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https://www.courtlistener.com/api/rest/v3/opinions/1918792/ | 218 A.2d 694 (1966)
Francis T. DUBIE
v.
CASS-WARNER CORPORATION and Robert Bugbee.
No. 342.
Supreme Court of Vermont. Chittenden.
April 5, 1966.
*695 Rosenberg & Rosenberg, Burlington, Loveland & Hackel, Rutland, for plaintiff.
McNamara & Larrow, Burlington, for defendant corporation.
Philip A. Kolvoord, Essex Junction, for defendant Bugbee.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
HOLDEN, Chief Justice.
The plaintiff was injured while working on a construction project in Winooski, Vermont, on April 21, 1961. He was in the employ of Sewall and Smith Construction Company at the time of the accident. His employer has expended $6,908.80 for the plaintiff's benefit under the Workmen's Compensation Law.
The present action is to establish liability in the defendant, Cass-Warner Corporation, and its employee, Bugbee, as third party participants in the accident which gave rise to the plaintiff's injuries. The defendant, Bugbee, was the operator of heavy mechanized equipment at a construction site in which Sewall and Smith Construction Company was the main contractor.
The final award of workmen's compensation was made on May 31, 1963. The *696 present action was commenced the following June. Notice, by registered mail, was not sent by the plaintiff to his employer, the compensation carrier, nor to the commissioner of industrial relations, as provided in 21 V.S.A. § 624. However, the parties have stipulated to the fact that counsel for the employer and insurance carrier have participated in the preparation of the pleadings and have shared in certain expenses of the present action.
The original complaint alleged the amount of payment under the Workmen's Compensation Law and further stated "This action is being brought for the benefit of Sewall and Smith Construction Company up to this amount ($6,908.80) and for the benefit of the plaintiff for the balance herein claimed as damages."
The plaintiff was later allowed to amend the complaint which, among other things, deleted the allegation concerning the payment of workmen's compensation under the statute. The defendant moved to dismiss the complaint as amended. The motion was denied by the trial court. The defendants bring the question for review before final judgment under the provisions of 12 V.S.A. § 2386.
"1. In a third-party suit under Title 21, V.S.A. § 624, where compensation has been paid the injured employee, is it necessary to plead the fact that compensation has been paid, the amount thereof, and the name of the compensation carrier who has made the payment?"
The statute which authorizes this suit furnishes no direct answer.
Prior to 1959, the Workmen's Compensation Law made acceptance of benefits a bar to any other suit for recovery for the injury by the injured employee. V.S. '41 §§ 8076 and 8078; P.L. §§ 6509 and 6511. Where the employee elected compensation under the law, the statute preserved only a right in the employer, by way of subrogation, to recover against the tort-feasor. Towne v. Rizzico, 113 Vt. 205, 211, 32 A.2d 129, held that the pleadings in the case should show this in order that the record demonstrate, in support of the judgment, that the action was not barred because the employe had had compensation. In that case, amendment of the pleadings was allowed in this Court to support the judgment.
With the amendment of 21 V.S.A. § 624 (V.S. '47 § 8078) by No. 232 of the Acts of 1959, specifically reversing the election provision and removing the bar formerly imposed by acceptance of compensation, the necessity for the rule of Towne v. Rizzico, supra, 113 Vt. 205, 211, 32 A.2d 129, no longer applies. Receipt of statutory compensation has no relevance with respect to the employee's right to sue the tort-feasor. The wrongdoer is not entitled to credit for compensation payments, from outside sources, against the damages he brought about. D'Archangelo v. Loyer, 125 Vt. ___, ___, 215 A.2d 520, 523.
The answer to the questions certified must be given in the context of this case at the time the issue was raised, not in the abstract. Powers v. State Highway Board, 123 Vt. 1, 5, 178 A.2d 390. In this third party suit, at the time of challenge, the complaint was not fatally deficient for failing to plead the facts relative to compensation or name the carrier involved.
Our answer cannot be given in the broad language of the question certified. We recognize that actions might arise where the issues presented by the pleadings might require the joinder or intervention of an employer or his compensation carrier. Under such circumstances our rules of procedure are sufficiently flexible to entrust such participation to the control and direction of the trial court, as in Harris v. General Coach Works, 37 F.R.D. 343 (U.S. Dist.Ct., Mich.1964).
*697 The second question, as certified by the court, is:
"2. Do the facts as set forth in a stipulation filed by counsel in this case relieve the plaintiff of a literal compliance with the provisions of 21 V.S.A. 624, as regards notice and does such a failure of literal compliance become a bar to a third-party action?"
The related provisions of 21 V.S.A. § 624 specify:
If the injured employee or his personal representative does not commence the action within one year after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of the third party in the name of the injured employee or his personal representative. Not less than thirty days before the commencement of suit by any party under this section, the party shall notify, by registered mail at their last known address, the commissioner of industrial relations, the injured employee, or in the event of his death, his known dependents, or personal representative or his known next of kin, his employer and the workmen's compensation insurance carrier. Any party in interest shall have a right to join in the suit but the direction and control of said suit shall be with the injured plaintiff.
It is stipulated that no notice by registered mail was given to any of the persons specified in the statute prior to the commencement of the action. It appears from the record that suit was not started for more than a year after the plaintiff's injuries were sustained. The defendant, Cass-Warner Corporation, contends these variances from the statute bar the action.
It is manifest from the full text of the 1959 amendment that the purpose of the enactment is to save the injured workman's common law action, subject only to the employer's subrogation for compensation previously awarded. This objective refutes any legislative intent to erect technical procedural barriers against the enforcement of the rights thus conferred.
Since the act provides a right of recovery to both the employee and the subrogee who has paid him, it is required that neither shall proceed without notice to the other. This enables either to intervene to protect his legitimate interest in the controversy, if he so desires. 2 Larson, Workmen's Compensation Law, supra, § 73.30.
In this instance, all are agreed within thirty days before the commencement of the action the injured workman, Dubie, notified counsel for his employer and its compensation carrier of his intention to commence suit. The employer and its carrier agreed to join and participate in this third party action. There is no prejudice to the defendant that one or more of the prospective claimants and the commissioner of industrial relations was not notified by registered mail of the impending action, as specified in the statute, provided he understands their interests in the suit and the claims he is called upon to defend.
Neither should the defendant be concerned with the notice given to the commissioner of industrial relations. The commissioner has an official interest in third party action in the proper discharge of his administrative responsibility under the Workmen's Compensation Law. And the lawmakers undoubtedly had in mind it would be well for the public at large to have access to such information by way of the office of the commissioner. The provision for notice to the commissioner is not a jurisdictional requirement. Neither does it concern the liability of any party. We can find no legislative purpose in the words of the statute to defeat liability of the third party for want of technical notice among the claimants and the commissioner.
*698 The statute conditions the employer-subrogee's authority to commence the action at his own initiative upon the failure of the injured workman to sue within one year from the date of his injury. Accordingly, for the first year following the injury, the decision, as to whether or not the action will be commenced rests entirely with the injured workman. Thereafter, either the injured plaintiff, his employer or the compensation carrier may commence suit "within the period of time for the commencement of actions prescribed by statute. * *" Without regard to which party commences the suit, the statute affords any party in interest the right to join in the proceeding.
The notice requirement is imposed for the benefit of the injured employee or his employer, according to which one institutes the action. Either of these parties in interest may waive the requirement by acquiescence. Poetz v. Mix, 7 N.J. 436, 81 A.2d 741, 747.
In this instance both claimants seeks enforcement of their respective interests against the defendant by acting in concert, in the name of the injured employee. We hold their actions are not barred by the failure to give notice between the claimants by registered mail. Neither are they foreclosed by the employee's delay in the commencement of his action until after a year from the date of his injury.
The remaining question relates to the defendant Bugbee's motion to dismiss the action as to him on the ground he is not a "third party" under the provisions of 21 V.S.A. § 624. His failure to file any brief on the point waives the question in this Court.
With the limitation indicated in the opinion, Question 1 is answered in the affirmative. The first part of Question 2 is answered in the affirmative. The second part of Question 2 is answered in the negative. Cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918796/ | 420 Pa. 536 (1966)
Upper Dublin Township Authority
v.
Piszek, Appellant.
Supreme Court of Pennsylvania.
Argued January 13, 1966.
March 22, 1966.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
*537 W. Charles Hogg, Jr., with him Walter V. McLaughlin, Jr., Richard H. Elliott, Samuel B. Fortenbaugh, Jr., Peter F. Baughman, and Clark, Ladner, Fortenbaugh & Young, and Waters, Fleer, Cooper & Gallagher, for appellants.
George F. Baer Appel, with him Elmer L. Menges, and Townsend, Elliott & Munson, for appellee.
OPINION BY MR. JUSTICE COHEN, March 22, 1966:
Appellants, Edward and Olga Piszek, are owners of record of certain land in Springfield Township.
Appellee is a Municipal Authority formed under the Municipality Authorities Act of 1945, as amended, Act of May 2, 1945, P.L. 382, § 1 et seq., 53 P.S. § 301 et seq., by the Township of Upper Dublin.
On November 6, 1964, appellee filed a declaration of taking and bond under the Eminent Domain Code, condemning a portion of the property owned by appellants in Springfield Township for the purpose of obtaining land upon which to erect a sewage treatment works.
Appellants filed preliminary objections to the declaration of taking, alleging that the action of the Authority was ineffective because, inter alia, the declaration of taking was improperly captioned, the notice of *538 condemnation was improperly indexed, the condemning Authority was never properly formed, the enabling ordinance did not authorize the Authority to condemn land in another municipality, and the proposed use conflicted with zoning ordinances of Springfield Township.
With regard to the first two objections, when the declaration of taking was filed on November 6, 1964 it was not captioned "in rem" as required by the Eminent Domain Code (Act of June 22, 1964, P.L. 84, § 402(b), 26 P.S. § 1-402(b)), and when the notice of condemnation was filed it was improperly indexed, the condemnor being shown as grantor and not grantee, contrary to the Eminent Domain Code (§ 404, 26 P.S. § 1-404). These defects were rectified promptly on notification thereof.
Since no party was prejudiced by the errors we agree with the trial judge that the amendments were fully curative.
Appellants next contend that the condemnation must fail because the condemning Authority was never properly formed and, its corporate status being defective, it may not exercise the power of eminent domain. This contention must be based on the Municipality Authorities Act (Act of May 2, 1945, P.L. 382, § 3A, as amended, 53 P.S. § 303A), which requires that a resolution of intent be adopted as a step in the incorporation of an Authority. The minutes of the meeting of the Commissioners of Upper Dublin Township show that on October 7, 1952, the date on which the ordinance on its face states that it was duly enacted, a motion was adopted "to authorize the Solicitor to take the necessary steps to prepare an Ordinance to create a Municipal Sewer Authority, as outlined in forms which had been forwarded for consideration by the Commissioners to [the township's attorneys]." The minutes, however, do not show a resolution of intent specifically *539 adopting the ordinance. The ordinance itself contains, inter alia, articles of incorporation for the Authority which were forwarded to the Secretary of the Commonwealth. A charter was duly issued to the Authority, as the appellants admit. The lower court believed that the error in incorporation was insignificant and held that the Authority was duly approved, citing Darlington v. East Bradford Township School District, 7 Chester 223 (C.P. 1956). However, we believe that appellants have no standing to question the validity of the incorporation. In David Goodbread v. The Philadelphia, Bala & Bryn Mawr Turnpike Company, 13 Pa. Super. 82 (1900), where letters patent were issued by the governor it was said: "This declaration [of entitlement to corporate powers] must be taken as verity, and it could not be contradicted by . . . the minute book of the company . . . . [T]he charter itself could not be attacked in a collateral proceeding . . . ." The court there quoted from an earlier case: "`The evidence, the rejection of which forms the subject of the first assignment of error, was clearly incompetent. The tendency and object of it was to impeach the charter of the plaintiff corporation. That this cannot be done in a collateral proceeding has been so often decided that reference to the authorities is almost needless:' [citing cases]." See also: Gring v. Sinking Spring Water Co., 270 Pa. 232, 113 A. 435 (1921) and Olyphant Sewage-Drainage Company v. Borough of Olyphant, 196 Pa. 553, 46 A. 896 (1900). Since the Municipality Authorities Act (Act of May 2, 1945, P.L. 382, § 3C, as amended, 53 P.S. § 303C) requires that the Secretary of the Commonwealth find whether the articles of incorporation conform to law before issuing a certificate of incorporation, the rule preventing collateral attack on a corporate charter duly issued is very much analogous to that preventing inquiry into the procedures of a duly certified legislative enactment. *540 Mikell v. Philadelphia School District, 359 Pa. 113, 58 A.2d 339 (1948). Further, the Municipality Authorities Act (§ 3C) provides that the certificate of incorporation is conclusive evidence of incorporation and permits inquiry only by the Commonwealth for purposes of dissolving any Authority which was not formed in substantial compliance with the Act.
Appellants also contend that the enabling ordinance did not authorize the Authority to condemn land in another municipality. The lower court recognized that an Authority is a creature of the State, rather than of the creating municipality. We agree. Thus, to argue from the municipal ordinance is fruitless, for it cannot derogate from rights granted by the legislature. The Authority, being validly constituted, has under law been given the power of eminent domain within or without the municipality. Act of May 2, 1945, P.L. 382, § 11, as amended, 53 P.S. § 314. The title of the ordinance and § 5 thereof only designate the project to be undertaken. This is in conformity with the Act of May 2, 1945, P.L. 382, § 4, as amended, 53 P.S. § 306, which permits limiting the projects an Authority may undertake, but which does not permit limitation of the powers designated in the act which may be exercised in carrying out that project.
Appellants finally assert that the taking is improper because the proposed use conflicts with the Springfield Township zoning ordinance, which zones this area for municipal uses. Although decided by the court below, this question is not to be decided here, for the Authority must initially go before the zoning board of the municipality of location of the land, as was required of the school district in School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277, 207 A.2d 864 (1965). The zoning determination, however, is not a requisite of an effective taking by the Authority. The Authority under § 11 of the Act of 1945, as amended, *541 may take land for an authorized purpose, and it may do this whether or not the use may in fact be made in the future because there is a legal or factual objection. Such an interpretation is required in order to best utilize the two forums involved, avoid undue delay before compensation, and protect the Authority in its long range plans which may envisage future uses and changing zoning laws.
The consequence is that appellants' land has been effectively condemned, and having no reversionary right (Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 56917) their interest in this litigation and the zoning proceedings is terminated. We do not determine, however, whether or not the proposed use complies with the zoning requirements.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918820/ | 218 A.2d 515 (1966)
James M. BUCKLEY and Autumn D. Buckley, Appellants,
v.
Albert L. LIGGETT, Appellee.
No. 3841.
District of Columbia Court of Appeals.
Submitted February 28, 1966.
Decided April 15, 1966.
Herman Miller, Washington, D. C., for appellants.
Milton Conn, Washington, D. C., for appellee.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
MYERS, Associate Judge:
Appellee occupied, under a written lease from appellants, the first floor of a building owned by appellants where he operated a self-service automatic laundry. During the term of the lease appellants applied to the District of Columbia for a Certificate of Occupancy for the use of the second and third floors of the building as apartments. They were notified that before the Certificate of Occupancy could be issued it would be necessary, in order to comply with the District of Columbia Building Code, to fire-protect the walls, *516 ceiling and doors separating the commercial area on the first floor from the proposed residential area above. Appellants called upon appellee to install the fireproofing, maintaining this was his duty under the terms of the lease. When appellee refused to do so, the landlords filed suit for possession. After hearing, restitution of the commercial premises was denied, the trial court holding that appellee had no obligation under his lease to pay for fireproofing of the building as called for by the order of the District of Columbia. From this ruling the landlords appealed.
The lease between the parties limited the use of the first floor to the operation of an automatic coin-operated self-service laundromat and permitted installation in the basement of a boiler and other equipment necessary for the operation of the laundry. It is not necessary to detail the other terms of the lease as we are concerned only with the one providing that the tenant shall pay all repairs rendered necessary by the operation of the laundromat. Appellants maintain that this provision is broad enough to place upon appellee the obligation to cover the walls, ceiling and doors of the area he occupied with fire-resistant materials. Their position is that the District of Columbia would not have ordered this protection except for the existence of the laundromat on the first floor.[1]
In our opinion both logic and law dictate the conclusion that this provision of the lease contemplated only such repairs as may be applicable to the operation of the laundromat on the ground floor and did not encompass repairs or major improvements to other parts of the building for purposes not directly associated with the laundromat and which were primarily for the benefit of the landlord. Absent an agreement to the contrary between the landlord and the tenant, the landlord is liable for the expense of making any repairs, alterations or improvements directed by a public authority. Dodge's Market v. Turner, D.C. Mun.App., 67 A.2d 526 (1949); Goldwyn Distributing Corp. v. Carroll, 51 App.D.C. 75, 276 F. 63 (1921); 33 A.L.R. 530 (1924).[2] And where the alterations or improvements ordered by a public authority are of a structural or substantial nature, as here, the landlord is ordinarily held to be liable where the tenant's covenant is merely to repair. Taylor v. Gunn, 190 Tenn. 45, 227 S.W.2d 52, 55 (1950).
We hold the trial court correctly found that appellee had not violated any provision of his lease by refusing to pay for the fireproofing of the building and properly denied appellants' complaint for possession.
Affirmed.
NOTES
[1] The portion of the building occupied by appellee had been used since 1959 for the operation of a laundromat. The order of the District of Columbia on September 24, 1964, for the installation of fireproofing was precipitated by appellants' application for an occupancy permit for the use of the upper floors of the building for residential purposes. The proposed apartments had a separate and closed stairway, unconnected with the laundromat.
[2] Even a covenant by the tenant to comply with requirements of public authorities has been held to render him liable only for alterations or improvements that are necessary incidental repairs or replacements. See Annot. 33 A.L.R. 534 (1924). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918823/ | 218 A.2d 476 (1966)
George LAUDER
v.
ZONING BOARD OF THE TOWN OF WESTERLY et al.
M. P. No. 1746.
Supreme Court of Rhode Island.
April 14, 1966.
*477 Higgins, Cavanagh & Cooney, John P. Cooney, Jr., for petitioner.
Michael A. Santoro for respondent Zoning Board.
Harold B. Soloveitzik, Matthew L. Lewiss, for applicant.
JOSLIN, J.
This petition for certiorari was brought to review a decision of the zoning board of the town of Westerly denying an appeal from the issuance of a building permit by the zoning and building inspectors of that town authorizing Rebekah West Harkness to erect a portable stage on her premises located in an R-1 Watch Hill Residential District. The writ issued and pursuant thereto the pertinent records have been certified to this court.
It appears that the permit which issued on July 3, 1965 authorized the erection of "a stage for private ballet rehearsals" and directed the "stage to be removed in September 1965." The appeal by neighboring landowners from the granting of the permit was heard before the zoning board on August 11 and 25, 1965, and was decided by it on October 2, 1965. Pending that appeal and the board's decision the applicant constructed the stage and used it for rehearsals by the Harkness Ballet, a troupe which was under the sponsorship of the Rebekah Harkness Foundation, a charitable organization. By the time the decision of the zoning board was rendered the permit had expired and the Harkness Ballet had departed from Westerly.
Without reaching the substantial question of whether the board abused its discretion, we are of the opinion that the writ heretofore issued should be quashed.
It is fundamental in our system that we will not spend our time passing on moot, academic, abstract, or hypothetical issues, and that we will not review a case on certiorari or other prerogative writ if our mandate would be of no assistance to the party seeking our assistance because what he asks for has already been done. Richardson v. McChesney, 218 U.S. 487, 31 S. Ct. 43, 54 L. Ed. 1121; Jones v. Montague, 194 U.S. 147, 24 S. Ct. 611, 48 L. Ed. 913; Marchand v. Tellier, 74 R.I. 66, 58 A.2d 631; Kimball v. Pelosi, 96 R.I. 429, 192 A.2d 267; Goldwater v. Superior Court, 49 Ariz. 260. 66 P.2d 233; Spinato v. Lowe, 239 La. 604, 119 So. 2d 480; Monteiro v. Selectmen of Falmouth, 328 Mass. 391, 103 N.E.2d 711; Hanson v. Meyers, 54 Wash.2d 724, 344 P.2d 513.
Here the permit authorizing the construction of a stage expired by its terms in September 1965 and petitioner, prior to coming here, had to all intents and purposes obtained the same relief which he would be entitled to were we to quash the record. While the short-term nature of the permit which was granted and the inordinate and unexplained delay of the respondent board in passing on its propriety will under our opinion have the practical effect of allowing *478 the decision to escape judicial review on the merits, at least by the method of review petitioner has elected, the problem raised is not so affected with the public interest as will justify a departure from the rule that we will decide only actual controversies. Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 514, 31 S. Ct. 279, 55 L. Ed. 310.
In the circumstances, we cannot undo what has already been undone and the real controversy having already been resolved we will not decide the case even though our opinion might influence future actions in like circumstances.
The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records certified are ordered sent back to the respondent board with our decision endorsed thereon. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918829/ | 46 N.J. 522 (1966)
218 A.2d 153
BOARD OF EDUCATION OF THE TOWN OF MORRISTOWN, ETC., PLAINTIFF-RESPONDENT,
v.
DWIGHT R.G. PALMER, COMMISSIONER, STATE HIGHWAY DEPARTMENT, ETC., ET AL., DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued February 8, 1966.
Argued February 21, 1966.
Decided March 21, 1966.
*523 Mr. William J. McCormack, Deputy Attorney General, argued the cause for defendant-appellant Dwight R.G. Palmer, Commissioner, State Highway Department, State of New Jersey (Mr. Edward D. McKirdy, Deputy Attorney General, on the brief; Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
Mr. Theodore W. Geiser, argued the cause for defendant-appellant New Jersey Highway Authority (Miss Sonia Napolitano, on the brief; Messrs. Pindar, McElroy, Connell & Foley, attorneys).
Mr. Clive S. Cummis argued the cause for plaintiff-respondent (Messrs. Michael B. Tischman and Steven S. Radin, on the brief).
The opinion of the court was delivered
PER CURIAM.
The State Highway Department is engaged in constructing Interstate Highway Route 287, a wide, high speed, limited access super-highway, part of which is to run through the Town of Morristown, New Jersey. A section of the highway and an interchange or ramp system to be connected with it are to be constructed in close proximity to the George Washington Elementary School in the town. None of the work in the vicinity of the school had been started when this proceeding was instituted. In fact, although construction *524 of the roadway is progressing toward the school site, it is still a considerable distance away.
Plans and drawings purporting to show the proposed location of the highway and ramps and the character of their construction in the George Washington School area, came to the attention of the Morristown Board of Education, owner of the school. Study of these documents led the board to conclude that upon completion of the project, the school will become an island surrounded by highway, access roads and ramps, and that a portion of the rear of the school property, used as a playground, actually would be taken. Believing that the circumstances in their totality would result in a destruction of the beneficial use of the building and land for school purposes, and that such result would constitute a taking of the property itself, the board brought this action against Dwight R.G. Palmer, Commissioner, State Highway Department, and New Jersey Highway Authority (which all parties now concede is not involved in the particular highway project). The principal relief sought is an injunction restraining the construction as planned in the vicinity of the school, or in the alternative, an order compelling the Commissioner to institute condemnation proceedings to acquire the school property and to pay just compensation therefor.
The trial court dismissed the complaint on preliminary motion holding that since the affidavits submitted by the parties as well as the other documentary proof did not show the physical taking or invasion of any portion of plaintiff's property, no cause of action existed. Appeal from the judgment of dismissal was taken to the Appellate Division. There the court felt the affidavits, when construed most favorably to the plaintiff as the trial court was required to do on a motion to dismiss the complaint, disclosed that the construction "will result in creating an island at the school site." It said further that the affidavits contained allegations of fact and statements of opinion based thereon to the effect that the "proposed construction would eventually necessitate abandonment of the school." Under the circumstances, the Appellate *525 Division was of the view the action should not have been dismissed on motion, but that the matter should have been "thoroughly explored at a full hearing to determine whether the beneficial use of the George Washington Elementary School was either totally or substantially destroyed, as alleged, by the highway project, so as to amount to a taking." Accordingly the judgment of dismissal was reversed, and the cause was remanded for full hearing on the merits. An ad interim stay of the construction work was denied. Board of Education of the Town of Morristown v. Palmer, 88 N.J. Super. 378 (App. Div. 1965). We granted the Commissioner's application for certification. 45 N.J. 603 (1965).
The briefs and oral argument of the parties before us, as well as an additional drawing of the project as presently planned in the George Washington School area (which was not presented to the Appellate Division), reveals: (1) There will be no physical invasion of the school premises, and (2) the school will not be encircled by the new highway or the access roads or ramps. Study of the entire record gives rise to the inescapable conclusion that at the present time the issue sought to be presented by the Board of Education is purely hypothetical. The effect on the school, as a school, if any, is speculative. It will continue to be so until the construction work is completed and sufficient time has elapsed to permit an informed judgment to be made as to whether any damage has been suffered by the board in the constitutional sense of a taking. Plainly, therefore, the present action is premature, and the trial judge was correct in dismissing it. Accordingly, we affirm his judgment of dismissal, but without prejudice to the institution of a new action by the plaintiff, if deemed advisable, at an appropriate time after completion of the highway project and after its use for the designed purpose.
In the meantime we express no view as to whether the conditions described in the Appellate Division opinion can be considered such a taking as would expose the Highway *526 Department to liability to pay compensation to the property owner. Decision on that issue is expressly reserved, and the matter may be considered as res nova for further presentation to this Court.
Reversed.
For reversal Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO 6.
For affirmance None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584118/ | 24 So. 3d 1224 (2009)
Zamont Jerell BRANTON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-4319.
District Court of Appeal of Florida, Second District.
December 30, 2009.
*1225 James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
Zamont Jerell Branton seeks review of the order denying his motion for postconviction relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the summary denial of four subclaims in claim one because the postconviction court erroneously determined that these subclaims were conclusively refuted by the record. We affirm the denial of the remainder of Branton's claims without comment.
The State charged Branton and codefendants Derrick Moultry and Daniel Pressley with armed carjacking and armed robbery based on allegations that they approached a man who was selling clothing out of the back of his car, threatened him with a gun, and stole the car and clothing. At trial, the State presented the testimony of the victim and the investigating detective. The victim identified Branton as one of the participants in the crime from a photopak prior to trial and in person at trial. The detective testified regarding the victim's pretrial identification of Branton. Branton raised an alibi defense, claiming that he could not have committed the crimes on the date charged because he was at Busch Gardens with friends. Branton also claimed that the victim mistakenly identified him because *1226 the victim had previously sold clothing to Branton from his car. Branton called his girlfriend Chanel Wilson, her close friend Lequisha Jefferson, and James Ragsdale to testify in support of his defenses, but Branton did not take the stand.
In claim one, Branton alleged that trial counsel was ineffective for failing to interview and call several witnesses to testify at his trial, including Aubrey Wright, Daniel Pressley, Trevior Daniels, and Quantavia Ponder. Branton alleged that he asked counsel to interview and call these witnesses and informed counsel of the witnesses' locations and the substance of their testimony. The court summarily denied relief as to these subclaims.
As to witness Wright, Branton alleged that Wright was the girlfriend of codefendant Moultry. Wright would have testified that Moultry and some other men committed a carjacking and robbery but that Branton was not with them. Although Wright had previously made statements identifying Branton as one of the perpetrators, she would have testified that her previous statements were made under duress and coercion by Moultry.
The postconviction court determined that the record refuted Branton's assertion that he was prejudiced by counsel's failure to interview and call witness Wright. The court explained that "because the record contains no testimony that Wright identified [Branton] as being involved in the alleged offenses, her proposed testimony would be unnecessary." However, testimony by Wright that Branton was not involved in the offenses would have been integral to Branton's defenses of alibi and mistaken identification, even if it could have been impeached with Wright's prior inconsistent statement. Accordingly, the summary denial of this subclaim was improper.
As to witness Pressley, Branton alleged that Pressley would have testified that he was at Branton's house when Branton's girlfriend Chanel Wilson and another girl picked up Branton to take him to Busch Gardens on the date of the offense. Pressley would have testified that Branton was not with Pressley and codefendant Moultry later that day. Additionally, Pressley would have testified that a person named Joshua was with him and Moultry and that Joshua resembles Branton.
The postconviction court determined that Pressley's claim was refuted by an excerpt of a taped confession provided by the State in its response. This confession was made by Pressley and was introduced at Pressley's trial. In addition to implicating Pressley, the confession also implicated Branton. We are not convinced that evidence from the record in Pressley's trial can be used by the postconviction court to refute Branton's postconviction claim. See Fla. R.Crim. P. 3.850(d) ("If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing." (emphasis added)). Regardless, the existence of the taped confession did not refute Branton's claim that Pressley would have testified differently at Branton's trial. Even if Pressley could have been impeached with his prior taped confession, exonerative testimony from a codefendant would have been integral to Branton's defense. Accordingly, the summary denial of this subclaim was improper.
As to witness Daniels, Branton alleged that Daniels would have testified that he spoke with Branton at a McDonald's across the street from Busch Gardens at 6:15 p.m. on the date of the offense. Branton claims that this testimony would have corroborated Lequisha Jefferson's testimony that she picked Branton and Wilson up *1227 from the McDonald's at approximately 6:30 p.m. on that date.
The postconviction court determined that the testimony would have been cumulative to the testimony of witnesses Wilson and Jefferson. However, this finding is erroneous because the testimony of both Wilson and Jefferson was severely impeached due to their close relationship with Branton. See Balmori v. State, 985 So. 2d 646, 650 (Fla. 2d DCA 2008) (holding that postconviction court erred in determining evidence would have been cumulative to the defendant's trial testimony because it was necessary to corroborate his testimony). Accordingly, the summary denial of this subclaim was improper.
As to witness Ponder, Branton alleged that Ponder would have testified that Branton was not one of the individuals who was with the codefendants on the date of the offense. Although Ponder made a prior statement identifying Branton as a participant in the crimes, she would also testify that her prior statement was procured by threats. The postconviction court determined that Branton was not prejudiced by counsel's failure to interview and call witness Ponder because the record contains no testimony that Ponder identified Branton as being involved in the crimes. However, as with the claim concerning the testimony of witness Wright, testimony by Ponder that Branton was not involved in the offenses would have been integral to his defense of mistaken identification and alibi even if it could have been impeached with the prior inconsistent statement. Accordingly, the summary denial of this subclaim was improper.
For the foregoing reasons, we reverse as to the denial of the above four subclaims. Because the court has already determined that the subclaims are facially sufficient, we remand for an evidentiary hearing.
Affirmed in part; reversed in part; remanded.
FULMER and DAVIS, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584137/ | 427 So. 2d 602 (1983)
JOHNNY TURCICH, JR., INC. and Johnny Turcich, Jr.
v.
FIRST NATIONAL BANK OF JEFFERSON PARISH.
No. 82-C-3.
Court of Appeal of Louisiana, Fifth Circuit.
February 7, 1983.
*603 Leon A. Crist, A. Russell Roberts, Graffagnino, Perez & Roberts, Metairie, for plaintiff-appellant.
Joseph T. Casey, Casey, Babin & Casey, New Orleans, for defendant-appellee.
Before CHEHARDY, CURRAULT and DUFRESNE, JJ.
CURRAULT, Judge.
This is an action against defendant bank for cashing plaintiff's check contrary to a written stop order. Plaintiff appeals from a judgment of the district court which sustained defendant's plea of prescription of five years as provided by LSA-C.C. art. 3540. We affirm.
The facts are not in dispute. Johnny Turcich, Jr., Inc. maintained a checking account with First National Bank of Jefferson Parish (hereafter FNJ). On or about July 23, 1975, a check for $4830 was drawn on that account and was made payable to the order of Bamber Contractors and signed by John A. Turcich, Jr. The reverse of the check had written on it, "This check was given under protest as to storage fee at time of sale."
A stop-payment order for the above-mentioned check was given by Mrs. John A. Turcich, Jr., dated January 7, 1975 (sic)[1]. The check was subsequently stamped, "For Deposit Only in LIVINGSTON STATE BANK to the credit of BAMBER CONTRACTORS, INC." and sent for collection by Livingston State Bank & Trust Company to First National Bank of Jefferson Parish, which check was received and honored by FNJ on August 19, 1976. The cashing of this check was further reflected in the monthly statement of Johnny Turcich, Jr., Inc., ending August 31, 1976.
A little more than five years later, on December 3, 1981, Johnny Turcich, Jr., Inc. filed suit demanding reimbursement by FNJ. In response to that suit, defendant bank filed a peremptory exception of prescription which was sustained by the Honorable Robert J. Burns, Twenty-Fourth Judicial District Court, Division "M". Plaintiff has appealed.
ISSUE
The sole issue presented to this court is whether the action filed by plaintiff-appellant is subject to prescriptive period of five years as provided by LSA-C.C. art. 3540.
Appellant argues that his cause of action against defendant bank does not arise in any way from the execution of a note or bill of exchange. He asserts, instead, the action arises from a breach of the bank's contract with its customer to stop payment on a check issued by that customer.
Although we were unable to locate jurisprudence consistent with the issue presently before us, we find Strother v. National American Bank, 384 So. 2d 592 (La.App. 4th Cir.1980), to be analogous and helpful. In Strother, supra, the action was against a local bank for cashing plaintiff's check on a foreign bank contrary to a restrictive endorsement.
Strother had drawn a check on his account with Citizens and South National Bank of Atlanta. On January 13, 1974, the check was made payable to the order of "Chalmette Properties" and on the back thereof plaintiff endorsed the same, "Deposit Only Chalmette Properties." Subsequently, in January, 1974, the check was further endorsed by "Dr. H.A. Thian," and presented to and cashed by the defendant, National Bank of New Orleans. Strother brought suit over three years later on November 3, 1977.
The trial court treated the issue as an offense or quasi offense, vis, that the defendant bank negligently overlooked the restrictive endorsement, and sustained defendant's plea of prescription of one year (LSA-C.C. art. 3536).
The Fourth Circuit Court reversed and held plaintiff's action had not prescribed as the applicable prescriptive period was five years as provided by LSA-C.C. art. 3540 *604 which governs the actions on negotiable or non-negotiable bills and notes. The court in Strother, supra, at 594 concluded:
"With respect to the check in question we believe the clear intent of the article to be to the effect that bills of exchanges, notes, and other instruments, negotiable or otherwise, are to have a viable life for a period of five years. While the instant action is not a suit between the maker (Strother) and the payee (Chalmette Properties), it is an action by the maker against a third party whose averred conduct is claimed to have contradicted and clearly vitiated the terms and efficacy of the instrument. Such conduct falls within the purview of C.C. art. 3540, above."
The basic question before us here, as in Strother, supra, is that of prescription. Is this action governed by the prescriptive period of five years (LSA-C.C. art. 3540, bills and notes) or ten years (LSA-C.C. art. 3544)?
While it is appellant's assertion that this action is contractual in nature because the defendant bank honored his check despite the written stop-order, we must take notice that that stop-order was not in effect when the check was cashed. Written stop-orders are only viable for six months unless renewed in writing. LSA-R.S. 10:4-403(2). Plaintiff's check was cashed in August, 1976, some eight months after the written stop-order was signed. There is no evidence in the record evidencing a renewal of that stop-order. Indeed, plaintiff's petition states it was not renewed.
Appellant relies upon Davis v. Miller Builders and Developers, Inc., 340 So. 2d 409 (La.App.2d Cir.1976) wherein the court held that the relationship between the customer-depositor and the bank is one of creditor-debtor and that a drawee bank breaches its contract with its depositor when it pays without the depositor's authority. However, as demonstrated above, FNJ was not breaching any contractual duty owed depositor since FNJ was under no direct order from the depositor to dishonor his check.
We feel, as do our brothers of Fourth Circuit Court, that it is the clear intent of LSA-C.C. art. 3540 that bills of exchange, notes and other instruments, negotiable or otherwise, are to have a viable life of five years. Accordingly, this action is governed by LSA-C.C. art. 3540.
For the above reasons, the judgment of the district court sustaining defendant's plea of prescription is affirmed and all costs are assessed against appellant.
AFFIRMED.
NOTES
[1] The parties have stipulated before this court that although January 7, 1975 appears on the face of the stop-order, the actual date the stop-order was executed was January 7, 1976. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546279/ | 250 B.R. 468 (2000)
In re Timothy J. TRACEY and Jane R. Tracey, Debtors.
Myron Chapman, Plaintiff,
v.
Timothy J. Tracey and Jane R. Tracey, Defendants.
Bankruptcy No. 98-14766-MWV. Adversary No. 99-1129-MWV.
United States Bankruptcy Court, D. New Hampshire.
June 30, 2000.
*469 Geraldine Karonis, Assistant U.S. Trustee, Manchester, NH, for UST J. Christopher Marshall.
Edmond J. Ford, Trustee, Ford & Weaver, PA, Portsmouth, NH, for Trustee.
Stephanie A. Bray, Brian G. Vaughan, Wiggin & Nourie, Manchester, NH, for Myron Chapman, Plaintiff.
John A. Rogers, Meredith, NH, for Timothy Tracey, Jane Tracey, Defendants.
MEMORANDUM OPINION
MARK W. VAUGHN, Chief Judge.
The Court has before it Plaintiffs motion for summary judgment on its amended complaint seeking to have the debt due him excepted from discharge pursuant to §§ 523(a)(2)(A), 523(a)(4) and 523(a)(6) of the Bankruptcy Code. The Plaintiff bases his motion for summary judgment on the *470 theories of res judicata and collateral estoppel, having obtained a judgment against the Defendants in the Superior Court for Grafton County, New Hampshire. The Defendants object to the motion arguing that the only determination made by the Superior Court was for a breach of contract, which is not cause for a debt to be excepted from discharge. For the reasons set forth below, the Court denies the motion for summary judgment.
This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the "Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire," dated January 18, 1994 (DiClerico, C.J.). This is a core proceeding in accordance with 28 U.S.C. § 157(b).
Facts
The facts are not in dispute. The Debtor-Defendants, as individuals and principals of a limited liability company, manage rental properties at Loon Mountain, including properties owned by the Plaintiff.[1] It is uncontested that the Defendants failed in 1996 to remit monies due the Plaintiff in the amount of $32,400. In December 1996, the Plaintiff brought suit against the Defendants in the Grafton County Superior Court. The complaint had seven counts, namely: Count I Plea for an Accounting; Count II Plea of Assumpsit; Count III Plea of Case Negligence; Count IV Plea of Case Breach of Fiduciary Duty; Count V Consumer Protection; and Counts VI & VII Trustee Attachments.
The Defendants were represented by counsel and filed an answer to the complaint. On April 18, 1997, the Plaintiff filed a motion for partial summary judgment. The motion stated that it was "for partial summary judgment on the contract claims." The Court assumes that the motion referred to Count II of the complaint, which generally sought relief for breach of contract. On May 29, 1997, after the Defendants failed to file pleadings in response to the motion, the Superior Court granted the partial summary judgment motion.
Following the partial summary judgment, by motion dated June 11, 1997, the Plaintiff filed a "Motion for Judgment, Assessment of Damages and Request for Order of Contempt and Sanctions." Along with this motion, the Plaintiff filed an affidavit of damages in the amount of $38,898.35. Part A of the motion's prayer for relief requested the court to "[e]nter judgment on all remaining counts against the Defendants. . . ." A hearing was held on the motion on July 28, 1997, at which both the Plaintiff and Defendants were represented by counsel. As a result of that hearing, the Superior Court entered the following judgment: "Motion for default judgment; granted. Judgment for the plaintiff in the amount of $38,898.35 plus $1,549 in attorney's fees and costs for preparation for depositions."
Discussion
This matter comes before the court on a motion for summary judgment. Rule 7056 of the Federal Rules of Bankruptcy Procedure makes applicable Rule 56 of the Federal Rules of Civil Procedure: "The judgment sought shall be rendered forthwith 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." Fed.R.Civ.P. 56(c).
At the outset, the court rejects the Plaintiff's argument that the court should grant summary judgment based on the doctrine of res judicata. Under res judicata, otherwise known as claim preclusion, "a final judgment on the merits bars *471 further claims by parties or their privies on the same cause of action." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979)(emphasis added). As this Court pointed out in In re Smith, 189 B.R. 240 (Bankr.D.N.H.1995), relying on Brown v. Felsen, 442 U.S. 127, 132, 99 S.Ct. 2205, 2210, 60 L.Ed.2d 767 (1979), res judicata will not be invoked in a complaint for an exception to discharge since such an action is being raised for the first time in bankruptcy court. Without bankruptcy, there is no such claim and thus the claim was not and could not have been brought prior to the bankruptcy. The Court disagrees with the Plaintiff's attempt to distinguish the instant case from Smith and Felsen on the grounds that those cases involved uncontested proceedings. The fact that a judgment was entered after an answer was filed by Defendants does not alter the fact that the complaint on which the default judgment was entered and the complaint for an exception from discharge are distinct actions.
That leaves for this Court a determination as to whether collateral estoppel applies on the facts of this case. Collateral estoppel, or issue preclusion, applies in bankruptcy to bar the relitigation of factual or legal issues that were determined in a prior state court action. Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). In order for collateral estoppel to apply, four requirements must be met. These requirements are: 1) the issue sought to be precluded must be the same as that involved in a prior action; 2) the issue must have been actually litigated; 3) the determination of the issue must have been essential to the final judgment; and 4) the party against whom estoppel was involved must be fully represented in the prior action. Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir. 1987).
First, the Court finds that collateral estoppel does not apply to the § 523(a)(2)(A) count or the § 523(a)(6) count. In order for a debt to be discharged under § 523(a)(2)(A), the Plaintiff must prove that the debt was incurred by "false pretenses, a false representation, or actual fraud. . . ." 11 U.S.C. § 523(a)(2)(A). None of the allegations in the state court complaint alleged that the Defendants made false representations or committed actual fraud, therefore the first two requirements of collateral estoppel are not satisfied. Section 523(a)(6) excepts a debt "for willful and malicious injury by the debtor. . . ." 11 U.S.C. § 523(a)(6). Again, there is no allegation that the Defendants acted willfully and maliciously.
Whether collateral estoppel applies to the 523(a)(4) count is a closer question. Section 523(a)(4) excepts from discharge any debt "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." 11 U.S.C. § 523(a)(4). The Court finds no allegation in the complaint that the Defendants committed embezzlement or larceny.[2] However, § 523(a)(4) may also be satisfied by a showing that the Defendants committed defalcation while acting in a fiduciary capacity. Count IV of the state court complaint alleges breach of fiduciary duties by the Defendants; therefore, the requirement of establishing that the Defendants were acting in a fiduciary capacity is established. The next question is whether the state court judgment established that the Defendants committed defalcation while acting in a fiduciary capacity. Defalcation has been described as the "failure to produce funds entrusted to a fiduciary and applies to conduct that does not necessarily reach the level of fraud, embezzlement or appropriation." L. King, 4 Collier on Bankruptcy ¶ 523.10[1][b]. Generally, mere negligent breach of a fiduciary duty will not constitute defalcation in the bankruptcy *472 context. Harsch v. Eisenberg (In re Eisenberg), 189 B.R. 725, 730 (Bankr. E.D.Wis.1995). Misappropriation of funds or improper handling of property, however, have often been found by courts to fit the definition of defalcation. See id. Within Count IV, the Plaintiff alleges that the Defendants breached their fiduciary duty by misdirecting funds and failing to account to the Plaintiff for funds under their control. Certainly, such conduct amounts to defalcation. Therefore, the Court finds that requirements 1, 2 and 4 of collateral estoppel are met: the issue sought to be precluded, that the Defendants committed defalcation while in a fiduciary capacity, is the same issue raised in Count IV of the state court complaint; the issue was actually litigated since there was a hearing on the motion for judgment on all of the remaining counts on July 28, 1997; and the Defendants were fully represented as counsel appeared at that hearing.
However, the Court finds that the third element, that a finding on the issue sought to be precluded is essential to the judgment, is missing. As described above, prior to seeking judgment on all counts, the Plaintiff was granted summary judgment on Count II only, the contract count. In connection with the subsequent motion for judgment on the remaining counts, an affidavit of damages on the summary judgment count was attached as Exhibit B, and an affidavit of damages for sanctions for failure to appear at a deposition was attached as Exhibit C. The final judgment ultimately awarded the exact amount of the damages sought for the contract count and for sanctions for not appearing at the deposition. Clearly, a finding on the issue of a breach of fiduciary duty was not essential to the judgment entered as summary judgment on the contract count had already been entered, and the damages awarded were those for a breach of contract plus sanctions. Therefore, the Court cannot find that a finding of defalcation while acting in a fiduciary capacity was essential to the final judgment awarding the Plaintiff damages in the amount of $38,898.35 or sanctions in the amount of $1,549.00. It is for this reason that the motion for summary judgment is denied.
Conclusion
For the reasons stated above, the Plaintiff's motion for summary judgment is denied. This matter will be set for trial in accordance with the attached order. This opinion constitutes the Court's findings and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate order consistent with this opinion.
NOTES
[1] The Plaintiff herein is a plaintiff by virtue of an assignment of a claim by the original plaintiff. However, this opinion will refer to Plaintiff as if it were the original claimant.
[2] The Plaintiff asserts that the complaint makes out a claim for embezzlement. However, by the Plaintiff's own definition of embezzlement, a finding of fraud must be made. As noted previously, the complaint does not allege fraud. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546290/ | 172 F.2d 495 (1949)
OLD AMERICAN LIFE INS. CO.
v.
BIGGERS.
No. 3694.
United States Court of Appeals Tenth Circuit.
February 2, 1949.
Rehearing Denied February 24, 1949.
*496 Coleman Hayes, of Oklahoma City, Okl. (George J. Fagin and Monnet, Hayes & Brown, all of Oklahoma City, Okl., on the brief), for appellant.
Rex H. Holden, of Oklahoma City, Okl., for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
PHILLIPS, Chief Judge.
The Old American Life Insurance Company[1] instituted this action against Biggers seeking a decree adjudging a contract to be void, or, in the alternative, that it be adjudged to terminate when Biggers had received the amount of $22,443.26 thereunder.
The Insurance Company was organized under an Act known as the Mutual Benefit Act of the State of Oklahoma, 36 Okl.St. 1941 §§ 691-712, under the name of the Duncan Life and Accident Association, Duncan, Oklahoma. From the date of its organization until March, 1929, it operated on a post-mortem assessment plan. In March, 1929, its charter was amended so as to adopt the level rate plan.
Companies organized under such Act operate on a mutual plan. Their premium rates are less than those charged by old line legal reserve insurance companies. No dividends or disbursements of that character are made by such companies.
On August 1, 1935, the Insurance Company entered into a reinsurance contract whereby all of its members, except those composing its board of directors, were reinsured in the Republic Life Insurance Company of Oklahoma City, Oklahoma. This left the Insurance Company with nothing but its charter. In September, 1935, by amendments to the charter, the *497 name was changed to Old American Life Insurance Company, and new officers and directors were elected and installed.
In accordance with a general practice with respect to members of such insurance companies, each member of the Insurance Company, at the time of his application for membership, executed a continuing proxy to the president of the Insurance Company. This gave the president and succeeding presidents the power to elect the boards of directors and thereby control the election of officers. Until such an insurance company had accumulated a reserve, it was the practice of the organizers and promoters to make advances to meet its financial requirements. An insurance company could not obligate itself to repay such advances, because so to do would render it insolvent. But the practice was for the president and other officers, through the control effected as above stated, to reimburse themselves for advances so made, indirectly through salaries and commissions.
In November or December, 1935, Biggers initiated negotiations with R. W. Dockray which resulted in an agreement that Dockray should become sales manager of the Insurance Company; that he should receive a salary of $250 per month and traveling expenses; that he should develop and build up the business of the Insurance Company, and that when he had succeeded in so doing, the benefits flowing from proxy control should go one-third to Dockray, one-third to Biggers, and one-third to D. W. Womack, who was secretary-treasurer of the Insurance Company.
From July, 1935, to September, 1938, H. H. Sharp was the president of the Insurance Company. He was at all times the alter ego of Biggers. Sharp resigned as president in September, 1938. Dockray was vice-president and, as such, apparently performed the duties of president until February, 1940. Biggers' domination of the Insurance Company did not cease with the resignation of Sharp. Until February 13, 1940, he continued his domination through its directors, all of whom, except Dockray, were employees of Biggers. Sometime during February, 1940, probably on February 13, 1940, Dockray was elected president of the Insurance Company.
Dockray told Biggers that considerable funds would have to be advanced to the Insurance Company, and Biggers agreed to make such advances. From time to time, Biggers made advances to the Insurance Company, aggregating $22,443.26. All of such advances were made in the name of Sharp except one of $750.
On January 11, 1938, Sharp signed and delivered a letter to the Insurance Commissioner which stated that the donations made by Sharp to the Insurance Company in the amount of $11,431.67 were, in fact, donations and that the Insurance Company was not liable to repay or reimburse Sharp therefor. On September 15, 1936, Sharp had signed and delivered a letter to the Insurance Commissioner in which he made a like statement with respect to $6,300 advanced by him to the Insurance Company.
Early in 1940, Biggers advised Dockray that he would not advance any more money to the Insurance Company and proposed that its policies be reinsured in the Republic Life Insurance Company. After some discussion of the effect of such action on Biggers and Dockray, Biggers proposed that the Insurance Company enter into a contract whereby it would agree to pay him 10 per cent of the gross premiums received on business then in force, and thereafter written by the Insurance Company, until he had received the amount of $22,443.26. Dockray suggested that the commission on premiums should be 5 per cent. Biggers insisted on 10 per cent and stated he would cause the directors of the Insurance Company to reinsure its policies unless the Insurance Company entered into the contract as demanded by him. Biggers stated that, should the policies be reinsured, he would lose the $22,443.26 he had advanced and Dockray would lose all but the $250 per month he had received as salary. Dockray requested Biggers to recite in the contract the amount of the Insurance Company's liability to him. Biggers replied that that could not be done because it would show a matured liability, but stated that the contract would terminate when he had received $22,443.26 under it.
*498 On February 1, 1940, the Insurance Company entered into a contract with C. J. Bozeman. The contract recited that Bozeman had contributed a large amount of money to the Insurance Company to assist in promoting it and building up its agency force and had made it possible for the Insurance Company to write a substantial amount of business; that Bozeman was willing to release any and all claims he had against the Insurance Company because of such contributions, and was willing to use his influence in securing new business for the Insurance Company and to assist it in retaining business then in force, and that the Insurance Company desired to secure the cooperation of Bozeman in continuing in force the business then on its books, and desired to be relieved of all obligations of whatsoever kind and character which Bozeman might have against it because of such contributions.
It provided that, for and in consideration of $1 paid by Bozeman and the mutual covenant set forth in the contract, Bozeman released the Insurance Company of any and all claims he might have against it because of such contributions; that Bozeman should cooperate with the Insurance Company in writing new business and assist it wherever possible in continuing in force, business then on its books; that the Insurance Company transferred, assigned, and agreed to pay to Bozeman 10 per cent of the gross premiums received by it on all business then in force and which might thereafter be written by it; and that, should the Insurance Company discontinue writing new business or should it be merged with, or reinsure its policies in, another company, it should continue to pay such percentage of premiums upon all insurance in force at the time of the reinsurance or merger.
When Dockray became president in 1940, he made substantial reduction in salaries of officers and in operating expenses. The Insurance Company prospered. Its net assets increased from $1,101.37 in 1939 to $27,024.87 in 1946.
The Insurance Company paid Biggers $15,460.19 between January 10, 1940, and February 15, 1946.
On March 8, 1946, the Insurance Company made a written offer to pay Biggers $6,983.07, which, with the payments theretofore made, would equal the $22,443.26 donated to the Insurance Company by Biggers, on condition that Biggers return the original of the contract and an assignment thereof to the Insurance Company. Biggers declined so to do and, thereupon, the Insurance Company brought this action.
At the hearing below, Dockray testified that the advances made by Biggers to the Insurance Company were, in fact, donations and did not create any legal liability on the part of the Insurance Company to make repayment thereof. He further testified that before the contract of February 1, 1940, was entered into, Biggers unequivocably agreed that the liability of the Insurance Company under the contract should be $22,443.26, and that when that amount had been paid to Biggers thereunder, the contract would terminate. That testimony was not denied.
One ground set up in the complaint for the relief sought was that the consideration moving from Biggers was insufficient to support an agreement by the Insurance Company to pay Biggers 10 per cent of the gross premiums received by the Insurance Company throughout its life.
The trial court denied the plaintiffs any relief and awarded Biggers judgment on his counterclaim for the amount of commission which had accrued under the contract, with interest. The Insurance Company has appealed.
It is clear that Bozeman did not render to the Insurance Company any of the personal services provided for in the contract. We think it may be reasonably inferred from the evidence that Biggers did not render the Insurance Company any personal service under the contract. In fact, counsel for Biggers states in his brief that the parties did not contemplate that any of such services would be rendered.
The Insurance Company contends that, since no limitation as to time is expressed in the contract, either it is terminable at the will of either party, or it will terminate at the time when the parties intended it should cease to operate.
*499 We do not think the contract should be regarded as one for personal services and, therefore, terminable by either party on reasonable notice.[2]
The parties did not contemplate that either Biggers or Bozeman would render any personal services under the contract. The advances which Biggers had made to the Insurance Company were donations and created no express or implied legal obligation of the Insurance Company to repay them. The release by Biggers of any claim which Biggers had against the Insurance Company for such donations did not constitute a legal consideration for the contract, because the relinquishment of a claim which is wholly without merit or foundation does not constitute a legal consideration.[3] The giving up by Biggers of the control he had exercised over the Insurance Company was not a lawful consideration. Control vested in the president of the Company because he held the proxies of all of its members and could cast a controlling vote at annual meetings and in the election of boards of directors. But one acting as president occupied the relation of a fiduciary to the Insurance Company,[4] and a president, in voting as the proxy for members, occupies the relation of a fiduciary to such members.[5] Surely, the fiduciary powers vested in a president of a corporation and in one authorized to act as proxy for a member cannot be bartered or sold. Neither can they be transferred as the consideration for a contract. The control and domination of the Insurance Company by Biggers, up to the time the contract was entered into, does not enhance his position with respect to his rights to enforce the contract. It follows that the contract must be supported, if at all, by the moral obligation which arose from the donations made by Biggers. We think it may be said that, while it was not intended that such donations should create a legal obligation on the part of the Insurance Company to repay them, Biggers expected that, if the Insurance Company prospered, through the control he was able to exercise over it, he would eventually be indirectly repaid through the payment of salaries or commissions. Made under those circumstances, we think the donations created a moral obligation on the part of the Insurance Company sufficient to support a future executory promise.
While the authorities are not in agreement, the trend of modern authorities is to the effect that where services or other consideration moving from the promisee conferred an actual, material, or pecuniary benefit on the promisor, and not merely a detriment to the promisee, and the promisee expected to be compensated therefor and did not intend it as mere gift or gratuity, and the benefit received had not constituted the consideration for another promise already performed or still legally enforceable, a moral obligation arises which will support a subsequent executory promise where there was originally no contract, perfect or imperfect, obligating the promisor.[6]
By statute, Oklahoma has recognized, without defining, a moral obligation as a consideration for a promise and has limited the extent to which it can constitute a consideration for a promise. 15 Okl.St. Ann. § 107 provides: "An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a *500 good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise."
We, therefore, conclude that the donation made by Biggers to the Insurance Company constituted a consideration in the nature of a moral obligation for the promise of the Insurance Company to pay Biggers 10 per cent of its gross premiums, but only to the extent of such obligation and no further,[7] and that, when payments made under the contract equal the amount of the donations, the contract will terminate.
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.
NOTES
[1] Hereinafter called the Insurance Company.
[2] Cf. Dunn v. Birmingham Stove & Range Co., 170 Okl. 452, 44 P.2d 88.
[3] Hulen v. Truitt, 188 Okl. 296, 108 P. 2d 170, 173.
[4] Dunnett v. Arn, 10 Cir., 71 F.2d 912, 918; Fletcher Cyc.Corp.Perm.Ed. Vol. 3, § 838, pp. 142, 144.
[5] Carcaba v. McNair, 5 Cir., 68 F.2d 795, 797; Cliffs Corporation v. United States, 6 Cir., 103 F.2d 77, 80; Wolcott & Lincoln v. Butler, 155 Kan. 105, 122 P.2d 720, 723, 141 A.L.R. 356.
[6] Park Falls State Bank v. Fordyce, 206 Wis. 628, 238 N.W. 516, 518, 519, 79 A. L.R. 1339; Holland v. Martinson, 119 Kan. 43, 237 P. 902, 903; Webb v. McGowin, 27 Ala.App. 82, 168 So. 196, 198; Id., 232 Ala. 374, 168 So. 199; Edson v. Poppe, 24 S.D. 466, 124 N.W. 441, 26 L.R.A.,N.S., 534; Notes 17 A.L.R. pp. 1359, et sequi, and 1317, et sequi; 25 A.L.R. p. 635; 79 A.L.R. pp. 1353 and 1350; 12 Am.Jur. p. 601, § 107; 17 C. J.S., Contracts, § 118, p. 471.
[7] Kennedy v. Marshall, 195 Okl. 617, 160 P.2d 397, is not to the contrary. There, the donations were naked gifts with no expectation that there would be reimbursement therefor in the future. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585722/ | 508 So.2d 677 (1987)
Brenda Castille HOBBS
v.
William Monroe HOBBS.
No. 56793.
Supreme Court of Mississippi.
June 3, 1987.
*678 H. Fariss Crisler, III, Jackson, for appellant.
Charles O. Moore, Jackson, for appellee.
Before HAWKINS, P.J., and PRATHER and ANDERSON, JJ.
HAWKINS, Presiding Justice, for the Court:
Brenda Castille Hobbs appeals from a decree of the chancery court of the First Judicial District of Hinds County modifying an original December, 1982, custody decree entered by that court.
Because there is a serious question whether the chancery court had jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), both because Brenda had lived in the State of Louisiana with the child for at least two years prior to institution of the modification proceedings by her divorced husband, and also a Louisiana court had assumed jurisdiction and entered a separate order modifying custody, we remand to the chancery court for a determination whether it has jurisdiction.
FACTS
William Monroe Hobbs and Brenda Castille Hobbs were married February 15, 1975, and had one child, Castille Elizabeth Hobbs, born January 28, 1980. They separated May 16, 1982, while they resided in Jackson. Brenda then moved to her childhood home in Breaux Bridge, Louisiana. On December 22, 1982, the chancery court for the 1st Judicial District of Hinds County granted the couple a divorce based upon irreconcilable differences and incorporated in its decree a property settlement and custody agreement executed by Brenda and William on December 13.
On November 30, 1984, Brenda's Louisiana attorney mailed the clerk of the St. Martin Parish Court a petition to modify the custody decree of the Hinds County Chancery Court. Attached to the petition were copies of the divorce decree, property settlement, a proposed order of custody change, and the affidavit of Brenda made pursuant to L.S.A.-R.S. 13:1708 of the Louisiana Code. The affidavit, executed November 27, 1984, alleges that Castille Elizabeth had resided with Brenda in Louisiana since August 1, 1982. It also alleges Brenda had no information of another custody proceeding regarding the child in any other state.
The St. Martin Parish clerk received these documents on December 3, 1984, and sent them by certified mail to William who was living in Bay St. Louis. The record in this cause does not show whether or not William ever received the mailed process.
On January 7, 1985, Brenda's attorney wrote the St. Martin Parish clerk enclosing a motion for default, along with a proposed *679 order to be presented to the district judge. On January 11 a district judge of St. Martin Parish for the 16th Judicial District of Louisiana entered a preliminary default for failure to answer under L.S.A.-R.S. 13:1704, in favor of Brenda.
On January 22, 1985, Hon. Robert E. Johnson, a district judge of that district, entered an order modifying the original Hinds County Chancery Court decree.
Running along a parallel track, on November 30, 1984, William filed a "Motion for Modification of Final Judgment of Divorce" in the chancery court of the 1st Judicial District of Hinds County. The record does not reveal whether process was had or even attempted on Brenda. On December 20 William also filed a motion in the chancery court, and secured an order the same day permitting him to deposit the monthly child support payments in a William Monroe Hobbs trust account.
On January 8, 1985, William filed a motion to find Brenda in contempt of court for violating his visitation privileges under the original custody agreement. The same day William mailed Brenda's Louisiana attorney notice that he would bring the contempt motion for hearing before the Mississippi chancellor on January 24, 1985.
On January 30 Brenda, represented by a Jackson attorney, answered William's original motion for modification of the decree, alleging as one of her defenses that the chancery court did not have jurisdiction over the parties. She also asserted a "counter motion" which asked the chancery court to curtail visitation granted William in the first decree, and only permit him to see the child in the presence of one or both of his parents. Brenda's counsel failed to inform the chancellor of the Louisiana proceedings in either the answer to modification motion or the counter motion.
Brenda also filed interrogatories to William on January 30, and on the same date William likewise propounded interrogatories to Brenda. On January 31 the chancellor set February 6 as a hearing date on the contempt motion.
On February 6 William filed an "Answer to Motion to Transfer Jurisdiction," and alleged that neither Brenda nor her attorney had complied with Miss. Code Ann. § 93-23-11; -15; -17 and -43. On the same date he filed an "Answer to Counter Motion for Modification of Final Judgment for Divorce."
On February 7 Brenda filed a "Motion to Transfer Jurisdiction," in the chancery court alleging what had transpired in the court proceedings in Louisiana, and attaching a copy of the court file from that court.
The chancellor conducted a hearing on the same day. At the outset of the hearing the chancellor made the following ruling:
BY THE COURT:
I guess the first thing we ought to do is overrule the Motion to Transfer Jurisdiction. At the time this divorce action was filed it is not alleged that the child was within the jurisdiction of the First Judicial District of Hinds County, but it is set forth in the separation agreement and the plaintiff, Brenda Castille Hobbs, invoked the jurisdiction of this Court and this Court has jurisdiction to decide the custody of the child as well as visitation rights and in the court's best judgment the Louisiana court does not have jurisdiction and so the motion to transfer jurisdiction will be overruled.
(R. 56-57)
Following the hearing the chancellor entered an order modifying the original December 22, 1982, custody decree.
Brenda has appealed.
I.
JURISDICTION
Mississippi as well as Louisiana has adopted the Uniform Child Custody Jurisdiction Act (UCCJA). The Mississippi Legislature passed the Act in 1982, Ch. 414, Laws 1982, Miss. Code Ann. § 93-23-1, et seq., and Louisiana adopted it in 1978. La. Rev. Stat. Ann. § 13:1707, et seq.
The chancellor, no doubt relying solely upon the fact that the original custody decree had been rendered in his court, did not believe the UCCJA applied to this case. In this he was manifestly in error.
*680 The first question the chancellor should have addressed was whether Mississippi was the proper state to exercise jurisdiction under Miss. Code Ann. § 93-23-5 (Supp. 1985). Mississippi apparently was not the child's home state when William filed his petition because she had lived with her mother in Louisiana for approximately two years. There is nothing in the record to suggest there was any other basis for the chancellor to assume jurisdiction under this section.
Moreover, when a chancellor is apprised of a pending proceeding in another state, Miss. Code Ann. § 93-23-11 requires him to stay the custody proceedings and communicate with the court of the other state before assuming jurisdiction.
Merely filing a petition does not mean a court has "assumed jurisdiction" under Miss. Code Ann. § 93-23-11. Ordinarily there must be some order of the court indicating it has assumed jurisdiction following filing of a pleading. See: Owens By and Through Mosley v. Huffman, 481 So.2d 231, 243 (Miss. 1985); Vanneck v. Vanneck, 49 N.Y.2d 602, 427 N.Y.S.2d 735, 738, 404 N.E.2d 1278, 1281 (1980); Parltow v. Parltow, 37 Md. App. 191, 376 A.2d 1134, 1139 (Md. Ct. Spec. App. 1977).
It is not clear when the Louisiana court assumed jurisdiction. On December 20, 1984, the Hinds County Chancery Court granted William permission to set up a trust account for child support payments. The first time the chancellor addressed any merits in this custody dispute was January 30, 1985, and even this was limited to a hearing on William's contempt motion.
It appears from the record that the Louisiana court may not have fully adhered to Louisiana's UCCJA, although it may well have been the more appropriate forum. Louisiana was the home state of the Castille Elizabeth, and she was physically present within their court's jurisdiction. Of course, it is not the prerogative of any court of this state to question the action to be taken by a court of a sister state when it appears their courts failed comply with their own law. However, we do have authority to decline full faith and credit to a judgment of another state when their proceedings were not substantially in accord with the jurisdictional requirements of the UCCJA. See: Owens, 481 So.2d at 247.
The record does not reveal whether process was ever served upon William by the Louisiana court or whether that court was informed of the Mississippi proceedings at the time it entered its order modifying the original decree. There is also no indication in the record whether the Louisiana court held a hearing as contemplated by Owens to determine the best interest of this child.
This cause must be reversed and remanded for proceedings consistent with the UCCJA. Upon remand before considering the actions taken by the Louisiana court, the chancellor should first determine whether the Mississippi chancery court has authority to act under Miss. Code Ann. § 93-23-5 (Supp. 1985). In the event this section gives him authority to exercise jurisdiction, he must then determine which state, Mississippi or Louisiana, is the more appropriate and convenient forum under Miss. Code Ann. § 93-23-13 (Supp. 1985). And finally, even if the requirements of these two sections would otherwise be sufficiently present to give the chancery court jurisdiction, in view of the posture of this case in the Louisiana court, the chancellor under the Act is further required to determine whether any modification of the original custody decree by the chancery court is foreclosed by an order or judgment of the Louisiana court. See: Miss. Code Ann. § 93-23-11; -17; -25; -27; -29 (Supp. 1985). Because all the statutes cited are quite plain and unambiguous, there is no need for further explanation by this court.
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
WALKER, C.J., ROY NOBLE LEE, P.J., and DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1013687/ | Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4523
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ONE MALE JUVENILE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-01-4)
Submitted: June 18, 2004 Decided: July 9, 2004
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reita P. Pendry, Charlotte, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Charlotte, North Carolina,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
One Male Juvenile (“1MJ”) appeals his three-year sentence
to run consecutively with a state sentence he was then serving in
Florida following his guilty plea to one count of wire fraud, in
violation of 18 U.S.C. § 1343 (2000). 1MJ’s attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967).
Although counsel states there are no meritorious issues for appeal,
she challenges the district court’s imposition of the sentence for
the wire fraud offense to run consecutively with the state sentence
1MJ was already serving. The Government filed a responding brief.
Although advised of his right to file a pro se supplemental brief,
1MJ has not done so. In accordance with Anders, we have considered
the briefs and examined the entire record for meritorious issues.
Finding no error, we affirm.
We find that 1MJ waived his right to appeal his
conviction and sentence either directly or in post-conviction
proceedings, with the exception of claims of ineffective assistance
of counsel and prosecutorial misconduct. It is well-settled that
a defendant may, in a valid plea agreement, waive the right to
appeal under 18 U.S.C. § 3742 (2000), as long as it is the result
of a knowing and intelligent decision to forego the right to
appeal. United States v. Wessells, 936 F.2d 165 (4th Cir. 1991).
Generally, if the district court fully questions the defendant
regarding the waiver of his right to appeal during the Fed. R.
- 2 -
Crim. P. 11 colloquy, the waiver is both valid and enforceable.
Id. at 167-68. We review de novo the validity of a waiver. United
States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000).
A review of the transcript of the guilty plea hearing
reveals that the magistrate judge* fully complied with Rule 11 in
accepting 1MJ’s guilty plea. The magistrate judge advised 1MJ of
the elements of the offense to which he was pleading guilty and
concluded he understood them. The judge also thoroughly apprised
1MJ of the rights he was waiving by pleading guilty and the
possible sentence he faced. Importantly, the magistrate judge
specifically asked 1MJ whether he understood that pursuant to the
plea agreement he was waiving his appellate and post-conviction
rights, except in relation to claims of ineffective assistance of
counsel and prosecutorial misconduct. 1MJ acknowledged his
understanding and noted that he knowingly and willingly accepted
this limitation. The magistrate judge further ascertained that 1MJ
was entering his plea voluntarily and that he was satisfied with
the services of counsel. For these reasons, we find 1MJ’s waiver
was knowing and intelligent. Accordingly, he may not appeal his
sentence.
In accordance with Anders, we have reviewed the entire
record in this case, including the Rule 11 and sentencing
*
The parties expressly consented to administration of the
guilty plea hearing by a magistrate judge.
- 3 -
transcripts, and have found no meritorious issues for appeal. We
therefore affirm 1MJ’s sentence. This court requires that counsel
inform her 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
to withdraw from representation at that time. Counsel’s motion
must state that a copy thereof was served on 1MJ.
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
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584616/ | 641 So.2d 391 (1994)
Crosley Alexander GREEN, Appellant,
v.
STATE of Florida, Appellee.
No. 77402.
Supreme Court of Florida.
July 7, 1994.
Rehearing Denied August 29, 1994.
*393 James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen. and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.
PER CURIAM.
Crosley Alexander Green appeals his convictions for first-degree felony murder, two counts of robbery with a firearm, and two counts of kidnapping. He also appeals the sentences imposed, including a sentence of death. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.
Green was convicted of fatally shooting Charles Flynn in a Brevard County orange grove. Jurors recommended death for the murder conviction by an eight-to-four vote. The trial judge followed the jury's recommendation and sentenced Green to death. We affirm the convictions and sentences.
The record reflects these relevant facts: Late in the evening of April 3, 1989, Kim Hallock and Flynn, whom she had dated, drove to a park in Flynn's pickup truck. They parked near dunes in a wooded area and smoked marijuana. As they smoked, a sheriff's car drove by and shined its spotlight, but did not stop at the truck. After the sheriff's car passed, a man walked in front of the truck and stopped at the driver's door. He warned Hallock and Flynn to watch out for the police, then walked on.
A few minutes later, Flynn stepped outside the truck to relieve himself. Hallock testified that she soon heard Flynn say nervously: "Hold on. Wait a minute, man. Hold on. Put it down." She retrieved a gun from the truck's glove compartment and put it under some jeans on the seat next to her. She testified that when she looked outside the truck, she saw the man she had seen earlier. He was now walking around Flynn and carrying a gun. The man ordered Flynn to the ground, then asked if either of them had any money. Hallock gave him five dollars, but Flynn said he had no money.
The man then tied Flynn's hands behind his back with shoelaces. While tying Flynn's hands, the man's gun went off but did not injure Flynn. The man pulled Flynn off the ground, found a wallet in his pants, and threw it to Hallock, who counted $185.
The man ordered Hallock to start the truck and to move to the center seat. He put Flynn in the passenger seat and started driving. He forced Flynn and Hallock to ride with their heads down and held a gun to Hallock's side. During the ride, Flynn found the gun Hallock had hidden under the jeans. The man stopped the truck at an orange grove and tried to pull Hallock from the truck. Hallock freed herself and ran around the truck, but the man caught her, threw her to the ground, put a gun to her head, and threatened to blow her brains out. Flynn got out of the truck and fired a shot, but missed the man. Hallock jumped into the truck and locked the doors. She testified that she saw the man fire a shot. Flynn yelled for her to escape, and Hallock drove to a friend's house and called the police.
When police arrived at the orange grove, they found Flynn lying facedown with his hands tied behind his back. Authorities found a loaded .22-caliber revolver nearby. Flynn was alive when police arrived, but he stopped breathing several times and died of a single gunshot wound to the chest before paramedics arrived. Hallock later identified Green as the man she saw in the park.
In sentencing Green to death, the trial judge found four aggravating factors: (1) Green was previously convicted of a violent felony; (2) the capital felony was committed while Green was engaged in kidnapping; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious, and cruel. The judge found no statutory or nonstatutory mitigating factors. He also sentenced Green to four concurrent *394 twenty-year sentences for the robbery and kidnapping convictions. These terms were to be served consecutively to the death sentence.
Green raises nine issues on this direct appeal.[1]
He first argues that the trial court should not have admitted evidence of a police dog's scent tracking. He maintains there was insufficient predicate because the tracks could not be tied to Green. We find no merit to this argument.
Within hours of the murder, a police dog tracked footprints from the dunes area to a house where Green's sister lived. The footprints at the dune area were never identified as Green's, but the trial judge admitted the scent-tracking evidence over defense objection because the character and dependability of the dog were established, the officer who handled the dog was trained, and the evidence was relevant. In addition, there were indicia of reliability: the tracking occurred within hours of the crime and the area had been secured shortly after the crime occurred, both of which greatly reduced the danger of a trail being left after the crime and a mistaken scent, and there was a continuous track to the home of Green's sister. The trial judge found that although the scent tracking was the only evidence that established Green's identity, corroboration included admissions by Green, Green's presence at the crime scene near the time of the crime, and Green's presence at his sister's house earlier that day. We find a proper predicate for the admission of the scent-tracking evidence. See Tomlinson v. State, 129 Fla. 658, 176 So. 543 (1937).
We next find that the trial court correctly denied Green's motion to suppress Hallock's photographic identification and in-court identification. Police conducted a photo lineup with six pictures that included a recent picture of Green. An officer told Hallock, "We have six pictures we want you to look at. We have a suspect within these six pictures. You can take as long as you want ... and if you can't identify him, fine." Hallock said she was "pretty sure" Green was her assailant. After identifying Green, the police told her she had identified the right person.
Green argues that Hallock's identification through the photo lineup was unnecessarily suggestive and must be suppressed. He also argues that Hallock's subsequent in-court identification must be suppressed. We disagree. This Court has adopted a two-part test to determine whether an out-of-court identification may be admitted: First, whether police used an unnecessarily suggestive procedure to obtain an out-of-court identification, and, second, if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Grant v. State, 390 So.2d 341, 343 (Fla. 1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981).
We find that the police did not use an unnecessarily suggestive procedure to obtain Hallock's out-of-court identification of Green, so we need not consider the second part of the Grant test. The police showed Hallock an array of six photographs, all of which depicted men with similar characteristics. Although police indicated the suspect was in the photo lineup and Green's photograph was darker than the others, there is no indication that officers directed Hallock's attention to any particular photograph. See Johnson v. State, 438 So.2d 774, 777 (Fla. 1983) (photo *395 lineup not impermissibly suggestive even though only the defendant had a suntan and his inmate uniform was a lighter blue than those of other inmates in the lineup), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984). Thus, the trial court did not err in refusing to suppress the photo identification. In addition, Hallock's in-court identification was based on her observation of Green at the crime scene.
Next, we find that the trial court did not err in giving the jury a flight instruction.[2] Subsequent to trial in this case, this Court held that the flight instruction should not be given. Fenelon v. State, 594 So.2d 292, 295 (Fla. 1992). But Fenelon is prospective and does not apply to the instant case. Id.; see also Taylor v. State, 630 So.2d 1038, 1042 (Fla. 1993) ("This Court intended that the holding in Fenelon be applied prospectively only."), cert. denied, ___ U.S. ___, 115 S.Ct. 107, ___ L.Ed.2d ___ (1994).
Before Fenelon a trial court could give the flight instruction "in the limited circumstance where there is significantly more evidence against the defendant than flight standing alone." Whitfield v. State, 452 So.2d 548, 549 (Fla. 1984). We note that although Green objected to the trial judge giving the flight instruction, he did not object to the actual evidence that Green fled to avoid prosecution. A friend of Green's testified that Green told him shortly after the murder, "I'm going to disappear." Green told another friend, "I f____ed up, man. I f____ed up." Green's sister testified that she saw Green the day after the shooting, but then, "I didn't see him anymore." Several police officers testified that they looked for Green in the months after the murder, but did not arrest him until June 1989. A jury could reasonably draw the inference that Green fled to avoid arrest and prosecution. Thus, we find no error in giving the flight instruction.
We next consider whether the trial court erred in considering separate aggravating circumstances that Green committed the murder (1) for pecuniary gain and (2) during the commission of a felony (kidnapping). Green argues that the trial court improperly doubled these aggravating factors because the indictment alleges that the underlying intent for the kidnapping was to commit a robbery. The indictment, however, also has the option that the kidnapping was done with the intent to terrorize. Green argues that because there was no jury finding on which theory existed the finding of both aggravating factors must be disapproved.
Improper doubling occurs when aggravating factors refer to the same aspect of the crime. Provence v. State, 337 So.2d 783, 786 (Fla. 1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). If the sole purpose of the kidnapping had been to rob Flynn and Hallock, we would resolve this issue differently. The evidence, however, supports a finding of both aggravating circumstances. The purpose of the kidnapping clearly was not to rob Hallock and Flynn because they were robbed before they were kidnapped. Thus, the kidnapping had a broader purpose than to provide the opportunity for a robbery. See Brown v. State, 473 So.2d 1260, 1267 (Fla.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985). Compare Cherry v. State, 544 So.2d 184, 187 (Fla. 1989) (trial court improperly considered murder for pecuniary gain and murder during the commission of a burglary as separate aggravating factors where the sole purpose of the burglary was pecuniary gain), cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 963 (1990). This issue is meritless.
Green also argues that the facts do not support the trial court's finding that the crime was heinous, atrocious, or cruel. See § 921.141(5)(h), Fla. Stat. (1987). We agree. *396 This aggravating factor is reserved for "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The additional acts accompanying Flynn's death Flynn knew Green had a gun, his hands were tied behind his back, and he was driven a short distance to the orange grove do not turn this shooting death into the "`especially' heinous" type of crime for which this aggravator is reserved. See Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). Although this aggravating factor does not apply in the instant case, the three other aggravating factors support the death penalty and there is a weak case for mitigation. Thus, any error is harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). Because this is so, there was no harm in instructing the jury on this factor.[3]
Green next argues that the trial court improperly refused to find mitigating factors that the evidence established. In Campbell v. State, this Court held that a trial judge must give some weight to mitigating circumstances shown by a preponderance of the evidence. 571 So.2d 415, 420 (Fla. 1990). Campbell was decided before sentencing in Green's case. The sentencing order in the instant case indicates that the judge considered and weighed statutory and nonstatutory mitigating factors. He determined that these factors failed to rise to the level of mitigation. The focus of Campbell is that a trial judge must give weight to mitigating factors. This concern is met by the trial judge's weighing. Although the sentencing order might not comply strictly with the requirements of Campbell, the trial judge clearly gave careful consideration to the mitigating factors.[4]
Finally, in light of other cases, the three remaining valid aggravating circumstances, and no mitigators, we find that Green's death sentence is proportionate.
Accordingly, we affirm the sentences and convictions.
It is so ordered.
GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur.
NOTES
[1] Whether (1) the trial court erred in admitting evidence of dog scent tracking; (2) the trial court erred in denying Green's motion to suppress Kim Hallock's photographic and in-court identifications; (3) the trial court erred in denying Green's motion for the jury to view the murder scene; (4) the trial court erred in instructing the jury on flight; (5) the trial court erred in considering as separate aggravating circumstances that Green committed the murder for pecuniary gain and Green committed the murder during a kidnapping; (6) the trial court erred in finding that the murder was heinous, atrocious, and cruel; (7) the trial court improperly refused to find mitigating circumstances; (8) the death penalty is disproportionate; and (9) the heinous, atrocious, or cruel aggravator is unconstitutionally vague.
We find no merit to the third issue because the trial judge was well within his discretion to deny Green's motion for the jury to view the murder scene. Bundy v. State, 471 So.2d 9, 20 (Fla. 1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986).
[2] The trial judge gave this flight instruction:
When an accused in any manner attempts to escape or evade a threatened prosecution by flight or concealment, that fact may be considered by you in arriving at a determination of the guilt or innocence of the accused. Flight is considered to exist when an accused departs from the vicinity of the crime under circumstances such as to indicate a sense of guilt or to avoid arrest. If you find that the defendant attempted to escape or evade a threatened prosecution through flight or concealment, or similar indications of a desire to evade prosecution, you may consider this fact along with all the other testimony and the evidence in deciding guilt or innocence of the defendant.
[3] We also reject Green's challenge to the heinous, atrocious, or cruel aggravator as unconstitutionally vague because this issue was not preserved for appeal. Green did not object at trial to the form of the instruction, which is necessary to preserve a claim under Espinosa v. Florida, ___ U.S. ___, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). See, e.g., Mills v. Singletary, 622 So.2d 943, 944 (Fla. 1993). Even if the issue had been preserved, the instruction given in this case was not the instruction disapproved in Espinosa.
[4] After discussing all aggravating and mitigating factors, the sentencing order includes this summary:
After weighing the evidence the court finds four aggravating circumstances to exist. The court further finds that no statutory mitigating circumstances exist nor any nonstatutory mitigating circumstances. Aggravating factors are found to substantially outweigh mitigating circumstances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584130/ | 717 F. Supp. 245 (1989)
UNITED STATES of America, Plaintiff,
v.
Alexander BURGER, Irwin Goldfeder, and Alan J. Levy, Defendants.
No. 86 Civ. 7592 (MGC).
United States District Court, S.D. New York.
July 20, 1989.
Benito Romano, U.S. Atty., S.D.N.Y., New York City by Harriet Goldberg, Asst. U.S. Atty., for plaintiff.
Edward Rubin and Garfunkel & Bloomfield, New York City by Alan J. Garfunkel and Lori A. Corsun, for defendant Alan J. Levy.
OPINION AND ORDER
CEDARBAUM, District Judge.
This civil action arises out of the failure of Art Steel Co., Inc. ("Art Steel") to pay over to the Internal Revenue Service income and Social Security taxes withheld from its employees' salaries in the second and fourth quarters of 1981 and the first quarter of 1982. Defendant Alan J. Levy moves for judgment notwithstanding the verdict, or alternatively for a new trial, after a five day jury trial in which he was found liable for the 100% penalty assessed against him by the Internal Revenue Service under 26 U.S.C. § 6672. Section 6672 provides:
(a) General rule.Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to ... pay over such tax ..., shall, in addition to other penalties *246 provided by law, be liable to a penalty equal to the total amount of tax not ... paid over.
For the reasons discussed below, the motion for judgment notwithstanding the verdict is granted.
BACKGROUND
At trial, the following facts were either stipulated or uncontested.
Art Steel, which filed for bankruptcy in March of 1982, was a closely-held corporation located in the Bronx, New York. It manufactured and sold office furniture and equipment. During 1981 and 1982, Art Steel employed 600 or 700 people (Goldfeder, Tr. 554).
At all relevant times, Art Steel was owned equally by three extended family groups descended from Art Steel's original founder, Alexander Burger (SF 17)[1]. Three of the founder's grandsons, Alexander Burger, Irwin Goldfeder, and Alan Levy, were employed by Art Steel. Levy himself owned sixteen percent of the shares of Art Steel (Levy, Tr. 44).
From 1969 to the date of Art Steel's bankruptcy, Burger was President of Art Steel and Goldfeder was Executive Vice-President and Chairman of the Board (Goldfeder, Tr. 515). During the relevant tax quarters, Irwin Kossoff was Controller and Chief Financial Officer (Kossoff, Tr. 346). Levy was not an officer of Art Steel during this period and had not been an officer since January of 1975, when he was removed from the position of Executive Vice-President by the Board (SF 3). Levy was both an officer and director of five companies affiliated with Art Steel, which signed consolidated financial statements with Art Steel (SF 19, 23).
During the relevant tax quarters, Levy was a director of Art Steel (SF 23), although the board of directors did not meet during that time (Burger, Tr. 435). In 1969, Levy was made a member of Art Steel's "executive committee," which also consisted of Burger and Goldfeder, but the committee did not hold formal meetings in 1981 or 1982 and had not done so for many years (Burger, Tr. 448).
Levy was an employee of Art Steel. His primary area of responsibility focused on Art Steel's factories (Burger Tr. 433, Goldfeder Tr. 526), including their productivity and compliance with environmental laws in the use of paint (Levy, Tr. 75-76, Burger, Tr. 467). In this regard, in 1974, the Board had directed Levy to spend all of his time at Art Steel's plant at 170th Street in the Bronx, and to supervise production there (Deft's Exh. 94). That order was never lifted officially, although by 1981, Levy was spending significant amounts of time and had an office at Art Steel's main office at 233rd Street in the Bronx (Levy, Tr. 149, Goldfeder, Tr. 523-24). At all times, Levy's salary was the same as that of Burger, whose special responsibilities were sales and marketing (Goldfeder, Tr. 525), and Goldfeder, whose special responsibilities were purchasing, export sales, and internal warehousing (Goldfeder, Tr. 525-26) (SF 25).
Levy has not been a signatory on Art Steel's checking accounts since January of 1975, when he was removed as a signatory (SF 2, 3). The signature stamp for payroll checks was changed from Levy's name to Burger's to reflect this removal (Deft's Exh. 144). During the first relevant tax quarter, Levy was one of the signatories on the checking account of one of the affiliated companies, Art Steel of California (SF 27). Levy was also a signatory on the account of Art Steel Sales (Govt's Exh. AL). Art Steel Sales did not have a source of income independent from Art Steel (Kossoff, Tr. 364). By 1980, its payroll had been merged with that of Art Steel (Kossoff, Tr. 363). Occasionally, moneys would be placed in the Art Steel Sales checking account to cover the payroll (Kossoff, Tr. 367). Burger and Goldfeder signed the payroll checks drawn on the Art Steel Sales account (Kossoff, Tr. 368).
*247 Levy did not have the authority to hire and fire employees of Art Steel (SF 6), nor did he sign payroll tax returns. Burger and Goldfeder signed all payroll tax returns of Art Steel relating to the relevant tax quarters (SF 10). Levy was not involved in the negotiation of the financial relationship between Chase Manhattan Bank and Art Steel in 1980 or the negotiation of the financial relationship between Marine Midland Bank and Art Steel in the spring of 1981 (SF 7). Levy attended the closing between Chase Manhattan Bank and Art Steel in 1980 and the closing between Marine Midland Bank and Art Steel in June of 1981 (SF 8). Only Burger and Goldfeder guaranteed the obligations of Art Steel to Marine Midland Bank (SF 9), although Levy agreed to indemnify Burger and Goldfeder for his pro rata share (SF 26).
Art Steel failed to pay over to the Government $1,003,866.24 in taxes withheld from employees during the second and fourth quarters of 1981 and the first quarter of 1982. The Internal Revenue Service assessed a penalty for this amount against Burger, Goldfeder, and Levy under § 6672. Judgments were entered against Burger and Goldfeder prior to trial, although they have not yet paid any amount of the assessment (SF 11). Levy contested the assessment at a five day jury trial at which Burger and Goldfeder testified as Government witnesses. Levy's motion for judgement notwithstanding the verdict is grounded on his contention that based on the evidence at trial, no reasonable person could conclude that he was a person required to collect and pay over Art Steel's withholding taxes within the meaning of § 6672. For purposes of this motion, Levy contests only the jury's finding that he is a "responsible person," and does not attack the jury's finding of the other statutory element, willfulness.
DISCUSSION
Standard for Judgment Notwithstanding the Verdict
The standard for granting judgment notwithstanding the verdict ("judgment n.o. v.") is strict. Judgment n.o.v. may be granted "only if, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached." Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir.1988), cert. denied, ___ U.S. ___, 109 S. Ct. 1095, 103 L. Ed. 2d 230 (1989) (citations omitted).
When the moving party bears the burden of proof, judgment n.o.v. is particularly difficult to grant because a finding that the evidence is in equipoise requires judgment in favor of the opposing party. The parties in this case agree that Levy bears the burden of disproving that he is a responsible person. See Simpson v. United States, 664 F. Supp. 43 (E.D.N.Y.1987); Hoeniger v. United States, 76-1 U.S. Tax Cas. (CCH) ¶ 9296 (S.D.N.Y.1976). Thus, in this case, judgment n.o.v. is appropriate only if "there is such an overwhelming amount of evidence in [Levy's] favor that reasonable and fair minded [people] could not arrive at a verdict against him." Singer v. Olympia Brewing Co., 878 F.2d 596, 598 (2d Cir.1989) (citations omitted); see also Baskin v. Hawley, 807 F.2d 1120, 1129 (2d Cir.1986).
As an alternative to judgment n.o.v., a court may grant a new trial if it concludes that the verdict is contrary to the weight of the evidence. Although the standard is not as strict as that for granting judgment n.o.v., a court may not substitute its own view for that of the jury's. In determining whether to grant a new trial, the Second Circuit explicitly has adopted the standard set forth in 6A Moore's Federal Practice ¶ 59.08[5] (1973):
The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage *248 of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not.
Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.1978); see also Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988) (district court ordinarily should not grant new trial unless convinced jury has reached seriously erroneous result or that verdict is miscarriage of justice).
Liability Under § 6672
Whether a person against whom the Government issues an assessment under § 6672 may be held liable depends on whether that person comes within the definition of "person" in § 6671(b). Section § 6671(b) provides:
The term "person", as used in this subchapter, includes an officer or employee of a corporation ... who as such officer [or] employee ... is under a duty to perform the act in respect of which the violation occurs.
(emphasis supplied). "Duty" under § 6671(b) has a much more focused meaning than the generalized duty of all taxpayers to pay taxes and is expressly limited to the duty that attaches to the position an employee holds within the corporation.
For purposes of § 6672, a "responsible person"[2] includes one who either individually or as part of a group exercises ultimate authority over a corporation's financial affairs. See, e.g., Kalb v. United States, 505 F.2d 506, 511 (2d Cir.1974), cert. denied, 421 U.S. 979, 95 S. Ct. 1981, 44 L. Ed. 2d 471 (1975); Monday v. United States, 421 F.2d 1210, 1214-15 (7th Cir. 1970). A "responsible person" also includes any person who has significant control over the corporation's affairs and participates in decisions concerning what bills should or should not be paid and when, and thus determines whether the United States or other creditors will be paid. See, e.g., Simpson v. United States, 664 F. Supp. 43 (S.D.N.Y.1987); Abramson v. United States, 48 B.R. 809 (E.D.N.Y.1985). Ultimate authority and significant control do not mean exclusive authority or control, so that more than one person may be held responsible under § 6672. See Thibodeau v. United States, 828 F.2d 1499, 1503 (11th Cir.1987); Simpson, 664 F.Supp. at 48.
The requisite duty for liability under § 6672 may arise either from titular authority or from actual management of corporate finances. Although clear titular authority is generally sufficient, see, e.g., Kalb v. United States, 505 F.2d 506 (2d Cir.1974), cert. denied, 421 U.S. 979, 95 S. Ct. 1981, 44 L. Ed. 2d 471 (1975); Simpson v. United States, 664 F. Supp. 43 (E.D.N.Y. 1987); Cella v. United States, 80-1 U.S. Tax Cas. (CCH) ¶ 9369 (E.D.N.Y.1980), in the absence of such authority, decisions have focused on the assessed person's actual exercise of significant control over the corporate decisions concerning which bills to pay and when. See, e.g., Neckles v. United States, 579 F.2d 938 (5th Cir.1978) (per curiam); Copperman v. United States, 78-2 U.S. Tax Cas. ¶ 9579 (E.D.N.Y. 1978); Werner v. United States, 374 F. Supp. 558 (D.Conn.1974), aff'd on opinion below, 512 F.2d 1381 (2d Cir.1975). Since it is clear that Levy was not an officer of Art Steel and did not have the power to sign corporate checks, the question in this case is whether he nevertheless exercised significant control over the corporation's affairs including the corporate decisions concerning what bills should or should not be paid.
Levy argues that despite his status as an owner and director of Art Steel, in reality he had been stripped of the ability meaningfully to exercise power by 1976, and certainly did not participate in the control of Art Steel's financial affairs. The Government contends that the jury correctly found Levy to be a "responsible person" because as a director with a financial stake in the corporation, Levy had the power to influence corporate events. Although the Government concedes that Levy's status as *249 a shareholder and employee is not enough to make Levy a person required to pay over Art Steel's withholding taxes, the Government also points to the facts (1) that a few lower level employees regarded Levy as being in a position of significant power, and certain outsiders considered Levy to be one of three people in charge of Art Steel, even if less actively than the others; (2) that Art Steel and its affiliates were run informally, without a well-defined corporate structure; (3) that Levy was an officer of and signatory on the accounts of affiliates; (4) that he had signed a check on the Art Steel of California account in March of 1981 to pay Art Steel's tax liability for quarters prior to the second quarter of 1981, and signed other checks on the Art Steel Sales account; (5) that Levy participated in discussions concerning the payment of bills to paint vendors with whom Levy had contact; (6) that Levy attended bank closings and meetings with outsiders concerning Art Steel's financial status, and that he agreed to indemnify Burger and Goldfeder for their guarantees to Marine Midland Bank; (7) that he received a salary equal to that of Burger and Goldfeder; and (8) that he participated in the decision to take Art Steel into bankruptcy. Finally, the Government argues that if Levy did not participate fully in Art Steel's routine financial affairs, that Levy purposefully chose to disengage himself from most financial matters and voluntarily delegated that authority to others.
Viewing the evidence in the light most favorable to the Government, Levy was excluded from significant control over most aspects of Art Steel's financial affairs. Although Levy participated in decisions directly affecting his ownership interest, and although he tried to become involved in and to influence day-to-day decisionmaking at Art Steel, the evidence clearly shows that his actual sphere of control did not include the decisions involving the disbursement of funds which give rise to a corresponding duty to pay taxes under § 6672.
For example, Kossoff, the Controller, was hired by Burger and Goldfeder, and did not even meet Levy until after he had begun to work for Art Steel (Kossoff, Tr. 348). Kossoff testified that he reported "in the main" to Goldfeder and also to Burger (Id.). He also testified that he had been instructed not to show unsigned checks to Levy (Kossoff, Tr. 360), or to send memoranda to Levy (Kossoff, Tr. 368-69), including those concerning issues relating to the 170th Street factory (Kossoff, Tr. 400). Finally, Kossoff testified that although Levy spent a good deal of time in the accounting department, and would "come and ask questions [and] go through papers," that Levy never actually instructed Kossoff to do anything (Kossoff, Tr. 372-73).
Furthermore, even though Levy's area of responsibility included the 170th Street facility, on which he had been directed to concentrate his activities in 1974, workers there were hired not by Levy, but by the personnel director, Joe Kay (Kossoff, Tr. 349). Nor was Levy consulted about personnel matters which necessarily involved financial considerations. For example, Levy was not copied on a memorandum concerning overtime work by employees at 170th Street; final determination was to be made by Burger and Goldfeder (Deft's Exh. 179). Nor did Levy's signature appear on salary reviews, even for higher level employees. The only such memoranda produced at trial show authorization by Burger and Goldfeder (Goldfeder, Tr. 571-74).
In addition, Levy originally was a signatory on the Art Steel checking account, but his name was removed from Art Steel's checking account in 1975, after he had been removed as an officer (SF 3). The only check Levy co-signed on the Art Steel of California account during the second quarter of 1981 was made out to Art Steel itself (Govt's Exh. AI). There is no evidence that Levy signed any payroll checks on the Art Steel Sales account during the quarters at issue, or that he co-signed any other check drawn on that account for an amount over $5,000.00 (Govt's Exh. AL). Levy did not sign payroll tax returns (SF 10), or participate in negotiations concerning the financing of Art Steel (SF 7).
Levy did not even authorize payments to paint vendors, who fell within his ostensible *250 sphere of responsibility and whose interests he sought to protect by seeking payment of their bills. Those "sign-off's" were handled by the purchasing department, and finally approved by Goldfeder (Goldfeder, Tr. 565-69). Ultimately, therefore, Levy's position was no more beneficial to the paint vendors than that of any other high level employee with access to those in charge of paying the bills. In short, regardless of the extent to which Levy was able to participate in discussions about Art Steel's financial condition, and despite his financial stake and substantial salary, there is no evidence that Levy was in any way able to influence the ultimate decision at issue herewhich creditors to pay at the expense of others. On the other hand, Levy has offered overwhelming proof that within Art Steel, his opportunity to exert influence over financial affairs was limited by his cousins, who, by title and actual function, ran the company.
Finally, the Government argues that, as a director, and in accordance with Art Steel's by-laws, Levy had the power to review financial records and oversee financial decisions. But with respect to the ability to review, "knowledge may be relevant to willfulness, but not to responsibility." Simpson v. United States, 664 F. Supp. 43, 49 (E.D.N.Y.1987). Regardless of the wording of the by-laws, Levy's duty to pay depends on his actual function in the fiscal management of Art Steel. Not all corporate directors are "responsible persons" within the meaning of § 6672. See Godfrey v. United States, 748 F.2d 1568 (Fed. Cir.1984); United States v. Graham, 309 F.2d 210 (9th Cir.1962) (whether Board was liable under § 6672 depended on whether it controlled the payment of the corporation's tax debt); see also Simpson v. United States, 664 F. Supp. 43, 49 (E.D.N.Y.1987) (members of hospital's board of trustees not liable under § 6672). Furthermore, the evidence was uncontradicted that there were no meetings of a board of directors throughout the relevant period, and that for all practical purposes, "director" was an empty title.
The additional evidence to which the Government points[3] reflects little more than Levy's general status as a shareholder of Art Steel. For example, employees such as the assistant manager of purchasing, the purchasing chief, and the director of systems and production scheduling, who testified at trial, reasonably could consider Levy to have been "third in command" (Zayachuck, Tr. 249) because of his shareholder status and familial connection to Burger and Goldfeder. But as the Government concedes, those employees, "who themselves did not participate in the top level financial discussions and decisions, have no direct knowledge as to whether Levy participated and is therefore responsible." Government's Memorandum of Law in Opposition to Motion for Judgment N.O.V. or for a New Trial at 13. Outsiders such as bank officials also considered Levy a "principal" in the sense that Levy was an owner of Art Steel (Fanning, Tr. 241) who represented his family's "stockholdership" (Kezsbom, Tr. 589-90); whether Levy was "involved in management" (Orenstein, Tr. 414) from their perspective is not the same as whether Levy's involvement with Art Steel included significant participation in the decisionmaking processes by which Art Steel disbursed corporate funds.
In addition, the fact that Art Steel operated informally, in itself, has no bearing on the ultimate issue of whether Levy was under a duty to pay withholding taxes. Nor does the fact that Levy signed a check on the Art Steel of California checking account in March of 1981 to pay Art Steel's tax liability for earlier quarters show Levy's responsibility for payment of Art Steel's tax liability for the quarters at issue. In light of all of the other evidence, Levy's check-signing for Art Steel of California and for Art Steel Sales appears to have been a "mechanical" check signing function which the Government acknowledges is insufficient to impose liability. With respect to the amount of Levy's salary, *251 although it again reflects his ownership position and status as the founder's grandson, it does not show that he had significant control over financial affairs. Finally, Levy's involvement in the decision to take Art Steel into bankruptcy may underscore his eagerness to protect his ownership interest, but does not show that Levy possessed significant control over the disbursement of Art Steel's funds prior to the bankruptcy.
In sum, the evidence may show that Levy's status invested him with a moral duty to try to persuade those with the requisite corporate power and responsibility to direct payment of the withholding taxes. But such a moral duty is not equivalent to the duty to pay that is described by § 6671 and enforced by § 6672. I have been unable to find a single case in which a minority shareholder who was not an officer and was not a signatory of corporate checks, and who did not in fact perform the function of a corporate officer, was held liable as a responsible person under § 6672. Compare Thibodeau v. United States, 828 F.2d 1499 (11th Cir.1987) (responsible person was director and president of corporation, with check signing authority); Gephart v. United States, 818 F.2d 469 (6th Cir.1987) (responsible person was general manager of corporation, with check signing authority, and had authority initially to determine which creditors to pay); Howard v. United States, 711 F.2d 729 (5th Cir.1983) (responsible person was minority shareholder, director, treasurer, and executive vice-president, and sole or joint signatory on checking account during relevant quarters); Feist v. United States, 221 Ct. Cl. 531, 607 F.2d 954 (1979) (responsible person was sole shareholder of parent corporation, and chairman and treasurer of subsidiary); Neckles v. United States, 579 F.2d 938 (5th Cir.1978) (per curiam) (responsible person was "moving force" in organizing venture, signatory on checking account, and participant in "just about everything"); Hartman v. United States, 538 F.2d 1336 (8th Cir.1976) (responsible person was minority shareholder, president of corporation, and signatory); Harrington v. United States, 504 F.2d 1306 (1st Cir.1974) (responsible person was majority shareholder, president, and treasurer); Brown v. United States, 464 F.2d 590 (5th Cir.1972), cert. denied, 410 U.S. 908, 93 S. Ct. 962, 35 L. Ed. 2d 270 (1973) (responsible person was president and signatory); Liddon v. United States, 448 F.2d 509 (5th Cir.1971), cert. denied, 406 U.S. 918, 92 S. Ct. 1769, 32 L. Ed. 2d 117 (1972) (responsible person was 50% shareholder, director, and signatory); Gold v. United States, 506 F. Supp. 473 (E.D.N.Y.), aff'd, 671 F.2d 492 (1981) (responsible person was shareholder, director, secretary-treasurer, and signatory, who approved certain bills for payment) with Maggy v. United States, 560 F.2d 1372, 1374-75 (9th Cir.1977), cert. denied, 439 U.S. 821, 99 S. Ct. 86, 58 L. Ed. 2d 112 (1978) (board chairman a signatory was not responsible because he "was kept isolated from the [Board's financial] committee's activities and decisions"); Bauer v. United States, 211 Ct. Cl. 276, 543 F.2d 142, 149 (1976) (substantial shareholder, vice-president, and director, who was head of corporation's photo finishing division, not responsible because he was "an outsider" with respect to financial and fiscal affairs); Cassis v. United States, 86-2 U.S. Tax Cas. (CCH) ¶ 9800 (S.D. Ohio 1986) (50% shareholder, director, and officer not responsible because his duties did not require him to be involved in such matters and because his role in financial affairs in fact was "de minimis"); Abramson v. United States, 85-1 U.S. Tax Cas. (CCH) ¶ 9380 (E.D.N.Y.1985) (30% shareholder, secretary-treasurer, board member, and signatory not responsible because not involved in corporation's finances, but mainly handled sales); Bernardi v. United States, 74-1 U.S. Tax Cas. (CCH) ¶ 9170 (N.D.Ill.), aff'd on opinion below, 507 F.2d 682 (7th Cir.1974), cert. denied, 422 U.S. 1042, 95 S. Ct. 2656, 45 L. Ed. 2d 693 (1975) (minority shareholder, vice-president, director, and signatory not a responsible person because he did not truly participate in decisionmaking about disbursements or other financial matters); In re Brahm, 85-2 U.S. Tax Cas. (CCH) ¶ 9708 (M.D.Bankr.Fla.1985) (president and signatory not responsible, but mere figurehead).
*252 CONCLUSION
For the reasons discussed above, Levy's motion for judgment notwithstanding the verdict is granted. In the event that the Government appeals from this decision and is successful, I conclude that a new trial is warranted. I am convinced that the jury has reached a seriously erroneous result because of the complexity of the factual and legal requisites for finding liability under § 6672, and that the verdict as it now stands is a miscarriage of justice. See Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988).
SO ORDERED.
NOTES
[1] "SF ____" is the abbreviation used to designate stipulated facts which the parties filed with the Court and which were presented to the jury along with the other exhibits admitted into evidence at trial.
[2] The term "responsible person" is the shorthand phrase that has been adopted generally to describe a person "under a duty to perform the act in respect of which the violation occurs." See Slodov v. United States, 436 U.S. 238, 245 n. 7, 98 S. Ct. 1778, 1784 n. 7, 56 L. Ed. 2d 251 (1978).
[3] To the extent that the Government relies on Government exhibits S, T, U, V, W, and X, which are not in evidence, those documents were not before the jury and have not been seen by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584159/ | 717 F. Supp. 257 (1989)
Michael BROWN, Plaintiff,
v.
METROPOLITAN TRANSPORTATION AUTHORITY, New York City Transit Authority Police Department, Officers Rory McGinn and Peter Brown, Defendants.
No. 88 Civ. 6131 (LBS).
United States District Court, S.D. New York.
July 31, 1989.
Willems & Daley, New York City, for plaintiff; Hector Willems, of counsel.
Wallace D. Gossett, Brooklyn, N.Y., for defendants; Larry H. Hecht, of counsel.
OPINION
SAND, District Judge.
Plaintiff Michael Brown brought this action pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3), and 1988 and the first, fourth, fifth, eighth, and fourteenth amendments to the United States Constitution against the Metropolitan Transit Authority, New York City Transit Authority Police Department, and Police Officers Rory McGinn and *258 Peter Brown, alleging violations of his civil rights. In addition to these claims, Brown charged defendants with false arrest and imprisonment, assault and battery, malicious prosecution, abuse of process, prima facie tort, negligence, and gross negligence, under New York law. He now moves to deem his notice of claim timely[1] and to strike defenses in defendants' answer (¶¶ 10, 31) pertaining to the untimeliness of his notice of claim.
Facts
On July 7, 1987, Brown entered the I.R.T. # 6 train station at Lexington Avenue and 77th Street. As he was standing on the platform, Police Officers McGinn and Brown grabbed him and prevented him from boarding the subway. They attempted to handcuff Brown and arrest him for allegedly failing to pay his fare. Brown resisted their efforts and was injured in the ensuing struggle. Brown was charged with Resisting Arrest and Theft of Services, but the criminal proceedings resulted in a finding in his favor on February 1, 1988.
To pursue tort claims against a public corporation, or its officers, appointees, or employees, Brown is required to file a notice of claim within ninety days from the date the cause of action arose. With the exception of his cause of action for malicious prosecution, each of Brown's claims arose on July 7, 1987. Brown filed his notice of claim, which did not allege a cause of action for malicious prosecution, on April 15, 1988. Thus, he filed his notice of claim six months past the ninety-day limitation period for all causes of action, other than for malicious prosecution.
Defendants assert that plaintiff's notice of claim, filed beyond the prescribed ninety-day period, is legally defective and insufficient, and that plaintiff failed to apply to file a late notice of claim within the time period allotted by statute. Defendant argues that this Court does not have jurisdiction to hear plaintiff's application to file a late notice of claim or to deem his notice of claim timely filed.
As to plaintiff's claim of malicious prosecution, which accrued on February 1, 1988, but was not included in plaintiff's notice of claim filed on April 15, 1988, defendant argues that this Court should not reach the merits of the application, but if it does, then it should deny the application for lack of adequate excuse.
Discussion
It is well established that for actions commenced under 42 U.S.C. § 1983, a notice of claim cannot be required. See, e.g., Bright v. City of New York, 83 Civ. 7775, slip op. at 3, 1985 WL 505 (S.D.N.Y. Apr. 4, 1985); Davis v. Krauss, 478 F. Supp. 823, 825 (E.D.N.Y.1979). The reason for this, as one court explained, is that
the notice of claim provision was intended to restrict remedies for the tortious conduct of municipal employees. Inasmuch as section 1983 was intended to augment a citizen's remedies for constitutional infringements by public officials, courts within this circuit have refused to apply the ninety-day limitation in a civil rights action.
Altaire Builders, Inc. v. Village of Horseheads, 551 F. Supp. 1066, 1076 (W.D.N.Y. 1982).
Clearly, this Court has jurisdiction over plaintiff's § 1983 claim, as well as over his other federal claims.
Although this Court has jurisdiction over plaintiff's federal claims, it is less clear whether we also have jurisdiction over plaintiff's pendent state claims at this time. Plaintiff's state claims include false arrest and imprisonment, assault and battery, malicious prosecution, abuse of process, prima facie tort, negligence and gross negligence. All of these tort claims must be brought in accordance with N.Y.Gen.Mun.Law § 50-e (McKinney 1986). This section requires that a notice of claim be filed in a timely manner:
*259 In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises.
N.Y.Gen.Mun.Law § 50-e(1)(a) (McKinney 1986).
According to New York law, a notice of claim, pursuant to § 50-e is a mandatory condition precedent to the bringing of a tort claim against a public corporation, or any of its officers, appointees, or employees. Absent a showing of such a notice of claim, the complaint may be dismissed for failure to state a cause of action. Wrenn v. New York City Health & Hospitals, 104 F.R.D. 553, 557 (S.D.N.Y.1985); Pretino v. Wolbern, 84 A.D.2d 830, 831, 444 N.Y.S.2d 190 (2d Dep't 1981).
Although plaintiff has failed to file such a notice of claim within the requisite time period, he does have recourse to N.Y.Gen. Mun.Law § 50-e(5), which provides for the late filing of a notice of claim. Section 50-e(5) enables a plaintiff to apply to a court for leave to serve a late notice of claim; however, "[t]he extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation." New York's highest court has interpreted this to mean that "the application for the extension may be made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled." Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331 (1982) (citing N.Y.Gen.Mun.Law § 50-i (McKinney 1986)).
Application for leave to file a late notice of claim is governed by § 50-e(7), which provides in relevant part:
All applications under this section shall be made to the supreme court or to the county court: (a) in a county where the action may properly be brought for trial, (b) if an action to enforce the claim has been commenced, in the county where the action is pending, or (c) in the event that there is no motion term available in any of the counties specified in clause (a) or (b) hereof, in any adjoining county.
N.Y.Gen.Mun.Law § 50-e(7) (McKinney 1986) (emphasis added).
The language of this section is quite precise. An application for the filing of a late notice of claim "shall" be made to the supreme court or the county court. Id. The statute does not leave open the question from which court the applicant is to seek such an extension. See Lipinski v. Skinner, 700 F. Supp. 637, 638 (N.D.N.Y. 1988) ("On its face, therefore, § 50-e(7) precludes this court from entertaining a § 50-e(5) motion since this court is neither a state supreme court nor a county court."). The Lipinski Court went on to consider the limited legislative history of the statute and to conclude that while the 1976 amendment to the statute increased accessibility "by designating adjoining counties as those in which venue would be proper[,]" id. at 640, the legislature "did not designate any other type of court as one in which the motion could be brought[,]" and therefore, the court concluded that it lacked jurisdiction over the § 50-e(5) application. Id.
Other courts in the Southern District of New York, when faced with pendent state claims that require an application for the filing of a late notice of claim under N.Y. Gen.Mun.Law § 50-e(5), have reached the merits of the claim without having considered whether the federal court had jurisdiction over the application. See, e.g., Spiegal v. City of New York, 84 Civ. 2622(SWK), slip op., 1985 WL 3395 (S.D. N.Y. Oct. 18, 1985) (plaintiff permitted to file late notice of claim though it failed to provide justifiable excuse for its delay); Bright v. City of New York, 83 Civ. 7775(CSH), slip op. (S.D.N.Y. Apr. 4, 1985) (plaintiff denied leave to file late notice of application because application was barred by statute of limitations); Betancourt v. City of New York, 80 Civ. 2727(WCC), slip *260 op. (S.D.N.Y. Feb. 26, 1981) (plaintiff, having filed timely notice of claim as to some state claims, was permitted to file late notice of claim as to other state claims); Sandler v. Gray, 79 Civ. 3830(CBM), slip op. at 3 (S.D.N.Y. Feb. 5, 1980) (court, in its "discretion," denied plaintiff leave to file late notice of claim). The Lipinski Court, aware of most of the above decisions, declined to "speculate upon which grounds the Southern District courts heard the § 50-e(5) motions." Lipinski, supra, 700 F.Supp. at 639. Because the other Southern District courts did not discuss the issue of jurisdiction,[2] we find ourselves without precedent in this district, and feel constrained to address the issue of jurisdiction before proceeding any further.
The precise wording of N.Y.Gen. Mun.Law § 50-e(7) suggests that we do not have jurisdiction over the application for the filing of a late notice of claim, and at least one court has so held. See Lipinski, supra, 700 F.Supp. at 640. Just as the statute is clear that a notice of claim is required, that it must be served in a particular way, and within a limited period of time, similarly, it is explicit about which court can hear an application for the filing of a late notice of claim. There is no justification for giving effect to these other provisions of the statute and ignoring the provision about which courts can hear an application for the filing of a late notice of claim.
The legislative history is silent as to whether the state legislature intended to include federal trial courts in addition to county and supreme courts,[3] and until it speaks, we should not presume to read into its silence more than it said in the plain language of the statute. As one New York court observed about the 1976 amendments to § 50-e when they fell short of meeting the changes that had been requested:
To the extent that the ... amendments may fail to remove the harsher aspects of the statute, ... it is sufficient to note that calls for broad reform are often met by more modest revisions on the part of the Legislature.
Pierson, supra, 56 N.Y.2d at 955, 453 N.Y. S.2d 615, 439 N.E.2d 331.
But the court, nonetheless, felt constrained to interpret the statute as it was written, rather than as it would like it to be, and held that the court lacked the power to authorize the late filing of notice beyond the expiration of the statute of limitations. We, too, are similarly constrained. Until the state legislature amends § 50-e(7) to include federal trial courts, we have no choice but to dismiss for lack of jurisdiction plaintiff's application to file a late notice of claim or to have his notice of claim deemed timely filed. Accordingly, we dismiss plaintiff's state claims without prejudice.
Plaintiff can return to federal court with his pendent state claims after he has made application to the appropriate state court for leave to file a late notice of claim and *261 that request has been granted and such a notice has been filed. When plaintiff has satisfied the condition precedent required by § 50-e, then this Court will be able to consider his pendent state claims.
Conclusion
Plaintiff's federal claims, which are already properly before us, are stayed pending resolution of the late filing of his notice of claim or notification that he does not intend to pursue his state claims. The Court imposes the stay sua sponte[4] to avoid duplication of effort by both the parties and the courts. Plaintiff's motions to strike and to deem his notice of claim as timely filed are dismissed for lack of jurisdiction and his state claims are dismissed without prejudice.
SO ORDERED.
NOTES
[1] Plaintiff's Notice of Motion is for an Application To Serve Late Notice of Claim. However, in a subsequent submission, plaintiff explains that he is actually seeking an application to deem his notice of claim timely. See Affirmation in Support of an Application To Deem Notice of Claim Timely.
[2] In Bright, supra, the Court explained that because it had jurisdiction over plaintiff's § 1983 claim, it could exercise pendent jurisdiction over plaintiff's state claim and could in its "discretion ... extend the time for filing such notice" but was "limited by the requirement that such an extension may not exceed the one year and ninety limitation period for the commencement of such an action." Id. at 4. The Court does not explain where this discretion comes from or why the Court has to conform to the time constraint imposed by § 50-e, but not to the limitation on which courts can decide such applications.
[3] Although the legislative history is silent as to whether federal trial courts can hear applications for the filing of late notices, the provision and the legislative history are quite particular as to which courts can hear such applications.
For example, the legislative history shows that the 1976 Amendments were intended "[t]o liberalize the venue provisions for applications with respect to notice of claim." News Memorandum of State Executive Department, reprinted in McKinney's 1978 Session Laws of New York at 1729 (1978). The Office of Court Administration had observed that § 50-e(7), which provided that all applications for leave to serve a late notice "must be made to the Supreme Court or to the county court in the county where the action may properly be brought to trial or where the action is pending," was too restrictive. Id. Accordingly, it recommended that the legislature amend the provision so that applications could be made "in any adjoining county in the event that there is no motion term available in either the county where the action may properly be brought for trial or the county where the action is pending." Id.
[4] In a similar case in the Southern District of New York, one Court granted a stay, albeit at the request of the parties, while they agreed to go to state court to resolve the issue of the application for the filing of a late notice of claim before returning to federal court, where all other claims would be heard. See Tr. at 12 (May 12, 1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584150/ | 24 So. 3d 546 (2009)
Anthony DOWDLE
v.
STATE of Alabama.
CR-07-1912.
Court of Criminal Appeals of Alabama.
May 1, 2009.
*547 Matthew T. Jackson, Birmingham, for appellant.
Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
KELLUM, Judge.
The appellant, Anthony Dowdle, appeals from the circuit court's revocation of his probation. The record indicates that on April 5, 2004, Dowdle pleaded guilty to one count of stalking, a violation of § 13A-6-90, Ala.Code 1975. He was sentenced to 10 years' imprisonment; that sentence was split and he was ordered to serve 18 months, followed by 5 years' supervised probation.
On May 24, 2006, a warrant was issued for Dowdle's arrest on a new charge of stalking. Dowdle was ordered to appear before the circuit court to show cause why his probation should not be revoked. However, it was not until March 31, 2008, that Dowdle was taken into custody as a result of the May 24, 2006, warrant. A probation-revocation hearing was held on June 19, 2008. A transcript of that hearing is not contained in the record on appeal.[1] Following that hearing, the circuit court entered an order on the case-action-summary sheet revoking Dowdle's probation and reinstating Dowdle's original 10-year sentence. In its order, the circuit court, in pertinent part, stated:
"The defendant having been advised in writing of the alleged violation of the *548 terms of his probation was brought before the court, with counsel present, for a hearing on these allegations.
"A hearing was held, the witnesses were duly sworn and testimony was taken ore tenus before the Court. The evidence relied on by the Court is:
"Testimony by the probation officer and the defendant.
"And the specific condition of violation of probation is as follows:
"Failure to report; failure to pay supervision fees; and a new charge."
The circuit court crossed out language in its order pertaining to whether the proceedings were taken down by a court reporter, thus indicating that the probation-revocation hearing had not been transcribed by a court reporter.
On June 26, 2008, Dowdle filed a "Motion to Reconsider" and on July 10, 2008, filed an "Amended Motion to Reconsider." On August 15, 2008, the circuit court entered an order purporting to deny both motions. This court recently recognized that no rule exists that allows postjudgment motions in probation-revocation proceedings. Wank v. State, 18 So. 3d 972 (Ala.Crim.App.2009). Thus, the circuit court had only 30 days from the date it entered its probation-revocation order to modify its judgment. See Wank, supra. Accordingly, the circuit court's order dated August 15, 2008, is void. Nevertheless, Dowdle filed a timely notice of appeal on July 30, 2008.
On appeal, Dowdle contends that the circuit court's revocation of his probation should be reversed because, he says (1) the circuit court erred when it revoked his probation without adequately stating in its revocation order the evidence upon which it relied on to revoke his probation; (2) the circuit court erred by not having the probation-revocation hearing transcribed, thereby making it impossible to determine whether the court abused its discretion in revoking his probation; and (3) the State failed to present sufficient evidence to support the revocation of his probation.
In McCoo v. State, 921 So. 2d 450, 462 (Ala.2005), the Alabama Supreme Court relaxed the requirements of a written probation-revocation order and this court's review of that order:
"[T]he requirement of Wyatt [v. State, 608 So. 2d 762 (Ala.1992),] and its associated casesthat the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the recordis no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that `oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.' [United States v.] Copeland, 20 F.3d [412,] 414 [(11th Cir.1994)]."
Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, "[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation."
"In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is `the duty of the trial court to take some affirmative action, either by a statement recorded in *549 the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.' McCoo [v. State], 921 So.2d [450,] 462 [(Ala.2005)] (emphasis added)."
Ex parte Garlington, 998 So. 2d 458, 458-59 (Ala.2008).
The circuit court's probation-revocation order in this case lists the witnesses upon whose testimony it relied in revoking Dowdle's probation and lists the conditions of probation Dowdle violated; however, the court's order fails to set out the specific evidence it relied upon in reaching its decision to revoke Dowdle's probation. Although this Court has upheld a probation-revocation order listing the witnesses upon whose testimony the court has relied in revoking probation as sufficient, we have done so only when a transcript of the probation-revocation hearing is available for this court's review. See Edwards v. State, [Ms. CR-07-1165, December 19, 2008] ___ So.3d ___ (Ala.Crim.App.2008).
The record in this case does not contain a transcript of the probation-revocation hearing. Therefore, we are unable to review the transcript to ascertain whether the requisite Rule 27.6(f) statements are presented in the record. See McCoo, supra. Further, we are unable to determine whether the State presented sufficient evidence to support the revocation of Dowdle's probation. Because the record contains no transcript of the probation-revocation hearing and because we are unable to ascertain from the circuit court's order the evidence the court relied on in revoking Dowdle's probation, this Court cannot fulfill its duty to review the correctness of the circuit court's actions. Accordingly, we reverse the circuit court's judgment and remand this case for that court to set aside the June 19, 2008, probation-revocation order and to conduct a new probation-revocation hearing that is properly recorded and transcribed for this Court's review. The circuit court should also enter written findings in accordance with Rule 27.6(f), Ala. R.Crim. P., and Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975). In the event that Dowdle is dissatisfied following his new probation-revocation hearing, he should file a new appeal to this Court.
REVERSED AND REMANDED.
WISE, P.J., and WELCH and WINDOM, JJ., concur.
NOTES
[1] The record indicates that counsel for Dowdle certified that no reporter's transcript would be filed in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584154/ | 717 F. Supp. 624 (1989)
Glenn A. YAWORSKI, Plaintiff,
v.
Donald PATE, Daniel K. McNamara, The Office of the Clerk of the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois and the Village of West Dundee, Illinois, Defendants.
No. 89 C 2882.
United States District Court, N.D. Illinois, E.D.
August 4, 1989.
*625 Norman Ruber, Niles, Ill., for plaintiff.
Thomas J. Platt, Kurnik Cipolla Stephenson & Barash, Ltd., Arlington Heights, Ill., and Elizabeth A. Walsh, Illinois Atty. Gen.'s Office, Chicago, Ill., for defendants.
ORDER
NORGLE, District Judge.
Before the court is the motion of defendants, Donald Pate, Daniel K. McNamara and Village of West Dundee to dismiss Counts II, VII and VIII of the Complaint of plaintiff, Glenn A. Yaworski. The motion is granted.
Plaintiff's action arises from his arrest by defendants Pate and McNamara, both officers on the Village of West Dundee Police department, pursuant to a warrant which plaintiff asserts had been recalled.
On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir.1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir.1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir.1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir.1986).
Count II, which asserts a claim against Pate and McNamara for malicious prosecution under 42 U.S.C. § 1983, is dismissed. Malicious prosecution, alone, does not give rise to a § 1983 action. Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir.1985). Not every action by a public official which may give rise to a tort claim under the common law forms the basis for a § 1983 action merely because of the defendant's status as a public official. Plaintiff must show that the malicious prosecution subjected him to a deprivation of constitutional magnitude. Id. As some period of detention is inherent in almost every claim of malicious prosecution under criminal laws, plaintiff's detention does not serve to raise his claim for malicious prosecution to one of constitutional magnitude. Plaintiff's remedy is to pursue, as he has in Count IV, a claim for malicious prosecution under state law.
Count VII which asserts a claim against the Village for excessive force and malicious prosecution, is dismissed. Count VII contains only conclusory allegations of the custom or policy necessary for municipal *626 liability. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978). These, under Strauss v. City of Chicago, 760 F.2d 765, 767-70 (7th Cir.1985), are insufficient. Specific factual allegations are required. Id. Moreover, a single incident does not equal a custom or policy. 760 F.2d at 767. The court rejects plaintiffs attempt to create a de facto custom or policy by dissecting into separate segments the defendants' actions in the incident giving rise to his claims. Of course, Count VII to the extent it advances a malicious prosecution claim, also suffers from the same deficiencies as Count II.
Finally, Count VIII, which alleges a claim against the Village for false imprisonment, is also dismissed. As discussed above, not every action by a public official which gives rise to a tort claim under state law forms the basis for a claim under § 1983. See Baker v. McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689, 2695-96, 61 L. Ed. 2d 433 (1979) (false imprisonment does not become a violation of the fourteenth amendment merely because the defendant is a state official.)
Accordingly, Counts II and VIII are dismissed with prejudice and Count VII is dismissed without prejudice.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584246/ | PHILLIP ROBERSON, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF BRENDA B. ROBERSON
v.
ROMALIS GORDON, JR., LUCKY'S CASINO, AMERICAN GUARD SECURITY COMPANY, ABC INSURANCE COMPANY, AND XYZ INSURANCE COMPANY
No. 2009 CA 0472.
Court of Appeals of Louisiana, First Circuit.
October 23, 2009.
Not Designated for Publication
JOSEPH J. WEIGAND, Jr., Counsel for Plaintiff/Appellant, Phillip Roberson, Individually and on Behalf of the Estate of Brenda B. Roberson.
DAVID M. WHITAKER, Counsel for Defendants/Appellees, Houma-Coteau Holdings, L.L.C. d/b/a Lucky's Casino and American Guard & Security, L.L.C.
BEFORE: WHIPPLE, HUGHES, and WELCH, JJ.
HUGHES, J.
This is an appeal from a summary judgment in a tort suit dismissing as defendants two companies found to be joint employers entitled to the tort immunity under the exclusivity provisions of the Louisiana Workers' Compensation Law. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On March 3, 2006 Brenda B. Roberson was working as a security guard at Lucky's Casino in Houma, Louisiana, when Romalis Gordon, Jr. shot and killed Ms. Roberson and another employee, Schaeffer Francis, while robbing the casino.
On September 29, 2006 a petition for damages and wrongful death was filed by Ms. Roberson's son, Phillip Roberson, individually, and on behalf of Ms. Robertson's estate. It was alleged that Ms. Roberson's employer, American Guard & Security, L.L.C. ("American Guard"),[1] and Lucky's Casino were negligent in the following respects: (1) in failing to provide their security guards with the proper equipment to guard large sums of money; (2) in failing to provide the security team with weapons to guard the large quantity of money being held by the casino; (3) in allowing a sixty-two-year-old elderly woman to serve as an unarmed overnight security guard at a casino; and (4) in failing to provide adequate security measures and devices inside the casino. The plaintiff also alleged that the casino operators knew or should have known that such an incident would or could occur and should have properly equipped and trained the security guards to handle such an occurrence. Further, plaintiff alleges that defendants "knew or should have known that given Ms. Roberson's age and abilities, or lack [thereof], and the possibility of such an occurrence as this, that Ms. Roberson should not have been assigned to this detail." Plaintiffs petition further asserted that that Lucky's Casino "knew or should have known that such an occurrence could have/would happen and should have had additional security measures in place to prevent such an occurrence."
A joint answer was filed by Houma-Coteau Holdings, L.L.C. d/b/a Lucky's Casino ("Houma-Coteau") and American Guard stating that Ms. Roberson was "jointly employed" by Rosbottom Employees, L.L.C. ("Rosbottom Employees"),[2] Houma-Coteau, and American Guard. Houma-Coteau and American Guard further pled the following affirmative defenses:
1.
Plaintiff's claims against Defendants are barred by the exclusive remedy provisions of the Louisiana [Workers'] Compensation Act, [LSA-]R.S. 23:1032, as Ms. Roberson was at all times employed by Defendants. In the alternative Defendants plead that they were Ms. Roberson's special or statutory employer, or in the alternative that Ms. Roberson was Defendants' borrowed employee, such that the exclusive remedy provisions of [LSA-]R.S. 23:1032 serve to bar the Plaintiffs claims against Defendants.
2.
Plaintiff's survival action pursuant to [LSA-C.C. art.] 2315.1 is barred in whole or in part by the [workers'] compensation death benefit that was paid to Ms. Roberson's surviving spouse and any settlement agreement executed in connection with such payment, which Defendants plead as a set off to and/or compromise of the Plaintiffs survival action.
3.
Defendants are not vicariously liable for the intentional criminal conduct perpetrated by Romalis Gordon, Jr., which was the sole cause of the injury to Ms. Roberson.
4.
Defendants plead the comparative fault of Ms. Roberson as a bar to or in diminution of Plaintiffs recovery.
Thereafter, Houma-Coteau and American Guard filed a motion for summary judgment based on the contention that the plaintiffs action is barred by the exclusivity provisions of the Louisiana Workers' Compensation Act, found in LSA-R.S. 23:1032, as Rosbottom Employees, Houma-Coteau, and American Guard were engaged in a joint venture; thus these defendants argue LSA-R.S. 23:1032 applies to all three companies.
A hearing on the motions for summary judgment was held October 24, 2008, during which the trial gave the following oral reasons for judgment:
These two ladies were brutally murdered by an animal.
But the question gets to be ... whether Ms. Roberson, as a security guard, has a right to sue Lucky's Casino, her employer or her company who she was with . . . American Guard [S]ecurity. And that's the only two parties[.] . . . The Rosbottom [company] really technically is not a party.
* * *
. . . But what we have here is we have Lucky's Casino, which . .. has a license from the . . . gambling association. But there's American Guard Security [that] is a separate LLC, which is required by law to be a part of the gaming process. And then we have Rosbottom, who is the owner, which he does all the administrative checks and accounting and everything else and insurance. He's taking care of that. So we've got three different LLCs.
. . . On its face you can see right away it's a joint venture or a joint partnership. It's one guy that owns basically everything. It has to be set up the way it's set up because of the way the Legislature set the gaming industry. And the way they did it they require the guard system and the license and whatever. The way I approached it was if I was looking at it from the other end, that she was trying to claim workman's [compensation] and somebody was denying her. Would she be covered by Rosbottom or by American Guard or by Lucky's Casino? And I think the test works the same way. Whether she's excluded or whether she's included you use the same test. And whether she would be included would be, for me it's very easy to say: Oh yeah. She's covered. Technically she works for all three.
For American Security I think her uniforms and stuff were through that. Her training was through that through a third party. But her daily being watched was by, by Lucky's Casino. I think there was some reports in there where she got either commended or maybe something was done wrong that they wrote up. So they did that. But her checks came from Rosbottom. And it's just a [a]nd I may be wrong in saying this, fictitious. But it's not fictitious. It's really one owner and he's running everything but he has to run it through three different companies because of the way the law is.
And the insurance, the workman's [compensation] insurance, is covered by Rosbottom.
* * *
Which covered all the employees.
And I agree with you, there's a bunch of different companies. Apparently, a load of LLCs, the various, I guess, [truck] stops and various things that he's involved with and he runs them all through this one company and they're all covered.
But I think it's [t]he way I look at it, it's just set up because of the way the law requires that they be set up. But there's only one employer, really, and they're all a joint venture. And I could even go I don't think I have to go to the point of pulling that she was a borrowed servant; but I think I would agree with that looking at the nine [factors] It's best, I think the majority of it would be covered.
... I think in the long run, ... there were very few facts that would be questionable.
The deposition of Mr. Cartolano, I think it was . . . pretty straightforward as to the way the company runs.
In accordance with the trial court ruling, a judgment was signed on November 3, 2008, granting the defendants' motion for summary judgment and dismissing the plaintiffs suit as to Houma-Coteau and American Guard.
Plaintiff has appealed this judgment contending the trial court erred in concluding that Houma-Coteau, American Guard, and Rosbottom Employees "were engaged in a `joint venture' because Brenda Roberson could receive workers' compensation benefits" from Houma-Coteau and American Guard.
LAW AND ANALYSIS
Motion for Summary Judgment
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).
Appellate courts review summary judgments de novo under the same criteria that govern a trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau, XXXX-XXXX, pp. 3-4 (La. 2/26/08), 977 So. 2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, XXXX-XXXX, p. 5 (La. 4/9/03), 842 So. 2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La. App. 1 Cir. 8/11/08), 993 So. 2d 725, 729-30.
In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett, XXXX-XXXX, p. 1 (La. 6/25/04), 876 So. 2d 764, 765.
A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 876 So.2d at 765-66.
On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. LSA-C.C.P. art. 966(C)(2).
When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, XXXX-XXXX, p. 9 (La. App. 1 Cir. 2/8/08), 984 So. 2d 72, 79-80; Cressionnie v. Intrepid, Inc., XXXX-XXXX, p. 3 (La. App. 1 Cir. 5/14/04), 879 So. 2d 736, 738.
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, XXXX-XXXX, p. 5 (La. 4/23/04), 874 So. 2d 131, 137; Dyess v. American National Property and Casualty Company, XXXX-XXXX, p. 4 (La. App. 1 Cir. 6/25/04), 886 So. 2d 448, 451, writ denied, XXXX-XXXX (La. 10/29/04), 885 So. 2d 592; Cressionnie v. Intrepid, Inc., XXXX-XXXX at p. 3, 879 So.2d at 738-39.
Louisiana Workers' Compensation Law
The Louisiana Workers' Compensation Act provides the exclusive remedy against an employer for the injury or death of an employee. Deshotel v. Guichard Operating Company, XXXX-XXXX, p. 14 (La. 12/17/04), 916 So. 2d 72, 81. The text of LSA-R.S. 23:1032 explicitly immunizes a defendant/employer from tort liability where the decedent/employee suffers injury or death during the course and scope of employment. Deshotel v. Guichard Operating Company, XXXX-XXXX at p. 20, 916 So.2d at 84.
The following provisions of the Louisiana Workers' Compensation Law are pertinent herein:
§ 1031. Employee's right of action; joint employers, extent of liability; borrowed employees
A. If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.
B. In case any employee for whose injury or death payments are due is, at the time of the injury, employed and paid jointly by two or more employers subject to the provisions of this Chapter, such employers shall contribute to such payments in proportion to their several wage liabilities to the employee; but nothing in this Section shall prevent any arrangement between the employers for different distribution, as between themselves, of the ultimate burden of such payments. If one or more but not all the employers are subject to this Chapter, then the liability of such of them as are so subject shall be to pay that proportion of the entire payments which their proportionate wage liability bears to the entire wages of the employee; but such payment by the employers subject to this Chapter shall not bar the right of recovery against any other joint employer.
C. In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer", and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer", shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.
* * *
§ 1032. Exclusiveness of rights and remedies; employer's liability to prosecution under other laws
A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
(b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.
(2) For purposes of this Section, the word "principal" shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
* * *
LSA-R.S. 23:1031-1032 (emphasis added).
If the work being done by an employee at the time of accident was in furtherance of a joint enterprise shared by all employers, so that each of them had a direct financial interest in the entire job, the court is presented with a case of partnership or joint enterprise liability. Under these circumstances there is in reality only one employer, namely the partnership or joint enterprise. Each partner controls the work for the benefit of himself and the other partners as well. The same general principles would appear to apply for other joint enterprises, such as a joint venture. H. Alston Johnson, III, 13 La. Civ. L. Treatise, Workers' Compensation Law and Practice § 59 (4th ed.) (citing Richard v. United States Fidelity & Guaranty Company, 247 La. 943, 175 So. 2d 277 (1965); Dupre v. Coleman, 143 La. 69, 78 So. 241 (1918); Latiolais v. BFI of Louisiana, Inc., 567 So. 2d 1159 (La. App. 3 Cir. 1990); United States Fidelity & Guaranty Company v. American Employers Insurance Company, 315 So. 2d 822 (La. App. 3 Cir. 1975)). See also McGregor v. United Film Corporation, 351 So. 2d 1224, 1230 (La. App. 1 Cir. 1977); Guilbeau v. Liberty Mutual Insurance Company, 324 So. 2d 571 (La. App. 1 Cir. 1975), affirmed in part, reversed in part on other grounds, 338 So. 2d 600 (La. 1976).
In order to subject several employers exercising joint control over an employee to the employee's workers' compensation claim, it is not necessary that each partner or joint venturer personally control work of the injured employee; it is sufficient that the joint venturers are engaged in common enterprise contemplating employment and control of the employee by one of the interested parties for the benefit of all. Babineaux v. Southeastern Drilling Corporation, 170 So. 2d 518, 529 (La. App. 3 Cir.), writs refused, 247 La. 613-15, 172 So. 2d 700 (1965), appeal dismissed, 382 U.S. 16, 86 S. Ct. 67, 15 L. Ed. 2d 12.
The essential elements of a joint venture are generally the same as those of a partnership, namely, two or more parties combining their property, labor, skill, etc. in the conduct of a venture for joint profit, with each having some right of control. As a result, joint ventures are generally governed by the law of partnership. Peterson v. BE & K Inc. of Alabama, 94-0005, p. 5 (La. App. 1 Cir. 3/3/95), 652 So. 2d 617, 622-23, writs denied, 95-0818, 95-0831 (La. 5/12/95), 654 So. 2d 350, overruled on other grounds, Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, XXXX-XXXX (La. 4/9/03), 842 So. 2d 373. A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit. LSA-C.C. art. 2801. The same requisites are applicable to a joint venture and are as follows: (1) a contract between two or more persons; (2) a juridical entity or person is established; (3) contribution by all parties of either efforts or resources; (4) the contribution must be in determinate proportions; (5) there must be joint effort; (6) there must be a mutual risk vis-a-vis losses; (7) there must be a sharing of profits. What constitutes a joint venture is a question of law, while the existence or nonexistence of a joint venture is a question of fact. Peterson v. BE & K Inc. of Alabama, 94-0005 at pp. 5-6; 652 So.2d at 622-23.
In the instant case, the defendants' contention that a joint venture existed between Houma-Coteau, American Guard, and Rosbottom Employees, rendering all three companies joint employers of Ms. Roberson and subject to the exclusivity provisions of the Louisiana Workers' Compensation Act, is supported by answers to interrogatories filed into the trial court record, which stated, in pertinent part:
Mr. Harold Rosbottom, Jr. owns a number of businesses in the State of Louisiana, including several truck stop/restaurant/casino facilities, including a video poker casino located 1361 Highway 182 in Houma, Louisiana doing business as Lucky's Casino. These businesses, including Lucky's Casino, are operated through commonly owned limited liability companies.
Lucky's Casino is operated by [Houma-Coteau], a Louisiana limited liability company that is wholly owned by Mr. Rosbottom ("Lucky's Casino"). Lucky's Casino is staffed by cashier/collector employees and security guard employees, who in turn are supervised by a Location Manager. On March 3, 2006 Ms. Brenda Roberson was employed as a security guard at Lucky's Casino where she worked under the day-to-day supervision of the Location Manager. The Location Manager is responsible for all aspects of the day to day supervision of the cashier and guard employees working at the location, including hiring and termination, directing the employees, scheduling of employees, employee discipline, performance evaluations and pay raises.
Louisiana law requires that a licensed video poker casino be staffed by licensed security guards who are sponsored by a state licensed private security company. [American Guard] is a Louisiana limited liability company that is also owned by Mr. Rosbottom and was established for the business purpose of furnishing security guard personnel to Lucky's and the video poker casinos operated by other limited liability operating companies owned by Mr. Rosbottom. American Guard is a licensed private security company which serves as the sponsoring agent for security guards to obtain and maintain their individual security guard licensure. American Guard pays third party vendors for the cost of the state-mandated training for guard employees, licensure-related fees and the cost of acquiring state-mandated uniforms. American Guard also establishes the initial job duties and performance expectations for guard employees. American Guard was the sponsor for Ms. Roberson's licensure and paid third parties for the cost of her state-mandated security guard training, licensure and for the cost of her guard uniforms. American Guard does not provide security guards to any entities other than the limited liability companies owned by Mr. Rosbottom.
[Rosbottom Employees] is a Louisiana limited liability company which is also owned by Mr. Rosbottom. The business purpose of Rosbottom Employees is to handle the administrative functions associated with the employment of employees who work in the various businesses owned by Mr. Rosbottom, including video poker casino employees. Rosbottom Employees handles payroll, employee benefits, remission of employment and income tax withholding to state and federal governmental authorities, obtaining [workers'] compensation insurance and employment-related record keeping. The administrative aspects of Ms. Roberson's employment, including issuance of her paychecks, were handled by Rosbottom Employees.
The costs associated with the employment of video poker casino security guards employed at Lucky's Casino, including Ms. Roberson, were allocated between Rosbottom Employees, American Guard and Lucky's Casino by way of a system of intra-company payables and receivables. The payroll costs incurred by Rosbottom Employees are charged to American Guard, which, in turn, charged those costs, in addition to costs incurred with respect to security guard licensure, training and uniforms, to Lucky's Casino.
The answers to interrogatories also stated that neither Houma-Coteau nor American Guard had any employees that were paid directly by those companies; all employees working at the casino were paid by Rosbottom Employees.
The September 2008 affidavit testimony of Gregory Cartolano,[3] filed into the record, corroborated the information provided in the answers to interrogatories and stated as follows:
1. Affiant is a person of the age of majority and a resident of the State of Louisiana, Parish of Terrebonne.
2. Affiant is currently employed as the Director of Business Development and Operations for several businesses owned by Harold Rosbottom, Jr., including [Houma-Coteau] and [American Guard]. In such capacity affiant has personal knowledge of and is competent to testify regarding the matters stated herein.
3. Mr. Harold Rosbottom, Jr. owns a number of truck stop/restaurant/casino businesses, including a video poker casino located at 1361 Highway 182 in Houma, Louisiana doing business as Lucky's Casino. These businesses, including Lucky's Casino, are operated through commonly owned limited liability companies.
4. Lucky's Casino is operated by [Houma-Coteau], a limited liability company that is wholly owned by Mr. Rosbottom. A copy of the Louisiana Secretary of State "Detailed Record" for Houma-Coteau is attached hereto as Exhibit 1.
5. Houma-Coteau holds a video poker gaming license issued by the State of Louisiana Gaming Control Board. The gaming license issued to Houma-Coteau is attached hereto as Exhibit 2.
6. Houma-Coteau owns the building in which Lucky's Casino is located.
7. Lucky's Casino is staffed by state-licensed cashier/collector employees and unarmed security guard employees who in turn are supervised by a Casino manager.
8. The Casino Manager is employed by Houma-Coteau and is responsible for all aspects of the day-to-day supervision of the cashier and guard employees working at the video poker casino, including hiring and termination, directing the employees, scheduling of employees, employee discipline, performance evaluations and pay raises.
9. [American Guard] is a Louisiana limited liability company wholly-owned by Mr. Rosbottom that was established for the sole business purpose of furnishing licensed security guard personnel to Houma-Coteau and the other video poker casino operations owned by Mr. Rosbottom. A copy of the Louisiana Secretary of State "Detailed Record" for [American Guard] is attached hereto as Exhibit 3.
10. American Guard is a licensed private security company which serves as the sponsoring agent for casino security guard employees in obtaining and maintaining their individual security guard licensure. The license issued to American Guard by the Louisiana State Board of Private Security Examiners is attached hereto as Exhibit 4.
11. American Guard pays third party vendors for the cost of the state-mandated training for guard employees, licensure-related fees and the cost of acquiring state-mandated uniforms.
12. American Guard also provides initial instruction on the job duties of guard employees.
13. American Guard does not provide security guards to any entities other than the truck stop video poker casino facilities operated by Mr. Rosbottom's companies.
14. American Guard does not engage any guard supervisors to direct or supervise the day-to-day work activities of security guards working at the video poker casino locations.
15. [Rosbottom Employees] is a Louisiana limited liability company which is also owned by Mr. Rosbottom. A copy of the Louisiana Secretary of State "Detailed Record" for Rosbottom Employees is attached as Exhibit 5.
16. Rosbottom Employees handles employee payroll, employee benefits, payment of employment and income tax withholding to state and federal governmental authorities, obtaining [workers'] compensation insurance and employment-related record keeping.
17. A copy of the [workers'] compensation insurance policy issued by Louisiana [Workers'] Compensation Corporation ("LWCC") which was in effect at the time of the robbery incident lists Rosbottom Employees and each of the commonly-owned Rosbottom companies, including Houma-Coteau and American Guard, as insureds under the policy. Relevant excerpts from the LWCC policy are attached hereto as Exhibit 6.[4]
18. The payroll paid by Rosbottom Employees to guard employees working at Lucky's was charged to American Guard, which, in turn, charged those costs, along with the additional costs it incurred with respect to security guard licensure, training and uniforms, to Houma-Coteau.
19. Neither American Guard nor Rosbottom Employees earn a profit from Houma-Coteau for performing these functions, but instead only charge the actual costs incurred.
20. Prior to the armed robbery incident which occurred on March 3, 2006 there had never been an armed robbery at Lucky's Casino in Houma, Louisiana.
21. [Ms.] Brenda Roberson was hired to work as a security guard at Lucky's Casino on or about May 31, 2001. A copy of [Ms.] Roberson's "Employee Data Record" reflecting her hire date of May 31, 2001 is attached hereto as Exhibit 7.[5]
22. At the time of [Ms.] Roberson's hire the Houma-Coteau Casino Manager was Ms. Peggy Brunet.
23. Ms. Brunet was responsible for [Ms.] Roberson's hire, issued an at-will employment policy to Ms. Roberson and completed her state and federal income tax withholding certificates at the start of her employment.
24. On July 9, 2001 Ms. Brunet issued an "Employee Warning Notice" to [Ms.] Roberson concerning her failure to attend an employee meeting. New hire paperwork and the write up completed by Ms. Peggy Brunet are attached hereto as Exhibit 8.
25. Ms. Peggy Brunet was replaced as the Casino manager of Houma-Coteau by her sister, Ms. Heidi Brunet. Ms. Brunet issued employment-related policies to [Ms.] Roberson in April, 2003 and on May 1, 2003 completed an "Employee Status Report" increasing Ms. Roberson's hourly rate of pay.
26. On August 20, 2003, Ms. Brunet issued an "Employee Warning Notice" to [Ms.] Roberson disciplining her for sleeping on the job. Personnel file documents completed by Ms. Heidi Brunet are attached hereto as Exhibit 9.
27. Heidi Brunet was replaced by Ms. Shameeka Thomas, who was the Casino Manager of Houma-Coteau on the date of the robbery incident.
28. Ms. Thomas would have been directly responsible for the day-to-day direction, supervision, evaluation and scheduling of [Ms.] Roberson. As the Casino Manager Ms. Thomas would [have] had the power to discipline and terminate [Ms.] Roberson.
29. Ms. Thomas authorized and reported [Ms.] Roberson's use of paid vacation leave in September, 2005. An "Absent Report Form" completed by Ms. Thomas is attached hereto as Exhibit 10.
30. Documentation contained in [Ms.] Roberson's American Guard file reflects that in June, 2001 she received classroom security guard training from a licensed third party instructor and that on . . . May 28 and 29, 2002 she received instruction regarding state rules and regulations governing security guards and her guard duties at an American Guard Meeting. Ms. Roberson's guard file is attached hereto as Exhibit 11.
31. The administrative aspects of Ms. Roberson's employment, including issuance of her paychecks, payment of her payroll taxes to state and federal tax authorities, administration of her employee benefits, and maintenance of her personnel file were at all times handled by Rosbottom Employees. IRS W-2 forms issued by Rosbottom Employees to Ms. Roberson are attached hereto as Exhibit 12.
The August 11, 2008 deposition of casino employee/cashier Kellie Hebert Cantrelle is also contained in the record and further verifies that the Lucky's Casino manager Shameeka Thomas was the "boss" of those who worked at the casino, supervising the workers and setting their work schedules. Ms. Cantrell stated that three employees worked at the casino on each eight-hour shift: a cashier, a security guard, and a manager.
In opposition to the defendants' motion, the plaintiff, Phillip Roberson, submitted his own affidavit into the record, stating:
1. I am a person of the full age of majority domiciled in Terrebonne Parish, State of Louisiana.
2. Brenda B. Roberson was my mother.
3. I saw Brenda B. Roberson on a daily basis.
4. My mother, Brenda B. Roberson, a licensed guard, considered her employer to be American Guard & Security, L.L.C., and she was paid by Rosbottom Employees, L.L.C.
5. My mother, Brenda B. Roberson, received her training, instructions, and job responsibilities from American Guard & Security, L.L.C.
6. My mother, Brenda B. Roberson, was hired and fired by Rosbottom Employees, L.L.C, received her pay, vacation time, pay raises, and working guidelines from Rosbottom Employees, L.L.C.
7. My mother, Brenda B. Roberson, never considered herself an employee of Lucky's Casino or Houma-Coteau Holdings, L.L.C.
8. The foregoing is true and correct to the best of my knowledge, information and belief.
Despite the assertions in the plaintiffs affidavit, a document signed by Brenda Roberson on April 27, 2003 was filed into the record, entitled "Rosbottom Interests Confidentiality Agreement and Covenant Not to Compete," whereby she acknowledged the following, in pertinent part:
THE UNDERSIGNED Employee is or will be employed by Rosbottom Interests, L.L.C. (the "Company"), which is a holding company owning interests in several Affiliates through which it operates a variety of businesses. During the course of Employee's employment with the Company, Employee will be assigned by the Company to provide services to one or more of these Affiliates.
Thus, it is clear that Ms. Roberson was aware that her employment extended to a group of affiliated entities.
After carefully reviewing the evidence presented herein on the motion for summary judgment, we find that no genuine issue of material fact exists concerning the factual determination of whether a joint venture existed between Houma-Coteau, American Guard, and Rosbottom Employees with regard to the operation of Lucky's Casino; we conclude the trial court was correct in finding that each of these companies was a joint employer of Brenda Roberson and as such were each entitled to the benefit of the exclusivity provisions of the Louisiana Workers' Compensation Law. Accordingly, we find no error in the trial court's dismissal of the plaintiffs tort action against Houma-Coteau and American Guard on summary judgment.
CONCLUSION
For the reasons stated herein, the judgment of the trial court dismissing the defendants, Houma-Coteau Holdings, L.L.C. d/b/a Lucky's Casino and American Guard & Security, L.L.C, is affirmed. All costs of this appeal are to be borne by plaintiff/appellant, Phillip Roberson, individually and on behalf of the Estate of Brenda B. Roberson.
AFFIRMED.
WHIPPLE, J., dissenting.
In my view, this is simply not a case for summary judgment. The determination of who was plaintiffs decedent's actual and factual "employer" presents issues of fact, which cannot be resolved absent a fact-finder weighing the evidence, and making factual findings.
Accordingly, I respectfully dissent.
NOTES
[1] American Guard was improperly named in the plaintiffs petition as "American Guard Security Company."
[2] Rosbottom Employees was not made a defendant in this lawsuit.
[3] The July 17, 2008 deposition of Mr. Cartolano was also filed into the record and supports the statements made in this subsequent affidavit.
[4] This document is entitled "General Endorsement" and identifies the insurer as "Louisiana Workers' Compensation Corporation" and the insured as "Rosbottom Employees, LLC." The endorsement states: "The following named businesses are included in policy coverage: . . . American Guard . . . Houma Coteau ...."
[5] Exhibit 7 includes a document entitled "Rosbottom Employees LLC Employee Data Record," which is a form filled out by Ms. Roberson as a "new employee," having a "New Hire" date of May 31, 2001, and naming the location of her employment as "Lucky's Houma Hwy # 182;" her position was listed as "Security Guard." Also included within Exhibit 7 is a 2001 W-4 signed by Ms. Roberson, listing her employer as "Lucky's Casino." Further, there is appended an "Employee Withholding Exemption Certificate" signed by Ms. Roberson and by Peggy Brunet. Also attached is a "Rosbottom Employees LLC At-Will Employment Policy" signed by Ms. Roberson and Ms. Brunet. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584220/ | 24 So.3d 682 (2009)
Horace Dwayne McKINNEY, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-1862.
District Court of Appeal of Florida, Fifth District.
December 18, 2009.
James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
*683 Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
ORFINGER, J.
Horace McKinney appeals his convictions of grand theft and robbery with a firearm, which arose from a single taking of cash and a cell phone at gunpoint. McKinney contends that the dual convictions violate his protection against double jeopardy. We disagree and affirm.
"The most familiar concept of the term `double jeopardy' is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions and punishments for the same criminal offense." Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009). However, there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction, as long as the Legislature intends to authorize separate punishments. Hayes v. State, 803 So.2d 695, 699 (Fla.2001). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger[1] test, as codified in section 775.021, Florida Statutes, to determine whether separate offenses exist. Section 775.021(4) provides:
(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense. . . . For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
McKinney contends that robbery and theft are simply aggravated forms of the same underlying offense. Consequently, McKinney asserts that section 775.021(4)(b)2., precluding dual convictions for "offenses which are degrees of the same offense as provided by statute," mandates a robbery conviction alone. Until recently, precedent supported McKinney's argument. In Sirmons v. State, 634 So.2d 153 (Fla.1994), our supreme court held that convictions for robbery with a weapon and grand theft arising from a single act could not stand under section 775.021(4)(b)2. because both offenses were aggravated forms of the same underlying offense, distinguished only by degree. See, e.g., Ward v. State, 898 So.2d 1152 (Fla. 5th DCA 2005); Elozar v. State, 825 So.2d 490 (Fla. 5th DCA 2002). The supreme court narrowed that holding in Gordon v. State, 780 So.2d 17, 23 (Fla.2001), concluding that courts must discern the "primary evil" that a specific offense is intended to punish in order to determine whether the offenses are degree variants of each other under section 775.021(4)(b)2. See State v. Paul, 934 So.2d 1167, 1175 *684 (Fla.2006); State v. Florida, 894 So.2d 941, 948-49 (Fla.2005).
In Valdes, the supreme court cast aside the "primary evil" standard utilized in Gordon, and more narrowly construed the "degree variants" standard referenced in Sirmons, holding:
[T]he plain meaning of the language of subsection (4)(b)(2), providing an exception for dual convictions for "[o]ffenses which are degrees of the same offense as provided by statute," is that "[t]he Legislature intends to disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees."
Id. at 1076 (quoting Paul, 934 So.2d at 1176 (Cantero, J., specially concurring)). The court explained that the exception found in section 775.021(4)(b)2. is intended to apply narrowly and prohibits separate punishments only when a criminal statute provides for variations in degree of the same offense, such as the theft statute, which expressly identifies three degrees of grand theft and two degrees of petit theft or the homicide statute, which specifically categorizes three degrees of murder as well as multiple forms of manslaughter. Id. Only in such a circumstance would section 775.021(4)(b)2. bar separate punishments, as the defendant would be punished for violating two or more degrees of a single offense. Id. (citing Sirmons, 634 So.2d at 156 (Grimes, J., dissenting)).
By statute, robbery is not a degree of theft nor is theft a degree of robbery. As a result, utilizing the analysis mandated by Valdes, we conclude that section 775.021(4)(b)2. does not prohibit McKinney's convictions for robbery with a firearm and grand theft. In doing so, we expressly and directly certify conflict with Shazer v. State, 3 So.3d 453 (Fla. 4th DCA 2009), which holds to the contrary, relying on Sirmons rather than Valdes.
We find no merit in the sole remaining issue.
AFFIRMED.
LAWSON and JACOBUS, JJ., concur.
NOTES
[1] Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1588823/ | 14 So.3d 946 (2009)
Ricardo I. GILL, Appellant,
v.
STATE of Florida, Appellee.
No. SC06-1572.
Supreme Court of Florida.
July 9, 2009.
*949 Nancy Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.
PER CURIAM.
Ricardo I. Gill appeals his judgment of conviction and sentence of death for the first-degree murder of Orlando Rosello.[1] For the reasons set forth below, we affirm the conviction and sentence.
*950 OVERVIEW
Ricardo I. Gill was convicted of the July 24, 2001, first-degree strangulation murder of his cellmate, Orlando Rosello, at the Department of Corrections Reception and Medical Center in Union County, Florida. The murder occurred just days after Gill was sentenced and incarcerated for the unrelated murder of Beverly Moore in Alachua County on July 20, 2001. In that case, Gill was sentenced to life in prison after pleading guilty to first-degree murder and requesting that the court impose the death penalty. In the present case, Gill appeared pro se after a Faretta[2] hearing, entered a guilty plea to the Rosello murder and waived a penalty phase jury and presentation of mitigation at the penalty phase. After receiving evidence as to aggravation and after reviewing mitigation evidence that appeared in the record, the trial court sentenced Gill to death. Again, Gill sought the death penalty in this case.
On appeal, Gill's appellate counsel raises three penalty phase claims. He contends (1) that because of Gill's mental illness and brain abnormality, the trial court erred in finding that the murder was committed in a cold, calculated and premeditated manner; (2) that Gill's death sentence is disproportionate when compared to other capital cases; and (3) that Gill's sentence was improperly imposed in violation of the principles set forth in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).[3] In addition to considering the claims raised by Gill, we have a mandatory duty to examine the sufficiency of the evidence or, as in this case, the knowing, intelligent, and voluntary nature of Gill's plea.[4] As we will explain below, we conclude that Gill's plea was knowing, intelligent, and voluntary, and further conclude that his death sentence is proportionate and was properly imposed based on the trial court's weighing of the aggravating and mitigating factors found by the court. We turn first to the facts and circumstances of the murder of Orlando Rosello.
FACTS AND PROCEDURAL HISTORY
The Circumstances of the Murder
Approximately one year before Gill was sentenced to life in prison for the 1999 murder of Beverly Moore, a crime for which he entered a guilty plea, Gill wrote a letter to Judge Morris, the trial judge in that case. Gill stated:
What I told the Gainesville Sun was that "I will make the judge sentence me to death. If he doesn't, he's gonna make me be someone I don't want to be and make me do something I don't want to do. If he does not act accordingly, I will kill someone, and think of your mother, your wife or your daughter."
... [D]on't make the next judge do the job you should have done!
*951 Gill also wrote the prosecutor a letter in the Beverly Moore case almost a year before sentencing in that case, stating:
I am gonna plea guilty to all the Alachua County charges including the murder charge. It would be wise to stick to the motion you filed to seek the death penalty. I will not do the rest of my life in prison! If I am sentenced to life, I will turn into someone I am not and do things I don't want to do. My actions will speak volumes of this last sentence. If I am sentenced to life, you and the judge will live with it on your shoulders for the rest of your life no matter what office you seek.... "What you don't do, the next prosecutor will do with a passion." "What the judge doesn't do tomorrow, the next judge will do the day after tomorrow." Think about it!
As the trial court found in its sentencing order in this case:
Gill told Judge Morris that if he did not receive a sentence of death [for the Moore murder], he (Gill) would make the next judge impose the death penalty. Judge Morris alerted the authorities to this threat, and Gill was transported to the Regional Medical Center at Lake Butler, Florida.
Despite the warning from Judge Morris, Gill was placed in a cell with Orlando Rosello, and in the following week Gill strangled Rosello to death using a strip of cloth from a bed sheet.
Gill gave a recorded confession to the Rosello murder in an interview with a special agent of the Florida Department of Law Enforcement (FDLE) on July 24, 2001, the day of the murder. The Inspector General of the Department of Corrections and defense attorney, Robert Rush, were present when Gill was given Miranda[5] warnings and waived his right to remain silent. Gill said he arrived at the Department of Corrections Reception and Medical Center in Union County on Friday afternoon, July 20, 2001. His first cellmate, Shorty Black, complained about being housed with Gill because he had read that Gill threatened to kill someone in order to get the death penalty. After his first cellmate complained, officers moved Gill to another cell where the Rosello murder ultimately occurred. Gill told the FDLE agent that if he had stayed with the first cellmate, he "would have slit his throat." According to Gill, Shorty Black had a razor with him that Gill said he could have used.
In spite of the fact that the Department of Corrections had been advised of Gill's threat to kill someone, inmate Orlando Rosello was brought into Gill's cell in the early morning hours on Saturday, July 21, 2001. On Sunday, July 22, Gill wrote three advance confession lettersto the prison security supervisor, to the Gainesville Sun newspaper and to Judge Morrisabout the murder he was going to commit. In his letter to the Gainesville Sun, written immediately before the Rosello murder, Gill stated in part:
I have stated numerous times in telephone interviews with the Gainesville Sun that I would rather die than spend the rest of my life in prison for something I didn't do. I have made the courtformer Chief Judge Robert P. Cates aware of this dating back to Jan. 28, 2000 (19 months) prior to sentencing hearing in July 20, 2001 which is in the court file of case No. 99-2277-CFA.... So after knowing this for 19 months, that I would not spend the rest of my life in prison for something I didn't do, essentially all the appointed attorneys... and Chief Judge Stan Morris assisted me by not upholding the oath they took to protect and defend, and represent *952 the client as defense attorneys against said charges and each named persons could have prevented this death by taking the appropriate action in a number of ways and the most important of all was sentencing me to life without parole in which made each named persons therefore becomes an accessory before the fact and to the fact of 1st degree murder which was cold, calculated and premeditated manner without any pretense of moral or legal justification planned 19 months ago. My victim, the first inmate I came in contact with and was able to block all emotional feelings and put my mind in a state to actually take someone's life for the first time. I Ricardo I. Gill, took the life of Orlando Rosello by strangulation.... I was not under the influence of any mental or emotional disturbance at this time and will confirm this to any court appointed expert. Had I been given the death sentence for a murder I did not commit, I would have accepted it and had it carried out quickly without any appeals or appellate reviews, but you chose to give me life which I'm adamantly against....
In his interview with FDLE, Gill again said that he had decided some months earlier to commit a murder and that "I planned to kill him [Rosello] when they moved him in the room with me and I wrote those letters."[6] Rosello and Gill interacted normally for several days; but later that week, in the early morning hours of Tuesday, July 24, Gill decided the time had come to kill Rosello. Gill explained,
[W]hen I woke up this morning, I said well, I've already committed myself [by writing and mailing the letters], and I've got to follow through with it. And about 5:00 this morning, when they turned on the lights and the officer came around and poked the flaps, eat breakfast.... I took a piece of torn sheet, I wrapped it around Mr. Rosello's neck while he was asleep, and I strangled him to death.
When Gill slipped the sheet strip around the sleeping Rosello's neck and began to strangle him, Rosello awoke and struggled briefly.
After he strangled Rosello, Gill changed the position of the body and put a T-shirt over Rosello's face because "his whole face was black, and tongue was hanging out of his mouth." A substantial amount of blood had also come from Rosello's ear. The murder occurred before breakfast, and when breakfast was served, Gill ate his own breakfast and dumped Rosello's breakfast down the toilet. Gill also flushed the piece of torn bed sheet down the toilet because it had a lot of blood on it. Gill later admitted he also flushed a wadded up piece of paper he was writing on after the murder, on which he had written, "I killed at 5:00 this morning." The paper was found in the trap of the cell toilet, along with the strip of sheet. All the physical evidence of the murder is consistent with Gill's detailed account of the crime.
Gill said he covered up the murder and told an inquiring officer that Rosello was asleep because he did not want the murder to be discovered on the midnight shift. Gill wanted to be out of the building on a false "psych emergency" when the body was discovered. However, the officer called for someone to open the cell, and when the officer tried to wake up Rosello and saw the blood, the officer asked Gill if Rosello was dead. Gill reported saying, *953 "Yeah ... I strangled him." When the interviewing officer asked Gill why he killed Rosello, Gill said:
Well, for one reason, I'm not gonna spend the rest of my life in prison for something I didn't do, which I was given a life sentence for Friday. July the 20th, and second of all, I was acting on the advice of one of my attorneys too, how he puts it, kill someone else, if I'm not satisfied with the life sentence.
The attorney he referred to was not present at this interview. Gill claimed that he entered a guilty plea in the Beverly Moore murder even though he was innocent in that case because his attorney and "a bunch of other attorneys" had been "doing different things behind my back" and were not planning on going to trial to prove his innocence. Gill said he expected to receive the death penalty in the Beverly Moore murder but did not.
According to the report of medical examiner William Hamilton, M.D., Orlando Rosello died as a result of ligature strangulation. He also suffered small abrasions on his forehead, a right periorbital hematoma, and acute pulmonary congestion and edema.
Procedural History Prior to Sentencing
Gill was indicted for the first-degree murder of Rosello on February 6, 2002, and was provided with appointed counsel. During the three years that this case was pending in the trial court prior to the entry of Gill's plea, Gill sought numerous times to remove his various appointed attorneys. Gill also filed numerous motions requesting a Faretta hearing, which the trial court postponed until Gill's competency could be determined. Over the course of these proceedings, the trial court appointed five experts to examine Gill for competency, and each provided a report concluding that Gill was competent to proceed. The court was also aware of the competency evaluations done in the Beverly Moore case, in which Gill was also found competent to proceed. The competency examinations and reports received and reviewed by the trial court spanned a five-year period.
As a result of the competency examinations, which included an in-depth review of Gill's medical records and records of his early mental health history, the court learned of Gill's mental and behavioral problems that were manifest in his childhood. Gill was expelled from nursery school and two first-grade classes and was institutionalized at age ten for one and one-half years because of mental and behavior problems. Upon his release from that institution, he continued to have problems even though he was in counseling. Gill was then committed to the Northeast Florida State Hospital in April of 1982 and subsequently released in 1983. His record of criminal offenses began in 1986, at age seventeen, with auto theft, burglary of a conveyance, and petit theft.
Although Gill was found competent to proceed in this case, the examinations disclosed the fact, not contested by the State, that Gill is mentally ill and has a long history of mental illness and behavioral difficulties. It was also discovered, after Gill was hospitalized, that he has a brain anomaly referred to as an arteriovenous malformation, which describes a brain lesion made up of an overgrowth of veins and arteries that can hemorrhage. During the proceedings below, Gill's mental health and his affliction with the arteriovenous malformation were the subject of several hearings and rulings by the trial court.
The trial court held a hearing on June 18, 2004, at which it received testimony from Dr. Clifford Levin, Ph.D., Dr. Harry Krop, Ph.D., and Dr. Tonia Werner, M.D., who all opined that Gill was competent to proceed, although no competency order *954 was entered at that time. Pursuant to one of Gill's motions to discharge appointed counsel, a Nelson[7] hearing was held on February 18, 2005, but the court refused to discharge counsel, finding counsel was not ineffective. Gill requested a Faretta hearing at that time but the trial court refused without a further competency evaluation.
On April 15, 2005, Gill announced that he was withdrawing his Faretta request. As to Gill's competency, the trial court noted that the most recent evaluation by Dr. Elizabeth Cadiz was inconclusive on the issue of competency and proposed to order additional reports. Gill responded:
THE DEFENDANT: Your Honor, you might as well make your decision today because I'm not speaking to another expert. If you can't make your decision, this case will never end. With or without [defense counsel] Mr. Salmon's assistance, I will implicate myself in a crime that will result in my death. So you might as well make the decision today.
The trial court then ruled that Gill was competent to proceed in the case based on the prior reports of the three doctors who testified on June 18, 2004. Although Gill was still represented by counsel, he immediately asked the court to allow him to enter a guilty plea. The trial court refused to entertain the plea without a determination that Gill was waiving the assistance of counsel. After inquiry of Gill, the trial court found that Gill had not made an unequivocal request to represent himself. However, in a later hearing on May 5, 2005, in which Gill was represented by his same defense counsel, the court did rule that Gill could proceed pro se in the Rosello murder case, with his current attorney acting as standby counsel.[8]
Gill's Plea and Sentencing
After being found competent and being allowed to proceed pro se with standby defense counsel, Gill entered his guilty plea on July 8, 2005, and further waived a sentencing jury and presentation of any mitigation. Gill also agreed that the State could immediately present its evidence of aggravating circumstances.[9] The trial court and Gill's standby counsel were aware of the requirements of Koon v. Dugger, 619 So.2d 246, 250 (Fla.1993) (the court must confirm the defendant has discussed waiver of mitigation with counsel, who must inform the court whether there *955 is mitigation that could be presented, and the court must confirm the defendant wishes to waive mitigation). However, when Gill's standby counsel attempted to present additional mitigation, Gill objected, and the court confirmed with Gill that he wished to waive presentation of mitigation. The court was also aware of its obligations under Muhammad v. State, 782 So.2d 343, 363 (Fla.2001) (emphasizing "the duty of the trial court to consider all mitigating evidence" anywhere in the record). Accordingly, the court also considered mitigation presented by the State on Gill's behalf, as well as that appearing elsewhere in the record of the case.[10] After the State presented its closing argument, in which the prosecutor acknowledged Gill's longstanding mental illness and brain malformation but argued that the aggravating circumstances outweighed the mental mitigation, Gill addressed the court, stating:
Your Honor, this case can end with the imposition of the death penalty today. The case is then guaranteed a direct appeal, but less likely to be overturned, as the Court has found me competent in every step of the way and that every decision made by me was knowingly, freely and willingly, and furthermore you will save an innocent human life.
On the flip side, if I am given life, something I do not want, there are no appeals, and I don't want to have an opportunity to take another human's life.
I understand that death penalties are not given due to threats and the Courts do not rely on such threats, but for you to take my statements and promises, which is what they are and proven to be, with a grain of salt, like the Honorable Stan Morris, you will be second on a string of judges who has come to deliberately give me a license to take another human's life, knowing that the judges in this circuit will never give me the death penalty.
Please make the right decision and don't be the fault of another loss of life. I may take longer than four days next time, but it will be done, and I am one hundred percent sure that it won't be an inmate the next time.
Prior to sentencing Gill, the trial court held a separate hearing in February 2006, where Dr. Alan Waldman, M.D., a forensic neuropsychiatrist, testified about Gill's arteriovenous malformation, which had been discovered after it ruptured in 2004 and required Gill's hospitalization. Dr. Waldman, who offered his opinion that Gill was competent, explained that the arteriovenous malformation is a "space occupying lesion" in Gill's brain that is about two centimeters square. He said that the lesion is made up of a tangled overgrowth of veins and arteries, which in Gill's case presses on the amygdala in the left temporal lobe of his brain.[11] This pressure can *956 rage attacks and something called "interictal personality disorder."[12]
When asked about "interictal personality disorder," the doctor testified, "It's possible to have significant personality changes between temporal lobe seizures, provided that they are there, and I have no evidence that they are there." Dr. Waldman testified that "[t]he temporal lobe seizure foci are very difficult to find. Between seizures an individual's personality can become very different, can become hostile, unruly, they can become passive, they can have profound changes from a premorbid [before the condition] state." According to Dr. Waldman, Gill's arteriovenous malformation was present since birth and was evidenced by Gill's childhood history of "discontrol syndromes" and behavioral abnormalities. He said that an arteriovenous malformation also interrupts the ability of a person to learn from his or her experiences. When asked if the facts of the murder indicate it was the result of the rage response that can be caused by the arteriovenous malformation, Dr. Waldman said: "Not as you described it.... It certainly sounds very much like ... a thought-out, threatened, premeditated act, but I was not there that night."
A disposition hearing was held June 30, 2006, at which the trial court again advised Gill that he had a right to appointed counsel, which Gill refused. The court also asked Gill if he wished to withdraw his plea or go forward with sentencing, and Gill confirmed that he wanted to go forward. The trial court then entered its Order Imposing Sentence of Death for the murder of Orlando Rosello. In the sentencing order, the court considered four aggravating factors, but found only three to be proven: (1) Gill was under a life sentence for the murder of Beverly Moore at the time the Rosello murder was committedsection 921.141(5)(a), Florida Statutes (2002)which was given great weight; (2) Gill had a prior capital felony conviction for the Beverly Moore murdersection 921.141(5)(b), Florida Statutes (2002)which was given great weight; and (3) the murder was committed in a cold, calculated and premeditated mannersection 921.141(5)(i), Florida Statutes (2002)which was given great weight. Although the trial court based its finding of the prior violent felony aggravator only on the prior capital felony conviction involving the Beverly Moore murder, we note that evidence was presented of five other prior violent felony convictions, including attempted murder. The trial court rejected a finding that the murder was heinous, atrocious or cruel under section 921.141(5)(h), Florida Statutes (2002), primarily because Rosello was asleep when the attack occurred and when he awoke, he struggled only briefly.
The trial court then considered all the mitigation that was presented, including mental mitigation in both this case and the Beverly Moore case, and found two statutory mitigators: (1) Gill was under extreme emotional or mental disturbance section 921.141(6)(b), Florida Statutes (2002)which was given substantial weight; and (2) Gill's ability to appreciate the criminality of his act or to conform his conduct to the law was impairedsection 921.141(6)(f), Florida Statutes (2002) which was given great weight. The trial court found Gill's impaired ability to appreciate the criminality of his act or to *957 conform his conduct to the law based in large part on the testimony of Dr. Levin, who had testified that Gill's capacity to conform his conduct to the law was "substantially impaired" by Gill's major depressive disorder, major mood disorder in the form of an intermittent explosive disorder and other diagnosable disorders including cocaine abuse, antisocial personality disorder and borderline personality disorder. The sentencing order noted Dr. Levin's testimony that Gill had periodic suicide attempts, episodic failure to resist aggressive impulses, a pattern of rage, violent outbursts and inappropriate anger, poor judgment, mood swings, irritability, and some self-mutilation. The trial court also cited the fact that Gill was institutionalized at a very early age and received poor treatment, was uncontrollable, and was committed to the North Florida State Hospital, where he was frequently kept in four-point restraints to control his behavior. The trial court also found other mitigation, including that Gill's behavior may have been affected throughout his life by the untreatable arteriovenous malformation in his brain, which can cause impulse behavior including rage, although concluding that the Rosello murder was "neither impulsive nor due to uncontrollable rage." This mitigator was given "weight, but not great weight."
The trial court stated in sentencing Gill in this case that it relied "to a great extent on Judge Morris's sentencing order in [the Beverly Moore murder case]" where the trial court "had access to a much greater amount of mental health information than the Court possessed in this case." In the Alachua County Beverly Moore sentencing order, where the trial court imposed a life sentence on July 20, 2001, four days before the Rosello murder, Judge Morris found:
Even as a toddler, [Gill] was clumsy, impulsive, and possessed a short attention span. He was expelled from two nursery schools and two first-grade classes before being placed in a class for emotionally handicapped students. Violent and hyperactive, he showed signs of thinking disorders, delusions, and possible hallucinations.
At the young age of ten (December 1979), he was admitted to the Grant Center's acute care unit; he remained at the center for a year and a half, during which time he displayed frequent temper tantrums (kicking, biting and scratching). He was prescribed a number of medications and placed in weekly counseling sessions to control his combative and violent behavior. He was ultimately diagnosed with childhood-type schizophrenia.
Shortly after being discharged from Grant Center, Defendant again began displaying extremely aggressive, violent behaviors toward both children and adults. This behavior was so severe that he was admitted to Northeast Florida State Hospital several months later in April of 1982, where he remained for quite some time.
....
... Just four years later, in 1987, Defendant was sentenced to seven years in prison and five years of probation for burglary of a conveyance; grand theft; armed robbery; burglary of a dwelling with an assault therein; and burglary of a dwelling with a battery therein. Upon intake, his North Florida Reception Center classification summary called his pre- and post-release prognosis "guarded" due to his history of drug use and crime.
He was subsequently placed in Sumter Correctional Institution and then moved to Polk Correctional before being assigned to Union Correctional on December 1, 1987.... His readmission *958 summary at North Florida Reception Center indicated he would continue to be a management problem, in part because of his numerous suicide attempts, including hanging himself, cutting his arm, and attempting to drain his blood with a syringe.
....
He was repeatedly examined, and each time the diagnoses were similar borderline personality disorder; depression with suicidal ideations; adjustment disorder with mixed disturbance of emotional conduct; and antisocial personality disorder. At varying times, he was prescribed a number of antidepressants and other psychotropic drugs, including Elavil, Sinequan, and Serentil. While on these medications he showed sporadic improvement, but overall his condition remained the same.
After reviewing the entire record, considering the mitigation presented on Gill's behalf, and weighing the aggravators against the mitigators, the trial court found: "Despite the fact [that] RICARDO IGNACIO GILL is a deeply troubled individual with a long history of mental health problems, mental disturbances, suicidal impulses, and a life primarily spent in penal institutions ... the magnitude of Defendant's aggravating factors outweigh[s] the magnitude of the Defendant's statutory mitigating factors and non-statutory mitigating factors." Accordingly, the trial court sentenced Gill to death for the murder of Orlando Rosello.
On appeal, Gill's counsel contends that due to Gill's mental illness and his arteriovenous malformation, the trial court erred in finding that the murder was cold, calculated and premeditated. He also contends that the death sentence is disproportionate in this case because the other aggravators were also the result of his mental illness. Finally, Gill contends that Florida's capital sentencing procedures and his death sentence are unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Because all the claims expressly raised by Gill relate to his sentence, and this Court's mandatory review involves the guilt phase of the case, we turn first to the question of whether Gill's guilty plea was knowing, intelligent, and voluntary. We will then address the penalty-phase claims that Gill presents in his appeal.
ANALYSIS
Knowing, Intelligent and Voluntary Nature of the Plea
Gill has not challenged his conviction for first-degree murder in this appeal, nor does he challenge the acceptance of his guilty plea. However, this Court has a mandatory obligation to review the basis of Gill's conviction for first-degree murder, even when the basis for the conviction is not challenged. In a case in which the guilt of the defendant is found by a jury, the Court reviews the sufficiency of the evidence to support the conviction. See Bevel v. State, 983 So.2d 505, 516 (Fla.2008).[13] In this case, however, because Gill's conviction resulted not from a trial but from entry of a guilty plea, "this Court's review shifts to the knowing, intelligent, and voluntary nature of that plea." Tanzi v. State, 964 So.2d 106, 121 (Fla. 2007) (quoting Winkles v. State, 894 So.2d 842, 847 (Fla.2005)); see also Guardado v. State, 965 So.2d 108, 118 (Fla.2007); *959 Lynch v. State, 841 So.2d 362, 375 (Fla. 2003); Ocha v. State, 826 So.2d 956, 965 (Fla.2002). Under these circumstances, the "[p]roper review requires this Court to scrutinize the plea to ensure that the defendant was made aware of the consequences of his plea, was apprised of the constitutional rights he was waiving, and pled guilty voluntarily." Ocha, 826 So.2d at 965.
It is axiomatic that "[a] trial court must inquire carefully into the voluntariness of a plea" and that "[a] guilty plea `must be voluntarily made by one competent to know the consequences of that plea.'" Lopez v. State, 536 So.2d 226, 228 (Fla.1988) (quoting Mikenas v. State, 460 So.2d 359, 361 (Fla.1984)). Because the record established that Gill had a history of mental illness and the trial court ordered that Gill's competency be evaluated in the case, we first discuss the issue of competence as it bears on Gill's ability to enter a knowing, intelligent and voluntary plea. As referenced above, before accepting Gill's guilty plea, the trial court ordered extensive mental evaluations of Gill, reviewed the experts' reports and received testimony concerning his competence to proceed to trial. The court ultimately found that Gill was competent to proceed.[14]
The United States Supreme Court in Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), "reject[ed] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard." Id. at 398, 113 S.Ct. 2680. The standard of competence set out in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), is whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him." Id. at 402, 80 S.Ct. 788. The Supreme Court in Godinez reasoned, "If the Dusky standard is adequate for defendants who plead not guilty, it is necessarily adequate for those who plead guilty." Godinez, 509 U.S. at 399, 113 S.Ct. 2680. The Court in Godinez explained:
A defendant who stands trial is likely to be presented with choices that entail relinquishment of the same rights that are relinquished by a defendant who pleads guilty: He will ordinarily have to decide whether to waive his "privilege against compulsory self-incrimination," Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), by taking the witness stand; if the option is available, he may have to decide whether to waive his "right to trial by jury," ibid.; and, in consultation with counsel, he may have to decide whether to waive his "right to confront [his] accusers," ibid., by declining to cross-examine witnesses for the prosecution. A defendant who pleads not guilty, moreover, faces still other strategic choices: In consultation with his attorney, he may be called upon to decide, among other things, whether (and how) to put on a defense and whether to raise one or more affirmative defenses. In sum, all criminal defendantsnot merely those who plead guiltymay be required to make important decisions once criminal proceedings have been initiated. And while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions *960 that a defendant may be called upon to make during the course of a trial. (The decision to plead guilty is also made over a shorter period of time, without the distraction and burden of a trial.) This being so, we can conceive of no basis for demanding a higher level of competence for those defendants who choose to plead guilty.
Godinez, 509 U.S. at 398-99, 113 S.Ct. 2680.
In this case, before accepting Gill's plea, the trial court received numerous reports resulting from examinations by five different doctors, including three psychologists, a forensic psychiatrist, and a neuropsychiatrist. The examinations were generally governed by Florida Rule of Criminal Procedure 3.211(a)(2), which provided that in considering the issue of competence to proceed, the examining experts should consider and include in their reports the following:
(A) the defendant's capacity to:
(i) appreciate the charges or allegations against the defendant;
(ii) appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant;
(iii) understand the adversary nature of the legal process;
(iv) disclose to counsel facts pertinent to the proceedings at issue;
(v) manifest appropriate courtroom behavior;
(vi) testify relevantly; and
(B) any other factors deemed relevant by the experts.
Fla. R.Crim. P. 3.211(a)(2). Based on these reports, and testimony of the experts, the trial court found Gill competent to proceed.
Gill's determination of competency has not been challenged, and, based on the record of competency reviews, reports, and testimony presented in this case, we conclude that the trial court's finding of competency is supported by competent, substantial evidence and is sufficient to establish Gill's competence to enter a knowing, intelligent and voluntary plea. Nor has any abuse of discretion been shown in the trial court's ruling. See Boyd v. State, 910 So.2d 167, 187 (Fla.2005) ("The competency determination must be based on all relative evidence, and the decision will stand absent an abuse of discretion."). Accordingly, our review moves to examination of the plea colloquy that occurred prior to the trial court accepting Gill's guilty plea.
When a competent defendant moves the court to accept a guilty plea, the trial court must then make a detailed inquiry into the voluntary, knowing and intelligent nature of the plea. In this case, the trial court followed the dictates of Florida Rule of Criminal Procedure 3.172 (2005). That rule requires first that the trial court determine there is a factual basis for the plea. Rule 3.172(a). This requirement was met when the trial court read the indictment to Gill and the State proffered a statement of facts supporting the indictment and the plea, which factual basis consisted of portions of Gill's own confession to FDLE. When asked if he had any objection to the recitation of facts, Gill responded, "No, sir."
Rule 3.172(b) also requires that the plea be taken in open court, which requirement was met in this case. Under rule 3.172(c), a determination of voluntariness must be made based on a court inquiry to determine that the defendant understands (1) the nature of the charge and the mandatory minimum and maximum penalties provided by law; (2) that he or she has a right to an attorney and that one will be appointed if necessary; (3) that the defendant *961 has the right to plead not guilty and to be tried by a jury with assistance of counsel, to compel attendance of witnesses, to confront and cross-examine witnesses, and the right not to be compelled to incriminate himself or herself; (4) that a plea will give up the right to appeal all matters relating to the judgment unless expressly reserved; (5) that there will be no trial; (6) that the trial judge may examine the defendant under oath about the offense and that the answers may be later used against the defendant; (7) the terms of any plea agreement; and (8) that a plea may subject the defendant to deportation if he or she is not a United States citizen.[15]
The trial court complied with the requirements of the rule, and Gill confirmed that he had discussed the plea with his standby attorneys, but maintained that he represented himself. Gill was advised of his right to have appointed counsel throughout the proceedings, to which Gill responded that he did not wish to have counsel represent him. The court read the charges contained in the indictment of February 6, 2002, to Gill and advised him of the possible sentences for first-degree murderlife in prison or deathand of the fact that the State was seeking death. Gill confirmed that he understood the maximum penalty for the murder was death. The court advised Gill that his prior murder conviction would constitute an aggravating circumstance for purposes of consideration of the death penalty, which Gill confirmed that he understood.
Gill also confirmed that he understood he had a right to continue to plead not guilty to the charge, that he had a right to a jury trial that would be waived by entry of a guilty plea, and that he had a right to require the State to prove his guilt and would be waiving that right. He testified that he understood that by pleading guilty, he would be giving up his right to have counsel produce evidence on his behalf, the right to present witnesses, the right to have the jury instructed, and the right to testify or elect not to testify in his own behalf. When asked if he was taking any medication, Gill reported that he had been prescribed lithium (Eskalith) for mood swings but had not taken it the prior evening or that morning. He denied, however, that he would feel better, for purposes of the plea, if he had taken his medication. Gill denied that anything was affecting his judgment and stated his thinking was "clear." He confirmed that no promises or threats had been made to cause him to enter a plea of guilty. Finally, Gill announced that he was entering the guilty plea "[f]reely, knowing and intelligently."[16]
Accordingly, because Gill was competent and was fully advised as required by rule 3.172 of all the rights he would be waiving and of the risk that he would be given the death penaltyand he confirmed that he understood all these rights and that his plea was freely, knowingly and intelligently *962 givenwe conclude that there was a sufficient basis for the plea and conviction, both in the factual basis supporting the plea and in the inquiry conducted by the trial court.
Cold, Calculated and Premeditated Aggravator
We turn now to the penalty phase issues raised by Gill's appeal. He asserts that the trial court erred in finding that the murder of Rosello was committed in a cold, calculated and premeditated manner (CCP). This assertion is based on the contention that Gill's mental disabilities rendered him incapable of the cool, calm reflection necessary to meet the requirements for CCP. We disagree.
The presence of mental illness does not automatically make a finding of CCP inapplicable where the facts otherwise establish that the murder was committed in a cold, calculated and premeditated manner without pretense of justification. We have held that "[a] defendant can be emotionally and mentally disturbed or suffer from a mental illness but still have the ability to experience cool and calm reflection, make a careful plan or prearranged design to commit murder, and exhibit heightened premeditation." Lynch, 841 So.2d at 371-72 (quoting Evans v. State, 800 So.2d 182, 193 (Fla.2001)); see also Owen v. State, 862 So.2d 687, 701-02 (Fla. 2003) (CCP affirmed even though Owen had organic brain damage).
A determination of whether CCP is present is properly based on a consideration of the totality of the circumstances. See Hudson v. State, 992 So.2d 96, 116 (Fla.2008); Lynch, 841 So.2d at 372. The scope of review is limited "to ensuring that the trial court applied the correct rule of law, and if so, that there is competent, substantial evidence to support its findings" as to an aggravating factor. Caballero v. State, 851 So.2d 655, 661 (Fla. 2003) (citing Willacy v. State, 696 So.2d 693, 695 (Fla.1997)). For CCP to be found, the killing must be "the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification." Franklin v. State, 965 So.2d 79, 98 (Fla.2007). Although Gill was angry at not receiving the death penalty in the Beverly Moore murder, that anger was expressed not in frenzy, panic or rage, but in a long-simmering plan to kill an innocent person. Dr. Waldman, in his testimony presented before sentencing, testified that the arteriovenous malformation that was present in Gill's brain often manifests itself in rage; but when presented with the facts of this murder, Waldman saw no direct connection between the rage that can be associated with the brain lesion and the murder of Orlando Rosello.
Based on Gill's own version of the events of July 24, 2001, the physical evidence discovered at the scene, and his letters written well in advance of the murder, it is clear that Gill had a prearranged plan, as he put it in his letter to the Gainesville Sun reporter, to "kill the first inmate I came into contact with" simply because he did not get the penalty that he sought in the Beverly Moore case. Gill admitted that he made his final decision to kill Rosello in the early morning hours of July 24, 2001, and fashioned a weapon from a strip of torn bed sheet to use in strangling him. The record contains no indication that Gill acted in emotional frenzy, panic, or rage. Gill admits to coldly strangling Rosello while he slept.
*963 Moreover, Gill had ample time to reflect on his intended actions and to abandon the plan to kill Rosello, but did not do so. We have found heightened premeditation necessary for CCP in similar cases where the defendant had a period of reflection affording an opportunity to abandon the plan but, instead, "acted out the plan [he] had conceived during the extended period in which [the] events occurred." Alston v. State, 723 So.2d 148, 162 (Fla.1998) (quoting Jackson v. State, 704 So.2d 500, 505 (Fla.1997)); see also Welch v. State, 992 So.2d 206, 216 (Fla.2008) (finding CCP proven where the defendant wrote a note in advance threatening to kill the victims and had time for reflection and an opportunity to abandon the murders but did not do so).
Legally sufficient evidence also exists to support CCP where, as here, the defendant procures a weapon in advance, receives absolutely no resistance or provocation on the part of the victim, and carries out the killing as a matter of course. See Franklin, 965 So.2d at 98. Here, Gill fashioned a murder weapon in advance and killed Rosello, who provided no provocation and virtually no resistance. The record is also devoid of any evidence of a pretense of moral or legal justification. See id. at 99 ("Lack of resistance or provocation by the victim can indicate both a cold plan to kill as well as negate any pretense of justification.").
Competent, substantial evidence demonstrated that the murder of Orlando Rosello was clearly the result of a longstanding plan by Gill, who fashioned a murder weapon in advance and who had ample time to reflect on the proposed murder and abandon the plan, but did notand the murder was carried out in a cold manner as a matter of course, without pretense of justification. Thus, we conclude the court properly found CCP. Moreover, no evidence was presented connecting Gill's mental illness or his arteriovenous malformation directly to the murder. Therefore, relief is denied on this claim.
Proportionality of the Death Sentence
Gill's counsel also contends that because Gill is and has been mentally ill since his childhood, the trial court erred in relying on two aggravators that were based on the Beverly Moore murder conviction and sentence, which he claims were attributable to his lifelong mental illness. He also contends that the cold, calculated and premeditated aggravator (CCP) was also attributable to Gill's mental illness and should not have been heavily weighed by the trial court. Based on the record, we disagree with all these contentions and, as we explain below, conclude that when compared to other capital cases with similar aggravators and similar mental mitigation, Gill's sentence is proportionate.
This Court reviews the death sentence for proportionality "regardless of whether the issue is raised on appeal." England v. State, 940 So.2d 389, 407 (Fla. 2006); see also Fla. R.App. P. 9.142(a)(6). The death penalty is "reserved only for those cases where the most aggravating and least mitigating circumstances exist." Terry v. State, 668 So.2d 954, 965 (Fla. 1996). Therefore, in deciding whether death is a proportionate penalty, the Court makes a "comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence." England, 940 So.2d at 407-08 (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003) (citations omitted)). Accordingly, the Court considers the totality of the circumstances and compares the case with other similar capital cases. See Duest v. State, 855 So.2d 33, 47 (Fla.2003). This analysis "is not a comparison *964 between the number of aggravating and mitigating circumstances." Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Rather, this review entails a thoughtful and deliberate "qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis." Urbin v. State, 714 So.2d 411, 416 (Fla.1998).
Moreover, this Court "will not disturb the sentencing judge's determination as to `the relative weight to give to each established mitigator' where that ruling is `supported by competent substantial evidence.'" Blackwood v. State, 777 So.2d 399, 412-13 (Fla.2000) (quoting Spencer v. State, 691 So.2d 1062, 1064 (Fla.1996)). Here, Gill essentially contests the weight accorded the sentencing factors by the trial court and, in this respect, is asking this Court to reweigh the aggravators and mitigators, which we will not do.
The record clearly established that Gill is mentally ill and the State does not contest this fact. The trial court did not overlook or fail to find this uncontroverted mental mitigation, which was supported by competent, substantial evidence in the record. Cf. Nibert v. State, 574 So.2d 1059, 1062 (Fla.1990) (finding the trial court erred in failing to find and weigh mitigation that was reasonably proven). To the contrary, the court recognized the fact that Gill was mentally ill and had a long history of mental and behavioral problems; and the trial court accorded the statutory mental mitigation substantial and great weight. The court expressly recognized that "[t]he Defendant has suffered a lifelong emotional disturbance frequently manifesting itself in anger or in inability to follow ordinary rules of behavior." In addition to finding these two statutory mitigators, the trial court also found certain nonstatutory mitigation involving Gill's arteriovenous malformation. The sentencing order states: "Defendant suffers from a brain anomaly. Defendant's behavior may have been affected throughout his life by an arteriovenous malformation which presses on the [amygdala], a gland which controls impulse behavior including rage." However, the trial court concluded, based on competent, substantial evidence in the record, that the murder of Rosello was neither impulsive nor due to uncontrollable rage. This nonstatutory mitigator was given "weight, but not great weight." We conclude that the trial court did not abuse its discretion in weighing the statutory and nonstatutory mitigation present in the record. See Smith v. State, 998 So.2d 516, 527 (Fla. 2008) ("We review the weight the trial court ascribes to mitigating factors under the abuse of discretion standard."). We will not reweigh these mitigators.
Nor will we reweigh the three aggravators that the trial court found were proven: (a) Gill was under a life sentence for the Beverly Moore murder at the time of the Rosello murder; (b) Gill had previously been convicted of another capital felony, i.e., the murder of Beverly Moore; and (c) the killing was cold, calculated and premeditated. Competent, substantial evidence supports these aggravators and we conclude that the trial court did not abuse its discretion in assigning "great weight" to these aggravating factors. See Buzia v. State, 926 So.2d 1203, 1216 (Fla.2006) ("The weight to be given aggravating factors is within the discretion of the trial court, and it is subject to the abuse of discretion standard.").
After conducting its analysis and weighing the sentencing factors, the court concluded that "[d]espite the fact [that] RICARDO IGNACIO GILL is a deeply troubled individual with a long history of mental health problems, mental disturbances, suicidal impulses, and a life primarily spent in penal institutions ... the *965 magnitude of Defendant's aggravating factors outweigh[s] the magnitude of Defendant's statutory mitigating factors and non-statutory mitigating factors." We find no error in the weighing process conducted by the trial court. We turn now to the qualitative analysis and comparison to other capital cases that we are required to make.
The existence of mental illness or mental mitigation does not automatically disqualify a defendant from receiving the death penalty. This Court has upheld death sentences in comparable cases in which the trial court found mental mitigation, including where the defendant has a history of mental illness or brain damage. In Rodgers v. State, 3 So.3d 1127 (Fla. 2009), a case somewhat similar procedurally to this case, Rodgers pled guilty, waived a sentencing jury, and waived mitigation during his penalty phase proceeding. Rodgers sought the death penalty because, as he explained, he did not want to spend the rest of his life in prison. We upheld the death sentence in Rodgers where one statutory mitigator and numerous nonstatutory mitigators, including "an extensive history of mental illness," id. at 1133, were weighed against two aggravating factors. Similarly, in Hauser v. State, 701 So.2d 329 (Fla.1997), Hauser entered a plea of guilty to the strangulation murder, waived a penalty phase jury, and instructed his lawyer not to present mitigation. Id. at 330. Just as in this case, the trial court in Hauser met its obligation to consider mitigation contained in the record and proffered by counsel and found in mitigation that Hauser had a history of mental problems. The trial court weighed three aggravators against one statutory mitigator and four nonstatutory mitigators, including Hauser's history of mental health problems since age fourteen, and imposed the death sentence. Id. We concluded that the sentence was proportionate and affirmed.
In Davis v. State, 2 So.3d 952 (Fla.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2872, 174 L.Ed.2d 585 (2009), we upheld the death sentence as proportionate where the trial court found in mitigation that Davis suffered from both brain damage and chronic mental illness. In affirming, we concluded that there was no evidence that the murder was the result of emotional disturbance or severe mental illness. Id. at 965-66. Just as in Davis, there was no evidence in this case linking the Rosello murder to Gill's brain anomaly or his history of chronic mental illness.
Although these cases indicate the sentence in this case is proportionate, Gill contends that the circumstances in his case are comparable to those in a number of cases involving mental mitigation where this Court vacated the death sentence. We disagree that the circumstances are comparable. He first cites Cooper v. State, 739 So.2d 82 (Fla.1999), which involved three aggravators (conviction of a violent felony committed several days after the murder, commission of murder during a robbery and for pecuniary gain, and CCP). These aggravators were weighed against substantial mitigation appearing in the record, including the fact that Cooper was only eighteen years old at the time of the murder, had no prior criminal activity, had brain damage, was borderline mentally retarded, and was mentally ill with paranoid schizophrenia. This Court found the death sentence disproportionate in Cooper because the evidence showed that it was not one of the least mitigated cases but, to the contrary, was one of the "most mitigated." Id. at 86. In contrast, Gill was thirty-one years old when he committed the Rosello murder, and he had an average IQ. Moreover, Gill had an extensive criminal background at the time of the murder. Thus, the circumstances in Cooper are not comparable to those in the instant case and do not indicate that Gill's sentence is disproportionate.
*966 Gill also cites Crook v. State, 908 So.2d 350 (Fla.2005). There, in vacating the death sentence, we found as we did in Cooper that the case was "one of the most mitigated." Id. at 356. Crook was only twenty when he committed the murder, was borderline mentally retarded, and suffered an abusive childhood; and there was unrebutted evidence of frontal lobe brain damage and substance abuse problems. The evidence showed Crook's brain damage, probably caused by being beaten with a pipe as a child, was directly related to lack of impulse control and rage, and that his damaged brain would have been affected by his consumption of beer, crack cocaine, and marijuana before the murder. Id. at 354-55. Significantly, the mental health experts in Crook related the rage and brutal conduct evident in the murder to Crook's brain damage and mental deficiencies. Id. at 358. Even though there were three substantial aggravators, the record in Crook showed "overwhelming mitigation, especially the mental mitigation related to the circumstances of the crime." Id. at 358 (emphasis added). In contrast, in the instant case, none of the mental health experts tied Gill's mental illness directly to the Rosello murder; and Dr. Waldman testified that, based on the circumstances of the crime, it was not likely that the arteriovenous malformation in Gill's brain was causally connected to the Rosello murder. Therefore, Crook is not dispositive of the question of proportionality in the instant case.
Several other cases Gill relies upon to argue that his sentence was not proportionate were single aggravator cases in which substantial mitigation was proven. "We have in the past affirmed death sentences that were supported by only one aggravating factor, but those cases involved either nothing or very little in mitigation." Besaraba v. State, 656 So.2d 441, 446 (Fla.1995) (quoting Songer v. State, 544 So.2d 1010, 1011 (Fla.1989)). Gill's case is not one in which only one aggravator was found and then weighed against substantial mitigation. The instant case involves three strong aggravators weighed against the mitigation found in this case, where no evidence tied the crime directly to Gill's mental problems or brain malformation. Nor was there any evidence presented in this case that the Beverly Moore murder, which formed the basis for two of the aggravators in his case, was causally linked to Gill's mental illness such that the two aggravators should have been diminished in weight or not found.[17] The trial court found that the three heavily weighted aggravators outweighed the statutory and nonstatutory mental mitigation in the case, justifying the sentence of death. We will not disturb this finding. Accordingly, based on the foregoing, we hold that the sentence of death is proportionate in this case.
Capital Sentencing and Ring
Gill contends that the death penalty was improperly imposed on him in violation of the principles announced in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The Supreme Court in Ring held that a capital defendant has a Sixth Amendment right to a jury determination of all facts on which the Legislature conditions an increase in the maximum punishment. Id. at 589, 122 S.Ct. 2428. Gill's claim must fail. Gill waived a sentencing jury in this case and, because his waiver was knowing, intelligent and voluntary, he therefore waived any challenge to his sentencing based on Ring. See Bryant v. State, 901 So.2d 810, *967 822 (Fla.2005) ("Because appellant requested and was granted a penalty phase conducted without a jury, he has not and cannot present a claim attacking the constitutionality of Florida's death penalty scheme under ... Ring." (quoting Lynch v. State, 841 So.2d at 366 n. 1)).[18] Accordingly, relief is denied on this claim.
CONCLUSION
After a review of the issues raised by Gill and our independent review of the sufficiency of the evidence and the knowing, intelligent, and voluntary nature of Gill's plea, we affirm Gill's conviction for first-degree murder and the sentence of death.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.
PERRY, J., did not participate.
NOTES
[1] We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
[2] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (requiring a hearing to determine if an accused's unequivocal request for self-representation should be granted).
[3] In Ring, the Supreme Court held that a defendant has a Sixth Amendment right to have a jury find all facts upon which the Legislature conditions an increase in the maximum punishment. See 536 U.S. at 589, 122 S.Ct. 2428.
[4] Because the conviction for which the death penalty was imposed in this case was the result of Gill's guilty plea, our mandatory review "shifts to the knowing, intelligent, and voluntary nature of that plea." Tanzi v. State, 964 So.2d 106, 121 (Fla.2007) (quoting Winkles v. State, 894 So.2d 842, 847 (Fla.2005)); see also Guardado v. State, 965 So.2d 108, 118 (Fla.2007); Lynch v. State, 841 So.2d 362, 375 (Fla.2003); Ocha v. State, 826 So.2d 956, 965 (Fla.2002).
[5] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).
[6] He also said he wrote and mailed "about ten letters" to his family and to his lawyers. He said the letters mentioned "an incident that you will be aware of by the time you get this letter."
[7] Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) (establishing procedure for handling complaint that appointed counsel is incompetent, adopted in Hardwick v. State, 521 So.2d 1071, 1075 (Fla. 1988)).
[8] The hearing was held in an unrelated Alachua County case that involved Gill, his same defense counsel and the same trial judge. Gill's brief refers to this hearing as "a joint hearing in both cases."
[9] The State presented evidence that the murder was committed while Gill was under a sentence of imprisonment and that Gill had previously been convicted of violent felonies by presentation of judgments and sentences, without objection, for Alachua County case number 1999-2277-CFA (Beverly Moore first-degree murder with a life sentence); Gilchrist County case number 21-2000-CF-0007 (attempted first-degree murder); Alachua County case number 2000-2185-CFA (battery on a law enforcement officer); Alachua County case number 1999-4240-CFA (battery on detention staff); Orange County case number CR86-5568 (burglary of a dwelling with battery); and Orange County case number CR86-6240 (burglary of a dwelling with an assault and robbery). The State also presented Gill's confession to the Florida Department of Law Enforcement and, without objection, a letter Gill sent to the prosecutor in the Moore case, letters Gill sent to Judge Morris both before and after the Rosello murder, and a letter Gill sent to the Gainesville Sun newspaper in which he admitted the Rosello murder and attempted to explain his reasons.
[10] The mitigation included: a defense memorandum filed in the Beverly Moore case by Gill's defense counsel; the mental mitigation contained in the sentencing order in the Beverly Moore case; numerous competency and mental health reports prepared during these proceedings and others; Alachua County Sheriff's records of three suicide attempts by Gill; a presentence investigation report for two Alachua County cases; Gill's employment records; Gill's medical records of treatment and hospitalizations during his early years; Dr. Alan Waldman's report regarding Gill's arteriovenous brain malformation; and hospital records concerning the hemorrhage of Gill's arteriovenous malformation. The trial court also ordered and reviewed a presentence investigation report prepared for this case.
[11] The amygdala is "one of the four basal ganglia in each cerebral hemisphere that is part of the limbic system." Merriam-Webster's Collegiate Dictionary 40 (10th ed.1994). The "limbic system" is a "group of subcortical structures (as the hypothalamus, hypocampus, and the amygdala) of the brain that are concerned esp. with emotion and motivation." Merriam-Webster's Collegiate Dictionary 675 (10th ed.1994).
[12] "Interictal" means "occurring between seizures." Merriam-Webster's Medical Dictionary 364 (2006).
[13] Florida Rule of Appellate Procedure 9.142(a)(6) expressly provides that "[i]n death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief." Id.
[14] The court's competency determination was also made before Gill was allowed to represent himself pursuant to his Faretta requests. None of these rulings has been challenged in this appeal.
[15] At the time Gill entered his guilty plea, the rule had not yet been amended to require the trial court to advise the defendant that a plea may subject a defendant to involuntary civil commitment as a sexually violent predator if the defendant has been convicted of a qualifying sexual offense. See Fla. R.Crim. P. 3.172(a)(9) (2005) (effective Oct. 1, 2005); In re Amendments To Florida Rule of Criminal Procedure 3.172, 911 So.2d 763, 765 (Fla. 2005).
[16] Although our mandatory review in this case shifted to the knowing, intelligent and voluntary nature of his guilty plea, we note that the factual basis provided for the plea, including Gill's comprehensive confession to the Florida Department of Law Enforcement and his confession letters, provided competent, substantial evidence to support his conviction for the first-degree murder of Orlando Rosello.
[17] Testimony in the Moore case indicated that Gill told someone in advance of the murder that he was going to Moore's house to get money and that if she did not cooperate, he would kill her.
[18] The standard of voluntariness for waiver of a sentencing phase jury is the same standard as that for waiving a jury trial. Bryant, 901 So.2d at 822 (citing Tucker v. State, 559 So.2d 218, 219 (Fla.1990)). The record reflects that Gill's waiver of a sentencing jury was made voluntarily in open court after a full colloquy discussing the rights and benefits he would be waiving by allowing the sentencing hearing to proceed before the judge alone. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1588875/ | 706 F.Supp. 477 (1988)
WILLOW RIDGE LIMITED PARTNERSHIP, Plaintiff,
v.
STEWART TITLE GUARANTY COMPANY, Defendant.
Civ. A. No. E86-0132(L).
United States District Court, S.D. Mississippi, E.D.
April 20, 1988.
*478 William C. Walker, Jr., University, Miss., for plaintiff.
David W. Dogan, III, Daniel, Coker, Horton & Bell, Jackson, Miss., for defendant.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This action was brought by Willow Ridge Limited Partnership (Willow Ridge), the insured under a policy of title insurance, against Stewart Title Guaranty Company (Stewart Title), the insurer, alleging breach of the policy and seeking actual and punitive damages. The case was tried by the court sitting without a jury. Upon the evidence presented at trial, the court finds as follows.
Plaintiff Willow Ridge purchased an apartment complex within the City of Meridian, Mississippi on April 23, 1985. At the time of its purchase, the apartments were still under construction by Bubber Wallace d/b/a Wallace Builders and Developers. The project was financed by a bond issue of Lauderdale County, Mississippi, which was secured by a first deed of trust in favor of First Alabama Bank and backed by a letter of credit issued in favor of First Alabama Bank by First Guaranty Savings Bank in Hattiesburg, Mississippi. First Guaranty also held a deed of trust on the property. The project, known as Hanover Square, was developed by Bubber Wallace and owned by Hanover Square, Limited, a Wallace entity.
In his efforts to sell the property, Wallace enlisted the aid of Louis Vance, an attorney/businessman, who put him in contact with John Gorecki, the individual in charge of acquisitions for Quadel Corporation, a privately held corporation. Quadel determined to acquire the project and formed a limited partnership, Willow Ridge, for purposes of the acquisition. Financing was arranged through the Bank of Meridian for the downpayment of $600,000, together with an assumption by Willow Ridge of the debt under the bonds and the letter of credit. The loan was to be secured by a third deed of trust on the property, and the Willow Ridge principals, Norman Watson and Thomas Webb, executed personal guarantees for the debt.
Ed Tonore, an attorney and an agent for Stewart Title, was retained to perform a title examination and provide a policy of title insurance on the property. Tonore's examination of title to the property revealed the Bank of Alabama and First Guaranty deeds of trust. Tonore found no liens for laborers or materialmen, but because the project was still under construction, he secured an owners and contractors affidavit from the owner, Bubber Wallace, that there were no unrecorded liens. Tonore issued a commitment to insure the property on April 23, 1985; under instruction from Willow Ridge representatives and with the authority of Stewart Title, Tonore deleted an exception which would otherwise have excluded from coverage liens for *479 material or labor.[1] Consequently, there was coverage for unrecorded materialmen's liens. On May 2, the closing date,[2] Willow Ridge took the property by warranty deed, which was recorded on that date, and an owner's policy was issued in favor of Willow Ridge by Tonore, which, like the commitment, did not include the standard exception for unrecorded materialmen's liens.
After Willow Ridge purchased the property, materialmen, on July 27, 1985, began filing liens, and from that time until August 14, 1985, approximately $900,000 in alleged materialmen's and laborors' liens were filed of record in Lauderdale County against the insured property. On August 14, Willow Ridge informed Stewart Title that liens were being filed against the insured property,[3] following which Stewart Title on September 17 retained Ronnie Walton of the law firm of Williams, Glover, Walton and MacAlilly to represent the interests of Willow Ridge.[4] However, Walton learned that on September 13 the Bank of Meridian had instituted foreclosure proceedings against the insured property and scheduled the foreclosure sale for October 7. After ruling out other alternatives for remedying the lien problem, Willow Ridge sought to enjoin the foreclosure. At the hearing on October 7, Willow Ridge and the Bank of Meridian entered into an agreement under the terms of which Willow Ridge agreed to dismiss its suit to enjoin in exchange for the Bank of Meridian's granting Willow Ridge the right of first refusal to buy the property back from the bank upon completion of construction[5] and additionally releasing Willow Ridge principals Webb and Watson from their personal guarantees and the $100,000 letter of credit. The foreclosure sale proceeded and the Bank of Meridian bought the subject property for $100,000.
A clear understanding of the parties' activities preceding the foreclosure is essential to a resolution of this case. According to Walton, when Dogan originally retained him to represent Willow Ridge, Dogan indicated that he was to file suit against Bubber Wallace[6] and to represent the interests of Willow Ridge and Quadel in defense of any suits brought by any materialmen. On September 23, Walton learned of the Bank of Meridian's pending foreclosure. Faced with the time constraints imposed by virtue of the scheduled foreclosure, Walton began considering alternative ways in which to prevent or at least postpone the foreclosure in an effort to buy time so that an arrangement could be worked out with the subcontractors on their lien claims. His main concern, he testified, was to stop the foreclosure. To that end, Walton had numerous discussions with David Dogan, the subcontractors and the Bank of Meridian.
In his discussions with the Bank of Meridian, the Bank indicated a willingness to discontinue the foreclosure proceeding if Webb and Watson, the principals of Willow Ridge, would furnish additional personal guarantees. However, Walton and Willow *480 Ridge, not wanting to increase the personal exposure of Webb and Watson, concluded that acceptance of the Bank's proposal was not a "practical" method for stopping the foreclosure. Walton additionally tried to persuade the subcontractors, to no avail, that it was in their best interest to take some action to stop the foreclosure.
Another option available to Willow Ridge and the one which Stewart Title believed was the most logical,[7] was to file suit to remove the liens as a cloud on Willow Ridge's title. Stewart Title thought such a suit would be successful based on its opinion that the liens, which were filed after the date of Willow Ridge's purchase of the property, were invalid as to Willow Ridge since it was a bona fide purchaser for value without notice. Stewart Title thus requested or instructed that Walton file whatever lawsuits were necessary to remove the liens as clouds. Willow Ridge however, while concurring in the opinion that the liens were invalid, concluded that immediately suing the subcontractors or Bubber Wallace was not an option or at least not a practical one; as a matter of economics, the subcontractors were needed to complete the work on the project. In response to these concerns, Dogan "rescinded" the instructions he had given Walton to file suit to remove cloud and instead informed Walton that Stewart Title would honor the terms and obligations of the policy in defending and prosecuting claims and that Walton should do what he thought was in the best interest of Willow Ridge. That is, neither he nor Stewart Title would instruct Walton as to how to proceed.[8] Dogan at trial explained that he still wanted Walton to file suit against the lien claimants but did not want Walton to perceive him as dictating the course of action.
After ruling out a number of alternatives, including that suggested by Stewart Title, Walton concluded there were four options available to Willow Ridge:
(1) Willow Ridge could put additional money in to complete the project;
(2) It could allow the foreclosure to proceed and walk awayto keep from throwing "good money after bad"to minimize losses;
(3) It could file suit to enjoin the foreclosure to "buy time" to determine if something could be worked out to allow completion of the project; and a final alternative was
(4) Willow Ridge's filing for bankruptcy protection.
Weighing these options, Willow Ridge and Walton decided that a suit to enjoin the foreclosure was its best option.[9] However, the foreclosure sale did ultimately proceed as described hereinabove. The Bank of Meridian filed suit against the lien claimants to clear title immediately after taking the property at foreclosure. The lienors reacted by filing an involuntary petition to place Willow Ridge, Bubber Wallace and Hanover Square in bankruptcy; included in the petition was a claim against the Bank of Meridian. Willow Ridge ultimately secured its dismissal from the bankruptcy action, since it no longer owned the property, following which Willow Ridge brought this action for recovery under the policy issued by Stewart Title.[10]
A policy of title insurance, like any other contract of insurance, is an agreement to indemnify in the event of a loss *481 occasioned by a risk insured against under the terms of the policy. 9 J. Appleman, Insurance Law and Practice § 5201 (1981). Under the policy at issue in the case at bar, Stewart Title insured as of May 2, 1985 (the date of the policy) against
loss or damage ... and costs, attorneys' fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by reason of:
(2) any defect in or lien or encumbrance on such title;
* * * * * *
(4) unmarketability of such title.
The policy also imposed on Stewart Title certain defense obligations:
[The] Company at its own cost and without undue delay, shall provide for the defense of an insured in all litigation consisting of actions or proceedings commenced against such insured, or a defense interposed against an insured in an action to enforce a contract for the sale of its estate or interest in said land, to the extent that such litigation is founded upon an alleged defect, lien, encumbrance, or other matter insured against by this policy.
In this lawsuit, Willow Ridge alleges that title was defective and unmarketable when Stewart Title issued the policy on May 2, 1985 because of the unrecorded materialmen's liens; that Stewart Title, after being timely notified of the liens, failed and refused to clear the title of the defect caused by the liens; that the defect in the title contributed to the foreclosure of the property by the Bank of Meridian; and that because of Stewart Title's refusal to clear the title and later to defend against the foreclosure, Willow Ridge suffered loss and damage. Reduced to its essentials, Willow Ridge's position is that as a result of the liens, coupled with complete inaction on the part of Stewart Title, it lost the insured property through the foreclosure sale and is entitled under the policy to all loss occasioned by its having lost the property. Stewart Title takes the position that it has never denied coverage to Willow Ridge for any loss it suffered by reason of the liens on the property, that its duty to pay never arose, that the foreclosure by the Bank of Meridian was not because of any defect in title, and that because Willow Ridge lost title to the property as a result of the foreclosure, Willow Ridge's loss is not covered by the title policy.
The question for consideration by the court is whether, under the facts presented, Stewart Title is obligated by the terms of the policy to pay for alleged losses by Willow Ridge based on an alleged defect in or lien or encumbrance on Willow Ridge's title. A further issue is whether Stewart Title breached its duty to defend Willow Ridge. Willow Ridge proposes a number of courses which it claims Stewart Title should have taken to prevent the foreclosure and Willow Ridge's consequent loss, including paying the lien claimants to discharge the liens, filing a suit to remove cloud and defending Willow Ridge against the foreclosure.
Dogan stated at trial that payment of the lien claimants was an option for Stewart Title; however, it declined to do so since it believed the liens were invalid. Stewart Title claims that its refusal to pay the claims which were the subject of the liens asserted against the property was not a breach of its policy duties. Specifically, Stewart Title urges that it was not required to pay since the liens were, in the opinion of both Stewart Title and Willow Ridge, not valid against the property for the reason that Willow Ridge took the property as a bona fide purchaser for value without notice of the liens. Walton acknowledged that Willow Ridge and Stewart Title had always taken the position that Willow Ridge was a bona fide purchaser without notice such that the liens which were filed after it acquired title did not attach and were not valid as to Willow Ridge.
It is not for this court to determine the validity vel non of the liens; the lienors would be necessary and indispensable parties to any action in which that decision *482 were undertaken to be made.[11] However, the court is of the opinion that under these circumstances, where not only the insurer but also the insured denied the validity of the liens, it was not incumbent upon Stewart Title to pay the amounts claimed by the lienors without a determination of the liens' validity.[12] In fact, under the clear terms of the policy, a claim did not arise and was not maintainable and hence Stewart Title's obligation to pay did not arise "until there has been a final determination by a court of competent jurisdiction ... adverse to the title, as insured." In the case at bar, the foreclosure and transfer of title to the Bank of Meridian occurred before there was any determination as to the validity of the liens. In fact, to date there has been no such determination.[13] Hence, it would seem that Stewart Title's duty to pay never arose. See Bronen v. New York Abstract Co., 19 A.D.2d 821, 243 N.Y.S.2d 664 (1963) (under identical language, held condition precedent to policy was final determination adverse to title insured); American Legion Ed Brauner Post No. 307, Inc. v. Southwest Title and Ins. Co., 253 La. 608, 218 So.2d 612 (1969) (under similar provision, holding that insurer must respond in loss suffered by insured only after its liability had been definitely fixed). Consequently, Stewart Title did not breach its obligations under the policy by failing to obtain discharge of the liens.
With reference to what Willow Ridge characterizes as Stewart Title's "duty" to file suit to remove the liens as clouds, the policy grants the company
the right at its own cost to institute and without undue delay prosecute any actions or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest as insured, and the Company may take any appropriate action under the terms of this policy, whether or not it shall be liable thereunder, and shall not thereby concede liability or waive any provision of this policy. (emphasis added).
Willow Ridge reasons that
[t]he policy requires that ... any attempt to clear title be commenced without undue delay.... Thus, Defendant had a duty to attempt to clear the title by removing the liens prior to the foreclosure sale.
Plaintiff's Proposed Findings of Fact and Conclusions of Law, at pp. 7-8.
Where the language of a policy of insurance, including title insurance, is ambiguous, "a reasonable construction in favor of the insured is indicated." Great American Ins. Co. v. Bass, 208 Miss. 436, 439, 44 *483 So.2d 532, 533 (1950). Here, however, the language of the policy is clear and unambiguous. While a suit to clear title was an option available to Stewart Title, it was an option and nothing more than that. See Childs v. Mississippi Valley Title Ins. Co., 359 So.2d 1146 (Ala.1978) (company owed no duty to take affirmative action to clear title); Securities Service, Inc. v. Trans-america Title Ins. Co., 20 Wash.App. 664, 583 P.2d 1217 (1978) (no duty to clear title). But see Summonte v. First American Title Ins. Co., 180 N.J.Super. 605, 436 A.2d 110 (1981) (company had obligation to remove judgment lien). Of course, had Stewart Title chosen to attempt to clear title, it would have been required to do so without undue delay. Thus, contrary to Willow Ridge's assertion, it was not a breach of the terms of the policy for Stewart Title not to file such a suit.
The court notes that the policy coverage was not illusory by virtue of the optional nature of this provision since the insured also had an option of filing suit to clear title at company expense.[14] In fact, Stewart Title did suggest to Willow Ridge, via Ronnie Walton, that it file a suit to clear title. Yet Willow Ridge chose not to take that route, despite Stewart Title's urging. It is curious that Willow Ridge would now complain of Stewart Title's failure to attempt to remove the liens as clouds when Stewart Title provided counsel for Willow Ridge and suggested to Willow Ridge that it file suit, yet Willow Ridge, well aware that such a suit was an available option, chose not to do so.
Willow Ridge claims that the defect in title, i.e., the liens, contributed to the foreclosure of the property by the Bank of Meridian and that because of Stewart Title's refusal to clear title and defend against the foreclosure, Willow Ridge suffered loss for which it is entitled to recover. Willow Ridge acknowledges that Stewart Title hired counsel, Walton, to represent Willow Ridge and characterizes that as a "step in the right direction;" yet it argues that prior to the foreclosure, Stewart Title attempted to interfere with Walton's loyal representation of Willow Ridge and that ultimately, Stewart Title "cut [Walton] loose." Walton, at trial, explained that in the days immediately preceding the foreclosure, he perceived that the relationship between Stewart Title and Willow Ridge had become adversarial. Contributing to this perception was Stewart Title's withdrawal of its prior instruction to Walton that he file suit to clear title.[15] Additionally, Walton testified that on October 4 Willow Ridge communicated to Dogan a settlement figure of $1,464,075.31 which was rejected. There was also discussion concerning the possibility of Stewart Title's paying $600,000, representing the debt to the Bank of Meridian. Walton felt that the claim would be settled for that amount, but a settlement did not materialize. Instead, Dogan indicated that there would be no settlement. According to Walton, Stewart Title's position on October 4 was that its obligation was to defend and prosecute; it was not going to see that the Bank of Meridian debt was paid since the debt was, in its opinion, not its obligation under the policy. Further according to Walton, Stewart Title was taking the position that it was not obligated under the policy to assist in stopping the foreclosure and was therefore going to permit it to proceed and would simply fall back on the Bank of Meridian's mortgagee policy, which Stewart Title had also issued, when the bank took the property at foreclosure. At that point, Walton felt that the interests of Willow Ridge and Stewart Title had diverged into an adversarial relationship.
In his testimony, Dogan explained that Stewart Title had rescinded its previous instructions to Walton about clearing title, but claimed that this was done in order that Walton could control his representation of his client and use his own independent judgment in determining what course *484 to take. And, although Stewart Title did withdraw its "instruction" that Walton sue to clear title, it did not withdraw authorization for such a suit. From Walton's testimony it is clear that he did not perceive that to be the case, as he stated that Dogan had "just rescinded the notion that he was instructing me" as to what to do. Dogan further explained that Stewart Title had rejected the settlement figure suggested by Willow Ridge ($1,464,075) because he and Stewart Title considered it too high, and Dogan agreed that Stewart Title had determined not to pay the note of the Bank because it was the title, not the debt, which was insured by the policy. Dogan denied, however, that Stewart Title told Walton that it intended to let the foreclosure proceed or that the company otherwise withdrew its support from Willow Ridge. The court credits his testimony and observes that while Walton may have perceived the relationship with Stewart Title to have become adversarial, that does not appear to have been the case in fact. Moreover, Walton acknowledged that he understood at all times his duty was to represent and act in the best interest of his client, Willow Ridge. And there has been no contention by Willow Ridge that it received anything less than complete and loyal assistance of counsel to protect its interest. In the court's opinion, Stewart Title discharged its duty to defend the foreclosure proceeding, if such a duty existed,[16] since Ronnie Walton was retained by the company for the purpose of protecting the interest of the insured.[17]
The owner's policy issued by Stewart Title covers losses incurred "by reason of" any lien on the title. Willow Ridge claims that the foreclosure was a proximate result of the liens, arguing that the project shut down because Wallace could not pay the materialmen who therefore filed notices of liens. Because the project then shut down, no further payments to the lenders were made and the Bank of Meridian sought to foreclose to secure its position. However, in the court's opinion, Willow Ridge failed to prove that the foreclosure was caused by the existence of the liens. Rather, it appears that the occurrence which was the primary precipitating cause was the failure of Willow Ridge to service the debts owed to First Guaranty and First Alabama Bank. The evidence showed that Willow Ridge, upon purchasing the property, assumed the obligations of the debts to First Guaranty and Alabama Bank, including the debt service obligations. In a separate contract with Bubber Wallace, Willow Ridge and Wallace agreed that Wallace would service the debts. Yet he failed to do so, thereby placing the debts in default. First Guaranty threatened to foreclose as a result of that failure of payment which, as far as First Guaranty was concerned, was a failure by Willow Ridge. The Bank of Meridian was notified that First Guaranty intended *485 to foreclose and, as a junior lienor, determined to institute foreclosure proceedings to avoid being cut off by a foreclosure by First Guaranty. That is, the Bank of Meridian was pressured by First Guaranty to foreclose since, if the Bank of Meridian did not, First Guaranty would. And, although the Bank of Meridian note was not yet due at the time of the foreclosure, a clause in its deed of trust allowed it to call the debt due if it in good faith deemed itself insecure and its prospects of payment impaired. Willow Ridge asserts that the basis for the Bank's deeming itself insecure was the existence of the liens. However, the reason for the foreclosure by the Bank of Meridian was to prevent losing its rights in the event of a foreclosure by First Guaranty; and there was no indication that First Guaranty would have declined to foreclose had the lien problem been cured because the First Guaranty debt would still have been in default.[18] The court is not persuaded from the evidence presented that the foreclosure and consequent loss to Willow Ridge was "by reason of" the materialmen's liens.[19]
Furthermore, even assuming the foreclosure was an end result of the lien problem, the evidence presented at trial revealed that Willow Ridge could have stopped the foreclosure, but ultimately made a conscious business decision not to do so. Walton testified that in the week preceding the scheduled foreclosure, his main concern and objective was to stop, or postpone, the foreclosure. To that end, he had numerous conversations with Dogan, the subcontractors and the Bank of Meridian. The Bank of Meridian indicated a willingness to discontinue the foreclosure if Webb and Watson would give additional personal guarantees, but, because Willow Ridge did not want to subject them to greater exposure in the project, it concluded not to take that approach. Instead, Willow Ridge did file suit to enjoin the foreclosure as a way to "buy time," but at the last minute, worked out an arrangement with the Bank of Meridian to let the foreclosure proceed. Walton expressed that he had been concerned that if the judge did grant Willow Ridge's relief, i.e., enjoin the foreclosure, but required a large bond, the company might have difficulty in posting the bond. Willow Ridge now claims that it was forced to settle with the Bank of Meridian since Willow Ridge was not able to provide an injunction bond. However, Walton did not say Willow Ridge could not make a bond, and in fact conceded that it could have posted the bond. However, Willow Ridge did not think it was practical to do so. In sum Willow Ridge could have prevented the foreclosure, but chose not to.
Stewart Title claims that the foreclosure by which Willow Ridge lost title to the property terminated the policy. Willow Ridge, however, asserts that Stewart Title's failure following the foreclosure to discharge its obligations under the policy, both to defend and to pay, and its decision that it was not obligated to Willow Ridge for anything occurring after the foreclosure, were without authority in the policy. The policy specifically provided that
the coverage of this policy shall continue in force as of Date of Policy in favor of an insured [1] so long as such insured retains an estate or interest in the land, or [2] holds an indebtedness *486 secured by a purchase money mortgage given by a purchaser from such insured, or [3] so long as such insured shall have liability by reason of covenants of warranty made by such insured in any transfer or conveyance of such estate or interest; provided, however, this policy shall not continue in force in favor of any purchaser from such insured of either said estate or interest or the indebtedness secured by a purchase money mortgage given to such insured. (emphasis supplied).
The clear and unambiguous import of this passage is that once the insured's interest in the land ceases, the coverage under the policy terminates. Hence, once Willow Ridge lost title to the property through foreclosure, it no longer had any legal interest in the property and the policy was rendered ineffective.[20] And, since there was never a determination as to the validity of liens prior to the foreclosure, Stewart Title's duty to pay based on the alleged defect never arose.[21]
Willow Ridge also raises an issue in this lawsuit concerning whether title to the property was marketable at the time the policy was issued since the policy provides coverage for loss or damage sustained by reason of unmarketability of title. Willow Ridge alleges that its title was unmarketable because of the unrecorded laborors' and materialmen's liens and that it has therefore sustained a loss under its policy. Stewart Title, on the other hand, contends that title was marketable as of the date the policy was issued and consequently, the coverage obligation for unmarketability of title never became operative.[22]
Title is marketable if it is free from reasonable doubt and is a title which a reasonable, well informed buyer would be willing to accept. See Jones v. Hickson, 204 Miss. 373, 37 So.2d 625, 620 (1948). The question then is whether a buyer such as Willow Ridge, which was unaware of the existence of unrecorded liens, could be considered well informed. The parties agree that had the fact of the unrecorded liens been known at the time the policy was issued, title would have been unmarketable. Stewart Title nevertheless asserts that Willow Ridge was well informed, despite its lack of knowledge of the liens, since all the normal title examination procedures were followed and no liens were revealed. That is, it appears to take the position that absent negligence or some omission on its part in failing to discover defects in title, the buyer/insured must be considered well informed. In the court's *487 view, the term well informed would ordinarily presuppose knowledge by the buyer of matters that could subject the title in question to litigation. The unrecorded liens at issue in the case at bar clearly fall within this category. The correctness of defendants' assertion is not determinative[23] since even if title were unmarketable, Willow Ridge would not automatically be entitled to recover under the policy. The unmarketability must have caused a loss to the insured.
Here, the unmarketability, if any, was caused by the existence of liens, but as this court has previously held, there was no showing by Willow Ridge that the liens caused Willow Ridge's loss. That is, the analysis of Willow Ridge's unmarketability claim is similar to that for its claim of a lien defect. One notable difference, however, is that as to Willow Rige's claim that a lien defect caused its loss, an issue arises as to the validity of the liens and the policy requires a determination of validity before the duty to pay arises. With reference to unmarketability, the mere existence of the liens, whether valid or not, is sufficient to render title unmarketable. That does not, however, obviate the necessity of proof on the issue of causationthere must be a causal connection between the unmarketability and the loss sustained. The court finds that Willow Ridge has failed to demonstrate such a connection and consequently, Willow Ridge may not recover under the policy on its claim of unmarketability.
Because, in the court's opinion, plaintiff has failed to establish any breach by defendant of its obligations under the policy, it follows that plaintiff's claim for punitive damages for tortious breach of contract by defendant must fail.
Based on the foregoing, the court finds that plaintiff's complaint against the defendant should be dismissed with prejudice. A separate judgment shall be entered in accordance with Federal Rule of Civil Procedure 58.
NOTES
[1] In section 2 of Schedule B of the commitment and the policy, subparagraph (d), which provided that the title policy issued would contain an exception for "any lien, or right to a lien, for services, labor or material hereto or hereafter furnished, imposed by law and not shown by the public records," was lined through and initialed by Tonore. This court has previously determined that Tonore was authorized to make the deletion.
[2] The closing was originally scheduled for April 22 but was delayed because all of the documentation was not complete.
[3] By letter, Willow Ridge advised Stewart Title of the liens, stating "if these liens, claims and stop notices are not cleared up in prompt fashion, then the undersigned will suffer substantial losses...."
[4] When David Dogan, counsel for Stewart Title, first contacted Walton in mid-September, he requested that Walton check the status of the land records relative to the Hanover Square project to determine what liens had been filed. After Walton reported his findings, Stewart Title requested that he represent Willow Ridge and retained him for that purpose.
[5] This was to insure that the Bank of Meridian did not sell at a distress sale and pursue Willow Ridge for a large deficiency.
[6] The basis for a suit against Wallace was his alleged fraud in connection with his furnishing to Tonore of the affidavit that there were no liens against the property.
[7] Dogan acknowledged that a resolution of such a lawsuit could not be had before the date scheduled for the foreclosure, but said he thought that if such a suit were filed, the Bank of Meridian "might not go through" with the foreclosure, i.e., would postpone until it determined whether the liens were valid.
[8] Dogan explained at trial that he did this because Walton had expressed concern over being required to file a suit to remove cloud and described some hesitation about doing that.
[9] Walton felt there was a good argument to be made that an injunction should issue since the Bank of Meridian was attempting to foreclose prematurely; the foreclosure was scheduled for October 7 whereas the due date on the deed of trust was not until October 21.
[10] Willow Ridge had initially planned to file suit against Stewart Title immediately after foreclosure but delayed in doing so because of a provision in the policy that no suit could be filed for a period of sixty days following notice of loss.
[11] Based on the facts presented by Willow Ridge and Stewart Title, it would appear that the liens were not valid. See Southern Life Ins. Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So.2d 416, 421 (1963) (bona fide purchaser takes priority over claims of materialmen and laborers unless it has actual, constructive or inquiry notice of the liens); Miss.Code Ann. § 85-7-131 (Supp.1987) (laborers' lien takes effect as to purchasers for value without notice only from time of commencing suit to enforce lien or filing contract under which lien arose of record). However, there could be evidence which the lienors might present, if given the opportunity, which would defeat any claim that the liens were invalid. For example, a lienor might have information tending to show Willow Ridge had notice of the claims.
[12] There was a great deal of confusion as to the amount claimed for liens for which Stewart Title had or could have had potential liability. Its policy specifically exempted from coverage liens attaching after May 2, the date of the policy, and the lienors did not begin filing their liens of record until July 27. Hence, there were obvious difficulties in separating and determining what amounts of the approximately $900,000 assertion as liens were claimed to have been due for work performed and materials furnished prior to May 2.
Subsequent to the foreclosure, Tom Bordeaux, an attorney representing the Bank of Meridian, made an exhaustive compilation of information relative to the amounts claimed as liens on the project and concluded that the amount owed for work performed prior to May 2 was approximately $300,000. The remaining $600,000 represented work performed and materials furnished after May 2 and for projects other than the Hanover Square Project.
[13] The validity of the liens as against the Bank of Meridian was raised in the bankruptcy proceedings and as yet, the issue has not been decided. Stewart Title, under the defense obligations of the mortgagee policy issued in favor of the Bank, has provided the Bank with representation in those proceedings.
[14] Under the terms of the policy, the company agreed to pay "all costs, attorneys' fees and expenses of litigation carried on by such insured with the written authorization of the company...."
[15] See supra note 8.
[16] Stewart Title takes the position that it was not required to defend the foreclosure proceeding since the foreclosure was caused, not by the existence of the liens, but rather by a default in a debt obligation owed to the Bank of Meridian. Since that debt was specifically excluded from coverage by the title policy, the duty to defend did not extend to the foreclosure proceeding. This position appears to be meritorious, but inasmuch as Stewart Title did in fact provide a defense, it merits only mention.
[17] At the time it retained Walton, Stewart Title believed that a conflict of interest might arise between it and Willow Ridge since Stewart Title had taken the position that Ed Tonore's deletion of standard exception (d) was unauthorized. For that reason, it opted to retain independent counsel for Willow Ridge. Because "[a]n attorney obviously should not attempt to represent a party when he is obligated to represent an adverse interest, and a conflict of interest appears[,]" State Farm Mutual Automobile Ins. Co. v. Commercial Union Ins. Co., 394 So.2d 890, 894 (Miss.1981), it has been held that
[p]rovision of independent counsel or reimbursement for the insured's choice of counsel and expenses ordinarily fulfills the duty to defend, and is particularly appropriate where ... there is a conflict of interest between the insurer and the insured.... Indeed, where there is a conflict of interest, ethical considerations may even require that the insurer provide counsel rather than participate in the defense.
Cay Divers, Inc. v. Raven, 812 F.2d 866, 870 n. 3 (3rd Cir.1987) (citations omitted). See also Ezell v. Hayes Oilfield Constr. Co., Inc., 693 F.2d 489, 493 (5th Cir.1983) (duty to defend not breached where insurer because of conflict refuses to defend but provides counsel at its cost to insured).
[18] Of course, both the lien situation and the fact of the default to First Guaranty had a common sourcethe failure of Bubber Wallace to perform his obligations. And in that sense, the two were related, but the obligations were separate and the failure to satisfy the obligations affected the project and the parties differently.
[19] Prior to the foreclosure, both David Dogan and James Roush were under the impression that the foreclosure was due to the liens based on what they had been told by Willow Ridge representatives. Dogan said he thought it inconsistent for the Bank to deem itself insecure based on the liens since the liens, if they were valid, were covered under the policy and the Bank was aware of the coverage. However, Dogan explained that on the morning of the hearing on Willow Ridge's motion to enjoin, Bill Hammack, counsel for the Bank of Meridian, upon inquiry from the court, explained that the foreclosure sale was a means of preventing its rights from being extinguished by a prior foreclosure by First Guaranty. Dogan expressed that he was surprised to learn the reason, since it had been his understanding that the liens precipitated the foreclosure.
[20] Willow Ridge appeared to take the position at trial that Stewart Title breached its duty to Willow Ridge by failing to specifically inform Willow Ridge that if it lost title through foreclosure, the coverage of the policy would cease. In the court's opinion, a sophisticated business enterprise such as Willow Ridge, represented by counsel, did not need to be told to read its policy. And had it read the policy, surely it should have realized the implications of the foreclosure as concerned coverage.
[21] A different result would most likely obtain if the foreclosure had in fact been caused by a defect insured against. But here, the court is not persuaded that the liens caused the foreclosure. It is not the finding of this court that Willow Ridge voluntarily consented to the foreclosure, but it did, for valuable consideration, agree with the Bank of Meridian to dismiss its suit to enjoin foreclosure. Under the totality of the circumstances, the court is of the opinion that Willow Ridge cannot now claim that coverage under the policy continued past the date title was transferred to the Bank of Meridian.
[22] Part of the rationale upon which Stewart Title bases its assertion that title was marketable on the date of issuance despite the unrecorded liens is quite remarkable. Stewart Title reasons that on May 2, when it insured title to the project, title was marketable because the property was sold to a sophisticated buyer, Willow Ridge, a sophisticated lender, the Bank of Meridian, took a mortgage on it for $600,000, and a reputable title insurance company, Stewart Title, was willing to insure the title under both an owner's and mortgagee policy. The court observes that the fact that a title insurance company, reputable or not, would agree to insure a title has little bearing on the marketability of that title. If this were a criterion for marketability, nothing would be gained by insuring against unmarketability since marketability would be determined by the mere issuance of the policy. The insured would need no protection against unmarketability and a provision purporting to cover unmarketability would be superfulous. See Kipahulu Inv. Co. v. Seltzer Partnership, 4 Haw.App. 625, 675 P.2d 778, 781 (1983) (existence of title insurance did not satisfy requirement of marketable title).
[23] Obviously, if the company, through its own negligence, had failed to discover the existence of the liens, it could not then claim title was marketable despite lack of knowledge of those liens. In the present case, however, the court finds that there was no negligence on the part of Stewart Title, or its agent Ed Tonore, in failing to learn of the liens. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645170/ | 994 So.2d 1109 (2007)
Fritz MAJOR, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D06-2668.
District Court of Appeal of Florida, Third District.
March 28, 2007.
Fritz Major, in proper person.
Bill McCollum, Attorney General, for appellee.
Before RAMIREZ, WELLS, and CORTIÑAS, JJ.
PER CURIAM.
Fritz Major appeals the trial court's "Order Denying Defendant's Pro Se Motion Seeking Ruling On Motion To Appeal Denial Of Post Conviction Relief." The defendant also appeals the trial court's "Order Denying Defendant's Pro Se Motion For Request For Permission To Appeal."
Major filed a motion for post-conviction relief in the trial court. The trial court denied the motion on January 13, 2006 because all issues raised in the motion already had been litigated and considered by the trial court. Thus, the trial court denied the motion as successive.[1] Major has never appealed the January 13, 2006 order, but instead filed a pro se "Motion for Request for Permission to Appeal in the trial court." The trial court denied the motion. Major also filed a pro se "Motion Seeking a Ruling on Motion to Appeal Denial of Post Conviction Relief," which the trial court also denied, as the motion had been ruled on.
Both of the orders on appeal before this Court are non-appealable orders under either Florida Rule of Appellate Procedure 9.130 or 9.110. Accordingly, we dismiss the appeal for lack of jurisdiction.
NOTES
[1] Furthermore, in case number 3D05-1242, we affirmed per curiam the trial court's denial of Major's first motion to correct illegal sentence, wherein he raised the exact same issues he raised before the trial court in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584202/ | 427 So. 2d 669 (1983)
Rene GONZALES, III
v.
Vernon Haydel, wife of/and Robert S. SCHULTIS.
No. 13302.
Court of Appeal of Louisiana, Fourth Circuit.
February 9, 1983.
*670 Karl M. Hansen, Jr., Gary M. Bougere, Metairie, for plaintiff-appellee.
Louis J. Cosenza, Leesville, for defendants-appellants.
Before GARRISON, KLEES and WILLIAMS, JJ.
WILLIAMS, Judge.
This is an appeal from a judgment by the trial court awarding plaintiff $1,000.00 for the cost of repairing the roof of a building purchased by plaintiff from the defendants, and $1,000.00 in damages, plus interest and costs.
Plaintiff purchased a house from defendants in November of 1980. Several months after the act of sale, the plaintiff began having trouble with a leaking roof. The roofer he hired to make the repairs, and who also testified as an expert at trial, stated that in his opinion the condition of the roof and ceiling indicated that the roof had been leaking prior to the act of sale.
The defendants attempted to introduce evidence at trial which showed that the roof had not been leaking at the time of the act of sale, and, furthermore, that plaintiff only discovered the leak after extraordinarily heavy rains had occurred.
From the decision of the trial court, the defense specifies three errors: (1) the finding that the roof was defective at the time of the act of sale; (2) the court's failure to impose the duty on the plaintiff to inspect the roof prior to the act of sale, and (3) the court's awarding of damages.
I. DEFECTIVE ROOF
Basically, defendants are arguing that because the roof was not leaking in November of 1980, it was not defective and that an action in quanti minoris has not been proven. To support this argument, the defendants assert that the roof was not leaking at the time of sale and, furthermore, that the leaks were not reported to them until several months afterwards.
This is an action in quanti minoris. An action in quanti minoris is brought to reduce the purchase price and is governed by the same rules that govern an action in redhibition La.Civ.Code Articles 2541 and 2544. As in redhibition, a plaintiff in quanti minoris must prove that the defect existed prior to the act of sale, if the defect does not manifest itself within three days of sale. La.Civ.Code Article 2530.
Based on the evidence contained in the record, we cannot find an abuse of the trial court's discretion in finding the roof to be defective at the time of sale. The plaintiff did have a qualified roofer who testified as an expert that the leak had to have occurred prior to the time that the plaintiff had purchased the house due to the amount of water that had gotten under the shingles and the condition of the wet and moldy wood.
We specifically reject defendants' argument that because the roof was not actually leaking at the time of the act of sale it was not defective. As we stated in Slagle v. Morgan, 410 So. 2d 371 (La.App. 4th Cir. 1982):
"Following the reasoning of the defendants, a purchaser must hope for rain on the day of the act of sale, or within three (3) days thereafter, because if a leak does not manifest itself at that time, then the buyer will be precluded from bringing an action in quanti minoris or redhibition at a later time. This is not the law in Louisiana. In Hunter v. Wilson, 355 So. 2d 39 (La.App. 3d Cir.1978), the plaintiffs were compensated for a leak that did not manifest itself until two or three weeks after the act of sale."
Although as defendants point out, plaintiff notified them of the condition of the roof only after a torrential rain had occurred, there nevertheless is sufficient evidence to support the trial court's decision to award the plaintiff damages in quanti minoris.
II. FAILURE TO INSPECT
The defendants argue that the plaintiff failed to inspect the roof prior to sale, and, therefore, cannot recover for the repairs to the roof.
*671 Defects which a purchaser can discover by a simple inspection are not considered redhibitory defects. La.Civ.Code Article 2521. Defendants argue that because the plaintiff had known that the roof had been repaired in the past, he was under a duty to obtain a roof inspection.
In Russell v. Bartlett, 139 So. 2d 770 (La. App. 4th Cir. 1961), this court held that a purchaser is not required to climb on a roof to inspect it prior to sale. Furthermore, as the plaintiff points out in brief to this court, the expert testimony of the plaintiff's roofer, Kenneth Barrett, indicated that the process of deterioration of the roof was such that a layman might have difficulty in seeing it.
This argument is without merit.
III. DAMAGES
The defendant argues that the trial court rule was in error in awarding $250.00 for repair to interior water stains and an additional $1,000.00 in damages.
The trial court reduced the purchase price of the home by $1,000.00, which is based upon the plaintiff's claim that $750.00 was spent on repairs to the roof and $250.00 was for repair of interior water stains. Furthermore, the trial court awarded plaintiff $1,000.00 in damages. Apparently attorney's fees were not awarded. The damages awarded were not enumerated by the trial court, but the plaintiff had prayed for $2,000.00 for nuisance, and $400.00 in lost wages.
Article 2545 of the Louisiana Civil Code provides that damages are recoverable if it is shown that the seller was aware of the defects at the time of the act of sale.
The plaintiff argues that the additional $250.00 awarded for the repair of the interior water stains is not based on Article 2545, but rather on Article 2531 which requires a seller to repair the vices in the thing sold. Plaintiff, therefore, argues that proof of the sellers' knowledge of the defective roof is not necessary. This argument is supported by Busenlener v. Peck, 316 So. 2d 27 (La.App. 1st Cir.1975), in which the court allowed recovery for the cost of repair of interior water stains under Article 2531. The Busenlener decision is factually indistinguishable from this case. In Busenlener, the court found that because the roof leaked and stained the ceilings and walls, those ceilings and walls were also defective. That court distinguished the facts before it from Domingue v. Whirlpool Corp., 303 So. 2d 813 (La.App. 3d Cir.1974). In Domingue, an air-conditioning unit claimed to have a redhibitory defect caused damage to the ceiling. The Domingue court held the buyer was not entitled to be reimbursed for the cost of repairing the ceiling. The Busenlener court held that because the entire house was the object of the sale, it included the defective bedroom, and costs for repairing the stained ceilings and walls were recoverable. Because we agree with the Busenlener court, we find that the $250.00 was recoverable under Article 2531.
We cannot find, however, that the plaintiff is entitled to recover any other damages.
Although plaintiff argues that the seller was aware of the leaking condition of the roof when the house was sold, no evidence was introduced at trial to prove this. Although the plaintiff points out that the roof had been repaired in three different places in May, August, and October prior to the act of sale in November, there was no evidence introduced to show that the defendants were aware that the roof had been leaking in the spot that plaintiff had to have repaired.
Because plaintiff has failed to present any evidence that defendants were aware that the roof was leaking at the time of the act of sale, he is not entitled to recover the $1,000.00 in consequential damages.
For the foregoing reasons, the award of $1,000.00 for repair to the roof and ceiling is affirmed and the award for $1,000.00 in consequential damages is reversed.
AFFIRMED IN PART.
REVERSED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546346/ | 250 B.R. 907 (2000)
In re Walter J. ALDRICH, Debtor.
Barbara R. Loevy, Chapter 7 Trustee of the estate of the above-named debtor, Plaintiff,
v.
Mary A. Aldrich, Defendant.
Bankruptcy No. 99-20333-K. Adversary No. 99-1040.
United States Bankruptcy Court, W.D. Tennessee, Western Division.
June 21, 2000.
*908 Steven N. Douglass, Memphis, TN, for Plaintiff-Trustee.
Michael Don Harrell, Memphis, TN for Mrs Aldrich, defendant.
Ellen B. Vergos, United States Trustee, Memphis, TN for Region 8.
ORDER AND MEMORANDUM RE PARTIES' MOTION FOR JUDGMENT ON THE PLEADINGS COMBINED WITH NOTICE OF THE ENTRY THEREOF
DAVID S. KENNEDY, Chief Judge.
The parties' deemed motion for a judgment on the pleadings[1] arises out of the above-captioned adversary proceeding filed by the plaintiff, Barbara R. Loevy, chapter 7 trustee of the estate of the above-named debtor, Walter J. Aldrich ("Mr.Aldrich"), against the defendant, Mary A. Aldrich, the non-filing spouse of Mr. Aldrich ("Mrs.Aldrich"). Plaintiff-trustee seeks a judicial determination that she, in her capacity as the statutory representative of this bankruptcy estate, is entitled to all of the proceeds of a $14,044 joint tax refund check payable to both Mr. and Mrs. Aldrich.
By virtue of 28 U.S.C. § 157(b)(2)(A) and (E), this is core proceeding. The sole and ultimate question for the court to determine is what portion of the joint tax refund check, under a totality of circumstances, should be allocated to the bankruptcy *909 estate of the debtor Mr. Aldrich and what portion, if any, should be allocated to Mrs. Aldrich, a non-filing spouse-homemaker. This issue is one of first impression for this court.
Based on the pleadings, undisputed background facts, the case record as a whole, and statements of counsel, the following shall constitute the court's findings of fact and conclusions of law in accordance with FED. R. BANKR. P. 7052.
As noted, the ultimate question presented for judicial determination here is whether Mrs. Aldrich, the non-filing spouse-homemaker, who at times relevant here made substantial contributions to the martial enterprise between her and Mr. Aldrich, is entitled to a portion of the couple's joint federal income tax refund. For the reasons mentioned below, this court finds and concludes under a totality of the partial facts and circumstances that Mrs. Aldrich is entitled to one-half of the joint income tax refund proceeds.
Although the parties have a strong difference of opinion regarding the outcome of this proceeding, the relevant background facts are not in dispute and may be briefly summarized as follows: Mr. and Mrs. Aldrich are husband and wife. Mr. Aldrich works outside the home as a food services manager and generates all of the taxable income for the family unit. Although at times relevant to this proceeding Mrs. Aldrich did not generate taxable income, she was a homemaker and made substantial, yet economically uncompensated, contributions to the marital unit. In 1998, Mr. and Mrs. Aldrich filed a joint federal income tax return. On January 11, 1999, Mr. Aldrich filed a voluntary chapter 7 bankruptcy case under section 301 of the Bankruptcy Code ("Code"). Mrs. Aldrich has not sought relief under the Code.
On May 28, 1999, after the filing of Mr. Aldrich's chapter 7 case, the United States Treasury ("Treasury") issued a joint tax refund check payable to both Mr. and Mrs. Aldrich for $14,044. The Treasury issued the refund check in order to compensate for a substantial overpayment. On December 8, 1999, the plaintiff-bankruptcy trustee filed this adversary proceeding, which is styled "Complaint to Determine Validity, Extent, and Priority of Interest in I.R.S. Refund." Plaintiff-bankruptcy trustee primarily asserts, pursuant to FED. R. BANKR. P. 7001(2),(7), and (9), the following:
the joint tax refund check is solely the property of Mr. Aldrich's bankruptcy estate because the refund exists only because of the income earned by Mr. Aldrich;
that the bankruptcy trustee is entitled to a determination by this court that the tax refund check is not held as tenancy by the entirety so as to leave Mr. Aldrich with only a survivorship interest in the refund and constitutes property of the estate;
that the bankruptcy trustee is entitled to declaratory relief; and
that the bankruptcy trustee is entitled to affirmative injunctive relief through this Court ordering Mrs. Aldrich to endorse the joint tax refund check issued by the Internal Revenue Service or in the alternative order the Internal Revenue Service to issue a replacement check solely in the name of the Debtor Walter J. Aldrich.
Subsequently, the defendant Mrs. Aldrich filed an answer to the plaintiff-trustee's complaint. Mrs. Aldrich has a different theory on the outcome of this litigation. She asserts that the plaintiff-trustee's complaint should be dismissed and that all the joint tax refund proceeds should be turned over to her.
On March 30, 2000, the parties agreed that Mrs. Aldrich could endorse the joint tax refund check in the amount of $14.044.00, dated May 28, 1999, for deposit into a joint escrow account subject to joint signatures of Mrs. Aldrich's counsel and the plaintiff-trustee. All competing claims to the tax refund check have attached to the proceeds now held in the plaintifftrustee's *910 bank account. Plaintiff-trustee shall make no distributions of these funds pending further order of this court. On April 18, 2000, the plaintiff-trustee filed the instant motion for summary judgment. The parties have agreed to treat the summary judgment motion as being a motion for a judgment on the pleadings.
Upon the filing of Mr. Aldrich's chapter 7 case, a bankruptcy estate was created by operation of law under 11 U.S.C. § 541(a). The bankruptcy estate under section 541(a) is broad. See, for example, Johnston v. Hazlett, 209 F.3d 611, 613 (6th Cir.2000). It consists of all Mr. Aldrich's legal and equitable interests in real or personal property, wherever located and by whomever held. U.S. v. Whiting Pools, Inc., 462 U.S. 198, 103 S. Ct. 2309, 76 L. Ed. 2d 515 (1983).
By virtue of Butner v. U.S., 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979), the bankruptcy court ordinarily is obliged to apply state law with respect to a determination of substantive property rights other than those where federal statutes, treaties, and the Constitution are involved. In re Thorsell, 229 B.R. 593, 597 (Bankr.W.D.N.Y.1999). Indeed, in numerous respects the Code presumes reliance upon state standards especially with respect to determinations of liability and the delineation of property interests. Id. at 597.
Under Tennessee law, it is legally permissible for a husband and wife to own either real or personal property in any manner they choose. Griffin v. Prince, 632 S.W.2d 532, 535 (Tenn.1982). For example, a couple may own real or personal property as tenants in common, individually, in partnership, as life tenants, joint tenancy, or any other manner. Id. at 535. Furthermore, Tennessee courts of equity, like bankruptcy courts, have long wielded the power and authority to render decrees in appropriate cases based upon equitable principles in the light of all the particular facts and circumstances involved. See Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51, 61 (1956); see also Bank of Marin v. England, 385 U.S. 99, 103, 87 S. Ct. 274, 17 L. Ed. 2d 197 (1966); Curtis v. Loether, 415 U.S. 189, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974).
By virtue of 11 U.S.C. § 323(a), the plaintiff-bankruptcy trustee is the statutory representative of the section 541(a) estate which was created upon the filing of Mr. Aldrich's chapter 7 case. Plaintiff-bankruptcy trustee's statutory duties are codified in 11 U.S.C. § 704. Pursuant to the statutory duties enumerated in section 704, the plaintiff-trustee filed this action and now cites and heavily relies upon In re Larish, 149 B.R. 117 (Bankr.M.D.Tenn. 1993). In Larish, the bankruptcy court held that the joint income tax refund was the sole property of the bankruptcy estate where only the income producing spouse sought relief under the Code. With a keen focus on the creation and extent of property interests and source of the income tax refund, the Larish court stated as follows:
Any interest of the wife in the tax refund must be attributable to her income. See In re Baker, 82 B.R. 461, 463 (Bankr.S.D.Ohio1987); Rosen v. United States, 397 F. Supp. 342, 343 (E.D.Pa. 1975). This refund arose solely from withholdings from Mr. Larish's income in excess of tax liability. The refund is not held as tenants by the entirety, it is property of the estate and it is recoverable by the trustee for the benefit of creditors.
In re Larish, 149 B.R. at 119.
Simply stated, the plaintiff-trustee in the instant action asserts that as a matter of law this estate is solely entitled to the full joint tax return for the benefit of the creditors of Mr. Aldrich. However, this court recognizes and appreciates that other courts have resolved this issue differently. In In re Lyall, 191 B.R. 78, 84 (E.D.Va.1996), the court summarized the three distinct approaches to this issue. First, the Lyall court recognized that "a majority of courts have held that a tax *911 refund arising from a joint tax return should be allocated proportionally according to the tax withholdings during the relevant year." Lyall, 191 B.R. at 85; In re McFarland 170 B.R. 613, 620 (Bankr. S.D.Ohio 1994); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987); In re Alden, 73 B.R. 215, 216 (Bankr.N.D.Fla.1986); In re Ballou, 12 B.R. 611, 612 (Bankr.D.Kan. 1981). Another approach is for a court to allocate joint tax refunds proportionally, in accordance the with income produced. Lyall, 191 B.R. at 85; see In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr. E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). Finally, the Lyall court noted that one court held that joint tax refunds should be allocated equally between husband and wife without regard to tax withholdings or income produced. See Bass v. Hall, 79 B.R. 653, 656 (W.D.Va.1987).
In Bass v. Hall, 79 B.R. 653 (W.D.Va. 1987), United States District Judge Kiser held under Virginia law and the debtor's exact circumstances that the debtor's non-filing wife was entitled to except one-half of the tax refund even though her income did not equal 50% of the income reported on the joint tax return. Id. at 656. Judge Kiser stated, in relevant part, as follows:
Had Mr. and Mrs. Hall filed for divorce instead of bankruptcy, their proportional contribution to the income on which the return was based, if considered at all, would only be one factor weighed by the court in distributing the refund. Recognizing that one spouse frequently performs valuable but economically uncompensated services for the family, the equitable distribution statute explicitly directs courts to consider both monetary and non-monetary contributions to the acquisition of assets. [emphasis added, citations omitted]. It would, therefore, be incongruous to consider financial contributions to the taxable income which generated the refund in this case.
By analogy, under Tennessee divorce law, it is noted that Tenn.Code Ann. § 36-4-121(a)(1)-(2) and (b)(1)(A),(B),(C), and (D) provide as follows:
(a)(1) In all actions for divorce or separate support and maintenance, the court having jurisdiction thereof may, upon request of either party, and prior to any determination as to whether it is appropriate to order the support and maintenance of one (1) party by the other, equitably divide, distribute or assign the marital property between the parties without regard to marital fault in proportions as the court deems just.
(2) To this end, the court shall be empowered to effectuate its decree by divesting and reinvesting title to such property and, where deemed necessary, to order a sale of such property and to order the proceeds divided between the parties.
* * * * * *
(b) For purposes of this chapter:
(1)(A) "Marital property" means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date.
(B) "Marital property" includes income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation and the value of vested pension, retirement or other fringe benefit rights accrued during the period of the marriage.
(C) As used in this subsection, "substantial contribution" may include, but not *912 be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine.
(D) Property shall be considered marital property as defined by this subsection for the sole purpose of dividing assets upon divorce and for no other purpose; (emphasis added).
Tenn.Code Ann. § 36-4-121(a)(1) and (2), (b)(1)(A),(B),(C), and (D) (1996).
Like Bass v. Hall, the non-debtor spouse here, Mrs. Aldrich, did not generate taxable income. Mrs. Aldrich, like the non-debtor spouse in Bass v. Hall, substantially contributed to the marital enterprise or domestic partnership in her vital role as a homemaker. As a homemaker, she unquestionably performed valuable but economically uncompensated services for the family. Her substantial contributions helped give rise to the tax refund check. Accordingly, it seems only reasonable, fair, and equitable (i.e., just) for this court to consider both monetary and non-monetary contributions to the acquisition of marital properties by the members of a family or martial partnership when considering the economic value or portion of a spouse's equitable share. See Bass v. Hall, 79 B.R. at 656-57.
This court agrees with District Judge Kiser that it would be "incongruous" to consider only the marital spouses' financial contributions to the taxable income which generated the tax refund and completely ignore the substantial contributions of a non-income producing homemaker, who performs valuable but economically uncompensated services for the family. Bass, 79 B.R. at 657. Moreover, it could be said that to hold otherwise would be demeaning and insulting to deserving homemakers, even though the non-filing spouse-homemaker had no taxable income during the taxable year in question.
Finally, this court is further persuaded by the fact that it seems inconsistent and fundamentally unfair under these circumstances that a non-filing spouse is jointly responsible and liable for a joint federal income tax deficiency yet, ipso facto, prevented from reaping any portion of the deserved, good fortune of a tax refund. This court additionally agrees with Judge Kiser that one of the most important points in this whole issue is that the non-filing spouse's liability would be joint in the event taxes were left unpaid. Thus, the right to a tax refund here should be joint. See Bass, 79 B.R. at 657.
Assuming arguendo that the non-income producing homemaker was the person who filed the voluntary chapter 7 petition instead of the income producing spouse, this court has no doubt that the bankruptcy trustee in the debtor-homemaker's case would assert that the debtor-homemaker has a legal or equitable interest in the joint tax refund under the broad definition of the property of the estate under section 541 of the Code.
Furthermore, the Internal Revenue Code, specifically, 26 U.S.C. § 6013(d)(3), ordinarily mandates joint and several liability for tax deficiency for couples filing jointly who fail to pay their full income tax liability. 26 U.S.C. § 6013(d)(3); Shea v. Commissioner of Internal Revenue, 780 F.2d 561, 564 (6th Cir.1986). This court recognizes the fact that other bankruptcy courts have reached a different conclusion when addressing the rights of non-income producing spouses.[2] However, this court is persuaded by the cogent rationale of Judge Kiser in Bass v. Hall, supra, when he stated, inter alia, that "[t]he presumption of equal ownership applies to negotiable instruments, and should logically apply *913 to joint tax refunds between spouses." Bass 79 B.R. at 656.
Therefore, this court holds that in an appropriate case a non-income producing non-filing spouse, who is a homemaker that makes substantial contributions to the family, may be entitled to have a property interest in a joint tax refund check, notwithstanding that all the taxable income was generated by the debtor-spouse. This analysis, however, should be made on a case-by-case basis. The totality of the particular facts and circumstances existing here create an equal ownership in the joint tax refund check. The relationship in this action is akin to a de facto tenants in common status or the functional equivalent thereof. Accordingly, one-half of the tax refund check is allocated to Mr. Aldrich's bankruptcy estate available for administration and distribution to creditors after his allowed exemptions under relevant state law, and one-half is allocated to Mrs. Aldrich, the non-filing spouse.
Based on the foregoing, IT IS SO ORDERED AND NOTICE IS HEREBY GIVEN.
NOTES
[1] See FED. R. BANKR. P. 7012(b), which adopts FED. R. CIV. P. 12(c), styled "Motion for Judgment on the Pleadings." The parties agreed to treat the plaintiff-trustee's motion for a summary judgment as a motion for a judgment on the pleadings.
[2] See In re Griffin, 1 B.R. 653 (M.D.Tenn.1979)(denying any part of the proceeds to a "housewife" since she failed to be employed in a capacity where income taxes were withheld by her employer); In re Boudreau, 350 F. Supp. 644 (D.C.Conn.1972)(stating that a wife who did not work during the entire taxable year did not contribute to the family during that year, thus proceeds from the refund check were property payable to the bankruptcy trustee); In re Colbert, 5 B.R. 646 (Bankr.S.D.Ohio 1980)(stating the a non-income producing spouse has no property interest in the income tax refund of the income-producing spouse, even though a joint return was filed). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546302/ | 988 A.2d 1178 (2010)
201 N.J. 153
STATE
v.
MOLINA.
C-565 September Term 2009, 064898
Supreme Court of New Jersey.
January 28, 2010.
Petition for Certification Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1588870/ | 706 F.Supp. 733 (1989)
Edward HOLMES, Sherri Estelle Holmes and Edward Zachory Holmes, Plaintiffs,
v.
PACIFIC MUTUAL LIFE INSURANCE COMPANY, et al., Defendants.
No. CV-SA-88-388-JSL.
United States District Court, C.D. California, Los Angeles Division.
January 18, 1989.
*734 Marian H. Tully, Shernoff, Scott & Bidart, Claremont, Cal., for plaintiffs.
Lonnie E. Woolverton, Adams, Duque & Hazeltine, Los Angeles, Cal., for defendants.
OPINION
LETTS, District Judge.
FACTS
This case presents novel facts against which to test the scope of ERISA's preemption clause, 29 U.S.C. § 1144(a), of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.
The facts alleged by Plaintiffs, which are accepted as true for the purposes of this decision, are as follows. Plaintiffs' decedent, Dolores Holmes, was an employee of Fountain Valley Hospital. She was also a participant in an employee benefit plan sponsored by the hospital which covered certain medical expenses. Defendant Pacific Mutual Insurance Company was the administrator of the plan, which plan satisfied the definition of an ERISA plan under 29 U.S.C. § 1002(1), and therefore falls within the coverage of the provisions of ERISA.
Sometime during 1987, Holmes developed a life-threatening liver disorder for which a liver transplant was the only prescribed cure. Arrangements were made for the surgery to be performed at the UCLA Medical Center. When Defendant Pacific Mutual was asked by UCLA whether the Fountain Valley Hospital medical plan provided coverage for this surgery, Pacific Mutual erroneously affirmed that it did.
After tentative arrangements for surgery had been made, Holmes was required to wait until a transferrable liver was located. When an appropriate liver became available, UCLA again called to verify that the plan covered the cost of the surgery. This time Pacific Mutual correctly answered that it did not.
Holmes then determined that she had other medical coverage. Arrangements were again made for her surgery to proceed, but before another liver was found, Holmes died.
For purposes of decision, the Court assumes, but does not decide, that (i) Holmes' operation in fact was cancelled because Pacific Mutual denied coverage rather than for some other reason; (ii) if Pacific Mutual had not confirmed coverage initially, other coverage would have been found on a timely basis; (iii) the operation would have gone forward as scheduled with the original liver; (iv) the operation would have been successful; and (v) Holmes would have reached her full life expectancy.[1]
The complaint in this case was filed in Orange County Superior Court. It was removed here based upon federal question jurisdiction under ERISA. Plaintiffs seek remand, urging that no ERISA claim is stated by the complaint. Defendants, on the other hand, move for summary judgment on the ground that ERISA preempts Plaintiffs' state law claims because these claims are based entirely on representations made by Pacific Mutual acting in its capacity as the plan's administrator.
The court now holds that ERISA preempts Plaintiffs' state law causes of action, and that Defendants' motion for summary judgment is granted.
ANALYSIS
Analysis of this case under ERISA must begin with the language of 29 U.S.C. § 1144(a), the ERISA "preemption clause." This section provides, in relevant part, that ERISA "shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan." *735 "State laws" include state causes of action which relate to any employee benefit plan. 29 U.S.C. § 1144(c)(1); see also Jung v. FMC Corp., 755 F.2d 708, 714 (9th Cir. 1985).
In order to test the scope of its effect properly, § 1144(a)'s extremely broad language must be construed in the context of the underlying social problems to which ERISA was addressed. When Congress was considering ERISA in the early 1970's, there was great concern over the possibility of widespread termination of employee benefit plans. Because of underfunded pension plans, many employees were faced with losing retirement income for which they had worked for years. In fact, it was becoming increasingly apparent that many long time employers might be unable to meet benefit obligations owed to aging work forces. 29 U.S.C. § 1001(a); see also H.R.Rep. No. 807, 93rd Cong., 2d. Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4670, 4678-9 ("House Report No. 807").
In the depressed economic environment of the time, Congress was concerned that demands upon employee benefit plans would increase dramatically. As a result, more and more employer sponsors might be rendered insolvent and leave employees, who supposedly had "vested" benefits, with nothing. 29 U.S.C. § 1001(a); see also House Report No. 807, 1974 U.S.Code Cong. & Admin.News at 4680; S.Rep. No. 383, 93rd Cong., 2d. Sess. ___, reprinted in 1974 U.S.Code Cong. & Admin.News 4890, 4892 ("Senate Report No. 383").[2]
At the same time, Congress was concerned that the Social Security system, itself strained by the increasing demands made on it by retired workers, could not be relied upon to provide adequate retirement benefits for the vast majority of covered employees.
By "tak(ing) into account additional costs from the standpoint of the employer"[3], Congress indicated that one of the prime purposes of ERISA was to encourage the private sector to bear a larger share of the responsibility for establishing and maintaining a consistent employee benefit structure. 29 U.S.C. § 1001a(b)(2). Necessary corollaries of this purpose were that the ERISA structure be as universal as possible and that it provide maximum assurance of payment of promised benefits. 29 U.S. C. § 1001a(b)(2) and (c)(4); Russell v. Massachusetts Life Insurance Co., 722 F.2d 482, 487 (9th Cir.1983), rev'd on other grounds, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)[4]. In order to ensure payment of plan benefits, ERISA therefore requires that all benefits provided by ERISA plans be currently funded on an actuarially sound basis.[5]
To maintain the desired degree of certainty in payment of plan benefits, it is critical that the actuarial assumptions, upon which the minimum funding calculations are based, be preserved through time. It is for this reason that ERISA preemption, which shields ERISA employee benefit plans from unforeseen liabilities, including liability arising from the acts of the plan administrators, is critical to the entire statutory scheme. Viewed from this perspective, *736 the issues posed by the facts of this case are not novel by reference to issues already resolved in earlier cases.
The principle that ERISA employee benefit plans must be shielded from liabilities which ultimately would be passed on to ERISA plans by way of indemnification or increased costs is well-settled by case law. In Wadsworth v. Whaland, 562 F.2d 70 (1st Cir.1977), cert. denied, 435 U.S. 980, 98 S.Ct. 1630, 56 L.Ed.2d 72 (1978), the First Circuit noted that Congress intended § 1144(a) to preempt all state laws that relate to an ERISA plannot just those which purport to regulate an area to which ERISA addresses itself. Wadsworth, 562 F.2d at 76-7. Thus, even if the state law in question is one of general application and is not designed to affect ERISA plans other than in an indirect manner, the state law is preempted if it is caught within ERISA's "sweep." Pervel Industries, Inc. v. State of Connecticut Commission on Human Rights and Opportunities, 468 F.Supp. 490, 492 (D.Conn.1978), aff'd, 603 F.2d 214 (2d Cir.1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980).
ERISA itself does not provide for extracontractual liabilities. Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). This principle is so well settled that it has even been applied so as to preempt state laws which would otherwise impose liability upon insurance company plan administrators for bad faith denial of insurance benefits. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987).[6]
Against this background, ERISA preemption of the claim brought by Plaintiffs must be viewed as an a fortiori application of settled case law. To permit a state law cause of action to go forward to recover damages allegedly resulting from an innocent but mistaken affirmation of coverage, followed by a good faith denial, when an action for the same damages resulting from an immediate bad faith denial of coverage would be preempted by ERISA, would make no sense at all.
Consequently, the test for ERISA preemption is whether Plaintiffs' state cause of action would violate the ERISA policy of protecting the integrity of the actuarial assumptions upon which the ERISA legislation is based. Such a test is necessary to preserve certainty of payment of plan benefits.
The court notes that, were it not for the decision in Pilot Life, it might be argued that ERISA does not require preemption of actions under state law against independent plan administrators since payments of liabilities would not come from the fund nor appear at first blush to disturb such actuarial assumptions for funding. These cases, however, have wisely settled the principle that ERISA requires preemption of actions against plan administrators as well as plans themselves.[7]
The only remaining questionwhether ERISA itself might provide a remedy to Plaintiffsseems settled in favor of Defendants by the holding in Russell, supra. To allow such claims, or claims like the one at *737 issue here, to go forward under ERISA would defeat the very purpose for which preemption is provided.
NOTES
[1] As to points (iv) and (v), it appears that under state law serious issues of proximate causation would arise, since Holmes' death undeniably resulted from natural causes, and the alleged negligence did not occur in the course of an attempt to intervene, but only interfered with a proposed attempt to intervene as to which no proof was possible to show that it would have succeeded.
[2] Sponsors of ERISA pointed to the Studebaker case as a specific and representative example of these sorts of dangers. In 1964, Studebaker failed and closed its plant in South Bend, Indiana. Inability to meet its employee benefit obligations was cited as one of the prime causes of the failure which not only put many current employees out of work, but deprived all but a narrow segment of employees of "vested" retirement benefits under employee benefit plans.
[3] House Report No. 807, 1974 U.S.Code Cong. & Admin.News at 4682; see also 120 Cong.Rec. 8702 (Aug. 20, 1974) (statement of Rep. Al Ullman upon introducing the conference report on H.R. 2), reprinted in 1974 U.S.Code Cong. & Admin.News at 5166, paragraph 4, line 2.
[4] The Supreme Court reversed the Ninth Circuit in Russell on the grounds that 29 U.S.C. § 1109(a) did not permit a trial court to award extra-contractual damages for the untimely processing of a benefits claim. See discussion of Russell, infra.
[5] To effect this purpose, Congress adopted express "minimum funding standards" to insure that plans governed by ERISA "will produce sufficient funds to meet the obligations of the plan when they come due." House Report No. 807, 1974 U.S.Code Cong. & Admin.News at 4690; Senate Report No. 383, 1974 U.S.Code Cong. & Admin.News at 4907.
[6] Most recently, the California Supreme Court, relying heavily on Pilot Life, held that ERISA preempted a state law bad faith denial of benefits claim filed under California Insurance Code § 790.03(h). Commercial Life Insurance Co. v. Superior Court of San Diego County, 47 Cal.3d 473, 253 Cal.Rptr. 682, 764 P.2d 1059 (1988). Plaintiff conceded that Pilot Life preempted his common law cause of action for bad faith denial of benefits, but maintained that it did not preempt § 790.03(h). The California Supreme Court specifically rejected this line of argument, noting that "a contrary rule would undermine ERISA['s] important policy of promoting uniformity in employee benefit plan remedies." Commercial Life 253 Cal.Rptr. at 689, 764 P.2d at 1066.
[7] Were this not the case, the ultimate cost of the liabilities imposed upon plan administrators inevitably would fall back on employers and the plans they sponsor. For self-administered plans this result would follow automatically. While some independent administrators of large employer plans might attempt to absorb the cost of exposure to liability by increasing fees, it seems likely that most professional administrators would either demand indemnification provisions from smaller employer plans or would simply abstain from the business of administering them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584494/ | 24 So.3d 731 (2009)
A.M., a juvenile, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-2926.
District Court of Appeal of Florida, Third District.
December 23, 2009.
Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
Before COPE, GERSTEN and SHEPHERD, JJ.
*732 COPE, J.
This is an appeal of an adjudication of delinquency for giving a false name to a law enforcement officer. The question is whether the law enforcement officer had a reasonable suspicion for an investigatory stop. We conclude that the answer is yes.
The officer in this case received a dispatch regarding a burglary in progress in the Cutler Ridge area of Miami-Dade County. The officer said that this area had been identified by the police department as a "hot zone" because of an increase in burglaries. The caller gave the location of the alleged burglary and a physical and clothing description of the suspect.
According to the officer, the dispatcher also indicated that a witness had followed the suspect to an auto shop close to U.S. Highway 1 and Southwest 220 Street. The officer drove to the auto shop and was flagged down by the witness. The distance from the burglary location to the auto shop was between 1/8 and 1/4 of a mile.
The officer stopped and spoke to the individual for ten to twenty seconds, in order to ascertain that they were talking about the same person. The individual pointed out the direction taken by the suspect. Neither the officer nor the dispatcher obtained the name of this witness.
The officer proceeded a few blocks and saw A.M., who matched the description. The officer stopped his car and spoke to A.M.
The officer asked A.M. what he was doing in the area and why he was not in school. During the conversation, A.M. told the officer that he had a driver's license. The officer asked for a name and date of birth.
A.M. initially stated that his name was James Jackson. When the name and date of birth were checked through the police car's computer, no driver's license came up under that name and date of birth.
The officer told A.M. he was aware that sometimes people are afraid that they may have a warrant for their arrest but he was eventually going to find out his name anyway, even if the officer had to take him into custody and fingerprint him. The officer placed A.M. in handcuffs in the back seat of the police car. A.M. then gave the officer the name James Myles and a different date of birth which would have made him an adult. Once again, a computer inquiry revealed no driver's license with that name and date of birth.
The officer patted down A.M. and found an identification card with what turned out to be his correct name. A computer inquiry revealed that there was a pick-up order for A.M. At the station, A.M. was fingerprinted and ultimately admitted his actual name.
By statute, "It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in anyway, to the law enforcement officer or any county jail personnel." § 901.36(1), Fla. Stat. (2008) (emphasis added). A.M. contended at trial that he was not lawfully detained. The trial court rejected this argument and adjudicated A.M. delinquent. A.M. has appealed.
A.M. argues that there was no reasonable suspicion to support an investigatory stop. A.M. relies primarily on Baptiste v. State, 995 So.2d 285 (Fla.2008). The Baptiste decision does not support A.M.'s argument.
In Baptiste an anonymous caller told the police that a man had waived a firearm in front of a grocery store at a particular location. The caller gave a description of *733 the individual. Two officers arrived and located the individual who corresponded to the description. No firearm was visible, nor were there any bulges or other visible indications that Baptiste possessed a firearm. The officers apprehended Baptiste at gunpoint, frisked him, and found a weapon.
After Baptiste was apprehended, a man approached one of the officers and told the officer that he was the one who placed the telephone call. He stated that he intended to remain anonymous, disappeared, and has never been identified. Id. at 288. The Florida Supreme Court held that "when investigating an anonymous tip, officers who are unable to independently corroborate criminal activity may not initiate a gunpoint seizure based upon confirmation of only innocent details-such as a physical description-with absolutely no observation or development of any suspicious behavior." Id. at 301.
In the present case there was an anonymous telephone call to the police reporting a burglary in an area having a recent increase in burglaries. The officer went to the auto parts store, where a citizen flagged down the officer and they had a face-to-face discussion. The officer spoke briefly with the citizen, ascertained that they were talking about the same individual, and went in the direction indicated by the citizen, where the officer found A.M.
The Baptiste decision explains:
State and federal case law establishes that the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a "citizen informant" who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale.
Id. at 291 (citing State v. Maynard, 783 So.2d 226, 228 (Fla.2001)); see also Baptiste, 995 So.2d at 291, 295-96 (collecting cases); Phillip A. Hubbart, Making Sense of Search and Seizure Law 194-98 (2005). In this case the anonymous tip was followed by a face-to-face encounter between the officer and the citizen who had followed A.M.
A.M. argues that the encounter with the citizen must be ignored because the officer testified that he did not know whether the citizen was the one who had placed telephone call to the police. We reject that argument. The telephone call indicated that an individual had followed the subject to the auto shop, and a citizen flagged the officer down when he arrived at that location. The officer did not ask the individual specifically whether he or she had made the telephone call to the police. Logically, however, either the citizen was the one who placed the call, or the citizen had been present with the one who did make the telephone call. Under the circumstances of this case, the stop was good.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584642/ | 24 So.3d 571 (2009)
Jessica Lauren WICKY, Petitioner,
v.
Crisanto C. OXONIAN as Personal Representative of the Estate of Maria I. Oxonian, Respondent.
No. 2D08-2853.
District Court of Appeal of Florida, Second District.
August 7, 2009.
Rehearing Denied January 6, 2010.
Alan S. Zimmet and T.R. Unice, Jr. of Zimmet, Unice & Salzman, P.A., Clearwater, for Petitioner.
*572 Lorraine E. Robinson of Perenich, Carrol, Perenich, Caulfield, Avril, Noyes & Perenich, P.A., Clearwater, for Respondent.
NORTHCUTT, Judge.
In December 2006, Jessica Wicky passed out while driving, and her car collided with another vehicle. The other driver, Maria Oxonian, was killed. During the police investigation of the accident, Ms. Wicky either impliedly or actually consented to giving a sample of her blood to be analyzed for alcohol content and the presence of controlled or chemical substances. See §§ 316.1932-.1933, Fla. Stat. (2006). The analysis disclosed no alcohol or controlled substances, and to date the State has not prosecuted Ms. Wicky for her role in the accident. The blood tests consumed all but a small portion of the sample, which remains in the possession of the Pinellas County Forensic Laboratory.
The personal representative of Ms. Oxonian's estate, Crisanto Oxonian, filed a negligence action against Ms. Wicky to recover for Ms. Oxonian's wrongful death. Mr. Oxonian filed a discovery request seeking permission to test the surviving portion of Ms. Wicky's blood sample for the presence of Benzonatate, a prescription cough medication. The circuit court entered an order granting the request. Ms. Wicky then filed this petition for certiorari seeking to quash the order. We grant the petition.
Mr. Oxonian's motion did not identify the rule of civil procedure that would authorize the testing of an opposing party's blood, other than to mention the general discovery rule, Fla. R. Civ. P. 1.280. Ms. Wicky has theorized that the motion was governed by Florida Rule of Civil Procedure 1.350, which addresses production of documents and things. However, in light of the associated privacy concerns and inherent intrusiveness of such an endeavor, we conclude that a request to test human bodily fluids in a civil action must satisfy the requirements of rule 1.360, "Examination of Persons." See Simons v. Jorg, 384 So.2d 1362, 1363 (Fla. 2d DCA 1980). The more stringent aspects of this rule protect the interest a party has in the integrity of his or her person, an interest that surpasses, say, the interest a party may have in some document or piece of personal property. Although Ms. Wicky's blood has already been drawn, and a further invasion of her body would not be necessary, she continues to have an interest that rule 1.360 is meant to protect. See Gottlieb v. Samiian, 999 So.2d 678 (Fla. 1st DCA 2008) (discussing rule 1.360 in the context of a motion to test a body for substances ingested during the year before death).
A certiorari petition is the appropriate vehicle for challenging an order granting a compulsory physical examination pursuant to rule 1.360. See State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So.2d 111 (Fla. 2d DCA 1994); Nobbe v. Nobbe, 627 So.2d 59 (Fla. 2d DCA 1993). Certiorari relief "is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)).
Here, the requested discovery is of an irreparable nature. Very little of the blood drawn during the accident investigation remained after law enforcement completed its tests. The parties agree that the further testing Mr. Oxonian seeks would leave insufficient blood for any additional testingas a practical matter, the sample would be destroyed. Thus, we easily *573 find that Ms. Wicky has met the "material injury" and "no adequate remedy on appeal" prongs. We therefore focus on the issue of whether the circuit court's order departed from the essential requirements of law.
Rule 1.360(a)(1) allows a party to request that another party submit to an examination if the condition that is the subject of the examination is "in controversy." Additionally, an examination is authorized only when the requesting party "has good cause" for the examination. Fla. R. Civ. P. 1.360(a)(2). The burden of proving these two requirements rests with the party seeking the examination. The Florida Supreme Court has noted that these burdens
are not met by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.
Russenberger v. Russenberger, 639 So.2d 963, 965 n. 4 (Fla.1994) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)). The requesting party must present evidence to meet its burdens. An evidentiary hearing, or verified affidavits or pleadings, are sufficient to meet the rule's requirements. Russenberger, 639 So.2d at 965.
Because the parties in this case did not view Mr. Oxonian's discovery request as one under rule 1.360, they did not appreciate the burdens imposed under that rule. Thus, no evidence was presented at the hearing on Mr. Oxonian's request; no affidavits were filed, and counsel merely argued in support of the test.
We have interpreted the "in controversy" requirement to mean that the alleged condition "must directly involve a material element of the cause of action." Williams v. Williams, 550 So.2d 166, 167 (Fla. 2d DCA 1989). The motion to test Ms. Wicky's blood did not address how the test related to the elements of Mr. Oxonian's cause of action. It merely asserted that "Jessica Wicky had admitted to taking Nyquil, Benzonatate and Deconamine prior to driving her vehicle the morning of December 12, 2006. Defendant, Jessica Wicky while driving her vehicle passed out." At the hearing on the motion, Mr. Oxonian's counsel explained that Benzonatate is a prescription cough medicine. But he offered no evidence of how the presence of this drug in Ms. Wicky's blood at the time of the accident might relate to the matter "in controversy," i.e., Ms. Wicky's negligence. Cf. Gottlieb, 999 So.2d at 682 (involving a request for disinterment to test a body for drug use and noting that the evidence presented did not reveal the effect of the drugs supposedly taken on the health of the decedent). The order permitting the blood test departs from the essential requirements of law because Mr. Oxonian failed to meet the burden of proof set forth in Russenberger. We quash the order on this basis alone.
In the event Mr. Oxonian wishes to further pursue this discovery, he must follow the dictates of rule 1.360. Accordingly, we offer the following observations to guide the parties and the court.
In the vast majority of strictly civil casesi.e., medical malpractice or automobile accident suits versus dissolution or paternity actionsit is the defendant who seeks to examine the plaintiff under rule 1.360. In such cases the "in controversy" test is easily met because the plaintiff has put his or her own medical condition in issue by claiming damages based on the condition. See Dimeglio v. Briggs-Mugrauer, 708 So.2d 637, 639 (Fla. 2d DCA 1998); see also Leinhart v. Jurkovich, 882 *574 So.2d 456, 460 (Fla. 4th DCA 2004). Our research has uncovered only one case in the posture presented here, i.e., a plaintiff seeks to examine a defendant under rule 1.360. See Gasparino v. Murphy, 352 So.2d 933 (Fla. 2d DCA 1977).
In Gasparino, Ms. Murphy, the personal representative of a man killed while resisting law enforcement, brought a wrongful death action against a police officer. Her complaint alleged the officer, Gasparino, was negligent and had used excessive force. She sought to subject him to a psychiatric examination, claiming there was "a controversy . . . as to the mental state of the defendant." Id. at 934. In quashing the order permitting the examination, we held that Gasparino's mental state was not the issue in the case:
Rather, it is his conduct which is at issue; specifically whether such conduct was negligent, unreasonable or involved the use of excessive force. While [Gasparino's] mental state may shed some light on why he acted as he did, it is not involved in either establishing the standard of care or in determining whether or not it has been violated.
Id. at 935.
Mr. Oxonian's burden, then, is to present evidence of how the presence of this cough medicine in Ms. Wicky's blood would establish her negligence. Absent such proof, he cannot succeed in his request.
While we have so far focused on the "in controversy" requirement of rule 1.360, that is only the first step in the requesting party's burden of proof. If the party meets that portion of the burden, it must then prove "good cause" for the desired test. In the general civil context, we have found no cases that set out parameters of "good cause" for testing an opponent's blood. Issues concerning compelled examination of bodily fluids usually arise in the context of paternity actions. In such cases, the compelled blood test likely would decide the issue in controversy, and thus good cause for the test is established. It does not appear that the discovery requested in this case would be as conclusive. But, as noted, Mr. Oxonian did not attempt to show good cause because he was not proceeding under rule 1.360. If he wishes to pursue this discovery, he will have the opportunity to do so.
In all discovery matters the competing interests of the parties must be balanced. If further discovery of Ms. Wicky's blood is sought, we note that her certiorari petition claims such a test would violate her privacy rights. She also points out that she has an interest in preserving her right to test the blood sample herself under the implied consent law, § 316.1932(1)(f), Fla. Stat. (2006), and that she would be unable to do so if Mr. Oxonian is permitted to destroy the blood sample with his testing. No doubt, if Mr. Oxonian pursues his request, he will set forth his own interests in testing the blood. We offer no opinion on this matter, other than to reiterate that the court should balance the parties' interests. See Russenberger, 639 So.2d at 965-66; Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla.1987). Additionally, the State, the Pinellas County Sheriff's Department, and the Pinellas County Forensic Laboratory, where the evidence is being held, may each have an interest in the outcome of any discovery request concerning the blood. If Mr. Oxonian proceeds in his attempt to test the blood, these entities must be noticed and given the opportunity to appear. Their interests, if any, must be balanced along with the parties' interests.
Finally, Ms. Wicky contends that the circuit civil court does not have jurisdiction over this matter. Evidence obtained *575 in connection with a criminal proceeding is held in custodia legis by the court. Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006). As Ms. Wicky correctly points out, the criminal court has inherent jurisdiction over such evidence and civil courts should not be permitted to intrude on pending criminal matters. See Garmire v. Red Lake, 265 So.2d 2, 4-5 (Fla.1972). We agree with this proposition, but it cannot be applied here because Ms. Wicky has never been prosecuted; hence there has been no involvement of the criminal court. Moreover, although most circuit courts are divided into divisions for efficiency of administration, all circuit court judges may hear and rule on any case within the circuit court's jurisdiction. Payette v. Clark, 559 So.2d 630, 633 (Fla. 2d DCA 1990). Thus, the judge presiding over the civil case does have jurisdiction to decide this matter.
We grant Ms. Wicky's petition and quash the order granting Mr. Oxonian's motion to test the blood sample.
WHATLEY, J., Concurs.
LaROSE, J., Dissents with opinion.
LaROSE, Judge, Dissenting.
I dissent. A small blood sample remains. Further testing will consume it. Although the underlying accident occurred almost three years ago, Ms. Wicky still fears prosecution. Her claimed need to maintain the sample for unspecified testing at an unspecified time for purposes of defending against possible criminal charges propels the matter to us.
Our certiorari review is constrained. We may quash the order only if Ms. Wicky demonstrates a departure from the essential requirements of law that causes material and irreparable harm. See DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007). The order is tentative. It causes neither material nor irreparable harm. I would dismiss the petition.
Ms. Wicky's argument distills to two points. First, testing will destroy Ms. Wicky's ability to conduct her own future tests. Second, the State Attorney should participate in this discovery matter. The order addresses both concerns.
Immediate testing is unavailable. Pending further direction from the trial court, the sample remains with the Pinellas County Forensic Laboratory. Additionally, proceedings before the trial court reflect that the State Attorney must be given notice of and allowed to weigh in on all further proceedings related to the testing.
More critical, however, the trial court recognized Ms. Wicky's potential need to conduct her own testing. As a result, further court action must precede any testing contemplated by Mr. Oxonian. The order directs the parties to confer "as to the selection of a laboratory and testing methods for the Court's consideration." The reason is clear: so Ms. Wicky can propose methodologies that will enable her to do her own contemporaneous tests. As the trial court made clear at its May 1, 2008 hearing:
I just want to see if there is a means to give everyone access at the same time to testing if that can be possible. . . . [B]arring some proposal that is reasonable and more appropriate I'm going to do it in the fashion that is being sought by plaintiff, but I want to give the defense the opportunity to tell me that they want to have it done in another way and have me consider that.
Ms. Wicky understands that the order is not etched in stone:
[Counsel]: How about an order granting plaintiff's request; however, the manner and who will be doing the testing and what testing will be performed will be done pursuant to an additional order of the Court.
*576 The Court: All right. That sounds like a fair means of handling it.
Properly understood, the order addresses adequately Ms. Wicky's dual concerns. Its tentative nature compels me to see no material, irreparable injury. See Senior Care Group, Inc. v. Estate of Fischer ex rel. Woodworth, 12 So.3d 766 (Fla. 2d DCA 2009).
Because I would dismiss the petition, I will not dwell on the issue of whether the trial court departed from the essential requirements of law in analyzing the discovery motion under rule 1.280. I will observe, however, that it is not plainly evident that the trial court must analyze the motion under rule 1.360. That rule addresses examinations of persons. The blood sample was not obtained in connection with a physical examination conducted in ongoing litigation. I recognize that application of rule 1.360 may be preferable. However, an adequate legal analysis that addresses all competing interests could be done under the more general discovery rules. See Fla. R. Civ. P. 1.280(a), (b)(1), (C), 1.350. In my view, to do so does not constitute a departure from the essential requirements of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585333/ | 382 N.W.2d 26 (1986)
SOUTH DAKOTA WILDLIFE FEDERATION, a South Dakota Nonprofit Corporation, and Roger Pries, Appellees,
v.
WATER MANAGEMENT BOARD, State of South Dakota (# 14760 and # 14820), Appellant.
SOUTH DAKOTA WILDLIFE FEDERATION, a South Dakota Nonprofit Corporation, and Roger Pries, Appellants,
v.
WATER MANAGEMENT BOARD, State of South Dakota (# 14816), Appellee.
Nos. 14760, 14816, 14820.
Supreme Court of South Dakota.
Argued September 10, 1985.
Decided January 15, 1986.
*27 Thomas E. Klinkel of Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel, Aberdeen, for South Dakota Wildlife Federation and Roger Pries.
Daniel J. Doyle, Asst. Atty. Gen., Pierre, Mark V. Meierhenry, Atty. Gen., Pierre, on brief, for Water Management Bd.
William E. Coester, Milbank, for amicus curiae, Waubay Lake Ass'n and Sylvester Wika.
HENDERSON, Justice.
ACTION
This is an appeal from a circuit court judgment which reversed a decision of the South Dakota Water Management Board. The Water Management Board's decision established the ordinary high water mark for Waubay Lake at the elevation of 1,787.0 feet mean sea level. The circuit court's judgment reversed this decision and established the Waubay Lake ordinary high water mark at the elevation of 1,799.3 feet mean sea level. We reverse the circuit court's judgment and hereby reinstate the Board's decision. We also reverse an award of costs and affirm a denial of attorney fees.
FACTS
By the 1978 enactment of SDCL 43-17-20 through SDCL 43-17-26, inclusive, the South Dakota Water Management Board (Board) was required to establish the ordinary high water mark (OHWM) and the ordinary low water mark (OLWM) for public lakes. The OHWM and the OLWM are respectively defined in SDCL 43-17-20(2) and (3) as follows:
"Ordinary high water mark," the high level reached by the waters of a lake under ordinary and continuous conditions, unaffected by periods of extreme and periodic freshets. The ordinary high water mark is indicated by the continuous presence and action of water which leave a distinct mark either by erosion, destruction of terrestrial vegetation, or some other easily recognized characteristic;
"Ordinary low water mark," the low level reached by the waters of a lake under ordinary conditions unaffected by periods of extreme and continuous drought.[1]
The establishment of the OHWM and the OLWM are important decisions because the adjacent or riparian landowners, own the land down to the OLWM. SDCL 43-17-2. Below the OLWM, the State of South Dakota owns the land and holds it within the public domain. SDCL 43-17-1. However, although the riparian owners own the land down to the OLWM, the public has a right of access for hunting, fishing, boating, and other recreational purposes, up to the OHWM. Thus, the riparian owners cannot restrict or deny the public access to those shore lands and waters below the OHWM on public lakes.
On December 9 and 10, 1982, pursuant to notice to riparian landowners and the public, *28 the Board held hearings in Aberdeen on the establishment of the OHWM for Waubay Lake. Waubay Lake is a series of five interconnected glacier lakes formed by the retreat of the glaciers over 10,000 years ago. Waubay Lake includes North Waubay Lake, South Waubay Lake, Hillebrands Lake, Swan Pond, and Spring Lake. The Lake is located in Day County and lies in a single glacier depression which stretches from a point one mile northeast of Webster to Grenville, South Dakota.
At these Aberdeen hearings, Jerry Steffen (Steffen), an Engineer with the Department of Water and Natural Resources, Division of Water Rights (Division), testified and submitted an investigation report for the Division, which recommended that the Waubay OHWM be set at the elevation of 1,799.3 feet mean sea level (1799.3). Steffen's recommendation, as evidenced by his testimony and report, was based on the elevations of erosion marks, water level, changes in soil characteristics, and outlet structures, along with precipitation records and the hydrological characteristics of Waubay Lake. Several other individuals, however, testified that vegetation, including 60-to-80-year-old cottonwood, elm, ash, and oak trees, exists below the Division's 1799.3 recommendation, as do some public roads. Further testimony was presented which outlined (1) that under the statutes, the OHWM was to be based on ordinary and continuous conditions; (2) that Waubay Lake does not ordinarily reach 1799.3 and has not done so for over 85 years; and (3) that when it did reach 1799.3 in the late 1800's, it was a period of extreme and heavy precipitation. The Board thereupon ordered a continuance so as to obtain more information.
On July 19 and 20, 1983, in Webster, the Board held further hearings on the establishment of the Waubay OHWM. At these hearings, Steffen again testified and also submitted a supplemental investigation and report on behalf of the Division. The recommendation of the Division in the supplemental report was for an OHWM of 1788. Steffen testified that 1788 was reached as an OHWM because of the conflicting evidence in that major treesmajor being 60-to-80 years old and one and one-half feet in diameterwere found to go down to the 1788 level.[2] Further examination of Steffen's testimony reveals the following: (1) A culvert and railroad track exists at 1797.1; (2) a man-maintained outlet exists at 1797; (3) the highest water level reading obtained since 1960 was 1786.5; (4) a 1953 map indicates a water level between 1789 and 1787; (5) an intermittent ridge line exists at this 1789 to 1787 level; (6) when Waubay Lake reached a level of 1799.3 in the late 1800's, the area received almost double the annual precipitation; and (7) his previous recommendation of 1799.3 was based on the shoreline features of erosion and soil characteristicscharacteristics similar to other lakes.
John Hatch (Hatch), Chief Engineer of the Division testified concerning the new supplemental recommendation as follows:
[T]he reason for not picking 1799.3 is because we did not believe that is representative of ordinary and continuous water level conditions. We believe that 1788 is, does reflect, more accurately reflects, the actual and ordinary and continuous water level conditions under a high level basis. And that's the real question on Waubay Lakes where you do have conflicting evidence of the role of the obvious water mark of 1799 as to what is ordinary and continuous and I do not see where you call 1799 ordinary and continuous when the water level has not been that high since 1897. And that is the reason the lower level, 1788, is being recommended.
Jack Opitz (Opitz), Supervisor of the Department of Game, Fish and Parks in Watertown also testified. He recommended that the OHWM be set at 1799.3. His testimony, in substance, was that the highest *29 water mark evidenced on shore was to be used even if that mark has not been reached in many years.
Roger Pries (Pries), Executive Director of the South Dakota Wildlife Federation (Federation), also testified. Pries and the Federation are parties to this appeal and will be collectively referred to as the Federation. The Federation asserted the adoption of 1799 as the OHWM for Waubay Lake. The Federation's rationale for such an adoption was, in substance, public policy, public rights, consistency, and the relative length of time in a lake's lifespan. The Federation admitted, however, that Waubay Lake presented a special situation.
After receiving all the testimony, the Board conducted an on-site examination of Waubay Lake.[3] Thereafter, and based on the examination and the testimony and evidence presented, the Board set the OHWM for Waubay Lake at the elevation of 1,787 feet mean sea level. From the Board's determination, the Federation appealed to the circuit court. On April 25, 1984, pursuant to a circuit court order, the Board conducted a supplementary hearing in Pierre on the Waubay Lake OHWM. During this supplemental hearing, Steffen again testified. Steffen testified that he believed the original Division recommendation of 1799.3 was correct; that the supplemental recommendation of 1788 departed from erosion and soil change characteristics and relied on established trees in the lake bed and disregarded the main high water mark characteristics of the lake. Steffen also testified, however, that 1799.3 was the extreme high water mark; 1799.3 was reached in the late 1800's during several years of 42-inch precipitation; records show a level of 1799.3 being reached only once; four or five residences in Grenville are built below the 1799 level; there has not been a case where the water level was so different from his OHWM recommendation; there has not been a case where there were 60-to-80-year-old trees eleven feet below his OHWM recommendation; and that the Board has ignored the Division's recommendations in the past. The Board, thereafter, reaffirmed its prior decision and set the Waubay Lake OHWM at the elevation of 1,787 feet mean sea level.
The circuit court, however, after receiving briefs and oral arguments from the parties, and after its own on-site examination of Waubay Lake, reversed the Board's decision and set the OHWM at the elevation of 1,799.3 feet mean sea level. The circuit court concluded that the Board's decision: (1) violated the public trust; (2) erred as a matter of law; (3) was clearly erroneous in light of the entire evidence; and (4) was arbitrary, capricious, and characterized by an abuse of discretion. The circuit court also awarded the Federation certain costs but denied their request for attorney fees. From the determination setting the Waubay OHWM at 1799.3 and the taxation of costs, the Board now appeals. From the denial of attorney fees, the Federation appeals.
DECISION
I.
WAS THE BOARD'S DETERMINATION ESTABLISHING THE OHWM AT 1787 ERRONEOUS? WE HOLD THAT IT WAS NOT.
This Court reviews the administrative decision essentially in the same manner as did the circuit court. Matter of South Dakota Water Management Bd., 351 N.W.2d 119, 122 (S.D.1984).
Thus, our review is of the decision of the administrative agency and our standard is the clearly erroneous standard. If the circuit court reversed the agency's decision, and "[i]f after review of the evidence we deem the agency findings clearly erroneous, we affirm the circuit court. If the agency findings are not clearly erroneous, then the circuit court was clearly erroneous in so concluding." State, Div. of Human Rights v. Miller, 349 N.W.2d 42, 46 n. 2 (S.D.1984).
*30 Kienast v. Sioux Valley Co-op, 371 N.W.2d 337, 339 (S.D.1985). See also, Stavig v. South Dakota Highway Patrol, 371 N.W.2d 166, 168 (S.D.1985).
As stated in the facts above, the adjacent, riparian, or upland owner takes to the edge of public lakes at the ordinary low water mark. See SDCL 43-17-2; Anderson v. Ray, 37 S.D. 17, 24, 156 N.W. 591, 593 (1916); Flisrand v. Madson, 35 S.D. 457, 470, 152 N.W. 796, 801 (1915). The riparian owner's title, however, is absolute only to the extent of the OHWM. As to the intervening shore between the ordinary high and the ordinary low water marks, the riparian owner's title is qualified or limited by and subject to the public's right of access and use for navigating, boating, fishing, fowling, and like public purposes. Flisrand, 152 N.W. at 801. See also, State ex rel. Clark v. Deisch, 38 S.D. 560, 564, 162 N.W. 365, 366 (1917). Thus, the riparian owner may not interfere with or prevent the public's use or lawful access. The State of South Dakota, on the other hand, owns the bed of the lake or that portion below the low water mark.[4]Hillebrand v. Knapp, 65 S.D. 414, 418, 274 N.W. 821, 822 (1937).
The OHWM was defined in SDCL 43-17-20(2), at the time of the events at bar, as
the high level reached by the waters of a lake under ordinary and continuous conditions, unaffected by periods of extreme and periodic freshets. The ordinary high water mark is indicated by the continuous presence and action of water which leave a distinct mark either by erosion, destruction of terrestrial vegetation, or some other easily recognized characteristic[.]
This statute is a combination of our holdings in Flisrand and Anderson. However, as this Court stated in Flisrand, 35 S.D. at 470, 152 N.W. at 800-01:
Neither high nor low water mark means the highest or lowest point reached by the waters of a lake during periods of extreme and continued freshets, or periods of extreme and continued drought, but does mean the high and low points of variation of such waters under ordinary conditions, unaffected by either extreme. Farnham on Water Rights, p. 1461; Carpenter v. Board of Commissioners, 56 Minn. 513, 58 N.W. 295; Dow v. Electric Co., 69 N.H. 498, 45 Atl. 350, 76 Am.St.Rep. 189; Stover v. Jack, 60 Pa. 339, 100 Am.Dec. 566; McBurney v. Young, 67 Vt. 574, 32 Atl. 492, 29 L.R.A. 539.
The OHWM thus does not encompass the peak flow or flood stages. Buttrey v. United States, 573 F.Supp. 283, 298 (E.D.La.1983).
In Anderson, 37 S.D. at 25-26, 156 N.W. at 594, this Court quoted with approval language in Carpenter v. Bd. of Comm'rs, 56 Minn. 513, 518, 58 N.W. 295, 297 (1894), wherein the Minnesota Supreme Court said:
[I]n the case of fresh-water rivers and lakesin which there is no ebb and flow of the tide, but which are subject to irregular and occasional changes of height, without fixed quantity or time, except that they are periodical, recurring with the wet or dry seasons of the yearhigh-water mark, as a line between the riparian owner and the public, is to be determined by examining the bed and banks, and ascertaining where the presence and action of the water are so common and usual, and so long-continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects the nature of the soil itself. "High-water mark" means what its language importsa water mark. It is co-ordinate with the limit of the bed of the water; and that, only, is to be considered the bed which the water occupies sufficiently long and *31 continuously to wrest it from vegetation, and destroy its value for agricultural purposes. Ordinarily, the slope of the bank and the character of its soil are such that the water impresses a distinct character on the soil, as well as on the vegetation. In some places, however, where the banks are low and flat, the water does not impress on the soil any well-defined line of demarkation between the bed and the banks. In such cases, the effect of the water upon vegetation must be the principal test in determining the location of high-water mark, as a line between the riparian owner and the public. It is the point up to which the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes by preventing the growth of vegetation.... (Emphasis supplied.)
See also, Merrill v. Bd. of Supervisors of Cerro Gordo County, 146 Iowa 325, 328, 125 N.W. 222, 224 (1910); Ephraim Creek Coal & Coke Co. v. Bragg, 75 W.Va. 70, 73, 83 S.E. 190, 191 (1914). "The value for agricultural purposes is destroyed where terrestrial plants not all plant life ceases to grow." Borough of Ford City v. United States, 345 F.2d 645, 648 (3rd Cir.1965), cert. denied, 382 U.S. 902, 86 S.Ct. 236, 15 L.Ed.2d 156 (1965).
Thus, under ordinary circumstances, the OHWM will be set at the level where there is a distinct mark which evidences erosion, and changes in the character of the soil, and destruction of terrestrial vegetation, which have occurred under the ordinary and continuous conditions of the lake, disregarding periods of extreme and periodic freshets, and disregarding the highest water mark which does not evidence erosion and soil changes and destruction of vegetation occasioned under ordinary conditions. If a single distinct mark, occasioned under ordinary circumstances and evidencing all of the factors delineated above does not exist, i.e., there is conflicting evidence of the role of the OHWM, it is the level where significant, major, and substantial terrestrial vegetation ends, that the OHWM is to be set. See Borough of Ford City, 345 F.2d at 648; State, Dep't of Natural Resources v. Pankratz, 538 P.2d 984, 989 (Alaska 1975); Hayes v. State, 254 Ark. 680, 684, 496 S.W.2d 372, 374-75 (1973); Tilden v. Smith, 94 Fla. 502, 513, 113 So. 708, 712 (1927); Carpenter v. Bd. of Comm'rs, 58 N.W. at 297; Rutten v. State, 93 N.W.2d 796, 799 (N.D.1958); Anderson v. Ray, 156 N.W. at 594; and Ephraim Creek Coal & Coke Co. v. Bragg, 83 S.E. at 191.
In the present case, conflicting evidence was presented as to the Waubay OHWM. Erosion and soil changes existed at the 1799.3 level but the soils below 1799.3 are usable for agricultural purposes and the water level reached this point in the late 1800's during a period of heavy rain and snowfall. The lake has not reached that level since that time and roads, houses, and significant and substantial terrestrial vegetation exist below the 1799.3 level. Thus, the mark at the 1799.3 does not encompass all three relevant factors and it was not the result of ordinary conditions at Waubay Lake. The Board appropriately established the Waubay Lake OHWM at the elevation of 1,787 feet mean sea levelthe level where significant and substantial terrestrial vegetation ends.[5] The Board's decision was not clearly erroneous, arbitrary, an abuse of discretion, or in error as a matter of law. The circuit court's judgment reversing the Board is therefore reversed and the Board's decision reinstated.
II.
IS THE PUBLIC TRUST DOCTRINE APPLICABLE TO THE ESTABLISHMENT OF THE OHWM? WE HOLD THAT IT IS NOT.
As stated above, the State of South Dakota "holds title to the bed of [Waubay Lake] not in a proprietary capacity, but in *32 trust for the people that they may enjoy the use of [its] navigable waters for fishing, boating, and other public purposes freed of interference of private parties." Hillebrand, 65 S.D. at 418, 274 N.W. at 822-23. The riparian owner, however, owns down to the OLWM, but the public has a right of access up to the OHWM. The Federation contends that because the Waubay Lake OHWM was at 1799.3 when South Dakota entered the Union, an OHWM lower than 1799.3 cannot now be set without violating the trust under which the state holds the bed of Waubay Lake. For the reasons outlined below, we find the public trust doctrine inapplicable to the establishment of the OHWM.
First, the OHWM is established by the processes of nature and the Board's setting thereof is merely a formal recognition of the mark established by nature. The riparian owner has title to relictions or accretions to his land, Hillebrand, id., and the trust held by the state, and the public's right of access does not apply "to lakes, which at some former time might have been public or navigable, but which have been by some natural cause permanently and forever changed in character, so that the public could no longer reasonably claim to use the same for such public purpose." Flisrand, 35 S.D. at 471, 152 N.W. at 801. Thus, the public trust is subject to changes in the character of a lake, and this includes a lowering of the OHWM.
Second, even assuming the Federation's contention to be valid, there is insufficient evidence in the record to clearly establish that Waubay Lake was at 1799.3 when South Dakota entered the Union in the year 1889. The Federation's contentions on this issue are not sustainable.
We have examined the other contentions raised herein and find them to be without merit. The Federation is not entitled to attorney fees nor the costs awarded below.
The circuit court judgment appealed by the Board is reversed and the Board's decision is reinstated. The circuit court judgment which awarded the Federation costs, is also reversed, and the same circuit court judgment which denied the Federation recovery of attorney fees is affirmed.
MORGAN, J., and HERTZ, Circuit Judge, Acting as Supreme Court Justice, concur.
FOSHEIM, C.J., and WUEST, J., dissent.
WUEST, Justice (dissenting).
I would affirm the trial court. The proper scope of review in a case such as this, when the issue is a question of law, is that the decisions of the administrative agency and the circuit court are fully reviewable. Johnson v. Skelly Oil Co., 359 N.W.2d 130 (S.D.1984); see also Matter of Change of Bed Category of Tieszen, 343 N.W.2d 97 (S.D.1984); Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981). When the issue is a question of fact, however, we ascertain whether the administrative agency was clearly erroneous. Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); State, Div. of Human Rights v. Miller, 349 N.W.2d 42 (S.D.1984). This dissent is based on: (1) a misapplication of the law; and (2) the fact that Board's decision was clearly erroneous under the facts.
In my opinion, the South Dakota Water Management Board (Board) did not follow the legal definition of an ordinary high water mark (OHWM). SDCL 43-17-20(2) provides:
(2) `Ordinary high water mark,' the high level reached by the waters of a lake under ordinary and continuous conditions, unaffected by periods of extreme and periodic freshets. The ordinary high water mark is indicated by the continuous presence and action of water which leave a distinct mark either by erosion, destruction of terrestrial vegetation, or some other easily recognized characteristic. (Emphasis added.)
None of the elements required under this statutory definition are found at the elevation of 1787 chosen by Board. The statutory *33 definition leaves no doubt that there must be a distinct mark before Board can say that it has set an OHWM. Secondarily, they must have evidence which indicates this distinct mark by one or more of three methods: (1) erosion lines, (2) destruction of terrestrial vegetation, or (3) some other easily recognized characteristic. Board's decision fails to meet any of these statutory elements.
SDCL 43-17-23 further mandates that natural factors take precedence in determining an OHWM. Influences caused or created by human beings are to be disregarded unless they have lawfully existed for such a period of time that they could be deemed the equivalent of natural conditions.
While the codified definition of an OHWM is generally consistent with previous South Dakota Supreme Court decisions and federal case law, the statutory language itself is obviously controlling. The OHWM concept originated in English common law several centuries ago. See, generally, Flisrand v. Madson, et al., 35 S.D. 457, 152 N.W. 796 (1915); Anderson v. Ray, 37 S.D. 17, 156 N.W. 591 (1916).
Both South Dakota statute and case law require the existence of an actual, physical mark as a sine qua non in establishing an OHWM. SDCL 43-17-20(2) by its very terms requires a distinct mark, which it goes on to describe as an easily recognized characteristic. This is consistent with the early, definitive opinion of this court in Anderson, supra: "`High-water mark' means what its language importsa water mark." 37 S.D. at 25, 156 N.W. at 594. Thus, Board misinterpreted the definition of an OHWM as a matter of law, for it has not set the mark where there is a distinct mark that is easily recognized. The attached exhibit consists of two photographs. The legend of Photo No. 2 in the lower right corner clearly depicts the distinct mark that is easily recognized. This is but one of several photographs depicting this distinct mark near the same elevation.
Not once did Board contend there was any kind of a distinct mark at elevation 1787. There are no findings of fact to that effect, nor is there any analysis in Board's brief that would claim that a distinct mark is present at 1787.
The undisputed evidence in this case establishes that Waubay lakes constitute a single watershed essentially unchanged since their glacial origin 10,000 years ago. The best evidence available indicates that when South Dakota entered the Union in 1889, Waubay lakes were "full" at the elevation of 1799.3. Since that time, two outlet structures, both man made, were built at elevations of 1798.2 and 1797.0. Obviously, the lakes cannot reach the elevation of 1799.3 while these man-made outlet structures remain. If man-made outlets can be a determining factor, the high water mark could be anything above the lake bed.
The primary field work and on-site investigation to determine the physical evidence of the OHWM for Waubay lakes was conducted in 1982 by Natural Resources Engineer Jerry E. Steffen (Steffen), an experienced, professional member of Board's staff, who has conducted numerous other similar investigations for Board. His study formed the basis of the original official recommendation to Board on this particular matter.
Mr. Steffen generally selected and studied shoreline areas, which were the least affected by human contact. The specific purpose of his investigation was to "ascertain where the continuous presence and action of water has left a distinct mark; either by erosion, destruction of terrestrial vegetation, or some other easily recognized characteristic." As part of his investigation, he considered the size of the watershed area, the precise nature of the watershed, the topography, soils, and general characteristics of the lakes. The physical evidence he found led him to the ultimate conclusion that the OHWM for Waubay lakes was at elevation 1799.3.
One of the primary indicators Steffen observed and analyzed was the presence and location of erosion lines. Erosion lines left by the presence and action of water are characterized by changes in soil material *34 and by an actual change in the slope of the ground. The presence and action of water separates the smaller clay and silt particles from the sands and gravels and also modifies the slope of the ground, thereby creating an observable line between the bed and banks of a lake. Steffen found the erosion lines to be the single most consistent objective, physical indicator of the OHWM on Waubay lakes.
Easily recognized and definable erosion lines were found between the elevations of 1798.4 and 1800.6, with the vast majority occurring precisely at 1799.3. No contradictory evidence on this point was ever presented. Even the 1983 Supplemental Report refers specifically to the very obvious high water mark found at elevation 1799.3 and indicates that it is a mark denoted by "continuous erosion marks," well-defined beach scarps (a steep slope above 1799.3), ridges (an elongated elevation below 1799.3), bounder lines, and significant changes in soil characteristics.
The dramatic change in soil characteristics also heavily supports the obvious high water mark found only at 1799.3. The 1799.3 elevation precisely and dramatically divides highly different soils. Above 1799.3, First-Class Soils, particularly well suited for good, tillable farm land, predominate. Below elevation 1799.3, Third-Class Soils, not at all suited for intensive cultivation, are found. These latter soils consist of Type 16, known as Foxhome sandy loan, a soil which is developed in gravelly and stony water-washed glacial till and is periodically flooded. Type 21, Maple Silty clay loan, is a soil with a very high soluble salt content.
Another physical indicator observed by both Steffen and Chief Engineer John Hatch (Hatch) was a clear-cut relationship between the high water mark elevation of 1799.3 and the two man-made outlet elevations of 1797.0 and 1798.2. The specific conclusion drawn was that throughout the 10,000-year history of Waubay lakes, the presence and action of water has reached the elevation of 1799.3 so often that it has produced drastic changes in the land up to that elevation. (Man-made influences, such as these outlets, are to be disregarded in establishing the OHWM. SDCL 43-17-23.)
Trees and other terrestrial vegetation showed several patterns. Older oak trees are found only above the high water mark found at 1799. There are established lines of eighty-year-old trees found at elevations 1797 down to 1796. Between 1796 and 1788 there is random tree growth with no clearly established lines. Very small trees and shrubs are found below elevation 1787. Board and the majority opinion rely upon the existence of the eighty-year-old trees to buttress their decision, however, one should note that the man-made outlets at 1797.0 and 1798.2 would effectively eliminate a water level above 1797.0; and, thus, the highest elevation at which a tree line could occur after these structures were built would be 1797.0.
The final additional, physical characteristic studied and presented at the hearings concerned the actual levels of one or more of the five interconnected lakes at issue. The only actual water levels systematically recorded were those begun by the staff of the Waubay National Wildlife Refuge in 1960. There are only sketchy reports between 1890 and 1960. Precipitation amounts were recorded for the cities of Webster and Sisseton, both of which are nearby; but outside the actual watershed of Waubay lakes. The actual watershed reaches from a point one mile northeast of Webster to Grenville in Day County, a distance of about ten miles.
Finally, Steffen found the remains of the original trails used by the first white settlers in the area, which would have been made a few years before South Dakota's entry into the Union. These trails follow the OHWM of 1799.3 recommended by Steffen in his 1982 report and show that they did not go below that mark with their trails in that era.
Engineer Steffen recommended that the OHWM of Waubay lakes be set at 1799.3, based on erosion mark elevations, the outlet structure elevation, water level elevations, precipitation records, and the actual *35 hydrological characteristics of the entire watershed area for Waubay lakes. Board's staff, including Engineer Hatch, concurred fully with that report. Nevertheless, at the conclusion of the December 1982 hearing, it was apparent to Division that Board, in the face of emotional, heated opposition from a number of private individuals, was not inclined to accept that level. Hatch requested that Board provide direction on where it wanted Its staff to go before the continuation of the hearings in 1983.
Although Steffen presented the supplemental report at the July 1983 meeting, he did not agree with this new report signed by Hatch. Steffen reminded Board of the obvious characteristics pointing to a high water mark of 1799.3. He also reminded Board that his 1982 report was based on the 10,000-year history of Waubay lakes. At the April 25, 1984, hearing, Steffen testified that Hatch had found nothing wrong with his original report until the close of the 1982 hearings. After that 1982 hearing, he was directed by Hatch to go out and find evidence below the 1799.3 level. Steffen unequivocally testified that he did not agree with the conclusion contained in the supplemental report and still categorically agreed with his original recommendation of 1799.3. Hatch, the author of the supplemental report, never testified at any of the hearings on this matter.
Steffen has been the engineer involved in all of the prior OHWM determinations of Board except one.
I am authorized to state that Chief Justice FOSHEIM joins in this dissent.
*36 APPENDIX B
PHOTOS OF TRESS GROWING BELOW THE OHWM
*37
NOTES
[1] This statutory language was modified by the enactment of 1985 S.D.Sess.Laws ch. 337, § 2, so that presently, the definitions of "ordinary high water mark" and "ordinary low water mark" are defined in the decisions rendered by the courts of this state.
[2] See photographs appended to dissent. Obviously, these cottonwood trees would not have grown, for they would be under water per the theory of the circuit court which theory is adopted by the dissent.
[3] When establishing a lake's OHWM and OLWM, the Board, or its designated representative, is required by SDCL 43-17-24, inter alia, to physically investigate the site.
[4] This does "not mean that the state is the proprietary owner in the sense that the state might sell or otherwise dispose of the same to private individuals for private ends, but that the state holds the title to such lake bed in trust for the benefit of the public." Flisrand, 35 S.D. at 470, 152 N.W. at 800.
[5] The 1,787 OHWM is also consistent with an intermittent ridge line; the highest water level reading since 1960; and the water level indicated by a 1953 map. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3354158/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
Petitioner claims to have been arrested on May 15, 1996 for a crime that was obviously committed prior to July 1, 1996 which is prior to the effective date of Public Act No. 95-255 § 1. Petitioner claims that under Gus Woods v. Warden he should be required to serve only fifty percent of his sentence instead of eighty-five percent of his sentence before being eligible for parole.
In accordance with Gus Woods, Jazrael King and Miguel Rentas v. Warden
and the decision on Gregory Lytell v. Warden State Prison, the habeas petition is granted, the court having found in the aforementioned cases that Public Act 95-255 § 1 is ex post facto and, therefore, unconstitutional as to inmates whose crimes were committed prior to July CT Page 14076 1, 1996. Assuming the date of May 15, 1996 is correct, the court hereby makes the same ruling as in the aforementioned decisions, copies of which are attached.
Rittenband, JTR | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1584123/ | 728 N.W.2d 9 (2006)
2007 WI App 13
In the Matter of the REFUSAL OF Darren A. KLISS.
State of Wisconsin, Plaintiff-Respondent,
v.
Darren A. Kliss, Defendant-Appellant.
No. 2006AP113.
Court of Appeals of Wisconsin.
Submitted on Briefs September 21, 2006.
Opinion Filed December 6, 2006.
*10 On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael C. Witt of Monogue & Witt, S.C., Jefferson.
On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Wallace K. McDonell of Harrison, Williams, McDonell & Swatek, L.L.P., Whitewater and Michael C. Sanders, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.
¶ 1 SNYDER, P.J.
Darren A. Kliss appeals from an order holding that he unlawfully refused to submit to an evidentiary chemical test, contrary to WIS. STAT. § 343.305(9) (2003-04).[1] Kliss contends that the circuit court applied an improper legal standard when it determined that an oversupply of information did not interfere with his ability to make a choice under the implied consent law. Specifically, he argues that the court used a subjective standard, rather than an objective standard, to hold that he unlawfully refused the chemical test. In the alternative, Kliss argues that even under a subjective test, his refusal was lawful. We disagree and affirm the order of the circuit court.
BACKGROUND
¶ 2 On Friday, February 4, 2005, at approximately 11:48 p.m., City of Whitewater Police Officer Lakentric Thomas was dispatched to the scene of a traffic incident reported by fellow officer, Matteson. Matteson stated that he was at an intersection when a pickup truck crossed the centerline while turning, and came within inches of striking Matteson's vehicle. When Thomas arrived, Matteson was talking to an adult male, later identified as *11 Kliss. Thomas approached and noted that Kliss had a strong odor of intoxicants on him. Kliss stated that he was from Illinois and was not familiar with Whitewater and that he had just come from a bar. Kliss consented to field sobriety tests, which he failed.
¶ 3 Thomas advised Kliss that he was going to arrest him for operating a motor vehicle while intoxicated (OWI). Kliss consented to a preliminary breath test, which produced a .164 blood alcohol content result. Thomas searched Kliss and his vehicle incident to arrest. While searching the vehicle, Thomas observed a plastic baggie that contained a "plant-like" substance and smelled of marijuana. Kliss denied owning the baggie and stated that he had given other people rides in his truck that night. Thomas also found what appeared to be a marijuana cigarette and marijuana flakes inside the vehicle.
¶ 4 Thomas took Kliss to the police department and read him his Miranda[2] rights. Thomas then asked Kliss, "[D]o you wish to answer questions now?" Kliss replied, "No." Approximately twenty minutes later, Thomas issued Kliss a citation for OWI, first offense. He then read Kliss the Informing the Accused form. Kliss asked Thomas how this would affect his Illinois drivers license. Thomas responded that he did not know how it would affect his Illinois license. Thomas then asked Kliss if he would submit to an evidentiary chemical test of his breath. Kliss responded, "No." Thomas recorded this as a refusal and issued Kliss a Notice of Intent to Revoke. Thomas issued two municipal citations, one for OWI and one for possession of marijuana.
¶ 5 Kliss filed a request for a refusal hearing and the municipal court dismissed the refusal revocation. The City of Whitewater appealed the decision to the circuit court and a hearing was held on January 10, 2006. Following testimony from Thomas and arguments by the parties, the circuit court held that Kliss unlawfully refused to submit to the evidentiary chemical test of his breath. Kliss appeals.
DISCUSSION
¶ 6 Kliss presents one issue on appeal: Is the application of the Reitter[3] rule to be based upon the objective standard applied in prior implied consent case law, or the subjective understanding of the accused? Kliss asserts that the circuit court improperly applied a subjective test in evaluating whether Kliss was misled to believe he had the right to counsel before submitting to an evidentiary chemical test under WIS. STAT. § 343.305, the implied consent law. He further contends that, even if his subjective understanding of the implied consent warning is an appropriate consideration, his refusal was nonetheless lawful.[4] The application of the implied *12 consent law to an undisputed set of facts presents us with a question of law, which we review de novo. State v. Rydeski, 214 Wis. 2d 101, 106, 571 N.W.2d 417 (Ct.App. 1997).
¶ 7 We begin by tracing the relevant case law. In 1980, our supreme court held that the desire to consult with an attorney before deciding whether to submit to an evidentiary chemical test under the implied consent law is not a valid reason to refuse the test. State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980). Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering. Id. at 200, 205, 289 N.W.2d 828.
¶ 8 Fifteen years later, we observed that the implied consent warnings are analogous to those employed in Miranda-type cases. County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct.App.1995). We stated:
The Miranda warnings themselves are not confusing such that understanding the warnings affects a person's unconstrained will to confess to a crime. The police, however, may create confusion for the accused by misstating the warnings or using other coercive and manipulative means to procure information. There are similar problems that may occur when police deliver the implied consent warnings.
Id. at 276-77, 542 N.W.2d 196 (citations omitted). We identified a three-part test to assess the adequacy of a warning provided under the implied consent law. Id. at 280, 542 N.W.2d 196. The test asks: (1) whether the officer had met or exceeded his or her duty to provide the statutory information to the accused driver, (2) whether the lack or oversupply of information was misleading, and (3) whether the failure to properly inform the driver affected the driver's ability to make a choice about the evidentiary chemical test. Id. In Quelle, we expressly rejected a subjective confusion defense, holding that "the legislature has adequately addressed any risk of confusion by imposing a statutory duty on the police to provide accused drivers with specific information." Id. at 281, 542 N.W.2d 196. We rejected Quelle's argument that "an officer has a duty to `explain' and not merely read the information form, thereby reducing the chance that an accused driver would be `subjectively confused' by the warnings." Id. at 280, 542 N.W.2d 196.
¶ 9 Shortly thereafter, the supreme court again addressed the right to counsel in the context of the implied consent law. In State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), the issue before the court was "whether the implied consent statute imposes an affirmative duty upon a police officer to inform a defendant that there is no right to counsel in the implied consent setting, and whether a defendant's request to consult with an attorney constitutes a statutory refusal to submit to a chemical test." Id. at 223, 595 N.W.2d 646. The Reitter court held that no affirmative duty to advise defendants existed. Id. at 242-43, 595 N.W.2d 646. It distinguished Reitter's situation from that presented in Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959), where the defendants were actively misled to believe *13 they had a right where none existed. Reitter, 227 Wis.2d at 241, 595 N.W.2d 646 (citing Raley, 360 U.S. at 438, 79 S. Ct. 1257). Unlike the situation in Raley, our supreme court explained, Reitter's arresting officer "neither expressly assured nor implicitly suggested that Reitter had a right to counsel." Reitter, 227 Wis.2d at 241-42, 595 N.W.2d 646. The court noted that Reitter did not assert that he was provided the Miranda warnings or that he was in fact confused. Id. at 229-30, 595 N.W.2d 646.
¶ 10 More recently, this court revisited the issue in State v. Verkler, 2003 WI App 37, 260 Wis. 2d 391, 659 N.W.2d 137. There we expressly relied on the Reitter holding to conclude that "[i]f the officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel, that officer may not thereafter pull the rug out from under the defendant if he or she thereafter reasonably relies on this assurance or suggestion." Verkler, 260 Wis. 2d 391, ¶ 8, 659 N.W.2d 137. In Verkler, the arresting officer allowed Verkler to consult with his law partner at the scene of the traffic stop. Id., ¶ 9. We concluded however, that there was no assurance or suggestion by the officer that Verkler had a right to consult legal counsel about whether to submit to the evidentiary chemical test. Id., ¶ 10.
¶ 11 Now the issue presents itself with a new, though clearly anticipated, factual element: the Miranda warning. In Reitter, the supreme court hypothesized that if Reitter had claimed that his or her insistence for a lawyer "fell under the shadow of a Miranda warning, he might have made an argument for obligating the [officer] to clarify any resulting right to counsel confusion. Instead, Reitter offers little that would tempt us toward embarking down the tangled O'Connell path." Reitter, 227 Wis.2d at 230, 595 N.W.2d 646.[5] In Verkler, we acknowledged that Miranda "is now a household word in the United States," and anticipated that the situation might arise where a reasonable person would think the right to counsel attached in the implied consent context. See Verkler, 260 Wis.2d at 391, ¶ 4, 659 N.W.2d 137 (referring to our certification of the Reitter case to the Wisconsin supreme court).
¶ 12 With this history in mind, we turn to Kliss's contentions of error. Referencing Verkler, Kliss argues that "the reading of the Miranda warnings prior to the administration of the Informing the Accused is misleading, and does objectively impact the accused's ability to make the choice about chemical testing." Though Kliss would have us conclude that this scenario will always create a duty on the part of the officer to clarify that Miranda does not apply to the request for a chemical test under WIS. STAT. § 343.305, we do not read Verkler to create such a bright line rule.
¶ 13 Where an officer reads the Miranda warning prior to reading the Informing the Accused, the Reitter test must still be applied. First, we must ask whether Kliss was told he has the right to consult with counsel before deciding to submit to chemical testing. See Verkler, 260 Wis. 2d 391, ¶ 6, 659 N.W.2d 137. If he was, we must decide whether Kliss relied on the assurance or suggestion when responding to the request for a chemical test. See id., ¶ 8.
*14 ¶ 14 There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused. Thus the argument can be made that Thomas explicitly assured Kliss he had the right to remain silent and to obtain counsel prior to responding to the request for an evidentiary chemical test. This proposition would be more persuasive had there not been a drug charge accompanying the OWI charge. The discovery of marijuana provides the explanation for the Miranda reading here. If OWI had been the only concern, Kliss would have a stronger argument that the Miranda warning pertained to Thomas's request for the chemical test.
¶ 15 For purposes of our analysis here, we will assume without deciding that the first part of the Reitter test has been met. Accordingly, we turn our attention to the second element, that of reliance. The State directs us to relevant portions of circuit court's analysis:
[COURT]: The question is, did [Kliss] get advised of Miranda? He clearly did, before the informing the accused was read, he clearly did. Did he then invoke his rights under Miranda?
And here's what Miranda says. It says, "You have the right to remain silent." Let's stop a second. Did he exercise that right? He had been told he had that right.
He was then read the informing the accused. Wasn't asked for anything until it was all read, and then it said, the question was, "Will you agree to a test of your breath, blood?"
Did the defendant firm his lips up and answer with absolute silence? No. Did he say, "I invoke my right to silence," which would be the equivalent? Did he say, "I decline to answer," which would be the same? No. He said "no."
. . . .
It then says, "Anything . . . you say can and will be used against you in a court of law." He's told that. What does he say? He says "no."
. . . .
Third warning, "You have the right to talk to a lawyer and have him present with you while you are being questioned."
Did [Kliss], after getting that particular right, say to the officer after the informing the accused, instead of "No, I want my lawyer and I want to consult with my lawyer first?" It would have been an interesting problem, because he'd been told he could. No, he did not do that.
. . . .
Finally, fifth, "You can decide at any time to exercise these rights and not answer any questions or make any statements." I don't have to answer. He could shut up. Or he could say something that clearly invoked his right. . . . That's not what he did. He said "no." That meant that with full knowledge that had been given to him under Miranda rights, I have no reason to believe it wasn't a totally voluntary statement: No, I refuse to take the test.
. . . .
I find that he did refuse. I find in no way that he exercised his right to remain silent.
The State asserts that the circuit court properly determined that Kliss unlawfully refused to take the test.
¶ 16 Kliss contends that the circuit court improperly applied a subjective confusion analysis, which has been expressly rejected in Wisconsin. He directs us to the language in Quelle, 198 Wis.2d at 280, 542 N.W.2d 196, where we stated that "subjective confusion" is not a recognized defense. In Quelle, we expressly rejected *15 any assessment of "the driver's perception of the information delivered to him or her." See id. We agree with Kliss that subjective confusion is not recognized in Wisconsin; however, subjective confusion is not the standard that the circuit court applied here. Rather, it engaged in an objective assessment as to whether Kliss's statements or conduct could be perceived as reliance on his right to remain silent or to obtain legal counsel with regard to the evidentiary chemical test. The record supports the circuit court's conclusion that there was no such reliance. While Thomas read the Informing the Accused form, Kliss asked him how his Illinois driving privileges would be affected. Such a question would have been more appropriately addressed to legal counsel had Kliss believed he had a right to an attorney at that point. Also, as the circuit court noted, Kliss gave an unequivocal "no" when asked to submit to the test.
¶ 17 The reading of Miranda does not, in and of itself, lead us to conclude that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Furthermore, we will not presume reliance on the Miranda warnings. Rather, we apply the two-part Reitter test to the facts on a case-by-case basis. The court must determine whether, under the facts of the case, the Miranda warning mislead the defendant to believe the right to remain silent and to have an attorney apply in the implied consent context. If so, the court must then determine whether the defendant invoked the Miranda rights when faced with the decision whether to submit to an evidentiary chemical test. Only where both factors are present will a refusal be deemed lawful.
CONCLUSION
¶ 18 Kliss must demonstrate both elements of the Reitter test, and his failure to show that he relied on the Miranda warning before he refused to submit to the evidentiary chemical test resolves the appeal. Where there is no reliance, the officer is under no duty to advise the defendant that the right to counsel does not attach to the implied consent statute. See Reitter, 227 Wis.2d at 231, 595 N.W.2d 646. Accordingly, we affirm the order of the circuit court.
Order affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise stated.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thomas read the following to Kliss:
Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to talk to a lawyer before questioning and to have the lawyer with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be appointed for you without charge prior to any questioning. If you decide to start answering questions at this time, you can stop any time during the questioning.
[3] State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999).
[4] We observe that Kliss, in his appellate brief, is inconsistent in his use of pinpoint citations for the case law he invokes to support his legal contentions. WISCONSIN STAT. RULE 809.19(1)(e) requires the appellant to support its contentions with citations conforming to the Uniform System of Citation and Supreme Court Rule 80.02. A citation to a specific legal principle from case law shall include a reference to the page number, or paragraph number if a public domain citation is available, where the legal principle may be found. SCR 80.02(3). The rules of appellate practice are designed in part to facilitate the work of the court and such intermittent compliance with the rules improperly burdens the appellate court.
[5] The quoted language references Commonwealth v. O'Connell, 521 Pa. 242, 555 A.2d 873, 878 (1989), where the Pennsylvania supreme court held that arresting officers have a duty to warn arrestees that Miranda rights do not apply in the implied consent setting. See Reitter, 227 Wis.2d at 227, 595 N.W.2d 646. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584148/ | 24 So. 3d 754 (2009)
L.D., Petitioner,
v.
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES and Florida Guardian ad Litem Program, Respondents.
No. 09-3194.
District Court of Appeal of Florida, Third District.
December 30, 2009.
*755 Kele S. Williams, University of Miami School of Law, Children & Youth Law Clinic, for petitioner.
Karla Perkins, Assistant District & Legal Counsel, for the Florida Dept. of Children & Families; Hillary Kambour, for the Guardian ad Litem Program.
Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
RAMIREZ, C.J.
This is a petition for writ of certiorari to review: (1) a non-final order denying L.D.'s motion to terminate visitation by a non-relative; and (2) a non-final order denying the Florida Department of Children and Families' ("DCF") Motion for Termination of Supervision. Because the trial court never entered a written order on DCF's motion, we deny certiorari as to the department's motion, but we quash the order denying L.D.'s motion.
W.W. is the four-year old son of petitioner L.D. He was adjudicated dependent as to the mother on November 22, 2005. N.H., a non-relative who knew the family, agreed to take custody of the child. L.D. and N.H. entered into a guardianship agreement on August 22, 2007. N.H. was given legal custody of the minor child, but the agreement did not terminate L.D.'s parental rights. Over the next two years, L.D. maintained a relationship with the child, successfully passed the General Educational Development tests, rented her own apartment, and enrolled as a full-time student at Miami Dade College.
On January 5, 2009, the mother filed a Motion for Reunification as Custodian/Guardian of Minor Child. N.H. signed a declaration in support of that motion. On April 29, 2009, the trial court granted the motion and awarded L.D. legal custody of the minor child. The court also entered a case plan that provided for six months of protective supervision. The April 29, 2009 Order awarded N.H. unlimited, unsupervised visitation rights with the child. A subsequent order on July 15, 2009, directed unsupervised weekend visits every other weekend, from Friday at 7:00 p.m. through Sunday at 7:00 p.m. The mother complied with this visitation order and the case plan. On October 28, 2009, expecting that DCF was ending protective supervision, she moved to end court-ordered visitation, specifying that visitation would be in her discretion after the case closed. The trial court denied the motion to terminate visitation, stating that N.H. was the child's "psychological parent" and that it was in the child's best interests to have continued visitation. The case was reset for November 18, 2009.
DCF subsequently filed a Termination of Supervision Report stating that L.D. "has been in compliance with her case plan. [L.D.] completed her Evidence Based-Parenting Classes, Dyadic Therapy, Individual Therapy and Domestic Violence classes." The Report also states that "the child's home environment is positive" and requested that supervision be terminated and the child remain in the custody of the mother. DCF also recommended that visitation with N.H. be in the mother's discretion. The Guardian ad Litem filed a report stating that "all of [the Child's] needs are being met and he has adjusted well. He is completely comfortable in this home." The Guardian ad Litem recommended that the case be closed with clarity as to visitation for N.H. Neither DCF nor the Guardian raised any concerns about the mother's ability to care for the child or the child's safety.
The trial court orally denied DCF's motion for termination of supervision because the parties could not agree on N.H.'s visitation *756 rights. The court further ordered that the case remain open until it could review a case plan at a hearing on April 7, 2010.
The standard of review on a petition for a writ of certiorari is whether the circuit court departed from the essential requirements of law so as to materially injure the petitioner throughout the remainder of the proceedings. Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390, 393 (Fla. 3d DCA 2008). To merit certiorari review, we must find that (1) the trial court departed from the essential requirements of the law; (2) this departure will result in material injury for the remainder of the case; and (3) the departure cannot be corrected on post-judgment appeal. See D.G. v. Department of Children and Families, 16 So. 3d 972, 973 (Fla. 3d DCA 2009).
Florida law makes no provision for visitation between unrelated parties. A court has "no authority to compel visitation between a child and one who is neither a parent, grandparent, or great-grandparent. Visitation rights are, with regard to a non-parent, statutory, and the court has no inherent authority to award visitation." Meeks v. Garner, 598 So. 2d 261, 261 (Fla. 1st DCA 1992) (internal citations omitted). Chapter 39 does not provide for visitation by non-relatives. Furthermore, Florida courts have held that an order granting visitation rights to a non-parent of a child in the custody of a fit parent is unjustified and unenforceable. See Fischer v. Fischer, 544 So. 2d 1079 (Fla. 2d DCA 1989); see also Sandor v. Sandor, 444 So. 2d 1029 (Fla. 3d DCA 1984).
We find the facts of this case indistinguishable from the facts in D.G. v. Department of Children and Families, 16 So. 3d 972 (Fla. 3d DCA 2009), where we granted certiorari review and quashed an order granting the maternal grandparents unsupervised visitation rights. We explained:
Section 39.509, Florida Statutes (2008), entitles grandparents to reasonable visitation rights, subject to certain exceptions when the grandchild "has been adjudicated a dependent child and [has been] taken from the physical custody of the parent." However, all such visitation rights terminate "when a child has been returned to the physical custody of his or her parent." § 39.509(4); T.M. v. Dep't of Children & Families, 927 So. 2d 1088, 1089 (Fla. 4th DCA 2006) (reversing visitation order in favor of maternal grandmother after the child was returned to the physical control of the mother); accord L.B. v. C.A., 738 So. 2d 425, 427 (Fla. 4th DCA 1999); see also Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla.1998) ("Neither the legislature nor the courts may properly intervene in parental decisionmaking absent significant harm to the child threatened by or resulting from those decisions").
We cannot give greater rights to N.H. in our case, an individual who is not related to the child, than we did to the grandparents in D.G.
Petition granted, order quashed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584166/ | 427 So. 2d 1106 (1983)
Wayne BROWNLEE, Appellant,
v.
The STATE of Florida, Appellee.
No. 81-1871.
District Court of Appeal of Florida, Third District.
March 15, 1983.
Flynn, Rubio & Tarkoff and Michael Tarkoff, Miami, for appellant.
Jim Smith, Atty. Gen., for appellee.
Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr., Associate Judge.
*1107 FERGUSON, Judge.
Appellant, Wayne Brownlee, after conviction for aggravated battery and firearm possession was, sentenced pursuant to the Youthful Offender Act. He seeks reversal of the convictions asserting: (1) he was denied a speedy trial as required by Rule 3.191, Florida Rules of Criminal Procedure, and (2) where the information specifically described the firearm as a short-barreled shotgun, he could not be convicted of unlawfully possessing a pistol.
Appellant was arrested on September 26, 1980. The Public Defender was appointed to represent him and trial was set for February 9, 1981. On January 23, 1981, in open court, the public defender filed a motion to withdraw, certifying that there existed a conflict of interest in representing appellant in that the Public Defender's office had some professional relationship with the victims in the case. The matter was reset to January 30, 1981 for the purpose of appointing a new attorney. Notice of hearing for appointment of new counsel was mailed to appellant. On January 30, 1981, new counsel accepted an appointment to represent appellant and the public defender was discharged. Appellant was not present. When informed of the trial date, new counsel indicated that the time to prepare was inadequate. His motion for continuance of trial was granted and the case was reset for trial on March 23, 1981. On March 23, 1981, appellant and his attorney appeared for trial but, because the state was unprepared, the case was again continued to May 26, 1981. On March 26, 1981, one day after expiration of the 180-day speedy trial period, appellant filed a motion for discharge on the ground that the state had failed to bring him to trial within 180 days. The motion was denied. On May 26, 1981, the state was again unprepared for trial. Appellant's new motion for discharge, heard and ruled upon on the same date, was denied.
As sub-issues under the speedy trial question, appellant makes two arguments. First, that the stated conflict of interest given by the public defender as a basis for withdrawing from the case is not one recognized by statute. We need not address the question because it was not preserved for review. After appearing for trial with the new attorney on several occasions, appellant never voiced an objection to the withdrawal of the public defender, opposition to the rescheduled trial date or dissatisfaction with his new attorney. There were no objections communicated to the court by trial counsel, which acts or omissions are binding on appellate counsel. Castor v. State, 365 So. 2d 701 (Fla. 1978).
The second sub-issue is, assuming that there was a legitimate conflict of interest, whether the continuance granted by the trial court should have been charged to appellant. We fail to see, and appellant has not shown, why a continuance requested by him should have been charged to the state or the court. When the court granted the appellant's motion for continuance for the purpose of allowing additional time to adequately prepare for trial, even though circumstances might have been exceptional, there was a waiver of rights to be tried within 180 days; the state was then obligated to give appellant a speedy trial within a reasonable period of time. Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980), citing State ex rel. Butler v. Cullen, 253 So. 2d 861 (Fla. 1971) for standards governing speedy trial after appellant has been granted a continuance. When appellant moved for a discharge after 180 days had expired, Rule 3.191(d)(3) was triggered, requiring that appellant be tried within ninety days from the date his motion for discharge was denied, in that an earlier motion for continuance had been attributed to him. State v. Brown, 394 So. 2d 218 (Fla. 5th DCA 1981). He was tried on the eighty-first day after denial of the motion for discharge, well within the time limits.
On count II of the information appellant was charged with display of a short-barreled shotgun while committing a felony, and in count III he was charged with unlawful and felonious possession of a short-barreled shotgun. Appellant was acquitted on count III (the evidence showing *1108 that the firearm in his possession was not a short-barreled shotgun), and convicted on count II of display or use of a pistol while in the commission of a felony. It is true as appellant contends that the state, in a criminal case, must prove the allegations set up in the information, Lewis v. State, 53 So. 2d 707 (Fla. 1951), and it is also elemental that an accused cannot be convicted of an offense for which no charges have been brought. However, the variance between the allegation in the information and the proof in this case was not fatal. The offense, which is set out in Count II, is bottomed on Section 790.07, Florida Statutes (1981) which provides:
(2) Whoever, while committing or attempting to commit any felony ... displays, uses ... any firearm ... is guilty of a felony of the second degree... .
It is not essential to a conviction under Section 790.07(2) that the firearm used be described with particularity. The description of the firearm in the information was superfluous, and in the absence of a claim and showing of prejudice, the conviction will not be disturbed. See Grissom v. State, 405 So. 2d 291 (Fla. 1st DCA 1981) (indictment charging defendant with unlawful taking of cow contained immaterial variance from proof at trial showing defendant's unlawful taking of male calf); Ricks v. State, 224 So. 2d 413 (Fla. 3d DCA 1969) (no fatal variance where defendant charged with assault with a brick and proof demonstrated assault was committed with a rock). It was established to the exclusion of every reasonable doubt and is not challenged here that appellant shot the victim with a firearm.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584262/ | 728 N.W.2d 853 (2007)
AMERSON
v.
ALEHYA.
No. 05-0951.
Court of Appeals of Iowa.
January 31, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585095/ | 815 F. Supp. 377 (1993)
METRO BROKERS, INC., Plaintiff,
v.
Merle TANN, d/b/a "Metpro Brokers", Defendant.
Civ. A. No. 93-B-270.
United States District Court, D. Colorado.
March 1, 1993.
*378 *379 Scott S. Havlick, Donald A. Degnan, Holland & Hart, Denver, CO, for plaintiff.
Merle Tann, pro se.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION AND ORDER
BABCOCK, District Judge.
I.
Plaintiff Metro Brokers, Inc. (Metro Brokers) requests a preliminary injunction enjoining *380 defendant Merle Tann (Tann) from using the name "Metpro Brokers" in connection with his real estate brokerage business. On February 9, 1993 I entered a temporary restraining order (TRO) enjoining Tann and anyone associated with him from using the name "Metpro Brokers". I extended the duration of this TRO until 5:00 p.m. March 1, 1993. I held a preliminary injunction hearing on February 18, 1993. I will grant the preliminary injunction and enjoin Tann from using the name "Metpro Brokers" in connection with his real estate business.
Metro Brokers is suing Tann under the Lanham Act for trademark infringement (15 U.S.C. § 1114(1)(a)) and false designation of origin (15 U.S.C. § 1125(a)). Metro Brokers also alleges state law claims for trade name infringement, unfair competition, and deceptive trade practices. I have original jurisdiction over Metro Brokers' federal claims, 28 U.S.C. § 1338(a) and (b), and supplemental jurisdiction over Metro Brokers' state law claims, 28 U.S.C. § 1367(a). Because Tann resides in this district and the events giving rise to Metro Brokers' claims occurred in this district venue is proper. 28 U.S.C. § 1391(b). Below are my findings of fact, conclusions of law, and order enjoining Tann from using the name "Metpro Brokers":
II.
Metro Brokers is a trade association composed of stock holding members who offer real estate brokerage services in the Denver metropolitan area. Metro Brokers offers advertising, among other professional services, to its members. Metro Brokers does not broker real estate. Rather it lends its name to its members who own and operate their own real estate brokerage businesses. Members affiliate with Metro Brokers to take advantage of Metro Brokers' widespread advertising and to give customers the appearance that they are affiliated with an established, multi-agent real estate brokerage firm.
Affiliation with Metro Brokers enhances a real estate agent's advertising efforts. When a member uses the name "Metro Brokers, Inc." in his advertisements he is effectively advertising for every other member of Metro Brokers. Each advertisement using the name "Metro Brokers, Inc." increases Metro Brokers' name recognition for all other members. An individual member using the name "Metro Brokers, Inc." alone could not achieve this same level of name recognition. Each member also benefits from Metro Brokers' enforcement of its by-laws which provide for expulsion from the association if a member engages in conduct which harms Metro Brokers' goodwill and reputation. (See exhibit 3.) Metro Brokers actively enforces this by-law. As a result, Metro Brokers has members who conduct themselves professionally. Consequently, Metro Brokers and its members have achieved a good reputation in the Denver area.
Metro Brokers owns registered service mark no. 1,423,233 (mark '233) which is a red octagon with the name "Metro Brokers, Inc." imprinted inside of the octagon. Metro Brokers and its members: (1) use this red octagon in their advertising; (2) independent of the octagon, use the words "Metro Brokers, Inc." in all forms of their advertising, including television commercials, radio advertisements, print media, billboards, bus stop benches, and yard signs; (3) have used mark '233 and the words "Metro Brokers, Inc." in their advertising since Metro Brokers' incorporation in 1976; (4) have expended substantial sums in advertising and using the name "Metro Brokers, Inc." in their advertising; and (5) use the name "Metro Brokers, Inc." in all forms of their advertising to achieve name recognition. As a result of Metro Brokers' and its members' continuous and long use of the name "Metro Brokers, Inc." the public has come to understand that a real estate broker using the name "Metro Brokers, Inc." is associated with Metro Brokers.
Tann offers real estate brokerage services in the Denver metropolitan area. From November 21, 1991 until December 3, 1992 Tann was a shareholder in and a member of Metro Brokers. During this time, Metro Brokers authorized Tann to use mark '233 and the words "Metro Brokers, Inc." in connection with his real estate business.
Tann uses aggressive sales tactics which offend some customers. Several customers *381 have complained about Tann's sales tactics to the Colorado Real Estate Commission and Metro Brokers. These complaints caused Metro Brokers to expel Tann from the association on December 3, 1992. On December 4, 1992 Metro Brokers notified Tann that he must cease using mark '233 and Metro Brokers' name in his business. After Tann received this notice he changed the name of his business to "Metpro Brokers", the name his business had used before he joined Metro Brokers. Tann did not use a symbol similar to the red octagon registered under mark '233. Tann used the name "Metpro Brokers" to list property in the MLS and on his business cards until I enjoined him from using it on February 9, 1993.
When Tann was using the name "Metpro Brokers", a prospective home buyer, Kimberly Bradford (Bradford), thought he was associated with Metro Brokers. When Bradford informed Tann that she did not want to sign a buyer-broker agreement Tann became angry with her. Because of Tann's rude behavior, Bradford's husband informed his friends and associates to avoid doing business with Metro Brokers. Bradford also called Metro Brokers to complain about Tann. While Tann claims that he made it clear to customers that he was not associated with Metro Brokers, he admits that some customers initially would associate him with Metro Brokers. I find that Bradford and several other customers were actually confused concerning Tann's association with Metro Brokers.
Mark '233 does not register the words "Metro Brokers, Inc." alone. Nor does mark '233 register the red octagon alone. Rather, mark '233 registers a red octagon with the words "Metro Brokers, Inc." interposed inside of the octagon. After Metro Brokers revoked Tann's right to use mark '233 he never used a red octagon or symbol confusingly similar to the red octagon. Rather, his use of the words "Metpro Brokers" is the alleged infringing conduct at issue here. Metro Brokers argues that "Metpro Brokers" is confusingly similar to their name "Metro Brokers, Inc.". Because this term alone is unregistered, to qualify for protection under the Lanham Act and the common law it must be suggestive, arbitrary or fanciful, or descriptive with a secondary meaning. Union Nat. Bank, Laredo v. Union Nat. Bank, Austin, 909 F.2d 839, 844 (5th Cir.1990). In classifying this term a finder of fact must consider it with reference to the services it promotes. Union Nat. Bank, 909 F.2d at 846. Metro Brokers promotes the real estate brokering services of its members. The adjective "metro" identifies "brokers" as real estate agents who operate in a metropolitan area. This name gives the customer a sense that a Metro Brokers member has a city-wide real estate practice with many properties at his disposal. Accordingly, the term "Metro Brokers, Inc." serves a descriptive function.
Moreover, the name "Metro Brokers, Inc." describes more than the basic nature of the services offered by a Metro Brokers member. It gives a customer the impression that this broker knows the city and can locate many properties in this region. Also, the name "Metro Brokers, Inc." bears a relationship to the services offered by a Metro Brokers member. Moreover, this name requires little imagination to understand that it describes real estate brokering services.
The name "Metpro Brokers" appears and sounds similar to "Metro Brokers, Inc.". There is a strong probability that Tann intentionally used a name similar to "Metro Brokers, Inc." because of his prior association with Metro Brokers and his desire to continue to capitalize on Metro Brokers' advertising and good reputation. Furthermore, Tann used the name "Metpro Brokers" on his business cards and in MLS listings. Metro Brokers' members likewise use "Metro Brokers, Inc." in this manner. Finally, purchasers use little care in selecting a real estate agent. Bradford stated that she refused to sign a buyer-broker contract with Tann because she preferred to have several agents working for her. Bradford also indicated that a house's location, appearance, condition, and price drive a home purchaser's selection of a home. Based on her testimony I find that a real estate agent has little bearing on a house purchaser's selection of a home.
Tann's use of the name "Metpro Brokers" threatens Metro Brokers' good reputation. *382 Unless restrained from using the name "Metpro Brokers" it is likely that Tann's aggressive sales tactics will reflect badly on Metro Brokers. If enjoined from using the name "Metpro Brokers" Tann will have to change his business cards, stationary, several real estate listings, signs, and certain real estate registrations with the state. These changes will cost him less than $1,000.00.
III.
To obtain a preliminary injunction the moving party must establish that: (1) there is a substantial likelihood of prevailing on the merits; (2) it will suffer irreparable injury unless the injunction issues; (3) the threatened injury to it outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Longstreth v. Maynard, 961 F.2d 895, 902 (10th Cir.1992). Where, as here, the moving party makes a strong showing as to the second, third, and fourth elements the first factor is relaxed to require him to raise "questions so serious, substantial, difficult, and doubtful as to make them fair grounds for litigation and thus for more deliberate inquiry". Longstreth, 961 F.2d at 903. Nevertheless, because a preliminary injunction is an extraordinary remedy the right to relief must be clear and unequivocal. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991).
A.
Metro Brokers raises such serious, substantial, difficult, and doubtful questions concerning its section 43(a) Lanham Act (15 U.S.C. § 1125(a)) and common law claims that they are fair game for litigation and further inquiry. These claims have common elements. See Union Nat. Bank, 909 F.2d at 842 n. 6. To prove these claims Metro Brokers must show that the term "Metro Brokers, Inc." is descriptive, has a secondary meaning, and that Tann used a confusingly similar name to promote his services. See American Television v. American Communications, 810 F.2d 1546, 1548 (11th Cir. 1987) (Section 43(a) Lanham Act claim); Wood v. Wood's Homes, Inc., 33 Colo. App. 285, 519 P.2d 1212, 1214 (1974) (common law claims).
A name is descriptive if it identifies a characteristic or quality of a service. American Television, 810 F.2d at 1548. Whether a name is descriptive is a question of fact. Union Nat. Bank, 909 F.2d at 846; Investacorp, Inc. v. Arabian Inv. Banking Corp., 931 F.2d 1519, 1523 (11th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 639, 116 L. Ed. 2d 657 (1991). The name "Metro Brokers, Inc." serves a descriptive function. Although not a certainty, a reasonable finder of fact could find that the name "Metro Brokers, Inc." is a descriptive term.
To qualify for protection under section 43(a) of the Lanham Act and the common law, a descriptive name must have a secondary meaning. American Television, 810 F.2d at 1548; Wood, 519 P.2d at 1214. A name acquires a secondary meaning when it has been used so long and exclusively with respect to the user's services that the purchasing public has come to understand that the services are coming from a single source. See J.M. Huber Corp. v. Lowery Wellheads, Inc., 778 F.2d 1467, 1470 (10th Cir.1985); American Television, 810 F.2d at 1549. Secondary meaning is also a question of fact. American Television, 810 F.2d at 1549; Investacorp, 931 F.2d at 1524. Whether a term has acquired a secondary meaning depends on: (1) the length and manner of its use; (2) the nature and extent of the plaintiff's advertising, promotion, and sales; (3) the plaintiff's efforts to promote a conscious connection in the public's mind between his name and the plaintiff's business; and (4) the extent to which the public actually identifies the name with the plaintiff's business. American Television, 810 F.2d at 1549; Investacorp, 931 F.2d at 1525. A high degree of proof is needed to prove the secondary meaning of a descriptive term. Investacorp, 931 F.2d at 1525.
Metro Brokers and its members have used the name "Metro Brokers, Inc." in all aspects of their advertising since 1976. Metro Brokers and its members achieved name recognition through their long and constant use of the name "Metro Brokers, Inc." in their farreaching *383 advertising. Thus, the consuming public identifies a real estate agent using the name "Metro Brokers, Inc." with Metro Brokers. Although it is not a certainty, a reasonable trier of fact could find that the name "Metro Brokers, Inc." has a secondary meaning.
There is a strong likelihood of confusion between the names "Metpro Brokers" and "Metro Brokers, Inc.". The following factors are helpful, but not dispositive, in determining whether there is a likelihood of confusion between the names: (a) the degree of similarity between the names in appearance, pronunciation of the words used, verbal translation of the pictures or designs used, and suggestion; (b) the intention of the actor in adopting the design; (c) the relation in use and manner of marketing between goods or services marketed by the actor and those marketed by the other; and (d) the degree of care likely to be exercised by purchasers. Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 925 (10th Cir.1986). Similarities are to be weighed more heavily than differences. Beer Nuts, 805 F.2d at 925.
The names are similar in appearance, pronunciation and verbal translation. Also, Tann's prior relationship with Metro Brokers raises a strong inference of intentional copying. Beer Nuts, 805 F.2d at 927. Furthermore, Tann used the name "Metpro Brokers" in a manner similar to that used by Metro Brokers and its members. Also, consumers use little care in selecting a real estate agent. Finally, several customers were actually confused whether Tann was associated with Metro Brokers when he was using the name "Metpro Brokers". I conclude, therefore, that there is a strong probability that a reasonable finder of fact would find that there is a likelihood of confusion between "Metro Brokers, Inc." and "Metpro Brokers".
At a minimum Metro Brokers, raises serious, substantial, difficult, and doubtful questions concerning each element of its section 43(a) Lanham Act and the common law claims. A reasonable finder of fact could find in Metro Brokers' favor on each of the essential elements of its section 43(a) Lanham Act and common law claims. Metro Brokers has made a sufficient showing that these claims are fair game for litigation and more deliberate inquiry. Therefore, under Longstreth's relaxed standard, Metro Brokers has a substantial likelihood of succeeding on the merits of its section 43(a) Lanham Act and common law claims.
B.
Where there is a high probability of confusion, irreparable injury which cannot be fully compensable in damages tends to result. Paco Rabanne v. Norco Enterprises, Inc., 680 F.2d 891, 894 (2d Cir.1982). Accordingly, the likelihood of damage to reputation and good will entitles a plaintiff to preliminary relief. Paco Rabanne, 680 F.2d at 894.
I found that Tann's use of the name "Metpro Brokers" threatened Metro Brokers' and its members' reputations. When Tann was affiliated with Metro Brokers his aggressive sales tactics caused several customers to complain to the Colorado Real Estate Commission. Bradford's husband discouraged people from dealing with Metro Brokers. There is a high probability that "Metpro Brokers" will be confused with "Metro Brokers, Inc.". This confusion is especially threatening to Metro Brokers and its members because of Tann's aggressive sales tactics. Thus, if Tann is allowed to use the name "Metpro Brokers", Metro Brokers' and its members' reputations are likely to be irreparably harmed. Moreover, this harm to Metro Brokers' and its members' reputations cannot be remedied adequately with money damages. I conclude that unless Tann is enjoined from using the name "Metpro Brokers", Metro Brokers and its members will sustain irreparable harm which money damages will not remedy adequately.
C.
Metro Brokers' reputation will be harmed unless I enjoin Tann from using the name "Metpro Brokers". Tann on other hand may continue to offer real estate brokering services under another name. The costs Tann will incur if I enjoin him from using the name "Metpro Brokers" are insignificant compared *384 to the loss of reputation and goodwill Metro Brokers and its members will experience if Tann is not enjoined from using the name "Metpro Brokers". Thus, the harm to Metro Brokers' reputation decidedly outweighs the harm to Tann if an injunction issues.
D.
The public interest will be furthered by enjoining Tann from using the name "Metpro Brokers". Trademarks and names serve the consuming public by distinguishing a product or service which in turn lowers consumer search costs. Union Nat. Bank, 909 F.2d at 844. Trade name protection also discourages free-riders from capitalizing on a name which a competitor has identified with his product or service. Union Nat. Bank, 909 F.2d at 844. The public, which has come to rely on the name "Metro Brokers, Inc." to identify real estate agents with good reputations, has an interest in protecting Metro Brokers' name. Therefore, the public interest will be served by preventing Tann's unauthorized use of Metro Brokers' name.
E.
Metro Brokers' existing $1,000.00 bond is adequate to compensate Tann in the event it is determined that this injunction was entered wrongfully. Therefore, I approve Metro Brokers' existing bond as security for this preliminary injunction.
Accordingly IT IS ORDERED that Tann, his agents, servants, employees, franchisees, representatives, successors, assignees, those in privity with him, and all others in active concert or participation with him are prohibited from using the name "Metpro Brokers" or any confusingly similar name, reproduction, counterfeit, copy, or colorable imitation, either alone or in combination with any other designation in any form or manner in connection with real estate brokering or any related service. Unless otherwise ordered, this preliminary injunction shall expire upon the final resolution of Metro Brokers' request for a permanent injunction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584181/ | 728 N.W.2d 891 (2006)
272 Mich. App. 706
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Nathan Daniel GUBACHY, Defendant-Appellant.
Docket No. 262550.
Court of Appeals of Michigan.
Submitted November 7, 2006, at Lansing.
Decided November 14, 2006, at 9:05 a.m.
Released for Publication February 28, 2007.
*892 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.
Jon F. Hummel, East Lansing, for the defendant.
Before: MURPHY, P.J., and METER and DAVIS, JJ.
DAVIS, J.
Defendant appeals by delayed leave granted a restitution order requiring him to reimburse $10,098.93 to the victim in this case. We affirm.
Defendant pleaded guilty of breaking and entering a building with the intent to commit a larceny, MCL 750.110; unlawfully driving away an automobile, MCL 750.413; escape from lawful custody, MCL 750.197a; and malicious destruction of police property, MCL 750.377b. Defendant had been employed by Wilbur Plumbing. On April 12, 2004, shortly after defendant's employment was terminated, he and another individual entered Wilbur Plumbing without permission and drove three trucks away from the premises. They returned one truck after removing tools and other equipment from it. Police recovered the other two trucks and some tools and equipment. George Wilbur, the owner of Wilbur Plumbing, conducted an inventory and testified that property worth a total of $7,902.28 was missing. He also testified that Wilbur Plumbing incurred total labor expenses of $2,746.65 taking inventory and reequipping the trucks as a result of the theft. The trial court reasoned that the labor was a "legitimate expense for a victim to recover," but reduced the amount of missing property by $550 because Wilbur failed to substantiate the value of certain items. Defendant appeals the resulting order of restitution.
We review a trial court's factual findings for clear error. MCR 2.613(C). We generally review for an abuse of discretion an order of restitution. In re McEvoy, 267 Mich.App. 55, 59, 704 N.W.2d 78 (2005). However, "[w]hen the question of restitution involves a matter of statutory interpretation, review de novo applies." Id. Statutory interpretation is a question of law that we review de novo. Id.
Defendant first contends that there was insufficient evidence to support the restitution award for the lost property. We disagree.
Crime victims have a constitutional right to restitution. Const 1963, art 1, § 24. Black's Law Dictionary (7th ed) defines "restitution" as "[c]ompensation or reparation for the loss caused to another." Further, crime victims have a statutory right to restitution under the Crime Victim's Rights Act (CVRA), MCL 780.751 et seq. The CVRA provides that if a felony (or a misdemeanor punishable by imprisonment for more than one year) results in the loss of a victim's property, the trial court may order the defendant to pay to the victim, as restitution, the value of the property that was lost. MCL 780.766(3). Restitution encompasses only those losses that are easily ascertained and are a direct result of a defendant's criminal conduct. People v. Orweller, 197 Mich.App. 136, 140, 494 N.W.2d 753 (1992). The prosecution *893 must prove the amount of the victim's loss by a preponderance of the evidence. MCL 780.767(4).
Here defendant admitted that he stole three trucks and that he stole and sold copper pipefittings worth $1,400. He denied stealing tools, but he admitted that his codefendant took some tools and put them into defendant's storage locker. Wilbur Plumbing did not keep a written inventory for each truck, but it had a policy of continually maintaining the trucks with certain known equipment on board, along with a policy for reporting anything missing. Nothing was reported missing in the days leading up to the crime. The prosecution therefore presented sufficient evidence to establish that the trucks were fully equipped before April 12, 2004, and that anything missing after April 12, 2004, was a direct result of defendant's criminal conduct. Defendant admitted the theft of a number of items and the value of some of them. Wilbur presented invoices to substantiate the value of most items, and the trial court disallowed the value of any items for which Wilbur did not provide documentation. The trial court's finding that the prosecution proved by preponderance of the evidence a property loss of $7,352.28 was not clearly erroneous, so an order of restitution in that amount was not an abuse of discretion. MCL 780.766(3).
Defendant next argues that the trial court was not authorized to order reimbursement of the value of Wilbur Plumbing's labor costs incurred in determining the value of the lost property and in replacing the lost property. We disagree.
The goal of statutory interpretation is to determine and give effect to the intent of the Legislature, with the presumption that unambiguous language should be enforced as written. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003). "Statutory language should be construed reasonably, keeping in mind the purpose of the act." In re McEvoy, supra at 60, 704 N.W.2d 78. In other words, the Court must consider the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the statute's purpose. People v. Lawrence, 246 Mich.App. 260, 265, 632 N.W.2d 156 (2001). Additionally, the Code of Criminal Procedure, which also contains restitution provisions, is remedial in character and should be liberally construed to effectuate its intent. MCL 760.2. The CVRA "was enacted to enable victims to be compensated fairly for their suffering at the hands of convicted offenders." People v. Crigler, 244 Mich.App. 420, 423, 625 N.W.2d 424 (2001).
At the time defendant was sentenced, MCL 780.766 provided[1] in relevant part:
(2) Except as provided in subsection (8), when sentencing a defendant convicted of a crime, the court shall order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction or to the victim's estate.
(3) If a crime results in damage to or loss or destruction of property of a victim *894 of the crime or results in the seizure or impoundment of property of a victim of the crime, the order of restitution may require that the defendant do 1 or more of the following, as applicable:
(a) Return the property to the owner of the property or to a person designated by the owner.
(b) If return of the property under subdivision (a) is impossible, impractical, or inadequate, pay an amount equal to the greater of subparagraph (i) or (ii), less the value, determined as of the date the property is returned, of that property or any part of the property that is returned:
(i) The value of the property on the date of the damage, loss, or destruction.
(ii) The value of the property on the date of sentencing.
(c) Pay the costs of the seizure or impoundment, or both.
There are two statutes dealing with restitution. MCL 769.1a(2) and (3), in the Code of Criminal Procedure, are identical to MCL 780.766(2) and (3), except that MCL 769.1a discusses a "felony, misdemeanor, or ordinance violation" instead of a "crime" and "cost" instead of "costs." MCL 769.1a has not been amended since defendant's sentencing. Although Michigan courts once were required to consider a defendant's ability to pay restitution, under MCL 780.767(1), "[i]n determining the amount of restitution to order under [MCL 780.766], the court shall consider the amount of the loss sustained by any victim as a result of the offense." The "amount of the loss sustained" is now the only factor to be considered. Crigler, supra at 428, 625 N.W.2d 424.
We appreciate defendant's argument concerning expressio unius est exclusio alterius. See Bradley v. Saranac Community Schools Bd. of Ed., 455 Mich. 285, 298, 565 N.W.2d 650 (1997) ("This Court recognizes the maxim expressio unius est exclusio alterius; that the express mention in a statute of one thing implies the exclusion of other similar things."). However, we do not believe it applies here. Defendant correctly directs our attention to the fact that, because neither seizure nor impoundment is at issue, MCL 780.766(3) provides an explicit list of exactly two remedies. If viewed in isolation, this would logically imply that the Legislature intended those two remedies to be the only remedies available. We also appreciate that federal court interpretations of the Victim and Witness Protection Act (VWPA), specifically 18 USC 3663, are considered persuasive by our Supreme Court. People v. Grant, 455 Mich. 221, 243 n. 30, 565 N.W.2d 389 (1997). The federal courts limit restitution under the VWPA to return of the property or the value of lost property itself. United States v. Schinnell, 80 F.3d 1064 (C.A.5, 1996). However, defendant's and the federal courts' interpretations are inconsistent with other portions of the CVRA and, indeed, with its underlying purpose, as well as with the Michigan constitutional provision that gives the victim a right to restitution. Our Supreme Court has also explained that the federal courts have interpreted the VWPA narrowly, which may not always be appropriate for the "broad construction" that should be applied to Michigan's CVRA. People v. Gahan, 456 Mich. 264, 271 and n. 8, 571 N.W.2d 503 (1997).
Initially, the version of MCL 780.766(3) in effect at defendant's sentencing employed the word "may," which is permissive and therefore indicative of discretion. People v. Brown, 249 Mich.App. 382, 386, 642 N.W.2d 382 (2002); see also Old Kent Bank v. Kal Kustom Enterprises, 255 Mich.App. 524, 532, 660 N.W.2d 384 (2003). Significantly, the statute did not say "may only." When viewed in the context of the act's underlying purpose of fairly compensating *895 crime victims, the version of MCL 780.766(3) in effect at defendant's sentencing cannot be considered an exclusive list of remedies.
Moreover, we do not believe that 2005 PA 184, which changed "may" to "shall," changes this analysis. This change only stripped trial courts of the discretion to refuse to order one of the enumerated forms of restitution, presuming that the facts of the case make any of them applicable. Significantly, MCL 780.766(2), both before and after the most recent amendment, states that "the court shall order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make full restitution to any victim of the defendant's course of conduct. . . ." (Emphasis added.) Equally significantly, MCL 780.767(1) requires the court to "consider the amount of the loss sustained. . . ." (Emphasis added.) Nowhere in the CVRA does the Legislature state "how to determine the amount of the loss sustained by the victim," so the amount of restitution "should be based upon the evidence." People v. Guajardo, 213 Mich.App. 198, 200, 539 N.W.2d 570 (1995).
In our view, the Legislature has clearly manifested an intent to make victims of a crime as whole as they can fairly be made and to leave the determination of how best to do so to the trial court's discretion on the basis of the evidence presented and subject to the prosecuting attorney's burden of proving losses attributable to defendant's crime-related acts. The CVRA was not intended to be narrowly construed merely as a special-purpose replevin action: the focus is consistently not on what a defendant took, but what a victim lost because of the defendant's criminal activity. No other interpretation is consistent with purpose of the act and its specific provisions.
In this case, the testimony presented to the trial court was that Wilbur expended 30 hours at a cost of $67.06 an hour, and another employee spent 14 1/2 hours at a cost of $49.82 an hour, taking inventory and reequipping the trucks. The total cost to the victim company, other than the lost property itself, was uncontroverted. The restitution order of $2,746.65 was therefore reasonable and supported by uncontested evidence. Because the constitution provides the victim with the right to restitution, and because it was also authorized by the CVRA, we perceive no abuse of discretion by the trial court.
Affirmed.
NOTES
[1] 2005 PA 184 (effective January 1, 2006) made two amendments to the provisions addressed in this opinion. MCL 780.766(2) was changed to add a provision addressing offenses "resolved by assignment of the defendant to youthful trainee status. . . ." MCL 780.766(3) was modified to change "the order of restitution may require . . ." to "the order of restitution shall require. . . ." (Emphasis added.) These changes do not affect our analysis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584191/ | 427 So. 2d 957 (1983)
Joe Lee HALL
v.
STATE of Mississippi.
No. 53976.
Supreme Court of Mississippi.
February 23, 1983.
Robert B. Prather, Columbus, for appellant.
Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
ROBERTSON, Justice, for the Court:
I.
On the afternoon or evening of September 5, 1981, the home of William E. Prout, Jr. in Columbus, Mississippi, was burglarized. On November 10, 1981, Joe Lee Hall, defendant below and appellant here, was formally charged with this burglary in an indictment returned by the Lowndes County Grand Jury. The indictment further charged that Hall was a recidivist within the meaning of Miss. Code Ann. § 99-19-81 (Supp. 1982). Hall entered a plea of not guilty to all charges.
On February 26, 1982, this case was called for trial in the Circuit Court of Lowndes County. That afternoon, after hearing all of the evidence and receiving the instructions of the court and the arguments of counsel, the jury found Hall guilty on the principal charge of burglary.
*958 Immediately thereafter, the Circuit Court conducted a non-jury hearing on the recidivism issue. Without contradiction, the evidence established that Joe Lee Hall had, prior to that date, been convicted of two separate felonies, both burglaries. Accordingly, under the authority of Section 99-19-81 the Circuit Court sentenced Hall to serve a term of ten years without eligibility for probation or parole.
From this conviction and sentence, Hall appeals. We affirm.
II.
Stating them as we ought in the light most favorable to the verdict, the facts are as follows: On four occasions prior to September 5, 1981, Joe Lee Hall had done yard work, gardening and house work in and around the home of William E. Prout, Jr. on Seventh Street North in Columbus, Mississippi. On these occasions the Prout home was accessible to Hall. He had performed his work well.
Several days in advance, Prout had engaged Hall to do gardening work on the morning of September 5, 1981. At approximately 10:30 that morning, Hall telephoned Prout to be sure that he was still supposed to come to work. Prout advised Hall that he and his family were leaving for the weekend and, accordingly, there would be no reason for Hall to come to work that day. Prout told Hall that he would be back in touch with him on Monday or Tuesday.
Prout and his family then left for a camping trip at Grenada Lake. When they returned at approximately 1:30 on the afternoon of September 7, 1981, they discovered that their home had been burglarized and that six guns belonging to Prout had been removed from his gun cabinet.
The obvious mode of entry into the house was through the back door. The plate glass window in the back door had been smashed. A double-bladed ax owned by Prout was found nearby. Prout had left the ax in his storage room up on the second floor deck. On a previous occasion Prout's wife had shown Hall how to open the door to the storage room without a key.
On the evening of September 5, 1981, Hall was arrested at the Unicorn Lounge in Columbus by Officer Bobby Grimes of the Columbus Police Department. He was charged at that time with public drunkenness and with unlawful display of a firearm. At the time of his arrest, Hall was found to be in possession of three firearms which were later unequivocally identified to be the property of Prout.
On the morning of September 8, 1981, after having been advised of his constitutional right against self-incrimination, Hall made a confession in the presence of two Columbus police officers. In this confession, Hall stated that on September 5, he called Prout and asked if Prout had some work for him. Prout said no because his family was going camping. That night after dark he walked to Prout's home and took an ax from the storage room and broke the glass from the back door. Hall specifically admitted that he entered the house and took "three long guns and one pistol." Hall stated that he then left and went to the Unicorn Lounge, the guns still in his possession. Shortly thereafter he was arrested.
III.
A.
On this appeal Hall's primary assignment of error is that the trial court erroneously admitted into evidence his confession. Hall was arrested on the evening of September 5, 1981. The evidence reflects that on the morning of September 8, 1981, at approximately 9:20 a.m. Hall was given the standard Miranda [Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] warnings and executed a written waiver of his rights, all in the presence of Officers Pete Bowen and John Thomas. Thereafter, Hall made his confession which was reduced to writing by Officer Bowen. Bowen testified that, before signing, Hall was allowed to read the statement, and further, that Bowen read it aloud to Hall. Hall then signed the statement which was witnessed by Officers Bowen and Thomas, both of *959 whom testified at trial. See Agee v. State, 185 So. 2d 671, 673 (Miss. 1966).
Neither at trial nor on this appeal does Hall raise any question regarding the voluntariness of the confession. In testimony at trial on his own behalf, Hall admitted signing the confession. He denied any memory of the burglary, however, and said he "confessed" because he had been caught with Mr. Prout's guns. In his own words, Hall said, "They told me and I said I presumed that they was right because they caught me with the guns." Hall acknowledged only a vague memory of going to Mr. Prout's house that night and of having some guns.
At trial and on this appeal, Hall has argued that his arrest was illegal and that the alleged illegality of the arrest so tainted the confession as to render it inadmissible. Specifically, Hall charges that on the evening of September 5, 1981, no warrant had been issued for his arrest and that Officer Grimes had no probable cause to believe that Hall had committed a felony. Further, Hall charges that he had committed no misdemeanor in the presence of Officer Grimes and, accordingly, that Grimes had arrested him illegally.
We find it unnecessary to determine the legality vel non of the arrest, for in our view the correct approach to this issue suggests a different pattern of analysis. We will, therefore, assume, without deciding, that everything said by Hall on this appeal regarding the facts and circumstances of the arrest is correct.[1]
B.
Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) charts our course in this case. In Brown, the defendant had been arrested without probable cause and without a warrant in violation of rights secured to him under the Fourth and Fourteenth Amendments to the Constitution of the United States. Under the facts, the first statement was given within two hours of the arrest, although prior to each statement Miranda-sufficient warnings were given. The issue, of course, was whether the confessions were "the fruit of the poisonous tree", and, thus, inadmissible. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
Brown rejects absolutism in both directions. On the one hand, the mere fact that an accused is given full advice regarding his rights, as required by Miranda, cannot in every case render the confession admissible. In the words of Brown,
[t]he Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and confession. 422 U.S. at 603, 95 S.Ct. at 2261, 45 L.Ed.2d at 427. [Emphasis in original]
On the other hand, Brown rejected the "but for" rule. The mere fact that a defendant confesses while in custody following an illegal arrest does not per se render the confession inadmissible. Rather, Brown holds that
[t]he question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. 422 U.S. at 603, 95 S.Ct. at 2261, 45 L.Ed.2d at 427.
Brown then goes on to set forth the factors that ought to be considered by the trial court when faced with such a situation. First, Brown recognizes that
[t]he Miranda warnings are an important factor to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. 422 U.S. at 603, 95 S.Ct. at 2261, 45 L.Ed.2d at 427.
Other Brown factors which ought to be considered are
(1) the temporal proximity of the arrest and the confession;
(2) the presence of intervening circumstances;
*960 (3) the purpose and flagrancy of the official misconduct, i.e., the making of the illegal arrest; and
(4) any other circumstances that seem relevant.
Id.
Brown has been reaffirmed in Dunaway v. New York, 442 U.S. 200, 216-219, 99 S. Ct. 2248, 2258-2260, 60 L. Ed. 2d 824, 838-840 (1979), and Taylor v. Alabama, ___ U.S. ___, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982).
This Court has applied the Brown holding on at least two prior occasions. In Jones v. State, 330 So. 2d 597 (Miss. 1976), there was a total lack of evidence to show a break in the causal chain linking the illegal arrest and the subsequent confession. The Court thus held the confession inadmissible. 330 So.2d at 600. Dycus v. State, 396 So. 2d 23, 26-27 (Miss. 1981) is to like effect.[2]
C.
In considering questions such as this, the trial courts should, of course, conduct a hearing either before trial or, upon timely objection, during the course of trial, outside the presence of the jury. All facts and circumstances relevant to the issue should be considered. It goes without saying that the burden of showing admissibility rests upon the state. Brown v. Illinois, 422 U.S. at 604, 95 S.Ct. at 2262, 45 L.Ed.2d at 427. At the conclusion of the hearing, the trial judge should give the reasons underlying his ruling and, specifically make such findings of fact as are necessary to enable proper review of the matter should an appeal be taken.
In the case at bar, the court merely overruled Hall's objection to the admission of the confession, without making findings of fact or giving any other supporting rationale for his decision. The facts in the record, however, are sufficiently clear and uncontradicted on the critical points to allow this Court to pass fairly upon the matter.[3]
First, as indicated above, Hall raises no factual issue regarding the voluntariness of his confession. A review of the Miranda warnings given to Hall in writing coupled with the waiver of rights form executed by Hall established the fact of voluntariness. Admissibility is suggested.
Second, we note the lapse of time between Hall's arrest and the time of his confession. Hall was arrested late on Saturday evening, September 5, 1981. His confession was given the following Tuesday morning. Brown mandates a consideration of "the temporal proximity of the arrest and confession". 422 U.S. at 603, 95 S.Ct. at 2261, 45 L.Ed.2d at 427. In Brown, the confession held admissible was given within a few hours after the defendant's illegal arrest.[4] Here, as indicated, the facts are wholly different. In the 60-odd hours Hall had been in jail, he certainly had sufficient time to become acclimated to his surroundings.[5]*961 As a matter of common sense, the coercive impact of incarceration may dissipate with time. The uncontradicted facts here, scrutinized under Brown, militate in favor of admissibility.
Third, we consider the purpose and flagrancy of the official misconduct. As indicated above, the question of whether or not there was an illegal arrest is by no means free from doubt.[6] But taking the facts in the light most favorable to Hall,[7] we find as follows: On Saturday evening of September 5, 1981, Officer Grimes received an official radio communication that there was a man in the Unicorn Lounge displaying a firearm. When Grimes entered the premises, the proprietor pointed to Hall and said "That's the one. He's the one with the guns." Hall stood up and, despite Grimes' admonitions to the contrary, began advancing on Grimes. Grimes immediately seized control of Hall and placed him in handcuffs. Consistent with his own security, considering the information he had at the time, Grimes acted reasonably. Even if we assume that Grimes had no knowledge that Hall was intoxicated until after Grimes had placed him under arrest, and even if we assume as Hall argues here that this rendered the arrest unlawful, the "illegality" was hardly flagrant. Likewise, interrogating Hall about the burglary of the Prout home could not have been the purpose of the arrest, for at the time Prout hadn't even discovered, much less reported, the burglary. Careful consideration of this third factor the purpose and flagrancy of the official misconduct supports admissibility.
In summary, applying the standards of Brown to the facts of the case at bar, we conclude that Hall's objections to the admission of his confession into evidence are not well taken. On the facts, the confession was sufficiently an act of free will so that the primary taint of the illegal arrest, if, indeed, there was one, was effectively purged. Accordingly, the trial court correctly overruled Hall's objection and properly received the confession into evidence against him.
IV.
At trial Hall pleaded intoxication as his defense. Specifically he urged that, at the time and on the occasion in question, he was so intoxicated on drugs (prescription and otherwise) and alcohol that he could not form the specific intent to commit any crime. He testified without contradiction that he had been drinking that day and that he had smoked marijuana. Officer Grimes, of course, corroborated Hall's testimony that he was intoxicated. The evidence is uncontradicted that Hall's intoxication was wholly voluntary.
Against this factual backdrop, Hall requested that the jury be instructed that his intoxication on the occasion in question was a defense to the charge in the indictment. Hall specifically asked that the jury be instructed that
If you find that the defendant [Hall] was so drunk, intoxicated or under the influence of drugs at the time, he broke out the glass in the back door of the residence of Mr. Prout, reached in and unlocked the door, and took goods or merchandise therefrom, to the extent that he was unable to have the specific intent to do said acts, and that he could not distinguish right from wrong, then you cannot find the defendant guilty of burglary.
The trial court refused the instruction. Hall claims error.
Whatever the law may once have been in this state, it is well settled today that voluntary intoxication is not a legally cognizable defense available to persons charged with crimes requiring proof of specific intent. On the authority of McDaniel v. State, 356 So. 2d 1151 (Miss. 1978); Harris *962 v. State, 386 So. 2d 393, 396 (Miss. 1980); and Lee v. State, 403 So. 2d 132, 134 (Miss. 1981), we hold that the trial judge was correct in his refusal to give the requested instruction.
V.
Following receipt of the jury verdict on the principal charge, the circuit court then conducted a non-jury hearing on the recidivism issue. Hall objected to this issue being determined by the court without a jury, but makes no point of the matter here. See Adams v. State, 410 So. 2d 1332, 1334 (Miss. 1982). Suffice it to say that the evidence established without contradiction that
(1) On April 27, 1961, Hall was adjudged by the Circuit Court of Lowndes County, Mississippi, guilty of the crime of burglary and sentenced to serve a term of five years in the state penitentiary, and
(2) On May 16, 1980, Hall was adjudged by the Circuit Court of Lowndes County, Mississippi, guilty of the crime of burglary of an automobile and was sentenced to serve a term of three years in the state penitentiary.
The Mississippi Legislature has enacted that persons such as Hall, now finally convicted of the crime of burglary in the instant case, who shall have been convicted twice previously of separate felonies, and who shall have been sentenced to separate terms of one year or more in the penitentiary, shall be sentenced to the maximum term of imprisonment for the felony in question without eligibility for parole or probation. Section 99-19-81. The maximum sentence is, in effect, incorporated by reference into Section 99-19-81.
At trial, Hall objected to the court considering his 1961 conviction on grounds that he was 16 years old at the time and that it was too remote to be of any relevance in the case at bar. On its face, the point is not without merit. It would be difficult as an original proposition to justify reliance upon a 21-year old conviction, arising out of an offense committed at a time when the defendant was only 16 years of age.[8]
In Pace v. State, 407 So. 2d 530 (Miss. 1982), this Court was confronted with "convictions more than ten years old" and very appropriately "recognize[d] that the time lapse between a present offense and prior convictions could be a relevant consideration." 407 So.2d at 535. All the more so in the case at bar. Yet, Pace goes on to note the universally recognized rule that, subject only to constitutional limitations, the legislature is vested with the power and prerogative to fix punishments for crimes. 407 So.2d at 535.
For reasons best known to it, the legislature has placed no time or remotness limitations in Section 99-19-81, the recidivism statute. It would be inappropriate for this Court to do so now. In this case it is open to us to doubt only the legislature's wisdom, not its authority.
Under the circumstances, the Circuit Court correctly sentenced Hall to a term of ten years without eligibility for probation or parole, and its judgment to that effect is affirmed.
AFFIRMED.
PATTERSON, C.J., WALKER and BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.
PRATHER, J., takes no part.
NOTES
[1] So that there will be no misunderstanding about the point, we emphasize that we are not holding that on these facts the arrest of Hall was illegal. Suffice it to say that we do not consider Hall's argument on this point nearly as convincing as he does.
[2] In a long series of cases, this Court has suggested that, if an accused is properly advised of his constitutional rights, and if he freely and voluntarily admits to his participation in a crime, such an admission may be received into evidence against him at trial, regardless of the illegality of his initial detention. Keith v. State, 197 So. 2d 480, 484 (Miss. 1967); Bell v. State, 274 So. 2d 371, 373-374, (Miss. 1973); Evans v. State, 275 So. 2d 83, 85, (Miss. 1973); Nabors v. State, 293 So. 2d 336, 338, (Miss. 1974); Butler v. State, 296 So. 2d 673, 675, (Miss. 1974); Harrison v. State, 307 So. 2d 557, 561, (Miss. 1975). Varying verbiage has been employed, but the effect of the rule announced in our cases is arguably improper under Brown and Dunaway. Suffice it to say that our pre-Brown decisions should be viewed with caution.
[3] We emphasize that we are not here making findings of fact on conflicting evidence. Appellate courts do not do this. In the discussion that follows, we rely upon the uncontested fact of the voluntariness (as distinguished from truthfulness) of the confession and the uncontradicted facts on the "temporal proximity" and "purpose" issues. On the "flagrancy" issue we consider the facts in the light most favorable to Hall.
[4] In Dunaway the first confession was given within an hour after the accused reached the police station. A second, more complete statement was made the following day. Dunaway v. New York, 442 U.S. at 203 fn. 2, 99 S.Ct. at 2252 fn. 2, 60 L.Ed.2d at 830. In Dycus the confession erroneously admitted into evidence was likewise given within a few hours of the arrest. Dycus v. State, 396 So.2d at 27.
[5] As discussed in Section V of this opinion, Hall was no stranger to the jailhouse environment. He further admitted at trial that he had been arrested for public drunkenness "maybe a hundred" times.
[6] See footnote 1, supra, together with accompanying primary test.
[7] See footnote 3, supra.
[8] At trial Hall admitted before the jury that he had been convicted of burglary in the State of Florida for which he received a six year sentence. Our recidivism statute, Section 99-19-81, allows consideration of prior felony convictions and prison terms "whether in this state or elsewhere". Hall's Florida burglary conviction could have been presented at the sentencing hearing but was not. In affirming Hall's sentence, we do not rely in any way on Hall's Florida burglary conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586285/ | 176 So.2d 390 (1965)
247 La. 1095
Jacob J. RAIA
v.
WWL-TV et al.
No. 47645.
Supreme Court of Louisiana.
June 7, 1965.
Dissenting Opinion June 16, 1965.
Rehearing Denied July 2, 1965.
Floyd J. Reed, Forrest L. Bethay, Reed, Reed & Reed, New Orleans, for plaintiff and relator.
H. Gordon Hartman, Hartman & Lococo, Denechaud & Denechaud, M. Hepburn Many, New Orleans, for respondents.
HAMITER, Justice.
In this defamation action instituted by Jacob J. Raia against WWL-TV, Loyola University of New Orleans, Leo Willette, Aaron Kohn and the Metropolitan Crime Commission of New Orleans, Inc., the plaintiff having alleged in his petition that certain published statements for which the defendants are responsible caused damage to himself and to his business, the issues presently before us arise out of an interlocutory, ex parte, discovery order issued by the district judge.
Following the filing of their several answers the defendants, specifically on January 12, 1965, obtained the ex parte order directing the plaintiff to produce certain described documents and other information in the office of M. Hepburn Many (who is counsel for two of the defendants) for inspection and copying. The motion on which the order was predicated alleged that the defendants "desire plaintiff to produce to movers for inspection and copying or photographing, for discovery purposes pursuant to Article 1492 C.C.P., at the office of M. Hepburn Many * * *" the said documents and information, all of which related principally to the operation of plaintiff's business that was allegedly damaged.
*391 Thereafter, the plaintiff moved to quash the discovery order and, pursuant to the motion, the judge "Ordered that the defendants, through their counsel, do appear in person and show cause on Friday, January 22, 1965, at 10:30 o'clock A.M., why the Order sought by them should not be quashed, rescinded, annulled and vacated."
On the designated return date the rule to show cause was heard, with all litigants (represented by their respective counsel) being present. Following the hearing the district court rendered a judgment overruling the motion to quash filed by plaintiff and ordering him to produce the documents and information originally requested by defendants. In the formal, signed judgment, preceding the decreeing clauses, the judge declared that the matter "came on for hearing January 22, 1965"; that he had "considered the pleadings and argument" of counsel; and that he was "of the opinion that the law and evidence is in favor of respondents."
Plaintiff's application to the Court of Appeal (Fourth Circuit), for relief from such ruling, was denied. That tribunal stated: "Writs refused. The showing made by relator does not warrant the exercise of our supervisory jurisdiction."
Subsequently, we issued writs under our supervisory powers to consider the regularity of the proceedings in the district court.
Here, the plaintiff primarily attacks the initial ex parte order and the judgment which overruled his motion to quash. He urges that the original order was improvidently issued inasmuch as (1) the motion on which the order was founded did not set forth "good cause", as required by Article 1492 of the Louisiana Code of Civil Procedure, it merely reciting that defendants desired to obtain the documents and information described therein; and (2) such an order cannot be issued except after the holding of a contradictory proceeding. He attacks the judgment overruling his motion to quash on the ground that at the hearing of such motion no evidence was adduced respecting "good cause", the court having merely heard argument of counsel as to the propriety or the validity of the ex parte order. Further, plaintiff complains of that part of the initial order requiring that the documents be produced in the office of adverse counsel instead of in some neutral place.
The defendants, on the other hand, insist that the original ex parte order was properly issued, they contending (1) that the nature of the documents and information sought, when considered in the light of the issues raised by the pleadings and of plaintiff's own testimony given in a deposition previously taken by them from him, bespeaks the "good cause" for and materiality of the items requested; and (2) that there is no requirement in our law that such an order be obtained after a contradictory hearing. Alternatively, they urge that any irregularity in the original order was cured by the contradictory hearing on the motion to quash at which the court considered the issues of relevancy and of "good cause" and rendered a judgment favorable to them. Further, they say that the place for production of the documents and the other information sought is of no moment or importance.
It is true that plaintiff alleged in his application for supervisory writs and argues in his brief that no evidence was taken at the contradictory hearing on the motion to quash. Moreover, no evidence appears in the transcript furnished to us. However, there is no certificate of the clerk or of the judge of the district court that such transcript is complete. Nor are there any minutes of the district court contained therein which would contradict the judge's recitation in his judgment that the law and evidence were in favor of these defendants. Hence, under these circumstances, we must invoke the well recognized presumption that the judge a quo had before him sufficient evidence and reasons to support the rulings complained of. Manning v. Shaw, 154 La. *392 717, 98 So. 163, Stout v. Henderson, 157 La. 169, 102 So. 193, Giglio v. Giglio, 159 La. 46, 105 So. 95, Williams v. Burnham et al., 185 La. 791, 171 So. 33, Maurer v. Haefner, 192 La. 929, 189 So. 579. Cf. Otis v. Sweeny, 43 La.Ann. 1073, 10 So. 247.
Having found that there was a contradictory hearing on the motion to quash anent the validity of the initial discovery order which resulted in a judgment maintaining it in full force and effect, it becomes unnecessary for us to determine whether or not such order was properly obtained in the first instance (on this question we do not now express an opinion).
This conclusion is in keeping with our decision in refusing an application for supervisory writs in Ackermann v. Columbia Casualty Company et al., 247 La. 354, 170 So.2d 868. In that case the same procedure was followed as occurred here, an ex parte discovery order having been maintained by a judgment overruling a motion to quash following a contradictory hearing on such motion (although the record therein affirmatively showed the taking of evidence).
With respect to that portion of the ex parte order attacked herein which requires production of the documents and the other information in the office of opposing counsel, we find no error. In this connection plaintiff argues that "To require relator to go to the office of the adverse parties' attorney and then and there make discovery is repulsive, unfair and smacks of a variety of star chamber proceeding. * * *" The only authority cited to sustain such argument consists of cases dealing with the taking of depositions which we do not consider to be analogous to the inspection and photographing of documents. The reasons for not requiring an individual to go into a hostile environment for submission to questioning clearly do not apply to document copying. Again, in the absence of a showing of special cause in a particular case, there appears no good reason why mature, educated members of the bar should not be able to effect the inspection and photographing of documents in the office of one or the other without repulsion and recriminations. Furthermore, the identical question was presented in the Ackermann case, cited supra, and there it was decided adversely to the position of this plaintiff.
In a third assignment of error the plaintiff asserts that the order complained of constitutes discrimination and a denial of due process as guaranteed by the Fourteenth Amendment of the United States Constitution. Plaintiff does not elaborate on this assertion, and we are at a loss to understand how the procedure followed by the district judge in any way involved discrimination or lack of due process, particularly in view of the fact that there was a contradictory hearing in connection with the motion to quash. Hence, there is no merit in the contention.
Finally, plaintiff assigns as error the refusal of the Court of Appeal to exercise its supervisory jurisdiction, he asserting that this constituted an abuse of the discretion vested in that tribunal. We deem it unnecessary to discuss this alleged error; for upon our issuing the supervisory writs, and our ordering the case here for a review, the action of the Court of Appeal became moot and immaterial.
For the reasons assigned the supervisory writs issued by us are recalled and the rule to show cause is discharged and vacated. Plaintiff shall pay the costs of this particular proceeding. All other costs shall await the final determination of the litigation.
FOURNET, C. J., concurs in the decree.
SUMMERS, J., dissents and assigns reasons.
SUMMERS, Justice (dissenting).
In this matter defendants filed a simple, short, unverified motion representing solely that defendants' counsel "desire plaintiff to produce to movers for inspection and *393 for copying or photographing, for discovery purposes pursuant to Article 1492, C.C.P. * * *" certain listed documents represented to be connected with a deposition alleged to have been taken on June 5, 1964. The deposition referred to is unavailable for our examination, it is not filed in the record and forms no part thereof.
This motion was granted ex parte by the trial judge without prior notice to plaintiff and ordered him to produce the documents at the office of defendants' counsel for copying.
The authority relied upon to uphold this action is Article 1492 of the Code of Civil Procedure. That article permits the issuance of an order to produce and permit the inspection and copying of documents which are relevant "upon motion of any party showing good cause therefor."
The meager allegation in the motion which formed the basis of the contested ex parte order is fatal to its validity. There has been an utter failure to show "good cause" here, even by allegation, if that were sufficient. The motion does not even contain an allegation that the documents to be copied were relevant. Nor is there a showing that the denial of the production of these documents would unfairly prejudice the defendants in preparing their claim or defense, or would cause hardship or injustice as specifically required by Article 1452. State Through Department of Highways v. Buckman, 239 La. 872, 120 So. 2d 461 (1960).
The scope of the discovery permitted by Article 1492 is limited by the language of Article 1436 providing that "deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action."
Another, and the most important limitation on discovery, is the affirmative requirement of Article 1492 that the movant must demonstrate "good cause".
This requirement limits the freedom of action afforded a party who avails himself of Article 1492. He must initially establish, and the court must initially determine, in every case where a party seeks to have another party produce documents for copying, that good cause has been adequately demonstrated. This specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired material was relevant (which has not been shown here), for the relevancy standard has already been imposed by Article 1436. By adding the words "good cause" the legislature clearly indicated that there must be a greater showing of need under Article 1492 than under the other discovery rules.
This good cause requirement is not a mere formality, but is a plainly expressed limitation of that article. It is not met by mere conclusory allegations (or no allegation as in this case) of the pleadingsnor by mere relevance to the casebut requires an affirmative showing by the movant that each document, as to which examination is sought, is really and genuinely needed and the purpose for which it is sought is legitimate, or that good cause exists otherwise for ordering each particular examination. The ability of the movant to obtain the desired information by other means and the inconvenience, expense and prejudice to the party who must produce are also relevant factors.
Article 1492, then, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether a party requesting examination of documents has adequately demonstrated the existence of "good cause". Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F.2d 921 (4th Cir. 1962); Annot., 86 A.L.R.2d 138, 150 and 182 (1962).
This determination, of course, must be based upon evidence in the record which is subject to review on appeal. From this record there must be a comparative evaluation of competing claims of need and *394 prejudice. United Air Lines, Inc. v. U. S., 26 F.R.D. 213 (D.C.Del.1960). It is obviously not feasible to fairly accomplish this last objective by ex parte proceedings. For this reason I am convinced that an adversary proceeding is contemplated in such cases and is essential to attainment of the law's objective.
Furthermore, an adversary proceeding is clearly required by the code when it says: "If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party." La. Code Civ.P. art. 963. I submit that in no instance, without hearing the adverse party, is a mover "clearly" entitled to copy and examine documents of a litigant, his counsel or witness.
Thus, upon the trial of the motion to quash the ex parte order, plaintiff had only to show the documents, facts and circumstances surrounding the issuance of that order. Upon this showing, which, in effect, simply involved the production of the motion and order (which was done), plaintiff was entitled to have the order set aside. The dearth of allegations in the motion and the complete lack of any other evidence to support it presented a clear case for quashing the order.
Evidence presented by defendants on the motion to quash could not serve to cure the initial error which occurred when the order was issued without good cause. However, other than the stereotype phraseology in the trial court's judgment overruling the motion to quash to the effect that "the law and the evidence is in favor of respondent," there is nothing in the record which shows that any evidence was taken upon the motion to quash. Thus the conclusion of the trial judge that "the law and the evidence is in favor of respondent" merely compounds the error committed at the outset, for the record does not support the conclusion that there was any evidence in favor of respondent. Surely, evidence outside the record is no evidence.
I recognize, as I must, the wisdom of the rule that the trial judge is to be accorded a wide latitude and much discretion in such matters. But I cannot subscribe to the proposition that that discretion is without any rein whatever. Yet, if the opinion of the majority stands, that will be the situation, for there is nothing in this record by which that discretion can be judged on review.
I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2867291/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00160-CR
James Masington, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. 582568, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
A jury found appellant James Masington guilty of criminal trespass, for which the
court assessed punishment at incarceration for ten days. Tex. Pen. Code Ann. § 30.05 (West Supp.
2003). By three points of error, he complains of charge error and asserts that the evidence is legally
and factually insufficient to sustain the jury's verdict. We will overrule these contentions and affirm.
On the evening in question, appellant entered the bar area of an Austin restaurant and
purchased a soft drink. He then approached a woman who was sitting at the bar eating dinner, stood
behind her, and began speaking to her. The woman, who testified that appellant's "weird" behavior
bothered her and made her uncomfortable, signaled her discomfort to the bartender. The bartender
asked appellant to take his seat, but he refused and continued to speak to the woman. The bartender
then told appellant to leave the restaurant. Appellant refused. The bartender then summoned the
security guard and assistant general manager of the restaurant, both of whom repeatedly told
appellant to leave the premises. Appellant's continuing refusal to leave led the security guard to call
the police. When appellant also refused the responding officer's order to leave, he was arrested for
criminal trespass.
In point of error three, appellant contends the court erred by refusing to instruct the
jury that a purchase at a restaurant gives the purchaser a revocable license to be on the premises. It
is appellant's contention that his purchase of the soft drink gave him a license to remain in the
restaurant until he finished his drink or until the license was revoked, which he argues could be done
only by the restaurant refunding the purchase price of the drink. Appellant cites no authority
supporting his argument; in fact, he concedes there is none.
The authority to establish defenses to criminal prosecutions rests solely with the
legislature. Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998). An asserted defense
that is not recognized as such by the penal code does not warrant a separate instruction. Id. The trial
court did not err by refusing the requested instruction. We overrule point of error three.
The information alleged that appellant remained in the building without the effective
consent of Marge Gibb, who was the assistant general manager of the restaurant. Appellant contends
the evidence is legally insufficient to prove this allegation because the security guard gave him
implicit permission to remain at the restaurant until the police arrived, and there is no evidence that
Gibb "withdrew this assent."
The security guard testified that appellant told her he wanted to speak to a police
officer before leaving. Based on this, appellant argues, "There is no evidence that [the guard] told
[him] he could not wait for the police officer. There is insufficient evidence to show, beyond a
reasonable doubt, that [the guard] did not give at least apparent assent in fact to [appellant] to wait
on the premises to talk to the police officer. There is no evidence that Marge Gibb or any other
owner or agent for [the restaurant] withdrew this assent granted [appellant] for the specific purpose
of speaking to the police officer."
Contrary to appellant's argument, the guard's silence in response to his request did
not constitute permission for him to remain in the restaurant. Neither is there any legal or
evidentiary support for his assertion that the security guard was authorized to overrule Gibb's order
to leave, or that it was necessary for Gibb to expressly withdraw the guard's "assent" before
instructing appellant to leave. Viewing the evidence in the light most favorable to the verdict, a
rational trier of fact could find a lack of effective consent and the other essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v.
State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (standard of review).
Appellant also argues that the evidence is legally insufficient because he had an
unrevoked license to be on the premises of the restaurant. We have rejected this argument. Point
of error one is overruled.
In his challenge to the factual sufficiency of the evidence, appellant repeats the
arguments made in support of his legal sufficiency challenge: that he had an unrevoked license to
be on the premises, that he had the security guard's implied consent to remain, and that Gibb never
withdrew the guard's consent and thus never effectively ordered him to leave. We have already
explained why we are unpersuaded by these arguments. A neutral review of all the evidence, both
for and against the finding of guilt, does not demonstrate that the proof of guilt is so obviously weak
or so greatly outweighed by contrary proof as to undermine confidence in the jury's determination.
See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (standard of review). Point of error
two is overruled.
The judgment of conviction is affirmed.
David Puryear, Justice
Before Justices Yeakel, Patterson and Puryear
Affirmed
Filed: March 6, 2003
Do Not Publish | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1584250/ | 641 So. 2d 302 (1993)
Clint COSLETT
v.
STATE.
CR-92-0984.
Court of Criminal Appeals of Alabama.
December 30, 1993.
Rehearing Denied February 11, 1994.
Certiorari Denied April 29, 1994.
*304 Bill Kiminos, Ozark, for appellant.
James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1930657.
MONTIEL, Judge.
Clint Coslett was indicted for possession of cocaine, in violation of § 13A-12-212, Code of Alabama 1975, and for possession of marijuana for personal use, in violation of § 13A-12-213, Code of Alabama. The jury found the appellant guilty as charged in the indictment. The trial court sentenced Coslett as a habitual offender to 11 years in prison on the cocaine conviction and 12 months in the county jail on the marijuana conviction.
The evidence in this case tended to show the following. On January 17, 1992, Dale County law enforcement officials received a telephone call from a confidential informant telling them that two white males in a two-door, red Nissan Sentra were attempting to buy crack cocaine in an area of Ozark known as "the block." Police spotted the car in the area and followed it for about two blocks before turning on the blue lights. The Nissan pulled into the right-hand lane, but then sped up. The police followed the car, which was going about 65 or 70 miles per hour, and called for a marked patrol unit to block the car's path. As the Nissan approached the marked police car, the Nissan slowed, pulled far to the right, and drove over the curb and around the police car. While they were in pursuit, two law enforcement officials observed the passenger, Robert Nations, toss a plastic bag and a medicine bottle from the car.
The Nissan finally was blocked into a parking lot, where it pulled into a parking place. Police blocked the car and got Coslett, who had been driving, and Nations out of the car. Two officers then searched the Nissan and found three partially burned marijuana cigarettes in the car's ashtray and a pack of rolling papers in the console. A sheriff's deputy retraced the route to where he had seen the passenger throwing objects from the car, and recovered a medicine bottle containing residue, a plastic sandwich bag containing residue, and another plastic bag containing marijuana. The residue was tested and determined to be cocaine, according to the testimony of David Thorne of the Alabama Department of Forensic Sciences.
Nations testified that he and Coslett had picked pecans all day, then Coslett decided to go to "the block" and get crack cocaine. Nations said Coslett needed a ride, so Nations let him drive Nation's sister's car. Once they got to the block, Nations said, a black man got in the car and sold Coslett "a couple of rocks." He admitted that the marijuana in the plastic bag was his; he testified that he had it down in his pants, but Coslett knew he had it. He also said the partially burned marijuana cigarettes found in the car were both his and Coslett's. Nations said that when the police started following them, Coslett told him to "[g]et everything out and throw it out the window." Nations was tried in a separate case and convicted of possession of marijuana and possession of cocaine.
I
Coslett contends the trial court erred in denying his motion to exclude evidence because, he argues, the evidence he was seeking to exclude was the fruit of an illegal search and seizure. Specifically, he argues, police had no probable cause to stop the car Coslett was driving.
After being tipped by the confidential informant, police began following the car Coslett was driving. Two law enforcement officials observed the passenger throwing objects from the car. After the chase, a sheriff's deputy returned to the area where the passenger had thrown objects and recovered a plastic bag containing marijuana, a plastic bag containing residue, and a medicine bottle containing residue.
The medicine bottle and the two plastic bags were "abandoned" when they were tossed out the car window; thus those items *305 were properly seized under the "abandoned property rule." Atwell v. State, 594 So. 2d 202, 209 (Ala.Crim.App.1991) cert. denied, Inabinett v. State, 594 So. 2d 214 (Ala.1992); Jones v. State, 572 So. 2d 504, 507 (Ala.Crim. App.1990). In Jones, this Court stated the rationale behind the rule:
"`"`In the law of search and seizure ... the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment.... In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein.
"`"`Where the presence of the police is lawful and the discard occurs in a public place where the defendant cannot reasonably have any continued expectation of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure.'"'"
572 So.2d at 507 (quoting Harrell v. State, 555 So. 2d 257, 260 (Ala.Crim.App.), aff'd, 555 So. 2d 263 (Ala.1989) (quoting other cases).
Abandonment as a result of illegal police conduct, however, is not a voluntary abandonment for search and seizure purposes. Atwell v. State, 594 So.2d at 209. However, we hold there was no illegal police conduct in this case.
Investigatory stops may be conducted by police on the basis of reasonable suspicion of wrongdoing, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Reasonable suspicion "is a less demanding standard than probable cause," in part because it "can arise from information that is less reliable than that required to show probable cause." Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). Information from an informant can provide reasonable suspicion to support a legal investigatory stop, even if the informant is anonymous. Id.
In Atwell, supra, this Court held that the sheriff's deputies had reasonable suspicion to stop a truck based solely upon information provided by a confidential informant. In that case, the informant, who had provided reliable information in the past, called a deputy and told him that the driver of a white Chevrolet pickup truck with an aluminum boat in the bed of the truck would be in possession of about five pounds of marijuana. The informant also told the deputy in what area the truck would be. He said this information had come from someone else who got marijuana from the truck's driver. The informant provided no further information. The deputy conveyed this information to another deputy, who found the truck in the area where the informant had said it would be and began following the truck. The deputy then tried to stop the truck by turning on his blue lights, but the truck sped up while objects were being thrown from the windows.
The facts in this case are similar to those in Atwell. Here, an informant who had been used in the past told a sheriff's deputy that two white men in a two-door red Nissan Sentra were attempting to buy crack cocaine, and told the deputy the area where the Nissan could be found. The deputy spotted the car in the area where the informant said it would be, then followed it a few blocks before trying to pull it over. As in Atwell, the Nissan sped up and objects were thrown from the car window. We hold that the informant's tip provided reasonable suspicion for law enforcement officials to stop the Nissan for an investigatory stop. See Atwell, supra. When the car sped up and law enforcement officials saw the passenger throw objects from the car window, reasonable suspicion was elevated to probable cause to arrest the appellant and the passenger. Atwell v. State, 594 So.2d at 211; Grubbs v. State, 602 So. 2d 498, 499 (Ala.Crim.App.1992) (probable cause arose when the appellant threw cocaine out the window); Walters v. State, 585 So. 2d 206, 209 (Ala.Crim.App.1991) (furtive gestures may be taken into account in determining whether probable cause exists). Because law enforcement officials had probable cause to arrest Coslett and Nations, they were free to search the passenger compartment of the Nissan incident to that arrest. Jones v. State, 432 So. 2d 19, 21 (Ala. Crim.App.1983). Therefore, the partially burned marijuana cigarettes were properly seized as a result of a legal search of the car. *306 As noted earlier, the plastic bag of marijuana, the plastic bag containing cocaine residue, and the medicine bottle containing cocaine residue were properly seized under the abandoned property rule. We hold, therefore, that the evidence obtained in this case was properly admitted by the trial court.
II
The appellant also contends that there was insufficient evidence to support his convictions for possession of cocaine and for possession of marijuana for personal use. He argues that, as to the cocaine charge, because only cocaine residue was found in the medicine bottle and in one of the plastic sandwich bags, there was no cocaine to offer into evidence, and, therefore, there was insufficient evidence to sustain his conviction on that charge.
The appellant acknowledges that the quantity of drugs possessed is immaterial in sustaining a possession conviction. In Walters v. State, 585 So. 2d 206 (Ala.Crim.App.1991), this Court held there was sufficient evidence to sustain the appellant's conviction for possession of cocaine where evidence before the jury consisted of a razor blade with cocaine residue and a plastic sandwich bag containing an amount of white residue so minuscule that the residue could not be tested. Someone who was with the appellant testified that he swallowed a cellophane bag when the appellant handed it to him, but said that he did not know what was inside.
In this case, the residue in the medicine bottle and in one of the plastic bags was tested and determined to be cocaine. In addition, Nations testified that he was with Coslett when Coslett bought the crack cocaine, and that Nations had thrown the cocaine out as the police were chasing them.
Also required to sustain a conviction of possession of a controlled substance is evidence to establish that the accused was in either actual or constructive possession of the substance and that he knew of the presence of the substance. Jones v. State, 572 So. 2d 504 (Ala.Crim.App.1990). "Constructive possession can be shown where the controlled substance was found on the premises controlled by the defendant, and guilty knowledge may be established by the surrounding facts and circumstances." Ward v. State, 484 So. 2d 536, 537 (Ala.Crim.App. 1985). "The driver of an automobile is generally considered to be in control of it. An inference of constructive possession, therefore, exists." Ward, supra at 537-38.
In this case, there is no question that Coslett was driving the car and that Nations was the passenger. The fact that Coslett was driving and that he tried to evade the police until the drugs had been thrown from the car goes to show his guilty knowledge. In addition, Nations testified that he witnessed Coslett purchase the crack cocaine, and that, although the marijuana belonged to Nations, he knew Coslett was aware that he had a bag of marijuana in his pants because they had discussed it before going to "the block." Nations also said the partially burned marijuana cigarettes found in the car ashtray belonged to both Coslett and himself.
"When the presence of the accused at the scene is established and evidence of his knowledge of the presence of the prohibited substance is shown, along with any other incriminating evidence, the issue of the defendant's guilt should be submitted to the jury." Radke v. State, 292 Ala. 290, 292, 293 So. 2d 314, 316 (1974). This Court will not set aside a conviction on the grounds of insufficiency of the evidence unless "`allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust.'" Walters v. State, 585 So. 2d 206, 210 (Ala.Crim.App.1991) (quoting Johnson v. State, 378 So. 2d 1164, 1169 (Ala.Crim.App.), cert. quashed, 378 So. 2d 1173 (Ala.1979). The evidence in this case was sufficient to support Coslett's conviction for possession of cocaine and for possession of marijuana for personal use.
III
Coslett's final contention in his brief is that the trial court erred in denying his requested jury charge that mere knowledge of the presence of drugs in someone else's *307 possession without any showing of any other connection of the drugs to the defendant shall not be sufficient evidence upon which to convict the defendant.
As to the denial of the requested jury charge, however, as the State points out, the trial court did instruct the jury as follows: "Mere presence of the defendant is not sufficient to establish constructive possession of drugs. Other facts and circumstances must be involved to establish guilty knowledge of illegal substances at a location where the defendant may be present." "The refusal of a requested written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in other charges given at the request of the parties." Rule 21.1, A.R.Cr.P. In its charge to the jury, the trial court in this case gave substantially the same rule of law as stated in the appellant's requested charge; therefore, the trial court did not err in refusing the charge.
The judgment is due to be affirmed.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584292/ | 641 So. 2d 40 (1994)
BROWARD COUNTY, etc., Petitioner,
v.
Bharat PATEL, et al., Respondents.
No. 81416.
Supreme Court of Florida.
May 19, 1994.
Rehearing Denied August 25, 1994.
*41 John J. Copelan, Jr., County Atty., and Anthony C. Musto, Asst. County Atty., Fort Lauderdale, for petitioner.
David D. Welch, Welch & Finkel, Pompano Beach, and Robert A. Ware, English, McCaughan & O'Bryan, P.A., Fort Lauderdale, for respondents.
Thornton J. Williams, Gen. Counsel, and Thomas F. Capshaw and Marianne A. Trussell, Asst. Gen. Counsels, Tallahassee, amicus curiae, for State, Dept. of Transp.
Will J. Richardson, Richardson Law Office, P.A., Tallahassee, amicus curiae, for Bharat Patel, and Warren and Selina Picillo.
KOGAN, Justice.
We have for review the following question certified to be of great public importance:
MAY THE GOVERNMENT SUBMIT EVIDENCE THAT THE SEVERANCE DAMAGES OF A CONDEMNEE MAY BE CURED OR LESSENED BY ALTERATIONS TO THE CONDEMNEE'S PROPERTY WHEN THOSE ALTERATIONS REQUIRE THE GRANT OF A VARIANCE FROM THE APPROPRIATE GOVERNMENTAL ENTITY HAVING JURISDICTION OVER THE PROPERTY?
Patel v. Broward County, 613 So. 2d 582, 583 (Fla. 4th DCA 1993). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
*42 The Respondents, Bharat Patel and Warren and Selina Picillo, owned adjoining motels along Ocean Boulevard in Broward County. Broward County initiated eminent domain proceedings to acquire a narrow strip of land along the road front for purposes of widening the road. The crux of the legal question before us is that the owners will not be able to have the same number of parking spaces at their motels without making physical changes that will require future zoning variances. With respect to severance damages the trial court instructed the jury that, in determining just compensation, it could consider whether zoning variances reasonably would be available. Broward County also was permitted to introduce evidence showing how variances together with alterations to the property would "mitigate" the loss caused by the taking. The Fourth District reversed on the authority of Williams v. State Department of Transportation, 579 So. 2d 226 (Fla. 1st DCA 1991), and State Department of Transportation v. Byrd, 254 So. 2d 836 (Fla. 1st DCA 1971). However, the district court also certified the question for review in this Court.
The central policy of eminent domain law is that owners of property taken by a governmental entity must receive full and fair compensation. Art. X, § 6, Fla. Const. In construing the Florida Constitution on this question, this Court elsewhere has stated:
"Full compensation" within the meaning of the Constitution must be determined by reference to the state of affairs that would have existed absent any condemnation proceeding whatsoever, i.e. the owners retaining ownership.
Florida Dep't of Revenue v. Orange County, 620 So. 2d 991, 992 (Fla. 1993). Admittedly, this constitutionally required comparison becomes somewhat more complex when, as in the present case, only a fraction of the property is being condemned and the possibility of future changes in or variances from the applicable land-use restrictions may affect the value of the property.
The trial judge and jury below apparently concluded that such a possibility may be gauged by determining the value of the land before the taking, subtracting the value after the taking, and then further subtracting the alleged added value that could be created by improvements made possible by future variances. The district court, on the other hand, felt that evidence of a probable future variance is generally irrelevant, citing Williams and Byrd as authority. However, the district court did express doubts in light of our statement in Troup v. Bird, 53 So. 2d 717, 720 (Fla. 1951), that the granting of a variance is generally equivalent to rezoning,[1] and the fact that probable future rezoning has been held relevant in determining an award. E.g., Board of Comm'rs of State Insts. v. Tallahassee Bank & Trust Co., 100 So. 2d 67 (Fla. 1st DCA 1958). We find these doubts well founded, though we also do not agree with the approach used by the trial court.
The leading authority in the field of eminent domain law has stressed that, in considering contingent future changes in zoning during a condemnation proceeding,
the property must not be evaluated as though the rezoning were already an accomplished fact. It must be evaluated under the restrictions of the existing[] zoning with consideration given to the impact upon market value of the likelihood of a change in zoning.
... .
The rule has been extended[] to consideration of the reasonable probability that a variance will be issued.
4, Julius L. Sackman, Nichols' The Law of Eminent Domain, § 12C.03[2], at 12C-88 to -90 (rev. 3d ed. 1994) (emphasis added). In sum, the party asserting the availability of a future rezoning or variance must demonstrate a reasonable probability that the rezoning or variance will be granted within a reasonable period of time.[2] This is a question *43 of fact. Id., § 12C.03[3], at 12C-93. We agree with this analysis.
The Nichols treatise goes on to describe how "reasonable probability" is determined. For example, the granting of an earlier and isolated variance or change may be irrelevant, but the granting of many similar variances or changes may be highly persuasive. Id. at 12C-94. Expert testimony as to "reasonable probability" is impermissible if based merely on speculation or groundless prognostication, but can be admitted where necessary to explain previously admitted factual evidence tending to prove or disprove the existence of a reasonable probability. See id. at 12C-96 to -97. That testimony may include an evaluation of the degree of probability that reasonably exists, since contingencies of this type may vary in their probability.[3] Again, such testimony must be based on, and must at least attempt to explain, factual matters already submitted in evidence.[4] Opposing parties of course may rebut, contradict, or impeach through any method permitted by the applicable Rules of Evidence and precedent; and failure to do so will justify the finder of fact in ruling in favor of the party shouldering the burden, provided the burden has been met.
Once the finder of fact determines that a reasonable probability does or does not exist, the finder then must separately determine the actual market value of the property on the day it was taken, together with severance damages and other costs. If a probability does exist, its effect on fair market value and severance damages obviously must be gauged. Generally, expert evidence from persons qualified in the valuation of real estate is relevant to this question.[5]
We stress, as does the Nichols treatise, that the only issue in this phase of the proceedings is the price that would be paid by a knowledgeable buyer willing but not obliged to buy, to a knowledgeable owner willing but not obliged to sell, in light of the probability of rezoning or probability of a variance as of the day of the taking. See id., § 12C.03[2], at 12C-88. Obviously, a knowledgeable buyer would offer less value for property that may require significant future expenses and more value for property with minimal future expenses. Likewise, the value of future improvements that may be probable also will factor into the equation when a knowledgeable buyer determines fair-market price. We stress that the availability of a future "cure" or "mitigation of damages" or more accurately, the probability that lost value can be restored to the property by contingent future actions[6] in spite of the taking is relevant only to the extent it may have an impact upon fair market value as of the moment of the taking, and not otherwise.[7]
*44 We also are persuaded to this approach by its inherent fairness and logic. While Florida has long recognized that the reasonable probability of rezoning may be considered when determining the value of condemned property, we see no reason why it may not also be considered in determining severance damages. The probability that the property's value may be enhanced or diminished by changes to land-use regulations is a factor that the trier of fact should be permitted to consider in light of expert testimony on the way this probability affected the value of the property and the severance damages on the day of the taking.
If such future contingencies are not properly factored into the equation along with the risks associated with them, then two equally unfair scenarios can result. First, if the future contingency is not considered at all, then the condemnee after severance might be able to obtain a land-use change that substantially reduces actual losses caused by severance, thereby resulting in a windfall at taxpayers' expense. In effect, the condemnee would obtain the full value restored by the land-use change and modifications, minus associated expenses. Likewise, if the future land-use change is treated as a certainty but then is later denied, the condemnee would be forced to bear the entire loss. Such an approach would force the condemnee to shoulder all of the risk associated with the future contingency, which is unfair to the condemnee.
These two scenarios would fly in the face of widely accepted principles of valuing condemned property to reflect actual market conditions; and those conditions obviously will be affected by future contingencies and associated risks that could increase or decrease property values. The same principles logically apply to a land-use or zoning variance whether the whole property is condemned or a portion is severed by condemnation.[8]
A close examination of the record reveals significant points of departure between our analysis here and what the trial court allowed. Foremost, Patel was awarded damages less than the least amount supported by any reading of the record. Indeed, the award was less than the amount advocated by the county's own expert witnesses. This was plain error. Likewise, it is obvious that the fact finder below treated the future contingencies at issue here as though they were certain to occur and, in any event, awarded the condemnees nothing for the lost property value and other costs associated with converting other areas of their land to replace lost parking areas and thereby reduce severance damages. This also was error.
For the above reasons, the decision below is quashed and this cause is remanded for further proceedings consistent with our views here. On remand, the trial court obviously must be instructed to conduct a new trial on *45 all issues using the guidelines outlined in this opinion, assuming the parties still cannot reach a settlement. We answer the certified question in the affirmative as qualified above. Finally, we disapprove the decisions in Williams and Byrd solely to the extent they may be viewed as inconsistent with this opinion.
It is so ordered.
GRIMES, C.J., and OVERTON, McDONALD, SHAW and HARDING, JJ., concur.
NOTES
[1] We continue to adhere to this view.
[2] The analysis may be different where there is evidence that the governmental agency prior to the taking has exercised its regulatory authorities in a way to arbitrarily depress the value of the property in question, such as to lessen the agency's potential liability. 4, Julius L. Sackman, Nichols' The Law of Eminent Domain, § 12C.03[2], at 12C-90 (rev. 3d ed. 1994).
[3] Obviously, the trial court must first determine whether a jury question actually exists as to probability. If the possibility of rezoning or a variance is a highly speculative contingency, such that the trial court finds no evidence to render it "probable," then a jury question does not exist. The trial court's conclusion in this regard will be sustained on appeal if there is record support for it.
[4] In this regard, the expert generally should not assume either a "best case" or a "worst case" scenario, but rather the scenario that is most probable. Thus, experts properly may be questioned as to their assumptions in this vein, and the trial court on a proper motion may instruct the experts to confine their responses solely to the scenario that is most probable.
[5] We agree, however, that the finder of fact may not establish a fair market value that is more or less than the greatest or least amount for which there is record support. Doing otherwise is plain error.
[6] A "duty to cure" or "a duty to mitigate of damages" is something of a misnomer in this context, because neither party has an obligation to cure or mitigate anything. We are concerned solely with the value of the property as it existed on the day of the taking. Future contingencies obviously will affect the fair market price and therefore are inherently factored in to the equation. If a reasonable and prudent buyer would pay more in light of the future contingencies, then this evidence should be considered, even if the present owner has no intention of effectuating such a "cure."
[7] When admitting evidence of future contingencies, however, the trial court must ensure that the finder of fact does not mistakenly assume that their cost or value can be considered apart from the effect on market value, such as by simply assuming that these contingencies must inevitably occur and then valuing the property accordingly. After all, we are dealing with contingencies here, not certainties. There always is a risk that such costs or future values may prove greater or less than a knowledgeable buyer might assume. Knowledgeable buyers will take this risk into account in deciding on a fair market value, so that the risk is fairly allocated between both buyer and seller. It thus is plain error to allocate the entire risk to either the condemnor or the condemnee when future contingencies are at stake: Such an allocation is possible only in cases in which the future event is absolutely certain to happen on the day of the taking, such as where the condemning agency can make a legally binding guarantee that rezoning or a variance will be granted. To prevent juror confusion, the trial court and the parties may wish to see that testimony as to future costs and values is not given in the form of contingent future dollar amounts, but only in terms of the effect on the property's value as of the moment of the taking. A trial court certainly has discretion to confine testimony in this manner.
[8] We do agree with respondents that any loss to them by virtue of the appropriation of other areas of their property to provide for parking should be taken into account in determining fair market value on the day of the taking, along with associated reasonable costs. Also, Florida law indicates that business damages sometimes may be available in addition to severance damages, provided the two do not duplicate one another. E.g., Glessner v. Duval County, 203 So. 2d 330 (Fla. 1st DCA 1967). In the proceedings below it appears that an expert certified public accountant testified that business damages were not appropriate in cases involving motels. We believe this is a question more properly decided by the trial judge upon a pretrial motion to determine whether a jury question exists as to business damages. Witnesses should never be permitted to tell jurors, in effect, that a jury question is nonexistent when jurors in fact are being called upon to decide that question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3344866/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION TO DISMISS AND MOTION FORSUMMARY JUDGMENT
In the summer of 1993, Quiet Hawk, a member of the Golden Hill Paugussett Tribe of Indians and the alleged Council Chief of the Tribe, instituted five legal actions in the Superior Court of the State of Connecticut seeking the return of tribal lands which the plaintiff alleges had been conveyed to European settlers in colonial times without the approval of the legislative body, then known as the General Courte, in violation of various enactments. The plaintiff claims that because the deeds were null and void, the "Indian" title to the land was never extinguished and that the Golden Hill Paugussett Tribe of Indians (hereinafter the Tribe) has a present right to occupy these lands. The five actions filed were the Golden Hill Paugussett Tribe of Indians v.City of Southbury, Docket No. 116468, filed in August 1993; theGolden Hill Paugussett Tribe of Indians v. Town of Seymour,
Docket No. 930044366, filed on September 14, 1993; the GoldenHill Paugussett Tribe of Indians v. Town of Shelton, Docket No. 930044148, filed on August 18, 1993; the Golden Hill PaugussettTribe of Indians v. People's Bank, Docket No. 930307302, filed on August 31, 1993; and the Golden Hill Paugussett Tribe of Indiansv. Trumbull, Docket No. 930306702, filed on August 6, 1993.
Of the five cases, only the case of Golden Hill PaugussettTribe of Indians v. City of Southbury, Superior Court, judicial district of Waterbury, Docket No. 116468 (October 28, 1993, McDonald, J.), affirmed, 231 Conn. 563, 651 A.2d 1246 1995, has been adjudicated. The procedural posture of the remaining four cases has been delayed due to, inter alia, the above referencedSouthbury litigation, litigation filed by the plaintiff in the federal courts and the plaintiff's efforts to obtain federal recognition of the Tribe from the Bureau of Indian Affairs (BIA), which was denied on September 13, 1996.
On February 27, 1997, the intervening defendant, the State of Connecticut (hereinafter the State), filed a motion to dismiss the remaining actions on the ground that Quiet Hawk has no standing because he lacked the authority to file suit on behalf of the Tribe, thus depriving the court of subject matter jurisdiction. The State also filed a motion for summary judgment on the ground of issue preclusion. On April 1, 1997, the plaintiff filed an objection to these motions. CT Page 5488
Oral argument was heard on April 15, 1997, at which time all the defendants in the four pending cases adopted the motions and supporting memoranda filed by the State and agreed to consolidate the cases for purposes of these two motions only. (Transcript of Oral Argument, April 15, 1997, p. 5).
"Whenever a lack of jurisdiction appears on the record, the court must consider the question. . . . The court must address itself to that issue and fully resolve it before proceeding further with the case. . . ." Valley Cable Vision, Inc. v. PublicUtilities Commission, 175 Conn. 30, 32, 392 A.2d 485 (1978).
The motion to dismiss admits all facts well pleaded and invokes the existing record that accompanies the motion, including supporting affidavits that contain undisputed facts.Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000
(1988).
"It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Citations omitted, internal quotation marks omitted.) UnisysCorp. v. Department of Labor, 220 Conn. 689, 693, 600 A.2d 1019
(1991).
In support of their motion, the defendants contend that Quiet Hawk, who filed these lawsuits, has not been authorized by the Tribe to do so, even though the lawsuits were brought in the name CT Page 5489 of the Tribe, thus implicating the court's jurisdiction. The defendants argue that the plaintiff must first demonstrate that it is a proper party to request adjudication which it can show by making a colorable claim of a direct injury. Second, the party whose authority is being challenged must convince the court that it has authority. See Golden Hill Paugussett Tribe of Indians v.City of Southbury, 231 Conn. 563, 571-2, 651 A.2d 1246 (1995).
In opposition, the plaintiff counters that the two-prong test in Golden Hill Paugussett Tribe of Indians v. City of Southbury,
supra, 231 Conn. 563, is not applicable to the present lawsuit because the Tribe supports the filing of these lawsuits. The plaintiff also argues that it did not offer evidence of Quiet Hawk's authority in Golden Hill Paugussett Tribe of Indians v.City of Southbury, supra, Superior Court, Docket No. 116468, because it maintained that the court's inquiry in matters of tribal self-government was improper. The plaintiff, now conceding that the court has the authority to determine its jurisdiction, contends that the court must determine the plaintiff's standing for each lawsuit on a case-by-case basis. The plaintiff also submitted affidavits and declarations signed by various members of the Tribe, confirming Quiet Hawk's authority and authorization to file the four lawsuits at issue.
At oral argument, the plaintiff drew an analogy to a corporate plaintiff, stating that "there are a number of cases that stand for the proposition that even though the board of directors didn't authorize it at the time of institution, the board could subsequently ratify it and as long as it did so before the case was dismissed, then it was authorized." (Tr. p. 48). Counsel maintained that "even if you could apply collateral estoppel to say that Judge MacDonald (sic) some how determined that these cases were not authorized, these pending before Your Honor, that they've been ratified." (Tr. p. 49). At oral argument, plaintiff's counsel referred the court to a ratification argument in its submitted briefs, (Tr. p. 49), however, it is noted that no such legal argument was made in the briefs submitted to the court.
In Golden Hill Paugussett Tribe of Indians v. City ofSouthbury, supra, Superior Court, Docket No. 116468, the General Tribal Council of the Golden Hill Paugussett Indian Nation (hereinafter Council), an intervening defendant, filed a motion to dismiss challenging, inter alia, Quiet Hawk's authority to assert a claim on behalf of the Tribe. The trial court, McDonald, CT Page 5490 J., conducted an extensive evidentiary hearing over the course of several days regarding the governance of the Tribe because this issue of standing implicated the court's jurisdiction. Neither Quiet Hawk nor his father, the traditional chief, Big Eagle, appeared or testified at the hearing.
In the present case, the plaintiff submitted copies of numerous documents signed by Big Eagle and Quiet Hawk claiming leadership of the Tribe and Quiet Hawk's authorization to file the disputed land claims as well as affidavits and proxies executed by tribal members that Big Eagle is the Traditional Chief of the Tribe and that Quiet Hawk is the Council Chief of the Tribe. These documents also state that the General Tribal Council has no connection with the Tribe. One document, entitled "Resolution of Support for Golden Hill Paugussett Tribes Land Claims Litigation" (hereinafter "Resolution"), states that "the undersigned Tribal members do hereby ratify all lawsuits brought to date and all lawsuits that are to be brought in the future on their behalf and on behalf of the Tribe by Chief Big Eagle, Traditional Chief, and Chief Quiet Hawk, Council Chief. . . ." The Resolution is signed by individual Tribal members and executed at various dates in 1993 and 1994. Some signatures are neither witnessed nor dated. Neither the Resolution, nor any of the other documents submitted by the plaintiff, are executed by the Tribal Council.
"Accordingly, as a general rule, if the corporation, through the officer or body having authority to act, acquires or is charged with knowledge of the unauthorized act, the act not being prohibited by charter or by statute nor contrary to public policy, and does not repudiate it within a reasonable time, but without objection acquiesces therein, it is bound by the unauthorized act. These holdings are sometimes put upon the ground that ratification of the unauthorized act is presumed from failure to disaffirm. This is simply another way of saying that the authority of the act cannot be challenged because of the injustice which would arise if the strict letter of the law as to the necessity for authority of the act were followed. . . . In order to ratify the unauthorized act of an agent and make it effectual and obligatory upon the principal, the general rule is that the ratification must be made by the principal with a full and complete knowledge of all the material facts connected with the transaction to which it relates; and this rule applies, of course, to ratification by a corporation of an unauthorized contract or other act by its officers or agents, whether the CT Page 5491 ratification is by the stockholders or by the directors, or by a subordinate officer having authority to ratify. . . ." Cohen v.Holloways', Inc., 158 Conn. 395, 408, 260 A.2d 573 (1969).
In Golden Hill Paugussett Tribe of Indians v. City ofSouthbury, supra, 231 Conn. 578, the court stated "the inherent sovereignty of Indian tribes bars courts from intervening in many matters of tribal self-government. The principle of tribal sovereignty, however, does not bar courts from acting to protect tribal sovereignty. . . ."
Applying the principles of ratification and the court's authority to protect tribal sovereignty to the present case, authorization by ratification cannot be found for the filing of these land claims. In Golden Hill Paugussett Tribe of Indians v.City of Southbury, supra, Superior Court, Docket No. 116468, the trial court, McDonald, J., found that the Golden Hill Paugussett Tribe of Indians was governed by the Tribal Council, not Quiet Hawk. Here, the Tribal Council, did not perform any acts subsequent to the commencement of the instant land claims that indicate ratification of Quiet Hawk's actions. Thus, the plaintiff lacks standing to assert the four lands claims at issue on behalf of the Tribe.
Accordingly, the court grants the defendants' motion to dismiss.
While the motion to dismiss is dispositive of this matter, nevertheless the court will, in the interest of judicial economy, consider the motion for summary judgment.
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279,567 A.2d 829 (1989). "The burden of establishing the absence of a genuine issue of material fact and the entitlement to recovery as a matter of law lies with the moving party." Zapata v. Burns,207 Conn. 496, 502, 542 A.2d 700 (1988). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89
(1994). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the CT Page 5492 appropriate method for resolving [such] a claim. . . ." Jacksonv. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
In its memoranda of law, the defendants argue that the plaintiff is precluded from litigating who is in control of the Tribe based on the doctrine of collateral estoppel because the r court in Golden Hill Paugussett Tribe of Indians v. City ofSouthbury, supra, Superior Court, Docket No. 116468, determined that the General Tribal Council of Golden Hill, not Quiet Hawk, governs the Tribe and that Quiet Hawk did not have the authority to file the lawsuit at the time of its commencement on behalf of the Tribe. The defendants claim that on appeal, the Connecticut Supreme Court affirmed both the trial court's jurisdiction to inquire into the plaintiff's authority to bring a lawsuit in the name of an Indian tribe and the trial court's finding that the lawsuit had not been authorized by the tribe. Golden HillPaugussett Tribe of Indians v. City of Southbury, 231 Conn. 563,564-65, 651 A.2d 1246 (1995).
In opposition, the plaintiff counters that the holding that Quiet Hawk was not authorized to file the lawsuit in Golden HillPaugussett Tribe of Indians v. City of Southbury, supra,231 Conn. 563, was a narrow one and can only be applied to that particular lawsuit. The plaintiff further contends that the doctrine of collateral estoppel does not apply because the issue of Quiet Hawk's authority to file the present lawsuits was not fully and fairly litigated in Golden Hill Paugussett Tribe ofIndians v. City Southbury, supra, Superior Court, Docket No. 116468.
"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Citations omitted; internal quotation marks omitted.)Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 296,596 A.2d 414 (1991).
After a full adversary proceeding in Golden Hill PaugussettTribe of Indians v. City of Southbury, supra, Superior Court, Docket No. 116468, the trial court, McDonald, J., determined that "no tribe exists which followed Quiet Hawk at the time suit was filed [in August 1993] and may be designated as the plaintiff CT Page 5493 Golden Hill Paugussett Tribe of Indians in this lawsuit. The designated plaintiff in this lawsuit is therefore not a tribe or representing a tribe, and lacks the standing to bring this suit." The court also found that Tribal Council, and not Quiet Hawk, has control over the Golden Hill Paugussett Tribe of Indians. These determinations as to leadership were necessary to the trial court's judgment to grant the Council's motion to dismiss the complaint because Quiet Hawk, who filed the lawsuit, lacked tribal authority to assert the claim on behalf of the Tribe. Thus, the issues of standing and leadership were actually litigated and necessarily determined by the trial court, McDonald, J. Accordingly, this court finds that the doctrine of issue preclusion acts as a bar to relitigate the issue of Tribal leadership and authority because the complaints in the present four lawsuits were filed by Quiet Hawk at approximately the same time Quiet Hawk filed the unauthorized complaint in Golden HillPaugussett Tribe of Indians v. City of Southbury, supra, Superior Court, Docket No. 116468. Therefore, the court grants the defendants' motion for summary judgement.
THE COURT
CURRAN, JUDGE TRIAL REFEREE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1546734/ | 377 B.R. 140 (2007)
In re FLYI, INC., et al., Debtors.
No. 05-20011 (MFW).
United States Bankruptcy Court, D. Delaware.
October 17, 2007.
*141 M. Blake Cleary, Matthew B. Lunn, Ian S. Fredericks, Young Conaway Stargatt & Taylor, LLP, Wilmington, DE, Paul D. Leake, Brad B. Erens, Scott J. Friedman, Jones Day, New York, NY, for the FLYi and Independence Air Distribution Trust.
Victoria Counihan, Dennis A. Meloro, Greenberg Traurig, LLP, Wilmington, DE, Emil Hirsch, O'Connor & Hannan, LLP, Washington, D.C., for Loudoun Gateway III, L.L.C.
*142 OPINION[1]
MARY F. WALRATH, Bankruptcy Judge.
Before the Court is the Objection of the FLYi and Independence Air Distribution Trust (the "Trust") to the claim of a former landlord, Loudoun Gateway III, L.L.C. ("Loudoun"). For the reasons stated below, the Court will sustain the objection.[2]
I. BACKGROUND
On November 7, 2005, FLYi, Inc. ("FLYi") and several of its affiliates (collectively, the "Debtors") filed voluntary petitions under chapter 11 of the Bankruptcy Code. On January 5, 2006, the Court entered an order authorizing the Debtors to discontinue their scheduled flight operations. Since that time the Debtors have liquidated substantially all their assets.
Prior to its bankruptcy filing, FLYi was a party with Loudoun to a lease agreement dated December 7, 2000 (the "Lease") of a building located at 45200 Business Court, Dulles, Virginia (the "Premises"). On April 30, 2006, FLYi rejected the Lease.[3] On November 30, 2006, Loudoun sold the Premises to a third party.
On November 21, 2006, the Debtors filed their First Amended Joint Plan of Reorganization (the "Plan"). On March 15, 2007, the Court confirmed the Plan, which became effective on March 30, 2007. Pursuant to the Plan, the Trust was created to liquidate the remaining assets, reconcile claims against the estate, and make the appropriate distributions to creditors.
As part of its duties, the Trust filed Omnibus Objection No. 30 (Substantive) and Motion to Reduce or Reclassify Certain Claims on March 30, 2007. Among the claims to which the Trust objected was a claim filed by Loudoun for lease rejection damages in the amount of $2,324,324.16 pursuant to section 502(b)(6) of the Bankruptcy Code. The basis of the Trust's objection is that Loudoun had sold the Premises, thereby eliminating any claim it might have to unpaid rent or other rejection damages arising after the sale.
A hearing was held on the Omnibus Objection as it pertained to the Loudoun claim on July 13, 2007. At the conclusion of the hearing, the Court requested additional briefing on the effect under Virginia state law of the sale of the Premises on Loudoun's claim for damages under the Lease. The parties agreed to defer an evidentiary hearing on the amount of the claim until after the Court's ruling on the legal issues presented. The additional briefing was concluded on September 3, 2007. The matter is now ripe for decision.
II. JURISDICTION
The Court has subject matter jurisdiction over this contested matter pursuant to 28 U.S.C. §§ 157 & 1334. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B), & (0).
III. DISCUSSION
A. Virginia Common Law
The Trust asserts that under the Lease and Virginia state law, Loudoun had *143 three options upon the rejection of the Lease: do nothing and sue for the rent remaining under the Lease; reenter the Premises for the sole purpose of re-letting it without terminating the Lease; or reenter the Premises and exercise full dominion over the premises thereby terminating the Lease and eliminating FLYi's obligation to pay any future rent. See, e.g., tenBraak v. Waffle Shops, Inc., 542 F.2d 919, 925 (4th Cir.1976). Because Loudoun sold the Premises (thereby exercising full dominion over it), the Trust argues that Loudoun elected the third option thereby terminating the Lease. In re Windsor, 201 B.R. 133, 137 (Bankr.D.Md. 1996) (holding under Virginia law that a landlord accepts a tenant's surrender of leased premises if the landlord exercises dominion over the premises, inconsistent with the ability of the tenant to re-enter). Consequently, the Trust contends that Loudoun lost all right to a claim for unpaid rent from FLYi arising after the sale of the. Premises.
Loudoun disagrees. It contends that the sale of the Premises did not constitute an acceptance by Loudoun of FLYi's surrender and was not a termination of the Lease. It asserts that the Ames case is directly on point and supports its position. See, e.g., In re Ames Dept. Stores, Inc., 173 B.R. 80, 82 (Bankr.S.D.N.Y.1994) (concluding under Maryland law that the sale of a lease did not eliminate the landlord's rejection damages claim).
The Trust responds that under Virginia law the sale of leased property by a landlord constitutes an acceptance of the surrender of that property by the tenant thereby eliminating any claim the landlord may have to unpaid future rent. See, e.g., Wilson v. Ruhl, 277 Md. 607, 356 A.2d 544, 547 (1976) (holding under Maryland law that merely listing property for sale did not constitute a termination of the lease by the landlord but stating, in dicta, that if the property had been sold, it would have been a termination).
The Court agrees with the Trust. "The determination of property rights under lease agreements and otherwise is governed by state law and the agreement between the parties." Windsor, 201 B.R. at 135, citing Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). In this case, the parties agree that Virginia law applies and that Maryland and Virginia common law are the same on this issue.[4]
Under Virginia law, on breach of a lease by the tenant, the landlord has three options:
In such a case, the law of Virginia allows the lessor certain options; it may reenter and terminate the lease, it may reenter for the limited purpose of re-letting without terminating the lease, or it may refuse to re-enter and initiate an action for accrued rents.
tenBraak, 542 F.2d at 925.
In this case, Loudoun re-entered the Premises and, therefore, did not choose the third option. The dispute is which of the first two options Loudoun chose.
Loudoun contends that the Ames case is directly on point and requires the conclusion that the sale of the Premises did not constitute a termination of the lease. The Court declines to follow the Ames case. In Ames, the Court's decision was premised on its conclusion that "[u]nder Maryland law, a breach by a tenant entitles a landlord to damages in an amount equal to *144 the rental for the full remaining term of the lease at the time of the breach." 173 B.R. at 82, citing Wilson, 277 Md. 607, 356 A.2d 544. Had the Ames Court done a more thorough analysis of, common law, it would have found that a sale of property by the landlord terminates the landlord's right to collect future rent from the breaching tenant.
Specifically, the courts have held that under Virginia law,
[T]he question of whether the landlord has accepted the debtor's surrender of the premises is heavily dependent on the facts and circumstances of the particular case.
Acceptance of a tenant's abandonment may be discerned from express acceptance by the landlord, or through acts or conduct clearly indicating an intent to accept abandonment. . . . Courts dealing with a landlord's acceptance through implication caution that the actions of the landlord subsequent to the abandonment must be substantial enough to evidence reappropriation of the premises and an intent to foreclose any future rights of the tenant in the premises. . . . A landlord's re-entry into the premises following a breach by the lessee, by itself, generally is not sufficient to result in the lessor's acceptance of the surrender. . . . [H]owever, a landlord's re-entry into the premises and utilization of the premises for its own purposes is sufficient to constitute an implied acceptance of the tenant's abandonment thereby terminating the debtor's liability under the lease.
Windsor, 201 B.R. at 136-37 (citations omitted). In Wilson, the Court recognized that a sale of property "is so inconsistent with the tenant's estate as to allow for no other interpretation than that the landlord had reentered in order to accept a surrender." 356 A.2d at 547 (citations omitted).
The evidence in this case establishes that Loudoun did not re-let but sold the Premises. The Court concludes that the sale of the Premises was the exercise of sufficient dominion over the Premises to constitute the acceptance of FLYi's abandonment such that the Lease was terminated and no further rent was due by the estate. Windsor, 201 B.R. at 136-37; Wilson, 356 A.2d at 547.
B. Lease Provisions
In its Supplemental Brief, Loudoun asserts that even if Virginia common law does provide that a sale of the premises precludes the landlord from suing for future rent, the law also allows parties to contract around that result. It contends that the parties did just that in the Lease.
1. Paragraph 21G
Specifically, Loudoun points to paragraph 21G which provides that:
Nothing herein contained shall limit or prejudice the right of Landlord to provide for and obtain as damages by reason of any such termination of this Lease or of possession an amount equal to the maximum allowed by any statute or rule of law in effect at the time when such termination takes place, whether or not such amount be greater, equal to or less than the amounts of damages which Landlord may elect to receive as set forth above.
(Lease at ¶ 21G.) Loudoun argues that this provision means that nothing in the Lease limits the total amount which would be due under law, which Loudoun argues means all future rent due under the Lease.
The Trust agrees with Loudoun's premise but not its conclusion. It asserts that paragraph 21G did not create any new rights that Loudoun might have under state law, it simply states that the Lease does not reduce those rights. Because under state law the sale of the Premises *145 terminated the Lease, the Trust argues that Loudoun has no claims under the Lease or applicable law.
The Court agrees with the Trust's interpretation of paragraph 21G. While Virginia law does permit the parties to contract around the common law, such provisions must be strictly construed. In re WD Ins. Servs., Inc., No. 04-14354-SSM, 2005 Bankr.LEXIS 567, at *11 (Bankr. E.D.Va. Feb. 28, 2005). In this case, the Court must consider paragraph 21G in context.
Paragraph 21A permits Loudoun to re-enter the premises; paragraph 21B waives any rights FLYi would have for damages by such re-entry; paragraph 21C allows Loudoun to terminate the Lease or to re-let the Premises; paragraph 21D permits Loudoun to apply any rents received from re-letting in an agreed manner; paragraph 21E permits Loudoun, if it elects not to re-enter, to sue FLYi for liquidated damages (equal to the full amount of future rents due under the Lease); and paragraph 21F provides that Loudoun's taking possession of the Premises is not a termination of the Lease unless Loudoun gives written notice to that effect or a Court decrees that it is such a termination.
In this context, the Court concludes that paragraph 21 is simply a reiteration of the options that Loudoun would otherwise have under Virginia common law: (1) reenter and terminate, (2) re-enter and relet, or (3) not re-enter but sue for all future rent due under the Lease. tenBraak, 542 F.2d at 925. As a result, the Court concludes that paragraph 21G does no more than state that the Lease is not intended to limit rights Loudoun may have under applicable law but does not create any new rights.
Loudoun also contends that the last sentence in paragraph 21G supports its claim for all future rent arising after the rejection (and even after the sale of the Premises). That sentence states:
Notwithstanding anything to the contrary herein contained or any other rights exercised by Landlord hereunder, upon the occurrence of an Event of Default by Tenant under the terms of this Lease, rent which otherwise would be due or would have been due except for any abatement provided for in this Lease (other than in Sections 18 and/or 25) shall be immediately due and payable.
(Lease at ¶ 21G.)
The Trust disagrees, arguing that the last sentence of paragraph 21G is not an acceleration clause but merely states that rent due on breach will be the original rent set forth in the Lease, without giving force to any abatement of rent to which the parties may have previously agreed.
The Court agrees with the Trust. The last sentence of paragraph 21G is not an acceleration clause, which would make all future rent due on termination of the Lease. In fact, in describing the liquidated damages option (in the event Loudoun does not re-enter the Premises), paragraph 21E expressly states that all future rent would be due. There is no such express language in paragraph 21G. In contrast, the Court concludes that paragraph 21G only permits Loudoun to collect any past rent that was abated if FLYi breaches the Lease.
Therefore, the Court concludes that Paragraph 21G does not represent an agreement by the parties to modify the common law effect of Loudoun's re-entering and terminating the Lease by selling the Premises.
*146 2. Paragraph 20A
The Landlord further argues that paragraph 20A of the Lease preserves its claim for all future rent even if the Landlord accepted the surrender of the Premises. That paragraph provides in full:
In the event that Tenant shall become a debtor under Chapter 7, 11 or 13 of the Bankruptcy Code ("Debtor") and the trustee ("Trustee") or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant acknowledges that it is essential to the ability of Landlord to continue servicing the mortgage on the Building that a decision on whether to assume or reject this Lease be made promptly. Under these circumstances, Tenant agrees that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect to assume, this Lease within sixty (60) days after the filing of the petition under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. At the expiration of at least thirty (30) days, Landlord shall be entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Landlord's right to be compensated for damages in such liquidation proceeding shall survive.
(Lease at ¶ 20A (emphasis added).)
The Trust responds that this provision does not create any new rights (or specifically modify the effect of termination of the Lease under state law). It argues that paragraph 20A simply provides that whatever right Loudoun has to damages is not affected by the termination of the Lease.
The Court agrees with the Trust. Paragraph 20A does not create a specific claim for damages. It simply provides for a time within which FLYi shall assume or reject the Lease. It then states that if the Lease is rejected or deemed rejected, Loudoun retains a right to claim damages. It does not, however, expressly state that if the Lease is cancelled, Loudoun has a claim for a specific amount of damages or, as Loudoun asserts, for all future rents. Instead, the other provisions of the Lease specify the amount of Loudoun's claim. As noted above, those provisions are in accordance with Virginia common law and provide that if Loudoun accepts the surrender of the Premises, FLYi has no further obligation to pay rent. (Lease at ¶¶ 21C & E.)
Even if paragraph 20A did provide for Loudoun to retain the right to collect all rent due under the Lease in the event the Lease was terminated as a result of FLYi's bankruptcy, the Trust contends that such a clause is unenforceable under section 365(e)(1) of the Bankruptcy Code. That section provides:
Notwithstanding a provision in an executory contract or unexpired lease, or in applicable law, an executory contract or unexpired lease of the debtor may not be terminated or modified, and any right or obligation under such contract or lease may not be terminated or modified, at any time after the commencement *147 of the case solely because of a provision in such contract or lease that is conditioned on
. . .
(B) the commencement of a case under this title.
11 U.S.C. § 365(e)(1)(B).
The Court agrees with the Trustee. If the effect of paragraph 20A is, as Loudoun asserts, to create a right of Loudoun to full payment of future rent notwithstanding the effect of Virginia law simply because of the commencement of a bankruptcy case by FLYi, then it is not enforceable. See, e.g., In re Joshua Slocum Ltd., 922 F.2d 1081, 1090 (3d Cir.1990) (holding that section 365 "on its face permits the court to ignore so-called ipso facto and forfeiture clauses."); Lyons Sav. & Loan Assn. v. Westside Bancorporation, Inc., 828 F.2d 387, 393 n. 6 (7th Cir.1987) ("Section 365(e) of the Bankruptcy Code invalidates ipso facto or bankruptcy termination clauses which permit one contracting party to terminate or even modify an executory contract or unexpired lease in the event of the bankruptcy of the other contracting party."); In re Chateaugay Corp., No. 92 CIV. 7054(PKL), 1993 WL 159969, at *5 (S.D.N.Y. May 10, 1993) (holding that under § 365 "[n]o default may occur pursuant to an ipso facto clause and no reliance may be placed upon an alleged default where the only cause for default is the debtor's commencement of a bankruptcy case."); In re Convenience USA, Inc., Nos. 01-81478 to 01-81489, 2003 WL 23211573, at *6 (Bankr.M.D.N.C. Dec. 9, 2003) (concluding that "[u]nder § 365(e), a clause in an executory contract providing for the termination or modification of the contract which is conditioned on the debtor's insolvency, the commencement of a bankruptcy case or the appointment of a receiver or custodian, is inoperative in a bankruptcy case.").
Consequently, the Court concludes that even if paragraph 20A did create a claim for all future rent under the Lease in the event the Lease was terminated or rejected in FLYi's bankruptcy, that clause is unenforceable under section 365(e)(1) of the Bankruptcy Code because it provides for a modification of the Lease solely because of Flyi's bankruptcy filing.
IV. CONCLUSION
For the reasons stated above, the Court will sustain the objection of the Trust to the claim filed by Loudoun. A further hearing will be scheduled to consider the amount of that claim.
An appropriate Order is attached.
ORDER
AND NOW, this 17th day of OCTOBER, 2007, upon consideration of the Objection of the FLYi and Independence Air Distribution Trust to the claim of Loudoun Gateway III, L.L.C., and the response thereto and for the reasons stated in the accompanying Opinion, it is hereby
ORDERED that the Objection is sustained; and it is further
ORDERED that a status hearing will be held on November 5, 2007, at 11:30 a.m. to consider the scheduling of a further evidentiary hearing on the amount of the Loudoun Gateway III, L.L.C., claim.
NOTES
[1] This Opinion constitutes the findings of fact and conclusions of law of the Court pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure which is made applicable to contested matters by Rule 9014.
[2] The Court's opinion addresses only the legal basis for the objection. The parties have agreed to a separate hearing on the amount of the claim after the legal issue is resolved:
[3] Thereafter, FLYi entered into a new one-year lease with Loudoun for a small portion of the Premises.
[4] Compare tenBraak v. Waffle Shops, Inc., 542 F.2d 919, 925 (4th Cir.1976) with Wilson v. Ruhl, 277 Md. 607, 356 A.2d 544, 546 (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584321/ | 728 N.W.2d 895 (2006)
272 Mich. App. 695
John L. CHASE, Plaintiff-Appellee,
v.
TERRA NOVA INDUSTRIES, M.D. Plumbing & Heating Co., Amerisure Insurance Co., W.E. O'Neil Construction Co. Inc., State Farm Fire & Casualty Insurance Co., Argonaut Midwest Insurance Co., Taubman Company, L.P., and Transcontinental Insurance, Defendants-Appellees, and
St. Paul Guardian Insurance Co. and Sordoni Skanska Construction Co., a/k/a Sardoni Skanska Construction Inc., Defendants-Appellants.
Docket No. 262230.
Court of Appeals of Michigan.
Submitted November 7, 2006, at Detroit.
Decided November 14, 2006, at 9:00 a.m.
Released for Publication February 28, 2007.
*897 Charfoos, Reiter, Peterson, Jones, Dorland & Hébert, P.C. (by Kenneth E. Jones), Farmington Hills, for State Farm Fire & Casualty Company.
Lacey & Jones (by Gerald M. Marcinkoski), Birmingham, for Amerisure Insurance Company.
Kluczynski, Girtz, Zamler & McCubbrey, P.C. (by David H. Williams), Southfield, for O'Neil Construction and Argonaut Midwest Insurance Company.
Garan Lucow Miller, P.C. (by Daniel S. Saylor), Detroit, for St. Paul Guardian Insurance Company and Sordoni Skanska Construction, Inc.
Hutson, Sawyer, Reilly, Rupp & Schroeder (by Michael J. Reilly), Troy, for M.D. Plumbing & Heating Company, Inc.
Plunkett & Cooney, P.C. (by Ronald A. Weglarz), Detroit, for Terra Nova Industries.
Before: WHITBECK, C.J., and SAWYER and JANSEN, JJ.
PER CURIAM.
Defendants-appellants Sordoni Skanska Construction Company and St. Paul Guardian Insurance Company appeal by leave granted the order of the Workers' Compensation Appellate Commission (WCAC), which affirmed a magistrate's decision that appellants were the parties responsible for the payment of benefits to plaintiff for a work-related foot injury. *898 We vacate the order of the WCAC and remand for further proceedings.
This case arises out of the construction of Great Lakes Crossing Mall in Auburn Hills, Michigan. Appellant Sordoni Skanska Construction Company (Sordoni) was retained to be the general contractor on the Great Lakes Crossing Mall project. Because of the magnitude of the construction project, Sordoni was able to obtain an "owner controlled insurance policy," or "wrap-up" policy, pursuant to MCL 418.621(3), which provides in part:
Under procedures and conditions specifically determined by the director, a separate insurance policy may be issued to cover employers performing work at a specified construction site if the director finds that the liability under this act of each employer to all his or her employees would at all times be fully secured and the cost of construction at the site, not including the cost of land acquisition, will exceed $65,000,000.00, and the contemplated completion period for the construction will be 5 years or less.
Appellant St. Paul Guardian Insurance Company (St.Paul) issued the wrap-up policy. The issue presented in this case is whether appellants are liable for plaintiff's benefits under that policy.
After the policy was issued, certain property at the mall site was sold to Bass Pro Outdoor World, L.P. Plaintiff's employer, defendant M.D. Plumbing & Heating Company, was a subcontractor for defendant W.E. O'Neil Construction Company, which was the general contractor retained by Bass Pro Outdoor to construct the Bass Pro Outdoor store on the mall site. On August 20, 1998, plaintiff injured his foot while working at the site.
Plaintiff filed an application for workers' compensation benefits. Appellants were not parties to the initial proceedings. Following a hearing, a magistrate granted plaintiff an open award of benefits. One issue presented during the initial proceedings was whether plaintiff's employer was insured by State Farm Fire & Casualty Insurance Company (State Farm). However, the magistrate concluded that it lacked jurisdiction to consider the issue of State Farm's liability. As a result, the magistrate found that plaintiff's employer was uninsured, and that liability for the benefits was to be placed on the general contractor at the Bass Pro Outdoor site, W.E. O'Neil Construction Company, and its insurer, Argonaut Midwest Insurance Company.
On appeal to the WCAC, plaintiff's employer and W.E. O'Neil Construction Company argued that there was evidence that State Farm insured plaintiff's employer. The WCAC found that the magistrate did indeed have jurisdiction to determine whether State Farm was liable in this matter, and remanded the case to the magistrate to address the issue. The WCAC retained jurisdiction.
On remand, the magistrate concluded that State Farm was estopped from denying coverage. The magistrate also acknowledged that, after the WCAC's remand order, the parties had filed additional applications, which named St. Paul as a carrier under the wrap-up policy. However, the magistrate was unable to resolve the issues pertaining to liability under the wrap-up policy before the expiration of his term, and declared a mistrial on those issues. As a result, the matter was reassigned to another magistrate, who conducted several hearings. At the conclusion of those hearings, the magistrate decided that St. Paul was liable under the terms of the wrap-up policy. According to the magistrate, appellants could have exempted the Bass Pro Outdoor property from *899 the construction project, but failed to do so.
Appellants appealed to the WCAC. Appellants argued that they were not timely made parties to the litigation, and therefore that plaintiff's claims against them were barred by statute and the doctrine of laches. Appellants further argued that the magistrate's decision was erroneous because plaintiff's employer had not been working under the auspices of Sordoni, but instead on the entirely separate Bass Pro Outdoor project. Appellants contended that there was no basis on which to impose liability on appellants for an injury that occurred to the employee of a subcontractor who had no contractual relationship with appellants.
The WCAC found appellants' claims unconvincing. In regard to appellants' late involvement in the proceedings, the WCAC found that the situation was created by appellants' own failure to carve out the Bass Pro Outdoor project after the property for that store was sold. The WCAC also found that appellants were not prejudiced by their absence from the initial proceedings. With respect to appellants' argument that plaintiff's employer was not covered under the wrap-up policy, the WCAC concluded that because the area where plaintiff was injured was part of the original site plan, and because there had been no effort to carve out that area from the project, the parcel in question remained part of the area insured by St. Paul under the wrap-up policy. This Court granted appellants' application for leave to appeal.
The WCAC must review the magistrate's decision under the "substantial evidence" standard, while this Court reviews the WCAC's decision under the "any evidence" standard. Mudel v. Great Atlantic & Pacific Tea Co., 462 Mich. 691, 709, 614 N.W.2d 607 (2000). Review by this Court begins with the WCAC's decision, not that of the magistrate. Id. We review de novo questions of law in workers' compensation cases. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 401, 605 N.W.2d 300 (2000). A decision of the WCAC is subject to reversal if it is based on erroneous legal reasoning or the wrong legal framework. Id. at 401-402, 605 N.W.2d 300.
Appellants first claim that the magistrate and WCAC should never have addressed the issue of coverage under the wrap-up policy. According to appellants, because they were not involved in these proceedings at the time the initial award of benefits was granted, consideration of the issue was barred by MCL 418.852(1), as well as the doctrine of laches.[1]
MCL 418.852(1) states: "The liability of a carrier or fund regarding a claim under this act shall be determined by the hearing referee or worker's compensation magistrate, as applicable, at the time of the award of benefits." "The primary goal of statutory interpretation is to ascertain and give effect to the Legislature's intent." Ross v. Dep't of Treasury, 255 Mich.App. 51, 55, 662 N.W.2d 36 (2003). "The Legislature is presumed to intend the meaning it plainly expressed." Id.
Here, the plain language of the provision states that liability "shall" be determined "at the time of the award of benefits." In this case, no such determination was made with respect to appellants at the time of the initial award. Because *900 "shall" connotes a mandatory requirement,[2] the plain language of MCL 418.852(1), at least arguably, supports appellants' position. However, we also find that reasonable minds could differ with respect to whether the statute means that the liability of a carrier must be determined at the time of the award where, as here, the carrier was not a party to the proceedings at the time of the award, and the carrier's potential liability was allegedly not discovered by the parties seeking the carrier's involvement until after benefits were awarded. As a result, construction of MCL 418.852(1) is warranted. Ross, supra. Because we generally defer to the WCAC's interpretation and application of the Worker's Disability Compensation Act,[3] and because the WCAC in this case never addressed appellants' argument regarding MCL 418.852(1), we find it prudent to remand this matter to the WCAC for an initial construction and analysis.
As for appellants' argument regarding the doctrine of laches, we find no error. Application of the doctrine requires the passage of time combined with a change in conditions that would make it inequitable to enforce a claim against the defendant. Gallagher v. Keefe, 232 Mich. App. 363, 369, 591 N.W.2d 297 (1998). "The defendant must prove a lack of due diligence on the part of the plaintiff resulting in some prejudice to defendant." Id.
In the instant case, there is no evidence that plaintiff lacked due diligence in asserting a claim against appellants. Further, we are not convinced that appellants have established the requisite prejudice. Appellants contend that they were prejudiced because they were unable to defend against the merits of plaintiff's claim for benefits. However, in this appeal, appellants have offered no evidence or argument to even suggest that plaintiff was not in fact entitled to benefits. The burden was on appellants to establish prejudice, and we find their bald assertion to be insufficient in this regard.
Next, appellants contend that neither the controlling statute, MCL 418.621(3), nor the wrap-up policy itself, provides coverage for plaintiff's injury. In addressing appellants' contention in this regard below, the WCAC ruled that because plaintiff was injured in an area that was part of the original site plan, and because no subsequent effort had been made to carve out that area from the project, the area was insured by the wrap-up policy. In our opinion, the WCAC's focus was misdirected.
Pursuant to MCL 418.621(3), appellant St. Paul was only allowed to issue coverage as authorized by the director. In this case, the authorization order, which was signed by a deputy director, authorized appellant St. Paul to issue a policy "to cover employers performing work at the construction site specified below under the conditions and procedures specified herein, on or after June 24, 1997 in connection with (i) those certain construction jobs set forth in Exhibit B attached hereto." Under the plain language of the authorization order, St. Paul was required to cover employers working at the site "in connection with . . . certain construction jobs set forth in Exhibit B." Had the deputy director intended to require St. Paul to cover work on all jobs, performed by all employers at the site, he could easily have done so. However, the authorization order clearly states that only certain jobs at the site were to be covered by St. Paul. Consequently, focusing only on the site of the *901 injury, as the WCAC did, was improper. Simply put, we do not read MCL 418.621(3) or the deputy director's authorization order as requiring St. Paul to cover all the work of all employees on all jobs performed at the site, but only "certain construction jobs" at the site. The WCAC erred in concluding otherwise.
Logically, then, the question becomes whether plaintiff's job was one of those "certain construction jobs set forth in Exhibit B." However, the problem with answering that question is that Exhibit B to the authorization order was simply an overhead map of the entire mall site. In other words, there were no "certain construction jobs set forth in Exhibit B." Taken literally, because only those jobs set forth in Exhibit B were to be covered, and because there were no jobs set forth in Exhibit B, no jobs at the site were covered by St. Paul's policy. However, the deputy director clearly intended to authorize some coverage, and such a literal interpretation would be unreasonable. On the other hand, the shortcomings of Exhibit B to the authorization order do not necessarily justify the WCAC's interpretation that all jobs at the entire site were to be covered under the policy. Because the legal effect of any incongruity between the authorization order and Exhibit B was not specifically raised before or addressed by the WCAC, this Court lacks the authority to address the issue. Calovecchi v. Michigan, 461 Mich. 616, 626, 611 N.W.2d 300 (2000). As a result, on remand, the WCAC shall also consider and resolve the apparent incongruity between the authorization order and Exhibit B thereto.
Moreover, regardless of any ambiguity created by Exhibit B, the WCAC's analysis was incomplete. Paragraph 6(A) of the deputy director's authorization order stated that St. Paul's policy was to cover all employers working at the designated site, "except where an agreement specified in paragraph 5 above has not been executed." In turn, paragraph 5 of the authorization order stated:
Every general insurer whose insured employer is to become engaged upon work on the site designated above or the employer to the extent that the employer is self-insuring the obligations under the Act shall enter into an agreement with the specific risk insurer in the form attached hereto as Exhibit A, incorporated herein by reference, and made a part hereof, as a condition precedent to such insured employer or self-insuring employer engaging its employees in work on such site. This requirement shall not extend to vendors, truckers, suppliers, material dealers, and others whose function is solely to supply or transport debris material, equipment, or parts to or from the construction site.
Therefore, appellant St. Paul was required to cover all employers working at the site, except those employers that had not executed an Exhibit A agreement. In this case, it appears that neither plaintiff's employer nor the contractor who hired plaintiff's employer executed an Exhibit A agreement with St. Paul. Without an explanation from the WCAC regarding why such an agreement was not required in this case, the WCAC's decision was incomplete. On remand, the WCAC shall determine whether the requisite Exhibit A agreements were executed, and, if that query is answered in the negative, the WCAC shall determine whether that failure precludes appellants' liability.
The WCAC order is vacated, and this case is remanded to the WCAC for further proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] Laches is an equitable doctrine. While the WCAC has no equitable jurisdiction, it is well established that the WCAC may apply equitable principles in appropriate instances to further the purposes of the Workers' Disability Compensation Act. Lulgjuraj v. Chrysler Corp., 185 Mich.App. 539, 544-545, 463 N.W.2d 152 (1990).
[2] See Kowalski v. Fiutowski, 247 Mich.App. 156, 160-161, 635 N.W.2d 502 (2001).
[3] Cain v. Waste Mgt., Inc., 259 Mich.App. 350, 366, 674 N.W.2d 383 (2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584328/ | 24 So.3d 1266 (2009)
STATE of Florida, Appellant,
v.
Jay Alan ODOM, Appellee.
State of Florida, Appellant,
v.
Raymond E. Sansom, Appellee.
Nos. 1D09-5158, 1D09-5160.
District Court of Appeal of Florida, First District.
December 31, 2009.
Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, for Appellant.
James P. Judkins and Larry D. Simpson of Judkins, Simpson & High, Tallahassee, for Appellee Odom.
Stephen S. Dobson, III, and Richard H. Smith of Dobson, Davis & Smith, Tallahassee, for Appellee Sansom.
PER CURIAM.
Citing in its notice of appeal to section 924.07, Florida Statutes (2009), as its jurisdictional authority for doing so, the state appeals the lower tribunal's "Order on Motions to Dismiss" in two related criminal proceedings. Appellees move to dismiss the appeals for lack of jurisdiction, asserting that the order is not final and not *1267 within the class of nonfinal orders appealable by the state under the statute and corresponding rule of appellate procedure. We sua sponte consolidate the cases for disposition by this opinion, and dismiss the appeals for lack of jurisdiction.
Appellees were the subject of a grand jury investigation into certain alleged instances of misconduct. In brief, the grand jury found that at the request of and for the benefit of his friend Odom, Sansom arranged with codefendant Richburg, President of Okaloosa-Walton Community College (now known as Northwest Florida State College), to secure a legislative appropriation to fund the construction of a hanger facility at the Destin airport. The plan was to have the college construct the building, include some classrooms in the space so it could be called an educational facility for purposes of securing funding, then lease the bulk of the space to Odom for his private use in connection with his aviation business. Because of his positions as Chair of the House Appropriations Committee and Speaker-Designate, Sansom was able to bypass the normal screening procedures and secure the appropriation.
Based on these findings, the grand jury returned indictments against Odom and Sansom for official misconduct in violation of section 839.25(1)(b). In material part, the indictments alleged that appellees participated in the falsification of "an official record or official document, the 2007-2008 General Appropriations Act and/or the Joint Use Project Note, with corrupt intent to obtain a benefit for any person, or to cause harm to another...." The grand jury also indicted Sansom for perjury, alleging that he made false sworn statements when "he testified that the building that was the subject of the Grand Jury investigation was not intended for private use and/or the increased funding in 2008 to Northwest Florida State College was at the request of the college...." Appellees moved to dismiss the indictments and following a hearing, the trial court entered the order for which the state now seeks review. As to the official misconduct charge, the court found that with regard to the alleged falsification of the Appropriations Act, "acts of legislation cannot, as a matter of law, be falsified ... by the misrepresentations of a single member [of the legislature] as to the act's purpose." The circuit court thus concluded that the motions to dismiss as to the charges of official misconduct for falsifying the Appropriations Act would be granted. However, as to the alternative allegation that the Joint Use Project Note had also been falsified, the circuit court found as follows:
The record before me is simply inadequate for me to make a determination as to whether a falsification of this document may constitute a violation of the statute. The facts relative to this document are not set forth in the motions to any degree, nor is there any argument related to it. I cannot tell from the record what exactly it is and how it relates to the Appropriations Act.
Additionally, the court ruled that appellee Sansom's grand jury testimony regarding the intention of the appropriation was an expression of opinion and could not form the basis of a perjury prosecution, although the alleged statement that the increased funding was requested by the college was a statement of fact, and thus could support the perjury charge.
The decretal portion of the circuit court's order thus provided:
For the reasons set forth above, it is ORERED (sic) AND ADJUDGED that the motions as to the charges of Official Misconduct for falsifying the Appropriations Act, and the perjury charge *1268 against defendant Richburg[1] are hereby granted. In all other respects, the motions are denied.
In support of their motions to dismiss the state's appeals, appellees argue that although section 924.07(1)(a) and Florida Rule of Appellate Procedure 9.140(c)(1)(A) contain identical language authorizing the state to appeal from orders "dismissing an indictment or information or any count thereof," the indictments here have not been dismissed nor has any count of those indictments been dismissed. The only reported instances where the state has been permitted to appeal without an outright dismissal of charges are distinguishable on their facts because they involved orders in which the trial court reduced the original charge to a lesser-included offense as a result of pretrial motions to dismiss. In that situation, the appellate court viewed the trial court's action as being the "functional equivalent of a dismissal of an information or any count thereof." See State v. Smulowitz, 482 So.2d 1388, 1389 (Fla. 3d DCA 1986); see also State v. Hankerson, 482 So.2d 1386, 1387 (Fla. 3d DCA 1986) (finding that "[analytically, an order reducing a charge set forth in the information or indictment to some lesser-included offense is, despite its label, an order dismissing the charge in the information."). Moreover, the same court subsequently relied on this reasoning in another case to conclude that the state could likewise appeal an order that reduced charges post-trial, but the Supreme Court reversed in Exposito v. State, 891 So.2d 525 (Fla.2004), holding that section 924.07(1) does not grant the state the right to appeal from an order that "effectively" dismisses an information that is "in legal effect a judgment of acquittal." Id. at 531. The court noted that equating a reduction of charges to a dismissal or judgment of acquittal conflicts with the well-established rule that courts are not at liberty to add words to statutes and must give the statutory language its plain and ordinary meaning.
Although Exposito did not expressly overrule Hankerson or Smulowitz, it casts doubt on their continued viability. Be that as it may, we conclude that Hankerson and Smulowitz are nonetheless not controlling because the rationale employed in those cases depended on the conclusion that the trial courts had "dismissed" charges made in the respective informations, albeit merely by reduction to lesser-included offenses. In contrast, the trial court's order here did not operate to dismiss, by reduction or otherwise, the official misconduct and perjury charges lodged against appellees in the grand jury's indictments. The state's right to appeal is a limited one that is strictly governed by statute. See State v. Gaines, 770 So.2d 1221 (Fla.2000). Statutes affording the state the right to appeal should be narrowly construed, and as the court recognized in Exposito, the statutory language must be given its plain and ordinary meaning. Exposito at 528. Plainly, the circuit court's order here does not dismiss an indictment or any count thereof, and because there is otherwise no statutory authority for the state to appeal in this circumstance, we are without jurisdiction.
APPEALS DISMISSED.
BARFIELD, WOLF, and LEWIS, JJ., concur.
NOTES
[1] The state's appeal of the order as it relates to the dismissal of the perjury charge against Richburg remains pending and is unaffected by this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584334/ | 24 So.3d 993 (2009)
James LASTRAPES, et ux
v.
PROGRESSIVE SECURITY INSURANCE COMPANY.
No. 09-367.
Court of Appeal of Louisiana, Third Circuit.
December 9, 2009.
*995 Ian A. MacDonald, Attorney at Law, Jones Walker, Lafayette, LA, for Defendant-Appellant, Progressive Security Insurance Company.
Patrick C. Morrow, Attorney at Law Morrow, Morrow, Ryan & Bassett, Opelousas, LA, for Plaintiffs-Appellees, James Lastrapes and Geraldine Lastrapes.
Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
PAINTER, Judge.
Plaintiffs and Defendants appeal the jury's award of damages as well as the trial court's rulings on certain post-trial motions. For the following reasons, we affirm in part, reverse in part, and render.
FACTUAL AND PROCEDURAL BACKGROUND
James Lastrapes was involved in an automobile accident on November 13, 2004. His 1999 Chevy van was struck once in the rear door by a vehicle driven by Leslie Vizinat while she was attempting to make a left hand turn. The van sustained $1,599.81 in property damages. Mr. Lastrapes alleges that he injured his neck, shoulders, and back. He and his wife filed suit against Ms. Vizinat and his own uninsured motorist carrier, Progressive Security Insurance Company. Plaintiffs' claims against Ms. Vizinat were settled prior to trial.
Mr. Lastrapes did not seek treatment in connection with injuries he allegedly received in the accident in question until two days later on November 15, 2004, when he saw his family physician, Dr. Kirk Elliot, and complained of neck pain. Dr. Elliot diagnosed cervical "acute myofascial strain" and recommended physical therapy three times per week. Mr. Lastrapes did attend physical therapy three times per week from December 13, 2004, until late January. He underwent an MRI of the cervical spine on February 18, 2005. This test revealed mild multi-level spondylosis. He was then referred to Dr. Steve Rees, a pain management specialist. On January 14, 2006, Mr. Lastrapes was involved in another automobile accident, wherein he rear-ended another vehicle. Mr. Lastrapes was then referred to an anesthesiologist/pain management specialist who provided several cervical epidural steroid injections to Mr. Lastrapes over the period from December 7, 2006 through October 23, 2007. He also began treatment with Dr. George Williams, an orthopedic surgeon, on July 10, 2007. Progressive contends that Mr. Lastrapes did not inform Dr. Williams of the occurrence of the January 14, 2006 accident. Dr. Williams ultimately recommended a three level cervical decompression and fusion and discography of the lower lumbar spine. Mr. Lastrapes contends that he was retired but very active prior to the subject accident and that, even though he had some health problems and occasional mild back pain before this accident, he never had neck pain.
*996 Jill Doiron initially handled Mr. Lastrapes' claim against Progressive. During the two years that she handled the claim, Progressive made payments to Mr. Lastrapes totaling $67,890.00. The claim was transferred to Cheryl Tardo for handling after Mr. Lastrapes filed suit. Ms. Tardo admitted that she received the recommendation for surgery by Dr. Williams but did not take his deposition or otherwise follow up with Dr. Williams to determine whether or not he related the surgery to the subject accident. Instead, Ms. Tardo came to the conclusion that reasonable minds could differ on the relationship of Mr. Lastrapes' neck condition and recommended surgery to the subject accident. She based this conclusion on the fact that Dr. Williams' records and report made no mention of the January 14, 2006 accident, that Mr. Lastrapes' physical examination was normal, that Mr. Lastrapes had no complaints of neck or back pain, and that Dr. Williams' report did not specifically relate the need for surgery to the subject accident.
This matter proceeded to trial by jury. The jury returned a verdict denying Mr. Lastrapes' claim for future medical expenses, future pain and suffering, past mental anguish, future mental anguish, loss of enjoyment of life, loss of consortium, and penalties and attorney's fees. The jury did award $88,000.00 in past medical expenses and $125,000.00 in past pain and suffering to Mr. Lastrapes. Mr. Lastrapes then moved for a judgment notwithstanding the verdict (JNOV) and, alternatively, for additur and/or new trial. The trial court denied Mr. Lastrapes' motion for additur but granted a JNOV on the claim for penalties and attorney's fees. The trial court found that Progressive was arbitrary and capricious in its handling of the claim and awarded $72,575.00 in penalties and $24,192.00 in attorney's fees. Progressive appealed, asserting that the trial court abused its discretion in granting the JNOV because the jury correctly concluded that reasonable minds could differ on whether Lastrapes was entitled to an additional unconditional tender under the UM provisions of Progressive's policy, that the trial court's conclusion that Progressive was arbitrary and capricious was manifestly erroneous, and that the award of $7,500.00 in expert fees to Dr. Williams was an abuse of the trial court's discretion. Mr. Lastrapes answered the appeal and again asked for increases in the amount of damages he was awarded and to be awarded damages for those amounts that the jury denied. We affirm the trial court's award of penalties and attorney's fees and the jury's awards of $88,000.00 in past medical expenses and $125,000.00 in past pain and suffering. We reverse the trial court's denial of Mr. Lastrapes' motion for JNOV with respect to the award of future medical expenses, future pain and suffering, loss of enjoyment of life, and loss of consortium.
DISCUSSION
We first address those assignments of error with respect to motions for JNOV, new trial, and/or additur. Plaintiffs argue that they are entitled to awards for future medical care and loss of consortium as well an increase in general damages. Progressive, on the other hand, argues that the trial court erred in granting the JNOV and finding that it was arbitrary and capricious.
"The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion." Martin v. Heritage Manor South Nursing Home, 00-1023, p. 6 (La.4/3/01), 784 So.2d 627, 632.
This court has recently noted that:
The mechanism by which a judgment notwithstanding the verdict may be *997 granted is provided by La.Code Civ.P. art. 1811. In describing the circumstances under which a JNOV is appropriate, the Louisiana Supreme Court has explained that the procedure is to be used only when the facts and circumstances favor one party so overwhelmingly that reasonable men could not arrive at a contrary verdict. Anderson v. New Orleans Public Service, 583 So.2d 829 [(La.1991).] It is inappropriately used in cases in which the evidence merely preponderates in favor of the moving party. Id. Also, we are mindful that the motion must not be granted if there is evidence in opposition that is of such quality and weight that it would permit "reasonable and fairminded men in the exercise of impartial [judgment]" to reach different conclusions. Id. at 832. Finally, the court cautioned that, in weighing whether a JNOV is appropriate, the court should not weigh witness credibility and should resolve all reasonable inferences/factual questions in favor of the non-moving party. Id. See also Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00); 774 So.2d 84.
On review, an appellate court employs a two-part inquiry when considering whether a JNOV is appropriate. Davis, 00-445; 777[4] So.2d 84. First, applying the same criteria as the trial court, the appellate court must determine if the trial court erred in granting the motion. Id. Next, if the appellate court determines that the standard was correctly applied to the jury verdict at the trial level, the appellate court must then review the JNOV granted using the manifest error standard of review. Id.
Smoot v. Hernandez, 08-1121, pp. 3-4 (La. App. 3 Cir. 3/4/09), 6 So.3d 352, 356-7, (footnote omitted), citing Bowie v. Young, 01-715, p. 12 (La.App. 3 Cir. 3/20/02), 813 So.2d 562, 570-71, writ denied, 02-1079 (La.6/21/02), 819 So.2d 335.
Additionally, this court has already noted that "[t]he insurer is required to take substantive and affirmative steps to accumulate the facts necessary to evaluate a claim." Guillory v. Lee, 08-661, p. 18 (La.App. 3 Cir. 12/10/08), 998 So.2d 891, 902, citing McClendon v. Econ. Fire & Cas. Ins. Co., 98-1537 (La.App. 3 Cir. 4/7/99), 732 So.2d 727.
Progressive contends that the trial court committed legal error in granting the JNOV in favor of Mr. Lastrapes and awarding him $72,575.00 in penalties and $24,192.00 in attorney's fees because reasonable minds could differ on whether Mr. Lastrapes was entitled to an additional unconditional tender under the UM provisions of Progressive's policy. This argument is intertwined with Progressive's argument that the trial court committed manifest error in finding that Progressive was arbitrary and capricious in its handling of Mr. Lastrapes' claim in that it failed to depose Dr. Williams within thirty days of receiving his July 10, 2007 report. We agree with the trial court that Progressive was arbitrary and capricious in not taking the deposition in a timely manner and, therefore, affirm the trial court's grant of a JNOV in favor Mr. Lastrapes as well as its award of penalties and attorney's fees. Some sort of follow up with Dr. Williams, be it by deposition or otherwise, was necessary following receipt of his recommendation for surgery. Failing to do so was obviously contrary to the requirement that Progressive "take substantive and affirmative steps to accumulate the facts necessary to evaluate a claim." Id. Had Progressive followed up on Dr. Williams' recommendation and informed him of the subsequent accident involving Mr. Lastrapes, they might well have found that the recommendation was unrelated to the subject accident. However, Progressive *998 may not act upon "random choice" or "personal whim" as it did in this case. Reed v. State Farm Auto. Ins. Co., 857 So.2d 1012, 1020 (La.2003).
Mr. Lastrapes had the burden of proving his claims by a preponderance of the evidence. He had to prove that the subject automobile accident caused injuries and what amount of damages would adequately compensate him for those damages. Coutee v. Beurlot, 06-2943 (La.9/5/07), 964 So.2d 304. With regard to surgery, he had to prove with medical testimony that the subject automobile accident more probably than not caused a condition which requires surgery and the cost of the surgery; he also had to prove that more probably than not he will have the surgery in the future. Basco v. Liberty Mut. Ins. Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660.
In Basco, 909 So.2d at 666, we noted that:
It is well settled that, in reviewing an award of general damages, the role of an appellate court is to review the exercise of discretion by the trier of fact. Coco v. Winston Indus., Inc., 341 So.2d 332 (La. 1976). Importantly, on review, an appellate court should rarely disturb an award of general damages because "the discretion vested in the trier of fact is `great,' and even vast." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the trier of fact has abused its much discretion that the appellate court may disturb the award, but then only to the extent of lowering it to the highest point or raising it to the lowest point which was reasonably within the discretion of the trier of fact. Id. However, this principle of appellate review applies only when a litigant "questions the adequacy of a monetary award in a case which is otherwise uncomplicated by factual errors relating to the cause or duration of the plaintiff's disability." Mart v. Hill, 505 So.2d 1120, 1128 (La.1987). More specifically, the principles stated in Coco and reiterated in Youn "are not applicable when a res nova review of quantum must be made to compensate a plaintiff for damages which the trial court did not believe were causally related to the accident." Id. In the instant case, Mr. Basco is not questioning the adequacy of a monetary award for future loss of enjoyment of life; instead, he is questioning the jury's failure to make any award for that item of damages. Thus, should we find error, we are not bound by the highest/lowest constraints in recognition of the jury's discretion.
We also recognize that, as pointed out in Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70, an award in one category of damages does not automatically require an award in others. In that case, a jury awarded the plaintiffs medical expenses they incurred but failed to award general damages. The supreme court refused to hold that, as a matter of law, such a verdict must always be erroneous. Rather, the supreme court stated that "it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous." Id. at 76. Instead, the reviewing court "must ask whether the jury's determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion." Id. If the reviewing court reaches that conclusion, it must then "conduct a de novo review of the record." Id.
It was the duty of the jury to determine the credibility of the witnesses, *999 including Dr. Williams, and to accept or reject their opinions in whole or in part. Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201 (La.10/19/99), 748 So.2d 417. Considering the record as a whole, we are of the opinion that the jury concluded that Mr. Lastrapes did suffer major injuries as a result of the November 13, 2005 automobile accident but did not accept his claims that his neck problems were caused by the accident and that he would undergo the cervical decompression and fusion in the future. However, our review of the record leads us to the conclusion that this finding by the jury is not supported by the record and is an abuse of the jury's vast discretion. With regard to general damages in the amount of $125,000.00, we cannot say that this award is an abuse of the jury's vast discretion. We therefore amend the jury's award of damages as follows and reverse the trial court's refusal to award additional sums for loss of consortium and future damages.
With respect to future medical expenses, we find that an award of $100,000.00 is reasonable under the circumstances. Dr. Williams testified that the estimated cost of surgery would be between $94,300.00 and $114,300.00. It is clear that Mr. Lastrapes will continue to incur medical expenses, including prescription medications and follow-up care, whether or not he decides to undergo the recommended surgery. We also find that an award of $50,000.00 for future pain and suffering is reasonable.
The law is clear that "damages for loss of enjoyment of life are recoverable upon proof that the party's lifestyle has been detrimentally altered or that the injured party has been forced to give up activities because of his injury." Basco, 909 at 667, citing Simms v. Progressive Ins. Co., 38,804 (La.App. 2 Cir. 9/29/04), 883 So.2d 473, writ denied, 04-2871 (La.1/8/05), 893 So.2d 78. We find that the jury abused its discretion in failing to award any amount for loss of enjoyment of life. Mr. Lastrapes testified that he has suffered a loss of his ability to travel, to maintain his yard, and to do many of the other activities he enjoyed most. His pain is chronic and has severely limited his activities. Accordingly, we reverse the rejection of this element of damages and award $20,000.00 for Mr. Lastrapes' loss of enjoyment of life.
We further find that Mrs. Lastrapes proved that a loss of consortium related to her husband's injuries. Mrs. Lastrapes testified extensively on the adverse effects this accident has had on her relationship with her husband. She testified that they were no longer intimate and that most of their activities had been curtailed by his chronic pain. Therefore, we award $10,000.00 for Mrs. Lastrapes' loss of consortium.
DECREE
For all of the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part. We hereby render judgment in favor of Mr. Lastrapes in the amount of $100,000.00 in future medical expenses, $50,000.00 in future pain and suffering, and $20,000.00 for loss of enjoyment of life. Furthermore, we hereby render judgment in favor of Mrs. Lastrapes in the amount of $10,000.00 for her loss of consortium. Additionally, we decline to award any further attorney's fees to Mr. Lastrapes regarding work done on this appeal. All costs of this appeal are assessed to Defendant-Appellant, Progressive Security Insurance Company.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584341/ | 641 So.2d 436 (1994)
B & S ASSOCIATES, INC., a Florida corporation, Appellant,
v.
INDEMNITY CASUALTY AND PROPERTY, LTD., a foreign corporation, Appellee.
No. 93-1031.
District Court of Appeal of Florida, Fourth District.
August 10, 1994.
Raymond V. Miller of Kaufman Miller Dickstein & Grunspan, P.A., Miami, for appellant.
Warren R. Trazenfeld and Rima Y. Mullins of Kirkpatrick & Lockhart, Miami, for appellee.
POLEN, Judge.
B & S Associates appeals from an order that grants summary judgment in favor of appellee, Indemnity Casualty and Property, Ltd. (Indemnity), insurer, based upon a navigational policy limitation provision. We reverse and remand for further proceedings.
Appellant purchased an "all risks" marine insurance policy from Indemnity covering the time period from October 13, 1990, to October 13, 1991. During the policy period, appellant operated a charter boat service. The policy insured a sailboat, the Buckeye, which appellant used in its charter business. By its terms the policy limited insurance coverage to waters within fifty (50) miles of the United States and the Bahamas. During the time that the policy was in effect, appellant entered a written "bare boat" charter of the Buckeye to Bruce Davis. While under charter to Davis, the Buckeye was found in Jamaica with Davis's dead body on board. Appellant subsequently made a claim pursuant *437 to the policy. Indemnity denied the claim on the ground that damage to or loss of the Buckeye was not covered by the policy, since it was recovered outside the navigational limits. Appellant filed a complaint, which was served on Indemnity on June 23, 1992. Indemnity answered the complaint and raised affirmative defenses. The case was set for jury trial in April 1993, but never proceeded to trial. On February 22, 1993, Indemnity filed a motion for summary judgment, which the trial court granted on March 25, 1993.
We note that Indemnity relied below, and relies in this appeal, on cases that do not involve all-risk insurance policies. As a result, we do not find any of Indemnity's cited authority controlling or persuasive. We hold that the instant facts compel a reversal of the summary judgment in favor of Indemnity under the reasoning in Morrison Grain Co. v. Utica Mutual Insurance Co., 632 F.2d 424 (5th Cir.1980). The Morrison Court wrote:
[I]t would appear that all risk insurance arose for the very purpose of protecting the insured in those cases where difficulties of logical explanation or some mystery surround the loss or damage to property. It would seem to be inconsistent with the broad protective purposes of "all-risks" insurance to impose on the insured, as Insurer would have us do, the burden of proving precise cause of loss or damage.
Id. at 430.
In the instant case, the specific cause of damage to the vessel and location where the damage occurred are unknown. Neither Indemnity nor appellant were able to present evidence establishing the location of the vessel at the time the damage occurred. Indemnity established only that the shores of Jamaica is where the vessel was recovered. Another piece of evidence we find interesting is the report prepared by the coroner in Negril, Jamaica, titled "Report of Death of An American Citizen Abroad." The coroner concluded that Bruce Davis was dead 5 or 6 days before his body was found on the vessel. The coroner determined the cause of death to be hypoglycemic shock resulting from uncontrolled diabetes. The foregoing gives rise to the reasonable speculation that that damage to the Buckeye could have occurred within the fifty (50) mile navigational limits and that Mr. Davis's condition did not permit him to prevent the vessel from straying outside the navigational limits, or, that after Mr. Davis expired, the vessel drifted beyond the fifty miles. At the very least, there were material issues of fact which would preclude granting appellee's motion for summary judgment.
The record suggests that the trial court improperly placed the burden on appellant to prove that the damage caused to its vessel was not subject to any policy exclusion. See Hudson v. Prudential Property & Casualty Ins. Co., 450 So.2d 565 (Fla. 2d DCA 1984). That case holds, "Once the insured establishes a loss apparently within the terms of an all-risk policy, the burden shifts to the insurer to prove that the loss arose from a cause which is excepted." Id. at 568. Here, Indemnity did not meet its burden to prove that coverage was excluded under the policy.[1] We reverse the order entering summary judgment against appellant and remand this cause for further proceedings consistent with this opinion.
FARMER and PARIENTE, JJ., concur.
NOTES
[1] Indemnity improperly and disingenuously raises for the first time on appeal, the issue of seaworthiness of the vessel, i.e., that appellant failed to prove below that the vessel was seaworthy before the damage occurred. See Proprietors Insurance Co. v. Siegel, 410 So.2d 993, 996 (Fla. 3d DCA 1982). We hold that this issue was waived. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584352/ | 641 So.2d 131 (1994)
Richard J. DAVIS, not individually but in his capacity as Bay County Property Appraiser, Appellant,
v.
MACEDONIA HOUSING AUTHORITY, Appellee.
No. 93-488.
District Court of Appeal of Florida, First District.
June 29, 1994.
Rehearing Denied August 18, 1994.
*132 Cecile M. Scoon, Panama City, for appellant.
Richard E. Johnson, of Spriggs & Johnson, Tallahassee, for appellee.
BARFIELD, Judge.
The Bay County property appraiser appeals summary judgments in favor of Macedonia Housing Authority (Macedonia), a nonprofit corporation operating a low-income housing facility which challenged the denial of a "charitable purpose" exemption from 1991 ad valorem property taxes and sought a refund of the taxes it had paid in 1990 and 1991. We reverse.
Because Macedonia did not timely challenge the property appraiser's notice that it would not receive an exemption from 1990 taxes, the circuit court did not have jurisdiction over that issue, Markham v. Neptune Hollywood Beach Club, 527 So.2d 814 (Fla. 1988), and the summary judgment ordering the property appraiser to refund Macedonia's 1990 taxes must therefore be reversed. Because the record indicates that there exist disputed issues of material fact relating to the reasonableness of the charges and expenditures associated with Macedonia's facility, the summary judgment entered on January 4, 1993, must also be reversed. See Mikos v. Plymouth Harbor, Inc., 316 So.2d 627 (Fla. 2d DCA 1974), cert. denied, Plymouth Harbor, Inc. v. Mikos, 337 So.2d 975 (Fla. 1976).
While reversal on these grounds moots the other issues raised in this appeal, we comment briefly on them for the trial court's guidance in further proceedings. In addition to finding that Macedonia "is entitled to an exemption from ad valorem taxes in Bay County" and ordering the property appraiser to refund all its 1990 and 1991 taxes, the trial court also ordered the property appraiser to cancel any pending 1992 tax obligation and to "grant Plaintiff's tax exemption in future years absent a material change in applicable law or a material change in Plaintiff's status or operation which would render Plaintiff ineligible for such exemption." Under section 196.011, Florida Statutes, a taxpayer must timely apply for the exemption each year, unless the property appraiser waives or modifies the annual application requirement, and failure to do so constitutes a waiver of the exemption privilege for that year. This record does not indicate that Macedonia applied for exemption from taxes in 1990 or in the years subsequent to 1991, and its failure to do so would therefore waive its right to exemptions for those years. The burden of proving entitlement to an exemption is on the taxpayer, Benevolent & Protective Order of Elks v. Dade County, 166 So.2d 605 (Fla. 3d DCA 1964), who must supply "such fiscal and other records showing in reasonable detail the financial condition, record of operation, and exempt and nonexempt uses of the property for the immediately preceding fiscal year as are requested by the property appraiser or the value adjustment board," § 196.195(1), Fla. Stat. (1991). By ordering the property appraiser to grant exemptions for 1990, 1992 and ensuing years, without the property appraiser's consideration of the required information presented in a timely fashion, the trial court improperly shifted the burden of proof established by the legislature.
Under sections 194.011-194.036, 194.171, and 196.193-196.194, Florida Statutes (1991), a taxpayer may request an informal conference with the property appraiser and/or may timely petition the value adjustment board to reverse the denial of exemption, and may thereafter bring an action in circuit court to contest the board's action, so long as the taxpayer fulfills the jurisdictional requirements of section 194.171 by filing the action within 60 days after the board's decision is rendered. Alternatively, the taxpayer may directly seek a judicial remedy under *133 section 194.171, so long as the action is filed within 60 days after the tax roll is certified for collection. This record indicates that Macedonia complied with the latter jurisdictional requirement only with respect to the 1991 denial of exemption from taxes, in which case the circuit court would not have jurisdiction over any claims for exemption from taxes except for the 1991 tax year. Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA 1980).
Both summary judgments are REVERSED and the case is REMANDED to the trial court for further proceedings on the claim for exemption from 1991 ad valorem taxes only, unless evidence is presented at trial which establishes that Macedonia timely applied for exemption from 1992 taxes and timely challenged the denial of that application.
WOLF, J., specially concurs, with opinion.
BENTON, J., dissents, with opinion.
WOLF, Judge, specially concurring.
I would note that the 60-day filing requirement was applied in Markham v. Moriarty, 575 So.2d 1307 (Fla. 4th DCA 1991), a case where, like the one before us, the taxpayer claimed an exemption from ad valorem taxes. Application of the filing requirement in this situation is consistent with "the legislative intent and public policy behind adoption of the nonclaim provision contained in sections 194.171(2) and (6), Florida Statutes, which is to ensure prompt payment of taxes due and making available revenues that are not disputed." Chihocky v. Crapo, 632 So.2d 230, 232 (Fla. 1st DCA 1994).
BENTON, Judge, dissenting.
The court today holds that a taxpayer who made timely application for an exemption from ad valorem taxes and who paid all taxes purportedly owing, albeit involuntarily after the application was denied, had to file suit for refund within 60 days of the tax roll's certification[1] in order to obtain judicial review of the property appraiser's denial of the exemption. Because, in my view, no such 60-day requirement applies in these circumstances, I respectfully dissent.
The majority opinion describes administrative remedies available to a taxpayer whose application for exemption has been denied, and points out that pursuit of these remedies is not a prerequisite for judicial review:
[A] taxpayer ... may timely petition the value adjustment board to reverse the denial of exemption, and may thereafter bring an action in circuit court to contest the board's action, so long as the taxpayer fulfills the jurisdictional requirements of section 194.171 by filing the action within 60 days after the board's decision is rendered. Alternatively, the taxpayer may directly seek a judicial remedy under section 194.171, so long as the action is filed within 60 days after the tax roll is certified for collection.
These procedures are available to a taxpayer who has never paid the disputed tax. For a taxpayer who (involuntarily) pays the tax before challenging the denial of exemption, an action for refund, like the one appellee brought and prevailed in below, is also an option.
The majority cites two cases in support of its conclusion that Macedonia Housing Authority's failure to file a suit for refund of ad valorem taxes within 60 days of the 1990 tax roll's certification precludes relief from a wrongful denial of tax exemption: Markham v. Neptune Hollywood Beach Club, 527 So.2d 814 (Fla. 1988) and Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA 1980). Both are readily distinguishable.
In the Markham case, "condominium associations and developers for time-share projects," 527 So.2d at 814, who had not paid any tax "filed a complaint challenging the constitutionality of both the assessment and the authorizing statute ... and sought an injunction against enforcement of the assessment." Id. Because they did so more than 60 days after the tax roll had been certified for collection, the circuit court lacked jurisdiction[2]*134 to hear the case. § 194.171(2), Fla. Stat.
In the Goembel case, a taxpayer who sought to have his property reassessed at a lower value, as agricultural land, was found not entitled to relief for 1974
because it had filed no separate action to contest the denial, nor had it effectively amended its complaint, but even had it done so, the evidence did not show that it was entitled to the classification for 1974[.]
382 So.2d at 785. The court also concluded that section 194.171(2), Florida Statutes, did not allow a challenge to the amount of an assessment more than 60 days after the tax roll had been certified.
In neither of the cases on which the majority relies did a taxpayer make timely application for an exemption.[3] In each, the taxpayer sought to alter or undo a tax assessment. Both taxpayers ran afoul of section 194.171(2), Florida Statutes (1993), which provides: "No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection... ." A taxpayer seeking to overturn in court the administrative denial of an application for exemption is not contesting a tax assessment within the meaning of section 194.171(2), Florida Statutes (1993). The propriety of an exemption does not depend on the accuracy of an assessment. All real property must be assessed, "whether such property is taxable, [or] wholly or partially exempt." § 192.011, Fla. Stat. (1993).
"Refund actions are not subject to the 60-day filing period prescribed for deficiency actions. Refund actions may be filed within four years of January 1 of the tax year for which the taxes were paid." Barr, "The Overassessment Action: Its Nature and Historical Development," in Fla. State and Local Taxes, Vol. II, § 8.02[4], at 355 (The Florida Bar 1988). "No refund shall be granted unless claim is made therefor within 4 years of January 1 of the tax year for which the taxes were paid." § 197.182(1)(c), Fla. Stat. (1993). "[T]he statute should be construed as contemplating that Florida ad valorem taxpayers have a right to sue for a refund within the four-year limitation period defined in § 197.182(1)(c). The ambiguities in the statute should be construed in favor of the taxpayer. Walgreen Drug Stores Co. v. Lee, 158 Fla. 260, 28 So.2d 535 (1946); Walter E. Heller & Co. Southeast, Inc. v. Williams, 450 So.2d 521, 530 (Fla. 3d DCA 1984), pet. for review denied, 462 So.2d 1108 (Fla. 1985)." Barr, "The Overassessment Action: Its Nature and Historical Development," in Fla. State and Local Taxes, Vol. II, § 8.02[4], at 354a n. 60 (The Florida Bar 1988).
The Matthew-Bender tax service concludes that an even more relaxed statute of limitations applies to suits for refund of ad valorem taxes paid by mistake or through inadvertence.
§ 3.162 Ad Valorem Refunds
[1] Circuit Court Suits for Refunds
A suit for a refund of taxes paid may be filed in the circuit court of the county where the taxed property is located... . Suits must be filed within the same limitations period applicable to administrative refund claims.
1 Fla.Tax Serv.2d (MB) III-430, § 3.162 (1990) (footnote omitted). The omitted footnote ("See [2] above regarding limitation periods") seems to refer the reader to section 95.11(3)(m), Florida Statutes, and accompanying text: "An action for money paid to any governmental authority by mistake or inadvertence must be commenced within four years after the date of the overpayment." 1 Fla.Tax Serv.2d (MB) III-429, § 3.161 (1990).
*135 Macedonia Housing Authority is seeking "refunds ... ordered by a court and ... refunds which do not result from changes made in the assessed value on a tax roll certificate to the tax collector." § 197.182(1)(b), Fla. Stat. (1993). Because Macedonia Housing Authority does not contest its tax assessment, within the meaning of section 194.171(2), Florida Statutes (1993), it was not obliged to file its action for refund of taxes within 60 days of the date the assessment was certified for collection.
The rule requiring a taxpayer claiming an exemption to apply for the exemption by a prescribed deadline, and to make payment of taxes in full, as a prerequisite to judicial review of any denial of an application for exemption (by suit for refund), well serves the public policy of "ensur[ing] prompt payment of taxes due and making available revenues that are not disputed." Chihocky v. Crapo, 632 So.2d 230, 232 (Fla. 1st DCA 1994). Nothing justifies superimposing on this scheme an inapposite statutory requirement, a draconian non-claim provision that is aimed at dilatory tactics by litigants who have never paid their taxes or who, even though the value of every other parcel in the county has been finally established for the tax year, want to quibble about what their property is worth.
NOTES
[1] In the event a taxpayer seeks review of the property appraiser's denial of the application for exemption, the 60 days runs from the date of the decision of the value adjustment board upholding the denial, unless the decision comes as it did here, before the roll is certified.
[2] The Markham court rejected any distinction between void assessments and merely voidable assessments, overruling Lake Worth Towers v. Gerstung, 262 So.2d 1 (Fla. 1972).
[3] The taxpayer in Markham v. Moriarty, 575 So.2d 1307 (Fla. 4th DCA 1991), cited in the concurring opinion, brought "a suit challenging the ... assessment of certain real property," at 1308, outside the 60-day limit. "Among the other allegations of the complaint was an allegation that the property was exempt from taxes," Moriarty at 1308, but the opinion reports no allegation that the taxpayer applied for exemption at any time before filing in court nor any allegation that the taxpayer had paid as much as a penny in taxes. The Moriarty taxpayer was not seeking a refund of taxes paid. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304544/ | PORTRUM, J.
This is a suit to recover a real estate agent’s commission for the sale of a boundary of land.
The declaration contains three counts; the first alleges a contract of agency, the second attempts to show that it was not necessary for the agent to secure a license in order to make the sale by alleging that the transaction was an isolated transaction and that the owner had expressly agreed to secure a license for her, the third count alleges that the agent had in fact a license to do a real estate business. The defendant filed several jileas, one of which averred that the complainant was exercising a privilege without first securing a license.
The case was heard before the judge and a jury, and at the conclusion of all the evidence the defendant moved for a directed verdict. The court overruled this motion as to the first and second counts, but sustained it as to the third and last. The case was then submitted to the jury, who returned a verdict for the defendant, *579and the plaintiff filed a motion for a new trial, which was overruled, and prosecuted an appeal to this Court.
There are two assignments of error, the first, that there is no evidence to support the verdict, and, second, that the court erred in directing a verdict upon the third count.
We think the first assignment was made in aid of the second one, because there was evidence necessary for the judge to submit to the jury the issues raised under the first and second counts of the declaration. The effect of the holding of the judge upon the third count is that the plaintiff was exercising a privilege without payment of a license as required by the law. Now, is there any evidence to the contrary?
The Public Acts of 1925, Chap. 134 (page 466) defines a real estate dealer as follows:
"Each person, whether as agent, individually, a member of a firm, or an employee of a firm, syndicate or corporation, engaged in the business of selling or buying real estate for others or soliciting to sell or buy the same, or endeavoring to make sales or purchases of such property, for commission or otherwise, shall pay therefor a privilege tax as follows.”
The plaintiff’s evidence shows that she was engaged to sell the property in question for the owner upon a commission of five per cent, and that she endeavored to make a sale of the property as a whole and in parcels. She solicited prospective purchasers to buy by personal interviews and by publication in the newspapers. The purchaser of the property, which was sold for a purported consideration of $75,000, was procured by the plaintiff for the owner. She entered into the agreement to sell as agent, and began soliciting prospective purchasers in 1924, and in this year she first interviewed the prospect who finally became the purchaser. She again solicited him in 1925 and in 1926 when in September he made the contract of purchase. Therefore, she was engaged in soliciting purchasers to buy and endeavoring to make sale of the property in the years 1924, 1925 and 1926. She secured a license to do a real estate business in December of 1926, which was three months after the sale in question, but. before the institution of the suit.
She' relies upon Section 14 of the Revenue Act, supra, to relieve her from the liability incurred in carrying on a real estate business without a license. The material portion of this section provides:
"Provided, that no suit brought by any person, firm or corporation, or association, exercising any of the privileges defined and declared by this act shall be dismissed or defeated because of or on account of the fact that such person, firm or corporation, or association, had not paid the privilege tax on such privilege as herein re*580quired at the time the cause of the suit occurred, and if such person, firm or corporation, or association, shall have, before the institution of such suit, paid the privilege tax herein required and levied, together with ten per cent, of the tas per annum for each year or fraction thereof of delinquency as a penalty or interest
This section relieves the plaintiff of the penalty of having her suit dismissed for -failing to pay the license, provided she has 1 £ paid the privilege tax herein required .... together with ten per cent of the tax per annum for each year or fraction thereof of delinquency.' ’
The record shows that the plaintiff has paid the privilege tax for the year 1926. Now, does it affirmatively show that she had not paid and was due a tax, for the year 1925? We have stated above that she was engaged in soliciting prospective purchasers and endeavoring to make sale of the property in 1925, by personal solicitation and by newspaper advertisement. ¥e are of the opinion that she was exercising a privilege in that year. Noes it affirmatively appear that she has not procured a license to do a real estate business for the year 1925? The plaintiff was called as a witness, after first testifying, and she then established clearly that she had not secured a license for the year 1925. The fact that she was delinquent for the year 1925, Section 14 of the Revenue Act does not give her immunity and forbid the dismissal of her suit for the failure to discharge this obligation.
The plaintiff is more fortunate than some who have failed to pay their license, for she has had the verdict of a jury upon two of the counts of the declaration, and these went to the merits of the controversy.
The judgment of the lower court is affirmed, with costs.
Snodgrass and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3354159/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This case came before the court as a hearing in damages.
The plaintiff alleges that he was injured when a firework, thrown by the defendant, exploded near his face. In his amendment to the complaint dated August 20, 1996, he seeks monetary and punitive damages.
After the hearing, the court awards damages to the plaintiff in accordance with General Statutes §§ 52-225a, 52-572h (a) and (f). For economic damages, the court awards $7713.03. This represents the total special damages appearing on plaintiff's financial affidavit less $875 shown for future service for CT Page 6002 replacement of extracted upper molar. Included in this figure is $3396 for lost wages.
Noneconomic damages are awarded as follows:
1. For extreme mental and emotional suffering, both to date and to the future, $8500. No finding is necessary under General Statutes § 52-572h (a) 3 and (a) 4.
Total damages are found to be sixteen thousand two hundred thirteen dollars and three cents ($16,213.03).
Costs in the amount of four hundred seventy dollars and forty-six cents ($470.46) are also awarded.
The percentage of negligence that proximately caused the injury and losses by the defendant is 100 percent.
The court cannot find that the act of the defendant was intentional, and, therefore, does not award punitive damages or attorney's fees.
Mihalakos, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1918812/ | 153 Conn. 501 (1966)
RUDOLPH GREENHOUSE
v.
JACOB M. ZEMPSKY ET AL.
Supreme Court of Connecticut.
Argued January 4, 1966.
Decided March 16, 1966.
KING, C. J., MURPHY, ALCORN, SHANNON and HOUSE, JS.
*502 David M. Reilly, Jr., for the appellant (plaintiff).
Charles G. Albom, for the appellees (defendants).
MURPHY, J.
From January 1, 1955, to February 2, 1959, the plaintiff and Jacob M. Zempsky conducted a public accounting business in New Haven under the name of J. M. Zempsky and Company. They treated it as a partnership. It was terminated by Jacob on February 2, 1959, and thereafter he retained the plaintiff as an employee until December 31, 1960. In December, 1960, the plaintiff, after being notified that he was being discharged, sought, for the first time, an accounting of the firm's good will and submitted a list of the firm's customers whom he wanted to have turned over to him as his share of the business, but Jacob refused to do so. Thereafter, the plaintiff, with Jacob's consent, took with him certain clients, who represented to the firm an annual billing of $2800, as well as others whom the plaintiff had solicited away from the firm. The total billings thus obtained amounted to $4667.50 of the firm's annual business of $58,000. The plaintiff then instituted this action, in which he sought money damages, an accounting and an order directing an equitable division of the firm's clients and business. The trial court decided that, under the particular facts of this case, the plaintiff was not entitled to any relief other than that which he had *503 obtained in the solicitation of the firm's clients. The plaintiff has appealed. Neither party is entitled to any material correction in the finding.
Actually there are two defendants, Jacob and his son Burton, who was brought into the firm by his father in June, 1956. Burton's compensation came exclusively from his father's interest in the business. As Burton's entrance into the firm did not affect the arrangements under which the plaintiff was operating, we shall treat the matter as though Jacob was the sole defendant. A bit of the background of the relationship between the plaintiff and Jacob will serve to highlight the situation. Jacob married the plaintiff's sister in 1933. Jacob had then been conducting his own accounting business for eight years. He employed the plaintiff in 1933 and retained him as an employee until May, 1954, when Jacob discharged him. To keep peace in the family, Jacob, in the latter part of 1954, offered to take the plaintiff into the business as a partner and did so on January 1, 1955. The plaintiff had submitted proposed drafts of partnership terms, but they were unacceptable to Jacob and were never executed. Under the terms of the oral agreement, the plaintiff was to be a partner only to the extent that he would receive $7500 per year as compensation plus 25 percent of the net income over $27,500, while Jacob was to get $20,000 annually and 75 percent of the firm's profits over $27,500. All decisions were to be made by Jacob, who was the sole "boss." The plaintiff could only sign checks for emergency purposes or when authorized by Jacob. The arrangement was terminable at will, and no provision was made for the sharing of losses or for the disposition of the business upon dissolution.
On February 2, 1959, Jacob terminated the *504 arrangement with the plaintiff but continued the business with his son. At that time, Jacob gave the plaintiff a check for $2724.63, which represented the return of his capital contribution of $788.94, moneys due him and a bonus of $1000. While the plaintiff was retained by Jacob as an employee, Jacob repeatedly suggested that the plaintiff leave, and when he did not, Jacob discharged him in December, 1960, effective at the end of the month. During that month, the plaintiff was not permitted to service customers in the field but was restricted to work in the office.
As already indicated, the plaintiff successfully solicited customers producing $4667.50 annual business for the firm. The records for these accounts were turned over willingly to the plaintiff upon receipt of written directives from the customers. The court found that the annual gross business of the firm as of December 31, 1960, amounted to $58,000. It concluded, however, that, inasmuch as public accounting is a vocation dependent upon the personal relationship between the accountant and the customer, it would not be feasible to enter an order directing Jacob to turn over to the plaintiff any accounts other than those he had already obtained, because there was no way in which it could reasonably be determined that those accounts would give their business to the plaintiff. In this conclusion, the court was logical and correct.
The principal conclusion reached by the court was that the arrangement between the parties constituted a partnership. Jacob challenges this conclusion on the ground that the subordinate facts do not support it. The sharing of the profits as principals, which existed here, is one of the tests of the partnership relation. Bucknam v. Barnum, 15 Conn. *505 67, 73 (citing Loomis v. Marshall, 12 Conn. 70, and Everitt v. Chapman, 6 Conn. 347). There is also the offer by Jacob to take the plaintiff in with him as a partner and the acceptance of that offer. As it was the intent of the parties that their relationship was to be that of partners, that intent and the profit sharing are sufficient to sustain the court's conclusion. Morgan v. Farrel, 58 Conn. 413, 422, 20 A. 614. It is significant, however, that the plaintiff was not a general partner and therefore not a partner in the usual sense. His activities were severely limited, and he lacked the principal right of a partner to act as both principal and agent of the firm. Morgan v. Farrel, supra. He enjoyed the title but lacked any say in the management or operation of the business except as Jacob permitted.
Had the plaintiff sought an accounting when Jacob terminated the arrangement on February 2, 1959, or within a reasonable time thereafter, equity would have provided him with it. Weidlich v. Weidlich, 147 Conn. 160, 163, 157 A.2d 910; Roberts v. Weiner, 137 Conn. 668, 673, 81 A.2d 115. He did not do so. Instead, he accepted both employment as a weekly salaried employee of Jacob and the check which Jacob gave him on that day in settlement of his interest in the business. He made no claim for an accounting or for division of the firm's clients until twenty-three months later when Jacob discharged him as an employee. Considering the fact that the plaintiff took with him the accounts which he had brought into the firm and also obtained other accounts by solicitation, in all totaling business of around $4667.50, it does not appear that an inequitable result has been reached. The plaintiff had serviced and had had very close contact with at least 35 percent of the firm's clientele during the partnership *506 and while he was working as Jacob's employee. Had he been successful in persuading a good percentage of the firm's clients to transfer their business to him, this lawsuit would not have resulted. The court should not be expected, under the circumstances in this case, to do what his persuasion and salesmanship had failed to accomplish.
There is no error.
In this opinion KING, C. J., SHANNON and HOUSE, Js., concurred.
ALCORN, J. (concurring in the result). Although I agree that the plaintiff should not prevail, I would rest that result on the ground that no partnership existed. Despite the name given to his status by his brother-in-law in order "to keep peace in the family", the plaintiff was no more than an employee. He had no voice in the business. His receipt of a share of the profits was as compensation for services rendered and did not make him a partner. Loomis v. Marshall, 12 Conn. 69, 78; Pond v. Cummins, 50 Conn. 372, 375.
One can be either a general or a limited partner. The opinion admits that the plaintiff "was not a general partner and therefore not a partner in the usual sense". It ignores the fact that, by virtue of the "arrangement", he could not be a limited partner under the statute which was then applicable, § 6279 of the 1949 Revision of the General Statutes. In approving the trial court's conclusion that the "arrangement" was a partnership, the opinion strays from our established and sound definition of that relationship. Morgan v. Farrel, 58 Conn. 413, 421, 20 A. 614; Active Market, Inc. v. Leighton, 124 Conn. 500, 504, 200 A. 822. | 01-03-2023 | 10-30-2013 |
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
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<P><STRONG><CENTER>NO. 03-95-00691-CR</CENTER>
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<P><STRONG><CENTER>Ronald Hobbs, Appellant</CENTER>
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<P><STRONG><CENTER>v.</CENTER>
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<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
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<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT</CENTER>
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<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 88,436, HONORABLE TOM BLACKWELL, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> This is an appeal from an order revoking probation. Appellant has filed a motion
to dismiss the appeal. The motion is granted and the appeal is dismissed. Tex. R. App. P. 59(b).</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Chief Justice Carroll, Justices Jones and B. A. Smith</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Dismissed on Appellant's Motion</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: December 20, 1995</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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</HTML> | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1584294/ | 24 So. 3d 292 (2009)
Wade P. RICHARD
v.
Daniel G. RICHARD, et al.
No. 09-539.
Court of Appeal of Louisiana, Third Circuit.
November 4, 2009.
*293 Thomas K. Regan, Crowley, LA, for Defendant/Appellee, Glenn Deville, Marshall-Crowley City Court.
Andre Doguet, Lafayette, LA, for Defendant/Appellee, Daniel G. Richard.
Wade Paul Richard, Crowley, LA, In Proper Person.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
THIBODEAUX, Chief Judge.
The plaintiff-appellant, Wade Richard, brought an action for trespass against the defendants-appellees, Daniel Richard and Glenn Deville, alleging that the defendants caused movers to enter the property while the residents, Wade Richard and his mother, Marie Richard, were absent from the property and against the expressed wishes of the residents. The movers then unloaded furniture and personal property of Marie Richard and left it in the carport and driveway, blocking the residents' use of *294 these areas. The defendants' exceptions of no cause of action and no right of action were granted by the trial court. Wade Richard appeals that judgment, and both defendants have answered the appeal, asserting an entitlement to damages for frivolous appeal.
Finding that Wade Richard stated a cause of action for which the law provides a trespass remedy to someone, we reverse the portion of the trial court's judgment granting the exception of no cause of action. However, we find that Wade Richard does not have a right of action for trespass, and we affirm the trial court's granting of the exception of no right of action. We decline to grant an award to the defendants for frivolous appeal.
I.
ISSUES
We must decide:
(1) whether the trial court erred in granting the defendants' exceptions of no cause of action; and,
(2) whether the trial court erred in granting the defendants' exceptions of no right of action.
II.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Wade Richard, is the son of the defendant, Daniel Richard, and Marie Richard, who is now deceased. Daniel and Marie were divorced. As part of the community property division, Marie received the exclusive use of a house on Ash Street in Crowley, and Daniel received exclusive use of a house on Lyons Point. Wade was living with his mother on Ash Street, caring for her and managing her affairs. Furniture and property belonging to Marie was to be moved from Daniel's house to Marie's house. Apparently, the removal and delivery of the furniture had been attempted previously without success.
Wade and Marie told the movers not to deliver Marie's property on October 24, 2007, and not until an off-duty officer was available to facilitate the move. On October 24, 2007, while Wade and Marie were away from the Ash Street house, the movers delivered Marie's furniture and left it outside under the carport and in the driveway, blocking the residents' use of those areas and exposing the movables to the elements and possible theft. On October 24, 2008, Wade filed a petition for damages, alleging criminal and civil trespass against the movers, against Daniel Richard and against Glenn Deville, the Crowley City Marshal. Wade further alleged that Daniel had conspired with Glenn Deville to watch the house and have the movers deliver the furniture and moveable property while Marie and Wade were away from the property, in violation of the exclusive use order prohibiting Daniel and his agents from entering the Ash Street property without Marie's permission.
Wade's petition alleged damages in the form of pain, suffering, mental anguish, wages, and costs associated with immediately securing the furniture and property indoors. Following a trial in this matter, the trial court granted the exceptions of no cause of action and no right of action filed by two of the defendants, Daniel Richard and Glenn Deville. Wade Richard filed this appeal, and the defendants answered the appeal, requesting damages for frivolous appeal.
III.
LAW AND DISCUSSION
Standard of Review
Both of the peremptory exceptions of no right of action and no cause of action pose *295 a questions of law. Accordingly, we review these exceptions de novo. See Rowan v. Town of Arnaudville, 02-882 (La. App. 3 Cir. 12/11/02), 832 So. 2d 1185.
Exception of No Cause of Action For Civil Trespass
The Louisiana Supreme Court in Industrial Companies, Inc. v. Durbin, 02-665 (La.1/28/03), 837 So. 2d 1207, articulated the function of the peremptory exception of no cause of action:
First, we focus on whether the law provides a remedy against the particular defendant in this case. Id. The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, XXXX-XXXX, p. 3 (La.9/18/01), 795 So. 2d 302, 304. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Fink v. Bryant, XXXX-XXXX, p. 3 (La.11/29/01), 801 So. 2d 346, 348. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Cleco Corp., XXXX-XXXX at p. 3, 795 So.2d at 304; Fink, XXXX-XXXX at p. 4, 801 So.2d at 349. In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court and this court should conduct a de novo review because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Cleco Corp., XXXX-XXXX at p. 3, 795 So.2d at 304; Fink, XXXX-XXXX at p. 4, 801 So.2d at 349. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Fink, XXXX-XXXX at p. 4, 801 So.2d at 349. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Jackson v. State ex rel. Dept. of Corrections, 2000-2882, p. 4 (La.5/15/01), 785 So. 2d 803, 806.
Industrial, 837 So.2d at 1213 (emphasis added).
A close reading of the above supreme court precedent reveals dichotomous reasoning in articulating the test to be applied at the trial of an exception of no cause of action. The referenced language from Cleco provides that the test is whether the petition has stated a cause for which the law provides a remedy to anyone. The referenced language from Fink indicates that the test is whether the petition states a cause for which the law provides a remedy to a particular plaintiff. All three cases, Industrial, and its cited cases of Cleco and Fink, recite both versions of the test, and many trial courts seem to have difficulty in distinguishing which is the proper test when trying an exception of no cause of action. However, Industrial, which reversed the trial court's decision to grant the defendant's exception, stated that the trial court's only concern should have been "whether the allegations in Industrial's petition were sufficient to state a cause of action against the defendants for recovery of the funds." Industrial, 837 So.2d at 1215.
We believe that precision is needed to resolve the problem of the dichotomous language, and we would place "for anyone" at the end of the last above-quoted phrase from Industrial, 837 So.2d at 1215. Our *296 conclusion is buttressed by an examination of the codal article itself, La.Code Civ. P. art. 927, which lists peremptory exceptions (5) and (6) respectively as "No cause of action" and "No right of action, or no interest in the plaintiff to institute the suit." Further, Section B of Article 927[1] speaks of no cause of action and no right of action in the disjunctive "or," indicating mutually exclusive alternatives. The phrase "in the plaintiff" refers to a right of action, not a cause of action. Thus, reference to a cause of action focuses not on whether a remedy is afforded to the plaintiff in the pending action, but whether the law affords a remedy to anyone under the accepted factual allegations. In other words, the proper plaintiff is not at issue at the trial of an exception of no cause of action, but is the exact raison d'etre for the exception of no right of action. Now we turn to the cause of action for trespass.
Civil Trespass
A trespass occurs when there is an unlawful physical invasion of the property or possession of another. Gaspard v. St. Martin Parish Sewerage Dist. # 1, 569 So. 2d 1083 (La.App. 3 Cir.1990). A trespasser has been defined as "one who goes upon the property of another without the other's consent." Pepper v. Triplet, 03-619 (La.1/21/04), 864 So. 2d 181, 197 (citations omitted). Even though the work may have been done by another, the party supervising and/or directing the work and ordering the trespass is liable. See Gaspard, 569 So. 2d 1083. Damages are recoverable for "unconsented to activities performed on the property of another, based on physical property damage, invasion of privacy, inconvenience, and mental and physical suffering." Beacham v. Hardy Outdoor Advertising, Inc., 520 So. 2d 1086, 1091 (La.App. 2 Cir.1987).
Article 2315 of the Civil Code provides in pertinent part that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. The tort of trespass has long been recognized by courts throughout this state as a means to correct the damage caused when an owner is unjustly deprived of the use and enjoyment of his immovable.
Britt Builders, Inc. v. Brister, 618 So. 2d 899, 903 (La.App. 1 Cir.1993).
[A] defendant may be held liable for trespass even in the absence of intent i.e. when the plaintiff offers proof that the defendant was at fault in causing the trespass pursuant to the general tort article, La. C.C. art. 2315. See M. Cresson, Comment, "The Louisiana Trespass Action: A `Real' Problem," 56 La. L.Rev. 477 (1995), citing Phillips v. Town of Many, 538 So. 2d 745 (La.App. 3d Cir.1989); Brown v. Bedsole, 447 So. 2d 1177 (La.App. 3d Cir.[), writ denied, 450 So. 2d 358 (La.]1984).
Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 00-2754 (La.App. 4 Cir. 11/14/01), 803 So. 2d 86, 96, writ denied, 01-3292 (La.3/8/02), 811 So. 2d 887.
In his petition, Wade Richard alleges that he and his mother, Marie, told the moving company not to deliver the furniture and other movables on October 24, 2007, and not until an off-duty law enforcement officer could be present on the premises at the expected time of delivery. He further alleged that Marie was given exclusive use of the Ash Street property as part of a court-ordered division of property, in connection with Daniel and Marie's *297 divorce, and that Daniel and his agents were prohibited from going on the property without Marie's consent.
Wade Richard also alleged in his petition that Daniel Richard and Glenn Deville caused the moving company to go to the Ash Street property when the residents were not present and, knowing that delivery had been refused on that date, unlawfully gave the movers authorization to enter the premises without the residents' permission, knowledge, or consent. In several paragraphs of his petition, Wade Richard specifically alleged civil and criminal trespass. Taking these allegations to be true, as we are bound to do, we find that Wade Richard has stated a cause of action for civil trespass, where he alleged an unlawful physical invasion of the property or possession of another.
Exception of No Right of Action For Civil Trespass
Article 927 of our Code of Civil Procedure describes the peremptory exception of no right of action as, "no interest in the plaintiff to institute the suit." La.Code Civ. P. art. 927(A)(6). The article serving as the basis for the exception urging the objection that the plaintiff has no right of action is La.Code Civ. P. art. 681: "Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts."
The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Industrial Companies, Inc. v. Durbin, 837 So. 2d 1207. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n, 94-2015 (La.11/30/94), 646 So. 2d 885. Unlike the no cause of action exception, evidence is admissible to support or controvert the objection of no right of action when the grounds thereof do not appear from the petition. La.Code Civ. P. art. 931; Louisiana Shrimp Ass'n v. Wayne Estay & Wayne Estay Shrimp Co., 05-29 (La.App. 5 Cir. 5/31/05), 905 So. 2d 431.
In seeking a reversal of the trial court's judgment, Wade Richard contends that, even though he was not an owner of the Ash Street property, he was a possessor and a resident there with his mother. Therefore, he has a right of action in trespass. We note that Wade Richard did not assert "possessor" or "lessee" status in his petition for damages. Rather, he referred to his mother and to himself as "residents" and "occupants" of the Ash Street property. Wade's petition did, however, allege facts establishing Marie's right of action for trespass, due to her court-ordered exclusive use of the Ash Street property, pursuant to the division of property between Daniel and Marie. Likewise, Marie was the owner of the furniture and movable property that was left in the yard of the Ash Street property. However, Wade asserted no representative status or capacity to sue on her behalf. Wade argues on appeal that he was a "tenant/resident" of the Ash Street property and, therefore, can file a "Tresspassing [sic] type" of claim against the movers who delivered furniture without the authorization from any resident, and that he has a "legal right" to pursue such a claim against Daniel Richard, the owner of the property in title only.
The defendants, Daniel Richard and Glenn Deville, assert that under LaRue v. Crown Zellerbach Corp., 512 So. 2d 862 (La.App. 1 Cir.), writ denied, 514 So. 2d 1176 (La.1987), one must be an owner or *298 legal possessor of property in order to bring an action for trespass upon that property.
Wade Richard cites Garrett v. Martin Timber Co., Inc., 391 So. 2d 928 (La.App. 2 Cir.1980), writ denied, 397 So. 2d 804 (La. 1981), for the proposition that the remedy for trespass is available to one who is only a possessor of property, even against the owner of the property. Garrett and its progeny are inapplicable to the present set of facts for several reasons. In Garrett, two landowners lay claim to a strip of land that adjoined both of their properties. Garrett did not sue the adjoining landowner; rather, he sued the timber company which tore down a fence that Garrett's family had built in the 1940's, and cut timber from the disputed strip. Evidence indicated that Garrett's family thought the fence was the boundary and had farmed up to the fence for almost forty years. The second circuit articulated that when an action for trespass is predicated upon possession, it is very similar to the possessory action, and the one in legal possession could bring a suit for damages against one who disturbs his possession. Accordingly, the court found that in this action for trespass, Garrett need only prove possession and did not have to prove ownership. The court applied La.Civ.Code art. 3436, which, at that time, provided as follows:
Art. 3436. Essentials of possession. To be able to acquire possession of property, two distinct things are requisite:
1. The intention of possessing as owner.
2. The corporeal possession of the thing.
Therefore, Garrett does nothing to advance Wade's claims to a right of action because Wade cannot fulfill criteria (1) above where he had no intention of possessing the Ash Street house as an owner. The second circuit in Garrett articulated that the type of activity necessary to constitute corporeal possession of land, pursuant to criterion (2) above, differs with the nature of the property, and that actions constituting corporeal possession on one type of property may be insufficient to constitute corporeal possession on other property. Wade is not a possessor under Garrett.
Likewise, the current Civil Code articles on possession provide in pertinent part as follows:
Art. 3656. Same; parties; venue
A plaintiff in a possessory action shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself.
Art. 3660. Same; possession
A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.
Wade does not have standing for a trespass action under the above articles because he did not have a legal usufruct of, or a real right in, the Ash Street property. Moreover, his arguments are inconsistent where he claims on appeal to be a tenant or lessee, which is unsupported, and the lessee under article 3565 cannot be a possessor because he does not possess in his own name. See Pfister v. St. Bernard Cypress Co., Sup.1923, 155 La. 575, 99 So. 454, certiorari denied, 266 U.S. 625, 45 S. Ct. 125, 69 L. Ed. 474 (1924) (action for *299 damages for cutting and removing timber could be maintained either by a possessor having a right to a possessory action or by an owner having a right to an action for the value of the timber cut and removed from his land); See also Patin v. Blaize, Sup.1841, 19 La. 396 (to entitle one to maintain an action for trespass on land, he should be the owner or in possession thereof, when the acts complained of were committed).
Wade has claimed to be a tenant, but has not asserted the existence of a lease, nor the identity of the lessor. Therefore, he cannot show an entitlement to the protections of La.Code Civ.P. art. 2700, where, in the second paragraph, a lessor must warrant the lessee peaceful possession against a disturbance by a person who, "with the lessor's consent, has access to the thing." If Daniel were the lessor, and Wade the lessee, Daniel would have had a duty to protect Wade from the disturbance caused by the movers and the Crowley Marshall. However, these are not the facts. If Wade's mother had been the lessor, even she had no duty to him because she did not give the movers and the Marshall consent to access the property; and because, without the referenced consent, the lessor is not obligated to protect a lessee against a trespasser who does not claim a right in the leased thing. See Comment (d) of La.Code Civ.P. art. 2700.
Wade has not been able to show his status as a possessor, nor an owner, nor a lessee of the Ash Street property, even though evidence is permitted at the trial of an exception of no right of action. While a civil trespass is brought under La.Civ. Code art. 2315, under a duty-risk analysis, Wade has shown no duty on the part of the defendants to protect one without ownership, possessor, or lessee rights, from a furniture delivery, albeit vengeful, to the property he merely occupied. Moreover, Wade did not allege damage to the immovable property, and the movable property was his mother's property. Accordingly, Wade Richard is not a plaintiff who belongs to the class of persons to whom the law grants the cause of action asserted in the suit, and he has no right of action under La.Code Civ.P. arts. 927 and 681.
In Washington Mut. Bank v. Monticello, 07-1018 (La.App. 3 Cir. 2/6/08), 976 So. 2d 251, 256-57, writ denied, 08-530 (La.4/25/08), 978 So. 2d 369, we stated:
"The existence of the duty is clearly a question of law. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support a claim." Nicholson v. Calcasieu Parish Police Jury, 96-314 (La.App. 3 Cir. 12/11/96), 685 So. 2d 507, 511 (citations omitted).
The only law that Wade has asserted that might support a claim are the statutes on criminal trespass, La. R.S. 14:63,[2] R.S.14:63.3[3] and R.S. 14:63.4.[4] However, *300 this is an appeal of a civil suit, and there is no evidence that the district attorney has brought or prosecuted charges of criminal trespass. In spite of the inapplicability of the criminal statutes, because their provisions contain language that could arguably support a claim for trespass by the mere occupant or custodian of a house, we will not award damages to the defendants for frivolous appeal under La.Code Civ. P. art. 2164.
IV.
CONCLUSION
Based upon the foregoing, we reverse the trial court's granting of the exception of no cause of action, and we affirm the trial court's granting of the exception of no right of action, dismissing Wade Richard's suit against Daniel Richard and Glenn Deville with prejudice. We decline to grant these defendants' request for damages for frivolous appeal. Each party is to bear his own costs for this appeal.
REVERSED IN PART; AFFIRMED IN PART; SUIT DISMISSED WITH PREJUDICE.
NOTES
[1] "The nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion."
[2] § 63. Criminal trespass
....
B. No person shall enter upon immovable property owned by another without express, legal, or implied authorization.
....
Historical Notes: Possession:
Possession means "natural possession," which is the actual corporeal detention of the thing, such as occupying a house or the cultivation of land. It implies the detention, holding or controlling of property to the exclusion of others. State v. Crappel, 181 La. 715, 160 So. 309 (1935). (Emphasis added.)
[3] § 63.3. Entry on or remaining in places or on land after being forbidden
A. No person shall without authority go into or upon or remain in or upon or attempt to go into or upon or remain in or upon any structure, watercraft, or any other movable, or immovable property, which belongs to another... after having been forbidden to do so, either orally or in writing, including by means of any sign hereinafter described, by any owner, lessee, or custodian of the property or by any other authorized person. (Emphasis added.)
[4] § 63.4. Aiding and abetting others to enter or remain on premises where forbidden
A. No person shall incite, solicit, urge, encourage, exhort, instigate, or procure any other person to go into or upon or to remain in or upon any structure, watercraft, or any other movable which belongs to another, including public buildings and structures, ferries, and bridges, or any part, portion, or area thereof, knowing that such other person has been forbidden to go or remain there, either orally or in writing, including by means of any sign hereinafter described, by the owner, lessee, or custodian of the property or by any other authorized person. (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584299/ | 717 F. Supp. 969 (1989)
SERGIO ESTRADA RIVERA AUTO CORPORATION, Plaintiff,
v.
Sang J. KIM and Helen Kim, Defendants.
Civ. No. 88-1628 HL.
United States District Court, D. Puerto Rico.
June 16, 1989.
*970 Lydia Lizarribar, San Juan, P.R., for plaintiff.
Carolyn Boren, Woods, Rosenbaum, Luckeroth & Perez González, Hato Rey, P.R., Stephen N. Dratch (pro hac vice), Greenberg, Margolis, Ziegler, Schwartz, Dratch, Fishman, Fransblau, & Falkin, Roseland, N.J., for defendants.
OPINION AND ORDER
LAFFITTE, District Judge.
The complaint in this action alleges that defendant Sang J. Kim ("Kim") and plaintiff Sergio Estrada Rivera Auto Corp., through its president, Sergio Estrada Rivera ("Estrada") agreed that Kim would negotiate on behalf of Estrada's company for franchise rights on Hyundai and Kia automobiles to be sold here in Puerto Rico. Plaintiff alleges, however, that although Kim engaged in numerous planning sessions here in Puerto Rico, negotiated and networked in the Far East, accepted reimbursement from plaintiff for expenses, and took "front" money from plaintiff for the franchises in the amount of hundreds of thousands of dollars, Kim failed to secure those franchise rights, and has since refused to return any of the money advanced to him.
I. MOTION TO DISMISS
The defendants, Kim and his wife, Helen Kim, have moved to dismiss the action against them on the ground that this Court does not have personal jurisdiction over them. Kim has submitted a sworn affidavit in which he states that he does not conduct any business in the Commonwealth of Puerto Rico, that he has only been to Puerto Rico "on two or three occasions at the specific request of the plaintiff," that his wife, Helen Kim, has been to Puerto Rico only once, for a short vacation, and that she has never entered into any business relationship or discussions with the plaintiff.
Defendants' motion to dismiss and memorandum of law contain similar allegations. Both documents, emphatic in tone, state that Kim does not conduct any business in Puerto Rico, does not solicit business in Puerto Rico, and does not avail himself of the privilege of conducting activities in Puerto Rico. Motion to Dismiss at 3. At one point, the motion unequivocally states: "[Kim] did not solicit business in the forum, nor did he `transact business' in the forum." Id. at 7. Further on, the motion suggests that the only business transactions "which could remotely serve to link *971 [Kim] to Puerto Rico" was the "use of wire communications to fax a letter," and that such "transactions by mail" are insufficient to confer jurisdiction. Id. at 9-10. The memorandum of law explains that Kim had been to Puerto Rico on only two occasions, the first time for a family vacation, and the second "to discuss some matters with Sergio representatives." Memorandum of Law at 2. It continues: "[t]he facts are clear that [Kim] engaged in no business whatsoever in the Commonwealth of Puerto Rico on his own behalf or for his own personal benefit." Id.
The Due Process Clause of the Fourteenth Amendment provides the outer limit on a court's exercise of personal jurisdiction over a non-resident defendant by requiring that the defendant have "minimum contacts" with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 158-160, 90 L. Ed. 95 (1945). These contacts with the forum must be of such a nature that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980). In making this determination as to a defendant's minimum contacts, "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state." Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958).
Mindful of this outer limit imposed by the Constitution, we turn to Puerto Rico's long-arm statute. "In a diversity case, such as the present, the district court's personal jurisdiction over a nonresident defendant is governed by the forum's long-arm statute." Mangual v. General Battery Corp., 710 F.2d 15 (1st Cir.1983). Puerto Rico's long-arm statute states, in relevant part:
Whenever the person to be served is not domiciled in Puerto Rico, the General Court of Justice shall take jurisdiction over said person if the action or claim arises because said person:
(1) Transacted business in Puerto Rico personally or through an agent.
P.R.Laws Ann. tit. 32, App. III R. 4.7. The Puerto Rico Supreme Court has articulated a three-part test for asserting personal jurisdiction over a non-resident defendant: (1) the non-resident defendant must do some act or consummate some transaction in Puerto Rico; (2) the cause of action must arise out of or result from the defendant's action within Puerto Rico; and (3) this act or transaction must be a "minimum contact" as defined in International Shoe Co. v. Washington and its progeny. A.H. Thomas Co. v. Superior Court, 98 P.R.R. 864, 870 (1970).[1]
Plaintiff has the burden to prove the facts necessary to sustain this Court's exercise of personal jurisdiction over Kim and his wife, Helen Kim. Dalmua Rodriguez v. Hughes Aircraft Co., 781 F.2d 9, 10 (1st Cir.1986); The American Freedom Train Foundation v. Spurney, 747 F.2d 1069, 1075 (1st Cir.1984); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir.1980); Rubi v. Sladewski, 641 F. Supp. 536, 539 (D.P.R.1986). Plaintiff has responded with an opposition which is, in the legal world of motions and oppositions, a bombardment of Kim's motion to dismiss. With its opposition, plaintiff has submitted the affidavit of Estrada, which is supported by prolific documentary evidence, detailing Kim's myriad of contacts with Puerto Rico.
*972 We need only summarize them here. Plaintiff has demonstrated, through his own affidavit, copies of hotel bills, see Exhibits 1, 6, 11, 12, 14, 44, and a copy of a telex from Kim announcing an upcoming visit, see Exhibit 25, that Kim made seven visits to Puerto Rico from the spring of 1987 to the spring of 1988. Plaintiff has submitted a copy of a business card featuring Kim as Vice Chairman of Sergio Estrada Rivera Auto Corp., and listing two addresses for the defendant, one in New Jersey, and one in Rio Piedras, Puerto Rico. See Exhibit 8. Plaintiff has filed a copy of a company credit card in the name of "Dr. Sang J. Kim, Sergio Estrada Rivera." See Exhibit 10. Plaintiff has submitted copies of minutes from four meetings held here in Puerto Rico, in which business dealings between Kim and plaintiff are memorialized. See Exhibit 7, 15, 16, 26. Plaintiff has included copies of at least nineteen telexes that Kim and Helen Kim sent to plaintiff in Puerto Rico, all regarding business transactions between Kim and the plaintiff. See Exhibits 19-20, 22, 24, 28-31, 33-37, 39-43, 46. Plaintiff has submitted copies of two checks in the amounts of $30,500 and $500,000 made payable to Kim, and drawn on the Banco Central account of plaintiff. See Exhibits 13, 39. Kim acknowledged receiving a check for $300,000 in two telefaxes sent to Puerto Rico. See Exhibits 28, 30. In a telex sent to Puerto Rico, Kim also guaranteed the return of the $300,000, if the proposed venture for the Hyundai dealership was unsuccessful. See Exhibit 31. Another telex, sent from Kim to plaintiff in Puerto Rico, requests that plaintiff send a check in the amount of $500,000 to Helen Kim in New Jersey. See Exhibit 39.
With Estrada's affidavit and attached exhibits, plaintiff has illuminated the web of contacts Kim had spun in Puerto Rico throughout 1987 and part of 1988. In an age where a defendant's physical presence within a forum is no longer necessary to assert jurisdiction, see Industrial Siderurgica v. Thyseen Steel Caribbean, 114 D.P.R. 548, 14 Official Translation 708, 725 (1983), we have before us a defendant who made seven trips here, within a year's time, to solicit and conduct business. In an age where a single act or transaction made by mail can be used as a basis for exercising jurisdiction, see A.H. Thomas Co. v. Superior Court, 98 P.R.R. at 870, we have a defendant who sent at least eighteen telexes to Puerto Rico regarding business transactions ongoing between the parties.
That plaintiff's cause of action is causally related to the above described acts of Kim within Puerto Rico is indisputable. See Industrial Siderurgica v. Thyseen Steel Caribbean, 114 D.P.R. 548, 14 Official Translation at 730. That these acts meet the "minimum contacts" test as purposeful acts on the part of the defendant, for which he should reasonably have foreseen that he would be subject to the jurisdiction of this Court, is equally clear. Difficult to fathom is how Kim's actions in Puerto Rico could be more purposeful, systematic or continuous during the period of time in which Kim is alleged to have been negotiating for car franchises on plaintiff's behalf.
Defendants rely heavily on two cases, Dalmau Rodriguez v. Hughes Aircraft, Co., 781 F.2d 9 (1st Cir.1986) and Young v. Pannell Fitzpatrick, 641 F. Supp. 581 (D.P. R.1986). In Dalmau, however, the Court held that "[a]ll the purposeful activities [in Puerto Rico] were initiated and carried on by [another company]," and not by the defendant, Hughes Aircraft. 781 F.2d at 15. In this case, Kim himself made the trips to Puerto Rico and sent the telexes, all of which relate to the plaintiff's cause of action.[2] Similarly, Young involved a plaintiff's attempt to assert jurisdiction *973 over Pannell Fitzpatrick, a non-resident defendant, on the basis of the contacts a client of Pannell Fitzpatrick had established within Puerto Rico. There was no evidence in that case that Pannell Fitzpatrick had advertised or otherwise solicited business in Puerto Rico. 641 F.Supp. at 586. Here, the evidence that Kim solicited business in Puerto Rico is overwhelming.
A somewhat closer issue, certainly in comparison to the issue of this Court's personal jurisdiction over Kim, is this Court's jurisdiction over codefendant Helen Kim. In opposition to Kim's allegations that his wife visited Puerto Rico only once, for a short vacation, and that she never transacted business with the plaintiff, plaintiff has alleged that that one visit was in fact a business trip in which Helen Kim joined in her husband's efforts to be the plaintiff's agent in securing automobile franchises. See Estrada's affidavit, para. 7. The documentary evidence presented indicates that that visit was indeed business related. For example, the plaintiff paid for the Kims' stay at the Caribe Hilton in San Juan, Puerto Rico. See Exhibit 1. Estrada also alleges that he discussed the ongoing business with Helen Kim by telephone on numerous occasions. Id., para. 24. There is other evidence indicating that Helen Kim was an active participant in her husband's venture. Plaintiff has submitted a copy of a telex from Kim in which he requests that plaintiff send the $500,000 check to Helen Kim for her to deposit in the company account. See Exhibit 39. Another telex, sent by Kim to Estrada in Puerto Rico, states that "[Mrs. Kim] helping me many ways for our Kia business." See Exhibit 40. Mrs. Kim herself sent a telex to Estrada in Puerto Rico acknowledging receipt of a fax from Estrada and agreeing to send it to her husband, defendant Kim. See Exhibit 22.
In light of what we now know of Kim's contacts with Puerto Rico, and that Mrs. Kim was involved in the venture, we find that Mrs. Kim's contacts with Puerto Rico the visit and the telex are sufficient for this Court to exercise personal jurisdiction over her. These contacts are among those that give rise to plaintiff's cause of action, and meet the "minimum contacts" test.
II. MOTION FOR CHANGE OF VENUE
Finally, defendants move pursuant to 28 U.S.C. § 1404 for a change of venue to federal district court in New Jersey, which is the defendants' place of residence. 28 U.S.C. § 1404 provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
The defendants have the burden to show that the factors enumerated in Section 1404 predominate in favor of a transfer. Crosfield Hastech, Inc. v. Harris Corp., 672 F. Supp. 580, 589 (D.N.H.1987). "Factors to be considered by the district court in making its determination include the convenience of parties and witnesses, the order in which jurisdiction was obtained by the district court, the availability of documents, and the possibilities of consolidation." Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir.1987). Only the first and the third factor are relevant here, and both are in favor of plaintiff. Defendants allege that three witnesses, namely, themselves and a Mr. Edward Narvez, all reside in New Jersey, and that Estrada, plaintiff's president, would be less burdened by pursuing this action in New Jersey than they will be defending it here in Puerto Rico. Plaintiff responds by alleging that at least seven witnesses with relevant knowledge of the facts underlying the cause of action reside in Puerto Rico, and that the documentary evidence is located here as well. When applying the doctrine of forum non conveniens before Section 1404 was enacted, the Supreme Court stated that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947). In this action, the balance does not even tilt in favor of *974 the defendants. This action shall therefore remain here.
III. MOTION FOR RULE 11 SANCTIONS
Finally, plaintiff has filed a motion for sanctions under Fed.R.Civ.P. 11 for defendants' filing of a motion to dismiss for lack of personal jurisdiction. Plaintiffs allege that defendants have deliberately failed to inform the Court of their repeated and systematic transaction of business in Puerto Rico, and have therefore forced plaintiff to incur significant costs in preparing an opposition to their motion to dismiss.
Rule 11 provides, in relevant part, that if an attorney files a "pleading, motion, or other paper" without a belief
formed after reasonable inquiry [that] it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation ... the court ... shall impose [upon the attorney, the client, or both] ... an appropriate sanction.
Defendants' motion to dismiss relied exclusively on Kim's affidavit, in which he swore, under oath, that he had "only been to the Commonwealth of Puerto Rico on two or three occasions at the specific request of the plaintiff." That declaration is false. See discussion, supra, of plaintiff's documentation of seven visits Kim made to Puerto Rico in the course of a year. Because defendants' counsel submitted no other evidence to support the motion to dismiss other than Kim's affidavit, and because that evidence, in its most relevant aspect, i.e., as to Kim's visits to Puerto Rico, was false, we find that defendants' motion to dismiss was not well grounded in fact.
Defendants' attorneys can still escape sanction under Rule 11, however, if we determine that "to the best of [the attorneys] knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact." Looking first at defendants' motion to dismiss and the memorandum of law, we note that defendants' counsel actually argued more than Kim's affidavit allowed them to argue,[3] even assuming that the attorneys were entitled to believe that Kim's assertions in his affidavit were true, and thus did not act "to the best of [their] ... information."
First, the defendants' memorandum of law unequivocally states that Kim had been to Puerto Rico on two occasions, not the "two or three" that Kim had admitted to, and gives the reasons for the visits, one for a personal family vacation, and one to discuss matters with plaintiff's representatives, reasons Kim does not supply in his affidavit. Memorandum at 2. The memorandum also gives time periods for those visits as "no longer than a few days," and "a brief two-day trip," details Kim does not mention in his affidavit. Id. Second, defendants' counsel states, no less than six times, not simply that defendants did not conduct any business in Puerto Rico, as Kim asserts in his affidavit, but that defendants also did not solicit or transact business, nor avail themselves of the privilege of conducting activities in Puerto Rico. These additional assertions are not supported by Kim's affidavit. We submit, for the purposes of a "minimum contacts" analysis, that a defendant's motion becomes stronger when he can allege, not only that he did not "conduct any business" in the forum state, but that he also did not "transact" business, "solicit business," or "avail himself of the privilege of conducting activities" there. Defendants' counsel took the liberty, without evidentiary support, of alleging the latter, a liberty we find that attorneys, conducting litigation "to the best of [their] knowledge," cannot take. Third, defendants' counsel asserts that plaintiff's complaint alleges that the "use of wire communications to fax a letter" (emphasis added), were the "business transactions" "which could remotely serve to link defendant to Puerto Rico." Motion *975 to Dismiss at 9. The inference is that defendant used the wire communications once, to fax a single letter. Kim's affidavit, however, says nothing as to his use of wire communications. In its complaint, plaintiff mentions four different instances of the use of wire communications, and in its opposition, plaintiff demonstrated at least 18 different instances of defendants's use of wire communications to send messages to Puerto Rico.
Attorneys have an affirmative duty to make a "reasonable inquiry" before they sign a motion that is filed with the Court. In the opposition to the motion for sanctions, defendants' attorney essentially admits that this inquiry was not made. For one, she mentions repeatedly that she is "local counsel" in this case, apparently to give a partial explanation as to why she did not have the information on her clients' contacts who are residents of New Jersey in Puerto Rico. We first note that defendants' had New Jersey counsel over two months before the motion to dismiss was filed, and that this New Jersey counsel signed the memorandum of law in support of the motion to dismiss. We also note that defendants' counsel chose the time to file the motion to dismiss; they were not compelled to do so at all, or at the time they did so. Defendants' counsel also alleges that plaintiffs failure to participate in discovery is to blame for the lack of information on the part of defense counsel. Again, we reiterate that defendants' counsel chose to file the motion to dismiss when they did; if discovery from plaintiff was considered essential, defendants' counsel should have pursued that discovery before filing the motion to dismiss. Ironic, too, is defendants' counsel's assertion that she could not get information from plaintiff while at the same time admitting that she experienced difficulty getting information from her own clients.
Defendants' counsel also allege that they cannot be held responsible for their client being unworthy of belief. See Oliveri v. Thompson, 803 F.2d 1265, 1277-78 (2nd Cir.1986). We are aware that imposing sanctions on an attorney because of a client's mendacity may cause an attorney to feel compelled to become an adversary to his client. Distasteful as the reality may be, we acknowledge that protecting the values inherent in the attorney-client relationship sometimes comes at the cost of the truth-seeking process of litigation. There are limits, however, on the price that will be paid:
Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "zealous advocacy" for his client's cause, we encourage this only as a means of achieving the court's ultimate goal, which is finding the truth. Deceptions, misrepresentations, or falsities can only frustrate that goal and will not be tolerated within our judicial system. See Wagner v. Williford, 804 F.2d 1012, 1017 (7th Cir.1986) (duty to client cannot override duty to respect system of justice); Steinle v. Warren, 765 F.2d 95, 101 (7th Cir.1985) (as "officer of the court ... [lawyer's] duty to the court is paramount, even to the interests of his client").
Polansky v. CNA Insurance Co., 852 F.2d 626, 632-33 (1st Cir.1988). In this instance, as discussed above, defendants' counsel went way over the "budget" Rule 11 is designed to set. Even conceding their right to rely completely on the truth of Kim's assertions, they went beyond what Kim's affidavit allowed them to argue in their motion and memorandum.[4] Moreover, the attorney's role in the preparation of a motion such as the one at issue here cannot be underestimated. The attorney is the one who must explain to the client the legal basis for such a motion, and what facts are necessary to support it. The attorney is the one who structures a client's affidavit in support of a motion.
Defendants' counsel rightly argues that the attorney's conduct must be judged as of the time the motion is signed. Fed.R. Civ.P. 11 Advisory Committee Note. Nothing *976 has changed since the filing of that motion to dismiss based on the defendants' lack of contacts, however, except plaintiff's well-documented exposition of those contacts. Here, then, we question whether, on an objective standard, see Muthig v. Brant Point Nantucket, Inc., 838 F.2d 600, 604-5 (1st Cir.1988), defendants' counsel did make a "reasonable inquiry" as to defendants' contacts in this forum, before filing the motion. Defendants' counsel cannot have it both waysthey cannot argue in their memorandum of law that "the facts are clear," see Memorandum at 2, and then, in the opposition to a motion for sanctions, argue that they did not have all the facts, for an assortment of reasons. "Rule 11 sanctions are mandatory when an attorney fails to make reasonable efforts to ensure that the pleading he signs is grounded in fact." Alvarado-Morales v. Digital Equipment Corp., 843 F.2d 613, 618 (1st Cir.1988).
Defendants' counsel makes other arguments in the opposition to the motion for sanctions. They allege that the "threshold issue" is that plaintiff initiated contact with defendant, and that the first meeting between the parties took place in New Jersey. These allegations are irrelevant; the appropriate focus on a motion to dismiss for lack of in personam jurisdiction is the defendant's contacts with the forum. That the plaintiff initiated contact, or that the first contact was not in the forum state, does not necessarily have significance in a finding of "minimum contacts." Defendants' counsel also allege that Kim never held himself out as a Kia representative, and that plaintiff suggested making Kim "vice-chairman" of plaintiff's company. Again, these allegations are irrelevant on a motion to dismiss for lack of minimum contacts. The motion in opposition to sanctions also alludes to the illegal nature of the contract between plaintiff and the defendants, but does not, understandably, explain how this allegation, even if true, caused the attorneys to file a motion to dismiss for lack of minimum contacts.
We therefore find that a sanction under Rule 11 is appropriate at this time. We have allowed the parties to brief the issue. This sanction, addressed solely to the motion to dismiss, and which has now been opposed by plaintiff, and decided by this Court, is however, also an attempt to redirect this litigation to its primary issues. We note that this action, still in its early stages, has been fraught with discovery battles and complaints of the attorneys on each side not notifying the other with filings. See, e.g., docket entries numbered 8A, 9A, 10, 11, 24, 33, 37. "Misconduct, once tolerated, will breed more misconduct and those who might seek relief against abuse will instead resort to it in self-defense." Schwarzer, Sanctions Under the New Federal Rule 11-A Closer Look, 104 F.R.D. 181, 205.
The sanction shall be plaintiff's attorney's expenses, including a reasonable attorney's fee, incurred in opposing the motion to dismiss. Plaintiff's attorney shall submit a verified fee petition to the Court for approval, detailing the time spent and other expenses incurred in opposing defendants' motion to dismiss. Defendants' counsel, Carolyn Boren and Stephen Dratch, shall each pay 25% of the approved amount, and defendant Kim shall pay the remaining 50%.
WHEREFORE, defendants' motion to dismiss or to transfer is hereby DENIED. Plaintiff's motion for Rule 11 sanctions is hereby GRANTED.
IT IS SO ORDERED.
NOTES
[1] The federal courts have held that Puerto Rico's long-arm statute extends a court's jurisdiction over a non-resident defendant to the extent allowed by the Constitution. See, e.g., Mangual v. General Battery Corp., 710 F.2d 15, 19 (1st Cir.1983); Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652, 668 (1st Cir.1980); Vencedor Manufacturing Co., Inc. v. Gougler Industries, Inc., 557 F.2d 886, 889 (1st Cir.1977). The Puerto Rico Supreme Court has cautioned, however, that a contact that is considered constitutionally sufficient to exercise jurisdiction a so-called "minimum contact" still must abide by Rule 4.7, in that it involve, e.g., transacting business or participating in tortious acts within Puerto Rico. Industrial Siderurgica, Inc. v. Thyssen Steel Caribbean Inc., 114 D.P.R. 548, 14 Official Translation 708, 721-22 n. 5 (1983).
[2] Moreover, Dalmau involved the scope of the tort liability of a manufacturer when its product, having been dropped into the "stream of commerce," causes an injury. See Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (a recent Supreme Court case involving personal jurisdiction over a non-resident manufacturer). Nothing of the sort is at issue here. Instead we have a defendant who frequently exercised "the privilege of conducting activities" here in Puerto Rico, International Shoe, 66 S.Ct. at 160, and who therefore fits well within the first prong of Rule 4.7 by "transacting business in Puerto Rico personally."
[3] Defendants' motion to dismiss was signed by local counsel, Carolyn Boren, while the memorandum of law was signed by New Jersey counsel, Stephen Dratch.
[4] We also acknowledge that we must be cautious not to chill an attorney's creativity in advancing legal and factual theories, or in arguing for the extension, modification, or reversal of existing law. Defendants' counsel makes no claim that the motion to dismiss was in any way directed at these exemplary ends, nor do we find it to be so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546416/ | 250 B.R. 386 (1999)
In re Amos VALDEZ, Peggy Valdez, Debtors.
No. 99-6254-HO.
United States District Court, D. Oregon.
November 15, 1999.
*387 *388 James Esterkin, Portland, OR, Julie Hoffinger, Michael Redden, P.C., Portland, OR, for appellant.
Jian H. Grant, U.S. Dept. of Justice, Washington, DC, for USA.
Susan T. Egnor, Department of Justice, Salem, OR, for Department of Revenue Oregon.
ORDER
HOGAN, Chief Judge.
Petitioning creditor, Michael Redden, appeals from the order dismissing an involuntary Chapter 7 petition he filed against debtors Amos Valdez and Peggy Valdez.
STANDARD
The bankruptcy court's findings of fact shall not be set aside unless clearly erroneous. Fed. R. Bankr.P. § 8013. Issues of law are reviewed de novo. U.S. v. Horowitz, 756 F.2d 1400, 1403 (9th Cir. 1985). However, dismissal for lack of good faith is reviewed for an abuse of discretion. In re Greatwood, 194 B.R. 637, 639 (9th Cir. BAP 1996), Affirmed, 120 F.3d 268 (9th Cir.1997). To the extent that a finding of bad faith requires a finding of fact, it is reviewed for clear error and to the extent that a finding of bad faith requires a legal determination, it is reviewed de novo. Id.
*389 FACTUAL BACKGROUND
On October 11, 1996, debtors filed a joint petition for relief under Chapter 13. The only significant creditors in the case were the Internal Revenue Service (IRS) and the Oregon Department of Revenue (ODR). The IRS and the ODR each filed proofs of claim in the amount of $510,933.25 and $106,466.00 respectively. The debtors objected to each claim.
Eric Haws initially represented the debtors in the Chapter 13 proceedings. Creditor Michael Redden was retained to act as counsel with respect to the tax dispute and eventually became the principal counsel for the debtors. Redden sought to invoke the bankruptcy court's discretionary power to redetermine the debtors' tax liability under 11 U.S.C. § 505(a)(1).
Before a hearing on the claim objections was conducted, the IRS and ODR moved to dismiss the proceeding in its entirety and for partial summary judgment as to the validity of claimed deductions in the debtor's tax returns filed in support of the claim objections. The grounds advanced in the motion to dismiss were that the debtors unlawfully concealed and disposed of assets of the estate. The bankruptcy court granted the motion to dismiss on the grounds of bad faith because it found that the debtors improperly failed to list all assets on the schedules and improperly expended estate assets. The court also found that the debtors principal motivation in filing the bankruptcy was not reorganization of their debt, but use of the bankruptcy court as a forum in which to litigate their disputes with the taxing agencies. The court concluded that bankruptcy court was established to deal with insolvency and the reorganization of debt, not to serve as an alternative forum for tax litigation. Therefore, the court found that good cause existed for dismissal. The court specifically stated that the debtors were precluded from converting the case to a different chapter. The debtors did not appeal the order of dismissal. Redden, soon thereafter, telephoned the debtors to resign from his position as special tax counsel.
The debtors had incurred attorney fees in the amount of $19,978.42 to Redden. Redden, only thirteen days after the Chapter 13 was dismissed, filed an involuntary petition under Chapter 7 against the debtors. The debtors sought Redden's assistance in preparing an answer to the involuntary petition. Redden apparently instructed the debtors that he was now an adverse party and that they should seek independent counsel. Nonetheless, Redden agreed to have his associate prepare an answer and schedules for the debtors while still warning them that he was not acting as their counsel.[1] Two sets of assets were omitted from the schedules-a judgement and debtors' interest in certain trusts. The debtors admitted all significant factual allegations in Redden's petition.
On July 22, 1998, the IRS filed a proof of claim in the amount of $476,435.94 and on August 21, 1998, the ODR filed a proof of claim in the amount of $151,270.11. An order for relief was entered on August 14, 1998. The debtors and petitioning creditor filed objections to the IRS and the ODR claims. The debtors objected contending that no tax was due at all. Petitioning creditor objected contending that a reduction should be made to account for incorrect disallowance of deductions. He asked that the IRS's claim be allowed as a *390 priority claim of $2,463.06 and a general unsecured claim of $492.03 and asked that ODR's claim be allowed as priority claim for $1,313.00 and a general unsecured claim for $5,064.77.
The IRS and the ODR moved to dismiss the petition. The court dismissed the Chapter 7 on two principal grounds: first, Redden failed to meet the standard for relief under section 303(h) of the bankruptcy code; and second, Redden's and debtors' collusive acts constituted grounds for dismissal under section 707 of the code. The court also noted its prior ruling that there are other remedies in other courts for debtors and Redden. The court further noted it is not the appropriate forum for tax litigation purely because the debtors failed to avail themselves of a more appropriate forum in a timely manner. Petitioning creditor Redden appeals the decision to dismiss the Chapter 7 proceedings.
DISCUSSION
Redden asserts that he filed the involuntary petition to protect his claim by preventing the tax creditors from obtaining a disproportionate share of the available assets by collecting the "incorrect" taxes from debtors. See General Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1502 (11th Cir.1997) (involuntary petition may be used to protect a creditor against other creditors' from receiving disproportionate share of debtor's assets). Redden further asserts that the bankruptcy court erred: in finding that the debtor and petitioning creditor acted in concert and in bad faith; in finding that the involuntary petition was an attempt to circumvent the bankruptcy court's previous order; by failing to deny the motion to dismiss as untimely; in applying the single creditor rule to dismiss the case; in finding that the tax debts were subject to a bona fide dispute; and in finding that the debtors were generally paying their debts as they came due.
The bankruptcy court properly concluded that the petition was prosecuted in bad faith. The court also properly concluded that relief was not available where the debtors were generally paying their undisputed debts as they came due. Thus, the bankruptcy court's decision is affirmed.
A. Bad Faith
Good faith is presumed on the part of the party or parties filing an involuntary petition and the burden of proving bad faith rests on the objecting party. In re Crown Sportswear, Inc., 575 F.2d 991, 993-94 (1st Cir.1978); In re Alta Title Co., 55 B.R. 133 (Bankr.D.Utah 1985); In re Rite-Cap, Inc., 1 B.R. 740, 742 (Bankr. D.R.I.1979). This burden is a significant one, as the objecting party must prove bad faith by at least a preponderance of the evidence. See In re Alta Title Co., 55 B.R. 133, 13 B.C.D. at 1039-40.
The Bankruptcy court found that cause for dismissal existed under 11 U.S.C. § 707 because the involuntary petition and the debtors' acquiescence were intended to establish relief under the code for improper purposes, i.e., to circumvent the court's previous order in the prior bankruptcy. The court found that petition and answer were collusive in advancing this improper purpose.
1. Collusion
To dismiss an involuntary bankruptcy as collusive there must appear to be concerted action between the debtors and the petitioning creditor and these parties must fraudulently invoke the jurisdiction of the bankruptcy court. In re Kingston Square Assoc's, 214 B.R. 713, 725 (Bankr. S.D.N.Y.1997). In other words, the two parties must act for a wrongful purpose. Id.
In this case, although it does not appear that the parties entered into a concerted action to file the petition, the evidence does support a finding that the parties colluded to circumvent the previous *391 order dismissing the. Chapter 13 bankruptcy proceeding. Redden filed his petition almost immediately after the Chapter 13 was dismissed. The debtors contacted him to prepare an answer and schedules. The parties concealed Redden's role in preparing the debtors' response. Redden or Redden's associate prepared responses admitting the material allegation that the debtors were not paying debts as they generally came due which debtor Peggy Alvarez later admitted was not true. As discussed below, the debtors were generally paying undisputed debts as they came due. Redden did not attempt to work out a payment schedule nor did he try to obtain a judgment against the debtors. Redden asserts that it would have been futile to seek a judgment as the tax liens were superior to his claim and would have eaten up the debtors' ability to pay. However, whether a payment plan on the tax assessments could be worked out does not appear to have been investigated. Thus, because the debtors were generally paying their undisputed debts as they came due, the court did not have the authority to enter an order of relief.
In In re Winn, 49 B.R. 237, 239-40 (Bankr.M.D.Fla.1985), the court stated in dismissing an involuntary petition due to bad faith:
While this Court is satisfied that there was no actual collusion between the Debtor and the petitioning creditors, this record leaves no doubt that it was the last desperate effort of the Debtor to get back under the protection of the Bankruptcy Court for the primary, if not sole, purpose to frustrate [creditor] again in its efforts to collect its judgment. While Mr. Earle consented to be a petitioning creditor, he certainly was not the author of the petition and only agreed to be one of the petitioning creditors because the realization that unless there is a bankruptcy case, he may never be able to recover some return on his claim.... [I]t is evident that the entire underlying scheme of this involuntary Chapter 11 was merely a second attempt by the Debtor to accomplish indirectly what he was not able to accomplish directly with his original voluntary petition and nothing more than an attempt to invoke the jurisdiction of this Court for the sole purpose to avoid the consequences of the judgment imposed by the District Court in Mississippi and to avoid the consequences of the previous Order of Dismissal entered by this Court on September 5, 1984 in the Voluntary Chapter 11 case.
The collusive actions of the debtor and petitioning creditor in filing the response to the petition, was a bad faith attempt to avoid the previous order dismissing the voluntary petition.
Redden, however, argues that the evidence does not support a finding that the parties were attempting to circumvent the court's previous order. However, Redden and debtors' sought to litigate the propriety of the tax assessments in bankruptcy court so as to relieve a significant part of that debt, paving the way for him to collect his fees without any encumbrances from the IRS and the ODR in his way. The previous order held that the bankruptcy court was not the appropriate forum for such a dispute and such order was not appealed. Further, as alluded to above, the court did not have the authority to enter an order of relief because the debtors were generally paying their undisputed debts as they came due.
B. Paying Debts as They Come Due & Bona Fide Dispute
11 U.S.C. § 303(h) provides:
If the petition is not timely controverted, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed. Otherwise, after trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if
*392 (1) the debtor is generally not paying such debtor's debts as such debts become due unless such debts are the subject of a bona fide dispute; or
(2) within 120 days before the date of the filing of the petition, a custodian, other than a trustee, receiver, or agent appointed or authorized to take charge of less than substantially all of the property of the debtor for the purpose of enforcing a lien against such property, was appointed or took possession.
The Judiciary Committee notes clarify section h:
Subsection (h) provides the standard for an order for relief on an involuntary petition. If the petition is not timely controverted (the Rules of Bankruptcy Procedure will fix time limits), the court orders relief after a trial, only if the debtor is generally unable to pay its debts as they mature, or if the debtor has failed to pay a major portion of his debts as they become due, or if a custodian was appointed during the 90-day period preceding the filing of the petition. The first two tests are variations of the equity insolvency test.
11 U.S.C. § 303, Notes of Committee on the Judiciary, Senate Report No. 95-989.
Petitioning creditor has the burden to prove that debtors are not generally paying their debts as they come due and that there is no bona fide dispute as to the claims in issue. See In re Rubin, 769 F.2d 611, 615 (9th Cir.1985). Whether the debtors are generally paying their debts as they come due is analyzed under a totality of the circumstances approach. A finding that the debtors are generally not paying their debts requires a more general showing of the debtors' financial condition and debt structure than merely establishing the existence of a few unpaid debts. See In re Dill, 731 F.2d 629, 632 (9th Cir.1984). The legislative history of section 303(h) points to insistence by Congress on generality of default. In re B.D. Discount International Corp., 701 F.2d 1071, 1076 (2nd Cir.1983). The petition date is the measuring date for whether the debtors are generally paying their debts as they come due. In the Matter of Bishop, Baldwin, Rewald, Dillingham & Wong, Inc., 779 F.2d 471, 475 (9th Cir.1985).
In this case, Redden or Redden's associate prepared the debtors' Chapter 7 schedules. The Schedules show monthly expenditures of $7,370 and monthly income of $9,320. Appellant's Excerpt of Record at Tab 3. Peggy Valdez admitted that unless she and her husband had a dispute about a bill, they generally paid their bills when they came due. Excerpt of Record of Appellee ODR, Tab A, p. 55.
Petitioning creditor states that in addition to not paying their tax debt, debtors had not payed Eric Haws, and himself. At the time of the filing of the petition, debtors noted that Haws was a creditor, but that at the time nothing was due. Appellant's Excerpt of Record at Tab 3. Redden does not provide evidence to show that demand for payment was made by Haws and that he was not being paid when due. Further, the previous bankruptcy had been dismissed only thirteen days prior and Redden did not even attempt to work out a payment schedule with the debtors. Thus, it appears that, with the exception of the tax debt, the only debt not being paid when due was the debt to the petitioning creditor who made no attempt to collect the debt through non-bankruptcy means. Viewing the total number of debts and the proportion of debts being paid as of the date of the petition, the debtors were generally paying most of their undisputed debts.
Petitioning creditor argues that most of the debtors' income was produced by property subject to the tax liens and thus after the IRS seized the property the debtors would not have the ability to pay him. However, as noted, as of the date of the petition, the debtors were generally paying their undisputed debts. Petitioning creditor also argues that the tax debt was not subject to a dispute (despite the fact that *393 his position in bankruptcy is that the tax levies were grossly inflated).
The debtors took the position that the entire tax claim was disputed. Redden asserts that he at least found no dispute as to a portion of the tax claim. What is required is that a substantial portion of the debt be disputed for it to fail to qualify to be subject to a dispute for purposes of section 303(h). See In re Owens, 151 B.R. 865, 869 and n. 1 (Bankr.E.D.Tenn.1992). Thus, even if a small portion of the tax claim is not subject to dispute, as Redden asserts, the majority of the claim is still disputed and thus sufficient to create a debt subject to a dispute within the meaning of section 303(h). Redden also claims that, at any rate, the entire debt is not subject to a bona fide dispute.
The purpose of the not subject to bona fide dispute requirement is to disqualify a creditor whenever there is any legitimate basis for the debtor not paying the debt, whether that basis is legal or factual so that the creditor may not use the threat of involuntary proceedings as a club against debtors who would rather pay up than suffer the stigma of involuntary bankruptcy proceedings. In re Lough, 57 B.R. 993, 997-98 (Bankr.E.D.Mich.1986). Redden argues that outside of Bankruptcy court, there is no basis, factual or legal, for the debtors failure to pay the taxing agencies.[2]
The liens were properly assessed and outside of bankruptcy (where the court has discretion to redetermine the tax debts under 11 U.S.C. § 505), the debtors could not challenge the debts without first paying the amount of the assessments and then filing for a refund. If the taxing agencies denied the refund the debtors would then have recourse to challenge the levies. Redden argues that the debtors could not possibly seek this alternative as they did not have enough assets to satisfy the tax debt and could thus never seek a refund. Even if this inability is enough to render the debt not subject to a bona fide dispute,[3] it is undisputed that debtors raised a legitimate dispute to the tax claims in the bankruptcy proceeding under 11 U.S.C. § 505(a)(1). The Bankruptcy court did not err in finding that the tax debts were subject to a bona fide dispute.[4]
C. Timeliness
Redden next argues that the bankruptcy court should have denied the motion to dismiss as untimely. However, until the debtor and petitioning creditor made their objections to the IRS and the ODR claims, these agencies had no reason to believe that the debtors and Redden were going to seek to have the court do what it had already determined it would not do in the previous proceeding. Further, there is nothing in the record to show that the taxing authorities had notice of the commencement of the case. Once objections to the claims were filed the agencies timely moved to dismiss. At any rate, the timeliness argument can only be made on equitable grounds and there is authority that suggests that before the government can be estopped from seeking the dismissal it must commit some affirmative act of misconduct. See, e.g., Watkins v. *394 United States Army, 875 F.2d 699, 707 (9th Cir.1989); State ex rel. Columbia County School Dist. v. Columbia County, 66 Or.App. 237, 246, 674 P.2d 608 (1983). Redden asserts no misconduct on the part of either the state or the federal government.
CONCLUSION
The bankruptcy court properly dismissed the case because the debtors were generally paying their undisputed debts as they came due and thus there was no basis for entry of relief under 11 U.S.C. § 303(h). Further, the court also properly dismissed the involuntary petition under 11 U.S.C. § 707 because of the bad faith collusion between the debtors and the petitioning creditor to avoid the previous order of the Chapter 13 court. The bankruptcy court's order dismissing the involuntary petition is affirmed.
NOTES
[1] It appears that Redden actually prepared the answers for the debtors in the involuntary proceeding. See Excerpt of Record of Appellee, ODR (# 82) at Tab D (Redden writes: "At your request, I have prepared Answers for each of you with respect to the above referenced bankruptcy cases. These Answers were prepared based on my conversations with you, in which you agreed that all of the items stated in the Involuntary Petition were true, except for the statement that Eric Haws is currently your attorney.)" The debtors did not list Redden's associate as the preparer of schedules. Peggy Valdez told the trustee that they had not received any advice in the bankruptcy. Id. at Tab A, p. 55-56.
[2] Of course, this argument demonstrates that the IRS and the ODR would not use involuntary bankruptcy as a club to get the debtors to pay the assessments.
[3] Redden cites In re Ledgemere Land Corp., 135 B.R. 193, 196 (Bankr.D.Mass.1991) for the proposition that the primary purpose of 11 U.S.C. § 505 is to prevent creditors from being prejudiced by a debtor's failure to contest assessed taxes. That case dealt with whether a bankruptcy court has jurisdiction to adjudicate refund claims on property taxes that have not been timely requested. The Judge in the Ledgemere Land Corp. case later determined that courts are without jurisdiction to adjudicate a claim for a refund unless it has been timely filed with the appropriate agency.
[4] But see In re Dill, 731 F.2d at 632 (ability to execute on a judgment despite pending appeal favored a finding, on the balance of equities, that the debt should be included in the totality test for determining whether the debtor is paying debts generally as they become due). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584421/ | 717 F.Supp. 1528 (1989)
FLORIDA FUELS, INC., Plaintiff,
v.
BELCHER OIL COMPANY, Defendant.
No. 87-1025-CIV.
United States District Court, S.D. Florida.
June 29, 1989.
*1529 John Mariani, Cadwalader, Wickersham & Taft, Palm Beach, Fla., for plaintiff.
Thomas McDade & William Pakalka, Fulbright & Jaworski, Houston, Tex., Richard Williams, Tew Jorden Schulte & Beasley, Miami, Fla., for defendant.
MEMORANDUM ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
RYSKAMP, District Judge.
THIS CAUSE is before the court upon defendant's motion for partial summary judgment filed March 21, 1989. Defendant contends that, as a matter of law, plaintiff cannot prevail on its claim that it was denied access to an essential facility in violation of section 2 of the Sherman Act. 15 U.S.C. § 2.
I. Undisputed Facts
This suit arises out of Florida Fuels' attempt to compete in the market for providing heavy marine fuel oil to South Florida's cruise ship and cargo fleets. Historically, South Florida was not a major shipping port. But, in the mid-seventies, the cruise ship industry began to expand, as cruise line operators took advantage of South Florida's proximity to Caribbean ports of call. Today, the Port of Miami is the largest cruise ship port in the world and Port Everglades, in Fort Lauderdale, is close behind. These two ports and Port Canaveral, near Cocoa Beach, account for nearly two-thirds of all U.S. cruise ship passenger boardings. The cargo shipping sector has also grown, due to extensive trade with the nations of the Caribbean and South America.
*1530 Because of operational constraints and a lack of economical facilities elsewhere in the Caribbean, these ships obtain nearly all of their heavy marine fuel oil (also referred to as "bunkers") at their home ports in South Florida. Bunkers are available in different grades and types, but all consist primarily of a blend of No. 6 oil, or dirty oil, and No. 2 oil, a lighter, better refined and more expensive oil. The quality of the base No. 6 oil, the blending, and the delivery temperature all affect the ultimate quality of the product and the functioning of the ship's engines. Ship owners purchase their bunkers in bulk because of the large quantities of fuel consumed. The cruise ships' schedules require a supplier to fuel many ships within a limited period of time. Late deliveries will delay the ships' departure and ultimately cost the cruise line money.
A. Belcher Oil Co.
Defendant Belcher Oil Co. ("Belcher") is based in Miami, marketing a wide range of petroleum products. In Miami, Belcher has a storage tank facility consisting of 15 tanks, located on Fisher Island, near the Port of Miami. Generally, Belcher blends its fuel on the island and then barges the fuel across the channel to service the ships while at berth. Land around the Port is extremely limited and the Port Director has indicated there are no plans for allowing any storage tanks on in the Port property itself. In Fort Lauderdale, Belcher has 30 tanks on 46.5 acres of land in Port Everglades and a system of pipelines servicing all the berths. The fuel is blended and then piped directly to the ships in their berths. Few deliveries are made by barge in Port Everglades. The parties have not presented evidence regarding Belcher's facilities in Port Canaveral, but it appears there are storage tanks there also. The major oil companies have pulled out of the South Florida marine fuel market, leaving Belcher with a monopoly on the supply of bunkers in Port Everglades and the Port of Miami from the mid-seventies until late 1984.
B. Florida Fuels
Plaintiff Florida Fuels, Inc. is also headquartered in Miami and provides bunkers to cruise ships in South Florida. Disatisfied by Belcher's high prices and lackluster service, sectors of the cruise ship industry encouraged the principals of Bahamas Fuels to form a new company, Florida Fuels, to provide competition by selling bunkers. The original plan was to purchase heavy oil and No. 2 oil from a Chevron refinery in Freeport, ship it to South Florida, and fuel the cruise liners directly from special barges, blending the fuel in-line as it was pumped into the vessel. Florida Fuels entered into "requirements" contracts with a number of cruise lines to provide bunkers for certain ships for a year at a pricing formula based on market rates. Florida Fuels hoped to finesse the need for landbased storage with its tanker-barges, passing on savings from price changes quicker and providing a better quality product. Florida Fuels made substantial inroads in terms of total bunker sales made in each port, as shown below, but the vast majority of sales have been under contract.
Port of Miami Port Everglades Port Canaveral
Belcher FF Belcher FF Belcher FF
1984 99% 1% 100% 0% 100% 0%
1985 63% 37% 88% 12% 100% 0%
1986 55% 45% 85% 15% 95% 5%
1987 64% 36% 96% 4% 97% 3%
There is limited space available in the Port of Miami area and the port director has indicated there are no plans to allow fuel storage tanks on the Port property, but plaintiff has never formally proposed to lease or purchase land from the port or to lease space from Belcher. Florida Fuels did suggest the possibility of leasing tank space, but Belcher denied the request because of a lack of capacity. No financial *1531 terms were proposed or discussed. In Port Everglades, a number of oil companies own fuel storage tanks near the Belcher property and there is land available for constructing additional tanks, but Belcher controls the pipeline leading to the berths. Florida Fuels never formally proposed to lease tank space in Port Everglades from Belcher or any oil company and did not request access to Belcher's pipelines. Most of the tankage in Port Everglades is dedicated to clean oil, unsuitable for the storage of dirty oil. Florida Fuels was offered an opportunity by Port Everglades to participate in an expansion of the pipeline system to newly constructed berths, but declined, claiming it had no access to storage tanks.
During the course of this litigation, Florida Fuels prepared a study which determined it was not economically feasible to construct its own tanks, terminal, and pipelines in Port Everglades. The study estimated that construction of the necessary facilities would require a capital investment of 10-11 million dollars and assumed that Florida Fuels would not invest unless it would receive an internal rate of return of at least 15%. Given recent bunker price levels and current bunker demand in South Florida of 400,000 barrels per month with annual 5% increases, the study determined that to realize its desired return of 15%, Florida Fuels would have to sell its bunkers in South Florida at a price of $2.64/bbl to $3.53/bbl above the Platt's U.S. Gulf low.
Florida Fuels contends that Belcher's storage tanks on Fisher Island and its tanks and pipeline system at Port Everglades are essential to competing in the relevant market. Belcher has conceded, for purposes of this motion, that the relevant market is the South Florida bunker market. Since Florida Fuels is apparently not seeking access to Belcher's Port Canaveral facilities and has presented no evidence regarding these facilities, Belcher's Port Canaveral property will not be considered in this analysis.
II. Summary judgment standard
Defendant has moved for partial summary judgment on the essential facilities issue, contending there are no undisputed material facts. The court must grant judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Defendant will be entitled to summary judgment unless plaintiff has made a showing sufficient to establish the existence of all the elements necessary to its monopoly claim based on the essential facilities doctrine. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof concerning a necessary element of the nonmoving party's case renders all other facts immaterial. Id., 477 U.S. at 323, 106 S.Ct. at 2552-53.
Further, the Supreme Court's recent pronouncements make clear that, in an antitrust claim, a plaintiff must present evidence that tends to exclude the possibility that defendant's conduct was as consistent with permissible competition as with illegal conduct. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Summary judgment will be granted if, considering the factual context, the antitrust claim is implausible or makes no economic sense. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). These standards are not limited to antitrust conspiracy actions. McGahee v. Northern Propane Gas Co., 858 F.2d 1487 (11th Cir. 1988). If necessary, defendant must present a valid business justification for denying access to the facility, as an affirmative defense.[*] Defendant has directed the *1532 court to numerous cases in which various courts have granted summary judgment for failure to show that plaintiff was denied access to an essential facility.
III. Legal analysis
A. The Sherman Act
The Sherman Act prohibits anticompetitive behavior. 15 U.S.C. § 1 et seq. Section 2 makes attempts to monopolize illegal. Although the mere existence of monopoly power does not imply a violation of the Act, the use of monopoly power, no matter how lawfully acquired, to foreclose competition, to generate a competitive advantage, or to destroy a competitor, is unlawful. United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). There is no general duty to deal, and in the absence of any purpose to create or maintain a monopoly, a corporation may freely exercise its discretion to conduct business with whomever it wants. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 600-01, 105 S.Ct. 2847, 2856-57, 86 L.Ed.2d 467 (1985).
B. The essential facilities doctrine
But a refusal to deal where a competitor is denied reasonable access to an essential facility is anti-competitive behavior sufficient to support a section 2 claim. MCI Communications Corp. v. American Telephone and Telegraph Co., 708 F.2d 1081 (7th Cir.1983), cert. denied 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983). The essential facilities doctrine or "bottleneck" theory derives from the Supreme Court's decision in United States v. Terminal Railroad, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810 (1912). In that case, the court determined that competitors should be allowed access to a railroad terminal in St. Louis because it was essential to their ability to compete. Id., 224 U.S. at 386-90, 32 S.Ct. at 507-08. The terminal was the only feasible station for traffic from the west and was controlled by a group of railroads who refused to allow access to others. This doctrine has been applied in a variety of contexts, requiring access to a football stadium, to newspaper advertising, and to a market building. For a discussion of these and other decisions imposing a duty to deal, see the opinion of Judge Marcus in Consolidated Gas Co. of Fla. v. City Gas Co. of Fla., 665 F.Supp. 1493, 1533 (S.D.Fla.1987). The essential facilities doctrine was formalized in MCI, 708 F.2d at 1132-33. The four elements necessary to establish liability are:
(1) control of the essential facility by a monopolist;
(2) a competitor's inability, practically or reasonably, to duplicate the essential facility;
(3) the denial of the use of the facility to a competitor; and
(4) the feasibility of providing the facility.
MCI, 708 F.2d at 1132-33. Of course, the essential facilities doctrine and other cases holding monopolists liable for refusing to deal only qualify the general rule that there is no duty to help competitors. Olympia Equipment Leasing v. Western Union Telegraph, 797 F.2d 370, 376 (7th Cir.1986).
1. Control of facility by monopolist
Under this doctrine, a monopolist may not foreclose use of the scarce facility, but must share on fair terms. Monopoly power may be defined as the power to control prices or to exclude competition. United States v. E.I. dupont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). In determining whether an entity is a monopolist, a court may consider various factors including control over price, the ability to exclude competition, a market share of greater than 70-80%, and high barriers to market entry. Consolidated Gas, 665 F.Supp. at 1519-21. Courts have first defined the relevant geographic and product market and then computed market share from this data. Id. at 1519. Although monopoly power is an issue of fact, Olympia Equipment, 797 F.2d *1533 at 374, in this case, Florida Fuels was able to enter the market and capture a substantial share within a short period of time, and the relevant market and market shares are not in dispute. While Belcher clearly was a monopolist prior to Florida Fuels appearance, it is less clear that Belcher has maintained sufficient market share or control over price to be considered a monopolist. But the court will consider the allegations in the light most favorable to the plaintiff and assume that Belcher is, in fact, a monopolist. There is no contention that Belcher obtained its monopolistic power or its facilities in any wrongful manner.
2. Practicality of duplicating the facility
An essential facility need not be indispensible; but it must be economically unfeasible to recreate and must present a severe handicap on market entry. See Directory Sales Management Corp. v. Ohio Tel. Co., 833 F.2d 606 (6th Cir.1987); Hecht v. Pro-Football, Inc., 570 F.2d 982, 992 (D.C.Cir.1977). It is insufficient for plaintiff to show that access to the facility is merely "more economical" than other alternatives. Florida Cities v. Florida Power & Light, 525 F.Supp. 1000, 1007 (S.D.Fla. 1981).
An inquiry into the practicality of duplicating the facility should consider economic, regulatory, and other concerns. Although expensive in absolute terms, the cost of duplication may be reasonable in light of the transactions that would be facilitated and the possible profits to be gained. Fishman v. Estate of Wirtz, 807 F.2d 520, 540 (7th Cir.1986). The court's ruling in MCI, that AT & T's private long distance circuits were not an essential facility, contemplated that plaintiff should be willing to expend hundreds of millions of dollars to compete with AT & T to duplicate its long distance telephone service. MCI, 708 F.2d at 1148. Regulatory requirements may result in costly delays and, in some situations, preclude duplication altogether. Consolidated Gas, 665 F.Supp. at 1534; United States v. Standard Oil Co. of California, 362 F.Supp. 1331, 1341 (N.D.Cal.1972). Realistically, plaintiff may not be able to create a facility that possesses the same benefits. See e.g. Terminal Railroad, 224 U.S. at 383, 405, 32 S.Ct. at 507, 513-14 (physical topography prevented another terminal); Gamco, Inc. v. Providence Fruit & Produce Building, Inc., 194 F.2d 484, 486 (1st Cir.), cert. denied, 344 U.S. 817, 73 S.Ct. 11, 97 L.Ed. 636 (1952) (defendant's facilities dominated local trade in fruit and vegetables); Fishman, 807 F.2d at 540 (preferences of the National Basketball Association relevant to whether Chicago Stadium is an essential facility for an NBA franchise).
Plaintiff's evidence in support of this element is insufficient. In opposition to the motion for partial summary judgment, it has submitted an abundance of excerpts from deposition testimony and its experts' reports, but none of the evidence shows that it is unfeasible to duplicate Belcher's facilities.
The sum of the evidence regarding the Port of Miami only shows that plaintiff believes there are no adequate sites for storage facilities in Miami. Only two potential sites were surveyed, Fisher Island and an old tank farm far up the Miami River. For various legitimate reasons, neither is adequate or practical. The only evidence in support of plaintiff's claim that there are no available sites in or near the Port is bald statements by Douglas Lathrop, Florida Fuels' president. There is no further documentary evidence nor any showing why other sites are unsuitable. There is no showing that plaintiff actually proposed leasing space from the Port or applied to the Port to revise its long range plan. In its inquiries to Belcher, plaintiff never specified the amount of storage it needed, never proposed financial terms, and did not discuss other management considerations. Belcher's actions clearly indicate it did not intend to share its facilities and plaintiff has no duty to make specific proposals, but a denial of a specific proposal would have been helpful to a factfinder in determining whether it was unfeasible to recreate Belcher's facilities. The report of plaintiff's expert, Brent Dibner incorrectly claims that environmental regulations preclude construction of storage facilities and a tanker terminal. The Florida Aquatic *1534 Preserve Act does designate Biscayne Bay as an aquatic preserve, but dredging and the construction of docks and piers is permitted, if certain guidelines are followed. See Fla. Stat. § 258.397(3)(b)3. This report is also replete with bald statements that no adequate property is available, unsubstantiated by documentary evidence or otherwise.
Much of the same class of evidence is offered to support the claim that plaintiff should be allowed access to plaintiff's Port Everglades' facilities. Although most of the oil tanks owned by other oil companies with facilities in Port Everglades are used for clean storage and may not easily convert to dirty oil storage, there were no specific proposals made to any of the owners. There is no evidence of a study to compare the cost of construction of new facilities with the cost to convert existing tankage. Plaintiff declined an opportunity to participate in a plan to extend pipelines to newly constructed berths. Its experts' reports establish an obvious point, that construction of storage tanks and pipelines is expensive. But, as both parties note, the South Florida market is burgeoning and potentially lucrative, among the top ten bunker fuel markets in the U.S. The potential economic gains to be reaped from an investment are substantial.
Further, Florida Fuels has failed to make a showing that its existing facilities, the water-based barge and tanker system, does not reasonable duplicate Belcher's land-based tank, pipeline, and barge system. Florida Fuels has captured a substantial portion of the South Florida market in an short period of time, with a minimal capital investment. While plaintiff has listed the numerous disadvantages of a water-based bunker supply system, and a jury could well find that a land-based storage facility is inherently more efficient, there is no evidence that tends to show that plaintiff cannot compete with its system of barges and tankers. Plaintiff's original business proposals stated that, with its supply contract from Chevron in Freeport, it could supply a better quality product. A water-based system's advantages include mobility, expandability, flexibility, minimal maintenance costs, and minimal capital investment. Plaintiff has come forth with no evidence tending to show that its purported inability to maintain an adequate market share is only a result of its inability to duplicate Belcher's facilities, and not a result of its failure to provide quality service or because of Belcher's alleged predatory pricing practices. A showing that Belcher's facilities are merely "more economical" than Florida Fuels' barge system is insufficient to establish liability under the essential facilities doctrine. Florida Cities, 525 F.Supp. at 1007.
There is evidence that Florida Fuels has been offered access to Florida Power & Light ("FP & L") tanks in West Palm Beach. Utilizing these tanks would allow Florida Fuels to buy in bulk, to store product and mix at its leisure, and to minimize fluctuations in market prices. While this facility does not totally eliminate the higher transportation costs that Florida Fuels must bear, plaintiff has not presented specific evidence that this would not be a reasonable duplication of Belcher's facilities.
There is insufficient evidence from which a jury could conclude that economical considerations, regulatory schemes, environmental regulations, or other concerns preclude Florida Fuels from reasonably or practically duplicating Belcher's facilities. Considering the undisputed factual context of the bunker fuel market in South Florida and the various positives and negatives associated with either a land-based storage and delivery system or a water-based system, plaintiff's claims are implausible and fail to meet the Matsushita standard for a plaintiff's burden when faced with a motion for summary judgment. Basically, the pleadings, depositions, documentary evidence, and affidavits do not establish a plausible claim that plaintiff is practically precluded from reasonably duplicating Belcher's facilities.
Plaintiff's essential facility theory requires Florida Fuels to present competent evidence that it cannot duplicate Belcher's tanks and pipelines. Plaintiff has been unable to clear this initial hurdle. A failure of proof on any element of plaintiff's case compels entry of summary judgment in favor of defendant, Celotex, 477 U.S. at *1535 322, 106 S.Ct. at 2552. Because plaintiff cannot prevail as a matter of law, any further disputed facts are immaterial. But, in light of the complexity of the claim and for purposes of analysis, the court will review the other elements of plaintiff's essential facilities theory of antitrust liability.
3. Denial of use
Plaintiff never specifically presented any proposed terms for rental payments or access to the facilities in question, primarily because defendant dismissed plaintiff's inquiries out of hand. This refusal to deal constitutes a denial of use, but evidence of a specific proposal would assist the factfinder in determining whether the denial was unreasonable or finding that defendant possessed an essential facility.
4. Feasibility of sharing
Plaintiff has presented adequate evidence to establish a factual question as to whether it is feasible to share Belcher's facilities. Its evidence regarding the number times Belcher turns over the capacity of its tanks tends to show that Belcher is under-utilizing its facilities. Evidence that Belcher and others share facilities in other markets and actually mix product indicates such an arrangement may be feasible in South Florida. However, plaintiff's evidence regarding a fair price for leasing space and its evidence that Belcher's docking facilities are adequate to support more intensive use of its tanks is less persuasive. It is sufficient to present a question of fact and would prevent the granting of summary judgment had plaintiff come forward with sufficient evidence on the practicality of duplication element.
5. Whether valid reason for refusing to deal
Defendant asserts that it has a valid business justification for refusing to deal. This claim is an affirmative defense, related to the feasibility of sharing the essential facility, but analyzed separately. Aspen Skiing, 472 U.S. at 605, 608, 105 S.Ct. at 2858-59, 2860; MCI, 708 F.2d at 1081; United States v. Multi-List, Inc., 629 F.2d 1351, 1371 (5th Cir.1980); A monopolist's self-serving, ex post facto business justifications must be examined with care. Byars v. Bluff City News Co., Inc., 609 F.2d 843, 858 (6th Cir.1979). Of course, when faced with a motion for summary judgment in an antitrust claim, a plaintiff must present evidence that tends, when interpreted in a light most favorable to plaintiff, to exclude the possibility that defendant's conduct was as consistent with permissible competition as with illegal conduct. McGahee, 858 F.2d at 1493. Belcher contends it does not have sufficient space at Miami in its tanks or at its docks to share its facilities. On its face, this appears to be a legitimate justification, but plaintiff has presented evidence that Belcher offered an extra tank to its current lessor, FP & L, suggesting that Belcher is illegally precluding a competitor from access to its facilities in favor of a non-competitor. While a monopolist has no duty to cooperate with its business rivals, it is not an unqualified right, Aspen Skiing, 472 U.S. at 600, 105 S.Ct. at 2856, and the fact-finder must determine whether the business justification is valid, or rather, that the monopolist is illegally attempting to perpetuate its hold on the market. On this issue, plaintiff has also presented as issue of fact, although it is immaterial because of the court's conclusion in section 2, above.
C. An overview of judicial approaches to the duty to deal
This is a case of pre-existing vertical integration by a monopolist. Prior to Florida Fuels' arrival, Belcher supplied all the marine fuel oil in the relevant market and controlled all storage and delivery systems. This is unlike any of the situations in which the Supreme Court has imposed a duty to deal. The Court's approach to this question has been analyzed in different contexts,[**] but, in cases imposing a duty to deal, the Court has not required an unregulated *1536 monopolist, acting independently, to share its facility with a competitor with which it has had no prior history of dealing. Both Terminal Railroad, 224 U.S. 383, 32 S.Ct. 507 (consortium of railroads must allow access to terminal), and Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) (power company must allow municipalities access to transmission lines), involved highly regulated industries. The Court found, in Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1944), that the concerted effort of AP members to limit membership and prevent competitors from gaining access to the news was a violation of the Sherman Act. Florida Fuels is not precluded from purchasing heavy marine oil from Belcher, unlike Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951), where the Court held that a newspaper may not refuse to sell advertising to persons patronizing a small competing radio station. Of course, the parties in Aspen Skiing, 472 U.S. 585, 105 S.Ct. 2847, had engaged in cooperative ventures and joint marketing for many years. In the instant case, the parties have no history of dealing, thereby complicating the court's ability to enforce a duty to deal if one did exist. Plaintiff's request for access to the equivalent of Belcher's plant is, under these circumstances, unprecedented.
While the Eleventh Circuit has not applied the essential facilities doctrine to require access, those circuit courts which have forced a monopolist to share, have done so under dissimilar facts. In Gamco, often cited as an early application of the doctrine, the court found a Sherman Act violation where there was a concerted refusal to allow plaintiff to sell his goods at a community market. Id., 194 F.2d at 489. The few circuit courts explicitly finding that the essential facility doctrine could apply involved truly unique facilities. See Hecht, 570 F.2d at 992 (jury could be permitted to find that RFK stadium was an essential facility); MCI, 708 F.2d at 1133, 1147 (sufficient evidence for jury to find that portions of AT & T's nationwide telephone system were essential facilities); Fishman, 807 F.2d at 539-40 (district court did not err by determining that Chicago Stadium was an essential facility). Another line of appellate decisions clearly establish that hospitals and their specialized treatment centers are not essential facilities for doctors. See e.g. McKenzie v. Mercy Hospital of Independence, Kan., 854 F.2d 365 (10th Cir.1988).
In economic terms, since both Belcher and Florida Fuels have freedom in obtaining their source fuel from whomever they wish, if consumers (in this case, cruise ship owners) behave rationally, then their choices will be dictated by price and quality. The more efficient supplier, providing better service, should be the stronger competitor. Because Belcher is a natural monopoly, Florida Fuels could only enter the market if it could provide a more efficient service. Plaintiff has submitted evidence that marine fuel oil prices in South Florida prior to 1985 were inordinately higher than in other markets and that the cruise lines were dissatisfied with Belcher's quality of service. It is appropriate for a court to examine the effect of the challenged pattern of conduct on consumers. Aspen Skiing, 472 U.S. at 605, 105 S.Ct. at 2858-59. There is no denying that Florida Fuels' entry into the market provided competition that has encouraged lower prices and better service. The question before the court is not whether Belcher's pricing is predatory, but whether Florida Fuels can efficiently compete without access to Belcher's facilities. Florida Fuels has not presented the threshold quantum of evidence necessary to survive Belcher's motion for summary judgment which places into issue whether Belcher's tanks and pipelines are necessary for Florida Fuels to compete or cannot be practically or feasibly duplicated by Florida Fuels.
D. Admissibility of evidence related to Belcher's refusal to deal
Because plaintiff has not presented sufficient evidence from which a *1537 factfinder could determine that Belcher controls essential facilities, defendant has no duty to provide plaintiff access to its tanks and pipelines, and any evidence related to its refusal to allow access is inadmissible. While, in some situations, a monopolist will be required to deal with a competitor, and Belcher may not refuse to sell fuel to Florida Fuels merely because it is a competitor, here Belcher's refusal to lease its tank space is not evidence of monopolistic intent. Any consideration of this evidence by the jury would only be prejudicial and is therefore excluded, pursuant to Rule 403 of the Federal Rules of Evidence. Without ruling on the merits of this aspect of the case, the record indicates that plaintiff intends to present to the jury evidence that defendant has engaged in predatory pricing with monopolistic intent. Certainly, this type of evidence alone will support a finding of Section 2 liability.
After a careful review of the pleadings and the court being fully advised in the premises, it is hereby:
ORDERED and ADJUDGED that defendant's motion for partial summary judgment is GRANTED. This Section 2 claim shall be tried on the predatory pricing claim only.
It is further ORDERED that final judgment is hereby entered as to the essential claim as the court finds no reason for delay pursuant to Rule 54(b). The court further finds that this order involves a controlling question of law as to which there is substantial ground for difference of opinion as there is no controlling precedent from the Eleventh Circuit and that an immediate appeal from this order may materially advance the ultimate termination of this litigation. See 28 U.S.C. § 1292(b).
DONE and ORDERED.
NOTES
[*] Defendant contends that plaintiff has the burden of proving an absence of valid business reasons for refusing to deal and must present evidence that tends to exclude the possibility that the defendant's conduct was as consistent with competition as with illegal conduct. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Matsushita case involved allegations of an antitrust conspiracy and did not involve a unilateral refusal to deal as in this case. The court's reliance on defendant's failure to establish valid business reasons for refusing to deal with plaintiff in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 600-01, 105 S.Ct. 2847, 2856-57, 86 L.Ed.2d 467 (1985), suggest that, if plaintiff has shown that shared use is feasible, then the burden shifts to the defendant to present its valid business reasons for refusing to allow the plaintiff access to the essential facility.
[**] One commentator has noted that courts will impose a duty to deal upon a monopolist in two circumstances: (1) where a single monopolist who competes with the facility user in other markets unilaterally controls the facility, see e.g. Aspen Skiing, 472 U.S. 585, 105 S.Ct. 2847; Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973); Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951); and (2) where a monopolist consortium of firms who are competitors jointly controls the facility, Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Terminal Railroad, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584350/ | 641 So.2d 1319 (1994)
Derrick Tyrone SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. 76491.
Supreme Court of Florida.
June 9, 1994.
Rehearing Denied September 12, 1994.
*1320 James Marion Moorman, Public Defender and Paul C. Helm, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
PER CURIAM.
Derrick Tyrone Smith appeals his conviction of first-degree murder and his sentence of death for the murder of a cab driver in St. Petersburg. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.
This case is an appeal of Smith's conviction on retrial for the killing of cab driver Jeffrey Songer.[1] On retrial, the jury convicted Smith of first-degree murder and recommended death by a vote of eight to four. The trial judge followed the jury's recommendation and sentenced Smith to death. We affirm both the conviction and the death sentence.
At retrial, the evidence showed that Smith and a friend, Derrick Johnson, planned a robbery. To carry out the plan, Smith called a cab from a restaurant's pay telephone at 12:28 a.m. on March 21, 1983. Smith's fingerprint was later matched with a print found on that phone. Songer picked up Smith and Johnson outside the restaurant, then reported to his dispatcher that he was taking the fares to a nearby residential area. A few minutes later, Songer called in "D-16," which was a coded distress call. The dispatcher called the police and sent another cab driver to assist Songer. The driver found Songer lying face down about seventy feet from his cab, dead of a single shot in the back.
An eyewitness testified that he recognized Smith and Johnson. The witness also testified that he saw Smith aim and fire at Songer as the driver tried to run from the cab. Although authorities never found the murder weapon, several witnesses linked Smith to a .38-caliber pistol. Smith's uncle, with whom Smith had once lived, testified that a .38-caliber pistol was missing from his home. A lead fragment found on the victim matched the lead composition of bullets Smith's uncle obtained when he bought the gun. Other witnesses testified that they saw Smith with a gun during the day before the shooting. Johnson's testimony also placed a gun in Smith's possession.
One witness, a Canadian tourist, testified that Smith robbed his wife and him in their motel room about twelve hours after Songer was killed. The robbery victim's description of Smith's gun resembled the description of the gun Smith used in the shooting; however, it was never established that the gun was the same because the weapon was never found. Smith's fingerprints were found on a suitcase in the motel room, and, after Smith's arrest, police recovered a watch that the robbery victim identified as one Smith took.
Smith did not testify at his retrial. Larry Martin, who had been in the Pinellas County Jail with Johnson, testified that Johnson told him Smith did not shoot the cab driver.
Smith raises five issues that he argues require reversal of both his conviction and death sentence.[2] We disagree.
The first issue is whether the trial court violated Smith's constitutional right to effective assistance of counsel and self-representation by failing to inquire into his letter expressing dissatisfaction with court-appointed counsel. Several months before trial *1321 Richard Sanders, Smith's court-appointed counsel, moved to withdraw because Smith wanted to present testimony that Sanders believed was false.[3] After a hearing, the trial court denied the motion. Neither the trial judge nor Sanders questioned Smith at the hearing, and Smith did not address the court.
On the same day the hearing concluded, however, Smith wrote the trial judge and asked her to "reconsider your decision to deny [Sanders'] motion to withdraw." Smith questioned Sanders' lack of experience in first-degree murder cases and wrote, "I don't want Richard Sanders representing me on this particular case." The trial judge responded by letter and told Smith that any communication with the court must be through his attorney. The record reflects that the trial judge communicated with Smith during the trial, but Smith never raised this issue again. Thus, Sanders continued to represent Smith.
Nonetheless, Smith claims the trial court committed reversible error by not conducting a hearing to determine whether there was reasonable cause to believe that Sanders was not rendering effective counsel and, if not, appointing a substitute. In addition, Smith argues that the trial court should have informed him of his right to self-representation and determined whether he knowingly and intelligently chose to waive his right to counsel. This claim is without merit.
Initially, we find the trial court was not required to conduct a hearing on Sanders' representation. Although Smith's letter raises concerns about Sanders, the letter was, in effect, a motion for rehearing. A trial court must conduct an inquiry only if a defendant questions an attorney's competence. Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988). Smith expressed dissatisfaction with Sanders, but did not question his competence.
Further, Smith's letter did not contain an explicit assertion of his right to self-representation, so a Faretta[4] inquiry was not required. Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), 736 F.2d 1528 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984). Thus, the trial court was not obliged to inform Smith of this right and to determine whether he knowingly and intelligently chose to waive his right to counsel. We find no error on this issue.
The second issue Smith raises is whether the trial court erred in failing to conduct a Richardson[5] hearing before admitting testimony about a defense witness's prior convictions. Larry Martin testified during the guilt phase that Derrick Johnson told him Smith did not shoot the cab driver. When defense counsel asked Martin how many times he had been convicted of a crime, Martin replied, "A couple times, I think. I'm not sure." The prosecutor then requested a bench conference, where he said Martin had eight prior felony convictions and the State planned to use them for impeachment purposes.
Smith asserts that the State violated a discovery rule because it had not previously disclosed the prior convictions. He argues that the trial court was required to conduct a Richardson hearing to determine whether the violation was trivial or substantial and whether the violation affected the defendant's ability to prepare for trial. The trial court found no discovery violation.[6]
We agree that there was no discovery violation. The State is required to produce for discovery the criminal records of any witness the prosecution intends to call at trial. Yanetta v. State, 320 So.2d 23, 24 (Fla. 3d DCA 1975); Comer v. State, 318 So.2d 419, *1322 420 (Fla. 3d DCA 1975). The State has no duty, however, "to actively assist the defense in investigating the case." Hansbrough v. State, 509 So.2d 1081, 1084 (Fla. 1987); see also Medina v. State, 466 So.2d 1046, 1049 (Fla. 1985); State v. Crawford, 257 So.2d 898, 900 (Fla. 1972). This Court held that
[t]he defense has the initial burden of trying to discover impeachment evidence, and the state is not required to prepare the defense's case. This is especially true when the evidence is as accessible to the defense as to the state.
Hansbrough, 509 So.2d at 1084 (citation omitted).
There was no assertion here that the records were not available. Thus, the trial court correctly determined that no discovery violation occurred. Even if the trial court erred, the error would have been harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986).
Third, Smith claims the trial court erred by admitting, over his objection, evidence that he committed an armed robbery about twelve hours after the homicide. Evidence of other crimes is admissible if it is relevant. Bryan v. State, 533 So.2d 744, 746 (Fla. 1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104 L.Ed.2d 200 (1989). The evidence revealed that Smith robbed a Canadian couple at gunpoint in their motel room. At trial the man's description of the gun was similar to the description of the gun used to kill Songer. Smith argues that the robbery was not relevant to any material fact in issue and that it shows only a propensity to commit robbery.
To the contrary, evidence of the robbery was relevant to proving Smith's motive to obtain money and to proving that he possessed the same gun in both offenses. The trial court instructed the jury to consider the evidence only insofar as it was relevant to show motive and possession of the gun. These were material facts in issue, and it was not error to admit testimony about the robbery.
Smith argues as his fourth issue that the trial court violated his constitutional rights by limiting cross-examination of a State witness. Melvin Jones, one of two eyewitnesses to the Songer murder, testified that he saw Smith shoot the cab driver. He further acknowledged that he had twenty-four prior felonies. On cross-examination, Jones testified that after he was arrested on outstanding warrants for various offenses, he wrote to the State Attorney and the Public Defender about who shot the cab driver. Jones testified that he did not receive a deal for his testimony, but that the prosecutor testified for him at sentencing. Jones said he did not think the prosecutor's testimony had helped very much. The record reveals that defense counsel had adequate opportunity to cross-examine Jones about the prosecutor's testifying for him.
Smith's attorney also tried to cross-examine Jones about his testimony in another murder case. Upon objection by the State, the trial court directed defense counsel to proffer the testimony he sought to introduce. On the proffer, Jones testified that he was a State witness in the trial of Clinton Jackson for the robbery and murder of a hardware store owner. Jones and Jackson were working together when Jackson told him he was going to rob the store. Jones also saw Jackson go toward the store and then come away from it at the time of the shooting. Jones testified that he could not remember if he had any charges or violations of probation pending when he testified against Jackson, but that it was possible. After Jackson's conviction was reversed on appeal, Jones refused to respond to a subpoena to testify at Jackson's retrial. Jones testified that he did not know whether there were any pending charges or warrants against him at that time.
It is clear from the proffer that testimony about the Jackson trial was not relevant to Smith's trial. The trial court correctly sustained objection to the testimony. The record also clearly reflects that defense counsel had adequate opportunity and did cross-examine Jones about any negotiations with the State as to his testimony in Smith's trial. The trial court did not err. In any case, any error would have been harmless beyond a reasonable doubt. DiGuilio, 491 So.2d at 1139.
*1323 Lastly, we must consider whether the death sentence is disproportionate in this case. Smith urges that the death penalty is disproportionate in this case because the trial court found only two statutory aggravating circumstances: (1) the murder was committed while Smith was attempting to commit a robbery and (2) Smith had a previous conviction for a violent felony. The trial court found one statutory mitigating circumstance of no significant history of criminal activity because Smith's prior offenses were nonviolent. The court also found several nonstatutory mitigating circumstances relating to Smith's background, character, and record.
Smith compares his case to Livingston v. State, 565 So.2d 1288 (Fla. 1988), where this Court reversed a death sentence with similar aggravating circumstances and one mitigating circumstance. We find that Livingston is distinguishable from the present case and is not persuasive. In Livingston, the aggravating circumstances were the same, but the mitigating circumstances were significantly different. There the court found that the defendant's youth, inexperience, and immaturity significantly mitigated his offense. Id. at 1292. Also, Livingston had been subjected to severe beatings and neglect, after which his intellectual functioning could "best be described as marginal." Id. Here, the statutory mitigating factor was that the prior criminal record of Smith had been for nonviolent offenses. The trial court also found that Smith, who was twenty years old at the time of the offense, was a mature young man. There is no evidence in the record to suggest he was subjected to the beatings and neglect that characterized the defendant in Livingston.
In addition, Smith cites four cases to support his argument that the aggravating circumstance of a murder committed during the course of a violent felony is outweighed by a defendant's lack of any significant history of prior criminal activity, especially when there are other nonstatutory mitigating circumstances. See McKinney v. State, 579 So.2d 80, 85 (Fla. 1991); Lloyd v. State, 524 So.2d 396, 403 (Fla. 1988); Proffitt v. State, 510 So.2d 896, 898 (Fla. 1987); Caruthers v. State, 465 So.2d 496, 499 (Fla. 1985). This contention is without merit. In those cases, this Court found only one aggravating factor. Here, there are two statutory aggravating circumstances. Under the circumstances of this case, the sentence of death is not disproportionate.
We affirm Smith's conviction and death sentence.
It is so ordered.
GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur.
NOTES
[1] This Court reversed Smith's conviction and sentence at his initial trial because (1) the State elicited an improper comment on Smith's exercise of his right to remain silent and (2) the trial court admitted a statement Smith made to a detective after exercising his right to remain silent. Smith v. State, 492 So.2d 1063, 1065, 1066 (Fla. 1986).
[2] (1) Whether the trial court violated Smith's right to effective assistance of counsel and self-representation; (2) whether the trial court erred by failing to conduct an adequate Richardson inquiry when defense counsel objected to the State's violation of the discovery rule; (3) whether the trial court erred by admitting evidence of an unrelated robbery; (4) whether the trial court violated Smith's right to confront and cross-examine witnesses against him when it allowed the State to conceal the terms of a witness's prior sentencing agreement with the State; and (5) whether the death sentence is disproportionate as applied in this case.
[3] Sanders was appointed to represent Smith after two other defense lawyers, who served as co-counsel, asked to be discharged because of "irreconcilable differences" with Smith. The trial court granted the motion, then appointed Sanders.
[4] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
[5] Richardson v. State, 246 So.2d 771 (Fla. 1971).
[6] Nonetheless, the trial court held a brief Richardson hearing and found that even if there was a discovery violation there was no prejudice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584354/ | 24 So.3d 255 (2009)
Fred CARTER
v.
DEPARTMENT OF POLICE.
No. 2009-CA-0723.
Court of Appeal of Louisiana, Fourth Circuit.
October 21, 2009.
*256 Gary M. Pendergast, Gary M. Pendergast, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
(Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
TERRI F. LOVE, Judge.
Officer Fred Carter, an employee of the New Orleans Police Department (NOPD), seeks reversal of the decision of the Civil Service Commission (Commission), denying his appeal of the discipline imposed by the appointing authority, the NOPD. We find that Officer Carter was prejudiced by the delay between the alleged incident and the NOPD's failure to complete the investigation within sixty days as required by law and reverse the Commission's decision.
FACTUAL AND PROCEDURAL BACKGROUND
The NOPD disciplined Officer Fred Carter for allegedly violating the NOPD rule relative to mandatory court appearance. The NOPD alleged Officer Carter received a subpoena, but then failed to appear in court the morning of July 6, 2005. The NOPD conducted a pre-disciplinary hearing on August 17, 2006. The NOPD concluded that Officer Carter presented nothing which would tend to mitigate, justify or explain Officer Carter's failure to appear. The NOPD found this was Officer Carter's second such offense and imposed a five-day suspension.
To contest the suspension, Officer Carter filed an appeal with the Commission. At the hearing held on December 7, 2006, the NOPD called Officer Carter. Officer Carter testified that he did not recall failing to appear on July 6, 2005, stating, "[b]ut that's what I'm being charged accused of, so I guess I did." Officer Carter indicated that he did not recall what he was doing on July 6, 2005. Officer Carter, referring to the statement given to the Public Integrity Bureau, testified *257 that he did not give a statement as to why he missed court during the pre-disciplinary hearing. Officer Carter testified that he was prejudiced by the delay between the alleged incident and the failure to complete the investigation within the sixty days required by law.
The Commission issued a decision denying Officer Carter's appeal, thus upholding the discipline imposed by the NOPD. From that decision, Officer Carter appeals to this Court.
STANDARD OF REVIEW
The Commission has authority to "hear and decide" disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. art. X, § 12; Pope v. New Orleans Police Dept., XXXX-XXXX, p. 5 (La. App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, XXXX-XXXX, pp. 5-6, 903 So.2d at 4.
The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, XXXX-XXXX, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, XXXX-XXXX, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const. art. X, § 12; Cornelius v. Dept. of Police, XXXX-XXXX, p. 7 (La. App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.
The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12; Cure, XXXX-XXXX, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is "arbitrary and capricious" if there is no rational basis for the action taken by the Commission. Cure, XXXX-XXXX, p. 2, 964 So.2d at 1095.
PREJUDICIAL DELAY
Officer Carter argues he was prejudiced by the delay between the alleged incident and the failure to timely complete the investigation. Louisiana law requires that an investigation of a police officer be completed within sixty days from commencement. La. R.S. 40:2531.[1] Specifically, La. R.S. 40:2531 provides in pertinent part:
B. Whenever a law enforcement officer is under investigation, the following minimum standards shall apply:
. . . .
*258 (7) Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. (Emphasis added).
La. R.S. 40:2531(B)(7).
The Louisiana Supreme Court found that the failure to comply with the sixty-day investigatory period required by La. R.S. 40:2531 is relevant as to whether the appellant is prejudiced by that failure, but does not require summary dismissal. Marks v. NOPD, XXXX-XXXX, p. 12 (La.11/29/06), 943 So.2d 1028, 1036. In Marks, the NOPD terminated the appellant for unpermitted use of police vehicle. Id., p. 2, 943 So.2d at 1030. An investigation commenced on November 12, 2002. Id. On January, 13, 2003, just beyond the sixty-day time period, a request was made for additional time to complete the investigation. Id., pp. 2-3, 943 So.2d at 1030-31. The request for additional time was denied. On August 13, 2003, the NOPD received the complete report. Id.
The Commission concluded the Officer Marks failed to demonstrate that he was prejudiced by the NOPD's failure to comply with the sixty-day investigatory time period requirement. Id., p. 6, 943 So.2d at 1033. This Court reversed the Commission's decision, finding that it was bound by the language of the statute. Id., pp. 5-6, 943 So.2d at 1032. The Supreme Court reversed that decision and remanded the matter, finding that the failure to comply with the sixty-day investigatory time period does not require summary dismissal of the disciplinary action but rather requires the determination of whether the employee was prejudiced by the failure to comply. Id., p. 12, 943 So.2d at 1036.
Under Louisiana law, an investigation is considered complete upon notice to the police employee of a pre-disciplinary hearing. La. R.S. 40:2531(B)(7). In the instant matter, the NOPD issued a disciplinary letter dated September 25, 2006, which indicated a pre-disciplinary hearing was held on August 17, 2006.
The NOPD alleged that Officer Carter received a subpoena, however he failed to appear in court the morning of July 6, 2005. Officer Carter's testimony elicited that approximately one month later, on August 2, 2005, he gave the NOPD a statement on the alleged missed court date. As the statement was not admitted into evidence, we are limited to Officer Carter's testimony. Officer Carter testified that the statement did not state why he missed court. The NOPD presented no other witnesses or evidence concerning the facts of this case.[2]
We find that the NOPD failed to prove that the notice of the pre-disciplinary hearing issued to Officer Carter in September 2006, occurred within the sixty-day investigatory period that commenced in 2005. The fact that Officer Carter gave the NOPD a statement on the alleged missed court date in 2005 evidences that the investigatory period commenced in 2005. The September 2006 disciplinary letter signaled the completion of the NOPD's investigation, and given that, we find that the sixty-day investigatory time limit was exceeded.
Officer Carter testified that he was prejudiced by the investigatory delay in that he was unable to recall the reason for his absence from court on July 6, 2005. The acceptable reasons for missing a mandatory court appearance are few. However, they exist. We find Officer Carter was *259 prejudiced by the failure to comply with the sixty-day time period provided by La. R.S. 40:2531 in that Officer Carter was not allowed to provide a defense or offer mitigating circumstances. While the delay is understandable considering the conditions presented by the aftermath of Hurricane Katrina, it is also understandable that Officer Carter would have trouble recalling a missed court date which occurred some seventeen months prior to the December 7, 2006 hearing date.
Further, while Louisiana law requires a determination of whether the employee was prejudiced by the failure to comply with the sixty-day investigatory time period, reference to prejudice or lack thereof is absent from the Commission's reasons for denying Officer Carter's appeal. Silence in a judgment on any issue that has been placed before the court is deemed a rejection of the claim. See Caro v. Caro, 95-0173, p. 6 (La.App. 1 Cir. 10/6/95), 671 So.2d 516, 520; Leary v. Foley, 03-0751, p. 4 (La.App. 4 Cir. 2/13/08), 978 So.2d 1018, 1021, citing Bain v. Middleton, 00-2630, p. 1, fn. 2 (La.App. 4 Cir. 11/14/01), 802 So.2d 837, 838, citing Zatzkis v. Zatzkis, 632 So.2d 307, 313 (La.App. 4 Cir.1993). Further, a court's silence on an issue has been construed as a tacit finding on that issue. See Rodsuwan v. Christus Health Northern La., 41,043, p. 8 (La.App. 2 Cir. 5/17/06), 930 So.2d 1116, 1120. We find that the Commission acted arbitrarily and capriciously in denying Officer Carter's appeal.
DECREE
Accordingly, the decision of the Commission is reversed.
REVERSED.
LOMBARD, J., Dissents.
LOMBARD, J., Dissents.
Officer Carter was suspended for five days for failing to appear for a court appearance, his second violation of a NOPD rule pertaining to mandatory court appearance. The Commission rejected his appeal of the disciplinary 5-day suspension imposed by the NOPD and, after review of the record in light of the applicable law, I would affirm this decision.
The failure to comply with the sixty-day investigation period does not mandate dismissal but is relevant to the issue of whether the appellant was prejudiced by the delay. See Davis v. New Orleans Police Dept., 04-1023 (La.App. 4 Cir. 2/2/05), 899 So.2d 37 (60 day investigatory period mandatory unless extension requested), abrogated by Marks v. New Orleans Police Dept., 06-0575 (La.11/29/06), 943 So.2d 1028 (language in La. Rev.Stat. 40:2531(B)(7) is directory not mandatory). "When a judgment is silent with respect to any demand which was at issue under the pleadings, the silence constitutes an absolute rejection of the demand." Rodsuwan v. Christus Health Northern La., 41,043, p. 8 (La. App. 2 Cir. 5/17/06), 930 So.2d 1116, 1120 (citing Sun Finance Co. v. Jackson, 525 So.2d 532 (La.1988)). Accordingly, the Commission's failure to make a finding of prejudice is deemed an absolute rejection of that claim, a finding we review for manifest error. As noted by the majority, the only evidence of prejudice in the record is Officer Carter's statement that he was unable to recall the reasons for his absence from court on July 6, 2005. Under our standard of review, I do not find this a sufficient basis to make a finding that Officer Carter was prejudiced by the delay or that the Commission acted arbitrary and capricious in denying his appeal. Accordingly, I respectfully dissent.
NOTES
[1] The Louisiana legislature, in 2007, amended the statute to provide that no disciplinary action can be taken against a police officer when the investigation is not timely completed. As the incident at issue occurred before the amendment, the jurisprudence interpreting the statute applies.
[2] The NOPD called Sgt. Nevil as a witness, but Sgt. Nevil's testimony was limited to the reason for the enforcement of the mandatory court appearance rule and the discipline imposed for violation of the rule. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/492641/ | 826 F.2d 214
Claire APPELMANS and Tara Broderick, Appellants,v.The CITY OF PHILADELPHIA, the Philadelphia City Council,Mayor Wilson Goode, Director of Finance, Richard C. Gilmore,the Philadelphia Gas Commission, and Gas Commissioners,Joseph Vignola, John Street, Ann Land, Lawrence Reaves andCharlotte Nichols.
No. 86-1583.
United States Court of Appeals,Third Circuit.
Argued March 18, 1987.Decided Aug. 12, 1987.
Timothy B. Broderick (argued), Philadelphia, Pa., for appellants.
Handsel B. Minyard, City Sol., Gerald T. Clark (argued), Deputy City Sol., City of Philadelphia Law Dept., Philadelphia, Pa., for appellees.
Before HIGGINBOTHAM, MANSMANN, and ROSENN, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
1
This class action under 42 U.S.C. Sec. 1983 against the City of Philadelphia was instituted by residents of Philadelphia who are consumers of gas purchased from the Philadelphia Gas Works ("PGW"). The plaintiffs alleged that the transfer of $6.5 million from the PGW's sinking fund reserve to the General Fund of the City of Philadelphia constituted a special assessment against them and was violative of their rights under the equal protection clause of the 14th Amendment, a taking of property without just compensation in violation of the 5th Amendment and was violative of Pennsylvania's law of municipal utilities. The district court entered summary judgment for the defendant City of Philadelphia, finding that the plaintiffs had failed to state a cause of action under Sec. 1983 in that the transfer of funds does not constitute a special assessment. After de novo review, we find no evidentiary materials of record to support the assertion that the appellants have a protectible property interest in the funds at issue here. Therefore, we will affirm the grant of summary judgment for the defendants.
I.
2
The Philadelphia Gas Works is a facility for the manufacture and distribution of gas owned by the City of Philadelphia and managed by the Philadelphia Facilities Management Corporation. The Gas Works is regulated by the Philadelphia Gas Commission, a five member body including the City Controller, two members appointed by the City Council, and two members appointed by the Mayor.
3
The First Class City Revenue Bond Act of 1972 authorizes cities to incur increased debt for the purpose of financing or refunding the cost of their ordinary revenue producing enterprises or "projects" without pledging the general credit or the taxing power of the city itself. 53 Pa.S. Sec. 15901 et. seq. This may be accomplished by issuing bonds secured only by project revenues. 53 Pa.S. Sec. 15902. Project revenues which may be used to secure the bonds are defined generally as receipts from charges to the general public, payments under bulk contracts, and government subsidies. 53 Pa.S. Sec. 15902. Project revenues may also include estimated interest and profits from investment of the foregoing. Id.
4
The statute requires the establishment and maintenace of a sinking fund for payment of principal and interest on the bonds. 53 Pa.S. Sec. 15909. Interest and profit from investment of the sinking fund may be added to the fund as required to service the debt, and any excess "shall be repaid to the city for its general purposes or applied as may be provided in the bond ordinance." Id.
5
In 1975, the City of Philadelphia, pursuant to 53 Pa.S. Sec. 15901, enacted the General Gas Works Revenue Bond Ordinance, which authorized the issuance of gas works revenue bonds of the city, to be secured by a pledge of revenues of the Gas Works. City Council Bill 1872. The city ordinance established a sinking fund from pledged revenues of the Gas Works. Id., Section 6.01. The ordinance also established a sinking fund reserve from proceeds of the bond sales. Id., Section 6.04. Deficiencies in the sinking fund were to be restored from the sinking fund reserve. Id. Deficiencies in the sinking fund reserve were to be restored by deposits from the pledged revenues of the Gas Works. Id., Sections 6.04 and 7.02. Any excess income generated by either fund was to be "repaid" to the city.1 Id., Section 6.03.
6
On November 12, 1985 the Gas Commission approved the transfer of $6.5 million from the Gas Works' sinking fund reserve to the General Fund of the City of Philadelphia. As a result of this order, two separate lawsuits were filed: a state court appeal by a group representing all gas rate payers2 and this suit filed by Appelmans and Broderick, the appellants, in the United States District Court for the Eastern District of Pennsylvania. The relief sought by the appellants included an order enjoining the transfer of funds or restraining the use of the funds as part of the City's General Fund.
7
The defendants moved to dismiss plaintiffs' complaint, and the plaintiffs moved for summary judgment. The district court then treated the defendants' motion to dismiss as one for summary judgment in accordance with Fed.R.Civ.P. 12(c) and granted the defendants' motion.
8
The district court considered the proffered evidentiary materials and found that the plaintiff consumers had no cause of action based on the facts alleged and offered to be proved. The court found nothing of record to support the assertion that the transferred funds were "revenues" of a municipal corporation. Therefore no cause of action could be supported on the asserted legal theory that revenues of a municipal corporation are for the benefit of its consumers and may not be taken for the general municipal fund. The court also found that the plaintiffs had introduced nothing to support the allegation that the transfer of funds created a deficiency in Gas Works revenues necessitating an increase in gas prices operating as an indirect asssessment against the property of the gas consumers. Finally, the court found the transfer to be plainly authorized under state law. The district court denied the plaintiffs' motion for summary judgment and granted summary judgment for the defendant. This appeal followed.
9
Our review of a motion for summary judgment is plenary. An appellate court is required to apply the same test the district court should have utilized initially. Inferences to be drawn from the underlying facts contained in the evidence submitted to the district court must be viewed in the light most favorable to the non-moving party. See Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). This standard does not change when the issue is presented in the context of cross-motions for summary judgment.
10
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
11
We agree with the district court that the plaintiffs have failed to state a cause of action under 42 U.S.C. Sec. 1983. The plaintiffs have failed to allege or provide evidentiary support for their legal entitlement to the funds at issue giving them standing to object to the transfer.
II.
12
We interpret appellants' argument to be that Pennsylvania law requires that the earnings of a municipal utility be retained and applied to fund the internal operations of the utility. If the funds had been retained, rates either would have been reduced or at least would not have been raised. Therefore the direct taking of the funds for the city's general fund amounted to an indirect tax on gas consumers in the form of higher rates. The result is that the property of the gas consumers is being taken in the form of higher rates and that gas consumers are forced to assume an unequal burden of taxation amounting to a taking without just compensation and violation of equal protection of the laws.
13
We need not consider whether there may have been a taking or an unreasonable classification unless the plaintiffs can show a property right or vested interest in the funds at issue which is adversely affected by the defendant's action. See generally, O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Common Cause v. Department of Energy, 702 F.2d 245 (D.C.Cir.1983). In order to sustain a claimed denial of a federal constitutional right through the use of the funds at issue, the plaintiffs must establish more than a hope or unilateral expectation that the funds would be used for rate reduction. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). They must establish a legal interest in or entitlement to those funds and a real or immediate injury or threat of injury which is likely to be redressed in a tangible way by available judicial relief. Id. Property interests are created by "existing rules or understandings that stem from an independent source such as state law." Id.
14
The appellants contend that the district court erred in failing to find that the gas consumers have a constitutionally protected property interest in the transferred funds. They argue that under Shirk v. Lancaster City, 313 Pa. 158, 173, 169 A. 557 (1933), they have a property right in the fund at issue. In Shirk a citizen and water consumer sued to enjoin the City of Lancaster from imposition and collection of water rates which resulted in a profit to the municipal corporation. The Pennsylvania Supreme Court held that a municipal utility may legally make a profit, that the purpose for which any profits of a municipal utility are used is within the sound discretion of the municipal authorities, and that this discretion will not be interfered with unless it is abused.
15
The Shirk court, in dicta, admonished municipal authorities that "profits should not be used to create manifest preference or discrimination among other taxpayers," id. at 174, 169 A. 557 and that "[g]overnmental expenses may be paid from the residue unless it manifestly prejudices a portion of the taxpayers." Id. at 175, 169 A. 557.
16
The appellants argue that the admonition in Shirk not to discriminate among taxpayers in the use of profits prohibits a municipal-operated utility from setting rates for its services that are designed to support other services provided by the municipality. They argue, therefore, that Pennsylvania law mandates that net revenues of the utility be applied to fund the operations of the utility, and that this requirement amounts to a property interest of gas consumers in the net revenues.
17
The appellants insist that an issue of fact remains as to whether the $6.5 million in transferred funds are the economic and/or legal equivalent of profits, earnings or revenues. They contend that the same use restriction would apply to proceeds from a revenue bond sale as they argue applies to other earnings, and that the district court's reliance on a distinction between the Gas Works' revenues and excess earnings from a sinking fund reserve is irrelevant as a matter of law in determining whether the transfer constituted a special assessment against them. The appellants argue that the transfer of the sinking fund earnings into the general fund manifestly prejudices the taxpayers who are also consumers of gas because the funds could have been applied to effect a rate reduction. These contentions are without merit.
18
An assumption arguendo that gas consumers have a property interest in funds acquired from them in the form of rates does not lead to the conclusion that they have a similar interest in invested funds acquired from another source. There is no evidence that the funds were generated or replaced from receipts on the sale of gas to consumers. In oral argument before this court, it was uncontroverted that the $6.5 million was not the result of payments made by the gas consumers, but was excess interest on invested monies of the sinking fund reserve. The reserve was funded from proceeds of the bond sale. Therefore, the money was originally the property of the purchasers of the bonds. Since the transferred funds are not derived from payments by gas customers or from earnings on such revenues, there is no direct nexus between the ratepayers and the excess earnings at issue which could arguably support a property interest in the ratepayers.
19
Additionally, the appellants have introduced nothing to evidence a protectible interest as a result of any legal requirement that the funds be applied toward a rate reduction or even toward the internal operation of the Gas Works. The appellants argue that George v. City of Asheville, 80 F.2d 50 (4th Cir.1935), supports their assertion that they have a property right in the interest on the bond proceeds. However, George lends no support to appellants' position. George does not hold, as the appellants suggest, that the interest on the proceeds of a revenue bond sale must be applied to fund the operations of the utility. It holds instead that net revenues derived from the operation of the utility must first be applied to service the debt on bonds for which the revenues are pledged. In addition, George was decided on the basis of a North Carolina state statute which clearly is inapplicable here. The appellants have cited no comparable Pennsylvania case or statute prohibiting the city from transferring revenues of a city owned utility into the general fund. In fact, both Shirk and the bond act specifically recognize the right of the city to use the excess interest for its general purposes.
20
In testimony before the district court during a preliminary injunction hearing Joseph C. Vignola, the Comptroller of the City of Philadelphia and chairperson of the Gas Commission, testified that the $6.5 million, had it not been transferred to the general fund, would have remained as retained earnings for the Gas Works but would not have created an immediate reduction in the gas rate. He testified that in his opinion a rate increase would be necessary in the future because the transferred funds were no longer available.
21
Although common sense would suggest that retention of the funds might have resulted in lower rates for consumers of gas, the appellants have failed to introduce anything to suggest any legal entitlement to have the funds applied for that purpose. The interest was not the property of the appellants originally and did not become the property of the appellants merely because it could have contributed to a rate reduction if it had remained in the general fund. The plaintiffs have proffered nothing to show that if the court granted the relief requested, i.e., rescission of the transfer, the plaintiffs would benefit from lower rates.
22
We agree with the district court that because nothing of record evidences the appellants' entitlement to the funds at issue, the defendants are entitled to judgment as a matter of law. Accordingly, the judgment of the district court will be affirmed.
1
Pursuant to section 4.02, project revenues are to be applied as follows:
... first, to Net Operating Expenses; second, to required payments to the sinking fund herein created to pay the principal of and interest on all Bonds issued hereunder and if required to accumulate or to restore any deficiency in, the Sinking Fund Reserve; third, to the payment of any general obligation bonds adjudged to be self-liquidating on the basis of such expected revenues; fourth, to the payment of interest and sinking fund charges of other general obligation debt incurred from the Gas Works, and fifth, to the payment of City charges. Any balance remaining may be applied to any proper purpose of the City ... (emphasis added).
Pursuant to a supplemental ordinance (Bill 2068, June 26, 1975), specific provisions were made governing the transfer of any remaining balance. Section 6 of the bill provides that:
All interest and income earned on moneys held in the Gas Works Revenue Bond Sinking Fund Reserve created under the General Ordinance (Sinking Fund Reserve Earnings) shall, to the extent not required to comply with Section 6.04 of the General Ordinances, be transferred and paid by the Sinking Fund Depository to the operating funds of the Gas Works to be applied as Project Revenues in accordance with the terms of Section 4.02 of the general Ordinance. To the extent that in any fiscal year balance remains in the Project Revenues, including Sinking Fund Reserve Earnings, as such balance is determined in accordance with Section 4.02 of the General ordinance, such balance, upon the approval of the Gas Commission may be paid to the City, provided that in a given fiscal year the balance so paid does not exceed the amount of Sinking Fund Reserve Earnings transferred and paid to the operating funds during the same fiscal year....
(Emphasis added.)
The result of these provisions is to permit income generated by the investment of sinking fund reserve monies to be transferred to the City if two conditions are met. First, the amount generated must exceed the amounts required to fund the accounts required by Sec. 6.04 and Sec. 4.02. Second, the amount transferred must not exceed the amount received by the operating funds of the Gas Works from the same excess earnings.
2
The decision in the state court was that the transfer payment was authorized pursuant to the laws of Pennsylvania and Philadelphia | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1586287/ | 115 Mich. App. 745 (1982)
321 N.W.2d 798
BROWNRIDGE
v.
MICHIGAN MUTUAL INSURANCE COMPANY
Docket No. 49751.
Michigan Court of Appeals.
Decided May 4, 1982.
David K. Wenger, for plaintiff.
Riley & Roumell (by Craig W. Lange), for defendant.
Before: MacKENZIE, P.J., and BRONSON and BEASLEY, JJ.
MacKENZIE, P.J.
Plaintiff brought this action against her former employer to obtain damages and equitable relief for an allegedly wrongful discharge from employment. Plaintiff claimed that she had been discharged by defendant for refusing to engage in certain discriminatory "redlining" practices. Plaintiff claimed that such practices were contrary to public policy and violated the Uniform Trade Practices Act, MCL 500.2001 et seq.; MSA 24.12001 et seq. Defendant's motion for accelerated and summary judgment was denied and defendant appeals by leave granted.
We need only address one of the issues raised by defendant. Defendant argues that this action was barred by res judicata and that the circuit judge therefore erred by denying its motion for accelerated judgment pursuant to GCR 1963, 116.1(5). Plaintiff had commenced an action against defendant *747 in the United States District Court for the Eastern District of Michigan on January 19, 1979. In that action, plaintiff claimed that her discharge by defendant was the product of sexual discrimination in violation of federal law. Plaintiff stipulated to the dismissal with prejudice of the action in federal court and an order dismissing the case with prejudice was entered on August 28, 1979. Plaintiff's action in state court commenced on August 10, 1979.
In Gose v Monroe Auto Equipment Co, 409 Mich 147, 160; 294 NW2d 165 (1980), the Court explained its position on res judicata as follows:
"Our opinions have endorsed both a narrow and a broad application of the rule. Narrow application bars a second action only if the same question was actually litigated in the first proceeding. Broad application bars as well those claims arising out of the same transaction which plaintiff could have brought, but did not. In recent opinions, we have acknowledged the conflicting language and opted for the broad rule. Gursten v Kenney, 375 Mich 330, 334-335; 134 NW2d 764 (1965) (order of dismissal); Curry v Detroit, 394 Mich 327, 332; 231 NW2d 57 (1975) (order of summary dismissal)." (Footnotes omitted.)
Gursten and Curry indicate that Michigan follows the rule stated in Henderson v Henderson, 3 Hare 100, 115; 67 Eng Rep 313 (1843), and quoted in Harrington v Huff & Mitchell Co, 155 Mich 139, 142; 118 NW 924 (1908):
"The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
*748 The rule was further explained in Curry, supra, 331, quoting Tucker v Rohrback, 13 Mich 73, 75 (1864):
"[A] judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue, and between the same parties or their privies."
Since both actions arose out of the same discharge from employment, both actions arose "out of the same transaction", both actions involved "point[s] which properly belonged to the subject of litigation", and both involved "the same matter in issue". See Arnold v Masonic Country Club, 268 Mich 430; 256 NW 472 (1934). A voluntary dismissal with prejudice is a final judgment on the merits for res judicata purposes. Astron Industrial Ass'n, Inc v Chrysler Motors Corp, 405 F2d 958 (CA 5, 1968). That plaintiff could have brought her state claims in the federal action may be shown by reference to United Mine Workers of America v Gibbs, 383 US 715, 725; 86 S Ct 1130; 16 L Ed 2d 218 (1966):
"Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim `arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,' US Const, art III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional `case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co v Morrin, 289 US 103 [53 S Ct 549; 77 L Ed 2d 1062 (1933)]. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be *749 expected to try them all in one proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." (Footnotes omitted, emphasis in original.)
Had plaintiff raised her state claims in federal court, the federal judge would have had discretion to decline to hear them. Id., 726. However, we see no reason why the existence of such discretion should limit the res judicata effect of a federal judgment where, as here, plaintiff never gave the federal judge an opportunity to exercise his discretion.
Plaintiff relies on GCR 1963, 203.1:
"A complaint shall state as a claim every claim either legal or equitable which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the action and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Failure by motion or at the pretrial conference to object to improper joinder of claims or to a failure to join claims required to be joined constitutes a waiver of the required joinder rules and the judgment shall not merge more than the claims actually litigated." (Emphasis added.)
In Rogers v Colonial Federal Savings & Loan Ass'n of Grosse Pointe Woods, 405 Mich 607; 275 NW2d 499 (1979), a majority of the Court agreed that the language emphasized above meant that failure to comply with the rule waived in a subsequent action the defense of res judicata for a claim which could have been brought in the first action. Here, however, the first action took place in federal court. Michigan's General Court Rules do not purport to apply to actions in federal court. GCR *750 1963, 11. The Federal Rules of Civil Procedure contain no analogous provision. We see no basis for an argument that the federal court was required to follow state procedure in this situation. Compare Sibbach v Wilson & Co, 312 US 1; 61 S Ct 422; 85 L Ed 479 (1941), and Hanna v Plumer, 380 US 460, 469-474; 85 S Ct 1136; 14 L Ed 2d 8 (1965). In this connection we note that application of Michigan's "broad rule" of res judicata has never been held to depend on the availability in the first action of a waiver rule similar to that contained in GCR 1963, 203.1. For example, in Rogers, supra, the Court interpreted the waiver rule while finding it unnecessary to choose between the "narrow rule" and the "broad rule". In early cases such as Harrington, supra, the "broad rule" was applied although no waiver rule existed.
The res judicata effect of the federal judgment is not altered because plaintiff commenced the state action before the federal judgment was entered. See Kline v Burke Construction Co, 260 US 226, 229-230; 43 S Ct 79; 67 L Ed 226 (1922):
"It is settled that where a federal court has first acquired jurisdiction of the subject-matter of a cause, it may enjoin the parties from proceeding in a state court of concurrent jurisdiction where the effect of the action would be to defeat or impair the jurisdiction of the federal court. Where the action is in rem the effect is to draw to the federal court the possession or control, actual or potential, of the res, and the exercise by the state court of jurisdiction over the same res necessarily impairs, and may defeat, the jurisdiction of the federal court already attached. The converse of the rule is equally true, that where the jurisdiction of the state court has first attached, the federal court is precluded from exercising its jurisdiction over the same res to defeat or impair the state court's jurisdiction.
* * *
*751 "But a controversy is not a thing, and a controversy over a mere question of personal liability does not involve the possession or control of a thing, and an action brought to enforce such a liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case." (Emphasis added.)
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589587/ | 972 So.2d 187 (2008)
WEBB
v.
WEBB.
No. 2D07-447.
District Court of Appeal of Florida, Second District.
October 19, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3354162/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The plaintiff, Eugeniusz Bezyk, alleges that in January, 1989, he purchased a Ford pickup truck from defendant Keating Ford [hereinafter "Keating"] which developed a gasoline leak. The plaintiff further alleges the following: that pursuant to Keating's instructions, he brought the truck to defendant Stamford Motors, Inc. [hereinafter "Stamford Motors"], an agent, servant and/or employee of Keating; that Stamford Motors repaired the gasoline leak; and that while plaintiff CT Page 2925 was subsequently driving from Stamford Motors' place of business, the right rear wheel of the truck became detached from the vehicle and the vehicle struck the ground with great force, causing severe damages to such vehicle. The three count negligence action was originally filed in November, 1989, and it was amended in July, 1990 and February, 1992. The most recent amendment added a fourth negligence count directed to Burns Tire Exchange, Inc. [hereinafter "Burns"], from which plaintiff allegedly purchased the tires for the truck in March, 1989.
The fourth count of the amended complaint was added by order of this court. On July 11, 1990, Stamford Motors filed a motion pursuant to General Statutes 52-102 to join Burns as an additional defendant to the action, stating that Burns is or may be liable for all or part of plaintiff's alleged claims. Stamford Motors attached to this motion a "proposed amended complaint" for the plaintiff to serve upon Burns in order to make Burns a party to the action. The motion to add Burns as a party defendant was granted by this court, Cioffi, J., on July 30, 1990. However, service was not effected upon Burns within the required time period, so following Stamford Motor's motion to reargue the 52-102
motion, this court, Lewis, J., provided counsel with a new date of service and return date on April 5, 1991. The file indicates that plaintiff received a ten day extension of the service date on May 9, 1991 and that dismissal entered on June 29, 1991. The case was reopened by this court, Rush, J., on October 7, 1991 over Stamford Motors' objection. Burns was eventually served with the amended complaint on March 5, 1992. On June 18, 1992, Burns filed a special defense which asserted that the plaintiff's negligence count was barred by the statute of limitation in General Statutes 52-584.
Burns now moves (#137) for summary judgment on the ground that the statute of limitations has expired. In support of such motion, Burns submitted the affidavit of Richard Martin, manager of Burns, which states that service was made on March 5, 1992, and an uncertified copy of a portion of plaintiff's deposition.
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wadia Enterprises v. Hirschfeld,224 Conn. 240, 247, 618 A.2d 506 (1992). A material fact is one that will make a difference in the result of a case. Hammer v. Lumbermen's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). "`The test is whether a party would be entitled to a directed verdict on the same facts.'" Id., quoting State v. Groggin, 208 Conn. 606,616, 546 A.2d 250 (1988). CT Page 2926
"[T]he party seeking summary judgment has the burden of showing the nonexistence of any material fact." (Citation omitted; internal quotation marks omitted.) Connecticut Bank Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991). However, if the evidence presented is sufficient, it is "not rebutted by the bald statement that an issue of fact does exist." (Citations omitted; internal quotation marks omitted.) Hammer v. Lumberman's Mutual Casualty Co., supra, 579. In deciding such a motion, the court must view the evidence in the light most favorable to the non moving party. Connecticut Bank Trust Co. v. Carriage Lane Associates, supra.
Burns argues that since it was not served with the amended complaint until approximately eleven months after the two year negligence statute of limitations had expired, plaintiff's claim is barred as a matter of law and the court should grant summary judgment as to count four. In response, Keating argues that a party may be cited in pursuant to General Statutes 52-102 as a necessary party to obtain apportionment of liability even though plaintiff's claims are barred by the applicable statute of limitations.
General Statutes 52-584, the statute of limitation regarding actions for injury to person or property, provides that such an action "shall be brought but within two years from the date when the injury is first sustained or discovered." The plaintiff alleges that the truck was purchased in January of 1989; that the gas leak was discovered "shortly after" that time; that plaintiff immediately notified Keating and was instructed to take the vehicle to Stamford Motors; and that the damage to the truck occurred while plaintiff was driving from Stamford Motors' place of business after the repairs were made. Keating claims that plaintiff's deposition testimony indicates that the damage to the truck could not have occurred after April of 1989, in which case the two year statute of limitation expired in April of 1991. Since the portions of plaintiff's deposition filed in support of Burns' motion for summary judgment are neither certified nor authenticated by an affidavit pursuant to Practice Book 380, they are not relied upon by this court in deciding this motion. See Oberdick v. Allendale Mutual Insurance Co., 9 Conn. L. Rptr. 607, 608 (August 25, 1993, Cellotto, J.). However, since the original complaint is dated November 3, 1989, any damage to the truck must have necessarily occurred before that time. Burns was not served with the amended complaint until March of 1992, so even if the damage occurred as late as November, 1989, the statute of limitation would have expired in November of 1991. Therefore, 52-584 bars plaintiff's negligence claims against Burns and Burns' motion for summary judgment as to count four is granted. CT Page 2927
However, a question remains as to whether Burns should remain in the action for apportionment purposes because this court granted a motion to cite in Burns as a party defendant to this action in July, 1990, well before the statute of limitation expired. General Statutes52-102 provides in relevant part that:
[u]pon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving . . . (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided that any person who is immune from liability shall be made a defendant in the controversy.
Under General Statutes 52-572h(c) a defendant's liability can be reduced only in proportion to other parties to the action. Thus, for a defendant to assure that he be held liable for no more than his proportionate share of the plaintiff's damages, all tortfeasors, other than released or settled persons, must be joined in the action.
"There is a split of authority on this court as to whether a person against whom a negligence claim is time barred ought to be made a defendant for the sole purpose of enabling the trier of fact to apportion negligence between and among those who were actually responsible and to avoid attributing to an individual defendant more than his proportionate share of the negligence." (emphasis added.) Bushie v. Putzig, 10 CTLR 228 (October 12, 1993, Mottolese, J.). One of the many ways that the court has made a party against whom negligence is barred a defendant in an action is by permitting a plaintiff to serve upon such defendant a writ of summons without a complaint, so the statute of limitations issue would never arise and the added defendant could have a percentage of his negligence assessed. Id., citing Baker v. Franco, 7 CTLR 622 (December 21, 1992, Fuller, J.).
In the present case, this court granted a motion to make Burns a party to this action in July of 1990, which is before the statute of limitations expired. "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstances." Breen v. Phelps, 186 Conn. 86, 100,439 A.2d 1066 (1982). Furthermore, plaintiff's failure to serve the proposed amended complaint in a timely manner pursuant to orders of this CT Page 2928 court should not prejudice the defendants Stamford Motor and Keating. Accordingly, despite the fact that plaintiff's negligence claim is time barred, Burns should remain a party defendant to the action in order to avoid attributing to Stamford Motors and Keating more than their proportionate share of negligence.
Thus, the motion for summary judgment as to count four of the plaintiff's complaint is granted, as the statute of limitation for negligence actions has expired. However, Burns shall remain in the action as a party defendant for purposes of apportionment, since it was cited inter the action pursuant to 52-102 prior to the running of the statute.
So Ordered.
Dated at Stamford, Connecticut, this 17 day of March, 1994.
William B. Lewis, Judge | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1584363/ | MICHAEL V. OWENS
v.
DION A. MUNSON & KACEY DUBOIS
No. 2009 CA 0790
Court of Appeals of Louisiana, First Circuit.
October 27, 2009.
Not Designated for Publication
MICHAEL V. OWENS Plaintiff/Appellant In Proper Person.
Dion A. Munson and Kacey Dubois Defendants/Appellees In Proper Person.
Before: DOWNING, GAIDRY and McCLENDON, JJ.
DOWNING, J.
Michael V. Owens appeals a judgment denying his rule to evict Dion A. Munson and Kacey Dubois from property they allegedly rented from Owens. For the following reasons, we affirm the judgment of the trial court.
Initially, we observe from our review of the record that no testimony was given under oath and no exhibits were offered or admitted into the record. While the record contains discussion between the court and the pro se litigants, and it contains copies of purported pleadings, the lease and other documents, none of these are properly preserved for our review on appeal. Accordingly, we conclude Owens failed to produce evidence necessary to prove his entitlement to the relief sought. The trial court, therefore, did not err in denying his petition for eviction. See PTS Physical Therapy Service v. Magnolia Rehabilitation Service, Inc., 40,558 (La.App. 2 Cir. 1/27/06), 920 So. 2d 997, 999-1000. See also Edwards v. Edwards, 439 So. 2d 478, 479 (La.App. 1 Cir. 1983).
Additionally, we note that the trial court denied the eviction on the grounds that the rule for eviction was filed prematurely. Five days notice was posted[1] seemingly on Monday, January 5, 2009.[2] La. C.C.P. art. 4701 provides that the "notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises." The citation and rule to evict were purportedly served on Friday, January 9, 2009.[3] La. C.C.P. art. 4731A provides that the rule for eviction may issue "[i]f the lessee or occupant fails to comply with the notice to vacate required under this Title."
The provisions of La. C.C.P. art. 5059 govern the computation of time in eviction proceedings. Lichtentag v. Burns, 258 So. 2d 211, 212 (La.App. 4 Cir. 1972). This article provides in pertinent part,
In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
Under this rule, if notice to vacate was properly given on January 5, 2009, the five days had not passed when the rule was purportedly served on January 9, 2009. "Literal compliance with statutory requirements, as they relate to actions of lessor, lessee and trial judge with regard to eviction proceedings are sacrosanct to the validity of such proceedings." South Peters Plaza, Inc. v. P.J., Inc., 05-1050 (La.App. 4 Cir. 5/31/06), 933 So. 2d 876, 878.
Accordingly, the trial court did not err in denying Owens' rule for eviction. His assignments of error are without merit.
DECREE
The judgment of the trial court is affirmed. Costs of this appeal are assessed to Michael V. Owens.
AFFIRMED
NOTES
[1] Louisiana Code of Civil Procedure art. 4703 allows notice by posting only where the premises are abandoned or closed, or where the whereabouts of the lessee or occupant are unknown. It appears the defendants were occupying the property and their whereabouts were known.
[2] The trial court found as a fact that Owens had extended the lease for four or live days and that notice should not have been given until after the extension expired.
[3] The return of service notes. "Posted," with a date, time and initials. We do not address whether this service comports with the requirements of La. C.C.P. art. 4731. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584358/ | CHAD M. BOYER
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF STATE POLICE
No. 2009 CA 0700.
Court of Appeals of Louisiana, First Circuit.
October 23, 2009.
Not Designated for Publication
FLOYD J. FALCON, Jr., DANIEL l. AVANT, Counsel for Plaintiff-Appellee Chad M. Boyer
KATHY DUHON WILLIAMS Counsel for Defendant-Appellant Department of Public Safety and Corrections, Office of State Police.
Before: PARRO, KUHN, and McDONALD, JJ.
KUHN, J.
Plaintiff-appellee, Chad Boyer, was terminated for cause from his employment with defendant-appellant, the Department of Public Safety and Corrections, Public Safety Services, Office of Louisiana State Police (LSP). Boyer timely appealed his termination to the State Police Commission (the Commission), which, after a public hearing, granted in part and denied in part the appeal: the Commission reduced the disciplinary action taken by the LSP from termination to a two-week suspension; ordered reimbursement of wages lost, together with interest, from the end of the two-week suspension until paid, subject to an offset for earnings or unemployment benefits received by him until the date of the decision; and awarded $1,500 in attorney fees. We affirm.
On appeal, LSP asserts the Commission erred in: concluding that Boyer violated only two of the six charges alleged against him; reducing the discipline from termination to a two-week suspension; and awarding him attorney fees.
We find no manifest error in the Commission's factual findings. See Bannister v. Dep't of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So. 2d 641, 647. Although LSP urges that the complained-of conduct constituted violations of Louisiana State Police Policy and Procedural Manual Nos. 01-02.13, UNSATISFACTORY PERFORMANCE; 01-02.05, CONDUCT UNBECOMING AN OFFICER; 01-02.07 BADGE OF OFFICE; and 01-02.46, REPORTING OF INFORMATION, the record supports the Commission's ultimate conclusion limiting the infractions to violations of 01-02.02, LAW ENFORCEMENT CODE OF ETHICS and 01-02.22, DISSEMINATION OF INFORMATION. We note that LSP Superintendent Colonel Stanley Griffin admitted in his testimony that the same conduct served as the basis for each charge levied against Boyer. In light of the testimonial and documentary evidence, we cannot say that the Commission erred in its express findings that the conduct of Boyer amounted to violations of Louisiana State Police Policy and Procedural Manual Nos. 01-02.02, LAW ENFORCEMENT CODE OF ETHICS and 01-02.22, DISSEMINATION OF INFORMATION; or in its implicit determination that Boyer's conduct was prejudicial to LSP or detrimental to LSP's efficient operation. See Walters v. Dep't of Police of City of New Orleans, 454 So. 2d 106, 113 (La. 1984) ("cause" for dismissal includes conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation); see also Huval v. Dep't of Public Safety & Corr., XXXX-XXXX, pp. 7-9 (La. App. 1st Cir. 10/23/09), ___ So.3d ___, ___ (concluding there was no manifest error in the Commission's factual findings, including its implicit finding that disclosure of confidential information without proper authority constituted prejudice and detriment to the efficient operations of LSP); and Berry v. Dep't of Public Safety and Corr., 2001-2186, p. 13 (La. App. 1st Cir. 9/27/02), 835 So. 2d 606, 615 (noting that since the public puts its trust in the police department as a guardian of its safety, it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust).
Although LSP complains that the Commission erred in modifying the discipline imposed from termination to a two-week suspension, we are bound to affirm unless the Commission's order is "arbitrary, capricious, or characterized by an abuse of discretion." See Bannister v. Depft of Streets, 95-0404 at p. 8, 666 So.2d at 647. A conclusion of a public body is "capricious" when the conclusion has no substantial evidence to support it or the conclusion is contrary to the substantiated competent evidence. The word "arbitrary" implies a disregard of evidence or of the proper weight thereof. Bailey v. Dep't of Public Safety and Corr., 2005-2474, p. 15 (La. App. 1st Cir. 12/6/06), 951 So. 2d 234, 243.
Applying this standard to the Commission's reduction of discipline from termination to a two-week suspension, we cannot reverse. Although as original triers of the facts we would wholeheartedly uphold the appointing authority, we are not allotted that task in our review.
In its reduction of the discipline, the Commission stated:
During Mirandized questioning, Boyer utilized reflected hindsight after being accused of criminal conspiracy to admit that he erred in judgment [the investigator] stated, "[Boyer], do you realize what, uh, you did as far as providing information about about uh, ongoing criminal investigations being conducted by State Police?" Boyer stated, "I didn't not at the time ...[.]" He further stated that he gave [the unauthorized person] information in hopes of retrieving illegal gaming information about "wire numbers" of another bookie.
Boyer testified he simply advised the unauthorized person, whom he believed to be a confidential informant for his former partner, Todd Huval,[1] that "the heat [was] already on" the operative that LSP had created in hopes of discovering whether a "leak" existed in LSP. Boyer acknowledged that the information might have revealed to the unauthorized person that LSP "may be" starting an investigation on the operative. He emphasized that when he conveyed the information to the unauthorized person, the operative had neither been accused of a crime nor was present in the State of Louisiana. Given the Commission's decision to credit this testimony by Boyer, we cannot conclude that its reduction in discipline from termination to a two-week suspension is arbitrary, capricious, or characterized by an abuse of discretion. Under Boyer's version of events, Huval was working out of town and asked him to follow up on a lead. He communicated to an unauthorized person, whom he believed to be a confidential informant of his former partner. Boyer testified that he asked the unauthorized person what he knew about the fictitious operative and that it was only after the unauthorized person revealed what he knew information which Boyer already knew that he advised, "[W]ell, the heat's already on him." Boyer added, "I need something better than that," to which the unauthorized person replied that he would provide Boyer with some wire room numbers.[2] Given the Commission's decision to accept this version of events, its reduction of discipline from termination to a two-week suspension is not an abuse of discretion. See and compare Huval v. Dep't of Public Safety & Corr., XXXX-XXXX at pp. 11-13, ___ So.3d at ___ (concluding the Commission abused its discretion in finding that Huval had a personal relationship with the unauthorized person, a convicted felon, and permitted his feelings of friendship to enable the unauthorized person access to LSP information but then reduced Huval's discipline from termination to an eight-week suspension with a recommendation that he be reassigned to "a position that does not rely heavily on confidential or privileged information").
Boyer's testimony supports the Commission's reliance on the mitigating factors that he did not believe his actions were improper when he disclosed the confidential information indicating that LSP was aware of the operative; and that his motivation in talking to the unauthorized person was a desire to obtain evidence of ongoing criminal activity. While we, as triers of the facts, would not have necessarily accepted Boyer's version of events as true, on appellate review, we cannot say that the Commission's decision to do so has no substantial evidence to support it or is contrary to the substantiated competent evidence. Nor, in light of Boyer's testimony, can we say the Commission disregarded the evidence or improperly weighed it in light of the entire record.
Finally, LSP's assertion that the Commission erred in awarding Boyer his attorney fees is without merit. See State Police Commission Rule 13.26(a) (providing that when the Commission renders a decision which modifies an action that has been appealed, the appellee may be ordered to pay attorney fees in an amount not to exceed $1,500, unless the Commission concludes that the appointing authority has acted arbitrarily and capriciously, in which case the Commission may award reasonable attorney fees in excess of that amount). Having rendered a decision that modified the action of the appointing authority, the award of $1,500 in attorney fees was within the Commission's discretion.
Accordingly, the decision of the Commission is affirmed. Costs of this appeal in the amount of $413.50 are assessed against defendant-appellant, Louisiana Department of Public Safety and Corrections. This memorandum opinion is issued in compliance with La. URCA Rule 2-16.1.B.
AFFIRMED.
PARRO, J., dissenting.
Although I agree that the Commission's factual findings are reasonable in light of the record reviewed in its entirety, I disagree with its conclusion that Chad Boyer's violation of the policies and procedural rules of the Louisiana State Police (LSP) did not constitute grounds for termination.
The LSP imposed the sanction of termination based on Mr. Boyer's actions that centered around his dealings with a convicted felon with whom he shared confidential information at Trooper Todd Huval's request. I agree with the majority's finding that the record supports the Commission's ultimate conclusion limiting the infractions to violations of 01-02.02, Law Enforcement Code of Ethics, and 01-02.22, Dissemination of Information, and I agree with the Commission's implicit finding that Mr. Boyer's actions were prejudicial to the public service of LSP or detrimental to the efficient operations of LSP. See Walters v. Department of Police of New Orleans, 454 So. 2d 106, 113 (La. 1984). However, I believe that the discipline imposed by LSP was commensurate with the severity of the infractions; therefore, I feel that the Commission's exercise of its authority in reducing Mr. Boyer's termination to a two-week suspension was an arbitrary and capricious interference with the authority of the LSP to manage its department.[1] The LSP had sufficient legal cause to take disciplinary action and carried its burden of proof. In my opinion, the punishment imposed by the LSP, i.e., termination, was commensurate with the infractions proven. Accordingly, I would reverse the Commission's ruling and reinstate the disciplinary action taken by the LSP.[2] Therefore, I respectfully dissent.
NOTES
[1] See Huval v. Dep't of Public Safety & Corr., XXXX-XXXX (La. App. 1st Cir. 10/23/09), ___ So.3d ___, the separate appeal of Huval, who was also terminated as a result of the same investigation.
[2] The record establishes that wire room numbers are the phone numbers used to call bookies to place bets.
[1] Since the public puts its trust in the state police as a guardian of its safety, it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. See Berry v. Dep't of Public Safety and Corr., 01-2186 (La. App. 1st Cir. 9/27/02), 835 So. 2d 606, 615. The LSP operates a quasi-military institution where strict discipline is imperative. Id.
[2] The reversal of the Commission's ruling would necessarily include a reversal of the award of $1,500 in attorney fees to Mr. Boyer and his attorney. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584360/ | 24 So. 3d 182 (2009)
Michael T. GREEN
v.
AUTO CLUB GROUP INSURANCE COMPANY and Mary J. Plangger.
No. 2008-CC-2868.
Supreme Court of Louisiana.
October 28, 2009.
*183 Bendana & Carlton, Wayne Hunter Carlton, Jr., New Orleans, for applicant.
Adams & Reese, Gregory Fortier Rouchell, New Orleans, Donovan & Lawler, Metairie, Paul Michael Donovan, for respondent.
VICTORY, J.[*]
At issue in this direct action lawsuit, brought against a nonresident tortfeasor and her foreign liability insurer, is whether venue is proper in the parish of plaintiff's domicile. If suit was filed in the proper venue, then plaintiff's suit has not prescribed. For the reasons that follow, we find that venue is proper in the parish of plaintiff's domicile under the provisions of La. C.C.P. art. 42(5), and that therefore, prescription was interrupted under La. C.C. art. 3462. Accordingly, we reverse the judgment of the court of appeal and reinstate the decision of the trial court denying defendants' Exceptions of Improper Venue and Prescription.
FACTS AND PROCEDURAL HISTORY
On December 13, 2006, Michael Green ("Green") filed suit in Orleans Parish, the parish of his domicile, against defendants, Mary Plangger ("Plangger"), a nonresident tortfeasor, and her liability insurer, Auto Club Group Insurance Company ("Auto Club"), a foreign insurance company not authorized to do business in Louisiana, seeking damages for personal injuries allegedly sustained as a result of an automobile accident that occurred on December 16, 2005, in St. John the Baptist Parish. Green requested service of process on the defendants pursuant to the Long Arm Statute, La. R.S. 13:3201(A)(3),[1] via certified mail. Auto Club was served on January 5, 2007, but service was not perfected on Plangger until July 12, 2007. Defendants filed Exceptions of Improper Venue and Prescription, arguing that venue was only proper in the parish where the accident occurred or East Baton Rouge Parish under the provisions of the Direct Action Statute, La. R.S. 22:1269,[2] and that because venue was improper in Orleans Parish and service was not perfected on defendants within the prescriptive period, the suit had prescribed under La. C.C.P. art. 3462.[3]
*184 The trial court denied defendants' Exceptions of Improper Venue and Prescription and the court of appeal denied defendants' writ application. Green v. Auto Club Group Ins. Co., 07-1468 (La.App. 4 Cir. 2/20/08). This Court granted defendants' writ application and remanded the case to the court of appeal for briefing, argument, and opinion. Green v. Auto Club Group Ins. Co., 08-0614 (La.5/2/08), 979 So. 2d 1273. On remand, the Fourth Circuit reversed the judgment of the trial court, finding that venue was only proper under the Direct Action Statute in St. John the Baptist Parish or East Baton Rouge Parish, and that therefore, the suit had prescribed pursuant to La. C.C. art. 3462 because it was not filed in either of those parishes. Green v. Auto Club Group Ins. Co., 07-C1468 (La.App. 4 Cir. 10/1/08), 994 So. 2d 701. We granted the plaintiff's writ application. Green v. Auto Club Group Ins. Co., 08-2868 (La.2/12/09), 2 So. 3d 432.
DISCUSSION
"Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject." La. C.C.P. art. 41. The Direct Action Statute grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. Hood v. Cotter, 08-215 (La.12/2/08), 5 So. 3d 819; Cacamo v. Liberty Mutual Ins. Co., 99-3479 (La.6/30/00), 764 So. 2d 41, 43; Descant v. Administrators of Tulane Educational Fund, 93-3098 (La.7/5/94), 639 So. 2d 246. The Direct Action Statute "was enacted to give special rights to tort victims, not to insureds with contract claims against a defendant." Cacamo, supra at 43. In the absence of the Direct Action Statute, a plaintiff would have no right of action against an alleged tortfeasor's liability insurer because the obligation between the plaintiff and the alleged tortfeasor is delictual in nature, and plaintiff has no contractual relationship with the tortfeasor's insurer. Because the Direct Action Statute provides the sole procedural right of action against the insurer in this case, the Direct Action Statute provides "the rules regulating the subject," and venue may only be determined according to that statute's venue provision.
Venue under the Direct Action Statute is provided in La. R.S. 22:1269, in pertinent part, as follows:
The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only. (Emphasis added).
Thus, the first alternative under La. R.S. 22:1269 is the parish where the accident or injury occurred, which is St. John Parish. The second alternative is any parish in which the action could be brought against either the insured or the insured under the general venue rules of La. C.C.P. art. 42 only.[4] For the reasons stated below, venue *185 was proper in the parish of plaintiff's domicile pursuant to La. C.C.P. art. 42.
La. C.C.P. art. 42(5) provides:
A foreign corporation or a foreign limited liability company not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in the parish of the plaintiff's domicile or in a parish where the process may be, and subsequently is, served on the defendant. (Emphasis added.)
La. C.C.P. art. 42(6) provides:
A nonresident, other than a foreign corporation or a foreign or alien insurer, who has appointed an agent for the service of process in the manner provided by law, shall be brought in the parish of the designated post office address of an agent for the service of process. (Emphasis added.)
The court of appeal found that La. C.C.P. art. 42(5), which would allow venue in the parish of plaintiff's domicile, does not apply because the insured in this case appointed an agent for service of process by virtue of La. R.S. 13:3474. La. R.S. 13:3474 provides that the acceptance by nonresidents of the privileges of driving a car in Louisiana "shall be deemed equivalent to an appointment by such non-resident of the secretary of state of Louisiana... to be his true and lawful attorney for service of process ..." Thus, the court of appeal held, La. C.C.P. art. 42(6) applies, which only allows the suit to be brought in the parish of the agent for service of process, in this case East Baton Rouge Parish.
We disagree. A nonresident driver for whom the secretary of state has been statutorily appointed for service of process is not a nonresident "who has appointed an agent for the service of process in the manner provided by law ..." under La. C.C.P. art. 42(6). The Official Revision Comments make this clear: "[p]aragraph (6) does not apply to a nonresident for whom, by operation of law, the secretary of state is made the agent for service of process, for in such a case the nonresident has not `appointed' an agent." La. C.C.P. art. 42, Official Revision Comment (d) (1960). Because the insured in this case did not "appoint" an agent for service of process, La. C.C.P. art. 42(5) applies and allows suit to be brought against the insured in the parish of plaintiff's domicile, which it was in this case. Pursuant to La. R.S. 22:1269, suit can be brought where venue is proper for either the insurer or the insured under La. C.C.P. art. 42 only; therefore, as venue was proper for the insured, it was also proper for the insurer. Under La. C.C. art. 3462, because this suit was filed in the proper venue, prescription was interrupted. Therefore, the trial court was correct in denying defendants' Exceptions of Improper Venue and Prescription.
DECREE
For the reasons stated herein, the judgment of the court of appeal is reversed, the trial court judgment denying defendants' Exceptions of Improper Venue and Prescription is reinstated, and the case is remanded to the trial court for further proceedings.
REVERSED AND REMANDED; TRIAL COURT JUDGMENT REINSTATED.
JOHNSON, J., concurs and assigns reasons.
JOHNSON, Justice, concurs in the result:
I agree with the majority that the defendants' Exceptions of Improper Venue *186 and Prescription must be denied. Michael T. Green (Green) filed this tort suit in Orleans Parish, the Parish of his domicile, on December 13, 2006, against defendants, Mary Plangger, (Plangger) a nonresident tortfeasor, and her liability insurer, Auto Club Group Insurance Company (Auto Club), a foreign insurance company not authorized to do business in Louisiana. The automobile accident occurred on December 16, 2005 in St. John the Baptist Parish. Green requested service of process on the defendants pursuant to the Long Arm Statute, via certified mail.
It is well established that the filing of suit in a court of competent jurisdiction and proper venue interrupts the prescriptive period. In addition, service of citation must be requested within 90 days of filing suit.
La. C.C.P. art. 1201(C) provides:
Service of the citation shall be requested on all named defendants within 90 days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation must be requested within 90 days of its filing.
La. C.C. art. 3463 provides:
An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period, continues as long as the suit is pending....
In the instant case, Green filed suit on December 13, 2006, and made a valid request for service on the defendants via the Long Arm Statute, within 90 days of filing suit. Green argued, in the courts below, and in this court, that prescription was interrupted by the filing of suit in a proper venue on December 13, 2006, and the timely request for service. In his application for writ of certiorari to this Court, Green argued:
It is the contention of the plaintiff that the provisions of CCP Art. 42(5) are immaterial since CCP Art. 73 and LA R.S. 13:3203 are exceptions to CCP Art. 42, and unequivocably grant him the right to proceed against all defendants in his parish of domicile.
The majority concludes that "the Direct Action Statute provides the sole procedural right of action against the insurer in this case." In my view, neither statutory authority, nor jurisprudence, supports the position that the Direct Action Statute is the exclusive procedural vehicle for this plaintiff's action. The Direct Action Statute does allow a direct right of action, by third persons, against a foreign insurer, and is the correct procedural vehicle when the foreign insurer is the sole defendant. The distinction in this case, is that Green sued the tortfeasor and her liability insurer jointly, and served both using the Louisiana Long Arm Statute. Green was legally permitted to sue the tortfeasor and the tortfeasor's liability insurer as joint and solidary obligors, pursuant to La. C.C.P. art. 73. La. C.C.P. art. 73 was amended in 1989 to provide that an action against solidary or joint obligors:
may be brought in a parish of proper venue, under La. C.C.P. art. 42 only... provided that an action for recovery of damages for an offense or quasi-offense... may be brought in the parish where the plaintiff is domiciled if the parish of plaintiff's domicile would be a parish of proper venue against any defendant under either La. C.C.P. art. 76 or R.S. 13:3203.
When a petition for damages is filed against a non-resident pursuant to the provisions of La. R.S. 13:3201, venue is controlled by the provisions of La. R.S. 13:3203, which authorizes a suit against a *187 non-resident to be brought in the parish of plaintiff's domicile, or any parish of proper venue. A plaintiff may utilize the provisions in La. C.C.P. art. 73 to file suit against all defendants who are solidary obligors with the non-resident defendant, in the parish of plaintiff's domicile. Boeck v. Performance Toyota of Louisiana, Inc., 562 So. 2d 458 (La.App. 5th Cir.1990).
NOTES
[*] Traylor, J., retired. Justice Traylor retired after oral argument and did not participate in the deliberation of this case following his date of retirement, May 31, 2009.
[1] La. R.S. 13:3201 provides:
Personal jurisdiction over nonresidents
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
...
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
...
[2] The Direct Action Statute was renumbered from La. R.S. 22:655 to La. R.S. 22:1269 by Acts 2008, No. 415, § 1, effective January 1, 2009.
[3] La. C.C. art. 3462 provides:
Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.
[4] The addition of the word "only" in the Direct Action Statute was intended to make clear that the venue exceptions in La. C.C.P. arts. 71-85 did not apply. See discussion in Cacamo, supra at 46 and Boatwright v. Metropolitan Life Ins. Co., 95-2525 (La.App. 4 Cir. 3/27/96), 671 So. 2d 553, writ denied, 96-1327 (La.6/28/96), 675 So. 2d 1130. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584407/ | 717 F. Supp. 784 (1989)
LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.
v.
Leigh PEGUES, in his official capacity as Director of Environmental Management; James W. Warr, in his official capacity as Deputy Director of the Alabama Department of Environmental Management; and the River Gas Corporation.
Civ. A. No. 89-H-263-N.
United States District Court, M.D. Alabama, N.D.
June 30, 1989.
On Motion to Amend Complaint July 27, 1989.
*785 David A. Ludder, Legal Environmental Assistance Foundation, Tallahassee, Fla., for plaintiff.
Olivia H. Jenkins, Ala. Dept. of Environmental Management, Montgomery, Ala., for defendants Pegues and Warr.
Fournier J. Gale, III and Jarred O. Taylor, II, Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Ala., for defendant River Gas Corp.
ORDER
HOBBS, Chief Judge.
This cause comes before the Court sua sponte on the question of whether this Court has subject matter jurisdiction over the instant proceedings. The parties filed cross-motions for summary judgment on June 12, 1989 and cross-briefs in opposition to summary judgment on June 20, 1989. Upon consideration of the briefs submitted and for the reasons set out below, the Court ORDERS the plaintiff to show cause why the Court should not dismiss the complaint *786 for lack of jurisdiction. Plaintiff's reponse to the show-cause order shall be submitted on or before July 14, 1989, and defendants' reponse on or before July 25, 1989.
HISTORY
Plaintiff filed this cause on March 17, 1989, seeking a declaration that "defendants Pegues and Warr are prohibited by the express provisions of the FWPCA from adopting the proposed ... effluent limitations and an injunction from issuing the proposed permits with such ... effluent limitations." Plaintiff seeks such declaratory and injunctive relief on the basis that the proposed effluent limitations are less stringent than those established under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq., for such discharges. Plaintiff asserts jurisdiction based on 28 U.S.C. § 1331, claiming that the cause of action arises under FWPCA § 510, 33 U.S.C. § 1370. Upon request of the parties, the Court bifurcated the hearing on the issue of declaratory relief from the issue of injunctive relief. See Order of June 8, 1989.
JURISDICTION AND DECLARATORY RELIEF
Although plaintiff does not specifically set out the basis for declaratory relief, the Court assumes that such relief is sought under 28 U.S.C. § 2201, as the FWPCA does not specifically provide for such actions. It is well settled that in an action for declaratory judgment under § 2201, the underlying coercive action must meet the jurisdictional requirements of this Court. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194 (1950). Therefore, in order to determine whether this Court has jurisdiction to issue the declaratory judgment which plaintiff seeks, it must determine whether it has jurisdiction over the underlying action.
FEDERAL COURT JURISDICTION UNDER THE FWPCA
Plaintiff brings this action under FWPCA § 510, 33 U.S.C. § 1370 to enjoin defendants Pegues and Warr (ADEM) from issuing defendant The River Gas Corporation (Corporation) national pollutant discharge elimination system (NPDES) permits with effluent limitations which are less stringent than those encompassed in 40 C.F.R. § 435.32. 40 C.F.R. § 435.32 imposes a "no discharge" standard on the onshore subcategory of the oil and gas extraction industry.
Section 1370 provides
Except as expressly provided for in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting other control or abatement of pollution; except that if an effluent limitation, or standard of performance is in effect under this chapter, such State or political subdivision thereof or interstate agency may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter; ....
Plaintiff has moved for partial summary judgment on the basis that the standard established in 40 C.F.R. § 435.32 applies to the activities of defendant Corporation, given the clear language of the regulation, and therefore defendant ADEM cannot issue NPDES permits which do not impose the "no discharge" limitation to defendant Corporation.
The defendant ADEM has submitted a motion for summary judgment and brief in opposition to plaintiff's motion for summary judgment on the basis that, although the language of the regulation would appear to impose a "no discharge" limitation on defendant Corporation, defendant ADEM is precluded from applying such standard to defendant Corporation because such regulation would be invalid under the terms of the FWPCA if it were so applied. Defendant *787 ADEM bases this argument on the factual record that the E.P.A. did not consider any of the factors specified in the statute which are relevant to the coal-bed methane gas production industry in promulgating 40 C.F.R. § 435.32, as such industry did not exist at the time the E.P.A. formulated the regulation. Under 33 U.S.C. § 1314(b)(1)(B), these industry-specific factors must be considered in promulgating discharge standards for point-source categories. Clearly they were not considered either in the creation of the "onshore oil and gas production industry" category, or in the "no discharge" standard formulated for that category. Defendant ADEM further argues that before it issued any NPDES permits to coal-bed methane gas producers, it sought confirmation of its analysis that the regulation did not apply from the E.P.A., and the E.P.A. concurred in the State's conclusion. ADEM then formulated alternative discharge standards based on those applied to run-off water from the coal-mining industry, given the similarities of the pollutants contained in the waste-water. It then issued permits for coal-bed methane gas producers which met the standards for the coal mining industry and which called for effluent discharges to meet national drinking-water standards.
Plaintiff responds that the issue of the validity of the regulation as applied is not before the Court, nor could it be since under 33 U.S.C. § 1369 only a federal circuit court of appeals can exercise original jurisdiction over the validity of a regulation. It further argues that the Court need not consider the discharge standards actually applied, since they do not meet the "no discharge" standards set forth in 40 C.F.R. § 435.32.
The Court finds that the suit for declaratory judgment and injunctive relief under § 1370 cannot be so easily separated from the issue of whether this Court has jurisdiction over the validity of the regulation as applied by defendant ADEM to defendant Corporation. It seems patently unjust to allow a plaintiff to sue State officials in one court on the premise that such officials are in violation of the FWPCA for failing to apply a regulation, and then preclude the court in which the suit is pending from determining whether the regulation could be applied under the terms of the statute. As it seems unlikely that Congress intended such a result, the Court examines whether it can exercise jurisdiction over any part of this action.
Although plaintiff sues under § 1370, the Court notes that this section does not specifically authorize suits by private citizens. The Court further notes that the FWPCA has two sections which contain specific grants of jurisdiction to federal courts. The first, 33 U.S.C. § 1365, specifically confers on citizens the right to initiate suits in federal district court, and grants federal district courts jurisdiction to entertain suits
(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
This code section consistently has been construed to allow suit against dischargers who exceed the effluent limitations encompassed in a NPDES permit, or against dischargers who fail to obtain a NPDES permit.[1]See, for example, Sierra Club v. Union Oil Co. of California, 813 F.2d 1480, 1483 (9th Cir.1987) (actions to enforce permit terms may be brought by concerned citizens under 33 U.S.C. § 1365); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 59 (2d Cir.1985) (Act makes it unlawful for any person to discharge pollutants into navigable waters except in compliance *788 with the limits and conditions of a discharge permit, citizens may sue under § 1365 to enforce such limits and conditions); EPA v. California ex rel. State Water Resources Central Board, 426 U.S. 200, 205, 96 S. Ct. 2022, 2025, 48 L. Ed. 2d 578 (1976) (citizen suit under § 1365 may be brought for violation of 33 U.S.C. § 1311, which makes it unlawful to discharge a pollutant without obtaining a permit and complying with its terms). As to defendant ADEM, the Court finds no caselaw which would support the proposition that citizens can maintain an action against State officials under this section. Nor is such a construction consistent with the words of the statute. As to defendant Corporation, the instant suit alleges neither that it has violated the effluent limitations encompassed in its previous NPDES permits nor that it has discharged pollutants without first obtaining such a permit. Therefore, it appears from the face of plaintiff's complaint that the present action does not fall within that class of suits specifically allowed by § 1365.
The second jurisdictional grant encompassed in the FWPCA occurs at 33 U.S.C. § 1369(b). This section provides
(1) Review of the Administrator's action ... (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title, may be had by any interested person in the Circuit Court of Appeals of the United States....
The Court finds no caselaw which would support the proposition that State officials or private entities can be sued under this section, which is logical given the language of this section. It is unclear whether the plaintiff could have joined the Administrator in this proceeding, or could have joined all defendants in a similar proceeding at the federal appellate court level, as the E.P.A. is not the entity issuing the permit. See, District of Columbia v. Schramm, 631 F.2d 854, 862 (D.C.Cir.1980). Regardless of plaintiff's ability to join the Administrator as party defendant in any federal court, plaintiff clearly has not done so in this case, and therefore the second basis of jurisdiction is inapplicable to the instant proceeding on the face of plaintiff's complaint.
The Court notes that plaintiffs complaint alleges neither § 1365 nor § 1369 as a jurisdictional basis, but rather bases jurisdiction on 28 U.S.C. § 1331. The Court acknowledges that a cause of action may exist where the federal statute does not explicitly provide one. If such a cause of action exists, then this court would have federal question jurisdiction under 28 U.S.C. § 1331. However,
[i]n determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the 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).
The Court initially notes that the FWPCA is not merely silent in regard to creating a private right of action, but specifically provides for such action in only a narrow class of cases. Therefore, the statutory structure itself would seem to imply that Congress did not intend private citizens to seek enforcement of the provisions of § 1370 by way of a citizens' suit to block a State's issuance of an NPDES permit. This conclusion is supported in the legislative history surrounding the creation of state NPDES permit programs. In authorizing such programs, Congress made it clear that state permits would be issued "under State law [and] would be State, not *789 Federal, actions...." 118 Cong.Rec. 33761 (1972), reprinted in 1 Legislative History at 262 (remarks of Rep. Wright). Therefore, the legislative history indicates that this type of action should be relegated to state law. Furthermore, the statutory structure of the FWPCA provides for different avenues of redress for those who are affected by the issuance of NPDES permits. In order to be eligible to issue NPDES permits a state must enact adequate notice and enforcement mechanisms for administering its program.[2] Furthermore, if such mechanisms were not enforced or if defendant ADEM were to issue permits in violation of the mandates of the FWPCA, plaintiff would be able to request review of the State program by the Administrator of the E.P.A. under § 1342(c)(3). If the Administrator were to find the State in violation of the statute, then he would issue guidelines to bring the State into compliance, or would determine whether withdrawal of approval of the State program would be appropriate. If the Administrator were to refuse to conduct such a review, then plaintiff could sue the Administrator under § 1365 to compel him to perform a non-discretionary function.
Although the Court cannot construct a scenario in which the plaintiff would be able to sue defendant ADEM in federal court, such a result is not unconscionable or unreasonable, given that plaintiff has an adequate remedy in state court. Furthermore, it is logical that plaintiff's ability to bring a State agent into federal court should be restricted, as it is the duty of the Administrator to supervise the State program. Such limitation seems especially pertinent in the present case where the State agents have sought the guidance of the E.P.A. in the administration of the State program. Ultimately, plaintiff has the ability to compel the Administrator to fulfill his supervisorial duty by bringing suit in federal court. Therefore, this Court finds no reason to imply a federal right of action to enforce § 1370.
CONCLUSION
Having found that the jurisdictional grants in §§ 1365 and 1369 do not apply in the present case and further having found that the Court cannot exercise jurisdiction under 28 U.S.C. § 1331 since it is of the opinion that a federal right of action to enforce 33 U.S.C. § 1370 is not implicit in the FWPCA, the Court finds no basis upon which it can exercise jurisdiction over this cause. However, as this basis for dismissal has not been addressed by the parties to the suit, the Court issues its show cause order so that plaintiff may point out any error in the Court's reasoning and establish a proper jurisdictional basis for the present action.
ORDER
On Motion To Amend Complaint
Plaintiff's motion for leave to amend its complaint is GRANTED and the amended complaint allowed. However, since the complaint, as amended, fails to state a valid basis of jurisdiction of this Court, the Court DISMISSES the action, without prejudice to its being brought in a court of competent jurisdiction.
EFFECT OF SUPREMACY CLAUSE
Plaintiff amends its complaint to allege that this Court has jurisdiction under 28 U.S.C. § 1331 by reason of the Supremacy Clause, U.S. Const. Art. VI, cl. 2. The Supremacy Clause states:
The Constitution and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land....
It has been noted that
The Supremacy Clause does not secure rights to individuals; it states a fundamental structural principle of federalism. *790 While that clause is the reason why a state law that conflicts with a federal statute is invalid; it is the federal statute that confers whatever rights the individual is seeking to vindicate.
Andrews v. Maher, 525 F.2d 113, 119 (2d Cir.1975). See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 613, 99 S. Ct. 1905, 1913, 60 L. Ed. 2d 508 (1979) (the Supremacy Clause is not a source of any federal rights but merely protects federal rights by giving them priority when they conflict with state law).
The question presented in this Court's show cause order is whether plaintiff's complaint states a federal cause of action, and therefore whether plaintiff has a right to relief under federal law. In its memorandum brief, plaintiff does not address the Court's concern that plaintiff has no federal right of action to seek an injunction to bar defendants Warr and Pegues from issuing NPDES permits to defendant Corporation with effluent limitations which do not meet 40 C.F.R. § 435.32's "no discharge" standard. Since this Court is of the opinion that Congress intended that the issuance of NPDES permits under State programs be governed under State laws, the Court finds no federal law which governs the instant litigation. As plaintiff has no remedy or right of action which the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 et seq. created or which plaintiff may enforce via the Supremacy Clause, plaintiff's complaint is due to be dismissed for want of subject matter jurisdiction.
DONE and ORDERED.
NOTES
[1] This section also applies to suits brought against the Administrator of the Environmental Protection Agency. As the Administrator was not brought in as a party defendant in the instant proceedings, the Court need not consider those cases which set out the instances in which the Administrator may be sued under this section.
[2] The Court notes that the plaintiff could have challenged the effluent limitations encompassed in the challenged NPDES permits or the water quality standards established by the Alabama Department of Environmental Management (ADEM) for the Black Warrior River and its tributaries under Ala.Code § 22-22-9(o) (1988 supp.). Such suits have been recognized in other jurisdictions. See, e.g., Wisconsin Electric Power Co. v. State Natural Resources Bd., 280 N.W.2d 218, 90 Wis. 2d 656 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584366/ | 24 So. 3d 559 (2009)
HOLLAND
v.
McNEIL.
No. SC09-2203.
Supreme Court of Florida.
December 4, 2009.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304545/ | SENTER, J.
The complainant, Thomas B. Norv'ill, filed the original bill in this cause in the Probate Court of Dyer County (which court by special statute has equity jurisdiction) against the Mutual Benefit Health & Accident Association of Omaha, to recover for the loss of an eye on a policy insuring against accident and sickness, and also to recover for statutory penalties.
A jury w'as called for to try the issues of fact submitted by the court, and upon the finding of the jury on the issues of fact a judgment was decreed in favor of complainant and against defendant for the sum of $500 for the loss of the eye, and the sum of $125 penalty, and the costs of the cause.
The case was tried on oral evidence, and motions for a new trial and non obstante veredicto by the defendant were overruled. Upon the action of the court in overruling its motion for a new trial and its motion non obstante veredicto and in rendering judgment against the defendant, the defendant prayed and was granted an appeal to this court. The appeal was duly perfected and errors assigned.
The original bill alleged the issuance of the policy of insurance sued on, and that the premium thereon had been paid; that complainant suffered an injury to his right eye, resulting in the eye having to be taken out; that this injury was caused by a scale of iron or some other *398object or substance flying into his eye while he was scraping the lid of a stove at his restaurant in Dyersburg; that an abscess formed in the eye because of said injury, necessitating the removal of the eye. The bill further alleges that the policy provides payment in the sum of $500 for the total loss of either eye. The bill further alleges that complainant had fully complied with the provisions of the policy in making and submitting proofs of the injury, and that defendant wil-fully and without any good or sufficient cause refused payment, and as a result, complainant has been put to the expense of employing counsel and other expenses, amounting to the twenty-fiv'e per cent penalty provided by statute.
The defendant answered the bill and denied that the injury to the eye was the result of a scale or other foreign substance getting into complainant’s eye as alleged in the bill, and alleged that complainant had made material misrepresentations in the application which he submitted to the defendant and upon which the policy of' insurance was issued by defendant, and alleged that complainant misrepresented and concealed the true condition in said application, which application was copied into the policy of insurance and made a part thereof.
The answer denied that defendant was liable to complainant for any amount under said policy, and denied that its failure and refusal to pay for the loss of the eye under said policy was not in good faith, but to the contrary, the defendant had a good and sufficient defense to said suit.
At the trial of the cause both parties were requested by the trial judge to prepare and tender issues of fact to be submitted to the jury. After some discussion of the issues tendered by the respective parties, the trial judge made up and submitted to the jury the following issues of fact:
“1. Did the defendant, the Mutual Benefit Health & Accident Association contract and agree to indemnify the complainant against the loss of said eye, in the way and manner set out in the policy exhibited to complainant’s bill?” To this issue the jury answered, “Yes.”
“2. Was the policy in force and effect at the time of the alleged accident?” To this issue the jury answered, “Yes.”
“3. Did the complainant, through accidental means, independent and exclusive of disease and all other causes, lose the sight of his right eye?” To this issue the jury answered, “Yes.”
“4. Did the complainant make material misrepresentations about his physical and mental condition on December 5, 1930?” To this issue the jury answered, “No.”
*399“5. Did the complainant make material misrepresentations as to medical and surgical advice and treatment prior to December 5. 1930?’' To tbis issue tbe jury answered, “No.”
‘ ‘ 6. Was the refusal of the defendant to pay made in good faith ? ’ ’ To this issue the jury answered, “No.”
“7. If the refusal was not made in good faith, what additional expense, loss and injury was thus entailed?” To this issue the jury answered, “$125.”
The material facts, supported by a preponderance of the evidence, as we think, may be stated as follows:
The agent of the defendant Insurance Company solicited complainant to take out the policy, and at the time he solicited the policy he asked the complainant a few questions with reference to his age and place of residence, but did not ask him any questions with reference to his state of health, and did not make out any application, nor did complainant sign any application for the insurance. It appears that within a few days after the agent solicited the policy, the defendant issued the policy sued on. The material portions of the policy and accident indemnities necessary to be noticed are as follows:
“Part A: If the insured shall, through accidental means, sustain bodily injuries as described in the insuring clause, which shall, independent and exclusive of disease and all other causes, immediately, continuously and wholly disable the insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the Association will pay, “Loss of . . . either eye $500.” • • ‘ -
Under the heading “Additional Provisions;” Sub-section 0;' contained in the policy, it is provided:
‘ ‘ The copy of the application endorsed hereon is hereby- made a part of this contract and this policy is issued in consideration of the statements made by the insured in the application and the payment in advance of Twelve and 50/100 Dollars ($12.50) as first payment; and the paymént in advance of Ten Dollars ($10) quarterly beginning with April 1, 1931. . . :”
There follows in the policy copy of the application, which purports to have been signed by the complainant, Thomas B. Norvill. In the copy of this application only two questions and answers are questioned, 11 and 13. Question 11 is: “Are you sound- physically and mentally?”' Answer to éach, “Yes.” “Are you maimed 'or deformed?” Answer to each, “No.” “Have you any impairment of sight or hearing?” Answer to each, “No;” ■
*400Question 13 is as follows: “Have you received medical or surgical advice or treatment or had any local or constitutional disease within the past five years?” The answer to this question is, “No.”
As before stated, w'e think it clear from the record that the complainant did not sign this application, a copy of which is carried into the policy, but it was evidently signed by the insurance agent, and without the knowledge, acquiescence or consent of complainant. The complainant testified that when the policy was delivered to him he took it to his home and put it among his papers without reading it, and explained that he knew that it was a policy for accident and sick benefits and that he relied upon the agent’s statements with reference to the policy. He did not know that a copy of an application was included in the policy. He could have discovered this by examining the policy, and especially since it is provided in the policy that the application is made a part of the policy contract.
On January 26 or 27, complainant, while engaged in scraping dirt and rust from a stove lid at his restaurant, suffered an injury to his eye by a flake of either iron or some other. substance striking him in the eye. This caused him considerable immediate pain, and he washed his eye with water, and getting no relief, he went to his home and there washed his eye with peroxide and boric acid. He got some relief, but was still suffering from the eye. He thought he got the object out of the eye, but was not sure as to this. He never saw the object, but after using the boric acid and peroxide he got relief. In a day or two following, and while he was still suffering from the eye, it was examined by Dr. Watson, his family physician, and by Dr. Brewer, an eye specialist in Dyersburg. On examination it was discovered that he had a bad ulcer on the cornea of his right eye. and this continued to become more serious until it ultimately became necessary to remove the eyeball from the right eye, resulting in total loss of sight in the right eye. After the loss of his eye, he made request for blanks upon which to make out the proofs of loss as required by the policy, and these proofs of loss were made out. and sent to the Company with certain affidavits and statements made by the attending physicians.
Upon investigation, the defendant Insurance Company refused to pay the claim, on the grounds that the insured had made misrepresentations in the application attached to and made a part of the policy, in that he had stated in answer to Question 11 that he did not hav^ any impairment of sight or hearing, when as a matter of fact he ha-’ for many years had-trachoma, which is granulated eye-lids, and that the loss of the eye was not the result of the foreign substance getting into the eye, independent of any other disease or cause, and because he had falsely answered Question 13 wherein he said that he had not *401received surgical advice or treatment or bad bad any local or constitutional disease witbin five years before tbe date of tbe application, when, as a matter of fact, be bad been treated by bis physician for malaria and also for rheumatism witbin tbe period of five years.
Tbe assignments of error by appellant are numerous, fifteen in number, and we deem it unnecessary to take up and dispose of each of tbe assignments of error separately, since tbe questions presented by tbe several assignments of error may be disposed of collectively.
By tbe first assignment of erfior it is said that the court erred in overruling defendant’s motion for a directed verdict at tbe conclusion of tbe evidence, and under this assignment it is urged that tbe proof is uneontradicted that tbe plaintiff did not lose his eye as a result of tbe accident, independent of all other diseases and causes, and second, because tbe plaintiff testified, and tbe evidence is uncontradicted, that plaintiff made material misrepresentations in bis application, in that, (a) be bad no medical treatment witbin the past five years, (b) that he had no impairment of vision and that he was sound physically and mentally on tbe date of tbe application.
Tbe second, third, fourth and fifth assignments are directed to the action of the court in not submitting certain issues of fact tendered by the defendant.
The sixth, seventh and eighth assignments complain at tbe action of the court in submitting tbe fourth, fifth, and sixth issues to the jury, on the ground that these issues, in the state of the record, presented questions of law to be determined by the court, and did not present issues of fact to be decided by the jury.
The ninth, tenth, eleventh, twelfth and thirteen assignments go to the action of the court in refusing to instruct the jury to answer certain issues of fact as requested by the defendant.
The fourteenth assignment is directed to the charge of the court with reference to issue No. 4 submitted to the jury, wherein the court charged the jury on said issue as follows: “Material misrepresentations are such misrepresentations of facts or concealment of facts that would increase the risk of loss. It is the duty of the insured to disclose to the insurer such illness which would increase the risk of loss prior to the delivery of the policy.”
By the fifteenth assignment the action of the court in overruling defendant’s motion for a decree notwithstanding the verdict of the jury is challenged as being error.
The trial judge held that the acceptance of the insurance policy containing copy of the application with the questions and answers therein set out, was, in effect, ratifying the application, even though the insured did not actually make such answers and did not sign *402or authorize the agent to sign his name to the application. In the view we have taken of the case it becomes unnecessary that we decide whether the trial judge was in error in so holding. He permitted proof by the defendant to the effect that at the time the application was signed and at the time the policy was delivered, the insured had trachoma, which is explained to be granulated lids. He also permitted the defendant to prove on cross-examination of certain of plaintiff’s witnesses and by the evidence of Dr. Watson, that the insured had within a period of five years before the issuance and delivery of the policy, had certain medical attention, at one time for malaria and at another time for rheumatism.
Plaintiff testified that he did not have any trouble with his eyes at the time the application for insurance was solicited, and at the time the policy was issued and delivered. However, it is shown by other evidence in the record that he had an old case of trachoma, but that it had been inactive for many years. The condition is referred to by the two doctors as an arrested condition. Dr. Watson attributed the abscess on the cornea of the right eye to the scale or foreign substance that had gotten into the eye. Under certain hypothetical questions submitted to Dr. Brewer and also to Dt. Watson, they were of the opinion that if the scale had been promptly washed out by, the use of boric acid solution and did not stick to the cornea of the eye, that it would not have caused the abscess. Dr. Watson testified that if the foreign substance had occasioned a scratch on the cornea that it could have resulted in the abscess. He attributed the abscess to the foreign substance which had gotten into the eye, and not to trachoma. The eye specialist, Dr. Brewer, stated in answer to the hypothetical question, that if the disease to the eye later referred to as trachoma, or granulated lids, was in an active state, that he would attribute the abscess to both, trachoma and the foreign substance which had gotten into the eye. However, all the evidence in the record is to the effect that the old case of granulated lids had not given the insured any trouble for many years, and it was not in an active stage and had not been for many years, but was in an arrested stage and had been for a long time prior to the injury to the eye resulting from the scale or other foreign substance getting into the eye.
We do not think that the evidence is uncontradicted on this question, and that it was proper that the issues be submitted to the jury. Plaintiff testified that he had not had any trouble with his eyes for a number of years. Dr. Watson states that he was his family physician and that he had not noticed any disease of the eye for a long time, and that the trachoma was in an arrested stage.
■On the question of. the refusal of the trial judge to submit the issues tendered by the defendant, we are of the opinion that issues *4033, 4 and 5 submitted to tbe jury, fully presented tbe issues of fact to be decided by the jury. By tbe third issue the court submitted to the jury the following: “Did the complainant, through accidental means, independent and exclusive of disease, and all other causes, lose the sight of his right eye?” This is in the exact language of the question 11 contained in the application which was copied into the policy. After considering the issues tendered by the respective parties, the trial judge made up the issues which were finally submitted, and we think these issues fully presented all questions necessary for a fair and proper determination of the questions involved. It is the duty of the insured when he signs an application or accepts the policy, if he knows or has any reason or ground to believe that he has any disease or is in unsound health, that he should make a fair disclosure of the facts to the insurer. Knights of Pythias, v. Rosenfield, 92 Tenn., 508, 22 S. W., 504; Harris v. Insurance Co., 130 Tenn., 325, 170 S. W., 474.
A misstatement in the application which would influence the judgment of the insurer in issuing the policy, is a material misrepresentation. Lauderdale v. Ins. Co., 94 Tenn., 635, 30 S. W., 732; Volunteer State Life Ins. Co. v. Richardson, 146 Tenn., 589, 244 S. W., 44; Mutual Life Ins. Co. v. Dibrell, 137 Tenn., 528, 194 S. W., 581; Metropolitan Life Ins. Co. v. McGowan, 2 Tenn. App., 341.
It has also been held that whether a misrepresentation increases the risk for insurance is a question of law for the court and not a question of fact for the jury. Mutual Life Ins. Co. v. Dibrell, 137 Tenn., 529; Volunteer State Life Ins. Co. v. Richardson, 146 Tenn., 589; Hunter v. Guaranty Co., 129 Tenn., 572, 167 S. W., 692.
' And it is also true that when the uncontradicted evidence discloses that there have been made material misrepresentations in the application for the insurance, the case should not be submitted to the jury, but the court should direct a verdict for the defendant. Mutual Life Insurance Co. v. Mrs. Annie C. Dibrell, 137 Tenn., 528; Metropolitan Life Ins. Co. v. McGowan, 2 Tenn. App., 341.
In the present casé the insured did not sign the application, nor did he authorize the answers as written in the application. The questions in the application were evidently answered by the agent, Wood, who was the agent of the Insurance Company. We think it is also true that when the policy was delivered to the insured that he did not read the policy and did not discover that a copy of the purported application was contained in the policy. Immediately upon its delivery to the insured, he put the policy away among his papers, knowing that it was an accident and sick benefit policy, and he evidently relied upon the statements made to him by the agent, Wood, as to the protection given him by the policy. However, it was his duty to read the policy and to discover the application which had been copied into and made a part of the policy contract. If *404there were material misrepresentations contained in the application it was his duty to disclose this to the Company and to the end that the policy would be taken up if the Company issuing same so desired.
We are, therefore, of the opinion that this suit must depend upon whether or not there were such material misrepresentations made or set forth in the application, a copy of which was contained in the policy at the time it was delivered, as to máke the policy void. We think that this, under the facts as disclosed by this record, would be a question to be submitted to the jury. The old case of trachoma had been inactive for many years, and had not given the insured any considerable trouble at any time. This would indicate that it had never been a serious case of granulated lids. He had never had his eyes treated for that disease. Certainly there was nothing in the condition of his eyes at the time the insurance policy was delivered that would warrant the insured to believe that he had any present disease of the eyes. He at least so testified. Both the doctors testified in substance that the trachoma was in an arrested state, and Dr. Watson, the family physician of the insured, testified that he had not noticed for some years that the insured had this disease. With this evidence in the record we are of the opinion that it is a question of fact to be submitted to the jury, and that it is not such a disease, or such a material misrepresentation, that would make it a question of law for the determination of the court.
When all the evidence is read, and given proper weight and consideration, we cannot escape the conclusion that the loss of the eye by plaintiff was the result of the iron scale or other foreign substance getting into the eye and scratching the cornea or ball, causing the formation of the ulcer. There was no inflammation of the eye lid. The old trouble, trachoma, was not active and had not been for many years, and it is highly improbable that in its arrested stage, if not cured state, it had anything to do, or was the cause or one of the causes of the abscess which formed on plaintiff’s eye as a result of having been struck in the eye by this scale or substance, which gave him such pain immediately after it struck his eye and continued to pain him more or less until the abscess formed. It is true, he states that he got some relief from use of the boric acid solution and peroxide, but it was clearly temporary relief, and even though he succeeded in washing it out with these solutions, it is more probable than otherwise that the cornea or ball of the eye was scratched and that infection resulted, causing the abscess to form. This, We think, makes an issue of fact to be submitted to the jury. We are also of the opinion that the jury was well warranted under the facts in returning the answers to the issues 1, 2, 3, 4 and 5.
By certain of the assignments of error it is said that there is no evidence to warrant the finding of the jury, concurred in by the *405trial judge, that a failure to settle or pay the claim without suit was not in good faith.
We are of the opinion that the defense was made in good faith by the Insurance Company, and if so, the statutory penalty should not have been allowed. We think it clear from the record that the Insurance Company in good faith denied liability. The mere fact that it refused payment of a claim, and that the suit on the claim re-' suited adversely to the contention of the defendant, would not of itself warrant a conclusion that the denial or refusal was not in good faith. Under the facts as disclosed by the record, we are of the opinion that the refusal to pay was not wilful, or that the Company w/as acting in bad faith in contesting the claim.
We are of the opinion that all the assignments of error, except the assignments going to the penalty, must be overruled, and that complainant is entitled to a judgment under the terms of the policy for the sum of five hundred dollars ($500), with interest thereon from the date of the judgment below, but is not entitled to recover the one hundred twenty-five dollars ($125) awarded by the court and jury as a penalty, and that the assignments of error on this question should be sustained. It follows that judgment will be rendered here for the sum of five hundred dollars ($500), interest thereon from date of the"judgment below.
We are further of the opinion that the cost of this appeal should be paid, one-fourth by appellee, and three-fourths by appellant and surety on the appeal bond. Judgment will be entered here accordingly.
Heiskell and Owen, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1584370/ | 728 N.W.2d 374 (2007)
2007 WI App 34
RIPP
v.
SAYRE.
No. 2006AP1102.
Wisconsin Court of Appeals.
January 4, 2007.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584376/ | 24 So. 3d 1291 (2010)
Mary MADARIAGA n/k/a Mary Keyack, Appellant,
v.
Gonzalo MADARIAGA, Appellee.
No. 5D08-4442.
District Court of Appeal of Florida, Fifth District.
January 15, 2010.
Billy M. Thomas, W. Melbourne, for Appellant.
James H. Greason, Miami, for Appellee.
PER CURIAM.
Mary Madariaga, n/k/a Mary Keyack ["Keyack"], appeals the trial court's Order on Motion [for] Credit for Direct Payments as well as its amended order on her motion for rehearing and relief of judgment. The Order on Motion [for] Credit for Direct Payments required Keyack to repay Gonzalo Madariaga ["Madariaga"], her former husband, $10,777.78 in overpayment of child support and alimony at a rate of $300.00 per month and also directed the Clerk of Court ["Clerk"] to cease all of Madariaga's child support and alimony obligations and to show a credit for Madariaga's overpayment.
The Order on Motion [for] Credit for Direct Payments resulted from Madariaga having filed several pro se motions requesting that the trial court terminate his child support and alimony obligations, clear arrears, and give credit for direct payments. The trial court entered an order of referral to the general magistrate on the issues raised in Madariaga's motions. Keyack filed a notice of objection to the said referral, but a hearing before the magistrate was scheduled for September 17, 2008. On that date, prior to the hearing before the magistrate, the trial court conducted a hearing and ordered an audit by the Clerk.[1] Later the same day, the general magistrate also held a hearing, the result of which he reported and recommended that the hearing be continued to November 25, 2008, due to a lack of notice, and that Madariaga be ordered to provide Keyack with tangible proof of direct payments, such as cancelled checks, prior to the rescheduled hearing. The trial court entered an order approving the general magistrate's report and recommendations.[2] Upon receipt of the audit, however, on October 15, 2008, the trial court entered the Order on Motion [for] Credit for Direct Payments. The trial court based its findings, in large part, upon the Clerk audit.[3] Keyack unsuccessfully sought rehearing or relief from judgment, arguing in part that the trial court denied her due process by not allowing her an opportunity *1292 to be heard on the audit. Given the unusual procedural overlap and Keyack's lack of opportunity to address and raise objections to the Clerk audit, a hearing should be held on the issue of child support and alimony arrearages.
Madariaga's supplemental motion for sanctions pursuant to section 57.105(1), Florida Statutes and his motion for award of attorney's fees on appeal are denied.
REVERSED and REMANDED.
GRIFFIN, SAWAYA and EVANDER, JJ., concur.
NOTES
[1] There is no transcript of this hearing in the record.
[2] This order was entered on November 7, 2008after entry of the Order on Motion [for] Credit for Direct Payments.
[3] We express no opinion on the correctness of the figures contained in the appealed order. They may be correct, but we have not been able to confirm them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584356/ | 728 N.W.2d 216 (2007)
BITUMINOUS CASUALTY CORPORATION, An Illinois Insurance Company, Movant,
v.
SAND LIVESTOCK SYSTEMS, INC., a Nebraska Corporation; Sand Systems, Inc., a Nebraska Corporation; Furnas County Farms, a Nebraska General Partnership; and Cori A. Gossage, Individually and as Administrator of the Estate of Raymond Charles Gossage, Jr., and as Next Friend and Mother of Brian M. Gossage, Respondents.
No. 05-1063.
Supreme Court of Iowa.
February 23, 2007.
*218 Timothy W. Hamann and Jared Knapp of Clark, Butler, Walsh & Hamann, Waterloo, for movant.
Donald H. Molstad, Sioux City, and Patrick W. O'Bryan, Des Moines, for respondent Sand Livestock Systems, Inc.
Robert A. Burnett, Jr., Des Moines, for respondent Gossage.
Laura A. Foggan of Wiley, Rein & Fielding, Washington, D.C., and David N. May of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for amicus curiae Complex Insurance Claims Litigation Association.
STREIT, Justice.
Is carbon monoxide pollution? Sand Livestock was sued for wrongful death after a man died of carbon monoxide poisoning in a hog confinement facility the company designed and built. Sand Livestock's insurer, Bituminous Casualty, sought a declaration that Sand Livestock's insurance did not cover the incident because of a pollution exclusion provision. In response to a certified question, we find the provision unambiguously excludes coverage. We do not decide whether a reasonable policy holder would expect the exclusion to only pertain to "traditional environmental pollution."
I. Facts and Prior Proceedings
Sand Livestock constructed a hog confinement facility in Ida County, Iowa for Furnas County Farms. During the construction, Sand Livestock installed a propane power washer in the facility's washroom. In 2002, Raymond Gossage, an employee of Furnas County Farms, was working at the facility. While using the toilet in the washroom, Gossage was overcome by carbon monoxide fumes. The propane gas heater for the pressure washer produced the fumes. Furnas was later cited by the Iowa Occupational Safety and Health Administration for having a propane device in a room without an outside *219 air supply. According to the autopsy, Gossage died as a result of asphyxiation due to carbon monoxide poisoning.
In 2003, Gossage's widow filed a wrongful death suit against Sand Livestock in the Ida County, Iowa district court. Sand Livestock requested its insurer, Bituminous Casualty, provide a legal defense and indemnification pursuant to two insurance policies. Bituminous had issued Sand Livestock a "Commercial Lines Policy" and a "Commercial Umbrella Policy" for the time of Gossage's death.
The Commercial Lines Policy contained an endorsement entitled "Total Pollution Exclusion with a Hostile Fire Exception," which stated:
This insurance does not apply to:
f. Pollution
(1) "Bodily injury" or "property damage" which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" at any time.
"Pollutants" are defined in the policy as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."
The Commercial Umbrella Policy contained an endorsement entitled "Pollution Exclusion" which stated:
It is agreed that this policy does not apply:
A. to any liability for "bodily injury," "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, release or escape of "pollutants at any time."
. . . .
C. to any obligation of the "insured" to indemnify or contribute to any party because of "bodily injury," "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, release or escape of "pollutants."
D. to any obligation to defend any "suit" or "claim" against any "insured" alleging "bodily injury," "property damage" or "personal and advertising injury" and seeking damages for "bodily injury," "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, release or escape of "pollutants."
. . . .
"Pollutants" means any solid, liquid, gaseous, or thermal irritants or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. . . .
In 2004, Bituminous filed a complaint in federal court seeking a declaration it has no duty to pay damages to Mrs. Gossage or to defend or indemnify Sand Livestock for the death of Gossage because of the pollution exclusions contained in both policies. A year later, Bituminous filed a motion for summary judgment. Bituminous claimed the pollution exclusions in the policies preclude coverage. Sand Livestock and Mrs. Gossage argued the exclusions do not apply to the particular facts of this case and Bituminous is obligated to defend Sand Livestock and cover any losses that may arise if Sand Livestock is found to be liable.
In its ruling, the federal court noted that because we have not interpreted a pollution exclusion in an insurance policy in this particular context, it must "predict" how we would do so. The federal court stated "courts throughout the United States have interpreted pollution exclusions such as those contained in the policies at issue, and *220 have reached a dizzying array of results." See Claudia G. Catalano, Annotation, What Constitutes "Pollutant," "Contaminant," "Irritant," or "Waste" Within Meaning of Absolute or Total Pollution Exclusion in Liability Insurance Policy, 98 A.L.R. 5th 193 (2002). After reviewing other courts' approaches to this issue, the federal court concluded "both parties' positions are supported by case law from other jurisdictions, and there is no Iowa case either directly on point or sufficiently definitive to allow this court to predict how the Iowa Supreme Court would decide the issue presented here." Consequently, the federal court certified to us the following question:
Do the total pollution exclusions in the policies issued by Bituminous to Sand Livestock relieve Bituminous from any obligation to defend or indemnify Sand Livestock, or to pay damages to Mrs. Gossage, for claims arising out of the death of Raymond Gossage?
II. Merits
The issue before us is whether the pollution exclusions found in Sand Livestock's insurance policies exclude coverage for a death caused by the release of carbon monoxide fumes inside a hog confinement facility.
Mrs. Gossage and Sand Livestock urge us to find the policies in question provide coverage for Gossage's death. Mrs. Gossage argues the pollution exclusions are ambiguous because it is unclear whether their scope extends beyond "traditional environmental pollution." Mrs. Gossage reminds us an ambiguous provision is construed in favor of the insured. Under slightly different reasoning, Sand Livestock argues the doctrine of reasonable expectations applies. Sand Livestock argues a reasonable policyholder would expect the pollution exclusions to prevent coverage for "traditional hog confinement problems associated with pollution wastes and smells, and not wrongful death claims based on an alleged negligent design of a hog confinement facility which allowed carbon monoxide to accumulate." Bituminous argues the pollution exclusions clearly and succinctly prevent coverage for carbon monoxide poisoning and Bituminous urges us to hold it has no duty to defend or indemnify Sand Livestock.
A. Whether the Pollution Exclusions are Ambiguous
We begin with our rules of contract interpretation peculiar to insurance policies.
The cardinal principle in the construction and interpretation of insurance policies is that the intent of the parties at the time the policy was sold must control. Except in cases of ambiguity, the intent of the parties is determined by the language of the policy. "An ambiguity exists if, after the application of pertinent rules of interpretation to the policy, a genuine uncertainty results as to which one of two or more meanings is the proper one." Because of the adhesive nature of insurance policies, their provisions are construed in the light most favorable to the insured. Exclusions from coverage are construed strictly against the insurer.
LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 307 (Iowa 1998) (citations omitted).
"[W]hen an insurer has affirmatively expressed coverage through broad promises, it assumes a duty to define any limitations or exclusionary clauses in clear and explicit terms." Grinnell Mut. Reins. Co. v. Jungling, 654 N.W.2d 530, 536 (Iowa 2002) (citing Amco Ins. Co. v. Haht, 490 N.W.2d 843, 845 (Iowa 1992)). Words that are not defined in the policy are given "their ordinary meaning, one that a reasonable *221 person would understand them to mean." Id. (citing A.Y. McDonald Indus. v. Ins. Co. of N. Am., 475 N.W.2d 607, 619 (Iowa 1991)). This is because we interpret insurance policies from the standpoint of an ordinary person, not a specialist or expert. Id. (citing Haht, 490 N.W.2d at 845).
Where the meaning of terms in an insurance policy is susceptible to two interpretations, the one favoring the insured is adopted. However, the mere fact that parties disagree on the meaning of terms does not establish ambiguity. The test is an objective one: Is the language fairly susceptible to two interpretations?
N. Star Mut. Ins. Co. v. Holty, 402 N.W.2d 452, 454 (Iowa 1987) (citations omitted).
Bituminous argues the pollution exclusions unambiguously apply to the facts of this case. It claims carbon monoxide is a "pollutant" as defined by the policy and Gossage's death was clearly due to "dispersal," "release," or "escape" of this "pollutant." The exclusions define "pollutant" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." According to Bituminous, "[t]here is nothing in this broad definition which would exclude carbon monoxide." Bituminous characterizes carbon monoxide as a gaseous irritant or contaminant. Carbon monoxide is defined in the dictionary as "a colorless odorless very toxic gas." Webster's Third New International Dictionary 336 (unabr. ed. rev. 2002).
We agree with Bituminous that carbon monoxide falls within the extremely broad language of the policies' definition of "pollutants." It is difficult to say the exclusions are "fairly susceptible to two interpretations," which is required for us to find the exclusions ambiguous.
Mrs. Gossage argues the exclusion is ambiguous because it is unclear whether the exclusion extends beyond "traditional environmental pollution." She claims her position is supported by the original purpose of pollution exclusions. One commentator explained "the available evidence most strongly suggests that the absolute pollution exclusion was designed to serve the twin purposes of eliminating coverage for gradual environmental degradation and government-mandated cleanup such as Superfund response cost reimbursement." Jeffrey W. Stempel, Reason and Pollution: Correctly Construing the "Absolute" Exclusion in Context and in Accord with Its Purpose and Party Expectations, 34 Torts & Ins. L.J. 1, 32 (Fall 1998); see Am. States Ins. Co. v. Koloms, 177 Ill. 2d 473, 227 Ill. Dec. 149, 687 N.E.2d 72, 81 (1997) ("Our review of the history of the pollution exclusion amply demonstrates that the predominate motivation in drafting an exclusion for pollution-related injuries was the avoidance of the `enormous expense and exposure resulting from the "explosion" of environmental litigation.'"); Bernhardt v. Hartford Fire Ins. Co., 102 Md.App. 45, 648 A.2d 1047, 1049-50 (1994) (detailing the evolution of pollution exclusions). But the plain language of the exclusions at issue here makes no distinction between "traditional environmental pollution" and injuries arising from normal business operations. See Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746, 635 N.W.2d 112, 120 (2001).
The Supreme Court of Illinois, which analyzed a nearly identical exclusion, acknowledged:
A close examination of this language reveals that the exclusion (i) identifies the types of injury-producing materials which constitute a pollutant, i.e., smoke, vapor, soot, etc., (ii) sets forth the physical or elemental states in which the materials *222 may be said to exist, i.e., solid, liquid, gaseous or thermal, and (iii) specifies the various means by which the materials can be disseminated, i.e., discharge, dispersal, release or escape. To that extent, therefore, the exclusion is indeed "quite specific," and those courts wishing to focus exclusively on the bare language of the exclusion will have no difficulty in concluding that it is also unambiguous.
Koloms, 227 Ill. Dec. 149, 687 N.E.2d at 79. Although the court in Koloms looked beyond the "bare language of the exclusion" to find ambiguity, we find it inappropriate and unwise to do so. An ambiguity exists only if the language of the exclusion is "susceptible to two interpretations." Holty, 402 N.W.2d at 454. We may not refer to extrinsic evidence in order to create ambiguity. Becker Warehouse, 635 N.W.2d at 120; Quadrant Corp. v. Am. States Ins. Co., 154 Wash.2d 165, 110 P.3d 733, 742 (2005). Instead, we must enforce unambiguous exclusions as written. Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 461 N.W.2d 291, 294 (Iowa 1990). The plain language in the exclusions encompasses the injury at issue here because carbon monoxide is a gaseous irritant or contaminant, which was released from the propane power washer. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1006 (4th Cir.1998) (finding pollution exclusion unambiguously barred coverage for carbon monoxide poisoning); Essex Ins. Co. v. Tri-Town Corp., 863 F. Supp. 38, 41 (D.Mass.1994) (same); Bernhardt, 648 A.2d at 1052 (same).
B. Whether a Reasonable Policyholder Would Expect Coverage Under These Facts
Sand Livestock argues Bituminous should be required to provide coverage based on the doctrine of reasonable expectations, which Iowa recognizes. Sand Livestock claims an ordinary lay person would not comprehend the breadth of the pollution exclusions. An insured may utilize the doctrine of reasonable expectations to avoid an exclusion that "`(1) is bizarre or oppressive, (2) eviscerates a term to which the parties have explicitly agreed, or (3) eliminates the dominant purpose of the policy.'" Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Federated Mut. Ins. Co., 596 N.W.2d 546, 551 (Iowa 1999) (quoting Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995)). However, in order for the doctrine to apply, the insured must show "`circumstances attributable to the insurer that fostered coverage expectations' or that `the policy is such that an ordinary layperson would misunderstand its coverage.'" Id. (quoting Benavides, 539 N.W.2d at 357).
Because this case comes to us as a certified question from the federal district court, this issue is not properly before us. Iowa Code section 684A.1 (2003) gives this court the power to answer certified "questions of law." The applicability of the doctrine of reasonable expectations is a question of fact that is not within the scope of chapter 684A. Wright v. Brooke Group Ltd., 652 N.W.2d 159, 170 n. 1 (Iowa 2002). Sand Livestock and Mrs. Gossage are free to argue the doctrine of reasonable expectations to the federal district court.
III. Conclusion
We find the pollution exclusions in Sand Livestock's insurance policies bar coverage for Gossage's death, which was caused by carbon monoxide poisoning. Accordingly, our answer to the certified question is "yes."
CERTIFIED QUESTION ANSWERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584390/ | 641 So. 2d 515 (1994)
Edgar GORDON, Petitioner,
v.
ROYAL CARIBBEAN CRUISES LTD., etc., et al., Respondent.
No. 94-989.
District Court of Appeal of Florida, Third District.
August 31, 1994.
*516 Cooper & Wolfe, P.A., Sharon L. Wolfe and Charles R. Lipcon, Miami, for petitioner.
Robert D. Peltz, Miami, for respondent.
Before JORGENSON, LEVY and GREEN, JJ.
PER CURIAM.
Petitioner EDGAR GORDON ("GORDON") seeks the issuance of a writ of certiorari to quash the trial court's order requiring an evidentiary hearing on whether the parties hereto reached a settlement during mediation.
In this action, the parties were ordered to mediation pursuant to court order. The mediator submitted a report to the trial court which indicated that the parties reached a total impasse on all issues and all issues required court action. In a Motion for Sanctions and/or to Enforce Settlement, however, respondent ROYAL CARIBBEAN CRUISES LTD ("ROYAL CARIBBEAN") claims that a settlement was reached between the parties and seeks to have the trial court review a document which purports to be the settlement agreement.
ROYAL CARIBBEAN seeks to establish that the purported settlement agreement is binding even though GORDON did not execute the same because GORDON'S counsel executed the agreement in GORDON'S presence at the mediation. GORDON denies that a settlement agreement was reached herein and contends that the substance of all communications during the mediation is privileged from disclosure pursuant to Fla. Stat. § 44.102(3)[1] and that pursuant to Fla. R.Civ.P. 1.730,[2] the purported settlement *517 agreement was invalid without GORDON's signature.
The trial court ordered an in camera inspection of the purported settlement agreement and an evidentiary hearing on ROYAL CARIBBEAN's motion. In so doing, we find that the trial court departed from the essential requirements of the law.
In order for a settlement agreement reached during mediation to be binding, Fla.R.Civ.P. 1.730 clearly mandates that it be reduced to writing and executed both by the parties and their respective counsel, if any. We find that an attorney's signature alone, albeit in the presence of the client, is wholly insufficient under this rule. The cases relied upon by ROYAL CARIBBEAN, Nichols v. Martell, 612 So. 2d 657 (Fla. 3d DCA 1993); Hamilton v. Hamilton Steel Corp. 409 So. 2d 1111 (Fla. 4th DCA 1982); Bruce Investment Corp. v. Beider, 400 So. 2d 808 (Fla. 3d DCA 1981) did not involve settlement agreements reached during court ordered mediation and accordingly, are inapposite herein.
Since it is clear that the parties hereto did not effectuate a settlement agreement in accordance with the dictates of Fla. R.Civ.P. 1.730(b), the confidentiality afforded to parties involved in mediation proceedings must remain inviolate. Royal Caribbean v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992) (purported oral settlement agreement reached during mediation failed to satisfy the rule); Hudson v. Hudson, 600 So. 2d 7 (Fla. 4th DCA 1992) (a party's written unsigned version of the settlement agreement signed by the mediator was insufficient to permit disclosure).
Accordingly, we issue the writ of certiorari and quash the order below.
NOTES
[1] Fla. Stat. § 44.102(3) provides that:
Each party involved in a court-ordered mediation proceeding has a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing communications made during such proceeding. Notwithstanding the provisions of § 119.14, all oral or written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119 and shall be confidential and inadmissible as evidence in any subsequent legal proceeding unless all parties agree otherwise. This exemption is subject to the Open Government Sunset Review Act in accordance with § 119.14.
[2] Fla.R.Civ.P. 1.730 provides in pertinent part that:
(a) No agreement. If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation... .
(b) Agreement. If an agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any. The agreement shall be filed when required by law or with the parties' consent. .. .
(c) Imposition of Sanctions. In the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorneys' fees, or other appropriate remedies including entry of judgment on the agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584382/ | 728 N.W.2d 246 (2007)
Connie C. REIDER, Respondent,
v.
ANOKA-HENNEPIN SCHOOL DISTRICT NO. 11, Self-Insured, Relator, and
Noran Neurological Clinic, and Blaine Chiropractic Center, Intervenors.
No. A06-1344.
Supreme Court of Minnesota.
March 8, 2007.
*247 Kirk C. Thompson, Cronan Pearson Quinlivan P.A., Minneapolis, MN, for Appellant.
Thomas D. Mottaz, David B. Kempston, Law Office of Thomas Mottaz, Anoka, MN, for Respondent.
Andrew W. Lynn, Lynn Scharfenberg & Assoc., Minneapolis, MN, for Amicus.
Heard, considered and decided by the court en banc.
OPINION
GILDEA, Justice.
The Workers' Compensation Court of Appeals (WCCA) affirmed, by panel majority, the denial of the request made by relator, Anoka-Hennepin School No. 11, for a medical examination by a neutral physician pursuant to Minn.Stat. § 176.155, subd. 2 (2006). The school district sought certiorari review in this court. We reverse and remand.
Since 1992, Connie C. Reider has been employed full-time by Anoka-Hennepin School District No. 11 as an American Sign Language (ASL) interpreter. On April 14, 2003, Reider sought chiropractic care from Dr. Thomas Rice for pain in her neck, shoulders, arms and upper and mid-back. Reider reported a gradual onset of symptoms associated with her work-related ASL interpreting activities. After a few weeks of treatment, the chiropractor recommended exercises. Following an aggravation of symptoms in December 2003, Reider continued with chiropractic treatment, increasing to three times per week but eventually decreasing in frequency to an "as-needed" basis.
After initially paying for Reider's chiropractic care, the school district denied primary liability.[1] On July 23, 2004, Reider filed a claim petition, seeking payment of outstanding medical and chiropractic treatment expenses for Gillette-injuries[2]*248 to the cervical and thoracic spine. Reider also sought compensation for permanent partial disability to the cervical and thoracic spine.
On October 26, 2004, Reider was examined by neurologist Dr. Neil Dahlquist at the request of the school district. Dr. Dahlquist found that Reider had a completely normal range of motion in her spine, including her cervical, thoracic and lumbar spine. He also found that she had normal range of motion in her shoulders, elbows and wrists. Dr. Dahlquist concluded the employee had not sustained "any type of repetitive trauma or Gillette type of injury" and had no permanent injuries as a result of her job as a sign language interpreter.
In February 2005, following a sudden onset of neck pain, Reider was referred to neurologist Dr. Ana Patricia Groeschel. Dr. Groeschel diagnosed a cervical strain causally related to Reider's work as a sign language interpreter. Dr. Groeschel recommended massage therapy, which initially reduced the new symptoms, but when the therapy was no longer effective, Reider discontinued that treatment.
The parties held a settlement conference in February 2005, but no settlement was reached. On March 29, 2005, the school district filed a motion for an examination by a neutral physician pursuant to Minn. Stat. § 176.155, subd. 2. In its request, the school district said "that a dispute exists as to whether the [e]mployee sustained a work injury and, if so, the nature and extent of any such injury." Because "of the disputes herein," the school district argued that Minn.Stat. § 176.155, subd. 2, required the appointment of a neutral physician.[3]
*249 On April 7, 2005, the Office of Administrative Hearings (OAH) filed and served notice of hearing, scheduling the matter for a merits hearing on August 5, 2005. By letter dated June 13, 2005, the school district requested an order on its motion for a neutral-physician examination, or, in the alternative, a continuance. Reider then objected to the designation of a neutral physician, asserting that "in view of the upcoming hearing, it would be untimely to try to secure this opinion."
By order filed on June 30, 2005, the compensation judge denied the school district's motion. The judge provided three grounds for its decision to deny the request: (1) the motion was "deficient in necessary information in order to trigger" the mandatory designation of a neutral physician; (2) the mandatory provision did not apply because there had been no prehearing conference; and (3) the issues presented did not warrant a neutral examiner.[4]
The merits hearing was held as scheduled. During the hearing, Reider described her work activities and the circumstances of the onset of her symptoms. She testified that her symptoms would increase with work activities and decrease over time away from work, especially during the summer months. Other evidence included the medical records and reports from treating neurologist Groeschel and treating chiropractor Rice, both of whom concluded that Reider's condition was causally related to her work as an ASL interpreter. There was also the report from the school district's medical consultant, neurologist Dahlquist, who "found no evidence" of a Gillette-type injury. He concluded that Reider had incurred no permanent disability as a result of her work activities as an ASL interpreter and would not recommend any kind of restrictions.
Primarily in reliance on the medical records and the opinions of healthcare providers Groeschel and Rice, the compensation judge found that Reider sustained Gillette-type injuries to the cervical and thoracic spine, and awarded compensation for a 12.5 percent permanent partial disability. On appeal, the WCCA affirmed the primary liability determination and the award of permanent partial disability compensation. By panel majority, the WCCA also affirmed the compensation judge's denial of the school district's request for a neutral-physician examination. The school district obtained review by certiorari, challenging only the denial of the neutral-physician examination.
I.
This case requires that we examine provisions within the Workers' Compensation Act regarding the use of neutral physicians. We review de novo this statutory question. See Zurich American Ins. v. Bjelland, 710 N.W.2d 64, 68 (Minn.2006).
At the time of its adoption in 1913, the Workers' Compensation Act provided for the discretionary appointment of a neutral *250 physician to conduct an examination of the injured worker. Act of April 24, 1913, ch. 467, § 21, 1913 Minn. Laws 675, 685 (codified at Minn.Stat. § 8215 (1913)). In 1979, the legislature amended the statute to provide for the mandatory appointment of a neutral physician in cases in which an interested party requested such an appointment at least 30 days before the prehearing conference. Act of June 7, 1979, ch. 3, § 48, 1979 Minn. Laws Ex.Sess. 1256, 1286-87 (codified at Minn.Stat. § 176.155, subd. 2 (Minn.2000)). According to the 1979 legislation, the Commissioner of Labor and Industry "shall develop and maintain a list of neutral physicians available for designation pursuant to this subdivision." Id. In 2002, the statute was amended to delete the requirement for a list of neutral physicians. Act of March 22, 2002, ch. 262, § 15, 2002 Minn. Laws 268, 274 (codified at Minn.Stat. § 176.155, subd. 2 (2004)). The WCCA said it was not aware of any current lists of neutral physicians maintained by the Department of Labor and Industry (DOLI) or OAH; and that neither DOLI, OAH nor the WCCA had rules for an examination by a neutral physician. Reider v. Anoka-Hennepin Sch. Dist. No. 11, No. WC05-276, 2006 WL 1977512, at *7 (Minn. WCCA June 21, 2006).
The neutral physician provisions specifically at issue in this case are contained in Minn.Stat. § 176.155, subd. 2. This subdivision begins by providing that the compensation judge "may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker and report the findings." (Emphasis added.) The subdivision continues that "when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation." Minn.Stat. § 176.155, subd. 2 (emphasis added).
The school district contends that its request falls within the later, or mandatory, portion of the subdivision and that the compensation judge's refusal to grant the request conflicts with the plain reading of the statute. Reider contends that the mandatory provision did not apply here because there was no prehearing conference in this case. The plain meaning of the statute supports the school district's reading.
The subdivision does not provide that a prehearing conference is a condition precedent as Reider argues. If that is what the legislature meant, it could have written the subdivision to read: "if there is a prehearing conference and an interested party requests, not later than 30 days prior to the scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation." The plain language of the statute does not make a prehearing conference such a condition and we cannot add terms that the legislature has omitted. See Genin v. 1996 Mercury Marquis, VIN No. 2MEBP95F9CX644211, License No. MN 225 NSG, 622 N.W.2d 114, 119 (Minn. 2001).[5]
In the alternative, Reider argues, and the WCCA panel majority found, that the two provisions of subdivision 2 are inconsistent thereby creating an ambiguity. *251 Specifically, the WCCA majority noted that the statute provides
that the compensation judge conducting the hearing "may with or without the request of any interested party, designate a neutral physician" and "may request the neutral physician to answer any particular question with reference to the medical phase of the case." (Emphasis added.) These provisions clearly leave whether to seek the assistance of a neutral physician to the discretion of the compensation judge and appear to conflict with the apparent mandatory language.
Reider, 2006 WL 1977512, at *8.[6]
The WCCA majority pointed to the legislature's purpose as a way to resolve the inconsistency, noting that chapter 176 was enacted to ensure prompt and efficient resolution of workers' compensation disputes. 2006 WL 1977512, at *9. Leaving the appointment of a neutral physician within the discretion of the compensation judge serves this purpose according to the WCCA majority. Because the compensation judge is the fact-finder, she is in the best position to determine whether a neutral physician is necessary. In this case, which the WCCA majority termed "routine," the legislative purpose is served by respecting the fact-finder's determination that a neutral physician was not necessary.[7]
We do not conclude that subdivision 2 is ambiguous. The subdivision must be read so as to give effect to all of its provisions. See Owens v. Federated Mut. Implement & Hardware Ins., 328 N.W.2d 162, 164 (Minn.1983). When the statute is read to give effect to both provisions regarding the designation of neutral physicians, there is no conflict. The first provision gives the compensation judge the discretion to appoint a neutral physician when she believes it necessary, even if there has not been a request by the parties. This provision also gives the compensation judge discretion to appoint a neutral physician when a party has made a request but the request is not timely because the request is made less than 30 days before the prehearing conference. The second provision removes this discretion when a party has made a request and the request falls within the time deadline providednot later than 30 days before a scheduled prehearing conference. The two provisions thus are complementary, not inconsistent.[8]
*252 Even if we were to conclude that the two provisions were inconsistent, the mandatory provision would still control. The legislature has provided that where a general provision in a statute conflicts with a specific provision "in the same or another law," the specific provision controls. Minn.Stat. § 645.26, subd. 1 (2006). The general provision here would be the discretionary provision allowing the appointment of a neutral physician with or without a request. The specific provision would be the mandatory provision addressing a timely request by an interested party. As the legislature has directed, the specific controls the general. Id.; see also Westrom v. Mn. Dept. of Labor and Indus., 686 N.W.2d 27, 36 (Minn.2004) (applying specific provision over general). The legislature has also provided that "[w]hen, in the same law, several clauses are irreconcilable, the clause last in order of date or position shall prevail." Minn.Stat. § 645.26, subd. 2 (2006). Applying this principle, the mandatory provision, having been enacted after the discretionary provision, and being last in position, would control the decision here.
Finally, we recognize that the WCCA majority concluded that "practical problems" would result from a conclusion that a party's timely request for a neutral physician always requires appointment. The WCCA majority specifically noted that a mandatory neutral-physician-examination process will be difficult to implement, particularly in the absence of a list of available neutral physicians or any rules establishing procedures for the designation of a neutral physician.
We are not unmindful of these concerns. Although a mandatory neutral-physician-examination process will probably not be without administrative burden or expense, "[i]t is for the legislature, not the [c]ourt, to judge the social utility of this statutory system, which has no common law counterpart, to balance the interests of employees and employers, and to make whatever adjustments and corrections it deems appropriate." Parson v. Holman Erection Co., Inc., 428 N.W.2d 72, 76 (Minn.1988).
We hold that the neutral-physician-examination provision, Minn.Stat. § 176.155, subd. 2, is mandatory when an interested party makes a timely request for a neutral physician. The school district made its request for a neutral physician within the time deadline specified in Minn.Stat. § 176.155, subd. 2. Where, as here, the request is timely, the compensation judge has no discretion under the plain language of the statute to deny the request.
II.
In its plea for relief, the school district requests that in the event a neutral-physician examination is allowed, the matter be remanded not only for the examination but also for appointment of a different compensation judge and a new hearing. We decline to grant this request. As the WCCA dissenting panel member noted, "compensation judges are experienced factfinders, and possess the integrity and willingness to review newly-received evidence and to re-evaluate the issues in view of that new evidence." Reider, 2006 WL 1977512, at *11.
We reverse the denial of a neutral-physician examination and remand the matter for further proceedings and redetermination on the existing record as supplemented by new evidence provided by the neutral physician.
Reversed and remanded.
ANDERSON, RUSSELL A., C.J., took no part in the consideration or decision of this case.
*253 MEYER, Justice (dissenting).
I respectfully dissent. The school district's position, adopted by the majority, removes the compensation judge's discretion from the statute, is inconsistent with the function of a medical examination in the resolution of medical questions, and undermines the legislative plan for the efficient delivery of compensation to injured workers. I would conclude that the statute is not clear and free from all ambiguity, and that it should more reasonably be read as providing for the mandatory appointment of a neutral physician only when there is a genuine need for such evidence.
Minnesota Statutes § 176.155, subd. 2 (2006), makes the appointment of a physician both discretionary and mandatory upon the request of an interested party. The statute provides:
In each case of dispute as to the injury the commissioner of labor and industry, or in case of a hearing the compensation judge conducting the hearing, or the Workers' Compensation Court of Appeals if the matter is before it, may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker * * *, and further provided that when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation.
Minn.Stat. § 176.155, subd. 2 (emphasis added). The statute further provides that the compensation judge "may request the neutral physician to answer any particular question with reference to the medical phases of the case." Id. (emphasis added).[9] In my view, reading the "shall make" language as mandatory upon timely request effectively extinguishes the discretion conferred through the "may with or without the request" clause. Moreover, to mandate an additional medical examination whenever the self-insured employer or insurance carrier makes a timely request seriously impedes the overarching intent of the legislature in providing medical and wage-loss compensation quickly and efficiently at a reasonable cost to employers[10] and is problematic in its implementation.[11]
The rule in this state is that a conflict in expert medical testimony must be resolved *254 by the factfinder. Nord v. City of Cook, 360 N.W.2d 337, 342 (Minn.1985). The neutral-physician examination statute was therefore designed to vest in the compensation judge "the discretionary power to appoint a neutral physician when, in the exercise of its judicial discretion, it would be needful or desirable in arriving at a decision." See Hosking v. Metropolitan House Movers Corp., 272 Minn. 390, 397, 138 N.W.2d 404, 408 (1965). The study commission's recommendation, from which the 1979 amendment was drawn, contemplated "a check on the inconsistency of medical testimony and a means to provide a resolution of genuinely disputed medical issues which are beyond the capacity of the court to resolve." Minnesota Workers' Compensation Study Commission, A Report to the Legislature and Governor 37-38 (1979).[12] As a corollary, it seems to me that the neutral-physician examination provision would have no justifiable application in the common medical-causation dispute.[13] I believe the more reasonable construction of the statute, that gives meaning to all terms and effectuates legislative intent, is that the compensation judge has discretion to appoint a neutral physician upon request made at any time, but that such appointment is mandatory upon timely request only when genuinely disputed medical issues are inherently complex. I would affirm.
PAGE, Justice (dissenting).
I join in the dissent of Justice Meyer.
NOTES
[1] "In primary liability issues, the question is whether the injury arose out of and in the course of employment." Jackson v. Red Owl Stores, Inc., 375 N.W.2d 13, 17 (Minn.1985).
[2] Gillette v. Harold, Inc., 257 Minn. 313, 317-22, 101 N.W.2d 200, 204-07 (1960) (holding that where a preexisting infirmity is aggravated by repetitive trauma as a result of the ordinary and necessary duties of employment, the disability resulting from such aggravation is compensable as a personal injury under the workers' compensation statute).
[3] Minnesota Statutes § 176.155, subd. 2, provides:
In each case of dispute as to the injury the commissioner of labor and industry, or in case of a hearing the compensation judge conducting the hearing, or the Workers' Compensation Court of Appeals if the matter is before it, may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker and report the findings to the commissioner of labor and industry, compensation judge, or the Workers' Compensation Court of Appeals, as the case may be; provided that the request of the interested party must comply with the rules of the commissioner of labor and industry and the Workers' Compensation Court of Appeals regulating the proper time and forms for the request, and further provided that when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation. When a party has requested the designation of a neutral physician prior to a prehearing conference, that party may withdraw the request at any time prior to the hearing. The commissioner of labor and industry, compensation judge, or the Workers' Compensation Court of Appeals, as the case may be, may request the neutral physician to answer any particular question with reference to the medical phases of the case, including questions calling for an opinion as to the cause and occurrence of the injury insofar as medical knowledge is relevant in the answer. A copy of the signed certificate of the neutral physician shall be mailed to the parties in interest and either party, within five days from date of mailing, may demand that the physician be produced for purposes of cross-examination. The signed certificate of a neutral physician is competent evidence of the facts stated therein. The expense of the examination shall be paid as ordered by the commissioner of labor and industry, compensation judge, or the Workers' Compensation Court of Appeals.
[4] In denying the neutral-physician-examination motion, the compensation judge reasoned, in part:
WHEREAS, the Motion did not provide the following necessary documents: a complete medical history, medical records, history of the alleged injury, description of job duties, list of questions to be addressed, or list of possible neutral physicians who are willing and available to examine the employee and provide a narrative report in a timely manner; and
WHEREAS, the Motion for Neutral Physician is deficient in necessary information in order to trigger the provisions of Minn. Stat. § 176.155, subd. 2 * * *.
The compensation judge made no reference to applicable rules or other authority as to the information necessary "to trigger the provisions" of the statute, and we have found none.
[5] Reider cites Hosking v. Metropolitan House Movers Corp., 272 Minn. 390, 138 N.W.2d 404 (1965), and Stotz v. Sabin Bros., 257 N.W.2d 359 (Minn.1977), to support her argument that the designation of a neutral physician should be discretionary in all cases. These cases are not helpful to the issue presented here because they involve application of the statute before the mandatory provision was enacted in 1979.
[6] The WCCA majority also noted that Minn. Stat. § 176.391, subd. 2 (2006), gives compensation judges discretion to appoint neutral physicians and other experts. Reider, 2006 WL 1977512, at *8.
[7] The dissent argues that the statute is "more reasonably * * * read as providing for the mandatory appointment of a neutral physician when there is a genuine need for such evidence." The legislature could have engrafted this condition onto the mandatory portion of the statute. It did not do so and it would be inconsistent with our precedent for us to rewrite the statute to include the dissent's "genuine need" requirement. See Genin, 622 N.W.2d at 119.
[8] The dissent contends that this reading "removes the compensation judge's discretion from the statute." To the contrary, this reading ensures that both provisions in the statutediscretionary and mandatoryare given effect. It is the dissent's construction that renders a provision of the statutethe mandatory provisiona nullity. Under the dissent's reading, the appointment of a neutral physician would be "mandatory" only if the compensation judge first found that there was a "genuine need" for this evidence. This construction is simply another way of saying the appointment of a neutral physician is up to the discretion of the compensation judge and ignores the legislature's directive that "when an interested party requests * * * the compensation judge shall make such a designation." See Minn.Stat. § 176.155, subd. 2.
[9] In addition, any party "may demand that the physician be produced for purposes of cross-examination." Minn.Stat. § 176.155, subd. 2. And, "[t]he expense of the examination shall be paid as ordered by the * * * compensation judge." Id. However, there is no funding mechanism for the additional medical examination and no provision for the expense of the physician's cross-examination.
[10] Minnesota Statutes § 176.001 (2006) provides that "[i]t is the intent of the legislature that chapter 176 be interpreted so as to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter."
[11] As the WCCA observed:
In most cases, the resolution of a medical issue depends not solely on the opinion of the doctor but upon the testimony of witnesses and upon the credibility attached by the compensation judge to those witnesses. Typically, an attorney for one party or the other will provide these facts to an examining doctor in a hypothetical question. Absent any rules governing the utilization of a neutral physician, we do not know what factual information would be communicated to a neutral physician, particularly when the examination occurs prior to the hearing. Presumably, the compensation judge could not do so until the judge has heard the evidence. We further note there is no designated list of neutral physicians or any rules establishing procedures for the appointment of a neutral physician.
Reider v. Anoka-Hennepin Sch. Dist. No. 11, No. WC05-276, 2006 WL 1977512, at *9 (Minn. WCCA June 21, 2006).
[12] There are situations in which expert opinion as to cause and effect may be desirable, but it is not always essential given other reliable evidence. See Reimer v. Minnit Tool/ M.I.T. Tool Corp., 520 N.W.2d 397, 398 (Minn.1994) (holding that medical opinion connecting return of carpal tunnel syndrome-type symptoms to postinjury employment was not essential). On the other hand, expert testimony is deemed indispensable when the question is complicated and "carries the factfinders into realms that are properly within the province of medical experts." 7 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 128.05(1) (2006) (summarizing cases on basic rule when medical testimony is indispensable); see, e.g., Stevens v. Computer Metal Prods., Inc., 312 N.W.2d 450, 453 (Minn.1981) (holding that expert medical opinion essential to causal relationship between work injury and ongoing disability). "Since the underlying reason for the rule requiring medical evidence in this class of cases is the inherent complexity of the medical question involved, it follows logically that when the medical problem becomes sufficiently abstruse, the rule can be satisfied only by corresponding expertise in the medical witness * * *." Larson & Larson, supra, § 128.05(8). "[A]s the degree of complexity of the medical issue increases, so does the degree of requisite thoroughness and definiteness of [expert medical opinion regarding] diagnosis." Id., § 128.05(9).
[13] As the WCCA observed, the neutral-physician statute was not meant "to give a party the right to an additional medical expert." Reider, 2006 WL 1977512, at *8. The employee is already obligated to submit to a medical examination by the employer's physician. Minn.Stat. § 176.155, subd. 1 (2006). It seems to me most unlikely that the legislature intended to compel an additional medical examination in the absence of some legitimate need for such evidence in the accurate determination of the disputed medical question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584367/ | 641 So. 2d 1100 (1994)
Jack Thomas CROWE
v.
Shirley Scott CROWE.
No. 91-CA-0553.
Supreme Court of Mississippi.
August 4, 1994.
*1101 Gregory D. Keenum, Booneville, for appellant.
Jak M. Smith, Tupelo, for appellee.
Before DAN M. LEE, P.J., and McRAE and SMITH, JJ.
DAN M. LEE, Presiding Justice for the Court:
This appeal challenges certain provisions of a final divorce decree entered on May 2, 1991. Jack Crowe initially filed a complaint for divorce on the ground of habitual cruel and inhuman treatment. Shirley Crowe responded by filing a counter-complaint on the same ground and Mr. Crowe did not contest her complaint. Shirley was granted a divorce on the ground of habitual cruel and inhuman treatment. She was granted lump sum and periodic alimony and the right to have her automobile and the jointly owned home in her exclusive possession repaired at Jack's expense. Additionally, Jack was ordered to refrain from altering Shirley's status as the recipient of survivor benefits under his pension contract.
Jack did not contest the granting of the divorce below, nor does he challenge it on appeal. He has, however, duly perfected his appeal with respect to the following assignments of error:
I. The trial court erred in setting the amount of alimony of a 10-year marriage at $300.00 from the Appellant's retirement earnings.
II. The trial court erred in granting lump sum alimony in addition to periodic alimony without any basis on the record that the Appellant had the ability to pay such award and that the parties have disparate estates and without it being included in the pleadings.
III. The trial court erred in ordering the Appellant to be responsible for repairs to be made on the automobile granted to the Appellee, as this was not embraced by the pleadings and should not have been properly before the court.
IV. The trial court erred in ordering the Appellant to pay for any repair costs which the Appellee spent on the jointly-owned property and it further improperly imposed liens against the Appellant's interest in the home.
V. The trial court erred in enjoining the Appellant from changing the death beneficiary of his pension plan to anyone other than the Appellee.
VI. The trial court erred in requiring the Appellant to pay attorney's fees for Appellee's attorney in this action.
We find no error and affirm the judgment of the lower court on Assignments I, II, III, IV, and VI. The lower court erred, however, in granting an interest in Jack's pension to Shirley without making the requisite findings of fact required by our case law. Accordingly, we reverse the lower court on Assignment V, and remand for a proper determination of Shirley's rights with respect to Jack's pension.
STATEMENT OF THE FACTS
Jack Thomas Crowe and Shirley Scott Crowe were married in 1980, and thereafter resided in Lee County until their separation in 1990. Jack was 55 and Shirley was 45 when they wed. Jack worked as a truck driver for Roadway. Shirley was unable to work for medical reasons. After the wedding, both engaged in buying and selling various items in what they referred to as the "junking" business. Jack Crowe retired from Roadway in 1985, but he continued his *1102 other business ventures, including the junking business.
Neither party brought significant assets into the marriage. Jack had some equity in the house where the couple lived and a small amount of cash. However, substantial assets were accumulated during the union apparently through the efforts of both the parties. First, the Crowes were able to retire the mortgage on their home, referred to as the "North Thomas Street house." Jack deeded the home to both of them as joint tenants. The value of the North Thomas Street House was estimated by Mr. Crowe to be around $65,000.00. The couple also acquired two rental houses during the marriage. The first was located in Saltillo, and was paid for in full with a check for $32,500.00. It was appraised at $37,000.00 in anticipation of the trial. The second, in Tupelo, was appraised at $33,500.00 and was encumbered with a mortgage requiring payments of $251.00 per month. Jack and Shirley were also able to save large amounts of cash which they apparently kept hidden from each other in the North Thomas Street house. Jack testified that he found about $20,000.00 in cash in Shirley's bathroom in November of 1989. Shirley disputed the amount and countered with testimony that she had found and counted $30,000.00 that Jack kept on the premises. Both denied hiding money, claiming instead that the other had full knowledge of the cash.
Around the time that the couple separated, Jack withdrew $10,000.00 from their joint bank account and Shirley withdrew the remaining $5,000.00. Apparently, this money was separate from and in addition to the cash on hand at the house.
At the time of the trial, Jack Crowe was receiving $765.00 each month as a pension and $648.00 per month from Social Security, for a total of $1413.00 per month. Shirley Crowe was drawing $525.00 per month in Social Security disability benefits. There was disputed testimony as to whether Jack would continue to have income from the "junking" business.
The chancellor held that all the real property was jointly owned by Jack and Shirley. He awarded sole possession of the Thomas Street house to Shirley and exclusive possession of the other two houses was given to Jack. Jack was charged with paying for necessary repairs on the home and automobile used by Shirley. Shirley was awarded $4,500.00 in lump sum alimony and $300.00 per month in periodic alimony. Jack was also enjoined from changing his pension arrangement which designated Shirley as the recipient of survivor benefits, and he was ordered to pay Shirley's attorney's fees.
On appeal, Jack Crowe challenges the alimony awards, the award of repair expenses, the order to refrain from changing his pension arrangement, and the award of attorney's fees.
I. The trial court erred in setting the amount of alimony of a 10-year marriage at $300.00 from the Appellant's retirement earnings.
This Court's standard of review is limited in domestic relations cases where the chancery court has decided upon terms of alimony. In such cases the award will not be altered on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error. Tilley v. Tilley, 610 So. 2d 348 (Miss. 1992); McNally v. McNally, 516 So. 2d 499, 501 (Miss. 1987); Harrell v. Harrell, 231 So. 2d 793 (Miss. 1970).
This Court considers several factors in evaluating an award of periodic alimony. These factors include: (1) the health and earning capacity of the husband, (2) the health and earning capacity of the wife, (3) the reasonable needs of the wife, (4) the husband's necessary living expenses, and (5) other factors such as estimated amount of income taxes, the use of the family home or automobile, and the payment of insurance. Monroe v. Monroe, 612 So. 2d 353 (Miss. 1992); Boykin v. Boykin, 565 So. 2d 1109, 1111 (Miss. 1990); McNally v. McNally, 516 So. 2d 499, 501 (Miss. 1987); Skinner v. Skinner, 509 So. 2d 867, 868 (Miss. 1987); Brabham v. Brabham, 226 Miss. 165, 84 So. 2d 147 (1955). Both parties are entitled to a "decent standard of living," whenever possible. Monroe, 612 So.2d at 357; Gray v. Gray, 562 So. 2d 79, 83 (Miss. 1990).
*1103 At the time of trial, Jack Crowe was retired and in his late sixties. Shirley Crowe was in her late fifties and permanently disabled. Neither party had extensive earning capacity, although Jack apparently continued to realize some additional revenue from his junk business.
Shirley testified that her monthly expenses were about $1111.71 and her monthly income was $525.00. Jack testified to monthly income of $1413.00 and expenses of approximately $1121.00. The award of $300.00 per month is not at odds with the reasonable needs demonstrated by the parties.
As for other factors, there are none that support the conclusion that the chancellor erred in awarding the periodic alimony. Income taxes are minimal. Both parties were awarded exclusive use of an unencumbered home[1] and at least one automobile. Jack was ordered to pay taxes and insurance on all three jointly owned parcels for a period of two years.
Viewing this award in light of the facts discussed above and the relevant considerations established by prior cases, the chancellor committed no manifest error in determining the amount of periodic alimony. Accordingly, this assignment of error is without merit.
II. The trial court erred in granting lump sum alimony in the amount of $4500.00 in addition to periodic alimony without any basis on the record that the Appellant had the ability to pay such award and that the parties have disparate estates and without it being included in the pleadings.
In a proper case, the chancellor can award alimony payable in one lump sum or periodic alimony, payable monthly, or both, dependent upon the circumstances of the parties. Tilley v. Tilley, 610 So. 2d 348 (Miss. 1992); Miller v. Miller, 173 Miss. 44, 159 So. 112 (1935).
The factors to be considered are: (1) the existence of substantial contributions to the accumulation of wealth of the payor either by quitting a job to become a housewife or by assisting in the payor's business, (2) the length of the marriage, (3) the lack of separate income or the existence of comparatively meager income for the recipient, and, (4) lack of financial security in the absence of an award. See Tilley v. Tilley, 610 So. 2d 348 (Miss. 1992); Retzer v. Retzer, 578 So. 2d 580, 592 (Miss. 1990); Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988).
In the present case, there was contradicting testimony as to the extent of Shirley's assistance in the "junking" business. She did assist in the business to some extent. Exhibits consisting of sales receipts in Shirley's handwriting support the conclusion that she participated in the business. As for the next factor, the marriage lasted roughly ten years. Neither party has enviable separate income or financial security. Jack receives $1413.00 per month as compared to Shirley's $525.00. Jack was able to obtain $10,000.00 from the couples' joint checking account as compared to $5000.00 removed by Shirley. Finally, Jack was awarded sole ownership of two vehicles used during the marriage whereas Shirley received only one.
In light of the facts of this case and the appropriate legal considerations, the chancellor committed no manifest error in awarding $4500.00 in lump sum alimony to Shirley.
Beyond the amount of the lump sum alimony, Jack Crowe also challenges the award as beyond the scope of the pleadings. Shirley's complaint asked for the following:
1. A reasonable sum to be paid periodically by the Counter-defendant as permanent support and maintenance for Counter-plaintiff;
11. Counter-plaintiff prays for such other relief as to the Court may seem right and proper and as in duty bound will ever pray.
"Mississippi divorce actions are governed by the divorce and alimony provisions of section 93, chapter 5 of the Mississippi Code." Rawson v. Buta, 609 So. 2d 426, 430 (Miss. 1992). The procedural provisions of the Mississippi Rules of Civil Procedure are *1104 only applicable when this statute is silent. Id. However, where the issue is the sufficiency of the pleadings to support a specific award, the general rules of pleading govern as there is no inconsistent statutory provision. Smith v. Smith, 607 So. 2d 122, 127 (Miss. 1992).
"The purpose of Rule 8 is to give notice, not to state facts and narrow the issues as was the purpose of pleadings in prior Mississippi practice." Comment, M.R.C.P. 8. "The rule allows the claims to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel." Id. Furthermore, "under the general prayer, any relief will be granted which the original bill justifies and which is established by the main facts of the case, so long as the relief granted `will not cause surprise or prejudice to the defendant.'" Smith v. Smith, 607 So. 2d 122, 127 (Miss. 1992).
In this case, the complaint does not specifically ask for lump sum or periodic alimony. Instead it asks for permanent support and maintenance and other general relief. However, Jack could not reasonably be said to have been surprised by the chancellor's award of alimony in a divorce action. As this Court has recently stated:
It is the duty of the court, regardless of the pleadings of the parties, to fully inquire into the facts and circumstances of each case and to act accordingly.
Rawson v. Buta, 609 So. 2d 426, 430 (Miss. 1992).
For the foregoing reasons, this assignment of error is without merit.
III. The trial court erred in ordering the Appellant to be responsible for repairs to be made on the automobile granted to the Appellee, as this was not embraced by the pleadings and should not have been properly before the court.
IV. The trial court erred in ordering the Appellant to pay for any repair costs which the Appellee spent on the jointly-owned property and it further improperly imposed liens against the Appellant's interest in the home.
Again, Jack was not unfairly surprised by either of these issues. These assignments of error are without merit.
V. The trial court erred in enjoining the Appellant from changing the death beneficiary of his pension plan to anyone other than the Appellee.
Despite the fact that Jack and Shirley were married only during the final five years of Jack's lengthy career in the freight business, the chancellor ordered Jack Crowe to refrain from removing Shirley as the recipient of the survivor benefit under his pension. Thus, under the lower court's decree, if Shirley outlives Jack she would receive approximately $332.00 per month for the remainder of her life.
Jack argues that the injunction violates the cardinal rule that the periodic alimony ends with the death of the payor. See e.g., Bowe v. Bowe, 557 So. 2d 793, 794 (Miss. 1990). He offers no authority for the proposition that the property right granted is periodic alimony.
Shirley argues, also without authority, that the interest granted is lump sum alimony, representing a division of the vested property rights of both parties to the pension proceeds.
Both parties misapprehend the true nature of the award granted below. Although the benefit amount Shirley would receive after Jack's death is roughly equivalent to the periodic award she would receive during his life, it is apparent that the lower court in fact effected a division of the property rights in the pension money. The record does not show the terms of Jack's pension contract, and we are thus unable to determine whether he would be able to realize some present economic benefit from removing his ex-wife as survivor beneficiary. Jack felt that he would receive an additional $132 per month if he were allowed to remove Shirley as survivor beneficiary. At any rate, the chancellor made no finding supporting his apportionment of the fund, and our case law does not allow for an "automatic" division of pension property between divorcing spouses. Accordingly, the lower court's ruling must be reversed on this issue and the matter remanded for a determination based on appropriate findings.
*1105 "We have long recognized that, incident to a divorce, the Chancery Court has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties." Brown v. Brown, 574 So. 2d 688, 690 (Miss. 1990). See Brendel v. Brendel, 566 So. 2d 1269, 1273 (Miss. 1990); Jones v. Jones, 532 So. 2d 574, 580-81 (Miss. 1988); Regan v. Regan, 507 So. 2d 54, 56 (Miss. 1987); Watts v. Watts, 466 So. 2d 889, 891 (Miss. 1985); Clark v. Clark, 293 So. 2d 447, 450 (Miss. 1974). Furthermore, only "[a] spouse who has made a material contribution toward the acquisition of an asset titled in the name of the other may claim an equitable interest in such jointly accumulated property." Jones v. Jones, 532 So. 2d 574, 581 (Miss. 1988) (emphasis added).
In this particular case the lower court made no findings that Shirley contributed to the accumulation of the funds in the pension plan. To grant Shirley an interest in her husband's pension in the absence of such findings was error. Accordingly, we reverse and remand for a proper determination of the parties' rights with respect to the pension fund. See Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994).
VI. The trial court erred in requiring the Appellant to pay attorney's fees for Appellee's attorney in this action.
The chancellor awarded Shirley Crowe attorney's fees in the amount of $1,425.00. The legal rules applicable to such awards in divorce actions are as follows:
[T]he determination of attorney's fees is largely within the sound discretion of the chancellor. Martin v. Martin, 566 So. 2d 704 (Miss. 1990); Devereaux v. Devereaux, 493 So. 2d 1310 (Miss. 1986); Kergosien v. Kergosien, 471 So. 2d 1206 (Miss. 1985). We are "reluctant to disturb a chancellor's discretionary determination whether or not to award attorney fees and of the amount of [any] award." Geiger v. Geiger, 530 So. 2d 185, 187 (Miss. 1988).
We follow the general rule that where "a party is financially able to pay her attorney, an award of attorney's fees is not appropriate." Martin v. Martin, supra, 566 So.2d at 704; Carpenter v. Carpenter, 519 So. 2d 891 (Miss. 1988); Harrell v. Harrell, 231 So. 2d 793 (Miss. 1970). In Cheatham v. Cheatham, 537 So. 2d 435 (Miss. 1988), we held that the chancellor abused his discretion in awarding attorney's fees where there was insufficient evidence in the record to establish the wife's inability to pay.
Smith v. Smith, 614 So. 2d 394, 398 (Miss. 1993).
In the present case Jack Crowe asserts that there was insufficient evidence in the record to support the chancellor's conclusion that Shirley was unable to pay her attorney. However, the chancellor did have testimony and exhibits tending to show Shirley's monthly income ($525) and expenses ($1100.00), as well as her cash on hand. Under these circumstances he did not abuse his discretion in awarding fees.
CONCLUSION
After careful review, we are of the opinion that the Assignments I, II, III, IV, and VI set out above are without merit. The learned chancellor committed no error in deciding these issues. However, it was error for the lower court to award Shirley a portion of Jack's pension without proper findings in support of such a ruling. Accordingly, that portion of the lower court's judgment that purports to enjoin Jack Crowe from altering his survivor beneficiary is reversed and remanded for a proper determination of the parties' respective interests in the pension fund. All other aspects of the chancellor's decision are affirmed.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
SULLIVAN, PITTMAN, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
PRATHER, P.J., concurs in part and dissents as to part V. with separate written opinion joined by HAWKINS, C.J., and BANKS, J.
PRATHER, Presiding Justice, concurring in part, dissenting in part:
I write separately to express my concurrence in part and dissent in part to the *1106 majority opinion. In my view, the chancellor, as the fact finder, was supported in the record in his decision. I find no evidence indicating he was manifestly in error.
As to the award of periodic and lump sum alimony, I concur with the majority opinion. However, I dissent as to the majority opinion's holding regarding the pension plan. I disagree with the premise of the majority that Shirley must have made monetary contribution to Jack's pension plan in order to receive any benefits therefrom.
This Court has recognized that "contributions" to support an award of lump sum alimony may be in the nature of "in-kind" services. Jones v. Jones, 532 So. 2d 574, 580 (Miss. 1988). Cf. Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983); Jenkins v. Jenkins, 278 So. 2d 446, 449 (Miss. 1973). This Court has instructed that an award of lump sum alimony may be made from marital assets, without regard to whether the payee spouse has made a monetary contribution toward acquisition of such assets. White v. White, 557 So. 2d 480, 485 (Miss. 1989). Additionally, we have defined a military retirement benefit as a marital asset to be considered in the division of marital property. Powers v. Powers, 465 So. 2d 1036, 1037 (Miss. 1985). See also Southern v. Glenn, 568 So. 2d 281, 283-84 n. 1 (Miss. 1990).
The record does support the fact that while Jack was making contributions to his pension plan, Shirley lived with him and the couple worked together to accumulate marital assets. I find no manifest error in the chancellor's considering the pension plan as a marital asset subject to equitable division. However, I would concur with a remand as to that feature of the award to evaluate the award in light of the guidelines for division of future interests contained in our recent decisions in Parker v. Parker, 641 So. 2d 1133, decided August 4, 1994, and Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994).
HAWKINS, C.J., and BANKS, J., join this opinion.
NOTES
[1] Although Mr. Crowe's brief indicates that the Saltillo home awarded to him was destroyed by a tornado in 1992, this has no bearing on the propriety of the original decree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744509/ | 998 So. 2d 621 (2008)
ZIMMERMAN
v.
STATE.
No. 3D08-3112.
District Court of Appeal of Florida, Third District.
December 31, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584513/ | 717 F.Supp. 1439 (1989)
Bailey L. WILLOUGHBY, Plaintiff,
v.
Walter LUSTER, et al., Defendants.
No. CV-N-87-167-ECR.
United States District Court, D. Nevada.
May 2, 1989.
*1440 Bailey L. Willoughby, Indian Springs, Nev., pro se.
Robert J. Gower, Deputy Atty. Gen., Las Vegas, Nev., for defendants.
ORDER
EDWARD C. REED, Jr., Chief Judge.
The case at bar is a civil rights complaint filed pursuant to 42 U.S.C. 1983 by plaintiff Willoughby, a Nevada prison inmate, against the warden of the Southern Nevada Correctional Center ("SNCC") and three members of a disciplinary committee at SNCC.
This Court assigned the case to the United States Magistrate for all matters within her jurisdiction. Pursuant to that assignment, the Magistrate has submitted a Report and Recommendation advising this Court to deny the defendants' motion for summary judgment as to Counts I and II in plaintiff's complaint. The Magistrate also recommends, however, the granting of defendants' *1441 motion for summary judgment as to Counts III and IV and the lost property claim in plaintiff's complaint. See Magistrate's Report and Recommendation entered January 4, 1989 (hereinafter "Initial R & R"). Both parties have filed objections to this Initial R & R. Since the defendants' objections included an evidentiary affidavit that had not been presented to the Magistrate, this Court referred the defendants' objections back to the Magistrate for a Supplemental Report and Recommendation. The Magistrate has submitted her Supplemental Report and Recommendation to this Court and neither party has filed any objections to it. See Magistrate's Supplemental Report and Recommendation entered March 8, 1989 (hereinafter "Supplemental R & R"). Pursuant to 28 U.S.C. 636(b)(1), this Court shall now undertake a de novo review of the Magistrate's Initial and Supplemental R & Rs and the objections that have been filed thereto.
The factual background of this case has been set forth in the Magistrate's Initial and Supplemental R & Rs. In brief, this case involves alleged delays and deficiencies in a prison disciplinary hearing that was brought against Willoughby. A three-member disciplinary committee found Willoughby guilty of assaulting another inmate and sentenced him to 180 days in disciplinary detention. This sentence was eventually overturned, however, by the Director of the Nevada Department of Prisons.
COUNT I
In Count I of his amended complaint, Willoughby alleges that he was placed in disciplinary detention for forty-eight days prior to receiving a disciplinary hearing. Defendants contend that Willoughby was placed not in "disciplinary detention," but in "administrative segregation."
As the Magistrate correctly noted in her Supplemental R & R, the type of confinement in which Willoughby was placed is a material issue in this case. While defendants constitutionally could have confined Willoughby in administrative segregation prior to a hearing, the due process clause prohibits them from placing him in disciplinary detention prior to a hearing. See Taylor v. Koon, 682 F.Supp. 475, 478-79 (D.Nev.1988). The Magistrate also correctly ruled that the type of confinement is an issue of fact which depends not on titles or catch phrases, but on the substantive conditions of the confinement in question.
This Court finds, therefore, that a "genuine issue of material fact" exists in regard to Count I. Accordingly, this Court approves and adopts the Magistrate's Supplemental R & R and shall deny defendants' motion for summary judgment as to Count I in Willoughby's amended complaint.
COUNT II
In Count II of his complaint, Willoughby contends that once he did receive a disciplinary hearing, it was not a fair and impartial hearing. He alleges that one of the three members of the disciplinary committee that conducted his hearing had participated in the investigation of the alleged assault that was the subject of the hearing. Defendants argue that even if this allegation is true, it should be dismissed on the ground that it fails to state a violation of Willoughby's constitutional rights.
The due process clause of the United States Constitution guarantees prison inmates the right to fair and impartial disciplinary hearings. Wolff v. McDonnell, 418 U.S. 539, 571, 592, 94 S.Ct. 2963, 2982, 2992, 41 L.Ed.2d 935 (1974); Merritt v. De Los Santos, 721 F.2d 598, 601 (7th Cir. 1983); McCann v. Coughlin, 698 F.2d 112, 122 (2d Cir.1983). This right to a fair and impartial disciplinary hearing does not require that the members of the disciplinary committee come from outside the prison. In general, prison officials and administrators are quite capable of conducting impartial hearings. See Ruley v. Nevada Bd. of Prison Comm'rs, 628 F.Supp. 108, 112-13 (D.Nev.1986).
A prison official no longer can be considered an impartial decisionmaker, however, if he or she had some type of personal involvement in the incident that is the subject of the disciplinary hearing. Thus, *1442 many federal courts have ruled that a prison official who witnesses or investigates an incident cannot sit on a disciplinary committee that determines whether a particular inmate was guilty of any wrongdoing in that incident. These same courts have held that the presence of such an involved official on a disciplinary committee constitutes a violation of the inmate's constitutional due process rights. See, e.g., Merritt, 721 F.2d at 600-01; Giano v. Sullivan, 709 F.Supp. 1209 (S.D.N.Y.1989); Staples v. Traut, 675 F.Supp. 460, 464-65 & n. 1 (W.D.Wis.1986); Fife v. Crist, 380 F.Supp. 901, 910 (D.Mont.1974).
This Court finds the decisions listed above to be persuasive authority for the proposition that prison inmates have a constitutional right to disciplinary committees that do not contain members who investigated or witnessed the alleged disciplinary violation. Hence, this Court finds that in the case at bar, Count II of plaintiff Willoughby's complaint does state a valid 1983 claim. This count alleges that one of the members of the disciplinary committee that found Willoughby guilty of a major disciplinary violation had previously participated in the prison's investigation of that alleged violation. If this allegation is proven true, it would establish a violation of constitutional dimensions. Thus, it survives defendants' motion for summary judgment.
QUALIFIED IMMUNITY
Defendants in the instant case contend, nevertheless, that even if one member of the disciplinary committee was not sufficiently impartial, the other two members of the committee cannot be blamed for this lack of impartiality. These other two committee members have presented sworn affidavits to this Court in which they state that, at the time of the disciplinary hearing, they were unaware that the committee's third member allegedly had investigated the assault with which Willoughby was charged. On the basis of these affidavits, they argue that they are entitled to the defense of qualified immunity.
The doctrine of qualified immunity protects prison officials from liability for acts performed in the course of their official conduct if the officials had an objectively reasonable and good faith belief that their conduct was constitutionally permissible. This doctrine does not apply, however, if the officials "knew or reasonably should have known" that their conduct violated "clearly established constitutional rights." Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 860, 55 L.Ed.2d 24 (1978).
Defendants in the instant case do not assert that Willoughby's right to an impartial disciplinary committee was not a clearly established right. Indeed, such an assertion would directly contradict the published regulations of the Nevada Department of Prisons. See Nevada Department of Prisons Code of Penal Discipline II(C)(1) ("A member of the [disciplinary] committee shall be disqualified if he/she participated in the investigation of the incident.") (emphasis added).
Instead, the two committee members merely assert that since they did not know about the third member's participation in the investigation, their service on the committee was objectively reasonable and in good faith. This Court instructed Willoughby that since the defendants' motion contained extrinsic evidence in the form of affidavits, Willoughby would have to respond to it as a motion for summary judgment. See Minute Order entered April 14, 1988. Nevertheless, Willoughby has not submitted any affidavits or other evidence suggesting that the two disciplinary committee members at issue knew of the third member's alleged participation in the investigation.
Despite the lack of evidence presented by Willoughby, this Court finds that the two committee members who did not participate in the investigation are not entitled to summary judgment on the basis of qualified immunity. This Court finds that a "genuine issue of material fact" exists as to what these two committee members "reasonably should have known." We believe that even if the two members of the disciplinary committee did not have direct knowledge of the third member's participation in the investigation, a reasonable jury might conclude *1443 that these two members should have known of the third member's involvement. Accordingly, we hold that defendants are not entitled to a finding of qualified immunity on their instant summary judgment motion. This finding, however, does not preclude defendants from renewing their claim of qualified immunity after the factual circumstances surrounding Willoughby's disciplinary hearing have been more fully established.
Hence, this Court holds that Count II of Willoughby's amended complaint states a claim against all the defendants named in that count.
COUNTS III AND IV
The Magistrate recommended granting the defendants' motion for summary judgment as to Counts III and IV of Willoughby's amended complaint. See Initial R & R. This Court has reviewed the legal and factual basis for the Magistrate's recommendations as to these counts and finds her recommendations to be appropriate. This Court has also reviewed Willoughby's objections to the Initial R & R and finds them to be without merit. Thus, this Court shall approve and adopt the Magistrate's recommendation that the defendants' motion for summary judgment be granted as to Counts III and IV.
LOST PROPERTY CLAIM
The final claim in Willoughby's amended complaint alleges that he lost several items of personal property while he was being held in disciplinary detention. The Magistrate recommended that this claim be dismissed on the basis of the Parratt doctrine. According to the United States Supreme Court's decision in Parratt, a deprivation of property allegedly caused by a state employee does not constitute a valid 1983 constitutional due process claim if the state provides other adequate post-deprivation remedies. Parratt v. Taylor, 451 U.S. 527, 541-44, 101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420 (1981); see also Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984). Willoughby objects to the Magistrate's recommendation on the ground that he already has unsuccessfully attempted to utilize the non- 1983 post-deprivation remedies provided by the State of Nevada.
Willoughby's objection, however, illustrates his fundamental misunderstanding of the Parratt doctrine. This doctrine is not similar to the exhaustion requirement applicable to habeas corpus petitions under 28 U.S.C. 2254(b)-(c). Indeed, the concept of exhausting available state remedies has absolutely nothing to do with Parratt. Cf. Patsy v. Board of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 2568, 73 L.Ed.2d 172 (1982) (exhaustion of state administrative remedies is not a prerequisite to bringing a 1983 claim).
Instead, the Parratt doctrine simply holds that where a state provides adequate post-deprivation remedies for the intentional or negligent deprivation of property, a 1983 claim alleging a violation of due process of law will not lie. Parratt, 451 U.S. at 541-44, 101 S.Ct. at 665-66; see also Daniels v. Williams, 474 U.S. 327, 332-33, 106 S.Ct. 662, 665-66, 88 L.Ed.2d 662 (1986). The rationale for this doctrine is that by providing the plaintiff with adequate means for seeking redress of his loss, the state has provided "due process of law." See Daniels, 474 U.S. at 338-40, 106 S.Ct. at 678-79 (Stevens, J., concurring); Hudson, 468 U.S. at 533, 104 S.Ct. at 3203; Parratt, 451 U.S. at 541-44, 101 S.Ct. at 1916-17. The issue of whether the plaintiff has been successful in redressing his alleged loss through these other available remedies is immaterial. Under the Parratt doctrine, simply the existence of these alternate remedies forecloses the availability of a 1983 procedural due process claim.
Moreover, according to the allegations in his amended complaint, Willoughby's lost property claim is clearly subject to the Parratt doctrine. He alleges that his property was "lost" while he was serving the time to which he was sentenced in disciplinary detention. This allegation constitutes a procedural due process claim, rather than a substantive due process claim or a claim under a specific provision in the Bill of Rights. Hence, the Parratt doctrine is directly applicable to Willoughby's lost property claim. See Daniels, 474 U.S. 327, *1444 338-40, 106 S.Ct. at 678-79 (Stevens, J. concurring) (setting forth the different types of claims to which Parratt does and does not apply); Smith v. City of Fontana, 818 F.2d 1411, 1414-16 (9th Cir.) (same), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987).
Hence, this Court finds that Willoughby's lost property claim is subject to dismissal under the Parratt doctrine. To the extent that the Magistrate recommended dismissal of this claim, this Court shall approve and adopt her recommendation.
JUDGMENT
IT IS, THEREFORE, HEREBY ORDERED that defendants' Motion for Summary Judgment (document # 16) is DENIED as to Counts I and II in Willoughby's amended complaint.
IT IS FURTHER ORDERED that defendants' Motion for Summary Judgment (documents # 15 and # 16) is GRANTED as to Counts III and IV and the lost property claim in Willoughby's amended complaint.
IT IS FURTHER ORDERED that to the extent set forth in this order, the Magistrate's Initial and Supplemental Report and Recommendations (documents # 26 and # 33) are hereby APPROVED AND ADOPTED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584518/ | 717 F.Supp. 143 (1989)
BAMCO 18, a partnership, in its own right and as a limited partner in Hospitality Associates of Tappan Zee, a limited partnership, Plaintiff,
v.
R. Bruce REEVES, MPI Corporation, in its own right and as general partner in Hospitality Associates of Tappan Zee, a limited partnership; Hospitality Associates of Tappan Zee, a limited partnership; and D.G. Management, Inc., Defendants.
No. 87 Civ. 5496 (RWS).
United States District Court, S.D. New York.
July 5, 1989.
*144 Thaddeus Holt, New York City, for plaintiff.
Gorman & Steinglass, New York City, for defendants.
OPINION
SWEET, District Judge.
Plaintiff Bamco 18 ("Bamco") has moved for summary judgment in accordance with Rule 56, Fed.R.Civ.P. against defendant MPI Corporation ("MPI"), defendant R. Bruce Reeves ("Reeves") and declaring a constructive trust over property of defendant Hospitality Associates of Tappan Zee ("Hospitality").
The motion was argued and fully submitted on April 12, 1989. On May 31, 1989 Reeves filed for the protection of the Bankruptcy Court under Chapter 11. On June 5, 1989, as president and sole shareholder of MPI, he caused MPI as general partner of Hospitality to file on behalf of Hospitality seeking the protection of the Bankruptcy Court for Hospitality, also under Chapter 11. The automatic stay under 11 U.S.C. § 362(a) (1978) is applicable therefore to Reeves and Hospitality.
The gravamen of Bamco's claim is that Reeves in a February 8, 1985 letter misrepresented that he had $500,000 in "equity" in the partnership that became Hospitality, that contrary to his representation Reeves's capital account was deficient on March 1, 1985 as well as the account of the partnership, that Reeves's withdrawal of $350,000 from Hospitality was based upon a false representation, namely that he had made an initial cash contribution of $175,000, and finally that he failed to make subsequent contributions in cash or property as required by Amended and Restated Agreement of Limited Partnership of Hospitality Associates of Tappan Zee (the "Agreement").
As a result of the bankruptcy stay, these motions for summary judgment against Reeves to enforce these claims must be dismissed at this time with leave to renew on the original papers when and if it is appropriate to do so.
MPI, however, is not in bankruptcy and defended the motions. The motion for summary judgment is granted with respect to Bamco's claim for accounting against MPI.
Prior Proceedings
After the bankruptcy filings described above, on June 12, 1989 Bamco sought and obtained a preliminary injunction removing MPI as general partner of Hospitality. Findings of fact and conclusions of law were filed. The relationship and history of the parties was there described. Familiarity with those findings is presumed and adopted here.
Additional Findings
On March 6, 1985, Reeves, MPI, and Bamco executed the Agreement. Under § 6.2 of the Agreement, Bamco and Reeves agreed that as limited partners in Hospitality they would make initial capital contributions of $575,000 and $175,000, respectively. Under § 7.1 of the Agreement, Bamco and Reeves were required to make their initial capital contributions in cash.
MPI was granted a 1% interest in the partnership as the general partner of Hospitality, Bamco was granted a 59.4% interest, and Reeves was granted a 39.6% interest. The 40.6% partnership interest of Reeves and MPI was based on the representation that Reeves would make an initial capital contribution of $175,000 in cash and MPI would use the $240,000 loan from *145 Bamco for working capital and renovation costs, as provided in the Sources and Uses of Funds Statement in Exhibit B to the Agreement.
The Agreement entrusted the business and assets of the partnership to MPI as general partner. Among other things:
1. Under § 3.2(b) of the Agreement, MPI was not permitted to "sell, assign, transfer, exchange or otherwise dispose of Partnership property other than in the ordinary course of business" without the "prior written consent of a Majority in interest of the Limited Partners...."
2. Under § 4.11 of the Agreement, MPI and Reeves were barred from making "use of funds or property of the Partnership in any way other than for the business or benefit of the Partnership";
3. Under § 5.1 of the Agreement, MPI was required to keep "true and complete books of account in which shall be entered fully and accurately each transaction of the Partnership"; and
4. Under § 3.1(f) of the Agreement, MPI was required to "collect ... claims ... of ... the Partnership. ..."
A series of representations and warranties previously made to Bamco were incorporated in the Agreement, including the following:
1. In § 4.5(a) of the Agreement, MPI represented and warranted that "Exhibit B hereto completely and correctly sets forth all sources and proposed uses of funds in connection with financing the Project...."
2. In § 4.5(f), MPI represented and warranted that MPI "has a net worth, as at the date hereof, of not less than $500,000, excluding its interest in the Partnership."
3. In § 4.5(i)(vi), MPI represented and warranted that "[f]rom September 10, 1984 to the date of execution hereof, the Partnership has not.... suffered any material adverse change in its financial condition, properties, business operations or condition (financial or otherwise). ..."
4. In § 4.5(q), MPI represented and warranted that "neither this Agreement nor any other document, certificate or statement furnished to the Limited Partners by or on behalf of the General Partner or the Partnership in connection with the transactions contemplated hereby or by the Letter of Intent dated February 8, 1985 ... (including any placement memorandum or offering circular) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein not misleading."
On March 7, 1985 Bamco contributed $575,000 in cash to the partnership by wire transfer to Hospitality in satisfaction of its obligation under § 6.2 of the Agreement. On the same day, Bamco advanced $240,000 by wire transfer to MPI as a loan to fund the renovation and working capital requirements of the partnership as contemplated by the Sources and Uses of Funds Statement in Exhibit B to the Agreement.
On March 8, 1985, Reeves caused MPI to create an account receivable of $150,000 on the books of the partnership and to enter a corresponding credit to his capital account to satisfy his obligations as a limited partner in Hospitality. On the same day, Reeves caused MPI to transfer $350,000 from the account of Hospitality to his own personal account as a withdrawal of previously contributed capital. In fact, the capital account of Reeves was deficient by $341,950 prior to the time of the closing.
The $240,000 loan which Bamco advanced to MPI on March 7, 1985 was not used for partnership purposes as required by the Sources and Uses of Funds Statement. When asked under oath at his deposition whether and in what form MPI made the $240,000 loan available to Hospitality, Reeves testified there was no "obligation" to make the funds available, but if there was, the amount of affiliate "loans" to Hospitality exceeded $240,000. When *146 asked directly on the stand at the January 29, 1985 preliminary injunction hearing whether the $240,000 was devoted to the uses of the partnership, Reeves testified that he "could not comment whether it was or not ... I do not recall."
Because of an undisclosed working capital deficiency of $548,543, the diversion of $350,000 in cash by Reeves as a withdrawal of previously contributed capital and the failure of MPI to use the $240,000 loan from Bamco for working capital and capital improvement purposes, the $815,000 invested by Bamco on March 7, 1985 was unavailable for the purposes specified in the Sources and Uses of Funds Statement set forth in Exhibit B to the Agreement.
In or around the middle of April 1985, Reeves recommended that the partnership raise additional funds to finance what he said were additional capital improvement projects which would make the property more competitive in the marketplace, including the installation of a public restaurant and bar, a spa and exercise room, and a laundry room to cut operating costs. Reeves also advised that the existing renovation program was affecting revenues more adversely than expected so that additional working capital was also required to maintain operations until the capital improvement projects were completed.
At the recommendation of Reeves and MPI, the partnership attempted to meet the additional funding requirements identified by Reeves in April 1985 by borrowing $550,000 from ITT Industrial Credit Corporation. Under the terms of the loan, Bamco was required to deliver a standby Letter of Credit in favor of ITT to guarantee its $330,000 share of the liability assumed by the partnership. According to Reeves, $400,000 of the ITT loan would be used to fund the additional capital improvement projects and $150,000 would be used for working capital.
On May 13, 1985, the outside auditors of the partnership, Pannell Kerr Forster ("PKF") delivered a draft report on the December 31, 1984 financial statements of Hospitality to MPI and Reeves, but not to Bamco. The draft report stated, among other things, that the "ability of the Partnership to collect unpaid capital contributions" or "obtain additional" capital "could not be determined at this time" and that, as a result, "the Partnership may be unable to continue in existence." The audit report on the December 31, 1984 financial statements of Hospitality was not issued by PKF until September 19, 1986, eighteen months after Bamco acquired its limited partnership interest. At the time the report was issued in 1986, the reference to the unpaid capital contributions had been deleted from the report.
Since most of the ITT loan was supposedly being used to finance additional capital improvements to the property, it did not cure the working capital deficiency of Hospitality and additional funds were still required by Hospitality to replace the money looted from the partnership after the closing. As a result, MPI made a series of capital calls to the limited partners in 1985 and 1986 pursuant to § 6.3 of the Agreement. Between April 15, 1985 and September 30, 1986, Bamco advanced an additional $845,000 in cash to Hospitality pursuant to the capital calls of the general partner. The total amount of capital contributions and cash advances which Bamco made to the partnership through December 31, 1988 was $2,144,298.33.
Throughout 1985, Reeves, who serves as president and sole stockholder of MPI, represented orally and in writing to Bamco that he was contributing his pro rata share of the capital calls in cash and that he was therefore entitled to maintain his existing limited partnership interest in Hospitality. Reeves specifically represented to Bamco that he had paid his share of a $41,667 capital call which MPI made on or about April 15, 1985 and a $450,000 capital call which MPI made on or about August 15, 1985. Reeves in fact did not contribute his pro rata share of either the April 15, 1985 or the August 15, 1985 capital calls of MPI. Instead, Reeves caused MPI to create an account receivable in the amount of $156,667 on the books of the Partnership and to enter a corresponding credit to his capital *147 account in purported satisfaction of his obligations under § 6.3 of the Agreement.
After repeated requests, Reeves finally began supplying Bamco with unaudited monthly financial statements for the Partnership in the late spring of 1985. The financial statements provided by Reeves purported to show that the capital contributions of the limited partners had been funded as required by the Agreement without disclosing that the capital account of Reeves consisted exclusively of unpaid accounts receivable.
At the end of December 1985 or in early January 1986, MPI distributed monthly financial statements for the period ending November 30, 1985 which showed, among other things, that accounts receivable had increased from $303,135 as of October 31, 1985 to $677,891 as of November 30, 1985 and that amounts due affiliates increased from $197,119 to $822,311 during the same period. When asked to explain the sudden increase in these items, G. Robert Wells, Jr., a senior vice president of MPI, advised Voce of Bamco in writing on January 6, 1986 that they were adjustments required "to accurately reflect ... what occurred" when the capital account of the Partnership was originally established. According to Wells, the original $500,000 in Partnership capital was contributed by Seever Associates, a related entity controlled by Reeves, and not Reeves personally. Since Reeves, not Seever, withdrew $350,000 at the time of the closing, Wells explained, Reeves owed the Partnership $350,000, and a receivable was therefore created to reflect his debt to the Partnership. Wells further explained that because the Partnership still owed Seever the $500,000 in capital Seever had "originally contributed," a $500,000 credit was established in its favor. However, The PKF workpapers fail to establish any "original" capital contribution of $500,000 by Seever, Reeves, MPI, or any other affiliate of Reeves.
PKF, regardless of its working papers, did grant an accounting treatment which netted Reeves's capital accounts and the advances of his affiliates. However, whatever the amount of Reeves's cash advances and fees for services rendered may have been, they were not recorded as capital contributions to Hospitality but treated as "unsecured obligations of the partnership" on the books and records of Hospitality. As Reeves frankly advised this court last year, "since the advances made by my affiliates are on a demand basis, I could merely demand these loans immediately which would trigger a voluntary or involuntary bankruptcy" of the Partnership.
The actual "capital structure" of the Partnership as of February 28, 1985, the day before Bamco acquired its limited partnership interest, was determined by PKF as part of its "subsequent events" review of the December 31, 1984 financial statements. The PKF determination, which was based on the financial records of Hospitality prepared and maintained by Reeves and MPI, showed that at the time of the closing, the capital account of Reeves was deficient by $341,950 and the capital account of the Partnership as a whole was deficient by $333,404. On May 5, 1985, Reeves represented to PKF in writing that the financial statements of Hospitality, which carried the affiliate advances as debts and showed a deficiency in the capital accounts, "properly recorded" all "[t]ransactions with related parties and related amounts receivable or payable."
Reeves also acknowledged that he did not make his subsequent capital contributions in 1985 in cash or property, but created another account receivable, this time in the amount of $156,667, which was to "offset" the amount of payables due to affiliated entities.
Conclusion
Summary judgment is authorized if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). Summary judgment is appropriate only in circumstances where "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party bears the burden of proving that no *148 genuine issue of material fact exists. See id. at 247-48, 106 S.Ct. at 2509-10; Corselli v. Coughlin, 842 F.2d 23 (2d Cir.1988). All doubts are resolved against the moving party, and all favorable inferences are drawn in favor of the party against whom summary judgment is sought. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1988); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (1983). The Supreme Court recently has made clear that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The facts set forth above are derived almost entirely from the documentary evidence submitted. Summary judgment is therefore appropriate.
The "offsetting" payables approach adopted by MPI and Reeves violated § 93 of the New York partnership law which required that capital contributions be made in cash or property, but not in services. A substantial portion of the "payables" which were offset by the accounts receivable consisted of fees for services rendered, including consulting fees, management fees, finders fees, construction fees, and "overhead" charges for payroll, administration, and data processing services rendered by MPI, none of which qualified as a contribution of cash or property to the Partnership.
Apart from violating § 93 of the New York Partnership Law, the "offsetting" payables practice also violated the clearly defined and limited procedures for making capital contributions specified in the Agreement. Reeves, therefore, did not make his initial capital contribution in cash as required under § 6.2 and § 7.1 of the Agreement. Under § 6.4 of the Agreement, contributions besides cash or property required the written consent of Bamco. If Reeves wanted to contribute his share of "risk" capital for the venture by "offsetting" or even writing-off bills for "services" rendered, Reeves and MPI were required to disclose the practice to Bamco and obtain its approval in writing.
Because MPI violated the capital contributions requirements of the Agreement, Bamco is entitled to summary judgment granting an accounting, Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978).
Bamco's motion for summary judgment against Reeves and Hospitality is denied with leave granted to renew at a later appropriate time. Its motion against MPI for summary judgment seeking an accounting is granted.
Submit judgment on notice.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584479/ | 728 N.W.2d 781 (2007)
INSITUFORM TECHNOLOGIES, INC., Appellant,
v.
EMPLOYMENT APPEAL BOARD, a Unit of the Department of Inspections and Appeals, and Labor Commissioner, Appellees.
No. 05-0740.
Supreme Court of Iowa.
February 16, 2007.
Rehearing Denied March 27, 2007.
*786 Mark A. Lies II and James L. Curtis of Seyfarth Shaw, LLP, Chicago, Illinois, and Joan M. Fletcher of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellant.
Rick Autry, Des Moines, and Gail Sheridan-Lucht, Des Moines, for appellees.
WIGGINS, Justice.
The sewer-relining accident causing the Iowa occupational safety and health (IOSH) bureau to cite Insituform Technologies, Inc. for nine serious violations and eleven willful violations of the IOSH standards is the same accident described in City of Des Moines v. Employment Appeal Board, 722 N.W.2d 183, 187-88 (Iowa 2006). As a result of that accident, two people died and five people were seriously injured. The IOSH bureau proposed $38,250 in penalties for the nine serious violations and $770,000 in penalties for the eleven willful violations for a total of $808,250 in penalties.
Insituform filed a notice of contest to the citation and the matter was transferred to the employment appeal board (Board). The Board assigned the matter to an administrative law judge (ALJ) for a hearing. The ALJ applied the general industry permit-required confined spaces standards, as found in 29 C.F.R. section 1910.146. He affirmed most of the penalties, but modified, dismissed, and combined some of the others. The ALJ reduced the penalties from $808,250 to $158,000.
Insituform appealed the decision of the ALJ to the Board. The Board adopted the ALJ's findings of fact and the ALJ's determination that the general industry permit-required confined spaces standards rather than the construction employment standards applied to the work done by Insituform. The Board disagreed with the ALJ's dismissal of some violations and his reduction of the penalties. The Board reinstated all but one of the serious violations and all but one of the willful violations and assessed a total penalty of $733,750.
Insituform filed a petition for judicial review. The district court affirmed the Board's decision applying the general industry *787 permit-required confined spaces standards rather than the construction employment standards. However, the district court reinstated the ALJ's assessment and grouping of the violations and penalties. The total penalty assessed against Insituform by the district court was $158,000.
Insituform, the Board, and the commissioner appealed the decision of the district court. We transferred the case to the court of appeals. Relying on its decision in City of Des Moines v. Employment Appeal Board, No. 04-1763, 2006 WL 127955, at *4-*5 (Iowa Ct.App. Jan.19, 2006), the court of appeals held the general industry permit-required confined spaces standards were not applicable. The court of appeals then dismissed all but two of the serious violations and all of the willful violations because the commissioner based these violations on the general industry permit-required confined spaces standards. The court of appeals affirmed the district court's combination of the penalties for the remaining serious violations reducing the total penalty to $4500.
The Board and the commissioner sought further review, which we granted.
I. Issues.
There are four issues on appeal: (1) whether the Board erred in applying the general industry permit-required confined spaces standards to the work done by Insituform; (2) whether the application of these standards is constitutional; (3) whether substantial evidence supports the Board's determination that Insituform violated the standards; and (4) whether the district court erred in combining the civil penalties assessed by the Board.
II. Scope of Review.
The Iowa Administrative Procedure Act governs a district court's review of administrative action. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001) (citing Iowa Code § 17A.19(8)). When reviewing the decision of the district court's judicial review ruling, we determine if we would reach the same result as the district court in our application of the Iowa Administrative Procedure Act. City of Des Moines v. Employment Appeal Bd., 722 N.W.2d 183, 189-90 (Iowa 2006). If a decision of the agency is incorrect under a ground specified in the Act, and a party's substantial rights have been prejudiced, the district court may reverse or modify an agency's decision. Iowa Code § 17A.19(10) (2001). As we discuss each issue raised on appeal, we will note the applicable scope of review.
III. Analysis.
A. Whether the Board erred in applying the general industry permit-required confined spaces standards to the work done by Insituform. Because the legislature gave the labor commissioner the authority to interpret the IOSH standards, we will only reverse the agency's interpretation of its standards if it is "irrational, illogical, or wholly unjustified." City of Des Moines, 722 N.W.2d at 193-94 (citing Iowa Code §§ 17A.19(10)(l), (11)(c)).
In City of Des Moines, we agreed with the Board's interpretation that in order to determine whether the general industry permit-required confined spaces standards or the construction employment standards apply, the Board must determine, on a case-by-case basis, whether the task being performed is maintenance or repair.[1]Id. *788 at 194. If the Board determines the task is maintenance, then the general industry permit-required confined spaces standards apply. Id. If the Board determines the task is repair, then the construction employment standards apply. Id. We also stated, "[i]f the question is close as to whether the work constitutes repair or maintenance, the agency should apply the standards that provide more protection to the employees, depending on the hazard." Id. In the present case, the ALJ found the general industry permit-required confined spaces standards applied to the sewer-relining project, and interpreted these standards using the same analysis as we did in City of Des Moines. The Board adopted these findings as its own. Because the ALJ, and hence the Board, employed the proper analysis to interpret the applicable standards, the Board's interpretation was not irrational, illogical, or wholly unjustifiable. Accordingly, we will not reverse the Board's interpretation.
As a case-by-case analysis of the facts is necessary to determine whether the work being performed is maintenance or repair, it is necessary for us to determine if substantial evidence supports the Board's analysis and finding that the work done in the sewer was maintenance. If substantial evidence supports the Board's findings, these findings are binding on us. United Fire & Cas. Co. v. St. Paul Fire & Marine Ins. Co., 677 N.W.2d 755, 759 (Iowa 2004).
In City of Des Moines, we held substantial evidence supported the Board's decision that the work done by Insituform on the sewer project was maintenance; therefore, the general industry permit-required confined spaces standards were applicable to that work. City of Des Moines, 722 N.W.2d at 194-95. The record in this case contains substantially the same evidence as was introduced in City of Des Moines. Consequently, for the reasons stated in City of Des Moines, we find substantial evidence exists in this record to affirm the Board's decision that the work done by Insituform on the sewer project is governed by the IOSH general industry permit-required confined spaces standards.
B. Whether the application of the general industry permit-required confined spaces standards is constitutional. When a party raises a constitutional issue in an appeal of agency action, our review is de novo. ABC Disposal Sys., Inc. v. Dep't of Natural Res., 681 N.W.2d 596, 605 (Iowa 2004). Thus, we apply a de novo review to Insituform's claim that the Board's application of the general industry permit-required confined spaces standards is unconstitutional.
Insituform claims the commissioner failed to provide fair warning and "prior clear regulatory guidance to Insituform and others" indicating when an employer is subject to the specific requirements of the general industry permit-required confined spaces standards. Insituform states because of this lack of fair warning and the vagueness contained in the standards, the commissioner's application of the general industry permit-required confined spaces standards to Insituform violates the Due Process Clause of both the United States Constitution and the Iowa constitution.
Due process requires that "no person shall be deprived of life, liberty, or property, without due process of law." Iowa Const. art. I, § 9; U.S. Const. amends. V, XIV, § 1. Both the federal and state Due Process Clauses prohibit vague statutes. State v. Todd, 468 N.W.2d 462, 465 (Iowa 1991). A civil statute is unconstitutionally vague when the language of the statute fails to convey a definite *789 warning of the proscribed conduct. ABC Disposal Sys., Inc., 681 N.W.2d at 605. A statute is not unconstitutionally vague if its meaning can be ascertained by reference to "generally accepted and common meaning of words used, or by reference to the dictionary, related or similar statutes, the common law, or previous judicial constructions." Id. "To avoid a rule from unduly restricting the regulation of certain matters, a certain degree of indefiniteness is necessary." Id. Finally, "[t]here is a presumption of constitutionality and a litigant can only rebut this presumption by `negating every reasonable basis on which the statute can be sustained.'" Id. (citation omitted).
Insituform argues it was unable to identify with "`ascertainable certainty' that the Commissioner expected it to conform to the more detailed requirements of the general industry confined spaces standards." The commissioner argues, as this court found in City of Des Moines, Insituform was not engaged in the construction of new sewers, but rather was participating in a sewer-relining project. Therefore, our court concluded Insituform was doing maintenance work.
As we discussed in City of Des Moines, a 1995 OSHA instruction and a 1996 standard interpretation specifically explained sewer relining is covered by the general industry permit-required confined spaces standards. See City of Des Moines, 722 N.W.2d at 190-92. The instruction and standard interpretation gave Insituform fair warning of the applicability of the general industry permit-required confined spaces standards to sewer-relining projects.
There is additional evidence in the record supporting that Insituform had fair warning and was on notice the general industry permit-required confined spaces standards applied to the sewer-relining project. First, Insituform used the general industry permit-required confined spaces standards to formulate its safety manual policies. Second, the J.J. Keller employee handbook used by Insituform to train its employees specifically lists "sewers" as an example of a confined space. See Ohio Cast Prod., Inc. v. Occupational Safety & Health Review Comm'n, 246 F.3d 791, 798-99 (6th Cir.2001) (finding industry practice is significant in determining whether a fair warning was given to an employer). Third, Insituform's safety handbook specifically lists 29 C.F.R. section 1910.146 and appendices A, B, and C to 29 C.F.R. section 1910.146 as guidance documents. Appendix C lists "sewer entry" as an example of a permit-required confined space. 29 C.F.R. § 1910.146 app. C. As the area safety manager for Insituform, Herbert Young, testified 29 C.F.R. section 1910.146 "addresses the best practice for entering sewers." Fourth, the City of Des Moines described the project as a sewer-relining project in its notice to bidders and notice of public hearing. Fifth, while at the site, Insituform employees filled out "confined space entry permits" attempting conformity with 29 C.F.R. section 1910.146(e)(1). Sixth, after the fatal accident, Insituform issued seven written warnings to its employees who were on site that day for violation of Insituform's "confined space entry policy," which was formulated by Insituform under 29 C.F.R. section 1910.146.
Finally, Insituform argues because the district court in City of Des Moines found the general industry permit-required confined spaces standards did not apply to the sewer project while the district court in this case found the general industry permit-required confined spaces standards did apply, the application of these standards is unconstitutionally vague. We disagree. Merely because two *790 different officials applying the same factors reach a different interpretation of a statute does not render that statute unconstitutionally vague. See State v. Holway, 644 N.W.2d 624, 629 (S.D.2002) (stating "[a] law is not rendered unconstitutionally vague merely because the decision of one official applying the factors is different from that of another official applying those same factors").
Accordingly, Insituform's claim that the commissioner failed to provide fair warning and "prior clear regulatory guidance to Insituform and others" indicating when an employer is subject to the specific requirement of the general industry permit-required confined spaces standards is unfounded. Therefore, the Board's application of these standards to Insituform's sewer-relining project is constitutional.
C. Whether substantial evidence supports the Board's decision as to Insituform's violation of the standards. If our review of the record reveals substantial evidence supports the Board's findings as to the violations, the findings are binding on us. United Fire & Cas. Co., 677 N.W.2d at 759. "[This court's] inquiry is whether the evidence supports the findings made by the agency, not whether the evidence may support a different finding." City of Des Moines, 722 N.W.2d at 195.
The Iowa Code authorizes the commissioner to adopt and promulgate occupational safety and health standards that the United States secretary of labor adopted and promulgated as permanent standards. Iowa Code § 88.5(1)(a). Pursuant to this authority, the commissioner adopted the federal respiratory protection standards found at 29 C.F.R. section 1910.134 and the federal permit-required confined spaces standards found at 29 C.F.R. section 1910.146. See Iowa Admin. Code rs. 875-26.1, 10.20. Accordingly, all citations issued by the IOSH bureau to Insituform are for violations of the federal OSHA standards.
1. Does substantial evidence support the violation of the standards as found by the Board in citation one? In citation one, the commissioner alleged Insituform committed nine serious violations. The Board found Insituform only committed eight serious violations. If substantial evidence supports a violation of the standard, we will then determine if substantial evidence supports the Board's determination that the violations were serious violations as defined under the Code.
a. Citation one, item one. The Board found Insituform committed a serious violation by not establishing and implementing worksite-specific written standard operating procedures governing the selection and use of respirators, violating 29 C.F.R. section 1910.134(c)(1). The standard states:
(c) This paragraph requires the employer to develop and implement a written respiratory protection program with required worksite-specific procedures and elements for required respirator use. The program must be administered by a suitably trained program administrator. In addition, certain program elements may be required for voluntary use to prevent potential hazards associated with the use of the respirator.
(1) In any workplace where respirators are necessary to protect the health of the employee or whenever respirators are required by the employer, the employer shall establish and implement a written respiratory protection program with worksite-specific procedures. The program shall be updated as necessary to reflect those changes in workplace conditions that affect respirator use. The employer shall include in the program *791 the following provisions of this section, as applicable:
(i) Procedures for selecting respirators for use in the workplace;
(ii) Medical evaluations of employees required to use respirators;
(iii) Fit testing procedures for tight-fitting respirators;
(iv) Procedures for proper use of respirators in routine and reasonably foreseeable emergency situations;
(v) Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators;
(vi) Procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-supplying respirators;
(vii) Training of employees in the respiratory hazards to which they are potentially exposed during routine and emergency situations;
(viii) Training of employees in the proper use of respirators, including putting on and removing them, any limitations on their use, and their maintenance; and
(ix) Procedures for regularly evaluating the effectiveness of the program.
29 C.F.R. § 1910.134(c)(1). Substantial evidence supports the Board's finding that Insituform violated this standard.
Chapter ten of Insituform's safety manual contained a written program that governed the selection and use of respirators. Insituform wrote its respiratory protection program in accordance with 29 C.F.R. section 1910.134. However, Insituform did not implement this plan. James Johnson, a laborer for Insituform, testified workers never used respirators on the job site. When he was asked to explain his answer, he testified, "just never." John Walkenhorst, also a laborer for Insituform, testified on the day of the accident no one was wearing a respirator. Further, Bill Bull, the crew leader, testified he was not familiar with Insituform's safety manual and the manual was not a part of any Insituform safety training.
b. Citation one, item three. The Board found Insituform committed a serious violation by failing to fit test atmosphere-supplying respirators and tight-fitting powered air-purifying respirators by performing quantitative or qualitative fit-testing in the negative pressure mode, violating 29 C.F.R. section 1910.134(f)(8).
After the accident, Bull entered the sewer to remove the sewer plug while wearing a respirator he was not fit-tested for or trained to wear. Bull entered the sewer at the request of the Des Moines fire department in what was an emergency situation. According to Bull, if he did not release the plug in the sewer, the job site could not be shut down.
The standard specifically states:
(f) This paragraph requires that, before an employee may be required to use any respirator with a negative or positive pressure tight-fitting facepiece, the employee must be fit tested with the same make, model, style, and size of respirator that will be used.
. . .
(8) Fit testing of tight-fitting atmosphere-supplying respirators and tight-fitting powered air-purifying respirators shall be accomplished by performing quantitative or qualitative fit testing in the negative pressure mode, regardless of the mode of operation (negative or positive pressure) that is used for respiratory protection.
29 C.F.R. § 1910.134(f)(8).
There is no exception in the standard for emergency entry into a permit-required confined space. Factually, a properly-fitted respirator is probably more important *792 in an emergency to protect the rescuer from the same danger encountered by the victim being rescued. Therefore, substantial evidence supports the Board's finding that Insituform violated 29 C.F.R. section 1910.134(f)(8).
c. Citation one, item four. The Board found Insituform committed a serious violation by not informing exposed employees of the existence and location of and the danger posed by the permit-required confined space by posting danger signs or by any other equally effective means of notification, violating 29 C.F.R. section 1910.146(c)(2). The standard states:
(c) General requirements.
. . .
(2) If the workplace contains permit spaces, the employer shall inform exposed employees, by posting danger signs or by any other equally effective means, of the existence and location of and the danger posed by the permit spaces.
Note: A sign reading "DANGERPERMIT-REQUIRED CONFINED SPACE, DO NOT ENTER" or using other similar language would satisfy the requirement for a sign.
29 C.F.R. § 1926.146(c)(2). Substantial evidence supports the Board's finding that Insituform violated this standard.
Kent Broz, a foreman, testified he thought when the sewer was plugged there was no need to be concerned about air quality because there was no airflow from the sewer. Johnson testified he thought the use of blowers was enough to protect him from the dangerous environment. This type of thinking indicates the employees thought the sewer was not a permit-required confined space when the sewer was plugged.
Bull also testified it was not his job to ensure the safety of the employees on the job. He opined safety on the job was each worker's individual responsibility. Although there were signs posted on the job site stating "Danger Keep Out," there were no signs posted relating to warnings about the dangers of working in the permit-required confined space.
d. Citation one, item five. The Board found Insituform committed a serious violation by failing to obtain any available information from the City of Des Moines, its host employer, regarding permit space hazards and entry operations, violating 29 C.F.R. section 1910.146(c)(9)(i). The standard states:
(c) General requirements.
. . .
(9) In addition to complying with the permit space requirements that apply to all employers, each contractor who is retained to perform permit space entry operations shall:
(i) Obtain any available information regarding permit space hazards and entry operations from the host employer.
29 C.F.R. § 1910.146(c)(9)(i). The record contains substantial evidence to support the Board's finding that Insituform violated this standard.
The City of Des Moines had a safety program in place regarding permit space hazards and entry operations. No evidence was submitted showing Insituform obtained this information from the city before beginning work on the sewer project. According to the commissioner's expert, Verne Brown, there was no communication between the City of Des Moines and Insituform regarding the city's permit-required confined spaces operating and safety procedures.
e. Citation one, item six. The Board found Insituform committed a serious violation by not informing its host *793 employer, the City of Des Moines, of the permit-required confined spaces program it would follow and of any hazards confronted or created in the confined space through either a debriefing or during entry operation, violating 29 C.F.R. section 1910.146(c)(9)(iii). The standard states:
(c) General requirements.
. . .
(9) In addition to complying with the permit space requirements that apply to all employers, each contractor who is retained to perform permit space entry operations shall:
. . .
(iii) Inform the host employer of the permit space program that the contractor will follow and of any hazards confronted or created in permit spaces, either through a debriefing or during the entry operation.
29 C.F.R. § 1910.146(c)(9)(iii). The record contains substantial evidence to support the Board's finding that Insituform violated this standard.
Insituform did not inform the City of Des Moines of its permit space program. Both Brown and Iowa department of labor investigator Kenneth Clausen were unable to find any evidence of communication between the City of Des Moines and Insituform on these matters. The importance of this communication is illustrated by the testimony of a Des Moines fire department captain, Larry VanBaale. VanBaale testified his department was never notified the sewer project was a permit-required confined space. VanBaale further testified if he had been aware the sewer project was a permit-required confined space he:
would immediately let [his] crew know that we had possible we had people working in confined space that we could be called to that day. We would go refresh ourselves on the SOPs and touch base on our proper quality proper entry techniques.
f. Citation one, item seven. The Board found Insituform committed a serious violation by allowing its employees to enter and work in the permit-required confined space before Insituform prepared an entry permit, violating 29 C.F.R. section 1910.146(e)(1). This standard states: "[b]efore entry is authorized, the employer shall document the completion of measures required by paragraph (d)(3) of this section by preparing an entry permit." 29 C.F.R. § 1910.146(e)(1). Substantial evidence supports the Board's finding that Insituform violated this standard.
During the three-month period Insituform worked on the sewer, its employees entered the sewer almost every day. However, confined space permits were only filled out sporadically. During the entire three-month period, only two entry permits can be accounted for and were entered into evidence. Walkenhorst testified he was never taught when to use the confined space entry permit. Johnson testified he knew that a confined space entry permit was required to enter the sewer, and although these permits were "technically" required every day, permits were only filled out sporadically. James Coffey, a laborer, similarly testified he knew of the permit system, but permits were rarely used. He testified he filled out one permit, even though he entered the sewer nearly every day.
g. Citation one, item eight. The Board found Insituform committed a serious violation because it did not provide its employees with training to adequately acquire the understanding, knowledge, and skills necessary for the safe performance of the duties of the permit-required confined spaces standards, violating 29 C.F.R. section 1910.146(g)(1). This standard states: "[t]he employer shall provide training *794 so that all employees whose work is regulated by this section acquire the understanding, knowledge, and skills necessary for the safe performance of the duties assigned under this section." 29 C.F.R. § 1910.146(g)(1). Substantial evidence supports the Board's finding that Insituform violated this standard.
Although Insituform provided its employees some training, Insituform squeezed a two or three-day training session into one day. One worker testified, when trained on the air monitoring devices, he never actually saw the device, but was just provided an explanation on how to use it. The record also supports Bull did not recognize Insituform's safety manual. He further testified even though he was a crew leader, he felt it was not his job to ensure the safety of others. Additionally, Broz thought if a sewer was plugged there was no need to worry about the atmospheric conditions. Furthermore, the workers did not wear respirators, harnesses, or safety equipment other than work boots and possibly hard hats.
h. Citation one, item nine. The Board found Insituform committed a serious violation because Insituform employees were allowed to enter and work in the sewer access pit and sewer conduit without a chest or full-body harness with a retrieval line properly attached, violating 29 C.F.R. section 1910.146(k)(3)(i). This standard states:
(k) Rescue and emergency services.
. . .
(3) To facilitate non-entry rescue, retrieval systems or methods shall be used whenever an authorized entrant enters a permit space, unless the retrieval equipment would increase the overall risk of entry or would not contribute to the rescue of the entrant. Retrieval systems shall meet the following requirements.
(i) Each authorized entrant shall use a chest or full body harness, with a retrieval line attached at the center of the entrant's back near shoulder level, above the entrant's head, or at another point which the employer can establish presents a profile small enough for the successful removal of the entrant. Wristlets may be used in lieu of the chest or full body harness if the employer can demonstrate that the use of a chest or full body harness is infeasible or creates a greater hazard and that the use of wristlets is the safest and most effective alternative.
29 C.F.R. § 1910.146(k)(3)(i). Substantial evidence supports the Board's finding that Insituform violated this standard.
The testimony of five Insituform employees confirms the employees did not wear harnesses at the job site. Further, VanBaale testified none of the men who had succumbed to the gases were wearing harnesses.
2. Does substantial evidence support that the violations found by the Board and affirmed by this court in citation one are serious violations? The Code defines a serious violation. Iowa Code § 88.14(11). It provides:
a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
Id.
The record confirms that entering a permit-required confined space, such as this *795 sewer, is fraught with hazards. These hazards include toxic and flammable substances. Many of these hazardous substances are contained in the atmosphere and are not detectable by the human sense of smell. Additionally, non-toxic conditions in a confined space can be deadly. If fumes overcome a worker causing the worker to fall into a shallow puddle of water, the puddle may contain enough water to cause the worker to drown.
Considering the hazards a worker may face while in a permit-required confined space, together with the purpose of each standard, Insituform's violation of each standard in citation one creates a substantial probability that death or serious physical harm could result from the violation. Therefore, substantial evidence exists to affirm the Board's decision that the eight violations it found under citation one are serious violations.
3. Does substantial evidence support the violation of the standards as found by the Board in citation two? In citation two, the commissioner alleged Insituform committed eleven willful violations. The Board found Insituform only committed ten willful violations. As with our analysis of the serious violations, we will first determine whether substantial evidence supports a violation of the standard. If substantial evidence supports a violation of a standard, we will then determine if substantial evidence supports the Board's findings that the violations were willful violations under the Code.
a. Citation two, item one. The Board found Insituform committed a willful violation because Insituform did not implement the measures necessary to prevent unauthorized entry in a permit-required confined space, violating 29 C.F.R. section 1910.146(d)(1). This standard states: "[u]nder the permit space program required by paragraph (c)(4) of this section, the employer shall: (1) Implement the measures necessary to prevent unauthorized entry." 29 C.F.R. § 1910.146(d)(1). Substantial evidence supports the Board's finding that Insituform violated this standard.
According to Insituform's safety manual the on-site superintendent, foreman, and/or safety engineer are to control the unauthorized entry into a permit-required confined space. Unauthorized entry would include entering the space contrary to a written plan implemented under the provisions of the permit-required confined spaces standards. See 29 C.F.R. § 1910.146(c)(4) (requiring the employer to "develop and implement a written permit space program that complies with this section").
The record does not contain any evidence to show the on-site superintendent, foreman, and/or safety engineer controlled entry into the sewer. Broz testified he did not know as the foreman it was his responsibility to test the sewer for potential hazards and make the determination whether to upgrade or downgrade the use of the personal protective equipment. Further, Broz testified he thought when the sewer work area was plugged there was no need for concern about air quality because there was no airflow from the sewer. Finally, the record reveals Broz received no training as a foreman. If the foreman did not know what to look for before authorizing entry to the sewer, he could not control the unauthorized entry to the sewer.
b. Citation two, item two. The Board found Insituform committed a willful violation by not adequately identifying and evaluating the hazards of the job before allowing its employees to enter the sewer, violating 29 C.F.R. section 1910.146(d)(2). This standard states: "[u]nder the permit space program required *796 by paragraph (c)(4) of this section, the employer shall: . . . (2) Identify and evaluate the hazards of permit spaces before employees enter them." 29 C.F.R. § 1910.146(d)(2). Substantial evidence supports the Board's finding that Insituform violated this standard.
The record supports that Insituform did not perform air monitoring as required under this standard and by Insituform's safety manual. Unsafe atmospheric conditions are known hazards of sewer work. John Marich, Insituform's area vice president, testified when he went to retrieve the air monitor the day after the accident, the air monitor was not in use. Additionally, the crew leader stated he did not "mess with air monitoring," that was for the crew to do. Insituform's safety manual requires air monitoring before entry into a permit-required confined space.
c. Citation two, item three. The Board found Insituform committed a willful violation by not implementing the means, procedures, and practices necessary for safe permit space entry operation when it did not ventilate the space to eliminate hazards and did not verify the conditions in the space were acceptable for entry, violating 29 C.F.R. section 1910.146(d)(3). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(3) Develop and implement the means, procedures, and practices necessary for safe permit space entry operations, including, but not limited to, the following:
(i) Specifying acceptable entry conditions;
(ii) Providing each authorized entrant or that employee's authorized representative with the opportunity to observe any monitoring or testing of permit spaces;
(iii) Isolating the permit space;
(iv) Purging, inerting, flushing, or ventilating the permit space as necessary to eliminate or control atmospheric hazards;
(v) Providing pedestrian, vehicle, or other barriers as necessary to protect entrants from external hazards; and
(vi) Verifying that conditions in the permit space are acceptable for entry throughout the duration of an authorized entry.
29 C.F.R. § 1910.146(d)(3). Substantial evidence supports the Board's finding that Insituform violated this standard.
The record supports that on the day of the accident the sucker fan and blower were not used to ventilate the area. Johnson and Walkenhorst testified on the day of the accident the jetter (a piece of ventilating machinery) also was not used. Bull testified on the day of the accident the air compressor would not start. No air monitoring was done on the day of the accident. On other workdays, air monitoring was done intermittently at best.
d. Citation two, item four. The Board found Insituform committed a willful violation because it failed to provide equipment to test and monitor the atmospheric conditions and ensure that its employees used these devices, violating 29 C.F.R. section 1910.146(d)(4)(i). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(4) Provide the following equipment (specified in paragraphs (d)(4)(i) through (d)(4)(ix) of this section) at no cost to employees, maintain that equipment properly, and ensure that employees use that equipment properly:
*797 (i) Testing and monitoring equipment needed to comply with paragraph (d)(5) of this section.
29 C.F.R. § 1910.146(d)(4)(i). Substantial evidence supports the Board's finding that Insituform violated this standard.
Insituform employees worked in the permit-required confined space without the equipment necessary to monitor the atmospheric conditions. Employees testified they did not monitor the air every day. Although trained on air monitoring, a worker stated it "wasn't like [air monitoring was] demanded to be done every time." Coffey, Walkenhorst, and Broz all testified there was no air monitoring done on the day of the accident, and indicated on other workdays, air monitoring was done intermittently at best. VanBaale testified during the rescue he did not observe any air monitoring devices. Bull admitted on the day of the accident no air monitoring was done. Insituform's safety manual requires it to provide its employees with equipment to test and monitor the atmospheric conditions.
e. Citation two, item five. The Board found Insituform committed a willful violation because it failed to provide ventilating equipment needed to obtain acceptable entry conditions and ensure that its employees used the equipment, violating 29 C.F.R. section 1910.146(d)(4)(ii). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(4) Provide the following equipment (specified in paragraphs (d)(4)(i) through (d)(4)(ix) of this section) at no cost to employees, maintain that equipment properly, and ensure that employees use that equipment properly:
. . .
(ii) Ventilating equipment needed to obtain acceptable entry conditions.
29 C.F.R. § 1910.146(d)(4)(ii). Substantial evidence supports the Board's finding that Insituform violated this standard.
As previously mentioned, on the day of the accident neither the sucker fan, the blower, nor the jetter were used to ventilate the area. Bull testified on the day of the accident the air compressor would not start. Ensuring that its employees used the ventilating equipment needed to obtain acceptable entry conditions, as required by this standard, is also a procedure required by Insituform's safety manual.
f. Citation two, item six. The Board found Insituform committed a willful violation because it failed to provide personal protective equipment, such as air or self-contained breathing apparatus and ensure that its employees used the equipment, violating 29 C.F.R. section 1910.146(d)(4)(iv). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(4) Provide the following equipment (specified in paragraphs (d)(4)(i) through (d)(4)(ix) of this section) at no cost to employees, maintain that equipment properly, and ensure that employees use that equipment properly:
. . .
(iv) Personal protective equipment insofar as feasible engineering and work practice controls do not adequately protect employees.
29 C.F.R. § 1910.126(d)(4)(iv). Substantial evidence supports the Board's finding that Insituform violated this standard.
Five Insituform employees testified they were not wearing respirators on the day of the accident and many of those employees *798 indicated they never wore respirators on the job site. The crew leader testified he did not believe it was his responsibility to ensure that his workers were wearing their respirators. Further, two workers on the site failed Insituform's tests on respirator usage. The record indicates either this was not communicated to the supervisors at the job site or if the job site supervisor inquired, he ignored the workers' failure of the respirator tests and allowed them to work regardless of the workers' failure.
g. Citation two, item seven. The Board found Insituform committed a willful violation because it failed to provide equipment, such as ladders, needed for safe ingress and egress by authorized entrants, violating 29 C.F.R. section 1910.146(d)(4)(vii). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(4) Provide the following equipment (specified in paragraphs (d)(4)(i) through (d)(4)(ix) of this section) at no cost to employees, maintain that equipment properly, and ensure that employees use that equipment properly:
. . .
(vii) Equipment, such as ladders, needed for safe ingress and egress by authorized entrants.
29 C.F.R. § 1910.146(d)(4)(vii). Substantial evidence supports the Board's finding that Insituform violated this standard.
Johnson testified on the day of the accident he "leaped from the concrete platform into the water" of the sewer. Coffey testified the ladder leading to the sewer did not reach the ground and in order to reach the floor of the sewer a worker had to jump from the ladder. VanBaale described the distance from the ladder to the ground as between six and seven feet. Walkenhorst recalled in order to get back onto the ladder you "had to prop your hand up on the lid and just hoist yourself up." He recalled the distance between the sewer floor and the ladder, the distance a worker had to hoist himself up, as five feet. Another employee also testified the ladder did not reach the ground. Insituform's safety manual specifically required ladders or other needed equipment to allow for "ingress and/or egress."
h. Citation two, item eight. The Board found Insituform committed a willful violation by allowing employees to work in the sewer without continuously monitoring the atmosphere and performing pre-entry testing, violating 29 C.F.R. section 1910.146(d)(5)(i). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(5) Evaluate permit space conditions as follows when entry operations are conducted:
(i) Test conditions in the permit space to determine if acceptable entry conditions exist before entry is authorized to begin, except that, if isolation of the space is infeasible because the space is large or is part of a continuous system (such as a sewer), pre-entry testing shall be performed to the extent feasible before entry is authorized and, if entry is authorized, entry conditions shall be continuously monitored in the areas where authorized entrants are working.
29 C.F.R. § 1910.146(d)(5)(i). Substantial evidence supports the Board's finding that Insituform violated this standard.
As previously noted, Johnson and Coffey testified on the day of the accident there was no air monitor on site. The crew leader stated he did not "mess with air *799 monitoring" because that was for the crew to do. Insituform workers regularly entered the sewer without air monitoring. Even the foreman had the misunderstanding that if the sewer was plugged, there was no need to worry about chemicals in the sewer air. Insituform's safety manual specifically requires air monitoring before entry into a confined space.
i. Citation two, item ten. The Board found Insituform committed a willful violation because it failed to identify and designate persons with proper training to perform safety monitoring, violating 29 C.F.R. section 1910.146(d)(8). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(8) Designate the persons who are to have active roles (as, for example, authorized entrants, attendants, entry supervisors, or persons who test or monitor the atmosphere in a permit space) in entry operations, identify the duties of each such employee, and provide each such employee with the training required by paragraph (g) of this section.
29 C.F.R. § 1910.146(d)(8). Substantial evidence supports the Board's finding that Insituform violated this standard.
Training provided to Insituform's supervisors and employees, regarding entry, testing and monitoring, ventilating, and standby rescue was not effective. A chain of command is provided by Insituform's safety manual. However, the workers at the sewer project did not follow or were not aware of this chain of command. As mentioned earlier, Bull could not even identify Insituform's safety manual. Additionally, Insituform never provided those in supervisory positions, such as Broz, training to know or understand their duties or the chain of command structure.
j. Citation two, item eleven. The Board found Insituform committed a willful violation because its employees were allowed to enter and work in the sewer without the protection provided by implementing a system for the preparation, issuance, use, and cancellation of the required entry permits, violating 29 C.F.R. section 1910.146(d)(10). This standard states:
(d) Under the permit space program required by paragraph (c)(4) of this section, the employer shall:
. . .
(10) Develop and implement a system for the preparation, issuance, use, and cancellation of entry permits as required by this section.
29 C.F.R. § 1910.146(d)(10). Substantial evidence supports the Board's finding that Insituform violated this standard.
Insituform exposed its employees and supervisors to hazards that would have been identified by the implementation of an entry permit system. Even though Insituform employees entered the sewer almost every day, confined space permits were only used sporadically. During the three-month period Insituform employees worked on the sewer, only two entry permits can be accounted for and were entered into evidence. Walkenhorst testified he was never taught when to use the confined space entry permit. Johnson testified he knew a confined space permit was required to enter the sewer, however, he only recalled permits being filled out sporadically. Coffey similarly testified he knew of the permit system, but the permits were rarely filled out. He recalls only filling out one permit, even though he entered the sewer nearly every day. Insituform's safety manual had procedures to implement a permit system to provide the *800 necessary protection to employees who entered the sewer.
4. Does substantial evidence support that the violations found by the Board and affirmed by this court in citation two are willful violations? The Code does not contain a definition of a willful violation. However, in creating a civil penalty for a willful violation, the Code provides:
Any employer who willfully or repeatedly violates the requirements of section 88.4, any standard, rule, or order adopted or issued pursuant to section 88.5, or rules adopted pursuant to this chapter, may be assessed a civil penalty of not more than seventy thousand dollars for each violation, but not less than five thousand dollars for each willful violation.
Iowa Code § 88.14(1). To determine what constitutes a willful violation, we must interpret section 88.14(1).
The interpretation of a statute is always a matter of law for this court. City of Marion v. Iowa Dep't of Revenue & Fin., 643 N.W.2d 205, 206 (Iowa 2002). Nevertheless, we are required to give appropriate deference to the agency's interpretation in certain situations. Iowa Code § 17A.19(11). Although the legislature gave the labor commissioner the authority to promulgate Iowa's occupational safety and health standards under section 88.5, the legislature did not vest the interpretation of "willful" under the penalty provision with the commissioner or the Board. Accordingly, we apply a correction-of-errors-at-law standard of review in interpreting the statute. Id. § 17A.19(10)(c).
A willful violation is committed by an "employer who willfully . . . violates . . . any standard [or] rule . . . adopted or issued pursuant to section 88.5." Id. § 88.14(1). We have previously interpreted a willful violation "exists when the violation is committed with intentional disregard of, or plain indifference to, the requirements of the regulation." IBP, Inc. v. Iowa Employment Appeal Bd., 604 N.W.2d 307, 321 (Iowa 1999). More than mere negligence on the part of the employer is required to support a willful violation. Id. The difference between a serious and willful violation of a workplace safety standard is analogous to the difference between negligence and recklessness in tort law. Id. Our interpretation is consistent with other courts interpreting the federal Occupational Safety and Health Act. See Ensign-Bickford Co. v. Occupational Safety & Health Review Comm'n, 717 F.2d 1419, 1422 (D.C.Cir.1983) (stating "[a]lthough the Act does not define the term `willful,' courts have unanimously held that a willful violation of the Act constitutes `an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements'" (citation omitted)).
Insituform asks us to require actual knowledge of a violation and specific evidence of that knowledge in every case in order to prove willfulness. To do so would be inconsistent with our interpretation of willful. Our interpretation requires an intentional disregard or a plain indifference to the requirements of our IOSH standards. Under our interpretation, "a plain indifference" is an alternative to "intentional disregard." Furthermore, a plain indifference without direct evidence that the employer knew of each individual violation allows the finder of fact to infer willfulness from that evidence. A.E. Staley Mfg. Co. v. Sec'y of Labor, 295 F.3d 1341, 1350-51 (D.C.Cir.2002). Accordingly, we will not require proof of knowledge to establish a violation was willful.
Applying our interpretation of the willful standard, we find substantial evidence supports a finding that Insituform's *801 ten violations in citation two are willful violations. Insituform's safety manual contains an entire chapter on confined spaces. It specifically references work in sewers. The manual has detailed instructions on how to comply with the general industry permit-required confined spaces standards. The manual shows Insituform not only knew the permit-required confined spaces standards existed, but also that it knew of the standard's requirements.
In spite of this knowledge, Insituform consistently failed to comply with these standards throughout the entire time it worked on the sewer project. One of Insituform's on-site supervisors testified he never saw the safety manual. The evidence supports a finding that ventilation equipment, air monitors, personal protection equipment, and a proper ladder were not present or properly used throughout the time Insituform's employees were working on the sewer. Employees were consistently allowed to enter the sewer without first testing the atmospheric conditions in the sewer and without implementing a system for the preparation, issuance, use, and cancellation of the required entry permits. The ten violations the Board found to exist under citation two were not one-time violations due to inadvertence. The record demonstrates Insituform made no effort to comply with its safety manual and the ten standards it violated in citation two. This total indifference allows the Board to infer willfulness from the evidence. Id.
Therefore, we affirm the Board's decision finding that Insituform committed ten willful violations under citation two.
D. Whether the district court erred in combining the civil penalties assessed by the Board. In its order, the Board fined Insituform $4500 for each serious violation and $70,000 for each willful violation. The order assessed a total penalty of $733,750. The total penalty assessed in the order does not add up to the total amount of the individual fines assessed in the order. This discrepancy is due to the order stating the fine for the serious violation in citation one, item three is $4500, while the body of the opinion reinstates the penalty in the citation of $2250. For our purposes, we will assume the fine for the serious violation in citation one, item three is $2250.
On appeal to the district court, the court combined the penalties for separate violations and lowered the total penalty to $158,000. The district court combined the penalties on the theory that some of the separate violations were duplicate violations because each of the separate violations could be cured by a single act of abatement.
The Code provides for each willful violation the employer "may be assessed a civil penalty of not more than seventy thousand dollars for each violation, but not less than five thousand dollars." Iowa Code § 88.14(1). For serious violations, the Code provides an employer "shall be assessed a civil penalty up to seven thousand dollars for each such violation." Iowa Code § 88.14(2). The legislature left the determination of the appropriate penalty for willful and serious violations to the Board. Iowa Code § 88.7(a). Accordingly, we will give appropriate deference to the Board's assessment of a penalty and reverse the Board's decision if it is based on an irrational, illogical, or wholly unjustifiable application of law to the facts. Iowa Code §§ 17A.19(10)(m), (11)(c).
The penalty provisions of the federal Occupational Safety and Health Act for willful and serious violations contain the same language as the Iowa penalty provisions. *802 Compare 29 U.S.C. § 666(a), (b), with Iowa Code § 88.14(1), (2). An early case decided by the federal occupational safety and health review commission held when separate violations can be cured by a single abatement, only one penalty should be assessed for the violations. Sec'y of Labor v. Stimson Contracting Co., 5 O.S.H. Cas. (BNA) 1176, 1178 (Mar. 28, 1977). A subsequent federal occupational safety and health review commission decision overruled Stimson. Sec'y of Labor v. H.H. Hall Constr. Co., 10 O.S.H. Cas. (BNA) 1042, 1046 (Oct. 7, 1981). In overruling Stimson the commission stated:
We have reconsidered Stimson and overrule it to the extent that it requires the Commission to vacate a citation or an item of a citation on the grounds that one violation is included within another cited violation. Although a worksite condition may violate more than one standard, section 5(a)(2) of the Act requires an employer to comply with all standards applicable to a hazardous condition even though the abatement requirements of two applicable standards may be satisfied by compliance with the more comprehensive standard. Thus, there is no unfair burden imposed on an employer when the same or closely related conditions are the subject of more than one citation item and a single action may bring an employer into compliance with the cited standards. However, the Commission has wide discretion in the assessment of penalties for distinct but potentially overlapping violations and it is appropriate to assess a single penalty for overlapping violations as the Commission has done in the past. Despite the fact that the violations alleged in this case, operation of heavy equipment near an excavation and improper support of trench walls, result in the same general hazardcollapse or cave-in the conditions giving rise to the violations are separate and distinct. Accordingly, we conclude that Hall's simultaneous noncompliance with two standards is not necessarily duplicative.
Id. (internal citations omitted).
The federal courts have embraced this concept and recognized it is discretionary on the commission as to whether to group multiple violations and assess a single penalty. Dakota Underground, Inc. v. Sec'y of Labor, 200 F.3d 564, 569 (8th Cir.2000). We agree with the federal courts that the Board has wide discretion in the assessment of penalties for distinct but potentially overlapping violations of the standards.
Under our standard of review, we cannot say the Board's failure to combine the penalties is an irrational, illogical, or wholly unjustifiable application of law to the facts. The record clearly establishes Insituform violated each standard as alleged by the commissioner. The Board has a right to assess a penalty for each violation to deter conduct, to protect the public from violations, and to punish the violator for its actions. Under these circumstances, we will not disturb the assessment of the civil penalties by the Board.
IV. Disposition.
Because the general industry permit-required confined spaces standards apply to the work being done by Insituform's employees, the application of these standards is constitutional, substantial evidence supports the Board's decision, and the Board's assessment of the civil penalties was not an irrational, illogical, or wholly unjustifiable application of law to the facts, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case to the district court to enter an order affirming the decision of the Board.
*803 DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except HECHT and APPEL, JJ., who take no part.
NOTES
[1] The general industry permit-required confined spaces standards are contained in 29 C.F.R. section 1910.146, as incorporated into Iowa law by Iowa Administrative Code rule 875-10.20. The construction employment standards are contained in 29 C.F.R. part 1926, as incorporated into Iowa law by Iowa Administrative Code rule 875-26.1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584496/ | 641 So.2d 195 (1994)
The CONTINENTAL INSURANCE COMPANY, Appellant,
v.
KINNEY SYSTEM, INC., Appellee.
No. 93-2854.
District Court of Appeal of Florida, Fourth District.
August 24, 1994.
*196 Raoul G. Cantero, III of Adorno & Zeder, P.A., Miami, for appellant.
Arthur J. England, Jr. and Charles M. Auslander of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, for appellee.
PER CURIAM.
The trial court applied the common law doctrine of forum non conveniens in dismissing this breach of contract action brought by appellant Continental Insurance Company in Broward County, finding it an inconvenient forum. The claim is for payment of premiums allegedly due under a worker's compensation insurance policy issued to Kinney, in which the premiums are based, retrospectively, on claims experience in several states, including Florida. We reverse.
Continental is a New Hampshire corporation with its principal place of business in New Jersey, and Kinney is a Delaware corporation having its principal place of business in New York. Continental is registered to do business in Florida and both corporations conduct business in this state. Continental has a claims office in Fort Lauderdale and Kinney has a regional office and operates parking garages in Dade County.
The established law in Florida is that a court has discretion to apply the doctrine of forum non conveniens only in those cases in which both parties to the action are nonresidents of Florida and the cause of action arose outside Florida. Houston v. Caldwell, 359 So.2d 858, 861 (Fla. 1978); Adams v. Seaboard Coast Line R.R. Co., 224 So.2d 797, 801 (Fla. 1st DCA 1969).[1]
Although the alleged breach clearly accrued outside of Florida, Continental was, and arguably both corporations were, Florida "residents," for forum non conveniens purposes, under this court's binding precedent in National Aircraft Service, Inc. v. New York Airlines, Inc., 489 So.2d 38 (Fla. 4th DCA 1986). In that case, we held that "foreign corporations licensed to do business in Florida, with a place of business in Florida cannot be prevented from pursuing a cause of action in Florida courts based upon the doctrine of forum non conveniens." 489 So.2d at 39 (emphasis added). See also Waite v. Summit Leasing & Capital Int'l Corp., 441 So.2d 185 (Fla. 4th DCA 1983) (considering partnership with Denver headquarters as Florida resident for forum non conveniens purposes because firm had office in Broward county and one partner lived in Broward).
We recognize that the Third District has reached a contrary conclusion, requiring that a foreign corporation have its principal place of business or headquarters in Florida in order to be considered resident here for forum non conveniens purposes. See National Rifle Ass'n of America v. Linotype Co., 591 So.2d 1021 (Fla. 3d DCA 1991). There, the court reasoned that overburdened courts of this state should have discretion to determine whether a cause of action accruing outside Florida should be maintained in a Florida court when the foreign corporation's act of doing business in Florida is the only connection *197 with the state. We also recognize that Florida may be in the minority in precluding a court from considering the doctrine when any party is a Florida resident. See, e.g., Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 155 n. 10 (2d Cir.1980) ("[a]pparently the only state where the court of last resort has continued to reject the doctrine as a matter of common law is Florida"), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980).
Following our own precedent, we reverse the dismissal below, as the trial court had no discretion to apply the doctrine. However, we acknowledge conflict with the holding in National Rifle Ass'n and certify the following question as one of great public importance:
Is a trial court precluded from dismissing an action on the basis of forum non conveniens where one of the parties is a foreign corporation that:
(a) is doing business in Florida?
(b) is registered to do business in Florida?
(c) has its principal place of business in Florida?
DELL, C.J., STONE, J., and RAMIREZ, JUAN, Jr., Associate Judge, concur.
NOTES
[1] Note: We are referring to transfers to foreign jurisdictions and not to transfers pursuant to section 47.122, Fla. Stat. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585285/ | 382 N.W.2d 313 (1986)
222 Neb. 69
CASS CONSTRUCTION COMPANY, INC., a Nebraska Corporation, Appellant,
v.
Tim BRENNAN and Jim Asmussen, Appellees.
No. 84-867.
Supreme Court of Nebraska.
February 28, 1986.
*315 Robert E. Wheeler, of Stowell & Wheeler, P.C., Ord, for appellant.
Donna M. Farrell, of Peebles, Smith & Farrell, Neligh, for appellee Asmussen.
John M. Gerrard, of Domina & Gerrard, P.C., Norfolk, for appellee Brennan.
William B. Brandt and Robert J. Hallstrom, of Brandt, Horan, Hallstrom & Sedlacek, Lincoln, for amicus curiae Retail Merchants Ass'n of Nebraska, Inc.
KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
PER CURIAM.
This appeal presents the question of whether Neb. U.C.C. § 1-207 (Reissue 1980) has altered the common-law doctrine of accord and satisfaction as applied to checks tendered in full payment of a disputed obligation. The issue was before the district court on cross-motions for summary judgment. The trial court sustained the defendants' motions for summary judgment and dismissed the plaintiff's petition.
On approximately March 1, 1980, Cass Construction Company, Inc. (Cass), and Tim Brennan and Jim Asmussen, acting on behalf of A & B Land Company, entered into an oral agreement in which Cass agreed to do certain dirt-moving work on the defendants' property in Antelope County, Nebraska, for $5,600.
During the time that Cass was performing the work, Brennan contacted John Hruby, an employee of Cass, concerning additional dirt-moving work not included in the $5,600 bid. Apparently, the parties orally agreed that the additional work would be *316 billed on an hourly basis, depending upon the time spent and equipment used. Cass completed the additional work and subsequently submitted an itemized statement for $18,125.
On June 2, 1980, Cass received a check from A & B Land Company for $1,408.25, accompanied by a letter from defendant Asmussen expressing dissatisfaction with the work done and stating that the $1,408.25 was in "final settlement of the bill." In a letter to Asmussen dated June 2, 1980, counsel for Cass explained that while it accepted the $1,408.25 as partial payment on the debt, the defendants still owed $16,716.75 to Cass and that if the bill was not paid or a compromise settlement reached by June 16, 1980, a lien would be filed against the real estate and "appropriate legal action will be taken, if necessary." Cass then negotiated and deposited the check.
Cass sued for the remaining balance after A & B Land Company made no further payment. In its amended petition Cass asserted that it had fully performed its obligations under the oral agreement, entitling it to the remaining $16,716.75, plus interest since June 2, 1980. The defendants answered, claiming that the oral agreement was unenforceable as violative of the statute of frauds and that Cass had breached any contract that may have existed due to its failure to perform the work in an acceptable, workmanlike manner according to standard practices in the industry. The defendants also claimed that by cashing the check for $1,408.25, Cass had compromised any right it may have had to pursue the additional amount. In its reply Cass contended that it had performed the work in accordance with industry standards and that it had cashed the check with full reservation of rights, as indicated in the June 2 letter to Asmussen. The parties then moved for summary judgment.
In its order issued October 29, 1984, the Antelope County District Court sustained the defendants' motions for summary judgment, overruled the plaintiff's motion, and dismissed the plaintiff's petition. The court specifically found that the parties had reached an accord and satisfaction when Cass deposited the check for $1,408.25 which the defendants had tendered in full settlement of a bona fide dispute. Further, the court found that § 1-207 does not abolish or alter the common-law principle of accord and satisfaction. The court concluded that since Cass had accepted the check for $1,408.25, it accepted it on the defendants' terms, that is, that the payment was in full satisfaction of the defendants' debt to Cass. This appeal by Cass followed.
Cass first assigns as error the district court's implicit finding that the defendants sufficiently pled accord and satisfaction as an affirmative defense. Cass asserts that the defendants' answers do not adequately allege the affirmative defense of accord and satisfaction because they fail to plead facts constituting a bona fide dispute.
Neb.Rev.Stat. § 25-811(2) (Reissue 1979) requires that a defendant's answer contain "a statement of any new matter constituting a defense ... in ordinary and concise language...." Neb.Rev.Stat. § 25-812 (Reissue 1979) further provides that a defendant may set forth in its answer as many grounds of defense as it may have. Such defenses must be "separately stated and numbered, and they must refer in an intelligible manner to the cause of action which they are intended to answer."
If a party intends to plead accord and satisfaction as a defense, the answer must contain allegations showing such intent, and the facts relied upon to establish the defense must be pled. See, Long v. Weiler, 395 S.W.2d 234 (Mo.App.1965); 1 C.J.S. Accord and Satisfaction § 72 (1985). An answer sufficiently pleads accord and satisfaction when it contains or presents all of the elements of an accord and satisfaction, even if it does not use the terms accord and satisfaction and even if it could have been more technically or artfully drawn. Wood v. Yancey Brothers, 135 Ga.App. 720, 218 S.E.2d 698 (1975). At a minimum, the defense of accord and satisfaction requires nothing more be pled than *317 the payment and acceptance, on a mutual agreement, express or implied, of a certain sum of money in full settlement of a preexisting and previously disputed obligation. B. & W. Engineering Co. v. Beam, 23 Cal.App. 164, 137 P. 624 (1913).
Brennan and Asmussen filed separate answers. In paragraph 3 of Brennan's answer, he alleges that Cass breached any contract that may have existed when it failed to perform the dirt-moving work in a timely and workmanlike manner. Brennan goes on in paragraph 4 to state that Cass settled any claims it may have had against the defendants when it cashed the conditional check. Asmussen's answer is essentially the same as Brennan's.
The defendants' answers sufficiently alleged the affirmative defense of accord and satisfaction as required by §§ 25-811 and 25-812. While it is true that the language in the answers does not incorporate the precise terminology of an accord and satisfaction, it is also true that parties are not required, and in fact are not encouraged, to plead legal conclusions. See Johnson v. Radio Station WOW, supp. op. 144 Neb. 432, 14 N.W.2d 666 (1944), rev'd on other grounds 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092 (1945). It is not necessary to state a defense in any particular form so long as the facts supporting the assertion are stated. Waite v. Samson Dev. Co., 217 Neb. 403, 348 N.W.2d 883 (1984).
Cass next contends that the district court erred when it determined that § 1-207 does not alter or abolish the doctrine of accord and satisfaction. At common law a debtor could tender to its creditor an amount less than that claimed by the creditor by a check that clearly indicates that it is in full settlement of a bona fide dispute. The tender is considered to be an offer by the debtor to compromise the disputed claim. The creditor may accept the conditioned offer by cashing the check or reject it by destroying the check or returning it to the debtor. See High-Plains Cooperative Assn. v. Stevens, 204 Neb. 664, 284 N.W.2d 846 (1979). The actual, subjective intent of the creditor does not matter. Les Schwab Tire Centers v. Ivory Ranch, 63 Or.App. 364, 664 P.2d 419 (1983). If the creditor cashes a "full payment check," the creditor is agreeing to the debtor's condition that the amount tendered is in full satisfaction of the debt. See, e.g., High-Plains Cooperative Assn. v. Stevens, supra; Growers Cattle Credit Corp. v. Swanson, 184 Neb. 612, 169 N.W.2d 692 (1969).
Cass argues that § 1-207 alters the common-law principle of accord and satisfaction. Section 1-207 provides that "[a] party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as `without prejudice', `under protest' or the like are sufficient." Cass and its amicus posit that this section abrogates the doctrine of accord and satisfaction and allows creditors to cash conditional checks while retaining the right to sue for any unpaid balance. They base their arguments on the language of § 1-207 and on policy considerations underlying the free flow of commerce. We conclude that the language of § 1-207 and its history, purpose, and policy do not alter the common-law principles of accord and satisfaction.
First, the language of § 1-207 does not fit the circumstances of an accord and satisfaction. Section 1-207 requires that the creditor "assents to performance in a manner demanded or offered by the other party...." Where a debtor offers a compromise through an accord and satisfaction, the creditor, such as Cass, is not assenting to performance in a manner offered by the debtor; rather, the creditor is refusing to assent to the essential condition of the offer. Les Schwab Tire Centers v. Ivory Ranch, supra; Jahn v. Burns, 593 P.2d 828 (Wyo. 1979). The creditor's act of bringing suit for the unpaid balance bespeaks its intent to dissent from the debtor's conditioned offer. Cf. Chancellor, Inc. v. Hamilton Appliance Co., 175 N.J. Super. 345, 418 A.2d 1326 (1980).
*318 Further, according to its language and comments, § 1-207 appears to be confined to those transactions in which the parties intend performance along the lines of the original contract. Comment 1 to § 1-207 states that the section "provides machinery for the continuation of performance along the lines contemplated by the contract despite a pending dispute...." Similarly, Comment 2 provides that § 1-207 "merely provides a specific measure on which a party can rely as he makes or concurs in any interim adjustment in the course of performance." (Emphasis supplied.)
This language suggests that § 1-207 was not designed to alter the law of accord and satisfaction with respect to conditional checks but, rather, was intended to allow parties to a contract to proceed with performance without risking waiver of their rights. In other words, "the provision was designed to deal with problems of waiver, election of remedies, and estoppel rather than with attempted accord and satisfaction." McDonnell, Purposive Interpretation of the Uniform Commercial Code: Some Implications for Jurisprudence, 126 U.Pa.L.Rev. 795, 828 (1978).
As discussed earlier, an accord and satisfaction involves a new contract, not the contemplated performance of the original contract. By its specific terms § 1-207 applies not in situations involving a conditional check but, rather, in circumstances where, for example, a buyer makes an installment payment under a contract which it believes the seller has breached, or where a buyer accepts delivery of goods that it believes do not conform to the contract, or where the seller goes ahead with its performance in spite of anticipatory repudiation by the buyer. One commentator has put it this way:
[S]ection 1-207 was meant to apply only where one party's acquiescence in the other's performance or demand might, by operation of law, result in a waiver or other basis for prejudicing his rights; section 1-207 would give the acquiescing party a means of protecting himself against having to pay an often unfair penalty for turning the other cheek. Under this interpretation, section 1-207 would not apply where the challenge was expressly communicated, as in a check offered in satisfaction of an obligation on a clear take-it-or-leave-it basis.
Rosenthal, Discord and Dissatisfaction: Section 1-207 of the Uniform Commercial Code, 78 Colum.L.Rev. 48, 63-64 (1978). See, also, Comment, Does U.C.C. Section 1-207 Apply to the Doctrine of Accord and Satisfaction by Conditional Check? 11 Creighton L.Rev. 515 (1977); Comment, Accord and Satisfaction: Conditional Tender by Check Under the Uniform Commercial Code, 18 Buffalo L.Rev. 539 (1969). Permitting a creditor to reserve its right to sue under § 1-207 would not result in performance along the lines of the contract as contemplated by the statute. Rather, it would allow a creditor to disregard the specific terms of the new contract in its attempt to enforce those of the old. The plain language of the statute forecloses such a result. We have repeatedly held that in considering the meaning of a statute, we will, if possible, discover the legislative intent from the language of the statute and give it effect. We will not read a statute as if open to construction as a matter of course. Uttecht v. Norwest Bank of Norfolk, 221 Neb. 222, 376 N.W.2d 11 (1985). Cass may not "have its cake and eat it too" under the plain language of § 1-207. See, e.g., Pillow v. Thermogas Co. of Walnut Ridge, 6 Ark.App. 402, 644 S.W.2d 292 (1982); Eder v. Yvette B. Gervey Interiors, Inc., 407 So.2d 312 (Fla.App.1981); Dep't of Fisheries v. J-Z Sales Corp., 25 Wash.App. 671, 610 P.2d 390 (1980).
We, finally, note that Neb. U.C.C. § 1-103 (Reissue 1980) and its official Comment state that common-law principles of law and equity are not displaced by particular code provisions unless done so specifically. Nowhere in § 1-207 is there reference to the statute's displacing the common-law doctrine of accord and satisfaction.
That § 1-207 was designed to apply in circumstances unrelated to an accord and *319 satisfaction is also evident in the history of the statute. Nebraska's provision is as originally proposed by the American Law Institute and the National Conference of Commissioners on Uniform State Laws, and it is identical to § 1-207 of the 1950 proposed final draft of the U.C.C. At that time § 1-207 coexisted with another provision of the code, U.C.C. § 3-802(3) (Official Draft 1952), that codified and expanded the doctrine of accord and satisfaction. Section 3-802(3) provided: "Where a check or similar payment instrument provides that it is in full satisfaction of an obligation the payee discharges the underlying obligation by obtaining payment of the instrument unless he establishes that the original obligor has taken unconscionable advantage in the circumstances." Section 3-802(3) expanded the common law by permitting accord and satisfaction when the obligation was undisputed and liquidated. Because the section might have been "open to abuse," it was deleted in the 1957 official draft. American Law Institute, National Conference of Commissioners on Uniform State Laws, Supplement 1 to the 1952 Official Draft of Text and Comments of the Uniform Commercial Code 25 (1955); U.C.C. § 3-802 (1957). Thus, accord and satisfaction was left entirely to the common law.
The significance of § 3-802(3) is that it existed entirely without reference to § 1-207. The Comments to neither section referenced the other. See U.C.C. §§ 1-207 and 3-802(3) (Official Draft 1952). Similarly, the Comment to U.C.C. § 3-112(1)(f) (Official Draft 1952), which speaks of the negotiability of checks tendered as payment in full, omits reference to § 1-207 and instead cross-references only § 3-802(3). This background indicates that the drafters of §§ 1-207 and 3-802(3) probably did not intend to write overlapping sections regarding accord and satisfaction but, rather, conceived of them as unrelated. See, Rosenthal, supra at 58-63; Case Comment, Accord and Satisfaction Under Uniform Commercial Code Section 1-207: Scholl v. Tallman, 38 Ohio St.L.J. 921 (1977). See, also, Chancellor, Inc. v. Hamilton Appliance Co., 175 N.J. Super. 345, 418 A.2d 1326 (1980); Brown v. Coastal Truckways, 44 N.C.App. 454, 261 S.E.2d 266 (1980). We conclude that, like its language, the history of § 1-207 simply does not comport with the appellant's belief that the statute abrogates the common-law doctrine of accord and satisfaction.
Finally, the appellant and its amicus make much of the policy considerations that should be weighed in deciding this issue. As stated in the amicus' brief at 4:
The vast array of circumstances under which a "conditional check" may be issued leads Amicus to seriously question the continued validity of the doctrine of accord and satisfaction. In today's world of ever-increasing commercial transactions, marked by a corresponding increase in the use of checks for account payments, merchants no longer have the luxury of closely scrutinizing each and every check that comes into their possession. Disregard of the provisions of Neb. U.C.C. § 1-207, and exclusive application of the doctrine of accord and satisfaction to "conditional check" transactions will open the door to legal blackmail of creditors and will greatly increase the likelihood of overreaching and unscrupulous debtors looking for a "freebie", to routinely make partial payments on the condition that they be accepted as full settlement of their account.
Because the common-law doctrine contains sufficient protections for creditors from overreaching debtors, we do not share the appellant's concern about the unfairness of accord and satisfaction. First, accord and satisfaction applies only in circumstances where the debt is unliquidated and in dispute. Second, the dispute must be in good faith. See 6 A. Corbin, Corbin on Contracts §§ 1276-1292 (1962). Third, the creditor must have reasonable notice that the amount is in dispute and that the check is tendered in full satisfaction of the debt. Sufficient notice is normally a question of fact. Rosenberg v. Lincoln Fed. Sav. & Loan Assn., 219 Neb. 689, 365 N.W.2d 809 (1985). Fourth, where a creditor *320 mistakenly sends a bill for an amount less than what is actually owed, payment of that amount will not operate as full satisfaction, even if the debtor endorses the check "for balance in full." Whitt v. Leath, 213 Ala. 309, 104 So. 796 (1925). Finally, as with any other contract, an accord can be set aside or reformed and enforced on grounds of fraud or mistake. 6 A. Corbin, supra § 1292. Creditors are well protected under the common law.
The appellant's construction of § 1-207 would also lead to an unduly complicated situation in which debtors would have to add to the customary term "payment in full" a further statement that endorsement of the check also constitutes an agreement to forgo the reservation of rights under § 1-207. J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 13-21 (2d ed. 1980). A new "battle of the forms" would thus be created. See Rosenthal, Discord and Dissatisfaction: Section 1-207 of the Uniform Commercial Code, 78 Colum.L.Rev. 48, 71-74 (1978). Obviously, those with the most to lose would be those least informed regarding the formalities and intricacies of the U.C.C. This result is inconsistent with the code's purpose of "simplify[ing] [and] clarify[ing] ... the law governing commercial transactions," Neb. U.C.C. § 1-102(2)(a) (Reissue 1980), and it fails to promote the policy of permitting "the continued expansion of commercial practices through ... agreement of the parties," § 1-102(2)(b). Finally, the appellant's interpretation of § 1-207 negates or certainly complicates a convenient and valuable means of settling disputes informally.
We decline to tamper with a principle that was meant to be left alone. The language, history, and policy of § 1-207 do not support the appellant's interpretation of the statute. Accordingly, the trial court was correct in its determination that § 1-207 does not abrogate the common-law doctrine of accord and satisfaction.
Cass finally assigns as error the district court's finding that no issue of genuine fact existed regarding the defense of accord and satisfaction. Specifically, Cass claims that a genuine issue of material fact existed with respect to whether there was a bona fide dispute. In its brief, Cass bases its argument on the wide variance between the amount it claims and the amount the defendants paid. This fact alone, Cass argues, is enough to raise a genuine issue of material fact and make summary judgment inappropriate.
A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, that the ultimate inferences to be drawn from those facts are clear, and that the moving party is entitled to judgment as a matter of law. Gilbert v. City of Tekamah, 221 Neb. 614, 379 N.W.2d 758 (1986). The burden is on the movant to show that no issues of material fact exist, and unless that party can conclusively do so, the motion must be overruled. Id. In considering a motion for summary judgment, the court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists. Allan v. Massey-Ferguson, Inc., 221 Neb. 528, 378 N.W.2d 664 (1985). In determining whether a genuine issue of material fact exists, the court views the evidence in the light most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn therefrom. Pfeifer v. Pfeifer, 195 Neb. 369, 238 N.W.2d 451 (1976). Finally, the requirements to sustain the motion are the same whether one party or both parties have moved for summary judgment. Juergens & Anderson v. Redding, 198 Neb. 289, 252 N.W.2d 291 (1977).
In its amended petition Cass stated that it had fully performed its obligations under the contract. In their separate answers the defendants alleged that Cass had breached the agreement by failing to perform the work in a workmanlike and timely manner. The defendants also claimed that Cass had waived any right it may have had to recover the balance it now claims when *321 it cashed the check for $1,408.25. In its reply Cass countered that it had performed the work in a workmanlike and timely manner and that it had cashed the check with full reservation of rights.
At the October 1, 1984, hearing on the parties' cross-motions for summary judgment, all parties offered the same three exhibits in support of their motions. Exhibit 1 is an affidavit of the attorney who notified the defendants in the June 2, 1980, letter of Cass' acceptance of the check as partial payment. Exhibit 2 is the affidavit of defendant Brennan, in which he asserts that the sum of $1,408.25 was paid "for the reason that no additional work having a value over and above the sums of [$1,408.25] had been authorized by A & B Land Co. Furthermore, no such work had been performed satisfactorily, properly or in a workmanlike manner by Plaintiff." Exhibit 3 is defendant Asmussen's affidavit, in which he states that he never made any agreement whatsoever with Cass and that in early May of 1980, A & B Land Company issued a check to Cass in full settlement of the account. Exhibit 3 also contains Asmussen's letter to Cass in which he states that "we were not fully paid on our crop share, due to the faulty dirt work. We do not feel that we should have had any additional charges incurred on the original dirt work done in 1979."
That a dispute existed between Cass and the defendants is obvious from the record; that the dispute was bona fide, however, is not so clear. "Bona fide" literally means "good faith"; "honestly, openly, and sincerely; without deceit or fraud." Black's Law Dictionary 160 (5th ed. 1979). "Good faith" has been defined as "an intangible and abstract quality with no technical meaning or statutory definition." Doyle v. Gordon, 158 N.Y.S.2d 248, 259 (1954). It encompasses, among other things, an honest belief, the absence of malice, and the absence of design to defraud or to seek an unconscionable advantage: "An individual's personal good faith is a concept of his own mind ... and, therefore, may not conclusively be determined by his protestations alone." Id. at 260. Neb.U.C.C. § 1-201(19) (Reissue 1980) defines good faith as honesty in fact in the conduct or transaction concerned.
A bona fide dispute serves as the necessary consideration underlying the new agreement in an accord and satisfaction. This form of consideration is based on the theory that if the amount due is disputed or unliquidated, the forbearance from suit and the willingness to compromise is in itself valuable consideration, even if an ultimate factual showing may later establish that the claim or defense was invalid in whole or in part. Restatement (Second) of Contracts § 74 (1981).
With regard to good faith in an accord and satisfaction, one court has defined it as follows:
An indispensible element contributing to the establishment of this defense consists in an actual and substantial difference of opinion. One must assert the validity of his claim and the other must in good faith deny all or part of it. His denial cannot be fabricated for use as a pretext to evade the discharge of an obligation. Disclaimer must be bona fide and based upon real faith that the demand is not meritorious.
Schuttinger v. Woodruff, 259 N.Y. 212, 216, 181 N.E. 361, 362 (1932). Another court put it this way: "A person cannot create a dispute sufficient as a consideration for a compromise by a mere refusal to pay an undisputed claim. That would be extortion, and not compromise. There must in fact be a dispute or doubt as to the rights of the parties honestly entertained." Demars v. Musser-Sauntry Land Co., 37 Minn. 418, 419, 35 N.W. 1, 2 (1887). See, also, Kelly v. David D. Bohannon Organization, 119 Cal.App.2d 787, 260 P.2d 646 (1953).
In Connecticut Printers v. Gus Kroesen, Inc., 134 Cal.App.3d 54, 184 Cal.Rptr. 436 (1982), the court held that although § 1-207 does not abrogate common-law accord and satisfaction, that doctrine applies only to bona fide disputes. Because the record could not support the lower court's *322 determination that a bona fide dispute existed, the court reversed the decision for determination of this fact question.
We believe that summary judgment was inappropriate in the case at hand. The scant record reveals no pleadings, affidavits, or depositions introduced by either party which conclusively establish the lack of a genuine issue of material fact with respect to the bona fide nature of the dispute.
On a motion for summary judgment, the moving party bears the burden of proving that no genuine issue as to any material fact exists and that the movant is entitled to judgment as a matter of law. The movant may discharge this burden by showing that if the case proceeded to trial, the opponent could produce no competent evidence to support a contrary position. Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982).
"A prima facie showing by the movant for summary judgmenti.e., the production of enough evidence to demonstrate such party's entitlement to a judgment if evidence were uncontroverted at trial shifts the burden of producing evidence to the party opposing the motion. Summary judgment should be granted to the movant unless the opposing party offers competent evidence ... that there is a genuine issue as to a material fact."
Id. at 328, 318 N.W.2d at 716 (quoting Nader v. de Toledano, 408 A.2d 31 (D.C. 1979)).
Here, the record indicates that while the parties presented evidence of a dispute in their motions for summary judgment, none presented evidence of a bona fide dispute, or in Cass' case, the lack thereof. Thus, the movants failed to meet their burdens of establishing a prima facie showing that no genuine issues of material fact existed. The district court's order granting summary judgment to the defendants was in error. Accordingly, the cause is reversed and remanded for trial.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR NEW TRIAL.
GRANT, Justice, concurring in part and in part dissenting.
I concur in part and dissent in part. I agree with the court's opinion in every respect except in the court's holding that while defendants "presented evidence of a dispute in their motions for summary judgment, none presented evidence of a bona fide dispute...." I believe that the requirements of Neb.Rev.Stat. § 25-1332 (Reissue 1979) have been met and that the "pleadings ... together with the affidavits... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The "material fact" in question here is whether there was a bona fide dispute between plaintiff and defendantsnot the details of, or the validity of, the contentions of the two sides of that dispute. The definition of bona fide dispute, as set out in Doyle v. Gordon, 158 N.Y.S.2d 248, 259-60 (1954), and cited in the majority opinion, is expanded in the succeeding sentence in the Doyle opinion at 260: "The existence of defendants' good faith as a substantive fact, therefore, necessitates an examination and evaluation of external manifestations as well."
I agree with the statement in Schuttinger v. Woodruff, 259 N.Y. 212, 216, 181 N.E. 361, 362 (1932), as set out in the majority opinion, that "[o]ne [party] must assert the validity of his claim and the other must in good faith deny all or part of it." I also agree with the statements from Demars v. Musser-Sauntry Land Co., 37 Minn. 418, 419, 35 N.W. 1, 2 (1887), that a denial of a claim must not amount to "extortion" or a "mere refusal to pay an undisputed claim."
The pleadings and affidavits in this case, however, do not lead to such characterizations as the above. In its amended petition plaintiff stated that it agreed with defendants to do certain dirt-moving work for $5,600; that it overran such bid by $1,685, which it credited to defendants on the $5,600 bid; and that it then contracted to do additional work at an hourly rate. *323 Plaintiff attached a detailed bill which shows hourly work done between March 8 and 18, 1980, in a total sum of $21,280, and allowing credits. In an affidavit filed in connection with the summary judgment motion, plaintiff's attorney stated that plaintiff had accepted defendants' check in the amount of $1,408.25 "as a partial payment," and admitted that the check had been tendered by defendants in full payment.
In his answer and in his affidavit, defendant Asmussen alleged the plaintiff's work was unsatisfactory, and incorporated a letter from defendant Asmussen, acting for both defendants, to plaintiff, stating in part:
As I explained, we were not fully paid on our crop share, due to the faulty dirt work. We do not feel that we should have had any additional charges incurred on the original dirt work done in 1979.
Due to the fact that we were short # 2025 bushels of corn because of severe slopes hindering the operation of the irrigation equipment we feel that you owe us $4191.75.
You did bid us $5600 to do the water drainage work and agreed to level the slopes as per your original agreement in 1979.
I am enclosing a check for $1408.25 as final settlement of the bill.
In my opinion there is in this case far more than "a mere refusal to pay," and there is no showing of any "extortion" by defendants. In specific detail, the position of defendants is that plaintiff so performed the work it agreed to do that defendants suffered a loss of 2,025 bushels of corn on account of "faulty dirt work." Plaintiff admits it overran its first bid by $1,685, but alleges that it did additional work on an hourly basis agreed upon with defendants. Defendants say "au contraire," and that any additional work was done to correct the work plaintiff had contracted to do in the first place. I therefore cannot agree with the statement in the majority opinion that "[a]pparently, the parties orally agreed that the additional work would be billed on an hourly basis...." That is the crux of the dispute.
In my opinion there are numerous "external manifestations" of a dispute which, on examination, shows the undisputed existence of the fact in questionthat there is a bona fide dispute. Nothing in the record suggests any "mere refusal to pay," or any "extortion," but affirmatively shows defendants' firm position in an ordinary business dispute.
I would affirm the judgment of the trial court in its entirety.
BOSLAUGH, J., joins in this concurrence and dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014030/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7852
LEON STEVENSON,
Petitioner - Appellant,
versus
PHOEBE JOHNSON, Warden of Perry Correctional
Institution; CHARLES M. CONDON, Attorney
General of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (CA-99-2779-2-12)
Submitted: May 28, 2004 Decided: August 13, 2004
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Leon Stevenson, Appellant Pro Se. Jeffrey Alan Jacobs, OFFICE OF
THE ATTORNEY GENERAL, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leon Stevenson seeks to appeal* the district court’s
order denying relief on his petition filed under 28 U.S.C. § 2254
(2000). The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
his constitutional claims are debatable and that any dispositive
procedural rulings by the district court also are debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Stevenson has not made the requisite
showing.
First, Stevenson’s argument that his state court
convictions violate double jeopardy has been previously rejected by
this court, Stevenson v. Johnson, No. 01-7572 (4th Cir. Mar. 27,
2003) (unpublished) (reversing district court’s grant of habeas
*
Stevenson’s notice of appeal was not timely filed. Contrary
to the requirements of Fed. R. Civ. P. 58, however, the district
court never entered its judgment in a separate document. As a
result, the time limit for noting an appeal never began to run.
See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85 (1978). We
accordingly deem the appeal timely.
- 2 -
petition), and that ruling is now the law of the case.
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16
(1988); United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993).
Second, Stevenson’s claim that he received ineffective assistance
of counsel in his prior appeal to this court fails as he is not
entitled to such representation in a collateral adjudication.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
also deny Stevenson’s motions to proceed in forma pauperis and for
appointment of counsel and 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.
DISMISSED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918911/ | 207 Pa. Superior Ct. 461 (1966)
Crews, Appellant,
v.
Carey.
Superior Court of Pennsylvania.
Argued December 16, 1965.
March 24, 1966.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
*462 John H. Hibbard, for appellant.
Charles J. Bufalino, Jr., Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
James P. Harris, Jr., for appellees.
OPINION BY WATKINS, J., March 24, 1966:
This is an appeal from the order of the Court of Common Pleas of Luzerne County affirming the decision of the Workmen's Compensation Board denying compensation to the claimant, Levi T. Crews, on the ground that he was not employed in an occupation having a silica hazard.
The claimant was employed by the anthracite strip mining firm of Carey, Baxter & Kennedy from 1931 to May 31, 1963. He ran draglines and shovels; he loaded rock; he was engaged in blasting and loading; he was engaged in casting overburden; he loaded coal and rock; he did mechanical work in the warehouse; he was a mucker, loading rock after it was drilled and blasted; he did tunneling work; as his health condition deteriorated he went from operating a shovel to mechanical work in the warehouse. The medical testimony is clear that he was totally disabled as the result of anthracosilicosis on January 7, 1964.
*463 Claimant's work record was not disputed and no evidence was offered by any party that he was or was not exposed to silicon dioxide while employed by the defendant. The referee found that the claimant was exposed to a silica hazard from 1931 to May 31, 1963, while employed by the defendant. The referee also concluded that he was entitled to compensation and that defendant company was liable for 60% of the compensation and the Commonwealth for 40%. On appeal, the board determined that the claimant was not so exposed from 1944 to May 31, 1963, and that he had failed in his burden of proof and so denied compensation. On appeal, the court affirmed the decision of the board.
The board and the court below indicated that the decision was controlled by the case of Scott v. United States Steel Corporation, 203 Pa. Superior Ct. 459, 201 A. 2d 243 (1964). This was error. The Scott case is clearly distinguishable. It was a claim brought under § 108(n) of the Occupational Disease Act, as amended, February 28, 1956, P.L. (1955), 1095, § 1, 77 PS § 1208(n), which is the catch-all section of the Occupational Disease Act. Under this section which covers diseases not identified in the act as occupational diseases, the burden of proof on the claimant is a heavy one. It is necessary that he must sustain the burden of proving by a preponderance of the evidence that the disease in question, in the Scott case, lung cancer, was peculiar to the industry and not common to the general public, i.e., establishing it as an occupational disease within § 108(n). In the Scott case the claimant failed to sustain this burden.
The instant case is brought under § 108(k) of the Act, supra, 77 PS § 1208(k), which reads as follows: "Silicosis or anthraco-silicosis (commonly known as Miner's Asthma and hereinafter referred to as anthracosilicosis) in any occupation involving direct contact with, handling of, or exposure to dust of silicon dioxide *464 (SiO[2])." This makes anthracosilicosis a specific occupational disease and the burden required in the Scott case, supra, does not apply here, if the industry is subject to the hazard of silicon dioxide.
The Court will take judicial notice that the anthracite mining industry is affected with a silicon dioxide hazard. Powichka v. Glen Alden Coal Co., 83 Pa. D. & C. 528. In that case the claimant, although employed in the mining industry, had a specific occupation in a coal breaker. The defendant was required to go forward with the evidence to prove that the breaker was free of the hazard. Thousands of awards have been made to disabled employees of the mining industry as a result of anthracosilicosis. The very name of the disease, anthracosilicosis, commonly known as Miner's Asthma, connects it with the anthracite mining industry. Strip mining is an important part of the mining industry and is affected with the hazard. Chernetsky v. Wm. Penn Stripping Co., 200 Pa. Superior Ct. 277, 188 A. 2d 770 (1963).
Under ordinary circumstances the burden of proof would still be on the claimant to prove that he was exposed to the silica hazard while employed in the anthracite industry. The legislature, realizing the remedial nature of the Act and requiring its liberal interpretation recognized the grave burden on the average claimant to maintain this very technical burden, and so in § 301(f) of the Occupational Disease Act, 77 PS § 1401(f), the burden of going forward with the evidence to prove that the claimant was not so exposed was shifted to the defendant. The act in question reads as follows: "(f) If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the *465 course of his employment, but this presumption shall not be conclusive."
As this Court said in Metz v. Quakertown Stove Works, 156 Pa. Superior Ct. 70, 39 A. 2d 534 (1944):
"The Act of 1939 contained a very important and material provision in section 301(f), as follows: `If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.' It will be noted that the employee is not called upon, in order to get the benefit of this rebuttable presumption to show that the particular factory or plant in which he worked was a silica hazard, but only that the `occupation or industry' was one in which silicosis was a hazard, leaving it then to the employer to show, if possible, by facts and circumstances within its knowledge and control, that its particular factory or plant had been so conducted or carried on as to avoid or get rid of that hazard. . . .
"The act recognizes that it may be unreasonably difficult for the individual employee claimant to show that his particular place of employment was so conducted or carried on as to be an occupational disease hazard, and therefore provided that if the occupation or industry in which he was employed was one in which the occupational disease from which he is suffering was a hazard, it shall be presumed (but not conclusively) that his disease arose out of and in the course of his employment. If the claimant is required to prove that the particular plant or place of business where he was employed constituted an occupational disease hazard, there would be no need whatever to help out the claimant with any presumption." See also: DeMascola v. Lancaster, 200 Pa. Superior Ct. 365, 375, 189 A. 2d *466 333 (1963); Neary v. Carbondale General Hospital, 181 Pa. Superior Ct. 189, 194, 124 A. 2d 470 (1956).
It is true that the finding of the board that the claimant was not exposed to a silica hazard is a pure question of fact. See: Witters v. Harrisburg Steel Corporation, 183 Pa. Superior Ct. 450, 132 A. 2d 762 (1957). And it is equally true that unless there has been a capricious disregard of competent evidence or inconsistencies between the findings of fact with each other and the conclusions of law and the order, the order must be sustained. Irvin v. Plymouth Meeting Rubber Div. Linear, Inc., 182 Pa. Superior Ct. 280, 126 A. 2d 491 (1956).
However, the facts in this case are that the claimant was totally disabled as a result of anthracosilicosis and that he had been employed in the anthracite strip mining industry from 1931 to May 31, 1963, by the defendant company; and that the anthracite mining industry is infected with a silicon dioxide hazard. This, with the aid of the presumption made out a prima facie case. The claimant was under no duty to prove that he was exposed to a silica hazard in his specific occupation in the industry. It was rather the burden of the defendant to prove that he was not so exposed. His testimony that the dust "was household type and from the cats (caterpillars)", if he had the burden, would not have been competent testimony nor would he have been a competent witness to prove by such testimony that silicon dioxide was present in the air. So, as the appellant contends, this is not competent testimony, on cross-examination, to support the theory of the defendant. The defendant below raised the question as to its liability for 60% of the compensation if an award were made. There is no evidence in this record of any exposure to a silicon dioxide hazard from any party prior to his employment in 1931 in the mining industry, so that, if an award were made, the determination *467 of the referee of 60% of the compensation to be paid by the defendant and 40% by the Commonwealth was a proper one.
No evidence of any kind was presented by the defendant to rebut the presumption that the claimant's total disability from anthracosilicosis arose out of and in the course of his employment in an industry where the hazard existed. The board arbitrarily and capriciously disregarded the evidence supplied by the presumption.
The order of the court below is reversed and the record is remanded to the Workmen's Compensation Board for an award in accordance with this opinion.
DISSENTING OPINION BY MONTGOMERY, J.:
The board found as a fact that "The claimant was not employed in an occupation having a silica hazard from 1924 to 1931 and from 1944 to May 31, 1963." In support of this finding the record clearly shows that from 1944 to 1949, the claimant did mechanical work and from 1949 to 1963 he worked in defendant's warehouse. As a mechanic he repaired drills, air compressors, tractors and shovels. As a warehouseman, he "cleaned up, took inventory and moved stuff around", which occupations, as also found by the board, are general in nature and are not recognized as having a silica hazard. The majority rules out the claimant's own testimony that the only dust in the warehouse "was household type and from the cats (caterpillars)", but in my opinion, this was competent evidence for the board's consideration which together with the other evidence as to the general nature of claimant's occupation supported its finding that claimant's occupational disease did not arise out of and in the course of his employment by appellee within four years from the day on which his disability arose.
*468 The majority relies on a presumption, but a presumption of fact gives way the moment proof to the contrary is presented. Heath v. Klosterman, 343 Pa. 501, 23 A. 2d 209 (1941).
If claimant is entitled to recover in this case, every stenographer, clerk or other person doing general work in an office of an anthracite coal company, regardless of how many miles away from the mines or coal operation the office may be, would be entitled to the same consideration. I do not believe the Legislature intended such a broad construction of Section 301(f) of the Occupational Disease Act.
I would affirm the board and lower court on the authority of Scott v. United States Steel Corporation, 203 Pa. Superior Ct. 459, 201 A. 2d 243 (1964), and Jaloneck v. Jarecki Manufacturing Co., 157 Pa. Superior Ct. 609, 43 A. 2d 430 (1945).
Therefore, I respectfully dissent.
WRIGHT, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918912/ | 106 B.R. 99 (1989)
In re Carl Davis HOWELL, Lucy Elaine Howell, Robin L. McGuire, Carl David Simmons, Michael Grant Staples, Gary Lewis Ferrell, Debtors.
Bankruptcy Nos. 7-88-02053-R, 7-88-02054-R, 7-88-02080-R, 7-88-02081-R and 7-88-02114-R.
United States Bankruptcy Court, W.D. Virginia, Roanoke Division.
October 12, 1989.
*100 A. Carter Magee, Jr., Magee & Associates, Roanoke, Va., Trustee.
Susan C. Proctor, Law Office of Jeffrey H. Krasnow, Roanoke, Va., David W. Mullen, Christiansburg, Va., for debtors.
JOINT MEMORANDUM OPINION AND ORDER
H. CLYDE PEARSON, Chief Judge.
The facts and issues being essentially the same in each of the foregoing cases, the court enters this joint opinion.
The issue before the court is whether each of the hereinafter-named debtors qualify as "householder or head of family" under Section 34-1 of the Virginia Code (Supp.1980) entitling each to claim the Virginia homestead exemption. Va.Code § 34-4 (Supp.1980).
The above-styled cases are consolidated in order to resolve the trustee's objections to the homestead exemption claimed by the respective debtors.
The essential facts in each of the above-styled cases are as follows:
I. In re Carl David Simmons
Carl David Simmons is an unmarried 21 year old Chapter 7 debtor with no dependents. He worked for the past two years for Valley Fasteners and he is financially independent. He has filed his own tax returns and has not been claimed as a dependent by any other person.
Mr. Simmons filed his petition in this court on December 22, 1988. He filed a homestead deed in Roanoke City Circuit Court on December 28, 1988. At the time he filed his petition and homestead deed, he resided in Roanoke City with his mother and paid rent to her in the amount of $200.00 per month plus $80.00 per month for food, one-half the electric bill and about $20.00 per week for various toiletries and miscellaneous items. In return for the above amounts paid, Mr. Simmons had use of a bedroom as well as other rooms in the household.
II. In re Michael Grant Staples
Michael Grant Staples is an unmarried 24 year old Chapter 7 debtor with no dependents. He has been employed for the past five years at Radford Arsenal and is self-supporting. He filed his own tax returns and has not been claimed as a dependent by any other person.
Mr. Staples filed his petition in this court on December 22, 1988. He filed a homestead deed in the Circuit Court for the City of Roanoke on December 28, 1988. Mr. Staples resides in Roanoke City with his mother and pays to her the amount of $80.00 every two weeks for room and board. In return for the above-stated amount paid, he has a separate bedroom and use of the remaining rooms in the residence.
III. In re Carl and Elaine Howell
Carl Howell is 40 years old and his wife, Elaine Howell, is 44 years old. Carl and Elaine are married but have no other dependents. Both are employed full time and are financially independent. They have not been claimed as dependents on any tax return filed by any other person.
*101 Mr. and Mrs. Howell, as debtors in this proceeding, filed a Chapter 7 petition in this court on December 19, 1988, and, thereafter, the two homestead deeds were mailed to Botetourt County and recorded in the Botetourt County Circuit Court on December 21, 1988. At the time of signing the deeds, both Mr. and Mrs. Howell resided together in Botetourt County.
At the section 341 meeting of the creditors on January 19, 1989, Mr. and Mrs. Howell testified that they vacated their marital residence in Botetourt County on December 20, 1988, because they did not intend to reaffirm the outstanding mortgage indebtedness against the real estate owned by them. They believed they needed to vacate the premises as quickly as possible so that the mortgage holder could proceed with disposition of the property. Upon vacating the premises, Mr. and Mrs. Howell temporarily moved in with Mrs. Howell's parents in Roanoke City and agreed to pay the amount of $200.00 per month as rent.
Duplicate homestead deeds were filed on behalf of Mr. and Mrs. Howell in Roanoke City Circuit Court on January 24, 1989, within five days after the first date set for the meeting of creditors. On February 11, 1989, Mr. and Mrs. Howell moved to a new address.
IV. In re Robin Louise McGuire
Robin Louise McGuire is 30 years old, single with no dependents. She is employed by Jobes Florist and also does private duty nursing work. She is financially independent and has filed her own tax returns and is not claimed as a dependent by any other party.
Ms. McGuire, as debtor in this proceeding, filed a Chapter 7 petition in this court on December 19, 1988, and filed a homestead deed in Franklin County Circuit Court on December 21, 1988.
Ms. McGuire lives with her parents and pays the sum of $200.00 per month for rent. She has use of a bedroom and den on the second floor of the home and shares a bath and kitchen with other family members.
V. In re Gary Lewis Ferrell
Gary Lewis Ferrell, as debtor in this proceeding, filed a Chapter 7 petition in this court on December 30, 1988, and filed a homestead deed in Montgomery County Circuit Court on December 21, 1988.
Mr. Ferrell, a 23 year old, was separated from his wife on October 19, 1988, and was unemployed on his filing date. He supports himself and his daughter who lives with his estranged wife. Just prior to filing, Mr. Ferrell moved in with his parents because he was financially unable to maintain a trailer residence which he had been ordered to vacate by the bank which held the security interest therein. Mr. Ferrell was to pay $100.00 per month to his parents for rent. Mr. Ferrell moved out of his parents' home sometime in June 1989 and had paid the sum of $500 to $600 in rent for the eight months he resided there.
The hereinabove-named debtors (collectively "debtors") maintain that they are householders within the meaning of the Virginia statute and entitled to claim the benefit of the homestead exemption.
The bankruptcy trustee ("trustee") objected to each debtor's claim of the homestead exemption because he contends that they do not qualify as householder or head of family under Virginia law. The trustee relies primarily on the court's holding in Jones v. Kirsch, 93 B.R. 77 (E.D.Va.1988).
In Virginia, the homestead exemption is to shield the helpless and unfortunate debtors. Linkenhoker v. Detrick, 81 Va. 44 (1885). The Virginia Supreme Court has stated that when construing homestead laws, a court should adopt a liberal construction in order to protect the debtors and their families. In re Smith, 22 B.R. 866, 867 (Bankr.E.D.Va.1982); see Home Owners Loan Corporation v. Reese, 170 Va. 275, 196 S.E. 625, 626 (1938); cited in In re Newsome, 60 B.R. 169, 172 (Bankr.E. D.Va.1986).[1]
*102 It must be the Court's objective to pursue an interpretation of the statute within the purpose intended by the legislature.[2] "The legislative purpose as revealed by the entire context must be considered." Columbia Bank v. Lee, 368 F.2d 934 (4th Cir.1966), cert. denied, 386 U.S. 992, 87 S.Ct. 1308, 18 L.Ed.2d 338.
The pivotal issue is whether each debtor is a "householder" entitled to claim the one-time exemption not to exceed the value of $5,000.00 as a homestead exemption pursuant to Va.Code § 34-1, et seq.
Section 34-4 of the Va.Code by its terms entitles "[e]very householder or head of family" to claim the homestead exemption.[3] Section 34-1 of the Va.Code defines "householder" as follows:
The word "householder" as used in this title shall include any person, married or unmarried, who maintains a separate residence or living quarters, whether or not others are living with him. . . .
To determine the present legislative purpose of the homestead statute, it is necessary to examine the previous history of the statute as well as the modern amendments made thereto.
Historically, the word "homestead" in its usual legal significance means the house and curtilage set apart for the family residence and exempt from forced sales for the debts of the householder.
Homestead exemptions are creatures of statutes and have no basis in common law. In Virginia and many other states, the early forefathers felt constrained to give this exemption constitutional prominence presumably to prevent it from being lightly taken away from the people. This strong sentiment had its roots grounded in the visions of debtor prisons and the sale into slavery of persons unable to pay their debts.
The first homestead law enacted in Virginia was an Act approved April 29, 1867. See Act of the General Assembly 1866-7, page 962. The next homestead law in Virginia was created by the Constitution of 1869 and was put into operation or implementation by an Act of the General Assembly approved June 27, 1880. The Constitutional provision was not self-executing but required legislation to put it into effect. See Oppenheim v. Myers, 99 Va. 582, 39 S.E. 218 (1901). Subsequently, the homestead law was replaced in the Constitution of 1902 and was put into operation by the Acts of the General Assembly of 1902-3-4, page 868. The former provisions were therein continued in the 1902 Constitution with some modifications.
The word "homestead" has been construed to mean the home; the house and the adjoining land where the head of the family dwells; the home farm; the fixed residence of the head of a family with the land and buildings surrounding the main house. See Oliver v. Snowden, 18 Fla. 823 (1882). In the state of Texas, the statutes have set apart exemptions as "business homesteads" which the head of a family uses and occupies as a place to engage in *103 his calling or business. See Spence v. State Bank of El Paso, 294 S.W. 618 (Tex. Civ.App.1927). As appears from the foregoing, historically, the homestead exemption set apart to the head of a household or householder the family dwelling and adjoining land or curtilage.
Statutes, in order to conform to present day living arrangements of individuals, have altered and amended the original meaning over the years, this being true with the Virginia statute. Section 34-4 defines property which may be set apart as exempt from levy, seizure, etc., "his real and personal property or either, to be selected by him, including money and debts due him." (emphasis added) The foregoing definition contained in Section 34-4 not only includes real estate but personal property, including choses in action, being intangible personal property which is incapable of being seen and may be even perishable in nature.
The homestead created by the law of Virginia is not a "homestead" in any real sense of the word but is an exemption pure and simple. The Virginia homestead exemption is not limited merely to the conservation of the family dwelling and adjoining land or curtilage because it may be claimed in real estate or tangible and intangible personal property.
The Virginia legislature's modern amendments to the definition of householder have consistently moved toward expanding the number of people who may qualify as householder; whereas, prior definitions of "householder" required a relationship which compelled the duty of support.[4]
In modernizing the statute by the 1978 Amendment, the legislature moved away from the relationship and duty of support requirement. From the amendment, it is clear that the legislature did not intend to restrict the word "householder" but intended to enlarge its application to comport with practical present day circumstances of the citizens of Virginia. Furthermore, "the language `shall include,' which was added by the 1978 amendment, does not lend itself to a limitation, but should be considered an extension or enlargement of the definition of `householder.'" Dickens v. Snellings, 10 B.R. 949 (Bankr.W.D.Va. 1981).
In modernizing the statute further, by the 1979 Amendment, the legislature added the language "married or unmarried" as well as the language requiring the maintenance of "a separate residence or living quarters." The 1979 Amendment, then, not only continued the changes introduced by the 1978 Amendment, namely that a person need not have dependents or others living with him in order to qualify as a householder, but also allowed a single person to qualify as a householder. The words "living quarters" is further indication that a single room, apartment, condo or dwelling house will suffice.
Generally, words in a statute should be given their plain and ordinary meaning unless the statute is ambiguous or it is apparent the words are used by the legislature as words of art. In re Allen, 52 B.R. 206, 208 (Bankr.E.D.Va.1985) citing Miller v. Commonwealth, 172 Va. 639, 648, 2 S.E.2d 343, 347 (1939).
In Cheeseman v. Nachman, 656 F.2d 60 (4th Cir.1981), the Court of Appeals for the Fourth Circuit found the language of the homestead exemption statute to be ambiguous and capable of various interpretations. The court stated that, depending on how the statute is read, the language could limit the exemption to allow only one person in each residence to be a householder because the other people living with him or her typically do not maintain other separate residences. On the other hand, the court reasoned that the statute could be construed to permit any individual who contributes to the maintenance of a residence, *104 without regard to whether others in the same residence contribute to its maintenance, to be a householder. In finding the latter construction more consistent with Virginia's policy to construe exemption statutes liberally in favor of the debtors, the court extended the homestead exemption to both husband and wife living together if he or she contributes to the maintenance of the household. See also Dickens v. Snellings, supra.
The court in Cheeseman conformed to the legislature's apparent intent (as per statutory amendments addressed above) to expand the statute by focusing on the "contribution to the maintenance of the household" rather than the relationship of the husband and wife or a duty of support requirement.
In Jones v. Kirsch, supra, the court made findings and conclusions quite different from the facts here. Here, there is no indication that these debtors are dependents nor the payments made were voluntary contributions to the household rather than rent. Here, also, the occupancy shows that these debtors had, and maintained, separate "living quarters" in compliance with the statutory language. The legislature, by the addition of the words "living quarters" in addition to the word "residence," intended to further broaden the exemption rights under the statute. This is in keeping with the amendments of recent years enlarging and expanding the benefits of the homestead exemption.
In the consolidated cases herein, each of the debtors before this court are totally emancipated adult citizens who were financially self-supporting and independent. No debtor was claimed as a dependent for income tax purposes by his parent(s) or any other persons. Each of the debtors paid a fair and reasonable amount for the exclusive use of certain living quarters within the residence shared with other people. Simply because the financial circumstances of each compelled them to reside in a private residence of their parents is not a compelling fact which would deprive these debtors of their exemption.
In light of the legislative history transforming the "homestead" exemption into a true exemption, the modern legislative amendments expanding the number of people who qualify as householder, and the Cheeseman decision conforming with Virginia's liberal construction policy, makes it unrealistic to hold that an independent child living with his parents and contributing to the maintenance of the residence is not a householder because of his relationship to his parents and/or his failure to support his parents. Courts, in their construction of statutes which contain ambiguous language, must search out the true intent of the enacting body in order to give the statutes the effect compatible with the interests dealt with. In this case, we are here dealing with an individual's right to claim the once-in-a-lifetime homestead exemption which has been extended and expanded by the legislature. It would not be appropriate nor, indeed, desirable to engage in technicalities or vacillate as to uncertain language in a manner which would defeat that right and, in effect, attribute to the state legislature an intent, as well as a result, which would be undesirable and unintended. It would not be fair to assume that the legislature intended such a narrow and restrictive construction so as to exclude these debtors.
Accordingly, it is
ORDERED
that the trustee's objections to the debtors' Virginia homestead exemption are DENIED.
NOTES
[1] For more cases regarding liberal construction of the statutes, see Goldburg Co. v. Salyer, 188 Va. 573, 50 S.E.2d 272, 274 (1948); Wilkinson v. Merrill, 87 Va. 513, 12 S.E. 1015, 1016 (1891); Roberts v. County of Henrico Federal Credit Union, 709 F.2d 275, 276 (4th Cir.1983); Cheeseman v. Nachman, 656 F.2d 60, 63 (4th Cir.1981); Richardson v. Woodward, 104 F. 873, 875 (4th Cir.1900); In re Gustinis, 16 B.R. 108, 110 (Bankr.E.D.Va.1981); In re Perry, 6 B.R. 263 (Bankr.W.D.Va.1980). See also a collection of authorities in Vol. XXXVI Washington and Lee Law Review, p. 127, of Professor Ulrich.
[2] "A remedial statute must be construed liberally so as to afford all the relief within the power of the court which the language of the statute indicates that the legislative intended." See Virginia Development Company v. Crozer Iron Company, 90 Va. 126, 17 S.E. 806 (1893), cited in In re Snellings, 10 B.R. 949 (Bankr.W.D.Va.1981). See also In re Wilkes, 2 B.C.D. 957 (W.D.Va. 1976).
[3] Section 34-4. Exemption created. "Every householder or head of a family residing in this State shall be entitled, in addition to the property or estate which he is entitled to hold exempt from levy, distress or garnishment under §§ 34-26, 34-27 and 34-29, to hold exempt from levy, seizure, garnishment or sale under any execution, order or process issued on any demand for a debt or liability on contract, his real and personal property, or either, to be selected by him, including money and debts due him, to the value of not exceeding $5,000. The word `debt,' as used in this title, shall be construed to include a liability incurred as the result of an unintentional tort."
[4] Section 34.1. Code of Va. prior statute. Definitions. "The word `householder' used in this title shall mean one who occupies such a relationship towards persons living with him as to entitle them to a legal or moral right to look to him for support and who, in turn, has the duty of supporting such persons. The word `householder' shall be equivalent to the expression `householder or head of family,' and the term `laboring person' shall be construed to include all householders who receive wages for their services." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744521/ | 998 So. 2d 1144 (2008)
BETTY
v.
McNEIL.
No. SC08-1906.
Supreme Court of Florida.
November 26, 2008.
Decision without published opinion. Hab.Corp.den. as procedurally barred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455290/ | 251 P.3d 113 (2011)
HACKMAN
v.
WESTERN AGR. INS. CO.
No. 103967.
Court of Appeals of Kansas.
May 6, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918879/ | 46 N.J. 526 (1966)
218 A.2d 156
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ROY SHEPPARD, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued February 21, 1966.
Decided March 21, 1966.
*528 Mr. Philip R. Glucksman, Assistant County Prosecutor, argued the cause for the appellant (Mr. Brendan T. Byrne, Essex County Prosecutor, attorney; Mr. Philip R. Glucksman on the brief).
Mr. Hymen B. Mintz argued the cause for the respondent.
The opinion of the court was delivered
PER CURIAM.
On February 4, 1965 James P. Moore, a criminal investigator for the Alcohol and Tobacco Tax Division of the Internal Revenue Service, applied to a United States Commissioner for a search warrant and submitted the following affidavit:
"That [I have] reason to believe that on the premises known as 123 Clinton Avenue, Newark, Essex Co., New Jersey, areas and places under the immediate custody and control of the superintendent at said house, including first floor rear apartment, storage bins and areas, utility areas and all other areas under his custody and control in the Judicial District of New Jersey there is now being concealed certain property, namely non-taxpaid spirits which are in violation of Sections 5601(a) (12), 5604(a) (1), and 7206(4), Internal Revenue Code. And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: On February 2, 1965 I received information from a source which has supplied reliable information in the past, and whom I believe to be reliable that illicit non-taxpaid spirits are being sold by the superintendent at 123 Clinton Avenue, Newark, New Jersey. On the same date this source entered the aforementioned premises after I had searched him to determine that he possessed no liquor, and he went into the first floor rear apartment. He emerged a short time later and handed me a 1/2 pint bottle filled with non-taxpaid spirits."
On the basis of the affidavit the Commissioner issued a warrant authorizing a search of "Portions of and areas in the rooming house at 123 Clinton Avenue, Newark, Essex County, New Jersey, such areas as are under the immediate custody and control of superintendent of said building including *529 first floor rear apartment, storage and utility areas and other places under his control."
A search was conducted pursuant to the warrant and a quantity of untaxed liquor was seized. The defendant was thereafter indicted for possession of untaxed alcohol in violation of N.J.S.A. 33:1-50(e).
Prior to trial the defendant moved to suppress the evidence which had been seized during the search. The trial court granted the defendant's motion and ordered the evidence suppressed on the ground that the description of the place to be searched was too general. The Appellate Division granted the State's motion for leave to appeal the trial court's order, and before argument there we certified the appeal on our own motion.
For a search warrant to be constitutionally valid it must be based on probable cause and it must particularly describe the place to be searched. U.S. Const. Amend. IV; N.J. Const., Art. I, par. 7. The showing of probable cause and the particularity of the description of the place to be searched are generally treated separately, but in the present case they must be considered together because the showing of probable cause determines the scope of the warrant. See United States v. Hinton, 219 F.2d 324, 325 (7 Cir. 1955). The defendant contends that the affidavit submitted to the Commissioner showed probable cause only for a search of the first floor rear apartment. We do not agree.
When law enforcement officials learn that an individual is engaged in criminal activity in one part of a building, it is reasonable for them to assume that similar activity may be uncovered in other areas of the building over which that individual has control. See Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1924). In that case a federal agent observed a truck containing cases of illicit alcohol drive into a garage on the ground floor of a large building. He obtained a warrant authorizing a search not only of the garage but also of "any building or rooms connected or used in connection with said garage." Even though *530 the agent's affidavit did not allege that he saw illicit alcohol anywhere but in the garage, the United States Supreme Court unanimously sustained the validity of the warrant and held there was probable cause for searching not only the garage but the connecting areas as well. 267 U.S., at pp. 504-505, 45 S.Ct., at pp. 416-417, 69 L.Ed., at p. 761.
On the basis of the affidavit in the present case it is clear that there was probable cause to believe that the superintendent of the building dealt in illicit alcohol and, in these circumstances, it was equally probable that such alcohol might be found not only in the first floor rear apartment but in any other part of the building over which he had "immediate custody and control."
Because of the nature of his job, a superintendent has control over not only his own living quarters, but also cellars, broom closets, hallways, storage bins and vacant apartments, and it is doubtful that even the most diligent surveillance would normally reveal the existence or exact location of these areas. However, it is not required that the description in a warrant identify each nook and cranny so long as the description enables the officer executing the warrant to ascertain with reasonable effort the place intended to be searched. Steele v. United States, supra, 267 U.S., at p. 503, 45 S.Ct., at p. 416, 69 L.Ed., at p. 760; State v. Daniels, 46 N.J. 428 (1966). We think that the warrant in the present case meets this standard and that the identification of the areas to be searched was sufficiently particularized to protect any other residents of the rooming house from illegal intrusions.
Reversed.
For reversal Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO 6.
For affirmance None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1497012/ | 802 S.W.2d 354 (1990)
Gene M. SNOW, Appellant,
v.
JUPITER OIL CO., Appellee.
No. 11-89-242-CV.
Court of Appeals of Texas, Eastland.
December 20, 1990.
Rehearing Denied January 17, 1991.
*355 David Keltner, Richard K. Casner, G. Dennis Sheehan, Haynes & Boone, Fort Worth, William B. Wright, Jr., Cisco, for appellant.
Joseph W. Russell, Foster, Lewis, Langley, Gardner & Banack, San Antonio, for appellee.
OPINION
ARNOT, Justice.
Seeking judicial construction of a mineral deed, Jupiter Oil Co. brought this declaratory judgment action to establish that it owned one-half of the minerals under a tract of land on which Gene M. Snow, a mineral lessee, was producing oil and gas. Trial was to the court. Snow appeals the trial court's judgment that Jupiter is entitled to one-half of all the proceeds of production less its share of reasonable costs of drilling and production. Urging application of the "repugnant to the grant" rule as established in Alford v. Krum, 671 S.W.2d 870 (Tex. 1984), Snow asserts in two points of error that, as a matter of law, Jupiter's interest is limited to a one-sixteenth mineral interest. We agree and, accordingly, reverse and render.
In 1918, J.W. Henderson and his wife, Malinda, owned all of the minerals under the north one-half of the northeast onefourth of Section No. 8, Block No. 4, H & T C Ry. Co. in Eastland County. On September 27, 1918, the Hendersons deeded a mineral interest to Joseph M. Weaver. This deed created the interest now in dispute. A copy of this deed is attached to this opinion. Through mesne conveyances, Jupiter now owns the interest of Weaver.
In 1981 Snow, an oil operator, secured oil, gas, and mineral leases from the heirs of J.W. and Malinda Henderson. These leases covered, among other lands, the north one-half of Section No. 8 and provided for a three-sixteenths lease royalty. Snow also secured an oil and gas lease from May B. Cottingham covering the north one-half of Section No. 8. That lease provided for a one-eighth lease royalty. Snow drilled and completed two producing wells on the tract of land. The purchasers of the oil and gas paid Snow and his investors based upon a division order title opinion showing that 100 percent of the minerals were under lease. This opinion credited the heirs of J.W. and Malinda Henderson with one-half of the minerals and May B. Cottingham with one-half of the minerals.
The lessee, May B. Cottingham, is a successor in interest to J.L. Cottingham, Trustee, who purchased the interest in 1935. However, J.L. Cottingham had previously conveyed the interest to H.H. Porter in 1947, who in turn conveyed the interest to Duquesne Oil Corporation in 1953. Duquesne conveyed the interest to Jupiter.
Jupiter, as an unleased mineral owner, sought reimbursement from Snow for the oil and gas he had produced. (After it had established production, Snow sold one of the two producing wells to a third party.) The parties stipulated as to the amount of proceeds received from the sale of oil and gas, as to the reasonable costs of drilling and completing the wells, and as to the amount of proceeds received from the sale of the one well. Jupiter claims that it is the owner of a one-half mineral interest and, based on the stipulation of costs, is entitled to $572,377.98 after all offsets. Snow claims that Jupiter is the owner of a one-sixteenth mineral interest and, based on the stipulation of costs and after deducting the total royalties paid to the Hendersons and Cottingham, is entitled to $59,922.60.
In its findings of fact, the trial court found that the intent of the grantors and grantee in the deed from the Hendersons to Weaver was to convey one-half of the minerals and entered judgment accordingly. Snow appeals, urging that, as a matter of law, the deed conveyed only one-sixteenth of the minerals.
The Henderson deed can be divided into the following clauses:
1. The granting clause: [H]ave granted, sold and conveyed and by these *356 presents do grant, sell and convey ... all that certain undivided Vie interest in and to all the oil, gas, and other minerals.
2. The subject to clause: It is the intention of the parties in the conveyance that the grantee herein is to receive Vie part of the oil, gas, or other mineral of whatsoever kind and character produced by the holder of the lease now on said land, that grantors herein now intend to convey ½ of the interest they now have in any such production under said lease.
3. The future lease clause: [I]t is the intention of the grantors herein that in the event said lease is forfeited, then in that event the grantee is to have and hold an equal undivided one half of all such minerals.
Jupiter asserts that the intent of the parties to the Henderson deed can be obtained by applying the primary rule of construction known as the "four corners" rule. See Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904 (1957). The "four corners" rule requires the court to construe the deed according to the intent of the parties as expressed within the four corners of the instrument, giving credit to every phrase and reconciling any conflicting clauses in an attempt to harmonize all language appearing in the deed. Jupiter argues that the intent of the parties is clear: Weaver was to receive one-half of the minerals subject to the existing States Oil Corporation lease then in effect and would, thus, receive one-half of the one-eighth lease royalty or a one-sixteenth net royalty revenue interest. If the States Oil Corporation lease expired, Weaver would have one-half of the minerals and would be entitled to one-half of the royalties provided for in any future lease.
Contrary to Jupiter's position of construing the parties' intent, Snow asserts that the deed should be construed by using the "repugnant to the grant" rule. Alford v. Krum, supra. Under such rule of construction, the estate described in the granting clause controls as a matter of law if there is an irreconcilable conflict between the mineral deed's "granting clause" and the other clauses. Snow would have this Court construe the deed as conveying a one-sixteenth mineral interest because the "granting clause" clearly conveys a onesixteenth of the minerals. Alford v. Krum, supra.
This very issue of construction was before the Court in Alford. In Alford, the Court addressed the recurring problem of construing a mineral deed when the instrument contains conflicting language between the "granting clause," the "subject to clause," and the "future lease clause" found in many old forms for conveying minerals. In Alford, the Court construed a 1929 mineral deed from Mr. and Mrs. Frank Koncaba to Walter A. Mang. In the Koncaba deed, the "granting clause" recited that the grantors conveyed "one-half of the one-eighth interest in and to all of the oil, gas and other minerals." The "subject to clause" recited that the grantee was to receive "Vie of all the oil royalty and gas rental or royalty due and to be paid under the terms of [the existing] lease". However, the "future lease clause" provided that, in the event the existing lease lapsed, then the grantor and grantee would each own one-half of the minerals.
The Supreme Court in Alford recited the well-established rules in interpreting or construing a deed.[1] However, after *357 finding the language in the "future lease clause" in conflict with the language of the "granting clause," the court gave effect to the controlling language in the "granting clause" and held that Koncaba conveyed a one-sixteenth of the minerals. In a departure from the rule that the primary duty of the court in construing a deed is ascertaining the intent of the parties, the Alford Court adopted the common-law "repugnant to the grant" rule. This bright-line rule provides that, in construing instruments containing an irreconcilable conflict between clauses conveying or describing an estate, the court need only look at the "granting clause." This holding has led to an easy resolution in construing deeds that contain conflicting language; however, its application may lead to results that depart from the apparent true intent of the parties to the instrument. See Altman v. Blake, 712 S.W.2d 117 (Tex.1986); Veltmann v. Damon, 701 S.W.2d 247 (Tex.1985); Luckel v. White, 792 S.W.2d 485 (Tex.App.Houston [14th Dist.] 1990, writ granted); Hawkins v. Texas Oil and Gas Corporation, 724 S.W.2d 878 (Tex.App.Waco 1987, writ ref'd n.r.e.); Smith v. Graham, 705 S.W.2d 705 (Tex.AppTexarkana 1985, writ ref'd n.r.e.).
The adoption of the "repugnant to the grant" rule has been subject to criticism.[2] This Court has also had difficulty in applying the reasoning for the adoption of this rule to the construction of this deed when the clear intent of the parties is manifestly expressed on the face of the Henderson deed.
If the Henderson deed is reviewed from a "four corners" standard, as established in Hancock v. Butler, 21 Tex. 804 (1858), and followed in Garrett v. Dils Company, supra, then the language of the entire deed would be harmonized; no conflict would be found; and the intent of the parties would be consistent with the recitation in the future lease clause resulting in the conveyance of one-half of the minerals. If the deed is reviewed under a "two grant analysis," recognized in Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953), and suggested by the dissent in Alford, again, this Court would find no conflict and, consistent with the parties' expressed intentions, would hold that the Henderson deed conveyed a one-half interest in the minerals. Applying the rule of "construing the deed against the grantor" so as to convey the greatest estate would also result in this Court finding that the Henderson deed conveyed a one-half mineral interest. See Garrett v. Dils Company, supra.
In Alford, the Court found an irreconcilable conflict between the clauses in the Koncaba deed. We suggest that the conflict is not irreconcilable if the Court can harmonize all the parts of the deed. See Woods v. Sims, 273 S.W.2d 617 (Tex. 1954). Until such time as the language is harmonized, the conflict is only apparent and not irreconcilable. If the language is in fact irreconcilable, then the deed must, by definition, be ambiguous. If ambiguous, then the court should admit extraneous evidence to determine the parties' intent. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341 (1957). Nevertheless, the Alford Court found that the Koncaba deed was not ambiguous despite its holding *358 that an irreconcilable conflict between the clauses existed.
Neither Jupiter nor Snow asserts that the Henderson deed is ambiguous, nor do they urge that the Court should consider extraneous evidence concerning the intent of the parties. On February 26, 1919, Weaver conveyed the mineral interest in dispute to West Texas Oil Corporation, describing the mineral interest in the same language and clauses as used in the deed to Weaver. On April 1, 1925, West Texas Oil Corporation conveyed by mineral deed its interest to O.D. Caldwell, describing the interest being conveyed as: "all that certain... undivided Vi6 interest in and to all the oil, gas, and other minerals of whatsoever kind and character in and under the following described lot, tract or parcel of land ... the interest herein conveyed being the same interest conveyed by Joseph M. Weaver to West Texas Oil Corporation by deed dated February 26, 1919." This interest was traded four more times in the next 30 years using the identical language as in the deed to Caldwell. Further, the record contains a copy of the division order title opinion secured by Snow on the above property. This opinion credits May B. Cottingham (a successor in interest to J.L. Cottingham, Trustee) as owning one-half of the minerals and the heirs of J.W. Henderson as owning one-half of the minerals. Without finding the deed to be ambiguous, this extraneous evidence is not admissible.
Although the Alford decision recites its consideration of the "four corners" rule, the application of the "repugnant to the grant" rule is inconsistent with the application of the "four corners" rule. And, Alford rejects the use of the "two grant" rule. Further, by finding an irreconcilable conflict, but not an ambiguity, in Henderson-type mineral deeds, Alford does not allow the use of extrinsic evidence.
In his well-analyzed article, Deed Construction and the "Repugnant to the Grant" Doctrine, Tevis Herd raises other valid legal and practical criticisms to the Alford decision than the ones discussed above. Herd, Deed Construction and the "Repugnant to the Grant" Doctrine, 21 TEXAS TECH L.REV. 635 (1990). In that article, the author reviews the history of the "repugnant to the grant" rule and concludes that the courts should exercise great restraint in adopting the "repugnant to the grant" doctrine as a solution. However, the Supreme Court has already adopted the "repugnant to the grant" rule in Alford, and we must follow that rule even if the results are contrary to the parties' apparent intent. We would respectfully suggest that the Supreme Court reconsider the application of the "repugnant to the grant" rule.
In an Alford analysis, the Henderson deed in the instant case contains an irreconcilable conflict between the clauses. The granting clause clearly conveys a one-sixteenth mineral interest, while the future interest clause describes a one-half mineral interest. Therefore, as a matter of law, the Henderson deed conveys a one-sixteenth interest in and to the minerals, regardless of the parties' manifest intention expressed on the face of the document.
The judgment of the trial court is reversed; and judgment is rendered that Jupiter owns one-sixteenth interest in and to the minerals in, on, or under the north one-half of the northeast one-fourth of Section No. 8, Block No. 4, H & T C Ry. Co. Survey in Eastland County and that Jupiter, as an unleased mineral owner, recover from Snow one-sixteenth of the proceeds of the sale of oil and gas from the property in dispute less its share of the reasonable cost of drilling and completing the wells for a total of $71,547.24 plus prejudgment interest of $17,812.50 plus post-judgment interest at the rate of ten percent per annum from May 2, 1989, the date of the trial court's judgment.
*359
*360
NOTES
[1] The primary duty of the courts in interpreting a deed is to ascertain the intent of the parties. Terrell v. Graham, 576 S.W.2d 610, 612 (Tex. 1979); McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957). This rule of construction, however, must be modified with the restriction that it is not the intention that the parties may have had but failed to express in the instrument, but it is the intention that is expressed by said instrument. That is, the question is not what the parties meant to say, but the meaning of what they did say. Canter v. Lindsey, 575 S.W.2d 331, 334 (Tex.Civ.App.El Paso 1978, writ ref'd n.r.e.); Davis v. Andrews, 361 S.W.2d 419, 423 (Tex.Civ.App.Dallas 1962, writ ref'd n.r.e.). Finally, "[w]e must construe this language as it is written and we have no right to alter it by interpolation or substitution." Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 701 (1951).
In seeking to ascertain the intention of the parties, the court must attempt to harmonize all parts of a deed, since the parties to an instrument intend every clause to have some effect and in some measure to evidence their agreement. Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, 620 (1954). On the other hand, we realize that irreconcilable conflicts do exist; therefore, when it is impossible to harmonize internally inconsistent expressions of intent, the court must give effect to the "controlling language" of the deed and not allow ambiguities to "destroy the key expression of intent" included within the deed's terms. Texas Pacific Coal & Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436, 439 (1960).
[2] Recently, the Oil and Gas Section of the State Bar published a paper at the Eighth Annual Advanced Oil, Gas, and Mineral Law Course (1990) by Scott and Bledsoe entitled The Ten Most Regrettable Oil and Gas Decisions Ever Issued By The Texas Supreme Court. A survey was taken among oil and gas practitioners to determine which oil and gas cases they disagreed with the most. Alford made the list. Although we do not decide cases on popularity polls or upon "Mr. Blackwell's best dressed list," the article expresses the concerns of the practitioners with the application of the "repugnant to the grant" rule. Although Alford attempted to clear up confusion in construing three grant deeds, the "repugnant to the grant" rule has increased the uncertainty in ascertaining mineral ownership. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1013446/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INFORMATION SYSTEMS & NETWORKS
CORPORATION,
Plaintiff-Appellant,
v. No. 03-1948
PRINCIPAL LIFE INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-03-303-PJM)
Argued: May 5, 2004
Decided: June 8, 2004
Before LUTTIG, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Norman Henry Singer, SINGER & ASSOCIATES, P.C.,
Bethesda, Maryland, for Appellant. Jacqueline Elizabeth Bennett,
REED SMITH, L.L.P., Washington, D.C., for Appellee. ON BRIEF:
Benjamin M. Kahrl, SINGER & ASSOCIATES, P.C., Bethesda,
Maryland, for Appellant. Andrew C. Bernasconi, REED SMITH,
L.L.P., Washington, D.C., for Appellee.
2 INFORMATION SYSTEMS v. PRINCIPAL LIFE INS.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant, Information Systems & Networks Corp. ("ISN"),
appeals from the dismissal of its complaint raising claims for breach
of contract and professional negligence against appellee, Principal
Life Insurance Co. ("Principal"). ISN sponsors an employee pension
plan within the meaning of Section 3(3) of the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. § 1002(3) (the "Plan").
ISN had retained Principal to assist in the administration of the Plan,
with the duties of maintaining Plan records, issuing required distribu-
tions to Plan beneficiaries upon ISN’s approval, collecting contribu-
tions made by ISN to the Plan, and issuing statements regarding Plan
participation.
Alleging that Principal had committed claim administration errors
and thus made improper distributions totaling at least $300,000, and
that but for these errors the funds at issue would have been forfeited
to the Plan where they might have been credited to or returned to ISN
as Plan sponsor, ISN sued Principal in federal district court, raising
claims of breach of contract and professional negligence. Principal
then moved for dismissal under Federal Rule of Civil Procedure
12(b)(6), asserting that ERISA pre-empted all of ISN’s claims. Ruling
from the bench after a hearing, the district court granted Principal’s
motion to dismiss, holding that because ISN’s claims essentially
asserted "improper administration of the plan," they were pre-empted
under ERISA. See 29 U.S.C. § 1144(a) (providing that ERISA pre-
empts "any and all State laws insofar as they . . . relate to any
employee benefit plan"). ISN timely appealed.
Having considered the contentions raised in the parties’ briefs and
at oral argument, we now affirm. The gravamen of ISN’s complaint
is that certain distributions made by Principal were erroneous because
the beneficiaries were not entitled to those distributions under the
INFORMATION SYSTEMS v. PRINCIPAL LIFE INS. 3
terms of the Plan. In light of this, the district court correctly deter-
mined that ISN’s claims boil down to allegations of "improper admin-
istration of the plan." Accordingly, the district court also correctly
held these claims to be pre-empted by ERISA. Indeed, given the fore-
going description, it is clear that ISN’s claims fall squarely within the
recognized rule that "when a cause of action under state law is ‘prem-
ised on’ the existence of an employee benefit plan so that ‘in order
to prevail, a plaintiff must plead, and the court must find, that an
ERISA plan exists, ERISA preemption will apply.’" Griggs v. E.I.
Dupont de Nemours & Co., 237 F.3d 371, 378 (4th Cir. 2001) (quot-
ing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140 (1990)); see
also Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473, 1480 (4th Cir.
1996) (noting that state common-law tort and contract actions which
are ‘based on alleged improper processing of a claim for benefits
under an employee benefit plan’ are preempted by ERISA") (citations
omitted).
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1013448/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BILLIE JO BONOLIS,
Plaintiff-Appellant,
v.
No. 03-1659
METROPOLITAN LIFE INSURANCE
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CA-01-895-MJG)
Argued: May 4, 2004
Decided: June 8, 2004
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: William Parry Dale, MCCHESNEY & DALE, P.C.,
Bowie, Maryland, for Appellant. David Alan Carter, MEYERS,
RODBELL & ROSENBAUM, P.A., Annapolis, Maryland, for Appel-
lee.
2 BONOLIS v. METROPOLITAN LIFE INS.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Billie Jo Bonolis, an executive assistant for Northrop Grumman
Corporation, commenced this action under the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1101 et seq., for
short-term and long-term disability benefits, naming as the defendant
Metropolitan Life Insurance Company ("MetLife"), the administrator
of Northrop Grumman’s employee disability benefit plans. Bonolis
contends that she suffers from fibromyalgia and, because of her con-
dition, is unable to work at either her regular job or any job fitting her
education and experience. The district court concluded that MetLife
did not abuse the discretion given to it under the relevant plans in
denying Bonolis benefits, and we affirm.
In May 1998, Dr. Lawrence Zyskowski, a rheumatologist, diag-
nosed Bonolis as suffering from fibromyalgia, a syndrome with symp-
toms including generalized muscular pain, fatigue, and cognitive
dysfunction. While fibromyalgia cannot be diagnosed by a single lab-
oratory test, it can be diagnosed by (1) the presence of certain symp-
toms and (2) the elimination of alternative causes for the symptoms.
Less than three months after reaching this diagnosis, Dr. Zyskowski
wrote Northrop Grumman, stating, "At this time I feel that Mrs.
Bonolis is disabled and not able to return to her job as a senior admin-
istrative assistant. In review of her job description I do not feel that
any modification would allow her to return to work[,] especially in
view of the significant cognitive nature of her job."
At about the time of Dr. Zyskowski’s letter, Bonolis underwent a
neurological evaluation by Dr. Harshad Mody, who found that
Bonolis "is conscious, alert and oriented times three. There are no
aphasic abnormalities. Recent and remote memories are normal. Fund
of knowledge is normal." Dr. Mody found no neurological abnormali-
ties and his impression was that Bonolis suffered from chronic fatigue
syndrome or fibromyalgia.
BONOLIS v. METROPOLITAN LIFE INS. 3
Based on these diagnoses, Bonolis submitted a claim to MetLife
for short-term disability benefits, asserting that she was unable to
work at her regular Northrop Grumman job. A nurse consultant
reviewing Bonolis’ claim noted that although Dr. Zyskowski empha-
sized the cognitive nature of Bonolis’ job as a reason for her inability
to work, there was "no real evidence in notes of mental status exam
or demonstration of cognitive problems other than note of poor cogni-
tive function." MetLife informed Bonolis that it was denying her
short-term disability claim, pointing out that even in an update letter,
Dr. Zyskowski provided no office notes regarding any "cognitive def-
icits, nor is there any indication of any treatment being provided for
cognitive deficits."
Bonolis appealed MetLife’s denial of benefits within the adminis-
trative structure and provided additional information similar to that
which she had presented initially with her claim. MetLife denied her
appeal, noting that Bonolis had not had a psychiatric evaluation,
which "would include mental and cognitive assessment with quantify-
ing testing to eliminate [Bonolis’] symptoms as psychiatric in origin."
The letter also stated that "there is no documentation to support a
mental or cognitive impairment other than by self-report." Although
MetLife advised Bonolis that there were no further administrative
appeals available, it nonetheless permitted Bonolis to submit addi-
tional medical information in an attempt to satisfy MetLife’s require-
ments. Bonolis did submit further materials, including documents
from Dr. Daniel Clauw, a rheumatologist who also diagnosed fibro-
myalgia, but none demonstrated cognitive deficits.
MetLife thereupon retained Dr. Jefrey Lieberman to review
Bonolis’ records and to provide MetLife with an independent judg-
ment. Dr. Lieberman concluded that Bonolis "should be able to per-
form the duties of a light or sedentary occupation" and, "if there are
concerns regarding her cognitive function, then a neuropsychiatric
evaluation should be performed to quantify this." Based on Dr. Lie-
berman’s review and the lack of evidence of cognitive deficits in its
file, MetLife finally denied Bonolis’ claim for short-term disability
benefits on October 14, 1999. In its letter, MetLife reiterated that the
claim "was denied because the medical evidence did not substantiate
the severity of symptoms that would functionally preclude [Bonolis’]
[ ]ability to return to work to her job as an Administrative Assistant."
4 BONOLIS v. METROPOLITAN LIFE INS.
In May 2000, Bonolis requested that MetLife review her claim for
long-term disability benefits, based on the same medical data that she
had submitted in connection with her claim for short-term benefits, as
well as affidavits from Bonolis, Dr. Zyskowski, and Dr. Clauw and
some additional documentation from Dr. Clauw discussing Bonolis’
symptoms in general terms. To be eligible for long-term benefits,
Bonolis was required to demonstrate that she was unable to work at
any job fitting her training, education, and experience. MetLife denied
Bonolis’ claim for long-term disability benefits on December 22,
2000, stating that it did not dispute the diagnosis of fibromyalgia but
that "the issue remains as to whether the severity of symptoms are
such that they would preclude [Bonolis] from performing [her] job
per the definition of total disability." The letter concluded that "there
is no objective documentation on file to support that the severity of
[Bonolis’] symptoms is such that it would preclude [her] from a level
of functionality for performing [her] sedentary occupation with Nor-
throp Grumman as a Senior Administrative Assistant."
Bonolis then commenced this action against MetLife under ERISA,
alleging wrongful denial of benefits. On the parties’ cross-motions for
summary judgment, the district court granted MetLife’s motion for
summary judgment and denied Bonolis’ motion.
With respect to the short-term disability claim, the district court
concluded that MetLife did not abuse its discretion by choosing to
accept the determination of its external reviewer, Dr. Lieberman, and
the neurological report of Dr. Mody "on the basis that Drs. Zys-
kowski’s and Clauw’s declarations that Plaintiff’s fatigue and cogni-
tive dysfunction, which they both listed as a major factor in her ability
to work, were unsubstantiated by any testing or other medical evi-
dence." The court noted that Dr. Clauw’s and Dr. Zyskowski’s opin-
ions "were based only on Plaintiff’s subjective complaints and not on
the results of any diagnostic testing of her cognitive function." With
respect to MetLife’s denial of Bonolis’ long-term disability claim, the
court rejected Bonolis’ contention that de novo review was required
because discretionary authority for determining benefit eligibility was
conferred to MetLife through language in an administrative services
agreement rather than in the long-term disability plan itself. Relying
on "essentially the same analysis" as applied to the short-term disabil-
BONOLIS v. METROPOLITAN LIFE INS. 5
ity claim, the court concluded that MetLife’s denial of long-term dis-
ability benefits was not an abuse of discretion. This appeal followed.
We have carefully reviewed the record and considered the argu-
ments of counsel made in their briefs and at oral argument. For the
reasons fully set forth by the district court in its thorough "Memoran-
dum and Order," Bonolis v. Metropolitan Life Insurance Company,
Civil Action No. MJG-01-895 (D. Md. May 13, 2003), we affirm the
judgment of the district court.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584511/ | 717 F.Supp. 408 (1989)
Marvin O. WILSON Jr., et al., Plaintiffs,
v.
CITY OF CHARLOTTE, NORTH CAROLINA, Defendant.
No. C-C-88-0079-P.
United States District Court, W.D. North Carolina, Charlotte Division.
July 10, 1989.
Thomas A. Woodley, Gregory K. McGillivary, Mulholland & Hickey, Washington, D.C., Louis L. Lesesne, Jr., Gillespie Lesesne & Connette, Charlotte, N.C., for plaintiffs.
F. Douglas Canty, Charlotte, N.C., for defendant.
MEMORANDUM OF DECISION AND ORDER
ROBERT D. POTTER, Chief Judge.
I. PRELIMINARY STATEMENT AND QUESTIONS PRESENTED
THIS MATTER is before the Court on (1) Defendant's Motion for Summary Judgment on Remaining Issues, filed May 5, 1989, and (2) Plaintiffs' Cross-motion for Summary Judgment on Remaining Issues, filed May 23, 1989. Both parties are seeking partial summary judgment, pursuant to *409 Rule 56 of the Federal Rules of Civil Procedure, on the following two questions:
(1) Are Plaintiff fire captains exempt pursuant to 29 U.S.C.A. § 213(a)(1) (West Supp.1989) and the applicable regulations from the overtime provisions of the Fair Labor and Standards Act of 1938 because they are employed in a bona fide executive capacity?
(2) Are Plaintiffs Marvin O. Wilson, Jr. ("Wilson") and Alton Butler ("Butler") entitled to receive overtime compensation for the time they have spent working as elected trustees of the Charlotte Fire Fighters' Retirement System?
Neither party has requested a hearing on the present motions, and this Court believes oral argument would not significantly aid this Court's decision-making process; the parties have adequately discussed the issues in their supporting memoranda of law, and they have provided sufficient supporting factual documentation.
As explained below, this Court will deny in part and grant in part Defendant's Motion for Summary Judgment on Remaining Issues and will deny Plaintiffs' Cross-motion for Summary Judgment on Remaining Issues; summary judgment on the first question is precluded because there are genuine issues of material fact regarding the employment status of the fire captains; summary judgment on the second question will be granted in Defendant's favor because the undisputed material facts establish that Plaintiffs Wilson and Butler were not working for Defendant when they performed at times other than their regularly scheduled shifts their duties as elected trustees of the Charlotte Fire Fighters' Retirement System.
II. NATURE OF THE CASE
This case arises under the Fair Labor and Standards Act of 1938 as amended, 29 U.S.C.A. §§ 201-219 (West 1965, 1978, 1985 & Supp.1989) ("FLSA" or "the Act"). This Court's jurisdiction over the present case has several statutory bases: 29 U.S.C.A. § 216(b) (West Supp.1989), 28 U.S.C.A. § 1331 (West Supp.1989) ("federal question jurisdiction"); and 28 U.S.C.A. § 1337 (West Supp.1989) (civil actions related to commerce regulation).
Plaintiffs are fire fighters and fire captains who are members of Local Number 660 of the International Association of Fire Fighters ("Local 660") and who are employed by Defendant, the City of Charlotte, North Carolina ("City of Charlotte" or "City"). Plaintiffs allege that Defendant has violated Section 7(o) of the FLSA, 29 U.S.C.A. § 207(o) (West Supp.1989), by granting to Plaintiffs, despite the lack of an agreement with Plaintiffs' designated representative, compensatory time off ("comp time") in lieu of monetary compensation for overtime hours Plaintiffs have worked.
Plaintiffs are seeking several forms of relief: (1) a declaratory judgment, 28 U.S. C.A. § 2201 (West Supp.1989), declaring that Defendant has willfully and wrongfully violated its statutory obligations under Section 7(o) of the FLSA, and has thereby deprived Plaintiffs of their rights; (2) a permanent injunction restraining Defendant from withholding any compensation that is due to each of the Plaintiffs and from future violations of Plaintiffs' rights; (3) an order directing Defendant to make a complete and accurate accounting of all the compensation to which Plaintiffs are entitled; (4) monetary damages in the form of back pay compensation and liquidated damages equal to each Plaintiffs' unpaid compensation, plus interest, 29 U.S.C.A. § 216(b) (West Supp.1989); and (5) the costs of this action, including reasonable attorney's fees.
In a Memorandum of Decision entered November 21, 1988, this Court granted Plaintiffs' Motion for Partial Summary Judgment and held that the City of Charlotte violated Section 7(o) of the FLSA, 29 U.S.C.A. § 207(o) (West Supp.1989), by failing to compensate Plaintiffs monetarily for overtime hours worked. Wilson v. City of Charlotte, North Carolina, 702 F.Supp. 1232, 1238 (W.D.N.C.1988), appeal pending, No. 89-2388 (4th Cir.). On April 10, 1989, this Court in light of a stipulation entered by the Parties entered a Memorandum of Decision and a Judgment *410 declaring Defendant to be in violation of Section 7(o) of the FLSA and awarding damages and liquidated damages to the fire fighters, but not to the fire captains. In the April 10th Memorandum of Decision this Court noted that the plaintiff fire captains were not included in the April 10th Judgment because the Parties disputed, and continue to dispute, whether the exemption of Section 13(a)(1) of the FLSA applies to the plaintiff fire captains.
On May 9, 1989, Defendant filed a Notice of Appeal seeking to appeal this Court's April 10th Judgment; that appeal is now pending before the United States Court of Appeals for the Fourth Circuit, Wilson v. City of Charlotte, No. 89-2388 (4th Cir.). On May 10, 1989, this Court entered an order staying the April 10th Judgment pending appeal.
The background facts of the present case are adequately set out in the November 21th Memorandum of Decision, Wilson, 702 F.Supp. at 1234-36, and this Court is of the opinion that no useful purpose would be served by repeating such background facts here. Nevertheless, this Court will need to consider whether there is a genuine issue material fact regarding the specific questions now before this Court.
III. APPLICABLE LAW AND DISCUSSION
A. Standard of Decision
Rule 56(c) of the Federal Rules of Civil Procedure establishes the standard of decision this Court must use when determining the present motions for summary judgment:
The judgment sought shall be rendered forthwith 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.
Fed.R.Civ.P. 56(c).
Recently, the United States Supreme Court has had several occasions to construe the summary judgment standard established in Rule 56. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (anti-trust conspiracy case); Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (libel action); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (asbestos related wrongful death action); Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1969) (alleged conspiracy to violate civil rights). These cases provide substantial guidance to this Court in its determination of the present motions for summary judgment.
In Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Supreme Court noted:
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial."
Id. 106 S.Ct. at 1356 (emphasis in original; footnote and citations omitted; quoting Fed.R.Civ.P. 56).
Stated another way, it is the moving party's burden to show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. If that burden has been met, then the non-moving party must establish that there are indeed genuine issues of material fact; usually this is done by producing affidavits of persons with personal knowledge setting forth specific information to be offered at trial.
In Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court stated the following:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery *411 and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
Id. 106 S.Ct. at 2552-53; accord White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.1987).
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; Rule 56 requires that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "[T]he substantive law will identify which facts are material." Id.
It is worth noting that in Anderson v. Liberty Lobby, Inc. the Court held:
[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Id. at 2511. On the other hand, all reasonable favorable inferences from the pleadings and depositions are to be drawn in favor of the party opposing the motion for summary judgment. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); White, 820 F.2d at 101.
Summary judgment is not a disfavored procedural shortcut; instead, it is a useful method for disposing of issues, or even cases, in a just, speedy, and inexpensive way.
B. Substantive Law
As noted above, this Court has previously determined that Section 7(o) of the FLSA, 29 U.S.C.A. § 207(o) (West Supp. 1989), requires Defendant to pay its fire fighters in cash for overtime hours worked. Defendant, however, asserts that the plaintiff fire captains need not be compensated for overtime hours worked because they are purportedly employed in a bona fide executive capacity.
The FLSA constitutes humanitarian and remedial legislation. Arnold v. Ben Kanowsky, 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960); A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095 (1945). The FLSA must be liberally construed to apply to the furthest reaches consistent with congressional direction, and breadth of coverage is vital to the Act's mission. Hodgson v. University Tower Club, 466 F.2d 745, 746 (10th Cir. 1972); see Mitchell v. Lublin McGaughy & Assocs., 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959); Powell v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1950). Consistent with these statutory goals, it is well established that the FLSA is to be construed narrowly, with the burden resting on the employer to prove that an employee is in fact exempt from the Act's broad coverage. See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 196-197, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974) ("the general rule [is] that the application of an exemption under the [FLSA] is a matter of affirmative defense on which the employer has the burden of proof"); Clark v. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir.1986) (employer bears full burden of persuasion for the facts requisite to an exemption); Persons v. City of Gresham, Oregon, 704 F.Supp. 191, 194 (D.Or.1988). The employer must demonstrate that its employees meet every aspect of the claimed exemption before the employees can be denied the protection of the FLSA. Prakash v. American Univ., 727 F.2d 1174, 1176-77 (D.C. Cir.1984); Knecht v. City of Redwood City, 683 F.Supp. 1307, 1310 (N.D.Cal. 1987).
Section 13(a)(1) of the FLSA the exemption relied upon by Defendant provides, in pertinent part, the following:
(a) The provisions of section 206 ... and section 207 of this title shall not apply with respect to
*412 (1) any employee employed in a bona fide executive ... capacity....
29 U.S.C.A. § 213(a)(1) (West Supp.1989).[1] The applicable regulations define "bona fide executive capacity" in the following way:
The term "employee employed in a bona fide executive * * * capacity" in section 13(a)(1) of the [FLSA] shall mean any employee:
(a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department [or] subdivision thereof; and
(b) Who customarily and regularly directs the work of two or more other employees therein; and
(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
(d) Who customarily and regularly exercises discretionary powers; and
(e) Who does not devote more than 20 percent ... of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section ...; and
(f) Who is compensated for his services on a salary basis at a rate not less than $155 per week ..., exclusive of board, lodging, or other facilities: Provided, That an employee who is compensated on a salary basis at a rate of not less than $250 per week ..., exclusive of board, lodging, or other facilities, and whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of this section.
29 C.F.R. § 541.1(a)-(f) (1988) (emphasis added).
The requirements outlined in Section 541.1(a) through (e) are sometimes called the "long" test, while the requirements outlined in the second sentence of Section 541.1(f) are sometimes called the "short" test. E.g., Schuller v. City of Livermore, 28 Wage & Hour Cas. (BNA) 507, 509, 1987 WL 46348 (N.D.Cal. Apr. 22, 1987); Knecht v. City of Redwood City, 683 F.Supp. 1307, 1309 n. 1 (N.D.Cal.1987); Cobb v. Finest Foods, Inc., 582 F.Supp. 818, 822 (E.D.La. 1984), aff'd, 755 F.2d 1148 (5th Cir.1985); see also Nixon v. City of Junction City, Kansas, 707 F.Supp. 473, 479-480 (D.Kan. 1988) (recognizing "long" and "short" tests for "bona fide administrative employees"). All requirements of either the "long" test or the "short" test must be met for the employee to be exempt. Schuller, 28 Wage & Hour Cas. (BNA) at 509 (citing Wirtz v. Dunmire, 239 F.Supp. 374 (D.La. 1965)). Defendant bears the burden of proving the fire captains are exempt under the FLSA. E.g., Persons v. City of Gresham, Oregon, 704 F.Supp. 191, 194 (D.Or. 1988); Hill v. City of Greenville, Texas, 696 F.Supp. 1123, 1127 (N.D.Tex.1988).
"Employees earning less than $250 per week are subject to the `long test' ..., whereas those earning $250 or more per week are governed by the `short test'...." Nixon v. City of Junction City, 707 F.Supp. at 479-480 (quoting Donovan v. United Video, Inc., 725 F.2d 577, 580 (10th Cir.1984)); Knecht, 683 F.Supp. at 1309 n. 1. In the present case, it is undisputed that the fire captains earn well over $250 per week, Wallace Aff. at 3 ("at least $527.63 per week"), and, therefore, this Court will only consider whether there is a genuine issue of material fact regarding all of the requirements of the "short" test.
Under the "short" test, the employee must be paid "on a salary basis" to be *413 considered to be employed in "a bona fide executive capacity." 29 C.F.R. § 541.1(f) (1989).[2] The applicable regulations contain an interpretation of the phrase "on a salary basis":
(a) An employee will be considered to be paid "on a salary basis" within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any workweek in which he performs no work.
....
(2) Deductions may be made, however, when the employee absents himself from work for a day or more for personal reasons, other than sickness or accident. Thus, if an employee is absent for a day or longer to handle personal affairs, his salaried status will not be affected if deductions are made from his salary for such absences.
(3) Deductions may also be made for absences of a day or more occasioned by sickness or disability (including industrial accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by both sickness and disability. Thus, if the employer's particular plan, policy or practice provides compensation for such absences, deductions for absences of a day or longer because of sickness or disability may be made ... after he has exhausted his leave allowance thereunder.....
(6) The effect of making a deduction which is not permitted under these interpretations will depend upon the facts in the particular case. .... [W]here a deduction not permitted by these interpretations is inadvertent, or is made for reasons other than lack of work, the exemption will not be considered to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future.
29 C.F.R. § 541.118(a), (a)(2), (a)(3), (a)(6) (1988) (emphasis added). If an employer makes deductions from the pay of employees who are absent for work for less than one day, then the employees are not paid "on a salary basis." Banks v. City of North Little Rock, 708 F.Supp. 1023, 1024-25 (E.D.Ark.1988); Knecht v. City of Redwood City, 683 F.Supp. at 1311 ("deductions for absences shorter than a full day fall under neither exception in subsections (2) and (3)"); see Donovan v. Carls Drug Co., Inc., 703 F.2d 650, 653 (2d Cir.1983) ("A salaried professional employee may not be docked pay for fractions of a day of work missed."); Persons v. City of Gresham, Oregon, 704 F.Supp. at 194; Hawks v. City of Newport News, Virginia, 707 F.Supp. 212, 214 (E.D.Va.1988).
There appears to be a genuine issue of material fact as to whether the plaintiff fire captains are paid "on a salary basis." Plaintiffs' evidence tends to establish that the plaintiff fire captains are not paid "on a salary basis." For example, in paragraph two (2) of the Declaration of Marvin O. Wilson Jr., Plaintiff Wilson, who is a fire captain, states, in pertinent part, the following:
Each of the plaintiff fire captains work 24-hour shifts. When any of them works extra overtime hours, they are awarded compensatory time off based on each extra hour worked. The captains receive time and one half compensatory time for each hour of overtime worked. However, the fire captains are the only plaintiffs who the City has claimed are exempt under the Fair Labor and Standards Act in reaction to the Court's decision *414 entered on November 20, 1988. Annual leave, sick leave and other benefits are earned and used by each of the plaintiffs on an hourly basis. In the event any of the plaintiffs works less than a normal 24-hour shift and there is no leave time available, then that person's pay will be docked for those hours of his shift which are not worked.
Wilson Declaration at 1-2 (emphasis added); see also Adkins Aff. at 38 ("Q. What would happen in a situation, for example, where a Fire Captain no longer has any leave left, annual leave, sick leave, et cetera, and he's required to take off, say, four or five hours in the normal 24-hour shift, would he experience a docking in his pay for the hours that he has not worked? A. To my knowledge, I I believe he would, if he didn't have anything else to pull from; like, any additional time worked accrued."). Defendant's evidence, on the other hand, tends to establish that the plaintiff fire captains are paid "on a salary basis." Wallace Aff. at 3 ("A Captain's pay will not be reduced for absences from work of less than one day, regardless of the reason for the absence. A Captain's pay is not subject to reductions because of variations in the quality or quantity of the work performed, nor will it be reduced because of any absence from work caused by the City or its operating requirements."); Wallace Aff., Attachment 4 (explaining that exempt employees must be salaried and must not have their salary reduced by portion of a day). Since there is a genuine issue of material fact regarding the plaintiff fire captains' status as salaried employees, this Court may not grant summary judgment to Defendant on the first question.
On the other hand, summary judgment on the first question in Plaintiffs' favor may be appropriate if the undisputed material facts establish that the plaintiff fire captains do not have as their "primary duty ... the management of the enterprise in which [they are] employed or of a customarily recognized department or subdivision thereof," 29 C.F.R. § 541.1(f) (1988). Summary judgment on the first question in Plaintiffs' favor may also be appropriate if the undisputed material facts establish that the plaintiff fire captains do not engage in "the customary and regular direction of the work of two or more other employees," 29 C.F.R. § 541.1(f) (1988). This is true because, as mentioned before, Defendant bears the burden of persuasion on all of the elements of the claimed exemption, and, therefore, a complete failure of proof on any one element would be fatal to Defendant's position.
The applicable regulations suggest how a factual determination regarding an employee's "primary duty" should be made. See 29 C.F.R. § 541.103 (1988) (giving 50% rule of thumb). In addition, the regulations suggest how a factual determination regarding "management" should be made. 29 C.F.R. § 541.102 (1988) (giving examples).
It appears to this Court that there are genuine issues of material fact regarding the plaintiff fire captains' duties and activities, and, therefore, summary judgment on the first question in Plaintiffs' favor would be inappropriate. For example, Plaintiffs have provided evidence tending to establish that the plaintiff fire captains are no more than "working foremen," 29 C.F.R. § 541.115 (1988), who are not, in this case, exempt. See Blackwelder Aff. at 40; Wilson Declaration at 5, 11 ("At the fire scene, the fire captain performs as the classic working foreman."). Defendant, on the other hand, has provided evidence tending to establish that the plaintiff fire captains are supervisory personnel responsible for the management of the company to which they are assigned. Fincher Aff. at 1-2 ("[t]he job of every Fire Captain who is a Plaintiff in this action consists entirely of the supervision and management of a company of firefighters and engineers"). These genuine disputes regarding material facts preclude the entry of summary judgment in Plaintiffs' favor on the first question.
Since summary judgment in either party's favor on the first question is not possible, see Nixon v. City of Junction City, Kansas, 707 F.Supp. 473 (D.Kan.1988) (denying summary judgment because genuine *415 issues of material fact existed regarding "salary basis" and "management" duties), it will be necessary to conduct a non-jury trial on the first question.
The second question, however, may be disposed of without an extended discussion. Since both Plaintiff Wilson and Plaintiff Butler are fire captains, they will only be entitled to receive overtime compensation if this Court determines after a non-jury trial that the plaintiff fire captains are not exempt under Section 13(a)(1) of the FLSA. Assuming, arguendo, that Wilson and Butler are not exempt, this Court must decide whether Wilson and Butler should receive overtime compensation for time they spent other than during their regularly scheduled shifts working as elected trustees for the Charlotte Firefighters' Retirement System. This Court is of the opinion that Wilson and Butler are not entitled to receive overtime compensation for hours they worked as trustees for the Charlotte Firefighters' Retirement System. The undisputed material facts establish that Wilson and Butler were not working for Defendant at the time they performed their duties as trustees. Wilson and Butler were, of course, employed by Defendant at all times relevant to this case, but the work Wilson and Butler performed as trustees of the Charlotte Firefighters' Retirement System cannot by any stretch of the imagination be deemed to be work for Defendant or for Defendant's benefit.
IV. CONCLUSIONS
NOW, THEREFORE, IT IS ORDERED:
(1) Defendant's Motion for Summary Judgment on Remaining Issues, filed May 5, 1989, shall be, and hereby is, DENIED IN PART and GRANTED IN PART; and
(2) Plaintiffs' Cross-motion for Summary Judgment on Remaining Issues, filed May 23, 1989, shall be, and hereby is, DENIED.
IT IS FURTHER ORDERED that Plaintiff Wilson and Plaintiff Butler SHALL NOT RECEIVE overtime compensation for hours they spent outside their scheduled shifts attending meetings of the Charlotte Firefighters' Retirement System's Board of Trustees.
NOTES
[1] Section 13(a)(1) of the FLSA also contains exemptions for employees employed in bona fide administrative capacities and for employees employed in bona fide professional capacities, but Defendant has not argued that either of these exemptions are applicable to the present case.
[2] An employee must also be paid "on a salary basis" under the "long" test. 29 C.F.R. § 541.1(f) (1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584737/ | 641 So.2d 1283 (1993)
Earl Kendell DRAPER
v.
STATE.
CR-92-1242.
Court of Criminal Appeals of Alabama.
December 30, 1993.
As Corrected on Denial of Rehearing March 4, 1994.
Certiorari Denied May 20, 1994.
*1284 Charles Pullen, Huntsville, for appellant.
James H. Evans, Atty. Gen., and Jean Brown, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1930835.[*]
TAYLOR, Judge.
The appellant, Earl Kendell Draper, was convicted of possessing a controlled substance, cocaine. He was sentenced to 10 years in prison.
The state's evidence tended to show that on December 5, 1991, a search of an apartment where the appellant was present revealed 69 rocks of crack cocaine. Officer Jim Winn of the Huntsville Police Department testified that on December 5, 1991, he executed a search warrant on an apartment rented by Sherrie Wade. Winn testified that when he executed the search warrant, the appellant, Wade, and Karen Birdsong were present in the apartment. The officers found 51 rocks of cocaine in Birdsong's brassiere. A search of a brown tote bag located about 15 feet from the appellant revealed 18 rocks of crack cocaine. Also present in the bag were hair clippers and a toothbrush.
Sherrie Wade testified that the appellant, an acquaintance of hers, had come to her apartment and had asked if he could take a shower and cut his hair. He was carrying a brown tote bag.
Karen Birdsong also testified that the appellant said that he wanted to take a shower and to cut his hair. She also testified that the appellant was carrying a brown tote bag.
I
The appellant initially argues that the trial court erred in allowing Sherrie Wade, a jointly indicted co-defendant, to testify without first complying with § 12-21-223, Code of Alabama 1975. That Code section states:
"When two or more defendants are jointly indicted, the court may, at any time before the evidence for the defense has commenced, order any defendant to be discharged from the indictment in order that he may be a witness for the prosecution, and such order operates as an acquittal of such defendant, provided he does testify."
However, the appellant did not object to Sherrie Wade's testimony until he filed his motion for a new trial.[1] This objection, therefore, was not timely and did not preserve the issue for this court's consideration. As stated in Craig v. State, 616 So.2d 364 (Ala.Cr.App.1992):
"[T]he appellant's argument cannot be considered on appeal. He made no objection when the [testimony was received into evidence] but instead sought to raise the issue in a ... motion for a new trial prior to sentencing.... Objections to the admission of evidence must be made when the evidence is offered, along with specific grounds to allow the trial court to rule. Jelks v. State, 411 So.2d 844 (Ala.Cr.App. 1981)."
616 So.2d at 365-66.
II
The appellant next argues that the state failed to present any evidence independent of accomplice testimony that tended to show his guilt.
Both Wade and Birdsong were indicted for possessing cocaine. Section 12-21-222 states:
"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."
(Emphasis added.)
This court stated in Chevere v. State, 607 So.2d 361 (Ala.Cr.App.1992):
"`Corroborate' is defined as to `strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.' Black's Law Dictionary 344 (6th ed. 1990). The evidence presented in corroboration does not have to be enough standing alone to result in a conviction. The corroborating evidence need not be `strong.' Andrews v. State, 370 So.2d 320, *1285 322 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979). See also Reed v. State, 407 So.2d 153 (Ala.Cr.App.1980), rev'd on other grounds, 407 So.2d 162 (Ala.1981).
"Section 12-21-222, `does not require corroborative testimony as to material elements of the crime....' Ex parte Bell, 475 So.2d 609, 613 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985), but, the corroborative evidence must `tend to connect the defendant with the commission of the crime.' § 12-21-222, Code of Alabama 1975. `The corroboration of an accomplice may be shown by circumstantial evidence.' Kuenzel v. State, 577 So.2d 474, 515 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991), cert. denied, ___ U.S.___, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991)."
607 So.2d at 365.
Officer Winn testified that when he arrived at the house to execute the search warrant, the appellant was in the process of cutting his hair. The bag, located about 15 feet from the appellant, in which the 18 rocks of cocaine were found also contained hair clippers and a toothbrush. This is sufficient corroboration to satisfy § 12-21-222.
III
The appellant next argues that the search of Wade's apartment was illegal because the officers executing the warrant failed to "knock and announce:"
"To execute a search warrant, an officer may break open any door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance."
§ 15-5-9, Code of Alabama 1975.
Initially, we observe that this issue has not been preserved for our consideration. When the motion to suppress the cocaine was made, no objection was raised concerning the officer's failure to "knock and announce." This issue was not brought to the court's attention until the appellant made a motion for a judgment of acquittal at the end of the state's case. This objection was not timely. "A motion to exclude or for a judgment of acquittal is not sufficient to preserve the issue if no timely objection was made when the evidence was offered." Craig, 616 So.2d at 366.
Furthermore, we agree with the state's contention that the appellant has no standing to challenge the search of Wade's apartment because he had no expectation of privacy in the apartment.
"When a motion to suppress evidence in a criminal case is based on the ground that the evidence was obtained in violation of the Fourth Amendment, one issue is whether the movant has standing to assert the claim and to seek the remedy of exclusion. See LaFave, 4 Search and Seizure § 11.3 (2d ed. 1987). The rights afforded protection by the Fourth Amendment are personal rights. See Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968). To show that a party has standing to object to a search, the party must have a possessory interest in the premises searched. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978).... The `"capacity to claim the protection of the [Fourth] Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion."' Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968), quoting Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). `A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.' Rakas, 439 U.S. at 134, 99 S.Ct. at 425."
Williams v. State, 601 So.2d 1062, 1070 (Ala. Cr.App.1991).
IV
Last, the appellant argues that the indictment against him was flawed because, he argues, it failed to allege a "culpable state of mind." Specifically, he contends that the indictment failed to charge that he knowingly possessed the cocaine and that, therefore, the *1286 court lacked jurisdiction to enter a judgment against him.
This issue was presented to the trial court in a motion for a new trial. The objection was therefore not timely and this issue has not been preserved for our review. The Alabama Supreme Court in Ex parte Harper, 594 So.2d 1181 (Ala.1991), held that an objection to the indictment is not preserved if raised for the first time in a motion for a new trial. 594 So.2d at 1191.
Furthermore, the court in Harper held that an "indictment [is] not void for its failure to allege that the distribution of the controlled substance was `knowingly' done." 594 So.2d at 1195.
For the foregoing reasons, the judgment is due to be affirmed.
AFFIRMED.
All the Judges concur.
NOTES
[*] Note from the Reporter of Decisions: The Supreme Court denied certiorari review under the style Ex parte Earl Kendall Draper.
[1] The appellant is represented by different counsel on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584508/ | 24 So.3d 729 (2009)
Randall WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-1738.
District Court of Appeal of Florida, Third District.
December 23, 2009.
Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
Before GERSTEN, WELLS, and SUAREZ, JJ.
SUAREZ, J.
Randall Williams appeals from a judgment of conviction for first degree murder following a jury trial. We affirm.
Williams was convicted of one charge of first degree murder, and possession of a firearm by a convicted felon. The sole eyewitness testified that she was five to eight feet from the victim when Williams approached and shot him point-blank several times. She positively identified Williams as the shooter. Williams testified *730 and denied any association with the crime. The jury convicted him as charged.
Williams raises two claims on appeal. First, he argues that the trial court failed to conduct an adequate Faretta[1] hearing when he asserted his desire to represent himself. The record reflects, however, that Williams did not require a formal Nelson[2] or Faretta hearing. The record shows that Williams, through his attorney, made the assertion towards the end of trial that he wanted to represent himself. The trial court stopped the proceedings and asked defense counsel if Williams indicated that he wanted to fire him as counsel. Counsel responded that Williams had not used those words, but rather wanted to take over as lead, particularly as to re-cross-examination of the detective currently on the stand. The trial court then appropriately inquired of Williams as to his intent. Williams answered, "Well really, your Honor, I just want to be more involved as far as I see some things that he [counsel] don't see. I'm try [sic] to tell him and show him and he's not presenting them. So I was, if he's not going to present it, I want to present it myself."
The trial court's inquiry can only be as specific as the defendant's complaint, and a Nelson hearing is not necessary if the defendant expresses generalized dissatisfaction with his attorney or asserts general complaints about defense counsel's trial strategy without making any formal allegations of incompetence. See Morrison v. State, 818 So.2d 432, 440 (Fla.2002); Hearns v. State, 16 So.3d 969 (Fla. 3d DCA 2009); Wilson v. State, 753 So.2d 683, 687 n. 2 (Fla. 3d DCA 2000) (holding that an expression of general loss of confidence or trust, standing alone, does not equate to ineffective assistance and does not require withdrawal of counsel, neither does a defendant's perception that counsel has inadequately conferred with the client, without more specific allegations of incompetence, amount to ineffective assistance); Merelus v. State, 735 So.2d 552 (Fla. 3d DCA 1999); See also Augsberger v. State, 655 So.2d 1202, 1204 (Fla. 2d DCA 1995); Johnston v. State, 497 So.2d 863 (Fla. 1986).
If court-appointed counsel is found to be rendering effective assistance and the defendant insists that he still wants to discharge him or her, a Faretta hearing is in order. But this is not the case here because Williams didn't insist on firing counsel, did not express dissatisfaction with counsel's entire representation, and did not request to proceed pro se. The trial court appropriately found that defense counsel was performing professionally, and denied Williams' request to continue the remainder of trial as lead counsel. See Potts v. State, 718 So.2d 757, 759 (Fla. 1998) (holding that because the trial court must weigh the right of self-representation against the rights to counsel and to a fair trial, the trial court's ruling turns primarily on assessment of demeanor and credibility, and thus its decision is entitled to great weight, and will be affirmed on review if supported by competent substantial evidence).
Finally, Williams claims that his trial counsel was ineffective because, through his allegedly faulty cross-examinations of certain witnesses, counsel opened the door for the prosecution to elicit otherwise inadmissible hearsay that implicated Williams in the crime. This, however, is not a claim that can be raised on direct *731 appeal. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001):
Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland claim is whether trial counsel was ineffective. Both claims may arise from the same underlying facts, but the claims themselves are distinct andof necessity have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal. A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal.
See also Lopez v. State, 17 So.3d 889 (Fla. 4th DCA 2009). Here, the record does not show any error or prejudice that would allow an exception to that rule. Id.
Affirmed.
NOTES
[1] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
[2] Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/785780/ | 364 F.3d 507
UNITED STATES of America, Plaintiff-Appellee,v.Francisco Moreno SOSA, a/k/a Franco Hernandez, Defendant-Appellant.
No. 02-6711.
United States Court of Appeals, Fourth Circuit.
Argued: February 25, 2004.
Decided: April 9, 2004.
ARGUED: Jessica R. Robinson, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Appellant. Michael Alan Rotker, Criminal Division, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Steven H. Goldblatt, Director, Gregory Knapp, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Appellant. Robert J. Conrad, Jr., United States Attorney, Thomas Richard Ascik, Assistant United States Attorney, United States Department of Justice, Washington, D.C., for Appellee.
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
Denied and dismissed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge NIEMEYER and Judge LUTTIG joined.
OPINION
WILLIAMS, Circuit Judge:
1
In this case, appellant Francisco Moreno Sosa seeks review of a district court's decision to dismiss as untimely his collateral attack under 28 U.S.C.A. § 2255 (West 1994) of a federal drug-trafficking conviction. The district court dismissed the § 2255 motion sua sponte and without providing prior notice to Sosa. Sosa asserts that this dismissal violates our holding in Hill v. Braxton, 277 F.3d 701, 706-07 (4th Cir.2002), and he seeks an order vacating the order of dismissal and remanding the case to the district court so that he may defend the timeliness of his § 2255 motion. Sosa further asserts that, because the district court inappropriately truncated the proceedings below, he should not be required to obtain a certificate of appealability (COA), as required by 28 U.S.C.A. § 2253 (West Supp.2003), to perfect jurisdiction in this court. In the alternative, Sosa invokes our mandamus jurisdiction and seeks a writ compelling the district court to comply with Hill. For the reasons that follow, we reject Sosa's invitation to create an exception to the COA requirement of § 2253, we deny his petition for writ of mandamus, and we deny his motion for a COA.1
I.
2
On August 12, 1996, a grand jury sitting in the Western District of North Carolina charged Sosa with one count of conspiring to distribute and to possess with intent to distribute methamphetamine in violation of federal drug laws. Sosa ultimately pleaded guilty, and on August 25, 1997, the district court sentenced Sosa to 280 months imprisonment. Sosa noticed a direct appeal, which we dismissed on July 31, 1998. Sosa did not file a petition for writ of certiorari in the Supreme Court of the United States, and his conviction thus became "final" for the purpose of § 2255's one year statute of limitations on October 29, 1998, 90 days after we entered judgment. See Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1075, 155 L.Ed.2d 88 (2003) (holding that "a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction").
3
On March 26, 1999, Sosa timely filed his first § 2255 motion to vacate, set aside, or correct his sentence. On February 18, 2000, Sosa moved to withdraw his motion "without prejudice" to his right to "perfect and file one all-inclusive § 2255 petition within [the] one-year statutory period." (J.A. at 201.) The district court granted Sosa's motion and dismissed the underlying § 2255 motion without prejudice on September 21, 2000.
4
On April 9, 2001, Sosa filed a motion to reduce his sentence pursuant to 18 U.S.C.A. § 3582(c) (West 2000), asserting that the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), constituted a clarifying amendment to the Sentencing Guidelines. The district court denied this motion on April 17, 2001, and denied a motion for reconsideration on May 17, 2001. Sosa appealed the denial of § 3582(c)(2) relief, and, on Sosa's motion, we dismissed that appeal on July 27, 2001. See United States v. Sosa, No. 01-6752 (4th Cir. July 27, 2001) (Order Dismissing Appeal).
5
On September 11, 2001, Sosa filed a second motion under § 2255,2 attacking his conviction on a variety of grounds. On February 7, 2002, the district court, acting sua sponte and without providing notice to Sosa, dismissed Sosa's second § 2255 motion on the ground that it was not filed within § 2255's one-year limitations period.
6
Sosa timely appealed the district court's order of dismissal, arguing that the district court's sua sponte dismissal of his § 2255 motion without notice violates our holding in Hill, 277 F.3d at 706-07.3
II.
7
We consider first Sosa's contention that the COA requirement of § 2253(c) does not apply when a disappointed petitioner asserts a violation of our holding in Hill. In Hill, we held that
8
when a federal habeas court, prior to trial, perceives a pro se § 2254 petition to be untimely and the state has not filed a motion to dismiss based on the one-year limitations period, the court must warn the prisoner that the case is subject to dismissal ... absent a sufficient explanation, unless it is indisputably clear from the materials presented to the district court that the petition is untimely and cannot be salvaged by equitable tolling principles.4
9
277 F.3d at 707. In so holding, we did not discuss whether a COA was required to appeal in such circumstances, and other courts that have imposed this notice requirement also have not squarely addressed the applicability of the COA requirement. See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001) (granting a COA without considering whether jurists of reason would find it debatable whether the motion stated a valid claim of the denial of a constitutional right); Acosta v. Artuz, 221 F.3d 117, 119 (2d Cir.2000) (same).
10
Sosa argues that an exception to the COA requirement is justified when a prisoner asserts a violation of Hill. An exception is mandated, Sosa contends, because when a district court dismisses without providing Hill notice, the district court prematurely ends the litigation, and thus leaves the Court of Appeals with an underdeveloped record from which to determine whether the disappointed petitioner has made the showing necessary to justify a COA. The appellate court is deprived not only of a record as to the merits of the claim, Sosa asserts, but also a record as to factors which might justify equitable tolling of the limitations period for filing a § 2255 motion. Accordingly, under Sosa's view, the appropriate course of action for the Court of Appeals in such circumstances is to forego the COA process, consider whether the district court actually violated Hill, and if it has, remand the case so that a more complete record can be developed. In the alternative, Sosa argues that even if a COA is technically required in such circumstances, the Court of Appeals should issue a writ of mandamus requiring the district court to issue Hill notice and consider the propriety of equitable tolling before conducting the COA inquiry.
11
We decline to adopt Sosa's proposed exception to the COA requirement. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a COA is a necessary predicate to any appeal of a final order in any federal habeas proceeding. See 28 U.S.C.A. § 2253. Section 2253(c) imposes this requirement in plain terms and admits of no exceptions:
12
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —
13
. . .
14
(B) the final order in a proceeding under section 2255.
15
(emphasis added). The plain language of section 2253(c) simply does not and cannot accommodate Sosa's proposed exception. Moreover, even if we were persuaded by Sosa's argument that no-notice dismissals prejudice petitioners in the COA process by denying them the opportunity to develop a record from which they could make a substantial showing as to the denial of a constitutional right, we see little difference in this regard between the dismissal here and other types of procedural dismissals, which (as Sosa candidly admits) are subject to the COA requirement. See e.g., Hernandez v. Caldwell, 225 F.3d 435, 437 (4th Cir.2000) (adhering to the COA requirement in a case where habeas petitioner sought review of a district court's dismissal on timeliness grounds). Accordingly, we hold that a disappointed habeas petitioner asserting Hill error must obtain a COA pursuant to § 2253(c) and the procedures set forth in our local rules. See Loc. R. 22(a).
16
We similarly reject Sosa's suggestion that we should issue a writ of mandamus to a district court whenever a disappointed habeas petitioner asserts a violation of Hill. A party seeking mandamus must show that "`he had no other adequate means to attain the relief he desires' and that his right to issuance of the writ is `clear and indisputable.'" In re Ralston Purina Co., 726 F.2d 1002, 1004 (4th Cir.1984) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980)). Petitioners, like Sosa, who seek to compel compliance with Hill will be able to satisfy these requirements only in the rarest of circumstances. First, there is another adequate means to attain the relief sought — appeal through the normal COA channels. Second, the right to the writ is far from indisputable, because Hill leaves open the possibility that district courts could dispense with notice if it is "indisputably clear" that the motion is untimely and cannot be salvaged through tolling. Hill, 277 F.3d at 707. Accordingly, we view mandamus as an inappropriate procedural mechanism through which to challenge Hill error, and we reject Sosa's petition for a writ of mandamus in this case.
III.
17
We turn next to the question of whether a COA should issue in this case — i.e., whether Sosa has made a "substantial showing of the denial of a constitutional right" under § 2253(c)(2).5 Because the district court dismissed Sosa's § 2255 motion on a procedural ground, we will grant a COA only if Sosa can show (1) "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," and (2) "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). If Sosa fails to satisfy either of these prongs, we will not grant a COA. Lyons v. Lee, 316 F.3d 528, 532 (4th Cir.2003).
18
As to the district court's procedural ruling dismissing Sosa's motion as time-barred, Sosa does not dispute the correctness of the district court's conclusion that, absent some form of equitable tolling, Sosa's second § 2255 motion was untimely when it was filed on September 11, 2001.6 Sosa, however, does assert that equitable tolling should apply, or at a minimum, that jurists of reason would find it debatable whether equitable tolling should apply.
19
In Rouse v. Lee, we explained that equitable tolling is available only in "those rare instances where — due to circumstances external to the party's own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result." 339 F.3d 238, 246 (4th Cir.2003) (en banc) (quotation marks omitted), cert. denied, ___ U.S. ___, 124 S.Ct. 1605, 158 L.Ed.2d 248 (2004) (No. 03-7892). Thus, to be entitled to equitable tolling, an otherwise time-barred petitioner must present "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." Id.
20
Sosa offers five reasons why he believes he is entitled to equitable tolling: (i) that he misunderstood that the statute of limitations did not reset after the dismissal of his first § 2255 motion without prejudice; (ii) that he was actively litigating his § 3582(c) motion to reduce his sentence in the period between the dismissal of his first § 2255 motion and the filing of the second; (iii) that the district court did not rule on his motion to withdraw his first § 2255 motion for over seven months; (iv) that "language difficulties" impeded his ability to comply with the statutory deadline; and (v) that his mental condition justifies equitable tolling.
21
Having considered these proffered bases, we conclude that jurists of reason would not find debatable the conclusion that equitable tolling is not justified here. Sosa's first three contentions are variations on the same theme — that he did not understand how the statute of limitations operated in his case. But, even in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling. See Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir.2003) ("[E]ven in the case of an unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been warranted." (quotation marks omitted)); United States v. Riggs, 314 F.3d 796, 799 (5th Cir.2002) ("[A] petitioner's own ignorance or mistake does not warrant equitable tolling...."); Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir.2001) (rejecting the argument that a pro se prisoner's ignorance of the law warranted equitable tolling); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000) (same). Stated differently, Sosa's misconception about the operation of the statute of limitations is neither extraordinary nor a circumstance external to his control.
22
Sosa's remaining arguments — that his "language difficulties" and mental disorders justify tolling — are vitiated by Sosa's conduct in seeking collateral review of his conviction. As to alleged "language difficulties," the record flatly refutes the argument. Not only does Sosa's Presentence Investigation Report (PSR) indicate that Sosa himself considered his English skills to be "excellent," (S.A. at 9), the complexity and lucidity of Sosa's numerous court filings, which all are written in English by Sosa, foreclose any serious contention that Sosa's lack of English proficiency would justify equitable tolling. See Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir.2002) (noting that record, which included detailed letters written by defendant in English concerning complex legal issues, belied claim that lack of proficiency in English warranted equitable tolling). The record similarly belies Sosa's suggestion that his mental condition (schizoaffective disorder and generalized anxiety disorder) is a basis for tolling. As a general matter, the federal courts will apply equitable tolling because of a petitioner's mental condition only in cases of profound mental incapacity. See, e.g., Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir.1998) (finding equitable tolling based on mental condition to be appropriate "only in exceptional circumstances, such as institutionalization or adjudged mental incompetence"). Sosa has not asserted that his mental condition rises to this level, and in any event, his diligence in seeking to vacate or modify his sentence indicates quite clearly that his is not an extraordinary case.
23
In sum, Sosa has proffered no reason why we should question the district court's procedural ruling to dismiss his § 2255 motion as time-barred. Because Sosa has not satisfied the procedural prong of the Slack test, we need not consider whether jurists of reason would find it debatable whether Sosa's motion states a valid claim of the denial of a constitutional right.
IV.
24
For the foregoing reasons, we hold that disappointed habeas petitioners who assert that the district court violated our holding in Hill first must obtain a COA in accordance with 28 U.S.C.A. § 2253(c) and our local rules. Having reviewed Sosa's submissions in this case, we find no basis for issuing a writ of mandamus or granting a COA. Accordingly, we deny Sosa's petition for writ of mandamus and dismiss his appeal.
DENIED and DISMISSED
Notes:
1
In accordance with Local Rule 22(a)(1)(B), we characterized Sosa's notice of appeal as a request for a COA and issued a preliminary briefing order directing Sosa to file an informal brief. After Sosa filed his brief, we issued a second briefing order requesting that Sosa and the Govern-ment address the question of whether the COA requirement applies in cases of allegedHill error.
2
Because the district court dismissed Sosa's first § 2255 motion without prejudice and without adjudicating the merits, the second § 2255 motion was not a "second or successive" motion within the meaning of the eighth paragraph of § 2255Cf. Slack v. McDaniel, 529 U.S. 473, 485-86, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ("A habeas petition filed in the district court after an initial habeas petition was unadjudicated on the merits and dismissed for failure to exhaust state remedies is not a second or successive petition.").
3
We briefly note that the district court'ssua sponte actions on Sosa's motion came only days after we issued our decision in Hill.
4
AlthoughHill involved a petition under 28 U.S.C.A. § 2254 (West Supp.2003), neither party argues that the reasoning of Hill does not apply to motions under § 2255.
5
Local Rule 22(a)(1)(B) requires that we consider only Sosa's initial informal brief in making the preliminary COA determination in accordance with 28 U.S.C.A. § 2253(c)(2)
6
The district court tolled the limitations period for the time during which Sosa's first § 2255 motion was pending and found that Sosa's motion was filed a total of 593 days after July 31, 1998, the date that his direct appeal was dismissed and date on which the district court believed Sosa's conviction became "final." (J.A. at 226.) After the district court entered its order, the Supreme Court issued its opinion inClay v. United States,537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), wherein it held that "a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Id. at 1075. Thus, Sosa's conviction actually became final on October 29, 1998, and a total of 503 days elapsed prior to Sosa filing his second § 2255 motion. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2695475/ | [Cite as Imburgia v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-1768.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
CHARLES IMBURGIA
Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant
Case No. 2010-12214-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF DISMISSAL
{¶ 1} On November 29, 2010, plaintiff, Charles Imburgia, filed a complaint
against defendant, Department of Rehabilitation and Correction. Plaintiff alleges on
June 14, 2010 at approximately 9:55 a.m., defendant’s agent refused to allow him to
use the restroom facility resulting in him defecating on himself. Plaintiff seeks damages
in the amount of $2,500.00. The filing fee was waived.
{¶ 2} On December 22, 2010, defendant filed a motion to dismiss. Defendant
asserts that plaintiff’s case should be dismissed on two grounds. First, plaintiff asserts
that defendant’s agent acted manifestly outside the scope of defendant’s agent’s
employment, with malicious purpose, in bad faith or in wanton or reckless manner. This
court does not have subject matter jurisdiction concerning an individual who acts
beyond the scope of his employment. Second, plaintiff asserts his constitutional rights
were violated. It is well settled that constitutional claims are not actionable in the Court
of Claims. For these reasons plaintiff’s case should be dismissed.
{¶ 3} On December 30, 2010, plaintiff filed an objection to defendant’s motion to
Case No. 2010-12214-AD -2- ENTRY
dismiss. It appears from a reading of this document that plaintiff asserts defendant is in
violation of the Eighth Amendment of the United States Constitution. Constitutional
claims are not actionable in the Court of Claims. Bleicher v. Univ. of Cincinnati College
of Med. (1992), 78 Ohio App. 3d 302, 604 N.E. 2d 783; Burkey v. Southern Ohio
Correctional Facility (1988), 38 Ohio App. 3d 170, 528 N.E. 2d 607.
{¶ 4} Therefore, defendant’s motion to dismiss is GRANTED. Plaintiff’s case is
DISMISSED. the court shall absorb the court costs of this case.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Charles Imburgia, #502-009 Stephen A. Young
1800 S. Avon Belden Road Department of Rehabilitation
Grafton, Ohio 44044 and Correction
770 West Broad Street
Columbus, Ohio 43222
DRB/laa
Filed 1/21/11
Sent to S.C. reporter 4/8/11 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1013456/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HENRY H. SHAVITZ, for himself and
others similarly situated,
Plaintiff,
v.
GUILFORD COUNTY BOARD OF
EDUCATION,
Defendant-Appellant,
CITY OF HIGH POINT, a municipal
corporation,
Defendant-Appellee,
and
ELECTRONIC DATA SYSTEMS
CORPORATION, a corporation doing
No. 03-1960
business in the State of North
Carolina; ALLEN L. PEARSON, II;
PEEK TRAFFIC, INCORPORATED, a
corporation doing business in North
Carolina; PHIL WYLIE; SREEKANTH
NANDAGIRI; ARNOLD KOONCE, Mayor
of the City of High Point; ALBERT
A. CAMPBELL, member of the High
Point City Council; M. CHRISTOPHER
WHITLEY, member of the High Point
City Council; AARON LIGHTNER,
member of the High Point City
Council;
2 SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION
RONALD B. WILKINS, member of the
High Point City Council; M. C.
ROWE, member of the High Point
City Council; WILLIAM S. BENCINI,
JR., member of the High Point City
Council; DAVID B. WALL, member
of the High Point City Council;
STRIB BOYNTON, City Manager of
the City of High Point,
Defendants.
STATE OF NORTH CAROLINA,
Movant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-01-662-1)
Argued: February 24, 2004
Decided: June 7, 2004
Before MOTZ and TRAXLER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Vacated and remanded with instructions by unpublished per curiam
opinion.
COUNSEL
ARGUED: Robert J. King, III, BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, Greensboro, North Carolina, for Appel-
SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION 3
lant. Alison Raney Bost, WOMBLE, CARLYLE, SANDRIDGE &
RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellee. ON
BRIEF: Jill R. Wilson, Elizabeth V. LaFollette, BROOKS, PIERCE,
MCLENDON, HUMPHREY & LEONARD, Greensboro, North Car-
olina, for Appellant. Gusti W. Frankel, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This action began in North Carolina state court as a challenge to
a program in High Point, North Carolina, that uses cameras to take
pictures of cars that run red lights. The defendants, which included
the City of High Point and the supplier of the red-light camera sys-
tem, removed the case to federal district court. The district court
granted summary judgment in favor of the defendants on the federal
claims and certain state-law claims and remanded to state court all but
one of the remaining state-law claims. As to the sole state-law count
it retained, the district court rejected the claim of the Guilford County
Board of Education and concluded that, under North Carolina law, the
City of High Point was entitled to all of the proceeds of its red-light
camera program. The Board appeals, arguing that it is entitled to the
proceeds. We conclude that the district court lacked subject-matter
jurisdiction over the Board’s state-law claim that it is entitled to the
proceeds of the red-light camera program. We therefore vacate the
district court’s order granting summary judgment in favor of the City
and remand with instructions that the district court remand the claim
to state court.
I.
The City of High Point, North Carolina, as authorized by the North
Carolina General Assembly, began using cameras to catch red-light
4 SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION
runners. Henry Shavitz received a ticket in the mail after a car regis-
tered to him was photographed running a red light. Shavitz refused to
pay the ticket and thereafter filed an action in North Carolina state
court raising state and federal constitutional challenges to the red-
light camera program.
Shavitz contended that the traffic-control program violated the due
process and equal protection clauses of the state and federal constitu-
tions. Shavitz also contended that, if the program was constitutional
in all respects, then the North Carolina Constitution required that the
proceeds of the program go to the Guilford County Board of Educa-
tion rather than the City of High Point. See N.C. const. art. IX, § 7
("All moneys, stocks, bonds, and other property belonging to a county
school fund, and the clear proceeds of all penalties and forfeitures and
of all fines collected in the several counties for any breach of the
penal laws of the State, shall belong to and remain in the several
counties, and shall be faithfully appropriated and used exclusively for
maintaining free public schools."). Shavitz named the Board as a
defendant only because of this alternative claim. He expressly did not
seek any damages from the Board but instead sought only a declara-
tion that the Board was entitled to the clear proceeds of the red-light
camera program. The defendants removed the case to federal court,
at which point the Board answered the complaint and filed a cross-
claim seeking a declaration that it was entitled to the proceeds of the
red-light camera program.
The district court granted summary judgment in favor of the defen-
dants on Shavitz’s federal and parallel state constitutional claims and
remanded most of the remaining state claims. As to the claim involv-
ing the Board’s right to the proceeds of the red-light camera program
(hereafter, the "clear-proceeds" claim or dispute), the district court
first concluded that Shavitz lacked standing to challenge the disposi-
tion of the proceeds of the red-light camera program. Nonetheless, the
court determined that the claim was properly before it by virtue of the
Board’s cross-claim. The court then considered the merits of the
clear-proceeds claim and granted summary judgment in favor of the
City. The Board appealed the district court’s grant of summary judg-
ment in favor of the City on the clear-proceeds claim; Shavitz did not
appeal.
SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION 5
On appeal, the parties, assuming that the district court had subject-
matter jurisdiction, addressed only the merits of the clear-proceeds
claim in their briefs. At oral argument, we questioned whether there
was in fact subject-matter jurisdiction over the dispute between the
City and the Board, and we requested that the parties file supplemen-
tal briefs addressing the question. After consideration of the supple-
mental briefs, we conclude that the district court lacked subject-matter
jurisdiction over the clear-proceeds dispute.
II.
"Federal courts are not courts of general jurisdiction; they have
only the power that is authorized by Article III of the Constitution and
the statutes enacted by Congress pursuant thereto." Bender v. Wil-
liamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Federal courts,
of course, have subject-matter jurisdiction over federal questions—
that is, cases "arising under the Constitution, laws, or treaties of the
United States." 28 U.S.C.A. § 1331 (West 1993). Because Shavitz
raised certain federal constitutional challenges to the City’s red-light
camera program, his complaint could have originally been filed in
federal court, and removal to federal court was therefore proper. See
28 U.S.C.A. § 1441(a) (West 1994); City of Chicago v. International
Coll. of Surgeons, 522 U.S. 156, 163 (1997) ("The propriety of
removal . . . depends on whether the case originally could have been
filed in federal court.").
That the complaint was properly removed to federal court, how-
ever, does not necessarily mean that the district court had subject-
matter jurisdiction over the state-law claims. There is no diversity of
citizenship between the Board and the City, and the dispute between
them as to the proper disposition of the proceeds of red-light camera
program is indisputably one of state law only. Accordingly, the dis-
trict court had subject-matter jurisdiction over the clear-proceeds
claim only if the claim fell within the district court’s ancillary or pen-
dent jurisdiction, jurisdictional doctrines that have now been codified
in 28 U.S.C.A. § 1367, the supplemental jurisdiction statute. See
International Coll. of Surgeons, 522 U.S. at 165.
The supplemental jurisdiction statute provides that:
6 SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION
Except as provided in subsections (b) and (c) or as expressly
provided otherwise by Federal statute, in any civil action of
which the district courts have original jurisdiction, the dis-
trict courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.
28 U.S.C.A. § 1367(a) (West 1993). To determine whether a state-law
claim is part of the same "case or controversy" as the removable claim
for purposes of the supplemental jurisdiction statute, we look to the
standard set by the Supreme Court in United Mine Workers of Amer-
ica v. Gibbs, 383 U.S. 715 (1966). See International Coll. of Sur-
geons, 522 U.S. at 164-65; Axel Johnson v. Carroll Carolina Oil Co.,
145 F.3d 660, 662 (4th Cir. 1998). In Gibbs, the Supreme Court
explained that
Pendent jurisdiction, in the sense of judicial power, exists
whenever there is [a federal question], and the relationship
between that claim and the state claim permits the conclu-
sion that the entire action before the court comprises but one
constitutional "case." The federal claim must have substance
sufficient to confer subject matter jurisdiction on the court.
The state and federal claims must derive from a common
nucleus of operative fact. But if, considered without regard
to their federal or state character, a plaintiff’s claims are
such that he would ordinarily be expected to try them all in
one judicial proceeding, then, assuming substantiality of the
federal issues, there is power in federal courts to hear the
whole.
Gibbs, 383 U.S. at 725 (footnotes and internal citations omitted).
If Shavitz had had standing to pursue the clear-proceeds claim,
whether the district court could properly exercise jurisdiction over
that claim under section 1367 would have been a closer question. But
Shavitz did not appeal the district court’s conclusion that he lacked
standing to pursue that claim.1 Thus, we are left only with the ques-
1
We note that the district court looked to North Carolina law when
determining whether Shavitz had standing. When a case is in federal
SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION 7
tion of whether supplemental jurisdiction existed over the clear-
proceeds battle being fought by the Board and the City. In our view,
the answer to that question is apparent: The clear-proceeds dispute
between the Board and the City is not part of the same constitutional
case or controversy as Shavitz’s federal challenges to the red-light
camera program.
We recognize, of course, that there are certain underlying facts
common to the clear-proceeds dispute and Shavitz’s federal claims,
given that all the claims spring from the red-light camera program
itself. Such superficial factual overlap, however, is not sufficient. The
Gibbs test does not require that the federal and state claims only have
some facts in common; instead, Gibbs requires that the claims share
a "common nucleus of operative fact." Gibbs, 383 U.S. at 725
(emphasis added); see Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836,
847 (4th Cir. 1974) (concluding that state-law claims that former
employer failed to make payments due under a company profit-
sharing program did not share "‘a common nucleus of operative fact’"
with federal claims that the employer failed to provide certain
statutorily-mandated information about that profit sharing plan (quot-
ing Gibbs, 383 U.S. at 725)).
In his federal claims, Shavitz contended that the red-light camera
program violated the Due Process and Equal Protection clauses of the
United States Constitution. As to those claims, the primary operative
facts, as the district court recognized, are those that establish whether,
as a matter of federal constitutional law, the red-light program is
deemed to be civil or criminal in nature. See Shavitz v. City of High
Point, 270 F. Supp. 2d 702, 712 (M.D.N.C. 2003). As to the clear-
proceeds claim, the operative facts are those that establish whether,
court, however, state standing principles do not govern; the question is
whether federal standing principles have been satisfied. See Phillips Pet-
rol. Co. v. Shutts, 472 U.S. 797, 804 (1985) ("Standing to sue in any
Article III court is, of course, a federal question which does not depend
on the party’s prior standing in state court."); Highsmith v. Chrysler
Credit Corp., 18 F.3d 434, 436 n.1 (7th Cir. 1994) ("Although this cause
of action arises under state law, the federal standing requirements of
Article III still apply.").
8 SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION
under North Carolina law, the proceeds of the program accrue to the
state or to the City.2 Thus, Shavitz’s federal claims are in no way
dependent upon or related to the Board’s claim against the City.
Under these circumstances, we simply cannot conclude that Shavitz’s
federal claims and the clear-proceeds claim share a common nucleus
of operative fact, as required by section 1367 and Gibbs. See Hales,
500 F.2d at 848 (concluding that pendent jurisdiction did not exist
over state-law claims that were "separately maintainable and deter-
minable without any reference to the facts alleged or contentions
stated in or with regard to the [federal] count").
Moreover, it is obvious that the clear-proceeds dispute is not one
that "would ordinarily be expected" to be tried along with Shavitz’s
federal constitutional challenges to the red-light camera program.
Gibbs, 383 U.S. at 725. Shavitz’s constitutional challenges to the red-
light camera program provided the gateway into federal court. While
we would ordinarily expect related state-law claims asserted by
Shavitz to be tried along with his constitutional claims, we would not
expect the clear-proceeds dispute between the Board and the City to
be tried along with Shavitz’s constitutional challenges. Although the
Board was brought into the action by Shavitz as a nominal defendant,
Shavitz sought no relief from the Board, and the Board’s claim
against the City is in no way dependent upon or related to Shavitz’s
2
The North Carolina Supreme Court has explained that article IX, sec-
tion 7 of the North Carolina Constitution identifies "two distinct funds
for the public schools. These are (1) the clear proceeds of all penalties
and forfeitures in all cases, regardless of their nature, so long as they
accrue to the state; and (2) the clear proceeds of all fines collected for
any breach of the criminal laws." Mussallam v. Mussallam, 364 S.E.2d
364, 366 (N.C. 1988). The district court concluded that because the Gen-
eral Assembly specifically described red-light camera violations as non-
criminal, the red-light camera proceeds did not fall within the second cat-
egory identified by the Mussallam court. See Shavitz, 270 F. Supp. 2d at
726. The district court also concluded that the red-light camera proceeds
did not fall within the first category identified by the Mussallam court
because the proceeds, while properly viewed as penalties, accrue not to
the state but to the City. See id. at 727. It is this conclusion that is the
primary focus of the Board’s appeal. Thus, the clear-proceeds claim turns
on a determination of whether the red-light camera proceeds accrue to
the state or to the City.
SHAVITZ v. GUILFORD COUNTY BOARD OF EDUCATION 9
claims against the City and the other defendants. Since the Board is,
at least as a practical matter, a stranger to the dispute between Shavitz
and the City, no one would expect the Board’s substantively unrelated
and unconnected claims against the City to be tried along with
Shavitz’s claims.3
To summarize, we conclude that the clear-proceeds dispute
between the Board and the City and Shavitz’s federal challenges to
the red-light camera program do not share a common nucleus of oper-
ative fact and would not be expected to be tried in one judicial pro-
ceeding. Thus, the claims are not part of the same Article III case or
controversy, and the district court erred by exercising supplemental
jurisdiction over the clear-proceeds claim. Because there is no inde-
pendent basis to support the district court’s exercise of jurisdiction
over the clear-proceeds claim, the district court lacked subject-matter
jurisdiction over that claim. Accordingly, we hereby vacate the dis-
trict court’s order granting summary judgment in favor of the City on
the clear-proceeds claim, and we remand with instructions for the dis-
trict court to remand the clear-proceeds claim to state court. See Hin-
son v. Norwest Financial South Carolina, Inc., 239 F.3d 611, 617 (4th
Cir. 2001) (explaining that "under the authority of 28 U.S.C.
§ 1367(c), . . . a district court has inherent power to dismiss the case
or, in cases removed from State court, to remand").
VACATED AND REMANDED WITH INSTRUCTIONS
3
We do not mean to suggest that supplemental jurisdiction cannot exist
over state-law claims that require the joinder or intervention of additional
parties—section 1367 by its terms applies to certain claims that require
the presence of additional parties. See 28 U.S.C.A. §§ 1367(a), (b). But
the clear-proceeds dispute between the Board and the City is simply too
disconnected from and unrelated to Shavitz’s constitutional challenges to
the red-light camera program to satisfy the requirements of section 1367. | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2749742/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-14-00398-CV
________________
IN THE INTEREST OF Z.B., Z.B., AND J.B.
__________________________________________________________________
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. F-219,449
__________________________________________________________________
MEMORANDUM OPINION
This is an attempted appeal by the children’s great-grandmother, who was
neither a party nor an intervenor in the trial court proceedings, from an order
terminating parental rights. On September 18, 2014, we sent a letter questioning
our jurisdiction over the case because appellant was not a party to the trial court
case. Appellant did not file a response.
Standing is a prerequisite to subject matter jurisdiction. Frost Nat’l Bank v.
Fernandez, 315 S.W.3d 494, 502 (Tex. 2010). Standing must exist at every stage
of a legal proceeding, including appeal. Williams v. Lara, 52 S.W.3d 171, 184
1
(Tex. 2001). To establish standing to appeal, a person must generally have been a
party to the judgment. In re S.J., No. 14-11-00142-CV, 2011 WL 2150586, at *1
(Tex. App.—Houston [14th Dist.] June 2, 2011, no pet.) (mem. op.). Nonparties
who have not properly intervened in the trial court generally lack standing to
appeal the trial court’s judgment. See Cont’l Cas. Co. v. Huizar, 740 S.W.2d 429,
430 (Tex. 1987).
Because appellant was not a party in the trial court, nor was she a nonparty
who had properly intervened in the trial court, she lacks standing to appeal. See
S.J., 2011 WL 2150586, at *1. Accordingly, we dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 43.2(f); In re K.A.P., No. 14-11-00536-CV, 2011
WL 4373987, at *1 (Tex. App.—Houston [14th Dist.] Sept. 20, 2011, no pet.)
(mem. op.) (Appellate court dismissed appeal for lack of jurisdiction because
grandmother was neither a party to the judgment nor an intervening party.).
APPEAL DISMISSED.
___________________________
STEVE McKEITHEN
Chief Justice
Submitted on October 22, 2014
Opinion Delivered October 23, 2014
Before McKeithen, C.J., Kreger and Johnson, JJ.
2 | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1744525/ | 998 So. 2d 1146 (2008)
THE FLORIDA BAR
v.
CULPEPPER (ROBERT).
No. SC08-1092.
Supreme Court of Florida.
December 4, 2008.
Decision without published opinion. Disbarred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2343056/ | 212 F. Supp. 2d 258 (2002)
Anthony COOK, Petitioner,
v.
PEARLMAN, Supt., Respondent.
No. 01 CIV. 7168(VM).
United States District Court, S.D. New York.
July 26, 2002.
*259 Anthony Cook, Rome, NY, Pro se.
Beth J. Thomas, Asst. Atty. General, Eliot Spitzer, Attorney General, State of New York, New York City, for Respondent.
DECISION AND ORDER
MARRERO, District Judge.
Pro se petitioner Anthony Cook ("Cook") filed a Petition for a Writ of Habeas Corpus, under 28 U.S.C. § 2254, on August 2, 2001 (the "Petition"), attacking his June 30, 1998 state court conviction of second degree burglary and petit larceny, violating New York Penal Laws § 140.55 and § 155.25, respectively. Cook claims that the conviction violated his right to due process of law, guaranteed by the Fourteenth Amendment of the United States Constitution, because the trial court *260 erroneously permitted the State to admit a particular videotape into evidence. Further, Cook claims that his constitutional right to a "fair trial" has been infringed because the trial court improperly refused to give an interested witness charge to the jury with respect to certain of the State's witnesses and also curtailed the defense's cross-examination of these same witnesses regarding their personal and professional interests in the disposition of the case. For the reasons set forth herein the Petition is denied.
I. FACTS[1]
Cook was convicted, after a jury trial, in New York State Supreme Court, New York County, for burglary and petit larceny. He was sentenced to concurrent prison terms of seven years on the burglary count and one year on the petit larceny count.[2] Cook's conviction stemmed from a June 29, 1996 incident involving the burglary of the Manhattan apartment (the "Apartment") of a young woman, Pardis Sabba ("Sabba"), in the early morning hours as Sabba and her boyfriend, Jonathon Brenner ("Brenner"), slept in the bedroom.
At trial, the State presented, among other evidence, eyewitness testimony, a videotape (the "Complex Videotape") depicting the physical layout of the apartment building complex (the "Complex"), and the testimony of Complex employees. Sabba testified that she encountered Cook in her Apartment during the early morning hours of June 29, 1996. Sabba identified Cook as the person who burglarized her Apartment. Keith Galley ("Galley"), the Complex concierge, testified that, after responding to Sabba's telephone call reporting the burglary, he found a copy of the Complex's master key (the "Copied Master Key") in the Apartment's key hole. Moreover, Galley testified that sometime after the burglary he viewed the Complex's surveillance videotape (the "Surveillance Videotape") and identified Cook, who matched Sabba's description of the intruder, as the only person leaving the Complex shortly after the burglary.[3]
Manu Agyei ("Agyei"), a security guard at the Complex, testified that he saw Cook enter and leave the Complex on several occasions during the night of June 28, 1996 and in the early morning hours of June 29, 1996. Moreover, Agyei testified that he witnessed Cook leave the Complex shortly after Sabba reported the burglary to Galley. Kenneth Centeno ("Centeno"), assistant superintendent of the Complex, testified that he also viewed the Surveillance Videotape and identified Cook leaving the Complex shortly after the burglary. Finally, John Tenety ("Tenety"), the building manager of the Complex, testified that he examined the Copied Master Key recovered at the crime scene and determined that it had been copied from the Complex's original master key (the "Original Master Key"), but not with the Complex's legitimate key copying equipment.
In addition to the trial testimony, the State presented the Complex Videotape. *261 The Complex Videotape was prepared by Tenety to help capture and convey to the jury the unique physical layout of the Complex.[4] The State's theory of the case was that Cook, a former Complex security guard with knowledge of the Complex's physical layout and prior access to the Original Master Key, had entered Sabba's Apartment with the Copied Master Key, and upon being confronted by Sabba, exited the Apartment and went up to the rooftop, where he crossed to a different building and then descended and left the Complex through the plaza. The Complex Videotape, the Surveillance Videotape, and the trial testimony of Sabba, Galley, Centeno, Tenety, and Agyei all support the State's theory.
In his defense, Cook presented only one witness, Brenner. Cook's defense also relied heavily on cross-examination of the Complex employees to discredit their testimony. Cook tried to persuade the jury that the Complex employees each had a personal interest in seeing Cook convicted for this crime, and therefore had a motive to frame Cook. Cook alleged that the Complex employees were trying to cover up their failure to prevent the burglary by asserting that this was an "inside job," carried out by a former employee with extraordinary access to resources that "outsiders" lacked. Cook alleged that the employees were lying to avoid any personal liability for the crime and perhaps to shield the Complex from any further litigation.
The jury found Cook guilty. Cook appealed the conviction to the New York Supreme Court, Appellate Division (the "Appellate Division"), arguing that: (1) "[t]he conviction was against the clear weight of the evidence;" (2) "[t]he [Complex] [V]ideotape was entirely speculative and unfounded, and its admission was a violation of appellant's due process rights;" and (3) "[t]he [trial] Court's refusal to give an interested witness charge relating to the apartment management deprived appellant of a fair trial, and the court's abridgment of defense counsel's cross-examination on the building employees' interest in the investigation was a denial of appellant's constitutional right to confront the witnesses against him."
The Appellate Division summarily rejected all of Cook's claims and affirmed the conviction. See People v. Cook, 276 A.D.2d 297, 716 N.Y.S.2d 283 (N.Y.A.D. 1st Dep't 2000). Thereafter, Cook submitted the Application Letter to the New York Court of Appeals. Cook's Application Letter addressed only the trial court's failure to give an interested witness charge to the jury. However, Cook attached the Appellate Brief, which contained all of his original grounds for appeal, to the Application Letter. The Court of Appeals denied Cook's petition for leave to appeal. This Petition followed, asserting only the second and third grounds for relief raised in the Appellate Brief.
II. DISCUSSION
A. STANDARD OF REVIEW
As an initial matter, where a party appears pro se, the courts are obliged to broadly construe the party's pleadings and interpret them "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).
Cook's Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. The Act provides in pertinent part:
*262 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.
28 U.S.C. § 2254(d). Clearly established federal law refers to the holdings only, not the dicta, of the United States Supreme Court. See Morris v. Reynolds, 264 F.3d 38, 46 (2d Cir.2001). The state court's application of clearly established federal law must be objectively unreasonable, not merely erroneous. See Williams v. Taylor, 529 U.S. 362, 387 n. 14, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); accord Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000).
Cook's two claims, the trial court's allegedly erroneous admission of the Complex Videotape into evidence and the failure to give an interested witness charge to the jury and the curtailment of the defense's cross-examination, were adjudicated "on the merits" by the Appellate Division. See Cook, 716 N.Y.S.2d at 283; see also Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001) (holding the Appellate Division's use of the word "denied" sufficient to satisfy the "on the merits" requirement, notwithstanding failure to cite any federal case law or appellant's federal claims). Accordingly, Cook's claims here will be analyzed under the AEDPA's deferential standard of review. See Washington v. Schriver, 255 F.3d 45, 55 (2d Cir.2001).
B. COMPLEX VIDEOTAPE / DUE PROCESS CLAIM
A prisoner seeking a writ of habeas corpus "must `exhaust[] the remedies available in the courts of the State'" before pursuing his claim in a federal court. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991) (quoting 28 U.S.C. § 2254(b)). A petitioner "must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Id. (citing Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990)).
The post-trial events surrounding this case are indistinguishable from those presented to the Second Circuit in Grey. There, the petitioner had been convicted, by a New York state jury, of manslaughter and criminal weapons possession. The petitioner appealed his conviction to the Appellate Division. The petitioner's appellate brief raised three separate grounds for reversing his conviction. The Appellate Division denied the petitioner's appeal. Thereafter, the petitioner filed an application letter with the New York Court of Appeals for leave to appeal, seeking reversal of his conviction. The petitioner attached to his application letter his appellate brief as originally submitted to the Appellate Division. However, within the text of the application letter, the petitioner only argued one of the original three grounds for reversal. The Court of Appeals denied the petitioner's appeal, and thereafter the petitioner filed a writ of habeas corpus in federal court. The petitioner's habeas petition included the three grounds for reversal that were originally included in his Appellate Division brief, two of which were not argued in the application letter to the Court of Appeals.
Given this procedural posture, the Second Circuit found that the petitioner had *263 constructively met § 2254's exhaustion requirement because all of the petitioner's claims were, at that time, procedurally barred from presentation to the New York Court of Appeals.[5]See Grey, 933 F.2d at 120-21. However, the court also held that "petitioner's forfeiture in state court of his [two claims omitted from the text of his application letter for leave to appeal] bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause for the procedural default and prejudice resulting therefrom." Id.
Here, Cook's post-trial actions are practically identical to those taken by the petitioner in Grey. Cook's Appellate Brief sought reversal of his conviction on three grounds, one of which was the trial court's admission of the Complex Videotape. However, Cook's Application Letter argued only one ground for reversal, the trial court's failure to give an interested witness charge to the jury with respect to the Complex employees. Like the petitioner in Grey, Cook attached his Appellate Brief to his Application Letter but did not specifically alert the Court of Appeals to his discussion of the Complex Videotape issue in the Appellate Brief. See Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir.2000) ("[A]rguing one claim in his letter [to the Court of Appeals] while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for the purposes of the exhaustion requirement"). The Court notes that a petitioner's burden in adequately presenting an issue previously argued in an appellate brief to the Court of Appeals is not onerous. See Morgan v. Bennett, 204 F.3d 360, 369-70 (2d Cir. 2000) (Petitioner's written request that "th[e] [New York] Court [of Appeals] consider and review all issues outlined in defendant-appellant's [Appellate Division] brief" was enough to adequately present all issues discussed in the Appellate Division brief to the New York Court of Appeals) (emphasis supplied).
Nevertheless, Cook is still entitled to federal habeas review of this issue if he can demonstrate cause for the procedural default and prejudice resulting therefrom, or if he can demonstrate that a failure to review his claim will result in a miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). To satisfy the cause standard, "a petitioner must show that `some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir.1995) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639). Cook is unable to meet the cause standard because he provides no explanation at all for not including the Complex Videotape argument in the Application Letter.[6]
*264 Because Cook is unable to establish "cause and prejudice" sufficient to warrant federal review of his claim, he may obtain review of his constitutional claim only if he falls "within the `narrow class of cases ... implicating a fundamental miscarriage of justice.'" Schlup v. Delo, 513 U.S. 298, 315, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995) (quoting McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991)). However, "[w]ithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Id. at 316, 115 S. Ct. 851. Cook has not presented any new evidence in the Petition to warrant a miscarriage of justice exception. Accordingly, this claim is procedurally barred.
C. INTERESTED WITNESS CHARGE AND OPPORTUNITY FOR CROSS-EXAMINATION
Cook's remaining ground for habeas corpus relief is his allegation that the trial court's failure to give an interested witness charge to the jury with respect to the Complex employees and the curtailment of the defense's cross-examination of the same witnesses deprived him of his constitutional right to a "fair trial." Although Cook generally cites state law in his Appellate Brief and in his Appellate Letter, he did argue that he was deprived of his "constitutional right to a fair trial." This is sufficient to meet habeas exhaustion requirements.[7]
Notwithstanding Cook's attempt to present his claim grounded in federal law, he has not shown a constitutional violation meriting habeas corpus relief. It is wellsettled that "[e]rrors in jury instructions normally implicate only State law." McCaskell v. Keane, No. 97 Civ. 2999, 2001 WL 840331, at *10 (S.D.N.Y. July 26, 2001) (citing Gilmore v. Taylor, 508 U.S. 333, 344, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993)); Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). The Supreme Court has held that "the fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72, 112 S. Ct. 475. Instead, only where "the State law issue has risen to a constitutional violation can a federal court consider the merits of the claim." McCaskell, 2001 WL 840331, at *10 (citing Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir.1990); U.S. ex. rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir.1975), cert. denied, 423 U.S. 872, 96 S. Ct. 138, 46 L. Ed. 2d 102 (1975)).
Here, no constitutional issue is presented. Although Cook is entitled to a jury charge that reflects his defense, U.S. *265 v. Vasquez, 82 F.3d 574, 577 (2d Cir.1996), "[a] conviction will not be overturned for refusal to give a requested charge ... unless that instruction is legally correct, represents a theory of defense with basis in the record that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge." Id. at 577. (citing U.S. v. Perez, 897 F.2d 751, 754 (5th Cir.1990)). Additionally, "the habeas court must consider the whole jury charge in the context of all the charges given and the events at trial." McCaskell, 2001 WL 840331, at *10 (citing Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir.1996)).
Here, the trial court gave the following instruction to the jury:
Since you are the exclusive judges of the facts you have the duty to evaluate the testimony. It is your duty to sort out the credible testimony and disregard any testimony which is not credible. One of your chief functions as judges of the facts is to determine the credibility of the witnesses because the facts depend upon the testimony of the witnesses ... [y]ou should consider ... the witness' interest or motive for testifying ... [y]ou should ask yourselves ... was the witness demonstrably biased or prejudiced or did the witness have a demonstrable reason to falsify. [In determining credibility, you should consider] the witness' interest or lack of interest in the outcome of the case. The witness' motive to tell the truth or not to tell the truth ... [y]ou have a right to consider whether any witness is actuated by bias or prejudice or has an interest in the outcome of the case which would permit the witness to testify to something other than the truth.
The trial court's jury charge permitted Cook to "`effectively present[]' [his] argument as to the value of the [witnesses'] testimony." Id. (quoting Vasquez, 82 F.3d at 577). The jury was instructed to consider the reasons or motives that would inspire or cause the Complex employees, or any other witness for that matter, to lie and implicate Cook in the burglary.
Moreover, the trial court permitted Cook ample latitude on cross-examination and in summation to call into question each witness' motive for testifying. For example, in summation defense counsel argued, "Normandie Court which as you heard from Mr. Tenety has liability insurance. Mr. Centeno is a person who did not want to be held responsible for something on his watch." Additionally, on cross-examination defense counsel was permitted to question the Complex employees on their knowledge of the Complex's liability insurance and on their possible motives for falsifying their testimony.[8]
The trial court's permitting this line of cross-examination "show[s] that the failure to give a more specific instruction did not violate [Cook's] due process rights." See id. (citing Smith v. Gibson, 197 F.3d 454, 460 (10th Cir.1999) ("court's failure to give specific charge as to treatment of [witness'] *266 testimony will not permit habeas relief where defense counsel had opportunity to attack [witness'] credibility and was able to bring to the jury's attention the fact that the [witness] was an interested witness")).
Accordingly, because the lack of a more specific interested witness charge to the jury did not result in a federal constitutional violation, Cook's claim on this ground is denied. Also, given the specified instances of defense counsel's opportunity to confront the Complex employees on cross-examination, the Court finds that Cook's due process rights were not infringed by the trial court's rulings regarding the latitude afforded Cook's counsel in presenting the defense's theory of the case.
III. ORDER
For the foregoing reasons, it is hereby
ORDERED that petitioner Anthony Cook's petition for a writ of habeas corpus is denied.
The Clerk of Court is directed to close this case.
SO ORDERED.
NOTES
[1] The facts summarized herein are derived primarily from the trial transcripts. Also, where necessary, the Court derives facts from Cook's Petition, Cook's appellate brief submitted to the Appellate Division of the New York Supreme Court (the "Appellate Brief"), and Cook's application letter for leave to appeal submitted to the New York Court of Appeals (the "Application Letter").
[2] Cook's June 30, 1998 conviction was secured in a second trial. Cook's first trial ended in a hung jury.
[3] At the time of the incident, Cook lived in the Complex. Also, Cook previously had been employed as a security guard at the Complex. Thus, the Complex employees who testified at trial had, at one point or another, a personal and/or professional relationship with Cook.
[4] The Complex is unique in that it includes a number of high-rise apartment buildings connected at the top by a rooftop and on the bottom by a plaza. Thus, conceivably, a person could maneuver from one of the apartment buildings to another via the rooftop connection or the plaza connection.
[5] New York Court Rules prohibited the petitioner from again seeking leave to appeal in the New York Court of Appeals because he had already made the one request for leave to appeal to which he was entitled. See N.Y. Court Rules § 500.10. Moreover, collateral review of the petitioner's claims was also barred because the issues were previously determined on the merits on direct appeal. See N.Y.Crim.Proc.Law § 440.10.
[6] Even construing Cook's petition with the degree of leniency afforded pro se petitioners, the Court is unable to find any reason to overlook the procedural bar preventing review of this issue on the merits. Cook provides the Court no explanation for not raising the Complex Videotape issue with the Court of Appeals. Rather, given the obvious time and resource allocation devoted to the extensive analysis of the interested witness charge issue in Cook's Application Letter and the Complex Videotape analysis in the Appellate Brief, it is reasonable that the omission of the Complex Videotape argument from the Application Letter was a tactical decision to put forth what Cook perceived to be his best argument. Moreover, even if, in hindsight, appellate counsel's decision to forego the Complex Videotape issue in the Application Letter was erroneous, such a mistake does not rise to the level of error required of an ineffective assistance of counsel claim. See Carrier, 477 U.S. at 492, 106 S. Ct. 2639 ("attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial").
[7] Cook has exhausted this federal claim in the state courts because his Appellate Brief referenced sections of the United States Constitution and he followed up on these claims in his Application Letter. See Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir.1991) (petitioner's federal claims deemed exhausted in state courts after citing to Fourteenth Amendment in a point heading of a brief submitted to the Appellate Division); see also McCaskell v. Keane, No. 97 Civ. 2999, 2001 WL 840331, at * 10 (S.D.N.Y. July 26, 2001) (petitioner met habeas exhaustion requirements when he argued to the Appellate Division and the Court of Appeals that he had been "deprived of a fair trial").
[8] For example, on cross-examination defense counsel made the following remark to Tenety: "would it be fair to say that in your experience and your familiarity ... of liability insurance that in fact if a loss to a tenant was caused by a building employee that the building could be liable under your under the terms of your insurance?" Other examples of the latitude afforded defense counsel in presenting its theory that the Complex employees were lying to protect their own interests, are the following questions to Complex employees on cross-examination: "In fact, you are being paid by Normandie Court today, is that correct?"; "You are presently employed by Normandie Court, is that correct? ... [a]nd, you are being paid today by Normandie Court, is that correct?"; "[I]f the master key was missing you would be responsible, wouldn't that be correct?" (Trial Transcript at 305, 337, 356, 386-87.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546533/ | 250 B.R. 222 (2000)
In re Charles DEXTER, Debtor.
Charles Dexter, Plaintiff/Counter Defendant,
v.
Sarah Dexter, Defendant/Counter Plaintiff.
Bankruptcy No. 99-1-8453PM. Adversary No. 99-1-AP457PM.
United States Bankruptcy Court, D. Maryland, at Greenbelt.
June 23, 2000.
Leslie S. Auerbach, Camp Springs, MD, for debtor.
Jeffrey M. Orenstein, Rockville, MD, for defendant.
*223 MEMORANDUM OF DECISION
PAUL MANNES, Chief Judge.
The debtor, Charles Dexter (sometimes "plaintiff' or "Charles"), filed this complaint seeking an order of the court ruling that, by virtue of his Chapter 7 discharge issued October 25, 1999, he is no longer indebted to his former spouse, Sarah Dexter (sometimes "defendant" or "Sarah"), on account of a judgment in the sum of $17,486.88 entered in the Circuit Court for Montgomery County, Maryland, in the case of Charles Dexter, Plaintiff vs. Sarah L. Dexter, Defendant, Case No. 36576, on July 27, 1998. He also seeks a ruling that he has no further obligation to continue payments to the defendant of $364.31 pursuant to an agreement between the parties and subsequent court order.
The parties to this case were also the parties in the case of Charles Dexter v. Sarah L. Dexter, 105 Md.App. 678, 661 A.2d 171, cert. denied 341 Md. 27, 668 A.2d 36 (1995), wherein that court affirmed the judgment of the Circuit Court for Montgomery County that the debtor had breached the agreement of the parties and was obligated to pay Sarah the amount they had bargained for.
The facts are not disputed. The trial consisted of the reception of various exhibits into evidence followed by arguments in support of the respective positions of the parties.
The defendant submits her claims are not excepted from discharge under 11 U.S.C. § 523(a)(15) that provides:
§ 523. Exceptions to discharge
(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
* * * * * *
(15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, or child of the debtor.
This exception from the discharge of debtors was enacted as a part of the Bankruptcy Reform Act of 1994 and came about as the result of the recognition by Congress of the unfairness of restricting the exception to discharge to claims of a former spouse for alimony, maintenance or support. The legislative history consists of the Floor Statement of Chairman Brooks of the House Judiciary Committee:
Subsection (e) adds a new exception to discharge for some debts arising out of a divorce decree or separation agreement that are not in the nature of alimony, maintenance or support. In some instances, divorcing spouses have agreed to make payments of marital debts, holding the other spouse harmless from those debts, in exchange for a reduction in alimony payments. In other cases, spouses have agreed to lower alimony based on a larger property settlement. If such "hold harmless" and property settlement obligations are not found to be in the nature of alimony, maintenance, or support, they are dischargeable under current law. The nondebtor spouse may be saddled with substantial debt and little or no alimony or support. This subsection will make such obligations *224 nondischargeable in cases where the debtor has the ability to pay them and the detriment to the nondebtor spouse from their nonpayment outweighs the benefit to the debtor of discharging such debts. In other words, the debt will remain dischargeable if paying the debt would reduce the debtor's income below that necessary for the support of the debtor and the debtor's dependents. The Committee believes that payment of support needs must take precedence over property settlement debts. The debt will also be discharged if the benefit to the debtor of discharging it outweighs the harm to the obligee. For example, if a nondebtor spouse would suffer little detriment from the debtor's nonpayment of an obligation required to be paid under a hold harmless agreement (perhaps because it could not be collected from the nondebtor spouse or because the nondebtor spouse could easily pay it) the obligation would be discharged. The benefits of the debtor's discharge should be sacrificed only if there would be substantial detriment to the nondebtor spouse that outweighs the debtor's need for a fresh start.
140 Cong.Rec. H10751, H10770 (daily ed. Oct. 4, 1994) as reprinted in Collier on Bankruptcy, Vol. D, App.Pt. 9-95 (15th Edition Revised 2000). This legislation was enacted in response to widespread calls for reform of the 1978 Act with its dichotomy of family law obligationsnon-dischargeable support and dischargeable property distributions. See generally, Collins v. Hesson, 190 B.R. 229, 234-236 (Bankr.D.Md.1995). One scholar, responding to widespread criticism of the former law, pointed out:
Because of the rise of equitable distribution as the dominant method of allocating marital gains and losses, the policy of refusing to protect divorce-related property divisions is unfair to divorcing couples who structure their financial arrangements according to modern notions of marital partnerships.... Moreover, Congress' directive that divorce obligations be characterized according to federal law, rather than state law, has resulted in increasing federal interference with state domestic relations schemes. These judicial failures are understandable: they reflect the fact that meaningful distinctions no longer exist between support awards and property divisions.
J.B. Singer, Divorce Obligations in Bankruptcy Discharge: Rethinking the Support/Property Distinction, 30 Harv.J. on Legis. 43, 113-14 (1993).
The exception of subsection (A) is not applicable here because the debtor concedes that he has the ability to pay the debt from funds not reasonably necessary to be expended for maintenance or his support. This leaves the issue whether the benefit to the debtor of nonpayment outweighs the detrimental consequences to his former spouse. See 11 U.S.C. § 523(a)(15)(B). Which party has the burden of proof? This court held in Hesson, supra at 238-239, that the receiving spouse had the burden to show that the detrimental consequences of discharging the debt outweigh the benefit to the debtor. However, since that decision, most courts reached the opposite conclusion, placing the burden upon the debtor. After prolonged reflection, the court believes that the latter is the better rule and would be the rule that the United States Court of Appeals for the Fourth Circuit would follow were this issue presented to it. See In re Crosswhite, 148 F.3d 879, 884-885 (C.A.7 1998); Gamble v. Gamble (In re Gamble), 143 F.3d 223, 226 (C.A.5 1998) (upholding bankruptcy court's assignment of "the initial burden of showing that § 523(a)(15) was applicable to the debt in question" to the plaintiff and then assigning "the burden of proving that one of the exceptions applied to take it out" to the debtor); In re Jodoin, 209 B.R. 132, 140 (9th Cir. BAP 1997) ("once the Plaintiff demonstrates that the [d]ebtor incurred *225 the debt in connection with divorce, the burden shifts to the [d]ebtor to prove subparts (A) and (B)"); In re Moeder, 220 B.R. 52, 55-56 (8th Cir. BAP 1998) ("the burden of proof lies with the debtor to show that an exception to nondischargeability under § 523(a)(15)(A) or (B) applies in a given case"); Hart v. Molino (In re Molino), 225 B.R. 904, 907 (6th Cir. BAP 1998).
FACTS OF THE CASE
After nearly 19 years of marriage, the parties ended up in divorce proceedings. They came before the Circuit Court on February 1, 1990, and informed the court that they had agreed to various issues, including custody, support, a monetary award, and the division of Charles Dexter's military pension. Sarah was awarded a monetary award and 47.5% of the debtor's military pension on a monthly basis "as, if, and when" it is paid by the Department of the Army to Charles. The Judgment Granting Absolute Divorce and Related Relief was entered February 20, 1990. Less than 90 days afterward, Charles filed bankruptcy case No. XX-X-XXXX under Chapter 7 in this court and received a discharge on January 8, 1991. Charles sought to nullify the military pension award and monetary award set out in the consent agreement embodied in the Court Decree entered earlier in the year. Sarah filed an adversary proceeding seeking a ruling of this court for determination of dischargeability of certain debts. This court passed a judgment on April 11, 1991, holding that the monetary award to Sarah was discharged, but that the effect of the agreement and the Circuit Court order had been to transfer 47.5% of Charles' military pension to Sarah and that the parties did not stand in a debtor and creditor relationship as to that item.
After the filing of the bankruptcy case, Charles obtained the conversion of his military pension to a disability benefit. This benefitted him in two respects. First, it substantially increased the amount of the benefit, and second, it converted the retirement payment from taxable income to largely non-taxable income. Charles thereupon ceased making any payments to Sarah, arguing that because there was no longer any military pension paid to him, he had no further obligation to continue payments to Sarah on account of it. Sarah moved to enforce the obligation, and the matter came before the Honorable D. Warren Donahue, Judge of the Circuit Court for Montgomery County, Maryland, on December 22, 1993. He entered a judgment in favor of Sarah against Charles finding that, while there had not been any fraud on Charles' part, he had breached the agreement of the parties by not paying over to Sarah what was due under the agreement. The court pointed out that she was entitled to 47.5% of his military retirement pay but that Charles had waived his right to receive that pay. The Circuit Court entered judgment against Charles in the amount of $12,386.54 for payments due from March, 1991, through December, 1993, and held that he had a continuing responsibility to Sarah for a sum equivalent to 47.5% of his retirement pay.
The Court of Special Appeals affirmed, Dexter v. Dexter, 105 Md.App. 678, 661 A.2d 171 (1995), holding that "where cooperation is necessary to the performance of a condition [in a contract], a duty to cooperate will be implied and that a party owing such a duty cannot prevail if such failure operates to hinder or prevent performance of the conditions." Undaunted, Charles filed his second bankruptcy case under Chapter 7 on July 15, 1999.
Charles had remarried in 1990 and separated in 1996 or 1997. The record reflects that he was separated at the time of the filing of this case and that he and his second wife ("Peggy") had purchased a house in Beltsville, Maryland, that was later sold for $168,000. His second wife received the proceeds of the sale. Charles also spent $14,000 to pay off all of the bills where he and Peggy were jointly liable.
*226 The debts sought to be discharged under the current bankruptcy filing are some $22,000 said to be owed to Sarah; $7,900 owed to Charles' attorneys, who had represented him before the Court of Special Appeals; and slightly over $1,000 in credit card and other consumer debt. The current Chapter 7 case was filed to enable Charles to free himself of the obligation to Sarah, notwithstanding the fact that since the Agreement between the parties, Charles' retirement-disability pay increased substantially, and Sarah's share was frozen and not subject to periodic increases based upon increases in the payments to Charles.
As to the parties' current situation, Charles is employed as a computer specialist at the Department of Defense. Sarah is also employed by the federal government. Charles is entitled to free medical care and is building a retirement portfolio far in excess of Sarah's. At the time of the filing of the case, Charles owned a 1998 Chevrolet Blazer with payments said to be $553.00 a month and automobile insurance costing over $2,500.00 a year. At trial, it was pointed out that he now drives a Nissan Pathfinder with payments of $555.00 a month. The record does not reflect when that vehicle will be paid off. In addition, it is unlikely that the debtor will continue to file a tax return as a married person filing a separate return, a category that calls for a higher tax rate than he would pay after his divorce from Peggy.
Looking at this case in the totality of the circumstances presented, the issue is whether Charles may succeed in his effort to use the bankruptcy process a second time to facilitate his third attempt to undo the 1990 Agreement. Charles is living comfortably, and Sarah appears to be living close to the edge. She does not have the safety net that Charles has with respect to medical expenses. It is a certainty that Sarah will have to replace her 1986 model automobile and incur substantial monthly payments. Charles bought another automobile since the filing of the current bankruptcy case.
Based upon the record, the court cannot find that discharging the debt to Sarah benefits Charles to the extent that it outweighs the detrimental consequences to Sarah.
An order will be entered in accordance with the foregoing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/727497/ | 97 F.3d 1449
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.VERNON KENDALL HAYDEN, Defendant-Appellant.
No. 96-4197.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 20, 1996.Decided Sept. 23, 1996.
William E. Martin, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Clifton Thomas Barrett, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
M.D.N.C.
AFFIRMED.
Before ERVIN, WILKINS, and WILLIAMS, Circuit Judges.
OPINION
PER CURIAM:
1
Vernon Hayden appeals his conviction and sentence for conspiracy to distribute cocaine base,1 and carrying and using a firearm during a drug trafficking crime.2 Hayden contends that the evidence was insufficient to support his conviction, and that the district court improperly refused a requested jury instruction. Finding no reversible error, we affirm Hayden's conviction and sentence.
2
We review a denial of a motion for acquittal under a sufficiency of the evidence standard.3 To sustain a conviction the evidence, when viewed in the light most favorable to the government, must be sufficient for a rational jury to have found the essential elements of the crime beyond a reasonable doubt.4 All reasonable inferences from the facts proven to those sought to be established may be made.5
3
The government presented substantial evidence that Hayden conspired to distribute cocaine base. Several witnesses testified that they received crack cocaine from Hayden, either for their personal use or to sell. One witness admitted to making several trips to New York and transporting crack cocaine back to North Carolina for Hayden. Another witness testified that she had observed Hayden distributing crack cocaine to other persons. A government agent testified that Hayden attempted to buy three firearms for an ounce and a half of crack cocaine. Additionally, a search of Hayden's residence and an adjacent apartment revealed crack cocaine and a firearm that was identified by a witness as traded to Hayden for $275 of cocaine. Hayden's action of bartering drugs for guns constitutes "using a firearm" for purposes of § 924(c).6 Based upon the evidence presented at trial, we find the evidence sufficient for a rational trier of fact to convict Hayden of conspiracy to distribute cocaine base,7 and carrying and using a firearm during drug trafficking.8
4
Finally, Hayden asserts that the district court erred by refusing to instruct the jury after it had already begun its deliberations that he could not be convicted of conspiring with a paid government informant. Because Hayden failed to preserve the issue by requesting the instruction prior to the jury's deliberations, we review this claim for plain error that affects substantial rights.9
5
We do not find the court's failure to issue the jury instruction after the jury began its deliberation to be plain error. The necessity, extent, and character of any supplemental jury instruction is a matter solely within the trial court's discretion.10 When Hayden finally requested an instruction concerning a paid government informant, the trial court had already instructed the jury regarding the credibility of witnesses, immunity of witnesses, witnesses who had used addictive drugs, and the inability to conspire with a government agent. Together, these instructions informed the jury that an informant's testimony must be weighed with greater care to determine if the testimony was affected by interest or prejudice. Additionally, evidence at trial supported the jury's verdict independent of any activities conducted by a paid government informant. Consequently, we find no reasonable probability that the instruction would have changed the outcome of the trial.
6
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
1
21 U.S.C. § 846 (1988)
2
18 U.S.C.A. § 924(c) (West Supp.1996)
3
FED. R. CRIM. P. 29; United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied, 505 U.S. 1228 (1992)
4
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.1993)
5
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982)
6
Bailey v. United States, --- U.S. ---, 64 U.S.L.W. 4039, 4042 (U.S. Dec. 6, 1995) (Nos.94-7448, 94-7492)
7
21 U.S.C. § 846 (1988)
8
18 U.S.C.A. § 924(c) (West Supp.1996)
9
FED. R. CRIM. P. 52(b); see United States v. Olano, 507 U.S. 725, 731-32 (1993)
10
United States v. Horton, 921 F.2d 540, 546 (4th Cir.1990), cert. denied, 501 U.S. 1234 (1991) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1584528/ | 24 So.3d 579 (2009)
Cheryl WELLS, Appellant,
v.
Cia M. WELLS, Alan Belauskas, Steve Fishman, Morgan Stanley, Eugene Michael Kennedy, P.A., Eugene Michael Kennedy, John Knox Village of Florida, Inc., Bogutz & Gordon, PC, Brian C. Bjorndahl, Kevin Kinghorn, Esq., and Lynne Tomasa, Appellees.
No. 4D08-1341.
District Court of Appeal of Florida, Fourth District.
September 16, 2009.
*580 Cheryl Wells, Ocala, pro se.
Philip L. Schwartz of Law Offices of Philip L. Schwartz, P.A., Boca Raton, for appellees Cia M. Wells and Alan Belauskas.
Eugene Michael Kennedy of Eugene Michael Kennedy, P.A., Pompano Beach, pro se.
Jonathan J. Davis and Jonathan S. Wickham of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale, for appellees Bogutz and Gordon, P.C., and Brian C. Bjorndahl.
John R. Gillespie, Jr., of The Gillespie Law Firm, Lighthouse Point, for appellee John Knox Village of Florida, Inc.
Scott A. Cole and Alejandro Perez of Cole Scott & Kissane, P.A., Miami, for appellee Kevin Kinghorn.
Jon A. Jacobson of Greenberg Traurig, P.A., West Palm Beach, for appellees Morgan Stanley & Co., Inc., and Steve Fishman.
POLEN, J.
Appellant, Cheryl Wells, appeals the trial court's final judgment entered after it dismissed her third amended complaint with prejudice. This court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A).
In the underlying action, Cheryl filed a complaint against Appellees, Cia M. Wells (Cheryl's sister), Alan Belauskas, Steve Fishman, Morgan Stanley, Eugene Michael Kennedy, P.A., Eugene Michael Kennedy, John Knox Village of Florida, Inc., Bogutz & Gordon, P.C., Brian C. Bjorndahl, Kevin Kinghorn, Esq., and Lynne Tomasa[1], alleging breach of fiduciary duty and other claims for their involvement in the mishandling of the Wells Family Irrevocable Trust and seeking an injunction, an accounting of the trust assets, money damages, and other relief. Cheryl has appeared pro se in all proceedings to date.
Cheryl summarized the defendants' alleged involvement in the mismanagement of the Trust as follows:
Cia M. Wells is the daughter, co-attorney, and co-trustee of Elaine Wells.
*581 Alan Belauskas is the husband of Cia Wells.
Steve Fishman is an investment advisor and broker at Morgan Stanley who has been involved in the actions of Cia Wells and the Wells family.
Morgan Stanley is a large investment house that currently controls most of the assets of the Wells Family Trust.
Eugene Michael Kennedy, P.A., is the corporate parent of Eugene Michael Kennedy, Esq., a licensed Florida attorney.
John Knox Village of Florida, Inc., is the location where Elaine Wells resided for over a decade before she was removed from Florida by Cia Wells.
Kevin Kinghorn is an attorney appointed by the State of Arizona to represent Elaine Wells.
Lynne Tomasa is an investigator appointed by the State of Arizona to investigate for the guardianship proceedings involving Elaine Wells.
Bjorndahl is an attorney at Bogutz & Gordon, P.C., an Arizona law firm allegedly hired by Cia Wells to bring a frivolous lawsuit in Arizona and to hide Trust property.
On August 20, 2002, Cheryl and Cia Wells' parents, Elaine and Carroll Wells, established the Wells Family Irrevocable Trust (the Trust). According to the terms of the Trust, Elaine Wells and Cia Wells were appointed as the original Co-Trustees, and in the event that Elaine Wells ceased to act as Trustee, Cheryl Wells was to be appointed as successor Co-Trustee. On October 6, 2005, Elaine Wells and Cia Wells established the Amended Wells Family Irrevocable Trust Agreement (the Amended Agreement), under which Cia Wells was appointed sole Trustee. The Amended Agreement also provided that upon the death of Elaine Wells, Cheryl Wells is to be appointed Co-Trustee. On October 6, 2005, Elaine Wells revoked a prior Durable Power of Attorney which had named Cheryl Wells as her attorney and executed a new Durable Power of Attorney appointing Cia Wells as her attorney to manage her affairs.
Cheryl's first complaint pled counts for declaratory judgment, breach of fiduciary duty, conversion, and wrongful interference with testamentary/trust expectancy. Carroll Wells died in 2005, and Elaine Wells' mental and physical health had deteriorated. Cheryl alleged that Cia and defendant Kennedy knew that Elaine Wells had Alzheimer's and yet influenced Elaine Wells to remove Cheryl as co-trustee and to revoke Cheryl's Durable Power of Attorney. In so doing, Cheryl alleged, Cia and Kennedy breached their fiduciary duty.
The complaint alleged that in 2006 while Cheryl was out of town, Cia surrendered Elaine's home at John Knox and moved all of Elaine's belongings to an assisted living facility in Arizona, Cia's home state. Since moving Elaine to Arizona, Cheryl alleged Cia had sought to secretly control the Trust finances, was disbursing Trust funds to herself, and was "generally seeking to convert and appropriate the trust's assets to the sole use and possession of Cia and her husband [defendant] Belauskas." The other named defendants allegedly aided and abetted Cia in her scheme to control and misuse the Trust assets.
Based on the foregoing allegations, Cheryl sought a declaratory judgment holding: (1) the Wells Trust was created, remains in existence, and has assets of approximately $1 million; (2) Elaine Wells ceased to act and perform duties as trustee on or about October 2005; (3) pursuant to Article XI of the trust, Cheryl automatically succeeded as co-trustee upon Elaine's ceasing to act as co-trustee; the provisions of the Wells *582 Trust could not be modified or revoked by Elaine Wells, Cia Wells, or Kennedy. Cheryl also sought an accounting of all funds received and/or administered by the defendants since 2002 and the return to Florida of all funds removed from Florida by Cia in 2005. Cheryl's complaint sought money damages from Cia, Kennedy, and John Knox Village and an injunction against all other named defendants. Finally, Cheryl sought an emergency injunction freezing all Trust assets.
Each of the named defendants filed a motion to dismiss arguing that the complaint was too vague to be answered and failed to state a cause of action. Cheryl filed three amended complaints, and after the filing of each one, the defendants moved to dismiss arguing the complaint was too vague and failed to state a cause of action. The trial court held an evidentiary hearing on the second amended complaint, and dismissed the complaint without prejudice directing Cheryl to file a third amended complaint.
Cheryl's third amended complaint pled the following causes of action: declaratory judgment (Count 1), breach of fiduciary duty (Count 2), conversion (Count 3), wrongful interference with testamentary/trust expectancy (Count 4), civil conspiracy (Count 5), interference with jurisdiction (Count 6), civil remedy for criminal practices (Count 7).
Following the third amended complaint and defendants' subsequent motions to dismiss, the trial court held a hearing and entered an order dismissing Cheryl's complaint with prejudice. There is no transcript of this hearing. In its written order, the trial court found that Cheryl had no standing to bring the claims she filed against defendants, that she failed to state a cause of action, and that further leave to amend would be futile because it was obvious the complaint could not be amended to state a cause of action. The trial court also determined it had no personal jurisdiction over the Arizona defendants, Kevin Kinghorn, Lynne Tomasa, Bogutz & Gordon, P.C., and Brian Bjorndahl, because these defendants had no minimum contacts with the State of Florida. Cheryl now timely appeals. We hold that Cheryl has standing to bring an action for declaratory judgment, that she sufficiently pled that cause of action as against Cia Wells, and reverse for further proceedings. As to all named defendants other than Cia Wells, we affirm the trial court's dismissal of Cheryl's action.
"A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts." Palumbo v. Moore, 777 So.2d 1177, 1178 (Fla. 5th DCA 2001). A dismissal for failure to state a cause of action is reviewed de novo. Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So.2d 1157, 1158-59 (Fla. 3d DCA 2008).
Section 86.041, Florida Statutes (2007) provides, in part:
Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, a guardianship, or of the estate of a decedent, an infant, a mental incompetent, or insolvent may have a declaration of rights or equitable or legal relations in respect thereto:
(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or
(2) To direct the executor, administrator, or trustee to refrain from doing any particular act in his or her fiduciary capacity; or
*583 (3) To determine any question arising in the administration of the guardianship, estate, or trust, including questions of construction of wills and other writings.
Id. In King v. Pinellas Central Bank & Trust Co., 339 So.2d 712 (Fla. 2d DCA 1976), the court interpreted section 86.041 as follows:
This statute is specific that any person... may bring a suit for declaratory judgment to have his rights declared under the trust and to direct the trustee to refrain from doing any particular act in his fiduciary capacity. The trustee is presumed to protect the rights of all of the beneficiaries of a trust and, therefore, we hold that all antagonistic and adverse interests were before the court through the trustee.
Id. at 713. Furthermore, "[t]he declaratory judgment act is to be liberally administered and construed." Dent v. Belin, 483 So.2d 61, 62 (Fla. 1st DCA 1986). Thus, we hold that pursuant to section 86.041, Fla. Stat., Cheryl, as a beneficiary and potentially wrongfully removed co-Trustee, has standing as an interested person to bring a cause of action for declaratory judgment in the present case.
The standard for determining the sufficiency of a complaint seeking declaratory judgment was established in May v. Holley, 59 So.2d 636 (Fla.1952):
Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.
Id. at 639. Further, "[t]he test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all." Dent, 483 So.2d at 61.
Cheryl pled extensive factual allegations regarding her sister, Cia's, alleged wrongful amendment of the family Trust and mismanagement of the Trust res. Cheryl states that Elaine Wells was diagnosed with Alzheimer's in 2004, and in 2005 the Trust was amended. The amendment to the Trust made Cia the sole Trustee until Elaine Wells' death despite Elaine's clear intention in the original Trust to always have two co-Trustees in place. Based on these allegations, Cheryl's complaint states a cause of action for declaratory judgment because (1) there is a present controversy and need for the declaration, (2) Cia, as former co-Trustee and current sole Trustee, is a proper adverse party, and (3) Cheryl's powers and privileges are dependent upon the facts or the application of law to the facts. See May, 59 So.2d at 639.
We also reverse the trial court's dismissal with prejudice of Cheryl's claims of breach of fiduciary duty and conversion. *584 In the event that Cheryl successfully obtains declaratory relief on remand and is restored as co-Trustee, she may then bring these causes of action against defendants, Cia Wells and Eugene Kennedy[2]. We affirm the trial court's dismissal with prejudice as to all other named defendants for either lack of personal jurisdiction or failure to state a cause of action.
Affirmed in part, reversed in part, and remanded.
WARNER and TAYLOR, JJ., concur.
NOTES
[1] Appellees, Bogutz & Gordon, P.C., Bjorndahl, Kinghorn and Tomasa, were not named defendants in the first complaint but were added as defendants in Cheryl Wells' second amended complaint. These four defendants are also foreign defendants while the remaining named defendants are not.
[2] Rosenstone v. Satchell, 560 So.2d 1229, 1229-30 (Fla. 4th DCA 1990) ("[A]n attorney may be held liable for breach of his duties to one who engages his services or to one who he knows is the intended beneficiary of his services."). | 01-03-2023 | 10-30-2013 |
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