ed. 2d 101 (1981). In Cort v. Ash, the Supreme Court identified four factors which are relevant to determining whether Congress intended to create a private cause of action:
First, is plaintiff "one of the class for whose especial benefit the statute was enacted," ...that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975) (citations omitted).
Nothing in the language of § 1842(a) indicates that the statute was enacted for the "especial benefit" of plaintiff. Although plaintiff may benefit indirectly from FRB regulation of acquisitions by other bank holding companies, § 1842(a) merely proscribes certain acquisitions without prior FRB approval and provides for FRB regulation of acquisitions, it does not create any federal right in favor of the plaintiff. Furthermore, the enforcement provisions provide no remedy in favor of banks or bank holding companies. Section 1847(a) imposes criminal sanctions for violations of the BHCA. Section 1847(b), by granting the FRB the power to impose civil penalties, merely provides a vehicle through which the FRB can enforce compliance with the statutory provisions.
The legislative history of the BHCA supports the view that the Act was designed to benefit the general public rather than banks or bank holding companies. The legislative history indicates that the statute was enacted to regulate the "growth of bank holding companies" for the protection of the "public welfare." S.Rep. No. 1095, 84th Cong., 2d Sess. 1, reprinted in 1956 U.S.Code Cong. & Admin.News 2482. Congress intended to provide "adequate safeguards" against "undue concentration of control of banking activities." Id. See also Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 46, 100 S. Ct. 2009, 2020-21, 64 L. Ed. 2d 702 (1980) (Congress intended to "prevent anti competitive tendencies in national credit markets."). Section 1842(a) was enacted to provide regulatory control over a bank holding company's acquisitions of stock and assets to "encourage competitive banking and discourage monoply of banking." Id. at 2489. The civil penalties provision, § 1847(b), was added to the BHCA in 1978 to give the FRB the "flexibility it needs to secure compliance" with the Act, H.R.Rep. No. 95-1383, 95th Cong., 2d Sess. 17, reprinted in 1978 U.S.Code Cong. & Admin.News 9273, 9289, not to create a private remedy in favor of banks and bank holding companies. Marx v. Centran Corp., 747 F.2d 1536, 1550 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S. Ct. 2656, 86 L. Ed. 2d 273 (1985). Although there is no indication in the legislative history of an intent to deny a private cause of action, there also is no indication of an intent to grant one. This congressional silence on the issue of a private remedy "serves to confirm" the conclusion that the BHCA was not intended to create a private remedy in favor of plaintiff but was intended to benefit the public *462 through a "general regulatory scheme" administered by the FRB. See Sierra Club, 451 U.S. 296-298, 101 S.Ct. at 1781.
It also would frustrate the purposes of the legislative scheme to imply a private cause of action in favor of the plaintiff in the federal district court. Marx, 747 F.2d at 1550; Quaker City National Bank v. Hartley, 533 F. Supp. 126, 127 (S.D.Ohio 1981). The FRB has exclusive original jurisdiction over questions arising under the BHCA. Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 419-423, 85 S. Ct. 551, 556-59, 13 L. Ed. 2d 386 (1965); Independent Community Bankers Ass'n of South Dakota, Inc. v. Board of Governors of the Federal Reserve System, 838 F.2d 969, 975 n. 8 (8th Cir.1988); In re Baldwin-United Corp., 47 B.R. 898, 900 (S.D.Ohio 1984). Congress has entrusted the regulation of bank holding activities to the FRB "to permit an agency, expert in banking matters, to explore and pass on the ramifications of a proposed bank holding arrangement." Whitney National Bank, 379 U.S. at 420, 85 S.Ct. at 557. The only avenue of judicial review of FRB determinations is through appeal to the United States Courts of Appeals. 12 U.S.C. § 1848; Whitney National Bank, 379 U.S. at 422, 85 S.Ct. at 558. It would substantially undermine the "effectiveness of the statutory design" to permit plaintiff to bypass the FRB and assert a private cause of action in the federal district court. Whitney National Bank, 379 U.S. at 420-421, 85 S.Ct. at 557. Under the final Cort v. Ash factor, regulation of bank holding companies is not an area "traditionally relegated to state law" so that implication of a federal cause of action would not interfere with an "area basically [of] concern" to the states. See Cort, 422 U.S. at 78, 95 S.Ct. at 2088. However, the Court finds that it is not necessary to consider the final Cort v. Ash factor because the Court concludes under the first three Cort v. Ash factors that no private cause of action for violation of § 1842(a)(3) was intended. See Sierra Club, 451 U.S. at 297-298, 101 S.Ct. at 1781.
Plaintiff contends that it is not trying to obtain a judicial determination of the merits of defendants' acquisition but merely seeks to enjoin defendants from exercising control over the Centerre stock until the FRB has an opportunity to pass on the merits of the acquisition. However, even to provide plaintiff with this limited form of relief, the Court still would have to imply a private cause of action. The Court concludes that plaintiff has no standing to seek an injunction in this Court because the FRB has exclusive original jurisdiction over BHCA violations and no private right of action can be implied from § 1842(a)(3). Accordingly, Count II of plaintiff's complaint is dismissed for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction.
ORDER
Pursuant to the memorandum filed herein this day,
IT IS HEREBY ORDERED that the motion of defendants R. Crosby Kemper, Jr. and United Missouri Bancshares, Inc. to dismiss Count II of plaintiff's complaint be and is granted and Count II of plaintiff's complaint be and is dismissed.
IT IS FURTHER ORDERED that defendants' motion to strike all references to violations of the Bank Holding Company Act in Count III of plaintiff's complaint be and is granted and all said references be and are stricken from Count III.
NOTES
[1] According to plaintiff's allegations, Centerre and United are bank holding companies registered with the Federal Reserve Board pursuant to 12 U.S.C. § 1844(a). Kemper is Chairman and Chief Executive Officer of United. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583547/ | 682 F. Supp. 931 (1987)
MORECO ENERGY, INC., an Illinois corporation, Plaintiff,
v.
PENBERTHY-HOUDAILLE, a Delaware corporation, Defendant.
No. 86 C 20153.
United States District Court, N.D. Illinois, W.D.
July 20, 1987.
Kevin T. McClain, Immel, Zelle, Ogren, McClain & Germeraad, Springfield, Ill., for plaintiff.
Stuart R. Lefstein, Katz, McAndrews, Durkee, Balch & Lefstein, P.C., Rock Island, Ill., Neil R. Mitchell, Gregory C. Ward, Nisen, Elliott & Meier, Chicago, Ill., for defendant.
ORDER
ROSZKOWSKI, District Judge.
The action now comes before the court on the motion of the defendant Pemberthy-Houdaille, Inc. On the basis of the briefs, and for the reasons set out below, the court grants the motion to dismiss and allows the plaintiffs twenty-one days to file an amended complaint.
BACKGROUND
Moreco Energy, the plaintiff, reprocesses used motor oil. In November of 1984, Moreco by prior agreement picked up four loads of waste oil from Penberthy, the defendant. Moreco is located in Rock Island, Illinois, in the Central District of Illinois. Pemberthy is located in Prophetstown, Illinois, *932 in the Northern District of Illinois. Moreco tested the Pemberthy Oil at the Moreco facility. Moreco determined that the oil contained polychlorinated bipheonols (PCBs) in concentrations in excess of fifty parts per million. This concentration is in violation of the standards of the Toxic Substances Control Act, (TSCA), 15 U.S.C. §§ 2601-2629. Moreco asserts that Penberthy should have known of the contamination and that delivery of the oil was in breach of contract and in violation of the TSCA.
The parties brought this action in the Central District. The jurisdictional action of the TSCA lays venue in the district "in which the alleged violation occured, or which the defendant resides, or in which the defendant's principal place of business is located." 15 U.S.C. § 2619(a). Judge Mihm determined that, for the purposes of the motion to dismiss, that the violation occurred in Prophetstown. Because the defendants were also in Prophetstown, Judge Mihm transferred the action to this district.
The parties now seek from this court rulings on two other grounds of the motion to dismiss. The defendants claim first that the EPA is pursuing this action and consequently forecloses private actions and second that the action fails to state a claim.
DISCUSSION
The defendants have filed one supplementary ground to their motion to dismiss in this court. The plaintiffs complain that the defendants refuse to retrieve the contaminated oil and that the oil remains in Rock Island. The defendants contend that Judge Mihm's ruling that the violation occurred in Prophetstown ended the argument that the existence of the contaminated oil in Rock Island is an ongoing violation. This court disagrees. Judge Mihm stated that his holding was only for the purposes of the motion to dismiss. Judge Mihm may have overlooked the technical problems of his ruling but it is clear this court has jurisdiction and this court will not assume that Judge Mihm ruled on any issue sub silentio.
The next basis on which the defendants seek dismissal is 15 U.S.C. § 2619(b)(1)(B) which disallows a private action "if the Administrator has commenced and is diligently prosecuting a proceeding for the issuance of a [notice of noncompliance]." The defendants claim that the Environmental Protection Agency (EPA) is prosecuting such a proceeding. The plaintiffs respond that the proceeding does not involve the defendants' oil. Quite briefly this issue takes in facts outside of the pleadings and, if meritorious at all, should be the subject of a motion for summary judgment.
The last basis on which the defendants seek to dismiss is the question of ongoing violation. The defendants contend that any violation could only have been the defendants' holding or delivering the contaminated oil to the plaintiffs. The defendants then argue that the TSCA only provides for private actions against ongoing violations. The plaintiff's response is two fold. First the plaintiff asserts that it has alleged ongoing violation of the TSCA because the plaintiffs seek to have the defendants remove the contaminated oil. Second, the plaintiffs assert that it may seek civil penalties under TSCA.
The court will evaluate these out of order. Again, section 2619 is the relevant section. Section 2619(a)(1) allows a civil action against any person "who is alleged to be in violation of this chapter or any [standard of the EPA]." 18 U.S.C. § 2619(a)(1). The defendants argue that "to be in violation" requires an ongoing violation. The defendants state that the purpose of the Act is to allow private actions to enjoin violators of the Act, not to create a private damage suit for past violations.
Three circuits have evaluated whether or not section 2619 requires an ongoing violation. Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089 (1st Cir. 1986); Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir.1986), cert. granted, ___ U.S. ___, 107 S. Ct. 872, 93 L. Ed. 2d 827 (1987); Hamker v. Diamond Shamrock Chemical *933 Co., 756 F.2d 392 (5th Cir.1985). They have arrived at three different solutions.
The Fourth Circuit alone has determined that the statute does not require an ongoing violation. Gwaltney, 791 F.2d at 309. The Fourth Circuit reasoned that a defendant was "in violation" until some remedy expunged the violation. Id. The Supreme Court has granted certiorari to the Fourth Circuit in Gwaltney. ___ U.S. ___, 107 S. Ct. 872, 93 L. Ed. 2d 827 (1987). The Fifth Circuit took an opposite approach in Hamker. The Fifth Circuit determined that "in violation" suggested an ongoing violation. Hamker, 756 F.2d at 394-96. The Fifth Circuit construed the act to place primary enforcement authority in the EPA, providing private rights only to supplement injunctive relief. Id. at 396. The First Circuit in Pawtuxet Cove sided with Hamker without citing Hamker. The First Circuit did not go so far as the blanket restriction on damage actions. Although their premise was a limit of injunctive relief, the First Circuit recognized that some cases would always evade injunctive review. These would be cases in which the violators could stop and start the violative action, cases analogous to the judicial exception to mootness of a case capable of repetition but evading review. Pawtuxet, 807 F.2d at 1093-94.
This court finds the First Circuit's analysis the most compelling and, consequently, will follow the Pawtuxet reasoning. Therefore, the plaintiffs here may only state a claim if they properly plead an ongoing violation.
In their memoranda on this motion, the plaintiffs suggest that the defendants' refusal to remove the contaminated oil constitutes an ongoing violation by the defendants. The plaintiffs do not suggest of what EPA guideline. The court need not reach the issue, however, because the allegation is not in the complaint. The complaint states only that the defendants wrongfully delivered the contaminated oil. The court may not look further for allegations. Therefore, the court dismisses the complaint for failure to state a cause of action. The court will allow the plaintiffs twenty-one days to attempt to amend their complaint.
CONCLUSION
The court dismisses the complaint for failure to state a claim but allows the plaintiffs twenty-one days to amend their complaint to state a cause of action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1583557/ | 31 So. 3d 1048 (2010)
Ulysses WILLIAMS
v.
The ORLEANS LEVEE DISTRICT and its Board of Commissioners, Jim Huey, Individually, and in his Capacity as President of The Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually and in her Capacity as a Member of the Board of Commissioners, Gary Benoit, Individually, and in his Capacity as Acting General Counsel for the Orleans Levee District and ABC Insurance Company.
Ulysses William
v.
The Orleans Levee District and Its Board of Commissioners, Jim Huey, Individually, and in his Capacity as President of the Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually, and in her Capacity as a Member of the Board of Commissioners, et. al.
Ulysses Williams
v.
Board of Commissioners, Orleans Levee District.
No. 2009-C-2637.
Supreme Court of Louisiana.
April 5, 2010.
*1049 ORDER
WRIT GRANTED. The decision of this Court in Forum for Equality PAC v. McKeithen, 04-2551 (La.1/19/05), 893 So. 2d 738, is controlling. In Forum for Equality, this Court held that the preclusive effect of an earlier judgment could bind a nonparty plaintiff whose interests were adequately represented by parties to the prior litigation. The Court found no error in the district court ruling granting the defendants' exception of res judicata as to the plaintiffs' claim that the September 18, 2004 election was not a statewide election because that issue had been previously litigated by different plaintiffs in a case that was now final.
The lower courts' view that the Forum for Equality case was not applicable in this case, overlooked the critical fact that the preclusive effect of the previous judgment is not being used against a nonparty to the litigation. The respondent is not being precluded from contesting a matter that he has not had full and fair opportunity to litigate. To the contrary, the respondent was a party to the litigation in which it was determined that he was fired for cause. Williams v. Orleans Levee District, Bd. of Com'rs., 00-0297 (La.App. 1 Cir. 3/28/01), 784 So. 2d 657. The principle of issue preclusion is being applied in this case as intended, to protect against "the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions." Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161, 2171, 171 L. Ed. 2d 155 (2008) (citation omitted).
Accordingly, we find the lower courts erred in denying relator's exception of res judicata insofar as it applied to claims raised against it that were resolved by the First Circuit litigation which determined that respondent was lawfully terminated for insubordination. Williams v. Orleans Levee District, Bd. of Com'rs., 00-0297 (La.App. 1 Cir. 3/28/01), 784 So. 2d 657. The trial court judgment denying relator's exception of res judicata is reversed, as is the court of appeal decision affirming that ruling, and the case is remanded to the trial court for further proceedings consistent with the views expressed herein. | 01-03-2023 | 10-30-2013 |
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